First Nation of Na-Cho Nyäk Dun
P.O. Box 220
Mayo, Yukon Y0B 1M0
Tel: (867) 996-2265 Ext. 200
Fax: (867) 996-2267
E-mail: main@nndfn.com Website: www.nndfn.com
June 30, 2022

The Honourable Mona Fortier President of the Treasury Board Treasury Board of Canada Secretariat 90 Elgin Street
Ottawa, ON K1A 0R5

Delivered Via E-Mail: reviewingatia.revisionlai@tbs-sct.gc.ca

Dear President Fortier:

RE:	Review of the Access to Information Act

The First Nation of Na-Cho Nyäk Dun (“FNNND”) is pleased to provide this submission to the Treasury Board of Canada Secretariat (“TBS”) as the Government of Canada (“Canada”) implements its first full review of the Access to Information Act (the “Act”) required under section 93 of the Act.

FNNND is a self-governing First Nation with a Traditional Territory that covers a large swathe of both Yukon and the Northwest Territories. FNNND signed the First Nation of Nacho Nyak Dun Final Agreement (the “Final Agreement”) with Canada and the Government of Yukon in 1993. The Final Agreement is a modern treaty, constitutionally protected under section 35 of the Constitution Act, 1982.1 FNNND is also in the process of negotiating a “transboundary” agreement with Canada and the Government of the Northwest Territories to recognize our rights in the portion of our Traditional Territory located in the Northwest Territories.

As a self-governing First Nation, FNNND has unique perspectives and concerns with respect to access to information that need to be addressed. This submission outlines our key comments, concerns, and recommendations for TBS as it undertakes the review process. At the outset, FNNND would like to emphasise that Canada’s collection, use, and management of information and data regarding FNNND must respect FNNND’s rights to own, control, and protect our information. Accordingly, decisions about information and data regarding FNNND must be made by public government and FNNND in partnership, in keeping with the Final Agreement and the sprit of reconciliation.

1	Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103 at para 2.

Concerns and Recommendations

1.	Recognize Canada’s colonial legacy and treatment of information of and about Indigenous peoples

Canada’s review of the Act and its other information governance laws must recognize the troubling legacy of colonialism on Indigenous people, as well as information of and about Indigenous peoples. For example, the status registry created and maintained under the Indian Act was and is still used to discriminate against Indigenous peoples in Canada. Our information was and continues to be gathered without our consent. As the Report of the Royal Commission on Aboriginal Peoples found, First Nations have had a troubled relationship with Western information-gathering and research:

In the past, Aboriginal people have not been consulted about what information should be collected, who should gather that information, who should maintain it, and who should have access to it. The information gathered may or may not have been relevant to the questions, priorities and concerns of Aboriginal peoples.
Because data gathering has frequently been imposed by outside authorities, it has met with resistance in many quarters.2
We have been entirely left out of decision-making about how our data and information is managed and used. This legacy has resulted in a lack of trust in Canada’s information gathering and sharing processes among Indigenous communities, as well as the loss of our cultural and historical information. Recognition of this colonial legacy and trauma must underpin Canada’s review of the Act and its systems and processes. Canada must actively acknowledge and confront this history before we can move forward in the spirit of reconciliation.

2.	Respect Indigenous data sovereignty

Self-governing First Nations such as FNNND must have full ownership and control of information about us and our communities. The First Nations Information Governance Centre (“FNIGC”) has released principles on ownership, control, access, and possession (“OCAP®”) over data collection to ensure First Nations have control over data collection processes and how information can be stored, interpreted, used, or shared.3
FNIGC defines the OCAP® principles as follows:

Ownership refers to the relationship of First Nations to their cultural knowledge, data, and information. This principle states that a community or group owns information collectively in the same way that an individual owns his or her personal information.

2	Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Volume 3: Gathering Strength (October 1996) at 498.
3	First Nations Information Governance Centre, “First Nations Principles of OCAP®,” https://www.fnigc.ca/OCAP-training/.

Control affirms that First Nations, their communities, and representative bodies are within their rights in seeking […] control over all aspects of research and information management processes that impact them. First Nations control of research can include all stages of a particular research project-from start to finish. The principle extends to the control of resources and review processes, the planning process, management of the information and so on.

Access refers to the fact that First Nations must have access to information and data about themselves and their communities regardless of where it is held. The principle of access also refers to the right of First Nations’ communities and organizations to manage and make decisions regarding access to their collective information. This may be achieved, in practice, through standardized, formal protocols.

