Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 52 - Evidence - November 8, 2018
OTTAWA, Thursday, November 8, 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 10:36 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, before we begin this meeting on our study 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, I want to inform you of a message that the clerk of the committee received this morning and that I will read to you. As you know, we were supposed to move in camera to hear the next witness. We have received the following message this morning:
I write to advise that neither I nor the ACJ will be attending before the Constitutional and Legal Affairs Committee this morning. I will be delivering a letter to you this am for circulation to committee members explaining my decision. My apologies to all for this short notice and I regret any inconvenience to the senators. A special thanks to you [the clerk] for your efforts in the (sic) organizing the attendance.
Of course, it is signed by Chief Justice Rossiter of the Tax Court of Canada.
With that information, honourable senators, I suggest we move on with the next witness and we remain sitting in public. If I receive the message that the Chief Justice mentioned he would be delivering this morning before the adjournment of the sitting this morning, I will share it with you as soon as I receive it.
If you agree with that, that’s the way we will proceed.
[Translation]
Senator Boisvenu: I would like to say something, and I don’t know if my colleagues will share my opinion. Rumour has it that the judge has withdrawn because of the media coverage, which misrepresented the information. I don’t know if that is true. If it is, I think we need to prevent this kind of thing in the future. It is unfortunate that the media can report inaccurate information regarding the committee’s intentions. Can we exert better control over the information released, even when we have a meeting in camera, rather than letting the media manage the information and very important witnesses withdrawing because of potentially biased leaks? I am uncomfortable with what happened.
[English]
The Chair: I will not comment on the reasons that Chief Justice Rossiter informed us he would not be in attendance this morning. I will wait for comments on the surrounding evidence, as you have interpreted it, on the basis of the message I or the clerk will receive from Justice Rossiter. From then on we could certainly comment. I suggest that we wait until he sends us his letter before we make any additional comment. I think it’s the proper way to proceed, but I have received your message, Senator Boisvenu.
Are there any other comments before we move to the next item on our agenda this morning? Thank you.
[Translation]
I am very pleased to invite Senator Dupuis to take the witness chair this morning as we continue our study 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.
Senator Dupuis is appearing today as the former Chair of the Indian Specific Claims Commission, which she headed from 2003 to 2009, and which focused in particular on First Nations’ access to the necessary information for their specific claims.
Madam senator, you now have the floor as a witness.
Hon. Renée Dupuis: Colleagues, I appear before you today regarding a specific aspect of Bill C-58 that was raised before our committee by First Nations representatives: Access to information in what are known as specific land claims files.
As the former Chair of the Indian Specific Claims Commission, which I headed from 2003 until April 2009, that is, until the Specific Claims Tribunal of Canada was created, I want to share with you the commission’s experience regarding First Nations’ access to the files of their specific claims in the hands of the federal government.
This commission of inquiry was somewhat unusual since it had the power not only to investigate, but also to mediate in response to the Oka-Kanesatake crisis in Quebec in 1990. The commission conducted this investigation at the request of the First Nations whose claim had been rejected by the federal government. Moreover, the events at Oka were a reaction to the federal government’s rejection, in 1986, of the Kanesatake First Nation’s specific claim.
Comprehensive and specific land claims are two categories created by the federal government in response to the Supreme Court decision in Calder in 1973, recognizing for the first time that First Nations could have enduring rights arising from their occupation and use of their traditional lands, even in the absence of specific legal recognition. The federal government felt at that time that it was less risky to try to resolve those disputes through negotiation rather than through the courts.
The federal specific claims policy has gone through a number of administrative reviews, without however making any fundamental changes to the administrative scheme.
It is also quite interesting to look at the titles the government chose for the reviews conducted from time to time. There was a report entitled Unfinished Business. Another, more recent, report dates back to the last review in 2007 and is entitled Justice at Last. The titles show that there are outstanding obligations. The title Justice at Last suggests there is some unresolved matter.
