SUBMISSIONS TO THE TREASURY BOARD OF CANADA SECRETARIAT RESPECTING THE REVIEW OF THE ACCESS TO INFORMATION ACT

December 18, 2020

These submissions focus on the need to modernize the Access to Information Act (ATIA) in order to put in place for Aboriginal governments and Aboriginal organizations that are exercising governmental functions the same protections for their confidential information and intergovernmental communications that are available to other governments and their agencies under the ATIA. These protections are currently in place for Aboriginal governments and Aboriginal organizations that are exercising governmental functions in most provincial and territorial access to information legislation. The ATIA lags behind its provincial counterparts in recognizing Aboriginal governments and these Aboriginal organizations and ensuring adequate protection for their legislative and other governmental functions.

The ATIA does not provide sufficient protection for Aboriginal governments and Aboriginal organizations working with the federal government and its institutions in two ways:

The ATIA does not adequately and fairly protect information provided in confidence by Aboriginal governments and Aboriginal organizations to the federal government and its institutions.

The ATIA does not adequately protect communications between Aboriginal governments and Aboriginal organizations and the federal government and its institutions.

Proposed Amendments

Two amendments to the ATIA are proposed to address the inadequate protections for Aboriginal governments and Aboriginal organizations that are exercising governmental functions:

In order to adequately and fairly protect information provided in confidence by Aboriginal governments and Aboriginal organizations to the federal government and its institutions, section 13(3) of the ATIA should be deleted and a defined term for “Aboriginal government” should be included in section 3 of the ATIA. The definition should be a broader, inclusive definition that includes all Aboriginal governments and Aboriginal organizations that are exercising governmental functions. For example:

Aboriginal government means an Aboriginal organization exercising governmental functions;
OR
Aboriginal government means an Aboriginal organization exercising governmental functions
including, but not limited to,
the council of a band within the meaning of subsection 2(1) of the Indian Act;
a tribal council;

an Aboriginal group that is a party to a treaty, land claims agreement or self- government agreement with Canada or with a province, or an entity established under, or as a result of, such a treaty or agreement;
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement or treaty with the Government of Canada; or
an organization established to negotiate on matters related to aboriginal or treaty rights under section 35 of the Constitution Act, 1982.

In order to adequately protect communications between Aboriginal governments and Aboriginal organizations that are exercising governmental functions and the federal government and its institutions, the ATIA should be amended to include the following new language:

x. The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to relations between the Government of Canada or a government institution and an Aboriginal government.1

These two proposed amendments would achieve a number of key objectives for Aboriginal governments (and Aboriginal organizations that are exercising governmental functions2) across Canada, including:

Recognize Aboriginal governments to be on the same footing as all other governments. Aboriginal governments are engaged in their own governmental law and policy development under a number of frameworks. The ATIA provides all other governments with the necessary protection for their law and policy development, while excluding Aboriginal governments.

Protect intergovernmental communications. Canada has committed to a “nation to nation” relationship with Aboriginal governments and supports sectoral Aboriginal governance under a number of legislative frameworks. However, it has omitted the vast majority of Aboriginal governments from
the definition of “aboriginal governments” in the ATIA and has not recognized the need to protect federal-aboriginal governmental relationships. These omissions put the confidential information and communications of Aboriginal governments at risk.

Support the role of government and its Institutions. Canada and its institutions carry on vital work with Aboriginal governments. The amendments are needed to support the practical “on the ground” ability of those institutions to carry out their mandates. The ATIA puts these relationships under the cloud of possible disclosure and constrains the flow of communications and sharing of information relevant to establishing and maximizing benefits for Aboriginal communities.

Align with provincial and territorial legislation. Most provincial and territorial access to information legislation recognizes all Aboriginal governments and, in many cases, a broad range of Aboriginal organizations. As federal legislation, the ATIA should provide at least the same level of recognition and protection to Aboriginal governments.

1 Please note that this proposal uses the broader defined term for Aboriginal government proposed above.
2 For the remainder of this Submission, reference to Aboriginal government will include Aboriginal organizations that are exercising governmental functions.

The following two documents are attached:

A detailed review and analysis of the proposed amendments.
A table providing an overview of provincial and territorial protection for Aboriginal governments.

The First Nations Tax Commission would be pleased to provide any additional information or analysis that would assist the Review, on request.

