Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 51 - Evidence - November 1, 2018
OTTAWA, Thursday, November 1, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 10:33 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome this morning to this important meeting in our consideration of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
It’s our pleasure this morning to welcome Marlene Poitras, Regional Chief for Alberta, Assembly of First Nations. Welcome Ms. Poitras.
We also have Bruce McIvor, Member at Large, Indigenous Bar Association; good morning, Mr. McIvor.
From the National Claims Research Directors, we welcome Mr. Peter Di Gangi; welcome.
And finally, on behalf of the Canadian Civil Liberties Association, we have Ryder Gilliland. Welcome, Mr. Gilliland.
We will start with you, Ms. Poitras. After your presentation, honourable senators will have an opportunity to comment and question you and the other distinguished guests that we have around the table this morning.
Marlene Poitras, Regional Chief for Alberta, Assembly of First Nations: [Editor’s Note: Ms. Poitras spoke in her Indigenous language.]
Members of the committee, thank you for inviting me here today to share the perspectives of the Assembly of First Nations on Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
First Nations across the country have concerns about the contents of Bill C-58 as this legislation will greatly impact our rights. It’s only in the past month or so that efforts at consultation have started. This is quite late in the game.
We strongly oppose the bill as currently drafted. Our chiefs have adopted a resolution requesting the government to withdraw the bill and engage in full and meaningful consultation with First Nations regarding reforms to Access to Information legislation.
The United Nations Declaration on the Rights of Indigenous Peoples lays out the obligations of governments to ensure that there is meaningful consultation when legislation and/or administrative measures impact on Indigenous people’s rights. The Truth and Reconciliation Commission’s Calls to Action also state clearly that government must fulfil its duty to consult properly. This was not done when Bill C-58 was being developed or in its earlier movement through the House of Commons.
First Nations have a right of access to information held by the Government of Canada that relates to our rights and interests. Canada is also in a conflict of interest because it controls much of the evidence directly related to claims by First Nations against itself, and any efforts at changing the access to information rules need to consider these facts. First Nations have a right to information, and Canada has a special obligation in this regard.
Despite a late start, we have been making efforts to study the bill and engage in a positive way to identify problems and possible solutions. We are a little encouraged to see that the government has begun to engage us on this bill, and we acknowledge Minister Brison’s apparent offer to scrap section 6, which many First Nations identified as a serious barrier to access. I say “a little encouraged” because there are still problems with the bill as drafted and the process that has been used to put it forward.
There are two key issues that I would like to focus on today. One is the need for Bill C-58 to recognize all First Nations as governments. The way things are now, the Access to Information Act and section 13 of the Privacy Act recognize nation states, provinces and even municipalities as governments, with a right to protect information that they may give to the Government of Canada in confidence, but the vast majority of First Nations are excluded from this definition in the act. Only First Nations who have signed modern treaties or self-government agreements are considered to be governments. This discrimination against First Nations who are governed by custom under historic treaties or the Indian Act is unacceptable, and that needs to be changed.
As you know, in the current bill, under section 13(3), exemptions, definitions of Aboriginal government, is very narrow. Section 13 is not, in our view, consistent with any reasonable understanding of what is a nation-to-nation relationship, nor the requirements of section 35 of the Constitution Act or UNDRIP. The Indian Act was imposed, and First Nations have always rejected its imposition as a violation of treaty and the right to self-determination. A new relationship requires Canada to properly acknowledge First Nation governments while we transition in our own way and at our own pace in order to exercise more fully our right to self-determination. For First Nations who either choose or don’t have a choice but to interact through the Indian Act, it is not Canada’s place to ignore our leadership and our governments.
The other issue relates to consultation. Because of our deep concern about the lack of consultation, the Assembly of First Nations called for the bill to be withdrawn through AFN Resolution No. 102/2017 and communicated by National Chief Perry Bellegarde. The letter to Minister Brison reiterated the message in calling on Canada to accommodate First Nations’ right of access to information within such legislation. An opportunity was missed in not having a meaningful consultation with First Nations on this issue. To date, the government’s efforts to consult on this bill have been inadequate and fall short of its obligations and political commitments. This needs to change, and quickly. The AFN will be watching the progress of this bill closely and will be reporting back to our chiefs and seeking further direction at the Special Chiefs Assembly in December.
First Nations must be part of regulatory processes and decision-making respecting anything that affects us. Working with us to figure out what that looks like is not only unavoidable, it’s the right thing to do and it’s the smart thing to do. It will lead to more balanced, fewer acrimonious and better decisions, fewer court battles, more timely decisions, better outcomes for us all.
In closing, in keeping with Canada’s commitments to reconciliation and to implement the UN Declaration on the Rights of Indigenous Peoples, as well as ensuring access to justice for First Nations, we call on the government to withdrawal Bill C-58 and engage in full and meaningful consultation with First Nations regarding legislative reform to access to information.
With that, I say thank you, and I look forward to your questions.
The Chair: Thank you so much.
Bruce McIvor, Member at Large, Indigenous Bar Association: Thank you, chair, and staff of the Senate. It’s a pleasure to be here today before you. I appear on behalf of the Indigenous Bar Association, which is an association of lawyers, Indigenous lawyers, judges, professors and law students who work on behalf of Indigenous people across the country.
I have handed up an outline of my notes, and we also have a more detailed brief that will be part of your package. I won’t necessarily follow my notes in detail, but they are there before you.
There are four main things that I would like to talk about today: First, the disproportionate effect of access to information laws on Indigenous people across the country; second, Indigenous peoples’ particular right to access to information; third, as Chief Poitras was saying, the lack of consultation on this bill; and fourth, concrete specific proposed amendments to the legislation.
First of all, it’s really important when you begin with this to keep in mind the impact on Indigenous people of laws about access to information. They are disproportionately affected. They are there, going to court, in negotiations with the federal government to ensure respect for their section 35 rights under the Constitution, whether that’s comprehensive claims, specific claims or negotiations, and the vast majority of documents are held by the federal government. They hold those documents, and they are key for proper and just reconciliation. Also, as Chief Poitras says, this is central to good governance. If you’re going to have nation-to-nation relationships, they need access to those federal documents. It’s important for cultural reasons and policy and economic development. I want to emphasize that to start. Indigenous people are in a particular situation when it comes to access to information, and the federal government holds the vast majority of the documents.
Second is the right of access that Indigenous people have to those documents. It has been recognized under international law through UNDRIP. It has been recognized under domestic law. It has been recognized under legislation. There is a particular right of access that Indigenous people have. It’s based on the honour of the Crown. It’s based on fiduciary obligations owed to Indigenous people. As the Federal Court of Appeal said in one case that came up on this, it would be contrary to the very purposes of section 35(1) of the Constitution for the federal government to suppress information that is vital to resolve claims against the federal government. Nonetheless, Indigenous people across the country are faced with existing barriers to access to information, and we say Bill C-58 will create even additional barriers to access. They have a right to complete and timely access to information. That’s what we should all be striving to ensure.
Third, as the chief was saying, there has been a complete lack of meaningful consultation on this bill. It’s contrary to the government’s own policies. Earlier this year, the federal government published its 10 principles of engagement with Indigenous people. The way they have handled themselves on this bill is contrary to those principles. It’s important that there be proper consultation. We have heard a lot in the last few weeks about the duty to consult and the Mikisew decision. It’s important to keep in mind that even if there is not a legal trigger for the duty to consult when legislation is being considered, there is still an obligation to consult meaningfully. That’s based on the honour of the Crown. It’s based on UNDRIP. It’s based on simply good policy to properly consult. We have been told, “Wait until phase 2. We’ll consult with you in phase 2.” I can’t tell you how many times Indigenous people across the country have heard that. “Wait until later. We’ll get to it later.” That is completely unacceptable. It has to be done before any legislation is passed.