The Supreme Court subsequently determined, in Guerin in 1984, that the fact that Indian bands were legally dependent as a result of the exclusive authority that the federal government exercised over the affairs and lands of Indian bands created a fiduciary relationship that could result in a fiduciary obligation on the part of the federal government for which it would have to answer before the courts in any dispute. In Guerin, the court determined that the federal government had to compensate this British Columbia band for having renewed a lease on a golf course operated on reserve lands on less advantageous terms than those it had agreed to with the band. The Guerin decision illustrates what constitutes a claim that the government categorizes as specific.
In short, the federal policy on specific claims establishes the right to be compensated when a legal obligation persists because a treaty signed by the Crown and a First Nation has not been respected — if for example the First Nation did not in fact receive all the acres of reserve lands that it should have — or the government did not respect a provision of the Indian Act while managing First Nations land — for example, by allowing the construction of a provincial road crossing an Indian reserve without requiring the provincial government to obtain the necessary federal permits and without compensating the First Nation for what is in effect the appropriation of part of its reserve.
This fiduciary obligation creates specific legal obligations for the federal government and, consequently, establishes First Nations rights in specific circumstances, which in the majority of cases date back to the last century or even the one before that, the 19th century, the documentation for which is exclusively in the hands of the federal government because it gave itself sole authority to administer First Nations lands. It is therefore understandable that, in most cases, there is a significant amount of documentation and it is impossible to identify the type of documents or the number of documents that must be accessed to establish title. We have put First Nations in the position of claimants without guaranteeing them full and direct access to the documents they need to meet the requirement we have imposed on them to prove their title.
Managing these documentary records is more an issue of preserving evidence and must be handled as such, in my opinion. They must not be managed like the department’s administrative files. Special rules must apply to their conservation.
I would like to point out that, following her appearance before the committee on October 17, 2018, the Information Commissioner sent a letter to the committee chair on November 1, which the clerk distributed to committee members. In the letter, she stated that she believes the second phase of the reform of this legislation should impose an obligation on government authorities to document and conserve.
Drawing on 19 years of hearings in First Nations communities that asked the commission to conduct an investigation, the final report, released in 2009, makes a specific recommendation on this matter, and I quote:
Recommendation 3.0: That the Department of Indian Affairs and Northern Development direct its research staff to create a single documentary record to introduce efficiencies into the process. This organizing step will also help ensure that First Nations are given access to all documentary evidence in the possession of the Government of Canada.
For its part, the Office of the Auditor General conducted an audit of specific claims settlements and released a report in the fall of 2016. I served as an external evaluator at the request of the Auditor General. In the report, the Auditor General found that, and I quote:
. . . the Department’s reforms to the process introduced barriers that hindered First Nations’ access to the specific claims process and impeded the resolution of claims. . .
and that these barriers included
. . . limited information sharing between the Department and First Nations.
The Crown’s fiduciary obligation in respect of land claims is separate and must not be confused with obligations ensuing from the constitutional rights granted to First Nations peoples by the Constitution Act, 1982, when the Constitution was repatriated. For example, the Supreme Court’s recent decision in Mikisew Cree First Nation handed down on October 11, 2018, concerns the rights of First Nations to be consulted and, consequently, the duty of the government and Parliament to consult First Nations peoples when preparing federal legislation, in other words, before it is passed. In this case, the legislation concerned the environment. The majority ruled against the First Nation.
In closing, colleagues, I believe that our committee’s report to the Senate on Bill C-58 should include a statement that the First Nations will ultimately have no other process for resolving this complex issue than the one provided for in the Access to Information Act. Thank you.
The Chair: Thank you for your presentation, Senator Dupuis.
Senator Boisvenu: Colleague, let me first commend you on your work over those many years. I have just one question, and it pertains to your appearance on June 11, 2003, before the Senate Committee on Aboriginal Peoples. You were accompanied by Ms. Lickers. She said the following, and I quote:
The Indian Claims Commission, under its mandate, is required to maintain all of the historical records that we gather through the course of our inquiries. At the conclusion of the inquiry and the termination of this commission, we are required to turn our records over to the Privy Council Office. Until that happens, all of the historical evidence that has been gathered in our 12-year history is housed at our offices at the Indian Claims Commission here in Ottawa.
