Thank you.
I'm calling from the Tseil-Waututh, Musqueam and Squamish nations, and I give territorial acknowledgement. I'm the secretary-treasurer of the Union of B.C. Indian Chiefs and co-chair of the B.C. specific claims working group. I'm going to speak about how federal access to information affects first nations' access to justice in the resolution of specific claims against Canada.
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 federal specific claims process and specific claims tribunal require first nations to submit documentary evidence to support their claims against the Crown. Most of this evidence is controlled by federal government departments and institutions, such as Crown-Indigenous Relations, Indigenous Services Canada, and Library and Archives Canada.
First nations must rely on the Access to Information Act and Privacy Act to obtain records held by the federal government in order to meet the specific claims policy requirement for filing claims. Since first nations are required to obtain thousands of records held by federal government departments to substantiate their claims against the Crown, the right to access to information is a fundamental component of first nations' access to justice.
Just and fair redress for historical losses—a right articulated in article 28 of the United Nations Declaration on the Rights of Indigenous Peoples—is a political imperative if we are to move toward reconciliation. Reconciliation has been deemed by the courts and all levels of government to be of public interest and a political priority. First nations have unique rights to data sovereignty that are supported by the UN declaration and embedded within first nations laws, protocols and governance structures.
Among the types of information included in the accepted definition of “first nations data” is information about first nations reserve and traditional lands, waters, resources and the environment. The federal government has a legal obligation, through the United Nations Declaration on the Rights of Indigenous Peoples Act, to ensure that all necessary measures are taken to uphold the UN declaration and meet its objectives.
The Prime Minister's December 16, 2021, mandate letters to the ministers direct each of them to implement the UN declaration and work in partnership with indigenous peoples to advance their rights. This entails upholding the honour of the Crown in all dealings with first nations. Ensuring first nations have full access to records they require to substantiate their claims is necessary to uphold the law and serve the public interest.
Specific claims arise when Canada fails to fulfill its legal obligations to first nations. Canada's specific claims policy requires first nations to substantiate their claims with documentary evidence. Most of the historical evidence first nations require to support their claim is controlled by Canada and federal government institutions. Since Canada controls access to the evidence, first nations are required to substantiate their historical claims against the Crown through the Access to Information Act and Privacy Act. This is an unfair and untenable conflict of interest. Canada's conflict of interest is the overarching barrier to first nations' full and equitable access to justice. Systemic problems with access to information processes that impede first nations' access to justice include delays, broad or inconsistently applied exemptions and ineffective legislative remedies.
Canada's commitment to meaningfully engage with first nations has fallen far too short of expectations and minimum standards for obtaining first nations' free, prior and informed consent, as articulated in article 40 of the UN declaration. Human rights principles—such as self-determination, respect for first nations rights and titleholders, and obtaining first nations' free, prior and informed consent—must be incorporated into, and underpin, all processes for developing, reviewing and amending federal access to information legislation and associated regulatory administrative processes.
Canada's conflict of interest in controlling first nations' access to records must be fully eliminated. The Treasury Board and the Department of Justice must work in full partnership with first nations and their respective organizations toward developing a new information management regime. This information management regime must uphold first nations' rights, as articulated under the UN declaration.
In the interim, Canada must recognize its duty to full disclosure and uphold the honour of the Crown by working in full partnership with first nations to develop a mechanism of independent oversight that ensures first nations' full and timely access to records.
Canada must make first nations claims researchers' requests for access to information a priority by hiring additional dedicated staff to expedite existing and impending requests.
Canada's information analysts and staff must be informed about first nations-specific claims and first nations' right of redress and information rights, as well as imperative Crown-indigenous reconciliation.
Canada must make meaningful and direct dialogue with first nations and their representative organizations a priority from the outset of all future policy work.
Thank you.