Possession While ownership identifies the relationship between a people and their information in principle, possession or stewardship is more concrete: it refers to the physical control of data. Possession is the mechanism by which ownership can be asserted and protected.4
The OCAP® principles should form the foundation in reviewing the Act and how it treats and considers information about Indigenous peoples and Nations. FNNND should maintain ownership of information about the Na-Cho Nyӓk Dun, and Canada should be required to enter into information sharing arrangements with FNNND to access and use personal information about the Na-Cho Nyӓk Dun. FNNND should also have full and unfettered access to all information Canada holds about our people and communities, including de-identified and statistical data, as well as information and data about Indigenous lands—such as information obtained from proponents through environmental assessments.

3.	Respect FNNND’s laws and policies

Flowing from our inherent right to self-government and the Nacho Nyak Dun Self-Government Agreement, FNNND has enacted policies and laws with respect to the use and protection of our traditional knowledge. The Act must require the federal government to fully abide by FNNND’s laws and policies when responding to any information requests under the Act that involve our traditional knowledge or any other information, in a way that respects FNNND’s self- government authority.

4.	Include all self-governing First Nations in the Act’s definition of “Aboriginal Government”

Section 13(1)(e) of the Act provides that government shall refuse to disclose any record that contains information that was obtained in confidence from an “aboriginal government.” The Act defines “aboriginal government” under that section narrowly to include only a handful of specific First Nation governments. FNNND and many other self-governing First Nations are

4	Id.

conspicuously excluded from the definition of “aboriginal government.”5 The Act must be inclusive and respect our inherent right to self-government and ensure that all self-governing First Nations are afforded the same benefits under the Act as the governments currently listed under the defined term.

5.	Obtain FNNND’s consent before sharing any of FNNND’s information

In addition to more expansive definition of “aboriginal government,” the Act should also adopt a more robust and expansive understanding of confidentiality and consent. The Act must require government authorities to obtain FNNND’s free, prior, and informed consent prior to sharing information of and about FNNND pursuant to the Act. This approach would be consistent with our right to self-government, the OCAP® principles, and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), which has now been adopted in Canada.

6.	Work with FNNND to conduct a data inventory of all information Canada has regarding the Na-Cho Nyӓk Dun

Canada should work with FNNND to conduct a whole-of-government data inventory identifying the nature and scope of information Canada maintains regarding the Na-Cho Nyӓk Dun, and obtain FNNND’s consent for how Canada is handling and maintaining this information moving forward. A consent-based approach to Canada’s use and disclosure of information about Indigenous peoples is the best way to ensure compliance with the word and spirit of UNDRIP. FNNND must be fully involved in every decision regarding the collection and maintenance of information about the Na-Cho Nyӓk Dun.

7.	Provide capacity support for FNNND to undertake this information governance work with Canada and internally

The collaborative, painstaking work required to implement the above recommendations will require significant time and resources. FNNND requires long-term funding and capacity support to ensure FNNND can engage Canada as partners review of Canada’s information governance system. FNNND also requires capacity support to improve upon FNNND’s own privacy and information governance laws and infrastructure. FNNND seeks to ensure our participation in this work with Canada is meaningful and requires resources to that end.

Conclusion

FNNND thanks TBS for this opportunity to share our comments and concerns regarding the Act, and for hosting the helpful information session on the review process on April 27, 2022. This first full review of the Act since Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, came into force in 2019 is an exciting opportunity to improve the Act and its processes. We look forward to continuing to work with Canada as it undertakes this important

5	Access to Information Act, RSC 1985, c A-1, s 13.

review process as well as its complementary efforts to modernize the Privacy Act and the
Personal Information Protection and Electronic Documents Act.

We expect our comments to be given serious consideration, and look forward to continuing to participate in this process. Please let us know if you have any questions or require additional information about this submission.

Mussi Cho,

Chief Simon Mervyn
First Nation of Na-Cho Nyäk Dun

cc:	First Nation of Na-Cho Nyäk Dun Council

Adrienne Hill, Manager, Implementation and Governance, FNNND

The Honourable David Lametti, Minister of Justice and Attorney General of Canada, Department of Justice Canada

Jennifer Schofield, Executive Director of the Information and Privacy Protection Division, Treasury Board of Canada Secretariat

Karin Fuller, Team Lead, Outreach and Engagement, Access to Information Review, Treasury Board of Canada Secretariat