Since Bill C-58 will not require Privy Council to make that information available, does that make it more difficult to access any information resulting from commissions or studies conducted by Indigenous communities?
Senator Dupuis: I think it strengthens the argument that the current system does not allow access to the records and does not guarantee that the records will be conserved. That is why I say that these records must be seen as a way of conserving the evidence. The creation of this commission of inquiry was one of the Mulroney government’s four or five responses to the Oka crisis. So, a lot of documentation was collected. That said, I had trouble convincing Privy Council to conserve it. I took steps for the documentation to be transferred to the Library and National Archives before the commission’s activities ended. Whether it is the historical record or the record that may have been heard by a commission of inquiry, such as the Specific Claims Commission, or the record that will eventually be heard before the Specific Claims Tribunal, we must first find access mechanisms so the First Nations can establish their evidence. Then we must find ways of conserving those records. A provisional decision handed down today by the Specific Claims Tribunal, for example, might influence the progress of the record, specifically because it is favourable to the First Nations. A negotiation mechanism would then be launched with the government.
Senator Boisvenu: Do all the commissions that have to resolve Indigenous issues file their report with the Privy Council?
Senator Dupuis: It depends on the status they are given. It usually falls under the Privy Council, but for this commission, the government decided by order in council to transfer administrative authority for the commission of inquiry to the Department of Indian and Northern Affairs, which was a particular situation. As chair, I felt that the final report should go to the Privy Council, but that was done through the Department of Indian and Northern Affairs. There is no single mechanism.
Senator Boisvenu: Since Bill C-58 does not apply to the Privy Council, that information is more difficult to obtain.
Senator Dupuis: That is why I say it is a mechanism — What we refer to as access to information cannot deal with these issues in a satisfactory manner, from the point of view of the government or of taxpayers. From the outset, we wanted to provide clear indications, on a map of Canada, of the status and number of claims the commission had handled. In view of the legal obligations recognized by the courts and incumbent on the government, a specific system must be created so we can see the light at the end of the tunnel for these claims.
Senator Boisvenu: Thank you.
Senator Gold: Hello, colleague. I have two questions for you. The problem you just raised cannot be addressed through an amendment. A specific system must be established, and that is why you suggested that there should be a reference to that. Is that correct?
Senator Dupuis: Yes, that is correct. At this point, I think a statement would be the best way for our committee to indicate what it has heard. You will recall that the First Nations representatives who appeared before our committee had a very specific position on Bill C-58, which was not necessarily the same position as that of other First Nations representatives. That is why I insist on the right to be consulted pursuant to a constitutional right. It is distinct and different from the Crown’s legal obligation to resolve specific claims. In that sense, yes, I think the matter is too complex to be addressed through an amendment to C-58, the bill before us.
Senator Gold: Is that why you made a distinction between the Crown’s legal rights as a fiduciary and the constitutional right to consult? Is that why you made that distinction? Can you clarify that?
Senator Dupuis: In the information our committee receives when witnesses appear before us, we try to make sure that — The Senate committee also has an educational role. We must make sure that the people listening to us or reading our work understand our concerns and the information we receive. In that sense, I wanted to make it clear that we can hope to assert our constitutional right to be consulted, a right that is evolving, in respect of which the Supreme Court gave a certain answer in the decision in Mikisew Cree, whereby we are not legally or constitutionally required to consult before we develop legislation.
That does not mean, however, that the issue of the government’s legal obligation no longer exists. On the contrary, it has existed since at least 1973. We recognize that bills are put forward, but they do not necessarily adequately address the government’s legal obligations. It is as though the First Nations, since they are interested in their claims, filed an access to information request — If I were going through an immigration process, I would want to know that the immigration department was looking after my file. These are two completely different things. I am trying to highlight the nature of the two obligations in relation to the testimony we have heard.