Now I want to get to the substantive concerns. As we have heard, and as the committee has heard, there are real issues about the proposed sections 6 and 6.1. It creates new barriers. There is real concern about the reduction in the lack of oversight by the Information Commissioner and, as the chief has just said, continuing perpetuation of differential treatment of Indigenous nations and Indigenous government under the act.
So we say, first, this should be sent back. There should be proper consultation about this legislation. If that is not going to happen, there needs to be concrete and substantive amendments to the proposed legislation. We have detailed them in our submission. I’ll run through them quickly.
First, and this is really important, there should be a separate section in the purpose section of the act, which forms the basis of interpretation of the entire legislation, that specifically recognizes the special rights of Indigenous people and their right to access information. We have proposed specific language to amend the purpose section.
On the issue of Indigenous governments, we have proposed specific language to amend it, to address what the chief has just said about the differential treatment of First Nations across the country. For proposed sections 6 and 6.1, we have proposed that they be taken out. If not, we have suggested specific amendments that will be exceptions for Indigenous people, recognizing that special relationship.
In regard to the Information Commissioner, again, we have put in proposed amendments to ensure that the right to initiate a review is restored. That is really important for Indigenous people. If you look through my detailed brief, you’ll see the number of cases we rely on that have gone to the Federal Court. How did they get there? Through that current provision in the legislation. That shows how important this is for Indigenous people.
Finally, we have also proposed that there be an independent Indigenous review officer, again to recognize that special relationship with Indigenous people, and that they have the authority to review decisions, to deny access, to hear complaints from Indigenous governments, to make recommendations and to apply to the court for reviews.
I just want to end on one final point. We hear a lot about reconciliation. Let’s step back and think what that is about. Reconciliation is about the reconciling, the discredited doctrine of discovery, the unwanted assertion of Crown sovereignty over Indigenous lands with the historical and legal fact of Indigenous peoples’ rights to benefit from their lands, to make decisions about their lands and to exercise laws over their lands. In essence, reconciliation is about reconciling a wrong with a right. That’s what we’re all involved in sitting around the table here today. That’s why this is so important, because it’s a specific example of what needs to be done. We need to get this right. It needs to be sent back for proper consultation in a meaningful way, or we need these specific and concrete amendments.
Thank you for your time. I look forward to your questions.
The Chair: Thank you, Mr. McIvor. I have looked at your brief. I thank you for the proposed amendments that you have spelled out. You make it very easy for us to consult. I suggest that we keep that in front of us in our deliberations this morning.
Mr. Di Gangi, I thank you also for your extensive brief. We look forward to your remarks around the brief.
Peter Di Gangi, Director, Policy and Research, Algonquin Nation Secretariat, National Claims Research Directors: Thank you, Mr. Chair, and good morning, honourable senators. Thank you for hearing us today. I just want to acknowledge that we are on unceded Algonquin territory here on Parliament Hill.
The submission that we have prepared has been done by the National Claims Research Directors, who are mandated by First Nations to document claims against the Government of Canada, including specific claims and other disputes and litigation connected to treaties, Aboriginal title and rights.
First Nation governments, as Bruce identified, have a right of access to federal records. In this context, the federal government is in a conflict of interest because it’s the defendant in these claims. It controls access to the evidence and, at the same time, it owes a fiduciary duty to First Nations. Any attempt to modify the law relating to access to information is going to have an impact on First Nations and their ability to gather the evidence they need to document their claims, pursue them and resolve them.
We have provided you with a detailed brief and annexes, including the recommendations for amendments that Bruce McIvor has prepared, which we invite you to review. This morning, I would like to quickly summarize some points.
First, why are federal records important to First Nations? It’s because the federal government holds a huge amount of data on Crown-Indigenous relations, everything from the records of treaty councils, annuity pay lists, membership lists, records relating to the administration of reserve lands and trust funds, residential schools and so on. They also include a record of current negotiations and litigation between the Crown and First Nations.
For historical materials that are needed for claims of litigation, the question is, how can we be assured that Canada fulfils its duty to ensure that these records are made available to First Nations?
For more current materials that find their way into the system, for instance, materials provided to Canada during negotiations, they may be subject to access to information requests from third parties. If that’s the case, then the question is, how can First Nations be assured that such materials given to the Crown on a privileged and confidential basis are treated as such?
Now, what are the problems with the current ATI regime, the access to information regime? I think everybody acknowledges that it’s badly broken, and that was one of the justifications for the bill.
First Nations are supposed to be able to access materials informally as a first step and only go through the formal ATI process as a backstop. However, the informal route is subject to bureaucratic whims and government caprice. At the Department of Indigenous Affairs, which I’ll refer to as INAC, it can take anywhere from three months to three years to obtain records through the informal process.
The formal ATI route is supposed to guarantee a response within 30 days, but that deadline is meaningless in practice. Requests for long delays are normal — 150 day, 200 day, 300 day requests for extension. Even those may not be met. Often, at INAC, for instance, the delays are justified because, I quote, “The request is an interference in government operations.” Another excuse is that the volume of materials is too large.
Once you do get materials, exemptions are often gratuitously used to remove materials. Quite often, the copies you end up getting at the end of the day are not good enough to use as evidence. They don’t even meet the department of INAC’s own minimum standards for documents.
You can expect more delays if you actually decide to file a complaint with the Office of the Information Commissioner, the OIC. The current backlog at the OIC is approximately 3,400 complaints. In 2016-17, it could take six months to two years just to have an investigator assigned to your file. It can take another three years from then for the complaint to make its way through the system. The backlog is such that there is no time or room for negotiation or mediation. That’s a role that the Office of the Information Commissioner used to play, which was quite helpful in bringing the parties together. There is no time for that anymore because investigators have to deal with the files and get rid of the backlog.
Will Bill C-58 address these problems? The short answer is no. The government’s emphasis on proactive disclosure does nothing to address the problems that First Nations have with the ATI regime. Other parts of Bill C-58 address the bureaucracy’s problems, but they don’t ensure that the ATI regime is more responsive to users, including First Nations.
For First Nations, I suggest that there are two key concerns at this point. One is that the bill, even as amended, still provides officials with ample tools with which to frustrate or suppress the release of information. Second, for most First Nations, as the regional chief indicated, there are no protections for materials provided to Canada on a privileged and confidential basis.
The reason Bill C-58 does not address our problems is because Treasury Board undertook no consultation with First Nations when the bill was being developed or after it was tabled. It’s only really in the last 10 weeks that we have actually had the opportunity and the resources to study this bill in a systematic way.
Parts of Bill C-58 would actually set us back decades and entrench the bureaucracy’s ability to frustrate efforts to obtain access. For instance, two of INAC’s favourite reasons for delay, interference in government operations and the volume of records, would, under Bill C-58, become transformed into a legislative basis for denial of access. This is not an improvement over the status quo.
Another important issue that Bill C-58 avoids is the custody of materials. Historical records belong at the Library and Archives Canada, which is designed and intended to provide access to federal records of historical value. Why then is INAC sitting on 60 kilometres of documents, many or most of which are of historical value? They are not being transferred to Library and Archives Canada. If you make a request for materials at Library and Archives Canada, you get it, if not the same day, usually in a matter of weeks. Why is INAC sitting on these materials and making people wait years? We discuss that in more detail in our brief.
As the previous speakers have mentioned, we feel that Bill C-58 is a step backwards as it is currently drafted. It needs substantive amendment or, alternatively, it should be sent back for proper consultation. I thank you for your time today.
Ryder Gilliland, Counsel, Canadian Civil Liberties Association: Thank you, senators, for the opportunity to make some brief comments on behalf of the Canadian Civil Liberties Association.
