Assembly of First Nations		 Assemblée des Premières Nations 

55 Metcalfe Street, Suite 1600 Ottawa, Ontario K1P 6L5
Telephone: 613-241-6789 Fax: 613-241-5808
www.afn.ca

55, rue Metcalfe, Suite 1600 Ottawa (Ontario) K1P 6L5
Téléphone: 613-241-6789 Télécopieur: 613-241-5808 www.afn.ca

October 11, 2022

Graham Flack
Secretary of the Treasury Board 90 Elgin Street
Ottawa, Ontario K1A 0R5 Dear Mr. Flack:
On behalf of the Assembly of First Nations (AFN), I write to you in response to the Treasury Board Secretariat’s invitation for the AFN to provide a written submission to the ongoing Access to Information review.

Attached to this letter are documents that outline how Canada’s information management regime—of which the Access to Information Act is but one component— directly undermines First Nations rights and priorities. We ask that these documents and the attached summary be used to inform TBS’ Access to Information review. I would also bring to your attention that the Union of British Columbia Indian Chiefs will be completing a discussion paper on October 31, 2022, that would be useful in your review. I encourage you to extend your deadline to accommodate this submission.

Any review of privacy legislation must comply with the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). While the Treasury Board’s current outreach and information sessions are welcome, they do not satisfy the duty to consult and the requirements of free, prior and informed consent. Under the United Nations Declaration on the Rights of Indigenous Peoples Act, the Government of Canada committed to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration” and to do so “in consultation and cooperation with Indigenous Peoples.”

Before adopting and implementing legislative or administrative measures that may affect First Nations, the federal government must take steps to engage directly with First Nations, whose priorities and rights are subject to the obstructive policies and practices

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of Canada’s information management regime. In addition, Canada must ensure that First Nations have adequate resources, as a review of the Act is a complex and resource-intensive effort, especially when done in consideration of other interrelated laws and policies undergoing simultaneous review (e.g. the Privacy Act).

The current legislative review, mandated under Bill C-58, An Act to Amend the Access to Information Act and Privacy Act, again raises concerns First Nations expressed prior to the enactment of Bill C-58. Bill C-58 was created unilaterally, had significant implications for access to historical documents, and failed to adequately protect the privacy of First Nations.

First Nations-in-Assembly rejected Bill C-58, even after it was amended with the intent of addressing these concerns. AFN Resolution 102/2017 Call on the Government of Canada to Withdraw Bill C-58 directed the AFN to reject Bill C-58, and for Canada to instead recognize First Nations’ rights to access information, and to consult with First Nations on any legislation—future or otherwise—that could affect their rights. AFN leadership raised these and related concerns to the Standing Senate Committee on Legal and Constitutional Affairs.

First Nations are not merely identifying challenges. These are foundational barriers to First Nations data sovereignty. Data sovereignty is an element of our Inherent, Treaty and constitutional rights to self-determination. Ongoing sovereignty issues transcend individual Acts, such as the Access to Information Act, the Privacy Act and the Statistics Act.

Any legislative changes proposed for Canada’s information management regime must promote First Nations data sovereignty and self-determination while also protecting community and individual First Nations data. Proposed means for achieving these aims have been variously advanced by First Nations in legal analyses and other advocacy documents. All of these documents require careful consideration and action, as they remain not only valid but essential to ensuring the current review is responsive to First Nations’ needs.

Enclosed you will find copies of the following documents, which together are a meaningful subset of First Nations ongoing advocacy in the pursuit of data sovereignty:

•	AFN Resolution 102/2017, Call on the Government of Canada to Withdraw Bill C-58
•	Impaired Access—formal submission in October 2017 to the Standing Committee on Access to Information, Privacy and Ethics (ETHI).
•	FNIGC Discussion Paper: Exploration of the Impact of Canada’s Information Management Regime on First Nations Data Sovereignty [2022]
•	Union of B.C. Indian Chiefs; National Claims Research Directors; Indigenous Bar Association: Legal Review of Bill C-58.

I look forward to future discussions on how First Nations concerns, and recommendations will be reflected and incorporated into your ongoing review.

Sincerely,

Janice Ciavaglia
Chief Executive Officer