The Chair: We can certainly revisit this later on.
[English]
Senator McCoy: This is very helpful, so thank you, Senator Dupuis.
One of the requests from the Indigenous Bar Association — the witness was Bruce McIvor, and I understand that you were listening throughout all of these hearings, so you are familiar with the appearance. One of his recommendations was to transfer 16 kilometres of documents held by the Crown-Indigenous Relations and Northern Affairs Canada over to Library and Archives Canada. Would you support that?
Senator Dupuis: I did not have the opportunity to look into the matter more fully than what I heard the Indigenous Bar Association representatives say before us.
I am certainly of the view that there needs to be an independent body of some sort that could become the depository of all this documentation, which would not put the First Nations in their current situation where the federal government has all the files and decides upon which criteria it will accept a specific claim. The federal government is, under its own criteria, financing some research. There’s no guarantee that the First Nation has access to the totality of the file.
There is a uniqueness in this process. Part of the file is under Indian Affairs — whatever the actual name is, because it evolves a lot — and the Justice Department because it is giving advice on the validity of that claim. So I think there is a need to take the conservation and access to the file somewhere else than where it is currently.
Senator McCoy: And we know that we can’t make that happen by an amendment to Bill C-58. We’re agreed on that.
The other request that struck me as reasonable was to identify the special relationship between Indigenous peoples and the Government of Canada in the preamble, and also to define the Indigenous peoples beyond just what they call, I think, modern treaties. It’s a narrow definition. What would your response be to those two requests?
Senator Dupuis: I think we’re facing a situation where we’re asked to bring forward an amendment that would, in a sense, limit the recognition in this piece of legislation. We know that the government is in the process of negotiating a new relationship with First Nations — and other Aboriginal peoples, but we are speaking of First Nations specifically this morning. Do we want to bring an amendment to specific legislation that is dealt with in another forum, which is a bilateral forum, which has its political sensitivities as well? That’s a question for the committee.
Senator McCoy: Thank you.
I have a point of order.
The Chair: I’m listening.
Senator McCoy: I find myself in the unusual position of questioning a rule that I thought was steadfast, but I’ve been used to the shoe being on the other foot.
Maybe I should start by asking: Is an English translation available for these comments?
The Chair: As you know, at the opening of the meeting I didn’t circulate the document because it was not in both languages. Of course, the witness is free to use that document as much as she wants, but it will not be printed in the annex to our minutes because it’s not in both languages.
Senator McCoy: We touched on the educational value of our proceedings. I wonder if I might encourage an English translated to be made and circulated so that we have it on file.
The Chair: Absolutely. Your request is well received by the chair. As a matter of fact, it happens that when a witness comes with a document that is in only one of the two official languages, the committee could take the initiative to have it translated, or sometimes the witness himself or herself comes forward with the translation.
I want to discharge any perception that Senator Dupuis didn’t pay close attention to respecting that principle, because I, myself, yesterday asked her if she would be kind enough to come with a written presentation so that when she makes her presentation it will be easy to follow. Because when you have a written document, it’s very well structured.
However, in the short time that she had before testifying, she was not able to provide the document in both languages. We will make sure it is circulated in the way you have suggested, senator.
Senator McCoy: Thank you very much.
The Chair: I’m sure it is a concern of Senator Dupuis, and I take upon myself the responsibility to ensure it is available in both languages and circulated appropriately. Thank you for your point, senator.
Any other questions for the senator?
Senator Batters: Thank you for bringing that up, Senator McCoy, because I was going to raise it too. This is a complex area. Now I know the position of my francophone colleagues when they have to listen only in English to a witness on a complex area. To decipher important facts from that and develop good questions is difficult to do. I was also wondering if there was an English version. My French is improving, but I’m not quite at that stage, or it would take me a long time to get through it. So if we could have a translation, that would be great.