I would like to emphasize at the outset how useful freedom of information or access to information legislation is for society. We have seen access to information requests being used just in the last year in the “Unfounded” series in The Globe and Mail to reveal a high incidence of unreported or uncharged sexual abuse cases, systemic racism in police forces, to help citizens understand NAFTA and, of course, you heard today some of the examples in which it can be used to assist First Nations.
It is very important legislation and does have successes in many instances, but unfortunately, in many more instances, there is failure. I will not repeat what you heard about the amount of delay, which is chronic and widely recognized to be a fundamental problem with the system. In fact, as was stated, that was the reason this bill was initially tabled.
Unfortunately, as drafted, the bill actually creates more obstacles. It will not reduce delay; if anything, it will increase it. I didn’t come here today with the proposal that the bill be scrapped, but I think scrapping the bill and starting fresh is a proposal that would make sense given some of these shortcomings.
Having said that, I wanted to focus on five points, which I can go through quickly, that, if applied to the existing legislation, could make it much better, and these are things that are well within reach.
The first is to implement the public interest override. The public interest override exists at the provincial and municipal levels in this province. There are limited exceptions to the public interest override, but the override ensures that you don’t end up caught up in definitional disputes about exceptions and you can look at the real question, which is: Is this information that the public — which has a quasi-constitutional right to know — should have access to? Far too many times, if you look through the cases, you see they turn on definitional disputes and ignore the big picture. A public interest override allows the institution, or the commissioner, if it goes to the commissioner, to look at the big picture and do the right thing. It’s a form of escape valve.
The second is the elimination of fees. The most recent statistic I saw — and you may have more recent information — is that the government recovered $386,000 in fees. That was for the 2015-16 period. That’s a very small amount of money in the grand scheme of things, but the fees, of course, are a big problem to requesters, and they are a bigger problem to requesters with fewer means. The fees can also create delay themselves because you can have challenges and appeals in connection with the fees. For less than $400,000 based on 2015-16 data, you could increase efficiency and increase access. It’s a very simple fix that would achieve that. It’s hard not to think about, given how little is recovered on the fees, just what purpose the fees serve other than to create an obstacle.
The third is to make the offices of the Prime Minister and other ministers subject to access. I had the privilege of being involved in the Information Commissioner v. Minister of Defence case in 2011, where we argued in court that government institutions should include ministers’ offices and the Prime Minister’s Office. We lost that argument, and the new amendment doesn’t change anything.
That case is a perfect example. By the time we were in the Supreme Court of Canada, the information we were seeking was 10 years old. Actually, the request had been brought 10 years earlier, so the information was probably older than that. We were there arguing about the definition of “government institution”, and that’s a classic example of how you go through this and waste a tonne of time arguing about minutiae.
In any event, it is counter-intuitive to most citizens of this country, I think, that an access to information request applies to government but not to the highest echelons of government. Having been involved in that case and in the consultations since, I frankly haven’t seen a persuasive reason for not having the legislation apply more broadly. Admittedly, there will be exceptions, but there are exceptions, so you can have a broader application with exceptions, which is the structure the act, and that broad application should apply to all of government.
This point has been alluded to so I won’t belabour it, but the specific requirements in proposed section 6 clearly are a further obstacle to access requests when assisting requesters. Generally, the advice is to frame your request broadly because you will run into individuals whom, if they are trying to avoid the request, if you are too specific, will say, “You asked for A, but it’s actually B,” knowing that B sits next to A and that the requester was interested in that information. What you have done in requiring greater specificity is actually made it easier for government institutions to avoid access requests. Again, it is an obstacle that should be avoided.
I’ll close with this one, because of time, but in proposed section 6, there is also a new ability to reject requests based on the size of the request, and that seems backward-looking. We are in an era where we all know that requests are going to generate bigger responses because there is more data for everything. The flip side is it is also easier to search the data. This idea that large requests should be denied is antiquated. I talked about the The Globe and Mail‘s Unfounded analysis on systemic policing. A lot of useful information to Canadians can be derived through analyzing big data and large volumes of information, which can now be obtained, really, at the click of a button or through other ways. I think it’s a big mistake in 2018 to implement legislation — which will likely be with us 5 or 10 years down the road when things I have just described are only going to be more the case — that creates this barrier. Of course, it is a barrier, and that alone is a another reason to not include it.
Thank you, again, for this opportunity. I invite your questions.
The Chair: Thank you so much, all of you. I’m sure my colleagues are anxious to entertain the issues you have raised.
[Translation]
I would first like to invite Senator Boisvenu, deputy chair of the committee, to open the debate.
Senator Boisvenu: Thank you for being here. I find your testimony very enriching, particularly with respect to Indigenous communities. Whenever we pass a bill like this, we always think it does not affect you. However, we can see that this affects you deeply.
Mr. McIvor, you talked about the disproportionate effects of this piece of legislation on your communities. Could you clarify your comments? In your view, are there any elements in the bill that could be constitutionally challenged with respect to your rights?
[English]
Mr. McIvor: Thank you very much, senator, for the question.
Yes, there is a disproportionate effect, and that’s based on the fact that it is Indigenous people across the country who are working hard to uphold their section 35 rights. They are in a different position than other groups across the country. They have section 35 constitutional rights under the Constitution, but we are told all the time it’s an empty box. We don’t know what is inside. That has been one the concerns from day one with the Constitution. It’s Indigenous people who are working to fill up that box. They are the ones doing the hard work to ensure that their rights are recognized and respected.
They do so much of that through claims against the federal government. They have claims whether it’s for title, for rights or for historical wrongs. They are in there doing that work. Hopefully it leads to negotiations so we don’t end up always trying to fight these things out in court, but even the negotiations themselves and that litigation depend on proper sharing of information. They simply do not have the information in most situations. It’s in the hands of the federal government.
Second, the federal government, as you all know, of course, decides who an Indian is under the Indian Act. So it’s not simply governments; it’s individuals themselves. In order to have their section 35 rights respected, what they are asked most of the time is, “Are you an Indian? Do you have a card?” How do you get that card? You need those documents that the federal government has. So the disproportionate effect is specific because of rights that are enshrined or to be respected under section 35.
You can find more details in our brief, in section 2. We go into it in more detail. We think that’s the fundamental issue to keep in mind here. Indigenous people are in a special situation when it comes to access to information because of the obligations owed to them and because of section 35 of the Constitution and the operation of the Indian Act.
The Chair: I think that Senator Boisvenu raised the constitutionality of the bill, but of course I speak for my own parish, as we say in French. Could you elaborate on that? Do you think there is a cause for challenge of some section of the bill because of the way it was drafted in relation to the Aboriginal people, of course?
Mr. McIvor: I will give the answer that most lawyers would in that situation, asked with a question, but I think it takes us back to the reason Supreme Court of Canada decision in Mikisew. That says there is no trigger of the duty to consult when you are considering legislation, but the government should do it. Why? Because there can be a legal challenge afterwards. That’s what can happen, and the court recognized that.
There will be challenges to these types of bills that are passed into law without proper consultation. That’s not in anyone’s interests. Indigenous people don’t want to have to be running off to court to challenge these things. Government says it doesn’t want to be in court based on these challenges. The judges themselves at the Supreme Court of Canada say, “We don’t want to open up the door for this.” How do you address it? You address it now through meaningful consultation about the bill before it becomes legislation.
[Translation]
Senator Boisvenu: In the Trans Mountain pipeline case, the Supreme Court overturned the government’s decision to acquire it on the grounds that the Indigenous communities had not been consulted.
Could the court strike down the bill because you were not consulted? In other words, could you launch a legal challenge to the validity of the bill?
[English]
Ms. Poitras: There is likely the chance that First Nations could litigate due to lack of consultation if the bill goes ahead as it is, and I believe the lawyer mentioned earlier that there if there are significant amendments to the bill and consultation, then that would mitigate that aspect of litigation in future.
