Indigenous and Northern Affairs Committee on Oct. 31st, 2012

[Jennifer Stoddart]

Yes, I believe the Privacy Act would apply to the extent that it isn't specifically superseded by this new legislation, if it is to pass.

We mentioned that because we thought there was, in the discussion of this, some misunderstanding about the role of the Privacy Act. The Privacy Act is not the Canadian Charter of Rights and Freedoms. It doesn't specifically mention privacy in passing, but it has been used to measure other laws.

The Privacy Act is not used to measure other laws. Another law can amend the Privacy Act, and the Privacy Act has always provided for this. That's what we wanted to clarify for the committee.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Is this the case with similar legislation related to other governments across Canada, provincial or municipal? Do we start to get in sync? Does the Privacy Act mean to ensure that levels of government start to conform, so that what happens in British Columbia will be similar to what happens in Ontario, Quebec, or New Brunswick?

[Jennifer Stoddart]

I'll start, and perhaps the general counsel will have a more acute observation.

I think there is a general tendency towards sync, from what we can find out. The one difference—and it's of interest only to lawyers who are really into this kind of thing—is that in the Province of Quebec they have their own charter and they measure their own legislation. So if we were in Quebec, you could ask whether this legislation measures up to the Quebec charter. It could be declared unconstitutional according to Quebec. None of the other provinces have that. But in general, Quebec's privacy legislation is broadly similar to privacy legislation in other parts of Canada.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Wilks.

We'll now turn to Mr. Genest-Jourdain.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good afternoon, Ms. Stoddart.

My question will be fairly short.

What rules currently apply to corporate entities and crown corporations in which the state may have particular interests? What disclosure rules for names and financial information apply to all crown corporations across Canada?

[Jennifer Stoddart]

Honestly, I am not sure I can answer your question because I have not thought about it. We could send you a written response on this.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

I would appreciate that. I understand that my question is fairly technical.

I listened carefully to your presentation. You stated that it is currently quite difficult for Aboriginal Affairs and Northern Development to disclose names in connection with bands for honoraria and financial operations. On the legislative front, what are the current, specific obstacles that lead to the department having its hands tied?

[Jennifer Stoddart]

The Privacy Act states that personal information held by federal institutions, including the Department or Aboriginal Affairs and Northern Development Canada, must remain confidential if an individual has not consented to the disclosure of that information. I believe there is an exception laid out in section 8 concerning treaty negotiations or land claims. Besides that, the same applies to everyone in Canada. The information shall not be disclosed without the consent of the individual in question.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

In your opinion, what was the core objective of Bill C-27? What target group was meant to benefit from this bill?

[Jennifer Stoddart]

Once again, sir, I am not in a position to answer that question. I am not a political scientist nor an analyst of debates on aboriginal governance. It seems to me that the main goal is to shed light on how this money is being spent. This is money that the government distributes not only to first nations, but also to the Department of Aboriginal Affairs and Northern Development Canada who then distributes it to first nations.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you.

I will share my time with my colleague, Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, witnesses.

The minister indicated, in a previous meeting on this, that they have a government-to-government relationship with first nations.

Have you seen anything in the disclosure information suggesting that the federal government has an influence on the provinces and territories or other governments in how they develop their disclosure policies?

[Jennifer Stoddart]

No, not in this legislation.

[Dennis Bevington, NDP, Western Arctic, NT]

Each province develops its own.

[Jennifer Stoddart]

Yes.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay.

I'm still interested in some of the aspects of this bill, although I simply don't agree with the bill because of that particular reason. But I'm interested in the bill in terms of the layout of information.

We had the Canadian Taxpayers Federation in front of us, making very wild claims about the nature of first nations remuneration, based on information that they had somehow garnered.

You've talked in your briefing about how important it is that the information doesn't lead to misinformation. Could you speak a little bit more on that particular issue, how it's important that information that's provided is very clear in nature, to protect the individual as well? Is that fair to say?

[Jennifer Stoddart]

Certainly there is an obligation, both under the Privacy Act and under PIPEDA, that personal information about individuals has to be accurate and up to date. That's a basic tenet of privacy protection.

[Dennis Bevington, NDP, Western Arctic, NT]

So lumping in expenditures with salaries and lumping in remuneration for per diems with salaries, and doing those sorts of things that might inflate the wage of an individual working for a first nation...would you consider that to be proper use of information?

[Jennifer Stoddart]

I think the attributions or the nomenclature used have to reflect accurately what kind of personal information it is. So to the extent that you can be more precise, I think that's ideal. But you're down to actual wording, so I can't really pronounce on it.

Are you saying “total of moneys paid out”, or are you saying “salaries” versus “travel expenses reimbursed” versus “per diems” versus...? Whatever it is, I think you should use an accurate label. That is a basis of privacy law.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn now to Mr. Clarke, for five minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

Thank you very much to the witnesses for coming in today.

You mentioned that the mandate is protection of personal information for individuals.

What we're hearing is a broad range of testimony from witnesses—from first nations leaders, from members of communities, and from band members as well—and there is a fine balancing act that has to be done here.

You mentioned your recommendations, but being from a first nation myself, I know from what we hear, and Mr. Wilks was also saying.... I'm a former RCMP member as well, and I've seen the first nations that are reporting and taking the financial information from consolidated reports and providing it to Aboriginal Affairs, meeting those challenges in order to meet the requirements for their funding envelopes.

I'm going to go back to your mandate, but I'm also going to go into how the organization tries to protect personal information. There is one interesting part, and I'm not sure if you're quite aware of this. How does the Privacy Act apply to first nations governments? That is one key component that I need to know the answer to.

If you look at first nations that are trying to get the information, and the challenges they face, where first nations aren't providing that information.... We have the good reserves, such as where Chief Darcy Bear supplies the information to his membership. My first nation community of Muskeg Lake also provides the information on the website. They go from community to community, like Edmonton, Saskatoon, Prince Albert, and they have band meetings and provide that financial information to them. However, there are first nations communities that don't provide that information, and when members come forward, they're blocked from getting that information and they fear reprisal.

Under section 10 of the Indian Act, for a first nations band member to get information from the band council, they have to release their information, their personal data; they have to sign a waiver.

How do you feel about that?

[Jennifer Stoddart]

Honourable member, we have had complaints to our office over the years about individual members of first nations not getting the information from the band council. If I look over the last three years, we've had about 10 complaints by members of first nations against the administration.

Most of these have been settled; the information has been given. We are still working on some, but this is a phenomenon we see; it's alleged there's less than total transparency within the band itself.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

How would you resolve the issue of the first nations band member having to sign a waiver of their identity in order for chief and council to release that information? The chief and council are going to see that band member making a request, and their identity isn't protected. How would you resolve that?

[Jennifer Stoddart]

I haven't personally looked at that before, but perhaps the general counsel has. I haven't looked at that part of the Indian Act to see how....

[Patricia Kosseim]

I've only seen that come up in the context of jurisprudence, where an individual actually did consent to the disclosure of her identity in order to put the request forward. But the overarching principle is that proactively, as I understand it, even in the current regulations under the Indian Act, first nations must be making this information available to band members in a conspicuous place.

I'm not sure why an individual would have to go through those formal means of making an access request to obtain information. My understanding, and I'm not an expert in the Indian Act or its regulations, is that under the regulations those audited financial statements must be made available to members in a conspicuous place.

That's the best I can do with my knowledge of the Indian Act.