The Chair: Thank you so much. I appreciate your comments, senators, when you say that you realize the position of French-speaking senators when they only have a document in English. Certainly the initiative taken this morning is not to make you realize this; certainly not. I can inform you that the document has already been sent for translation. It’s not a long document, so we should have it later today or tomorrow.
Senator Dupuis: If I may, on my part, it was really a matter of respecting the practice of this committee. What is the official channel for translation that has led me to wait for instructions on how would we translate the document?
[Translation]
Senator Pratte: Senator Dupuis, I would like to know what kind of statement you would like us to add. Would the statement simply be that the current access to information process does not meet the needs at all, or would you like the committee to raise the principles that should guide the government in establishing this new regime for specific claims?
Senator Dupuis: I had thought our committee could make a general statement. As you said, the current access to information system cannot adequately address the context of specific claims. I think that is sufficient as a statement to send a message not only to the public, but also to the government that something has to be done. That will be for the committee to discuss, but in my opinion we can say that the current system does not work. There are negotiation mechanisms in place between the government and the First Nations that could be an effective forum for studying what should be improved in the system.
I was not thinking that the Standing Senate Committee on Legal and Constitutional Affairs, which is also very busy analyzing bills, would embark on a national study and travel across the country to consult everyone. That is not necessarily our role. I was thinking instead of something general that would serve to show that we are aware of the problem and would like to respond to certain directions the Supreme Court gave in the decision in Mikisew Cree.
As a legislative institution, we have to think about this. To what extent do we want to consult of our own accord, so to speak? It might be to trigger reflection, but I think we want to make a general statement to begin with.
Senator Pratte: I was thinking of the principle you mentioned in your brief, which seems very important and instructive to me, namely, that these matters should be handled according to rules for the preservation of evidence rather than information to which citizens seek access. Can you elaborate on that please?
Senator Dupuis: No doubt you have dealt with a department that has rules for the conservation of its administrative records. We know the records are weeded, that some files disappear and that, ultimately, even with respect to the administrative weeding and conservation of records, some people think that departments are too hasty at times in disposing of documents that should have been retained.
In this case, the government has possession of the historical and documentary records, even though it is one of the parties in a potential dispute. As a result, if those files disappear, there is nothing left.
Let me give you a specific example of a claim that the government rejected. The only evidence that remained for the commission was a former director general from Indian Affairs, from the 1970s in Quebec, who came and testified that the government kept all the records, but that they were all in English, because the Superintendent of Indian Affairs responsible for that First Nation was an anglophone, whereas the First Nation’s first language was a Native American language and its second language was French.
So, the person we found was the only evidence of the unawareness that land had been expropriated without compensation and that the permits had not been obtained. I know how the department was structured at that time, although I never worked there. We were able to find that person, who agreed to come and testify.
As a result, the federal government revised its position and finally agreed to recognize that there had always been a duty to compensate the First Nation because it had managed the First Nation’s land in a way that was contrary to the Indian Act.
Senator Pratte: Thank you very much.
The Chair: I will be pleased to revisit this later on this morning, if I may.
Senator Dalphond: Am I to understand that the records we are talking about were not necessarily written recently in the context of discussions to resolve the claims, and that some of them may date back to the last century or even 150 years ago?
Senator Dupuis: That’s right. That is why I pointed this out. Owing to the rules of procedure it had adopted, the commission held its hearings in the communities.
In certain communities in Saskatchewan, there were grandchildren of the signatories to a treaty dating back to 1880. My concern was that the grandchildren, who were in Grade 4 at the time, were able to hear their grandfather’s or uncle’s story, which is a recognized form of evidence.
Yes, it is true that certain records exist and that they date back to the period of the historical treaties between the Crown and the First Nations.
Senator Dalphond: If I understand correctly, these records were not transferred to the National Archives and are still in the hands of a department that was accidentally involved in the matter?
Senator Dupuis: To my knowledge, they are still in the hands of the department.