[Translation]
Senator Boisvenu: Thank you.
[English]
Senator McIntyre: Thank you all for your presentations.
We have the current bill and Bill C-58 for study. As Chief Poitras rightfully pointed out, exemptions are covered under section 13 of the current bill. Bill C-58 calls for two key sections: section 6 dealing with requests for access to records and 6.1 being reasons for declining to act on request.
Minister Brison has already stated that he would welcome an amendment that would eliminate those new requirements in response to the concern raised by Indigenous peoples.
Section 6.1 also provides grounds for serious concern that was raised by all of you today and many other witnesses. When Minister Brison appeared in front of our committee on October 3, he stated:
The Information Commissioner has not sought the removal of section 6.1 . . . And that the concerns raised particularly by Indigenous leaders involved in treaty settlements were on section 6, not section 6.1.
I would like to have your thoughts on that.
Mr. McIvor: Thank you, senator.
We proposed specific amendments to both 6 and 6.1, as you have heard. In section 6, the amendment is basic. Go back to what was there. It addresses the issue that my friend raised. When you are filing these kinds of requests, particularly for Indigenous people, by necessity, you have to cast a pretty wide net. We think the current definition works. If that’s not going to happen, at least keep it for Indigenous people, because of the special relationship.
On 6.1, again it creates the barriers. We agree it should be tossed, that we should not proceed with that. If there is interest to proceed with the proposed, create an exemption for Indigenous people, for governments and for individuals who are trying to prove that they are Indians, and the federal government has the documents.
We have the details in our brief. We agree that it should go back for proper consultation, but if not, at least proceed with those concrete amendments.
Mr. Di Gangi: Certainly in our submissions at the house committee and all through this, our concern has been with the whole of section 6, not excluding 6.1, because they work together. We’ve always had problems with both sections.
Senator McIntyre: Was the minister in error when he said that?
Mr. Di Gangi: I’m not sure. Perhaps there was miscommunication. I just know that in our submissions, we were pretty clear that we were concerned with the whole of section 6. I am not a legislator, so to me it’s splitting hairs. With section 6, it’s the whole thing that’s a problem, including the subsections.
Senator McIntyre: I have a question for the Canadian Civil Liberties Association. In your presentation, you made reference to exceptions. As I understand, the long lists of exceptions and exemptions in Bill C-58 have not been narrowed or addressed in any way.
Mr. Gilliland: That’s right. They haven’t. Again, the issue is broader than that, which is why I was suggesting a public interest override would add value. There may be a benefit of looking at specific ones and narrowing them. What will happen inevitably is you will end up with another body of law around definitions of what these exemptions mean. The point I was making with respect to the public interest override is that that would allow, in the right case, for someone to look at it and say, “I don’t have to worry so much about what the definition of this particular word is in this case.” Because in this case, there is an investigation into the Mayor of Toronto, which was a recent case in which the public interest override was invoked.
Yes, that has not been done. I haven’t gone through the exercise of looking at the exemptions to see where they should be narrowed. I think there is a more fundamental problem of this whole framework being always focused so much on definitions rather than the broader point of actually making government accessible to Canadians.
[Translation]
Senator Carignan: My question is for the Indigenous Bar Association. In consulting your brief, I was thinking that some of the proposed amendments are along the same lines as those we have already heard from several groups and that were justified for various reasons.
Another part of your brief gives me the impression that you are looking for a special status and perhaps even a specific kind of access to information, a special regime for Indigenous groups. So are you willing to create a specific system given the government’s fiduciary obligations and your specific rights?
[English]
Mr. McIvor: Thanks for the question, senator.
We start from the fundamental understanding that there is a specific relationship, a special relationship, between the federal government and Indigenous people for the reasons that we have outlined: the disproportionate effect and the right to access. Based on that, yes, we do think that if the bill is going to proceed, there need to be provisions in the bill that recognize that in a concrete way, not simply to say, “It’s a new day; there is a new relationship; the sun has risen.” Let’s see it concretely in the act. That’s why we start with the purpose section and have it written into the purpose section.
This is not an unusual thing to do. There is a purpose section in the Ontario Mining Act. It has a specific reference to section 35 and Indigenous people. If they can do that in the provincial Mining Act, I think it would be appropriate for something similar to be in the federal Access to Information Act because of section 35.
And then, senator, you are right. As we go through, we walk through specific provisions to concretize that relationship with Indigenous people, the honour of the Crown and the fiduciary obligations.
[Translation]
Senator Carignan: My second question is about section 13. On the one hand, you want more access. On the other hand, you are proposing to amend section 13 to recognize Indigenous groups as a government and to ensure that the government does not disclose information when it has been provided by Indigenous bands.
In 1998 or 1999, the Federal Court issued several decisions stating that you are not a government within the meaning of the section 13 exemption. So the department is authorized to disclose information about you. Now you’re telling us to consider you a government within the meaning of this exemption, so that the department does not disclose this information to third parties. Is there not a contradiction between the desire to expand access and, at the same time, to ask the government not to disclose information from the bands? Is this about opening a door to obtain information to support claims later?
[English]
Mr. McIvor: Thank you, senator. The suggested amendments are in our brief so I would suggest I speak to them first, and then my friend Mr. Di Gangi can speak to them too because he has been involved in a lot more of the specific examples.
With respect, senator, there is nothing inconsistent with what we have suggested. It goes to recognizing that there are already provisions in the act recognizing ousnous government. It’s already there, but it’s very narrow.
The Chair: Section 13(e) of the act.
Mr. McIvor: It’s differential because it’s based on those who have signed self-government agreements. But with modern treaties, there are a lot of Indigenous governments that don’t fit into that definition. The proposal is meant to capture them as legitimate governments also so there is respect for when they disclose information to the federal government.
I’ll let my friend speak to it in more detail.
Mr. Di Gangi: Thank you for the question. I think it’s an important one.
I think we need to distinguish between First Nation access to historical records that they need to access to in order to get evidence to demonstrate their claims versus materials that are provided in a contemporary context today in negotiations. It might help if I give a concrete example.
I work for some communities where a third party had made a request to INAC for records related to a land claim. When INAC went through the request, they came up with all the information and then sent out referrals to other parties who may be affected by this request. The First Nations I work with got a notice from INAC, saying, “We have had a third party request for information on this land claim.” And they provided somewhere in the neighbourhood of 800 to 1,000 pages of documents they were proposing to release to this third party. Within that package of documents, there was material that had been provided by legal counsel to the federal Department of Justice on a privileged and confidential basis. When it had been provided at that meeting, federal officials assured us that it was protected and that it would not be disclosed, and here INAC officials were proposing to release it to a third party as a result of a request.
Then we started taking a closer look at the legislation. The existing legislation, section 13, says:
. . . the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from
(a) the government of a foreign state . . .
(b) an international organization . . .
(c) the government of a province . . .
(d) a municipal or regional government . . .
For all of those governments, if they give something to Canada in confidence, they are allowed to protect that and it’s not accessible to third parties unless they consent, except for First Nations. There is a schedule that defines what an Aboriginal government is, and it’s very narrow. It’s limited to only those First Nations who have signed modern treaties or self-government agreements. Probably 90 per cent or 98 per cent of First Nations are excluded.
On a practical level, if you are negotiating a sensitive issue with the Government of Canada and you prepare material and provide it to the other side on a privileged and confidential basis, it’s open season. Third parties can get that. It’s only up to the discretion of the director of the ATIP program at INAC about whether or not they are going to release it. It’s not up to the First Nation. For us, that is discriminatory, and it prejudices the ability of First Nations to be confident they can actually give material to the government and that it would be held in confidence.
