Information & Ethics Committee on Nov. 23rd, 2022

[Chief Judy Wilson]

I'm sorry. Can you rephrase that, please?

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I was saying the indigenous peoples should have ready access to information and data relevant to them without the need to submit ATI requests. Do you have any suggestions on how to best implement this in a practical manner?

[Chief Judy Wilson]

Could I defer that to Jody or Robyn? Thank you.

[Jody Woods, Administrative Director, Research Director, Union of British Columbia Indian Chiefs]

I might call on Robyn to take that one.

[Robyn Laba, Senior Researcher, Union of British Columbia Indian Chiefs]

Thank you.

It's a complicated question, because one thing that's really important, especially under the UN declaration, is recognizing indigenous rights to data sovereignty when it comes to developing a process whereby first nations would be able to obtain their own information, especially for legal processes such as specific claims. One thing that's currently being worked on right now is an independent centre for the resolution of specific claims. That announcement was made last week, or a couple of weeks ago, I think. One thing that is being contemplated is a means by which information would flow freely to first nations that are involved in this process without having to be vetted by Canada, which is a party to a claim.

Issues around data sovereignty are a more complex question. Here, first nations governing bodies have to be involved at all stages, because they're the ones that own the information.

It's a complex process, but at the very least there needs to be some kind of independent oversight in the interim that ensures that first nations involved in these legal processes, particularly against the Crown, have full access to information made available to them.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you.

Chair, do I have any more time?

[The Chair, Conservative, John Brassard]

You have about 30 seconds or so, Mr. Bains.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I will go to Mr. Larsen.

British Columbia recently introduced a fee of $10 to discourage vexatious requests and fund the system. Do you agree or disagree with the change implemented by the B.C. government?

[Mike Larsen]

Thank you very much for the question.

This question really occupied us through last fall of this year. We were fighting quite actively as an organization to oppose what we call the tollgate fee.

We see this as a barrier to access. We think that while there are a small handful of what could be called vexatious users or overusers of the system, there are a lot of people who lack the means to meet the $10 threshold. I can say to you as a professor that when I'm trying to teach my students how to use access to information law, I want them to use access to information law. Asking people who are already pretty strapped for cash to spend $10 as part of the process is right there a considerable barrier for people.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Larsen.

Go ahead, Mr. Simard. You have six minutes.

[Mario Simard, Bloc, Jonquière, QC]

Thank you.

Mr. Barnes, you said in your opening statement that there was no mechanism to release historical records. That means there is currently no rule for releasing historical government records to public policy-makers or members of civil society.

[Alan Barnes]

If government departments transfer records to LAC as open records, then those records can be accessed by researchers. However, many government records, particularly in the areas I'm interested in, are transferred to LAC as restricted, so those all require access requests. There's no other mechanism.

[Mario Simard, Bloc, Jonquière, QC]

You spoke about security intelligence, international affairs and defence. Unless I'm mistaken, you then alluded to section 15. What specifically interests me are the records that have political value in an international context. One example of this is the process that led to the repatriation of the Constitution in 1982.

I'm a university researcher and I would like to obtain information about the deliberations surrounding that issue, but there is no mechanism that allows me such access, even though more than 30 years have gone by since the event.

[Alan Barnes]

I can't comment specifically on that area of the document as it isn't one on which I've been working, but essentially the same principles apply. If they are being held in a classified form, right now there is no other mechanism besides going through the very cumbersome process of asking for an ATIP release to get access to those records.

In those cases, there may be exemptions that apply that are different from the ones I'm constantly dealing with, but again the principle is the same.

[Mario Simard, Bloc, Jonquière, QC]

To your knowledge, are there many countries in the world that operate this way with respect to their national history? I know that it's your field of specialization, but I wouldn't want to refer you back to intelligence, international affairs and defence. Are there many countries that are not prepared to release records concerning their national history and the past political decision-making process.

[Alan Barnes]

Clearly each government has its own regulations, and certainly those kinds of political issues, as well as national defence issues, are potentially more sensitive. As I mentioned, all of our allies have instituted procedures for actually dealing with that and for allowing for the release of those records that are less sensitive while still maintaining necessary controls on those that are much more sensitive.

The problem with Canada is that there's no such mechanism. Essentially, everything is treated as though it's just as sensitive as it was the day it was created. Of course, many of these records are overclassified to begin with and perhaps weren't so sensitive even when they were created, so it's a problem today.

[Mario Simard, Bloc, Jonquière, QC]

Thank you.

I'm going to continue with Chief Kukpi7 Wilson.

To support legitimate political claims you might have, are the historical records available, or is it a struggle to get access to them? If so, that must make things very difficult for you.

Have there been any recent instances for which you couldn't obtain official historical records about certain events to support your claims.

[Chief Judy Wilson]

Jody, could you...?

[Jody Woods]

Sure. You're muted, but I think you asked me to address this.

[Chief Judy Wilson]

Yes.

[Jody Woods]

I will, and then I may ask if Robyn wants to add anything.

Certainly it makes it difficult, and we actually never have any sense of certainty that we are able to provide all of the documents that are available. This is often proven true when Canada reviews the specific claims that we submit and sends back some documents that we were never able to find or access, usually without any context, honestly.

Also, in terms of data, we are currently experiencing two huge delays—like hundreds of days. One was projected to be years because of the scope of the ask, which is necessary for the type of work that we do. Delays are the norm in this process. They represent very clearly the barriers to accessing justice for first nations.

Robyn, do you want to add anything to that?

[Robyn Laba]

The only thing I'll add, just very quickly, is to echo what Mr. Barnes was saying about access to historical documents.

In particular, Crown-Indigenous Relations has told us that their policy is not to transfer historical records. I'm talking about records that are over 100 years old by this point. It's not to transfer records to Library and Archives Canada if a “business case” can been seen for retaining them in the department. We have no idea what is there because we're not given access to their file lists. We don't even know what they have.

Occasionally, as Jody mentioned, when Canada reviews these claims, we'll just get arbitrary records back. If we don't know what exists, we certainly can't do due diligence on behalf of first nations that are filing legal claims against the Crown.

There are these huge gaps in the historical record. First nations have no choice but to just submit these incomplete reports. It prejudices their claim because they don't have the full picture.

[The Chair, Conservative, John Brassard]

Thank you.

Thank you, Mr. Simard.

Next is Mr. Green. You're up for six minutes, sir.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you, Mr. Chair.

I'd like to take a moment to welcome all of the witnesses.

My first line of questioning will be to Kukpi7 Wilson and colleagues.

I want to carry on with some of the lines of questioning. Perhaps, for the record, I'll provide you with the opportunity to give a little bit more understanding to the specific claims that you all have.

[Chief Judy Wilson]

Are you asking for an overview of some of our specific claims and work?