Senator Dalphond: The First Nations that want access to historical records pertaining to their constitutional history have to file an access to information request, just as a researcher would who wants access to transcripts of the Quebec Conference or the Charlottetown Conference, to find out what the Fathers of Confederation discussed.
I do not understand why there is no policy on the preservation of such records of great historical value. Why are they not transferred to a specialist or, at the very least, to a division of the National Archives, whose mandate is to preserve our heritage? This is part of our history that seems to be scattered around and subject to the Access to Information Commission. I find that rather surprising.
Senator Dupuis: There is nothing stopping a First Nation from asking the department to provide the information it has about a specific claim. Information is transferred, but there is no guarantee that the department has the full record.
As we heard from the national research directors in charge of these claims, they may file an official request under the Access to Information Act. That is often what they are asked to do if there is any suspicion that the department has not provided all the information.
That is why I say that, in any case, the system does not work well. In terms of the access to information system or a preliminary request, people may have an idea what they are looking for, but they do not know what the record actually contains. That is very difficult to predict, and the answer in some cases is that the record is too voluminous.
This is not a satisfactory way for the government to fulfill its legal obligations. Moreover, it leaves the First Nation entirely at the government’s mercy. This is more consistent with what has evolved in civil court.
In other words, there is nothing stopping anyone from creating a record and agreeing on an expert opinion. That is what we tried to do at the time, as part of our mediation mandate. To the extent that both parties agreed to mediation to settle a claim, we spent a great deal of energy getting them to accept the principle of a single documentary record.
So, everyone works on it. It requires a bit more negotiation, but essentially the government ends up funding research for the First Nation, funding its own research or sometimes authorizing counter-research for the First Nations. In my opinion, this system is completely unsatisfactory.
The Chair: Before we begin the second round of questions, may I ask you some questions about the information shared around the table? If we were to make statements, I think the first point would be the distinction between the federal government’s fiduciary responsibility under the Constitution Act, 1867 — section 91.24 — and the rights of the Aboriginal peoples under section 35 of the Constitution Act, 1982.
Let me explain. The Government of Canada has a fiduciary responsibility towards the Aboriginal peoples. In short, it has to behave like a good father who is responsible for the people who depend on it. It has the fiduciary obligation to protect their rights. In discharging this fiduciary obligation, it must ensure that all property titles or all evidence establish the rights of those persons in respect of whom it has a fiduciary obligation.
It must exercise its legal duty to protect the rights of those persons in respect of whom it has a fiduciary responsibility. It must be careful not to let go of evidence that would enable those for whom it is responsible to establish their title in the event of a future claim.
There are also negotiations between nations for which the federal government has a fiduciary responsibility and the claims brought against the federal government for violation of treaties, specific claims or general claims intended to establish title to a property. In the absence of a treaty, there are still claims, as demonstrated in Calder in 1973.
I think the committee’s statements must first and foremost reflect the path the committee has taken. So we should clearly establish the distinction between a citizen’s right to request that the Department of Indian and Northern Affairs do genealogical or historical research and to access certain records, and the right of the First Nation, in respect of which the federal government has a fiduciary responsibility, to access those records, because they do in essence belong to that nation. The First Nation has a right to those records since the government is in effect responsible for their conservation, but the nation does not have actual possession of them.
I think a very clear distinction must be made between the citizen’s right to use the Access to Information Act, as Bill C-58 proposes, and the constitutional right of the First Nations. To begin, the committee could consider making it very clear in its statement that there is a fundamental legal distinction between these two things. You mentioned that in your presentation, but I think it should be very clearly explained. When we add statements to a Senate report, our objective is to inform the public. I think that would be the first point we should add to our recommendations regarding Bill C-58. Would you like to comment on that?
Senator Dupuis: I wanted to make that distinction because I think it is critical. We must also help people understand. There are a lot of misunderstandings about the legal position of the First Nations. In general, it seems that what is granted to them is always done at the discretion of governments. Yet our system recognizes that they had specific rights and that the government had specific obligations to protect them. That is what fiduciary obligation is. That does not mean that this obligation applies to all aspects of the relationship, but it can create a legal fiduciary obligation in certain circumstances. It is important to make a distinction between that and a citizen’s recourse under an act of Parliament adopted at a given time.
