Report 21 - Access to Information Review Task Force

SELECTED CONCERNS OF ABORIGINAL PEOPLE

Published: April 2002

Hamar Foster
Catherine Parker
Murray Rankin
Mark Stevenson

Table of Contents

1. Introduction
   
2. The Unique Legal and Constitutional Position of Aboriginal Peoples
   
3. Time and Resources Required to Access Information Under the Act
   
4. The Disclosure of Information to Aboriginal Peoples
5. The Disclosure to Third Parties of Information Received from, or of Special Interest to, Aboriginal Peoples
6. Summary and Conclusions

1. Introduction

Aboriginal peoples have expressed a variety of concerns with the current regime pertaining to the disclosure of records within the control of government. In this paper, we will discuss some of those concerns and how they relate to the Access to Information Act (the "Act").

The first category of concern involves the time and resources required to obtain information under the Act. While dissatisfaction with cost and timelines is obviously not exclusive to aboriginal peoples, the fact that aboriginal peoples are researching and otherwise pursuing land claims and other matters specific to aboriginal peoples means that they may be particularly affected by difficulties associated with processing requests. We will consider how aboriginal peoples' concerns in this regard can be most effectively addressed.

The second category of concern involves whether the exemptions from disclosure set out in the Act properly take into account the rights and needs of aboriginal peoples in accessing information necessary to pursue their claims and protect their rights. We will consider how the exemptions operate in this context. In addition, we will consider whether statutory reform or some alternative means, such as guidelines for the exercise of discretion under the Act, or the development of alternative access procedures, are necessary or desirable.

Finally, aboriginal peoples have expressed concern that the Act does not adequately protect from disclosure certain information received from, or of special interest to, aboriginal peoples. The Act does not acknowledge that First Nations governments may have the same proprietary interest in information provided in confidence to the Government of Canada as do other governments. In addition, the relationship between aboriginal peoples and the Government of Canada is not protected in the Act in the same manner as the relationship between Canada and provincial governments. A final issue is whether the Act sufficiently protects the interests of aboriginal peoples in the protection of information relating to sacred sites or other matters of cultural significance to them. We will also consider options for statutory reform in this regard.

Before considering these specific concerns, we will briefly examine the nature of the rights held by aboriginal peoples and the obligations which may be owed to them by the Crown.

2. The Unique Legal and Constitutional Position of Aboriginal Peoples

Many aboriginal peoples believe that each of the above concerns implicate the fiduciary relationship of the Crown to aboriginal peoples. The nature and scope of this fiduciary relationship, and the circumstances which give rise to specific fiduciary duties, are matters of considerable legal uncertainty and beyond the scope of this paper. ⁽¹⁾ However, it is clear that the honour of the Crown is at stake in its dealings with aboriginal peoples and that there are circumstances where the Crown stands in a fiduciary relationship with them. One example is when the government acts as a trustee for a First Nation's assets. This may give rise to a specific fiduciary duty with respect to records generated for this purpose, either to disclose such information to them or to withhold it from others.

The extent of the Crown's obligations to disclose information to aboriginal peoples may also be affected by the constitutionally protected rights of aboriginal peoples. The historical nature of aboriginal and treaty rights is unique. Proof of an aboriginal right requires evidence of a historical practice, custom or tradition. The practice, custom or tradition must have been integral to the distinctive culture of an aboriginal people at the time of contact with settler society, and there must be some level of continuity of the practice, custom or tradition up to the present day. ⁽²⁾ Proof of aboriginal title requires evidence of exclusive occupation of land prior to the assertion of sovereignty. ⁽³⁾ In the case of treaties, whether or not a document is a treaty, as well as the interpretation to be given to treaty rights, may depend on assessing the intentions of the participants at the time the agreement was created. ⁽⁴⁾ In interpreting a treaty, the following historical facts, inter alia, are relevant: the past exercise of rights, the reasons why the Crown made a commitment, the situation prevailing at the time a treaty was signed, evidence of relations of mutual respect and esteem between the negotiators; and the subsequent conduct of the parties. ⁽⁵⁾ It is obvious that proof of many of these facts will require documents likely to be in control of the Crown. No other constitutional entitlements held by Canadians citizens are so dependent on the proof of historical facts in the distant past. ⁽⁶⁾

Aboriginal and treaty rights receive constitutional protection under section 35 of the Constitution Act, 1982, which provides:

The aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed.

As the Supreme Court of Canada held in R. v. Sparrow ⁽⁷⁾, the constitutional protection given to aboriginal and treaty rights is not absolute. However, any infringement of these rights must be justified. Such justification requires that the infringement be for a compelling purpose, and, further, that it be in accordance with the fiduciary relationship between the Crown and aboriginal peoples. In Sparrow, the Court stated:

Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights ... Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests [emphasis added]. ⁽⁸⁾

Part of the justification test requires that there be adequate consultation with the group whose rights have been infringed. ⁽⁹⁾ The precise requirements of the justificatory test, including the requirement for consultation, will depend on the facts of each case. ⁽¹⁰⁾ In many cases, the justificatory standard will require that aboriginal rights be given priority. ⁽¹¹⁾

There is significant confusion in the case law concerning when the obligation on the Crown to consult with aboriginal people in respect of aboriginal and treaty rights arises. ⁽¹²⁾ However, what is clear is that once an infringement is established, it will only be justified if adequate

consultation has taken place. ⁽¹³⁾ Although the scope and content of the duty to consult is still an issue under active consideration in the Courts, there seems to be good policy reasons for consulting where possible, whether or not it is legally required. It is obvious that for consultation to be effective there must be an adequate exchange of information between the Crown and aboriginal peoples. As a result, the duty to consult may impose disclosure obligations on the Crown.