Senator Pratte: Regarding section 42, you recommend that the authority of the Information Commissioner to request a review be restored. We had many representations in favour of strengthening the order power of the Information Commissioner — for instance, the possibility of having the order certified in the Federal Court. If we accept these recommendations, that is, that the Information Commissioner would have the authority to issue binding orders since the orders could be certified, would that be sufficient and, therefore, the authority to ask for a review would become useless, in a way, if the orders could really be binding?
Mr. McIvor: Thank you, senator.
We think, as a first step, it’s important to restore those powers. Now, it’s not a panacea. It’s not going to solve it all. But we think the current proposed amendments are retrograde amendments because they remove that ability so, as a first step, we think it’s important to restore it.
But to go beyond that, the Indigenous Bar Association thinks this is a chance to look at this legislation and its overall effect and to recognize that special relationship with Indigenous people, and that’s why we have gone further. That’s why we have suggested there be a specific officer for Indigenous reviews to address these and make recommendations as we go forward.
While we think restoring the powers is important, we think it’s important to go beyond that. Our suggestion is an Indigenous review officer. We think that’s in line with the federal government’s 10 principles on its new relationship. We think it’s in line with the Truth and Reconciliation Commission’s calls to action. It’s forward-thinking and it would be very helpful.
Senator Pratte: Thank you.
Regarding proposed section 6.1, there was an amendment adopted in the House of Commons, in the other place, that requires that before declining a request because it’s too burdensome or judged vexatious, an institution would need the written approval of the Information Commissioner. Is that an improvement? Does that alleviate your concerns regarding section 6.1?
Mr. McIvor: My friend will speak to this one.
Mr. Di Gangi: Senator, I think we have to look at it from a couple of angles. One is this: As we know, the Office of the Information Commissioner is already overburdened. They have a backlog of about 3,400 complaints. This adds another layer of extra work and, in a way, it gets federal departments off the hook because they might decide, “Okay, we’re going to refuse this. We’ll send the file over to the Office of the Information Commissioner. It will be lost there for maybe six months or a year. They will look at it, render it, and make a decision and there will be more discussion.” They kick the can down the road, and it may end up creating just more busy work.
I think if the head of an institution wants to refuse to disclose, then they should be accountable. This way, it sort of defers things, and they are able to take it off their doorstep and put it on the doorstep of the Office of the Information Commissioner. Then departments can say, “Well, we’re not responsible for the delay because it’s over at the Office of the Information Commissioner,” and all of a sudden, it’s their responsibility.
I would be concerned that it might have unintended consequences.
Senator Pratte: Thank you.
The Indigenous Bar Association proposes a new definition of what an Indigenous government is. I tend to agree with the idea of really opening this up to all Indigenous governments. However, in your definition, at subsection (c), you include an individual or organization carrying out research on behalf of an Indigenous government. I’m not sure an individual or an organization carrying out research for an Indigenous government should be defined as part of being an Indigenous government. An individual can maybe represent a government but is not a government.
Mr. McIvor: Thanks, senator. That’s a fair comment. We proposed those, and we would expect there could be some tweaking. Where we have outlined it there currently is that the way it works is if you can show that you’re working on behalf of an Indigenous institution — what you often get is a band council resolution — then you can get access to certain documents. So that’s what we were intending to reflect. But we think that’s a fair comment. We would be very interested to work with and tweak those as we go forward.
Senator Pratte: Thank you very much.
Senator Gold: Thank you all for being here. Thank you for putting the issues that we’re looking at in the broader context of rights, self-governance and reconciliation. That’s very helpful.
Mr. Gilliland, you and your colleagues have argued before for public interest override. Does the Canadian Civil Liberties Association have a position on the existing public interest override in the current act, which incorporates the Privacy Act, overrides? It seems quite broad. That is where disclosure of personal information can be disclosed where the public interest outweighs any invasion of privacy. Let me add as well that we heard from the Privacy Commissioner, who was somewhat ambivalent about whether or not a person should always be informed that the personal information be disclosed. Can you just put your recommendation in the context of those comments, please?
Mr. Gilliland: The point of a public interest override is it is how we weigh constitutional rights in most constitutional cases. It is the balancing. Our position is that it should be as broad as possible, to start with, because that always allows the discretion, whether the institution or some other organization on review, to narrow it in the appropriate circumstances. But the starting point should always be as broad as possible because all you’re doing is providing discretion. If you narrow the discretion, you cut out the opportunity to use it. It’s good in its current form as applied to privacy rights, but it should be broader and applied across the act.
Senator Gold: The other question is perhaps a little tangential to the thrust of your recommendation. It goes back to Senator Pratte’s question and your recommendations, which I tend to support, to broaden the definition of “Aboriginal governments” in the act.
If I look at the current act, in the schedule, the Access to Information Act covers a large number of organizations and government institutions, but doesn’t cover First Nations governments per se. I’m reminded of an article from a few years ago that underlined the lack of clarity as to whether the Access to Information Act applied to First Nations government. The schedule includes the First Nations Financial Management Board and a few other things, but really nothing about the governments. Journalists have complained that it’s difficult for them to get information from certain governments. They get it on a voluntary basis, but they have no other mechanism.
What are your thoughts about what the implications would be for adding First Nations governments to make them subject to the act? How do you react to that possibility? It’s not, strictly speaking, necessarily what you’re recommending in terms of the inclusion in list of exemptions, but do you have a view as to whether the governments should be subject to the act more generally?
Mr. McIvor: Thank you, senator. My friend, Mr. Di Gangi, may have more thoughts on this.
Just from a general viewpoint, as you say yourself, we’re focused on what the act actually does. What the act does to a large degree is withhold information that is in the hands of the federal government that Indigenous people across the country need for different reasons. That’s where our suggestions are focused.
This question of broadening the act so that it applies is a whole different question that raises some serious constitutional questions and government issues. There has been no conversation about that at all, so that’s a very different set of questions. If there was going to be a consideration, of course, we would expect the federal government to engage with Indigenous people at a very early point and have a serious conversation about it, the type of conversation they have not had about the current legislation.
Mr. Di Gangi: I agree with my colleague. I think that this is something entirely out of left field. It hasn’t been considered as part of our discussion on the act.
If you look at other governments, they have their own freedom of information acts. Provinces do. I think First Nation governments may want to consider their own regulations and legislation in that regard. For the federal government to adopt omnibus legislation that would apply, that’s like saying let’s have another Indian Act and apply it unilaterally. I don’t know if we want to go there. It’s certainly not something that we contemplated at all in connection with this. Our main concern with section 13 is that the current legislation discriminates against the vast majority of First Nations by not recognizing that they are governments.
Senator Gold: This is not a follow-up but just a clarification. I’m certainly not suggesting an omnibus bill to do that, but because the issue arose in one aspect, I wondered if you had a view. I thank you for your answer.
You mentioned briefly about the provincial and the territorial jurisdictions. What has been your experience with their access to information regimes, both provincial and territorial? We have had testimony about other systems and recommendations from them to improve the federal act. Are there some things that you think we could learn from your experience with provincial or territorial jurisdictions?
Mr. McIvor: Thank you, senator.
As you have seen, our brief is fairly lengthy. We do have some comments in here. We cite the Ontario act in a couple of situations. I can’t find it off-hand, but I will and I’ll get back to you on that. There are certainly examples out there where legislation potentially creates a wider possibility for Indigenous people to access the documents that they need to access. Bill C-58, in our view, is a step backwards from what governments are doing across the country.
Senator Gold: Thank you.
Senator Batters: Thank you very much, all of you, for being here.
What I’m struck with by today, and in the last few meetings that we have had on this, is the total lack of proper or any consultation on this major bill. We have heard that from the Information Commissioner, the Privacy Commissioner, judges, and now we hear it from key First Nations organizations. This is a federal government that likes to pride itself on consultation, so to hear from so many key players that this government hasn’t properly consulted them is quite alarming.