The Chair: My second question pertains to the position — as Senator Pratte alluded to in his question about conflict — the government finds itself in, in which it is both judge and a party to the matter. The government has the responsibility to protect the rights of individuals for whom it has fiduciary responsibility and to protect and assert their interests right across the country. The amendment to section 9 proposed by Mr. McIvor last week says, quote:
[English]
Recommendation: In consultation with Indigenous peoples, establish an independent Indigenous Review Officer pursuant to the Access to Information Act with the authority to review decisions to deny access requests from Indigenous Governments, hear complaints from Indigenous Governments regarding access issues; make recommendations to improve the access to information regime in respect of Indigenous Peoples; and apply to the Court for a review of refusal to disclose a request to an Indigenous Government.
[Translation]
The purpose of this recommendation was to resolve the situation in which the government is both the judge and a party every time there is an access to information request from a First Nation trying to prove its title to land or a specific claim.
In other words, there would be an arbiter between the interests of the federal government on behalf of Canada and the interests of the First Nation. The solution to government’s untenable position, in which it is both judge and party, could be to have an independent Indigenous review officer. That would ensure that the interests of the Indigenous nations are protected. Would that be a way of dealing the difficult situation in which the Government of Canada has to adjudicate the interests of a party with respect to its own interests as a government?
Senator Dupuis: In my opinion, this proposed amendment assumes that the process of granting a First Nation access to its specific claim file, which is stipulated in the Access to Information Act, is the right process. I am not convinced of that. That is why I say it is more complex. Should we let the government decide how it will negotiate with the First Nations and the authorities representing them on the First Nations’ access to their claim file or say that this is a satisfactory mechanism, and that we think these claims are proceeding well in this process? I do not think so.
The Chair: Very well. My last question pertains to paragraph 6.1(1)(b) of the bill, which provides that the government institution may refuse to grant access to the information. I will read out paragraph 6b):
the request is for such a large number of records or necessitates a search through such a large number of records that acting on the request would unreasonably interfere with the operations of the government institution […]
No doubt you have a certain interpretation of this subclause of the bill, since there are 16 kilometres of archives at the Department of Crown-Indigenous Relations. If a nation wanted to consult all the government’s records on its titles or identity, the government could simply refuse, saying it is too complex. That would in effect directly deny the nation’s right to assert its title, which is contrary to the government’s fiduciary obligation.
Senator Dupuis: When Minister Brison appeared before our committee, I asked him if he could consider the amendments to clause 6 only. The idea would be to no longer require a certain number of details, which is directly related to clause 6.1 in the case of specific claims. They are always too voluminous.
Let me give you an example. I chaired an inquiry — also in Saskatchewan, as I recall — which was in fact the third federal commission of inquiry looking specifically at that transaction on reserve lands. So you can imagine the file that exists somewhere about this reserve, regarding a transaction dating back to the late 19th century.
This is what leads me to say that an amendment to a bill, as worded in the spirit of the current act, would not be a satisfactory solution to deal with the issue of land claims.
The Chair: I have one last question: does your knowledge of this issue lead you to agree with decisions by the Federal Court, which apparently intervened to order the Department of Indian Affairs to disclose certain information that a nation may have requested, and which the department refused to provide for all kinds of reasons, including that the request was too voluminous, the file was too complex, and it was too time-consuming?
Senator Dupuis: I cannot give you an answer; the case law is not fresh in my mind. To my knowledge, there were not a lot of preliminary decisions of that kind before the Specific Claims Tribunal was created.
The Chair: Thank you.
[English]
Senator McCoy: The needs of Indigenous peoples for information goes beyond land claims or specific claims, just by the nature of things. Indeed, I recall from the witnesses a couple of examples which brought that to mind. One was somebody pursuing their fishing rights and being accosted by a person in an enforcement role, and the first question is, “Where is your Indian card?” that sort of thing. That is beyond a land claim.