In sum, because of the historical nature of aboriginal and treaty rights, aboriginal peoples are likely to require access to documents within the government's control in order to establish that those rights exist. In addition, there may be requirements of disclosure to aboriginal peoples, or non-disclosure of information about aboriginal peoples, which arise from the fiduciary relationship of the parties or the constitutional protection afforded to aboriginal and treaty rights. These obligations, which are unique to aboriginal peoples, are free standing obligations on the Crown which exists outside of the Act. In other words, while all citizens have the right of access set out in the Act, aboriginal peoples may have additional rights of access. Throughout the body of the paper, we will give consideration, in a general way, to how such special rights and obligations can best be accommodated, either through reform to the Act, education of those administering the Act, or the development of alternative access regimes. However, this paper in no way purports to explore the whole range of duties that may be owed by the Crown, or their implications for the requirements of Crown disclosure or for the interpretation and application of the Act.

3. Time and Resources Required to Access Information Under the Act

Those researching aboriginal rights and title claims have expressed frustration with the delay caused by the need for ATIP co-ordinators to comply with the information screening requirements of the legislation. For some time now there has been an `informal' procedure whereby, upon production of identification and authorization - either by a letter from or a Resolution of a Band Council (BCR) - a First Nation or Inuit Association researcher may be provided access to records under the control of Indian and Northern Affairs Canada (INAC) in an informal manner.

INAC officials have confirmed that the policy behind this informal procedure (which is, of course, subject to all applicable legislation) is (a) to give aboriginal peoples' researchers priority; and (b) to speed up the land claims process by easing their access to relevant information. Those contacted saw no reason why this procedure, which they report to have worked well, should not be expanded to include other government departments. The current INAC guidelines reflect a number of years of experience with informal access to information, and no amendments to them are currently being contemplated. One possible problem is that the review of decisions limiting access is also informal, but INAC does not appear to have received complaints about this issue.

Aboriginal peoples' researchers report that this effort to standardize procedures and improve services within the department and across regions has generally been successful. Researchers have identified the following improvements:

• better file management
• improved accessibility through disclosure of file lists
• regularized screening criteria, with inserts put into a file notifying researchers what has been removed and on what basis

The Department agrees that about 90% of requests from aboriginal peoples' researchers are now dealt with "informally" under the guidelines set out in "Native Claims Research - Guidelines for Informal Access to Records".

Researchers are still concerned with the accessibility of records held by other departments, however. One option would be for those departments that receive a substantial number of requests from native researchers to develop Guidelines similar to those adopted by INAC, in consultation with a representative of the claims research community. In addition, ATIP co-ordinators in other departments could receive training on developing an informal approach to native claims research requests.

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1. In Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, the Supreme Court of Canada stated:
   
   It is now well settled that there is a fiduciary relationship between the federal Crown and the aboriginal peoples of Canada: Guerin v. The Queen, [1984] 2 S.C.R. 335. Nonetheless, it must be remembered that not every aspect of the relationship between fiduciary and beneficiary takes the form of a fiduciary obligation: Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. The nature of the relationship between the parties defines the scope, and the limits, of the duties that will be imposed. The courts must be careful not to compromise the independence of quasi-judicial tribunals and decision-making agencies by imposing upon them fiduciary obligations which require that their decisions be made in accordance with a fiduciary duty.
   
   For general discussion of the fiduciary relationship see Rotman,
   Parallel Paths: Fiduciary Doctrine and the Crown - Native Relationship in Canada (Toronto: University of Toronto Press, 1996)
2. R. v. Van der Peet, [1996] 2 S.C.R. 507
3. Delgamukkw v. B.C. , [1997] 3 S.C.R. 101
4. R. v. Sioui, [1990] 1 S.C.R. 1025
5. Sioui, supra.
6. Because the courts have held that the
   Canadian Charter of Rights and Freedoms cannot be applied retroactively, most constitutional entitlements held by individuals will not be grounded in distant historical facts.
7. [1990] 1 S.C.R. 1075
8. Supra, at 1110.
9. Sparrow, supra
10. R v Gladstone, [1996] 2 S.C.R. 723; Delgamuukw v B.C.,
11. supra
12. Gladstone, supra
    See Paul v Forest Appeals Commission, 2001 B.C.C.A. 411; Halfway River First Nation v British Columbia (Ministry of Forests) 1999 B.C.C.A. 470; P. Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (Feb. 2000), 79
    Can. Bar Rev. 252-279
13. See comments of Huddart, J.A., dissenting on another point, in Paul supra, where she states that the duty to consult may be the "greatest duty that can be placed upon statutory decision makers". She notes:
    
    As suggested by the Court in Stoney Creek Indian Band v British Columbia (1986), 61 BCLR (3d) 131 (SC), a government decision maker must scrutinize the impact of his decision to ensure the recognition and affirmation of existing aboriginal rights, whether or not defined in a treaty or by judicial precedent.