Ms. Poitras, in your written opening statement, you stated: “To date, the government’s efforts to consult on this Bill have been inadequate and fall short of its obligations and political commitments. This needs to change, and quickly.” I know you had a limited time to give us some information in your opening statements, so I’m wondering if you could please give us more detail about your concerns about the consultation that was done and how you found it to be inadequate.
Ms. Poitras: There has been a severe lack of consultation up until recently. In terms of consultations with First Nations on any bill or anything going forward, there is always a limited time, so we don’t have the opportunity to properly review and put forward any recommendations or provide any meaningful input into any bill going forward. This is the case, where we just received the information and access to consultation, and it has been very recent.
Senator Batters: When you say very recent, when was it? This bill has been introduced for a long time. It was introduced in the House of Commons a long time ago, so I’m wondering when that recent consultation occurred. Was that when Minister Brison indicated that he might be willing to amend it?
Ms. Poitras: I believe it was just a few weeks ago that we were invited to consult on the bill.
Senator Batters: Okay, thank you.
Mr. Gilliland, I thought you made an excellent point when you were talking about how, in this day and age, to have an exemption about large requests is very backward-looking. I was working on these kinds of files in the late 1990s where you would generally get boxes and boxes of documents in answer to a request. Now it’s probably a USB drive or something like that. I think you’re exactly right on that. Could you provide us more information about that aspect of it?
Mr. Gilliland: I don’t know that there is too much to add. My day job is as a civil litigator where we have also seen a dramatic change in productions. It’s well understood now that when you make a request for information, whether it’s from the government or in the context of a corporate party, you generate a lot more response than you would 10 years ago. The flip side of that is we don’t have people going into the basement to dig through boxes. We have people searching online. We are on the cusp of huge changes. There are changes already, but artificial intelligence will make this all a lot easier. As I alluded to, that same kind of technology is being used by requesters to analyze data and get useful information from the data for Canadians. For all those reasons, I think it’s misguided, in this day and age, to put limits on it based on size.
Senator Batters: Would you suggest that particular exemption be struck entirely?
Mr. Gilliland: Yes. In 6.1, you have sub (c), where, if it is a vexatious request, it allows you to deal with that. Why would you, in this day and age, create an exemption that may have made sense 10 years ago but makes no sense today?
Senator Batters: Thank you.
Senator Pate: Thank you to all of you for being here.
It’s nice to see you again, Regional Chief Poitras. My first question is for you, regional chief. You have heard all of the proposed amendments that have been suggested. Are there any of those that you would disagree with or the AFN would disagree with, and what form of consultation would you like to see going forward from here?
Ms. Poitras: I agree with the amendments proposed by Bruce and Peter. In terms of consultations, I think we need to directly consult with the Assembly of First Nations just to ensure that we get it right, as well as the Indigenous Bar Association just to ensure that we get the wording right when we move forward.
Senator Pate: One of the areas that none of you have touched on today but has come up in previous hearings and certainly in the other place as well is that the largest number of complaints about access to information requests comes from those who are putting in applications to Corrections. Right now, 40 per cent of women who are serving federal sentences are Indigenous women, 28 per cent overall. Some of the changes that you’re talking about, particularly I’m thinking of some of the suggestions made about how we could do searches, don’t necessarily apply to prisoners. Are there other issues that you or different organizations have examined in terms of the impact this will have, in particular on prisoners and on Indigenous prisoners and some of the efforts they have been making? I’m thinking specifically of some of the efforts to address overclassification, the overuse of segregation, the underuse of ameliorative provisions like sections 29, 80, 81 and 84. That question for everybody.
Mr. McIvor: I’ll talk about that in general. Thanks, senator.
That’s a very important point to raise. It’s in line with the Truth and Reconciliation Commission calls to action on that very important issue. We don’t have specific recommendations for amendments in what we have done now, but I think that speaks exactly to the faults with the process because, as you have heard, we have been very rushed. We have only had a few weeks to review the proposed bill, to have capacity funding to review it and to consult ourselves internally. It has really been left to the last minute here, and that’s an excellent example of why this needs to go back for proper consultation. It is to address those types of issues, not in some quick way, but seriously looking at them and what is the proper way to deal with that and talk to the people that are most affected, hear from them and then reflect that in changes to the bill.
Mr. Di Gangi: Thank you, senator. I think that’s an important question.
I would agree wholeheartedly with what Bruce has said. It’s an example of some of the issues that should have been covered if there had been proper consultation and if we had been able to study the bill properly and engage. I am also thinking of Senator Batters’ question to the regional chief. I know that we were making efforts as early as the spring of 2016 to engage Treasury Board generally on access to information. Once the bill was tabled, I think it was in June 2016, it took us by surprise. We were at it for almost two years before we finally got some support from Treasury Board to start studying the bill. Up until now, it has been mostly that we are told what is going to happen, but we haven’t been able to engage in a real back and forth. It has been very rushed. It was about 10 weeks ago that we got confirmation of support to actually undertake a proper review of the bill. As Bruce has said, we haven’t been able to touch base as widely as we would have hoped to consider the implications, like some of the ones you mentioned.
Mr. Gilliland: I don’t have anything specifically on point, but I would point out that three of the problems I identified in my opening statement would apply, with particular force, to the populace here that you’re describing. The fee would be a problem, the possibility for rejection because of the size of the request could be a problem and, of course, the specificity requirement, which, by the way, also prejudices those who aren’t as used to working with the system. The longer you play the game, the more sophisticated you can become in your requests. If you’re dealing with people who don’t have that background or training, then they are particularly prejudiced by these requirements for specificity.
Senator Pate: Thank you.
The Chair: Senators, if you would allow me, I would like to put on the table Principle No. 6 of the principles respecting the Government of Canada’s relationship with Indigenous peoples that was referred to in the proposed amendment to the purposes portion of the bill. I want to have it on the table because I think colleagues would be interested in understanding the duty to consult with Aboriginal people from the federal government.
The Government of Canada recognizes . . . Meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.
It seems to me that the obligation is very well spelled out in Principle No. 6. When you refer in your proposed amendments to section 2 of the bill, the section that deals with the purposes of the act, it seems to me that Principle No. 6 is compelling. As you say, it’s the honour of the Crown that is engaged in this principle and the fiduciary duty of the federal government to the Aboriginal people. Do you want to expand on this?
Mr. McIvor: Thanks for the chance to do that, senator.
We think it goes to a key issue: the disconnect that Indigenous people across the country often see between federal government pronouncements and action. The action needs to align with the pronouncement. I can’t emphasize how important that is, because if not, you sew cynicism across the country. How can you have reconciliation when these pronouncements are held out and then, when it actually comes to doing something concrete, as you have heard, Indigenous people have been left to the last minute here.
We have heard a question about the Trans Mountain pipeline case and the Tsleil-Waututh decision from a month or two ago. That decision was very good because it spelled out what real consultation looks like, and the core issue there is meaningful give and take. We have not had that. Whether it’s a legal obligation triggered by the legislation or not, that meaningful give and take is what Indigenous people are looking for to address these issues.
The Chair: I speak to you as a lawyer. You are a lawyer. What is difficult to understand legally is that the duty to consult and the right that you have to challenge will come after and not before. So, where does the right exist? The right exists when the legislation is enacted and you are recognized as a partner, or you are recognized as being a group that has been impacted by the legislation. And then you would go to challenge the obligation of the government that has not been fulfilled, but you would not have the capacity to challenge the government prior to the legislation to signal that you’re going to be impacted by the legislation and that you want to be part of those negotiations and to come forward with an arrangement that meets your objective and meets the obligation of the federal government on the basis of the duty of the Crown to you to make sure that there is some kind of arrangement that satisfies both sides of the equation. I feel there is a legal gap somewhere, because the duty exists or not. It doesn’t exist after. It would exist at the beginning of the initiation of discussions to come forward with an agreement. As you said, that’s what reconciliation is. Reconciliation doesn’t happen in the fight in court after the bill has been adopted. You’re no longer in the reconciliation process at that time; you are in a legal fight. So where do we draw the line on the basis of the legal obligation of the government to consult with you?
