Full Disclosure: Canada’s Conflict of Interest in Controlling First Nations’ Access to Information
A Discussion Paper Respecting the One Year Review of the Access to Information Act,
and the Modernization of the Privacy Act
National Claims Research Directors and Union of BC Indian Chiefs November 4, 2022
Specific claims are historical grievances brought against the federal government by First Nations when Canada fails to fulfill its lawful obligations as set out in statutes, treaties, agreements, or the Crown’s reserve creation policies. The historical actions illegally undertaken by colonial governments and successive governments of Canada have resulted in First Nations’ widespread dispossession of their reserve lands, villages, fishing areas, burial and other sacred sites, as well as access to water and other resources. There are hundreds of unresolved claims in Canada that continue to impact First Nations economically, socially, and culturally.
In 2016, when the Office of the Auditor General was conducting its audit of Indigenous and Northern Affairs Canada’s management of the resolution of First Nations’ specific claims, the auditor conducted a series of interviews with directors of Claims Research Units across the country to ascertain their views on the fairness and effectiveness of the federal government’s claims resolution policy and process. Research directors, responsible for advancing hundreds of claims on behalf of First Nations, were asked to explain to the auditor how specific claims are researched. When they outlined the research process and explained the need to go through formal and informal access to information processes1 to obtain copies of the hundreds, sometimes thousands of government-held documents needed to support a First Nation’s claim allegation, the auditor interjected, asking why First Nations specific claims researchers had to go through formal access to information processes to obtain historical records they needed to substantiate their claims against the federal government.
This discussion paper proceeds on the basis that Canada’s information management regime – the Access to Information Act, the Privacy Act, and their respective regulatory and procedural mechanisms – is neither adequate nor appropriate to upholding and implementing First Nations’ right of redress for historical grievances against the federal government and impedes their access to justice. This determination is made on the basis of foundational, legally supported human rights principles and Canada’s public commitment to prioritize reconciliation with Indigenous peoples and uphold the honour of the Crown. Canada’s conflict of interest in managing and assessing claims against itself extends to its control over access to information First Nations legally require in order to resolve their claims. Survey and interview responses by First Nations claims researchers across the country identify a myriad of systemic problems with Canada’s processes for accessing information held by the federal government. Claims researchers repeatedly cite as barriers to justice Canada’s conflict of interest in controlling access to records required by First Nations to provide evidence of Canada’s historical wrongdoing, as well as longstanding and systemic issues with obtaining timely and complete access to information. According to claims researchers, legislative and administrative remedies are ineffective and indicate a need for independent oversight and dedicated staff who understand the reconciliatory imperative of resolving First Nations’ historical claims in the short term. Overall, there must be a new system of information management developed in full partnership with First Nations so that their right of redress is upheld and full access to justice is ensured.
About the Authors
National Claims Research Directors (NCRD) is a national body of specialized technicians who manage over thirty centralized Claims Research Units (CRUs) mandated to research and develop evidence related to the claims, grievances, and disputes between First Nations and the Crown. Much of the NCRD’s work is focused on the development of specific claims against the federal government related to its breach of lawful obligations against First Nations, pursuant to Canada’s specific claims policy and Specific Claims Tribunal Act. The NCRD is also involved in the development of claims related to First Nations’ title and rights and treaty entitlements, and in litigation support on a range of issues related to the claims, disputes, and grievances of First Nations. In the course of this work NCRD members collectively access hundreds of thousands of records from federal government institutions over the course a given year.
Union of British Columbia Indian Chiefs (UBCIC) is a not-for-profit organization that supports First Nations in asserting and implementing their inherent Title and Rights, Treaty Rights, and Right of Self-Determination as peoples. The UBCIC is also an NGO in Special Consultative Status with the Economic and Social Council of the United Nations. Through the British Columbia Specific Claims Working Group (BCSCWG), we advocate for the fair and just resolution of specific claims arising in BC and advancing specific claims as a national political priority. Working in ongoing dialogue with First Nations, claims research units, legal counsel, and others, we hold Canada accountable for changes to policy and practices and advocate for systemic reform to uphold the rights of First Nations as articulated in the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). The UBCIC's research staff rely upon federal access to information mechanisms to obtain necessary records from public bodies in the course of their work on behalf of First Nations in BC. The UBCIC advocates at the federal and provincial levels to ensure government transparency and accountability and to remove existing barriers to First Nations’ access to information.
First Nations Claims Research Unit (CRU)-Canada Working Group on Access to Information was formed in 2016 to address barriers faced by First Nations specific claims researchers across Canada in obtaining records from government departments through formal and informal access to information mechanisms at Crown-Indigenous Relations and Northern Affairs Canada. The First Nations CRU side of this working group has provided guidance and technical support to this project.