Another example given was information about to be released to a third party that included confidential information that had been shared with the Department of Justice and an Indigenous nation on a confidential basis.
I think the analysis that we put on Bill C-58, when taking an Indigenous perspective, needs to be broad enough to include the full range of their experience and needs. We talk about ordinary Canadians. Just because they are Indigenous, they don’t drop all the rights of ordinary Canadians. We need to be respectful beyond that, if I may say so.
I’m mindful of a modern Access to Information Act. We’ve heard other witnesses ask for amendments that actually require government officials to have a duty to record their processes. Your point about preserving evidence, that’s to be distinguished, too, is it not?
Senator Dupuis: Definitely.
Senator McCoy: I wonder if our steering committee or chair might be encouraged to pass this conundrum about preserving evidence over to the steering committee or chair of our Aboriginal Committee as a topic that they may wish to take up in depth. I personally suggested that to Mr. McIvor, but I wonder if that would be an appropriate thing for us to do as senators in order to ensure that this issue does not fall between the cracks. If it’s true — and I think it is — that we can’t do anything in our review of Bill C-58 to move those documents into a neutral depository, maybe there are others amongst our colleagues who could take up the issue in more of an advocacy role.
The Chair: Senator, I’ll get Senator Dupuis to answer that and I’ll make comments afterwards.
Senator Dupuis: Just a word or two to say that I have given the example of specific claims. One obvious problem area in terms of access to information is access to files that are in the possession of the government. It is not limited and it includes, as you stated, requests from individuals in order to establish their Indian status under the Indian Act because the register is in the hands of the government. They need to access a file that is in the hand of government, so I think that an eventual observation could be worded to include all situations where a First Nation individual or First Nation doesn’t have access to their own files because they are in the hands of the government.
Senator McCoy: I have supplementary, then. What about immigrants? We know that the Department of Citizenship is one of the highest recipients of requests. They are inundated with requests, so much so that they also have the highest incidence of tardiness in response. A great many of those, I’m told by those who have experience of these things, are requests for information on when somebody entered Canada or those sorts of records that go to establishing and verifying citizenship status or landed immigrant status or eligibility. That seems to be a parallel situation, although I grant you that there is no constitutional fiduciary relationship towards immigrants, refugees, applicants, et cetera. Nevertheless, one needs to have an even hand when one is governing.
I don’t know, but maybe you would like to mull that one over.
Senator Dupuis: I think it’s a matter that we could discuss at this committee at some point. I can see, at first glance, a difference in the fact that — in order to get Indian status, you have to meet requirements that are in the law. So it is not as if you are an immigrant coming with your identity papers and you can demonstrate that you have done this and that. At first glance, this should be looked into further.
Senator McCoy: Yes. Thank you.
The Chair: Before I adjourn, may I suggest to you another element of reflection, senator?
I know, of course, that the issue of the definition of a new relationship between the Crown and Indigenous peoples is not the subject of this bill nor of this committee’s consideration at this point in time. But, as you know, there is a document circulating amongst the Crown and the representative of the Indigenous nation in relation to the definition of that new relationship.
Considering your background and experience on the issue of specific claims and territorial claims, I wonder if you could look into those documents to see if there is an element that could be useful for the committee to take into consideration given that we could be facing the necessity of adding an observation to this bill in relation to this overall issue. So we take into account what is being negotiated at present, even though we know it’s a negotiation and it might end up differently than what is in that document. But it would be for the benefit of all the senators around the table to be made aware that there is an issue and there are elements in that document that we should be acknowledging, being aware that it is part of that over-broad negotiation.
Personally, I would be grateful if you could do that. Surely it will be helpful for all committee members to be aware of that.
[Translation]
Senator Dupuis: Yes, of course, I can do that.
The Chair: Thank you very much, Senator Dupuis.
[English]
Are there any other questions before we adjourn? Thank you.
(The committee adjourned.)