Mr. McIvor: Thanks, senator. As you know, and as the committee knows, this was a huge debate at the Supreme Court of Canada in the recent Mikisew decision. There were four sets of decisions. But I think there are two fundamental issues here. One is whether the duty to consult is triggered or not, the honour of the Crown is overarching.
The Chair: Absolutely.
Mr. McIvor: The honour of the Crown is still there. The court was very clear. It’s at play when we’re sitting here around the table. When government officials are going out and speaking to Indigenous people, they are carrying the honour of the Crown. They have to be seen to uphold it. What has been done so far on Bill C-58 doesn’t do that.
The second point is that, as you say, there will be legal challenges after. Whether it’s this bill or another bill, it’s important to clarify now that it needs to be done up front. It needs to be done first. That’s what reconciliation is really about. It can’t be simply on the backs of Indigenous people, because it’s them that are then forced to use their meager resources to go to court to fight for justice on these issues. As you heard from my friend, a lot of times it will take five or 10 years. By that time, it’s too late, so we say it’s important to get it done first. This is an important opportunity to set a precedent and send a signal to the federal government on what it needs to do when it is bringing legislation forward that will have a specific effect on Indigenous peoples.
The Chair: Thank you. I apologize, Senator McCoy, I could not resist, so I owe you.
Senator McCoy: It was a very important contribution, chair.
My first reaction to this legislation was also to throw it out, but the Information Commissioner, when she was here, asked us not to do that. She said that with some amendments, two of which by that point the minister had agreed to, it at least made a step forward, in her view, and to not do that left her in a weaker position.
Let me phrase the question this way, if I may, to any and all of you: If we were to put forward some amendments, do you have a sort of hierarchy? Are there some things that are must-haves at this stage that would make you comfortable going forward? Then we can talk about the dreaded phase 2.
Mr. Di Gangi: That’s a good question, senator. I think that it’s hard, now, to pick. I don’t feel comfortable being in a position of picking and choosing something without having consulted my colleagues and having a proper consideration of the issues. This has all happened very fast. We had not really even taken a look at or discussed the amendments until the past few days.
Certainly I think adjusting the purpose clause is important because that affects the way the bill is interpreted, and I think section 6 has to go. Everybody is agreed that if there is a vexatious request, there should be a way to deal with it, but other than that, section 6 is a step backward that puts power in the hands of bureaucrats to frustrate and suppress the release of information.
Section 13 is important as well. To paraphrase someone else, it’s 2018, so why are we discriminating? The government says it recognizes First Nations and nation-to-nation and yet is proposing legislation that discriminates against 98 per cent of First Nation governments. It shouldn’t happen today.
Other than that, I’d say we need some discussion.
Senator McCoy: Perhaps this is an instance in which we might re-engage with you after a couple of weeks when you have had a further chance to discuss it amongst yourselves. We can come back to that, but off the top of your head, at least for now, those would be key.
As you know, there is in the statutes a provision for a one-year review and then legislative reviews every five years thereafter. However, as it’s stated in Bill C-58, it is a ministerial review. Some people have put forward the suggestion and/or enthusiastically agreed to the suggestion that this be amended so it becomes a parliamentary review by parliamentary committees, either in the House of Commons, the Senate or by a joint committee. What would your reaction be on that question?
Mr. Di Gangi: I think the idea of a parliamentary review is great. We’ve had experience with ministerial reviews. One example is the Specific Claims Tribunal Act, which was a real disappointment for First Nations. With a parliamentary review, you get more accountability and transparency and more of an ability to ask questions and get answers.
Mr. McIvor: Thank you, senator.
We certainly agree that a parliamentary review would be preferable. We also want to stress that, as this goes forward, it’s important to have proper Indigenous engagement as the act is playing out and not to just wait a year or five years. That’s why we think our recommendation for the Indigenous review officer is really important on principle, but also on functionality. The Indigenous review officer would help to gain the confidence of Indigenous people that their specific interests, concerns and rights are being addressed and that they are there to make recommendations based on their intimate knowledge of the functioning of the bill itself.
Mr. Gilliland: On the second point, I agree with my colleagues that a parliamentary review would certainly be preferable.
On the first point, it is hard to pick. I can tell you that the Canadian Civil Liberties Association had at the top of their list a public interest override and broader access to ministerial offices.
I would remind everybody of the context, which is that Canada has a very poor record on access to information. To the extent that there are these reviews, Canada was ranked fifty-fifth next to Uruguay, and we’ve heard the stories. The government campaigned on a promise to fix this and make a better system, and I think most who have looked at the proposed legislation saw not an improvement but, actually, a regression.
Now, when we talk about which of these new things we should scratch in order to make it better, for example, getting rid of section 6 would make the proposal better, but will it make access to information legislation better? Likely not. I do think broadening the public interest override or broadening it to ministers’ offices are things the government can then point to and say they gave Canadians greater access. There is not a whole lot in the legislation now that I think the government can point to and say that.
Senator McCoy: Chief, did you want to add any comments?
Ms. Poitras: Yes, we are definitely open to discussing this with ministers or the Senate going forward. I think there is an opportunity to fix this, but I’m also cognizant that there is a resolution from the Chiefs of Canada requesting that this bill be withdrawn.
Senator McCoy: Yes, we should remember and respect that.
You pointed to the Ontario statute as a good precedent, but surely there must be internationally recognized model statutes for access to information. Are there?
Mr. Gilliland: It’s a very good question, and I wish I was in a better position to give you an answer. In preparing for this, I tried to find the better models and why they are better.
From the literature, I know the United States’ access to information request system works better than the Canadian one. What would be helpful, but what I cannot do, is for someone to do the analysis as to why that is the case. There are organizations that have focused on this and do these rankings, and I do believe there would be huge value at looking at the countries that are ranked highest to see what models they are using, how they differ from the Canadian model and what could be implemented.
That goes to the precise problem of, now, looking at something that does not fix it. That’s stage one analysis, determining who has the best model and what we want ours to look like. What has been done is tinkering with the existing model and, I think, mostly to make it more difficult for Canadians to have access to information. That’s a very good question that I think definitely requires further study.
Senator McCoy: I might be able to paraphrase your answer to say if and when this parliamentary review began, it should be de novo. It should be blue sky — green field is what I’m thinking.
Mr. McIvor: I have one word on that, senator. As you have heard, we were just engaged a few short weeks ago to begin this review, and when I began with my team, that was exactly one of issues that we listed: Let’s look at examples provincially and internationally that would fit. We just have not had time to do that, and first, we think it reflects that this has all been too rushed.
Second, with respect, we don’t think it’s right to wait for phase two or a review down the road, particularly because the proposed amendments here, as you’ve heard, are not progressive. They are regressive. If that’s what we’re up to, it makes a lot more sense to step back and say: Let’s do a proper assessment now and take the time that needs to be taken; we’ll proceed with the legislation as it is, because it’s better than the proposed amendments in a lot of ways, and then we’ll come forward after a proper consultation process.
[Translation]
Senator Boisvenu: Let me go back to my initial question, Mr. McIvor. Between amending the current bill or rejecting it as a whole, what is your preferred approach? The chief mentioned that this bill should be rejected. For your part, you have put forward proposals for amendments. So, between those two options, do you prefer the one where the government goes back to the drawing board or the one where the bill is amended as you wish to see?
