Evidence of meeting #114 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was see.
A recording is available from Parliament.
Liberal
The Chair Liberal Deb Schulte
Now we move on to LIB-60, and if we vote for this, it will apply to LIB-62, as LIB-62 is consequential.
Liberal
John Aldag Liberal Cloverdale—Langley City, BC
We've discussed this one before. It's the expansion of traditional knowledge to specify indigenous knowledge.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I have a question on this, and we were going to run into this because of the decision by the Liberal members to do this. It's my understanding that the claim of confidentiality rises because it is traditional knowledge. It's about the ceremonies. It's about where the traplines may be, where the burial sites are, and so forth. It's not just any indigenous knowledge, so I think it has been extremely widened now.
Does that mean then that the panel is going to have to do a ruling on every single bit of information, testimony, and evidence that any indigenous person provides to this review?
Liberal
John Aldag Liberal Cloverdale—Langley City, BC
There are other amendments being put forward that deal with confidentiality, and I believe you'll see that this is addressed in subsequent amendments.
Liberal
NDP
Linda Duncan NDP Edmonton Strathcona, AB
That means that for any testimony, any information, any evidence by an indigenous government, community, or individual, we're going to make a decision in advance on whether every aspect of their intervention is going to be given in confidence.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
That's what it says, because it's no longer just traditional knowledge, it's all indigenous knowledge.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I'm not necessarily saying I'm against it, but I don't know how they're going to do that.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
Proposed subsection 119(1) is the confidentiality provision. On line 18 it says “under this Act in confidence is confidential and must not knowingly be, or be permitted to be, disclosed”, and then there are a number of different exceptions there, but the knowledge is confidential when provided. The exception is there.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
How do you put together proposed subsection 119(1), which requires written consent, and then proposed subsection 119(2)? I'm not sure which one supersedes the other. Let's consider public. It says you have to have written consent on everything that represents indigenous knowledge that is provided to both parties.
Liberal
The Chair Liberal Deb Schulte
That's not the way I read that. I'll go back to the expert, because I'm not the expert and just get clarification there, because that's not what she just said.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
The information that's provided is considered confidential if identified as such by the individual, and there are a few reasons there that allow for exceptions, which are as follows: if the information is to be knowingly publicly available, if it's required for procedural fairness, or if the disclosure is authorized in those prescribed circumstances.
Liberal
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I think it was easier to deal with when it was just traditional knowledge, but it's going to be a huge task for indigenous intervenors now to to scrutinize the entirety of their intervention and clarify what is in confidence and what isn't.
Conservative
Ed Fast Conservative Abbotsford, BC
I have similar concerns, and I'm really on the same page as Ms. Duncan here, surprisingly.
Proposed paragraph 119(2)(b) is the saving clause for procedural fairness and natural justice, so any applicant is entitled to know information that is relevant to his or her project in order to provide them with an opportunity to respond. But if in fact this information is actually kept secret, how would the applicant even know that information is being considered that may be prejudicial to their interests?
I've raised this before as a serious concern. I fully understand that there may be circumstances in which an indigenous group will want to protect information to ensure that, for example, there isn't a disturbance of heritage sites or religious sites of significance. But it is absolutely critical that applicants have information available to them that would allow them to meet any challenge that the tribunal faces. It would be interesting to hear from our officials on how that procedural fairness will be guaranteed.