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Mr. McIvor: Thank you for the chance to clarify that. The Indigenous Bar Association’s position is that it should be scrapped and we should go back to the drawing board. We support the Assembly of First Nations on that, that this needs to be done properly. It has not been done properly, and now is the time to do it right and not wait until phase two and not proceed with this. If there is an interest to proceed, we have put forward concrete, specific amendments, but that’s in the alternative.
Senator Pratte: You mentioned in your briefs that the relationship with Library and Archives Canada is much better; it’s easier to get documents, it’s faster and so on. But you mentioned that INAC still owns kilometres of documents. Have you asked for INAC to transfer these documents to Library and Archives Canada? What was their reply? What are the motivations for keeping these documents in-house?
Mr. Di Gangi: Thank you, senator. That’s a good question. We’ve had that discussion. As we have been studying the bill, we have also been having ongoing discussions with INAC and other departments about access to their records.
INAC seems to be very protective of what it holds. They’ve defined their holdings as what they require for administrative and policy purposes as opposed to historical purposes. On that basis, it seems like they are holding it, but I’ve never been satisfied with that response.
If you look at it, any federal department has many different priorities and many different factors that push and pull, and records management is one thing. Making those records available to First Nations or the public who might actually be litigating against the same department puts it on a whole other level.
There are a lot of internal constraints, resourcing and fighting for budgets. Now they are splitting the department into two, plus they are absorbing all the records from Health Canada relating to First Nations health. You have additional turmoil internally about fighting over budgets for records management and which procedures. As I understand it now, the people at INAC that are responsible for records are answering to three different ministers.
My point here is these folks are trying hard to manage what they have, but they don’t have the tools they need. Library and Archives Canada is mandated by statute to manage Canada’s historical records. They make finding aids available online. They have expertise in that area. That’s what they do. It just makes sense that materials, if they are of historical value, should be transferred to Library and Archives Canada.
Senator Pratte: What information do you have on these kilometres of records that they are keeping? What makes you think that most of these documents are of historical value rather than what could be used for administrative purposes?
Mr. Di Gangi: I think Attachment No. 1 to our brief provides 10 or 15 different vignettes of specific requests that have been made to INAC for records.
Just to give you an idea, if you are preparing a claim for a community on potential issues related to the management of their reserve lands, or surrenders that took place on reserve lands, there is a category of files called survey and reserve files. Those documents are the original survey of the reserve lands, surveyors’ notes, discussions that may have taken place with chief and council and administration of those lands. Those are held at INAC. Some of the records in those files go back to the late 1880s.
As another example, let’s look at the Robinson-Huron treaty of 1850. There are complaints and petitions files. There is a category called complaints and petitions, which is where the chiefs are raising issues about treaty implementation, their interpretation or understanding of the treaty. There is a series of those files that are still held at INAC, and they go back to 1916. To me, they are over 100 years old. They are of historical value.
I think that part of INAC’s concern is that some of these are materials they would like to rely on if they are involved in litigation. But, again, that highlights the conflict of interest issue here. You have an agency of the Crown that is a defendant in claims that holds those records and controls access. It’s an unreasonable situation to be put in. Anybody in that situation would be conflicted out.
Although Library and Archives Canada is a federal institution, at least they are at arm’s length. They have expertise, and their function is to make these records accessible. It’s not like they give you everything; they also have their rules and have to apply the Privacy Act. But they are in a much better position to provide that service and are not as conflicted as INAC is and also not as swept up with competing priorities and the flavour of the day.
The Chair: Mr. Di Gangi, one instance that comes to mind is the one following the adoption of Bill S-3 by the Senate. Senator Pate, you will remember that one of the claims of government was they didn’t know how many people would be impacted by the recognition that the Senate added to the bill to protect the rights of women. Nobody was in a position to float the real number of persons who would be encompassed by the bill and would be included in the benefit of the bill. Here is a clear case whereby a person might claim to be covered by history, but, in fact, the government might deny that they have that status. As you understand, senator, it’s a very real situation. We are not talking about writing history; we are talking about people having a right to be recognized for the benefits that they are entitled to under the legislation. I think it is a very clear case which might explain why INAC does not want to release the information or is reluctant on many issues to release the information because of the risk of litigation that might ensue if it is easily accessible. This bill was discussed around this table, as you will remember. It’s a clear illustration of that.
I’m sure, Mr. McIvor, when the Senate was debating that bill not long ago, you were able to appraise the impact of that bill in relation to the information detained by INAC in relation to the women who would be covered by the bill.
Mr. McIvor: Senator, thanks for raising that. It is such a vital, important issue for Indigenous people. My friend, Mr. Di Gangi, has given really good examples of how when you are bringing these claims, you need those documents. Those historical documents are the very foundation of your claim. That is key, but it is also important for individuals. I have clients whose applications for status under the Indian Act get rejected by government officials who say that they have the onus to show them the documentation that they are an Indian. Yet it’s the government department that is holding those documents themselves. What that does is it gets to the very core of section 35. It’s important under the Indian Act but, for a lot of Indigenous people, if they want to go out and hunt or fish or trap, and they are stopped by a conservation officer, they say they are exercising their treaty right. What does the conservation officer say? Show me your status card. If they don’t have that card, they are in a really difficult position just to exercise their constitutional rights.
The Chair: Thank you.
[Translation]
Senator Carignan: My question is about the point you raised about the duty to consult. I would like to clarify the Supreme Court’s decision on the Mikisew Cree First Nation on October 11, 2018. That judgment tempers the duty to consult as part of the legislative process. My comment was mainly intended to make that point, but you had already done so in your answer.
This leads me to the following question: Wouldn’t an amendment to the Access to Information Act serve to fill a gap in the obligation to provide information in an administrative or judicial process to recognize or claim a right? Technically, this should be a no brainer. This is a fiduciary duty and the government needs to provide more information. Is there a place other than the Access to Information Act where the obligation to provide information could be mentioned when claiming a right?
[English]
Mr. McIvor: Thanks for the question, senator.
Again, that’s an example of an issue where it would be really important for all the affected parties to have an opportunity to consider it seriously. It’s an important suggestion, but we have not had the chance to do that. Indigenous people are, so often across the country, fighting a rearguard action. Government works for a long time internally developing this legislation, brings it forward, and then Indigenous people are forced to react to it. It’s not a proactive way to proceed. That’s a perfect example. How do we address that fundamental issue? You need those documents or else section 35 is empty. It is empty if you can’t show that you have a right to exercise under 35.
On Mikisew, it’s important to keep in mind that it was largely a technical decision. Is there a trigger for the constitutional obligation for the duty to consult and all that follows? That was the question for the court, and the court decided no, but it’s really important. Consultation still needs to be done. There may not be that standard under the duty to consult law that has developed, but the importance of consultation — the court was clear on that. For fiduciary obligations, for the honour of the Crown and for good policies so you don’t get these challenges down the road, all that still needs to be done.
I hope that the federal government is not taking this position now, but if they were taking the position that, “Hey, we have the Mikisew decision, and they gave us a rubber stamp to proceed with what we were doing,” that’s not what the decision means, and it would be important to send a signal to the federal government that that is not good governance and that is not in line with the Crown’s obligations to Indigenous peoples.
The Chair: Thank you so much. It has been really fascinating to listen to you and have this exchange around the table this morning. I am certainly privileged to thank you on behalf of my colleagues, the senators.
Mr. McIvor, I thank you so much, and I’m sure that my colleagues will want to listen to you in the future on other issues whereby this committee is charged by the Senate to review legislation. We will keep in mind that you are a partner of our own reflection on any bills that raise Aboriginal issues and Aboriginal rights, treaty rights, resource rights and so on. Also, Mr. Di Gangi, thank you so much. Chief Poitras, thank you for making yourself available and being patient with us this morning. Mr. Gilliland, we know the Canadian Civil Liberties Association very well and I know that you are regular around this table. Thank you so much for making yourself available this morning.
(The committee adjourned.)