ATTACHMENT 1
To the First Nations Tax Commission Submissions to the Treasury Board of Canada Secretariat
Respecting the review of the Access to Information Act

Background

 Role of the First Nations Tax Commission

The First Nations Tax Commission (the “FNTC”) is a shared governance institution established under the First Nations Fiscal Management Act (the “FMA”). The FNTC’s mission is to help First Nation governments across Canada build and maintain fair and efficient property taxation regimes. These First Nation governments include Indian Act Bands scheduled to the FMA, as well as Indian Act Bands implementing taxation under section 83 of the Indian Act. In addition, the FNTC engages with First Nation delegates exercising delegated taxation powers under the FMA. Pursuant to its mandate, the FNTC engages with First Nation governments (and their delegates) as a core aspect of its day to day operations and in the course that work receives confidential information from First Nations and has communications with First Nations to support their tax jurisdictions. This confidential information may include First Nation draft legislation, First Nation financial information (for example, in support of annual budgeting), First Nation policy documents, and advice obtained by a First Nation from its legal counsel. Communications include exchanges between the FNTC and a First Nation government to support First Nation tax systems, including policy issues, tax administration issues, economic development issues, and legal issues.

 Application of the ATIA to Aboriginal Governments

Aboriginal governments and Aboriginal organizations and Aboriginal organizations that are exercising governmental functions3 are not subject to the ATIA. However, their confidential and potentially sensitive information and communications can be obtained through access requests made to government, and government institutions such as the FNTC. Aboriginal governments work closely with government departments and government institutions, and through that work their records are shared and communications generated that include confidential, sensitive and potentially prejudicial information for the Aboriginal government. In short, requests for Aboriginal government records that cannot be obtained through a request to the Aboriginal government, may be accessible through a “back door” request to government or a government institution that is subject to the ATIA. Such requests are possible because the ATIA does not have the necessary provisions in place to recognize First Nation

3 In this Attachment, reference to Aboriginal government will include Aboriginal organizations that are exercising governmental functions.

governments and provide protection for their governmental records equivalent to the protections afforded to other governments.

Proposed Amendments

It is submitted that the ATIA does not provide sufficient protection for Aboriginal governments working with the federal government and its institutions in two key ways:
First, the ATIA does not adequately and fairly protect information provided in confidence by Aboriginal governments and related organizations to the federal government and its institutions.
Second, the ATIA does not adequately protect communications between Aboriginal governments and the federal government and its institutions.

It is submitted that two amendments are required in order to ensure First Nation governments have the same protections for their confidential information and communications as are afforded to other governments.

AMENDMENT #1: The definition of “aboriginal government” in section 13(3) of the ATIA should be deleted and a broader definition included in section 3 of the ATIA.

 The Scope of Existing Section 13

Section 13(1) of the ATIA recognizes the importance of protecting confidential information obtained from other governments by providing mandatory protection. Under this provision, the head of a government institution shall refuse to disclose any record obtained in confidence from other named governments and in some cases their institutions. Such records can only be disclosed with consent, or where the other government makes the information public.

The governments named in section 13 include the federal government as well as provincial and local governments, foreign states, and “aboriginal governments”. However, the definition of “aboriginal governments” in subsection 13(1) includes only specifically-named treaty and self-governing governments, First Nations as defined in section 2 of the Anishinabek Nation Education Agreement Act, the council of a participating First Nation as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act, and Cree First Nations as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act.

By failing to recognize and include the over 600 Indian Act Bands in the definition of “aboriginal governments,” these governments have no protection for their confidential records provided to the
federal government and its institutions. This omission means that First Nation governments are denied the same recognition and protections that the ATIA gives to all other governments, including municipalities, putting confidential First Nation records and communications at risk despite those First Nations not being subject to the ATIA.

The definition of “aboriginal governments” also fails to include the many Aboriginal organizations exercising governmental functions in Canada. Significant work is being undertaken by Tribal Councils, as well as by First Nation corporations, authorities and other entities working for or on behalf of Aboriginal governments to support their governance in areas that include legislative development, treaty and self- government negotiations, health, social well-being, economic development, and infrastructure.

 The Limitations of Section 20 of the ATIA

It is recognized that some confidential Aboriginal government information may fall within categories of third party records exempt from disclosure under section 20(1) of the ATIA. However, many government records will not fall squarely within those categories because they are not financial, commercial, scientific or technical in nature, or because disclosure of these records may not reasonably be expected to prejudice the Aboriginal government’s competitive position or interfere with any contractual or other negotiations. As with other governments, Aboriginal government records will include confidential draft legislation and other documents that should not be disclosed; section 13 is intended to capture precisely these types of governmental records, while section 20 is generally aimed at the records of non-governmental entities.

 Aligning with Provincial and Territorial Access to Information Legislation

A review of provincial access to information legislation indicates that most provincial legislation adopts a broad definition of aboriginal governments, one that recognizes all “Indian Bands” under the Indian Act as well as Aboriginal organizations. These Aboriginal governments and organizations are recognized and afforded the same protections provided to other governments.

Specifically, British Columbia, Alberta, Manitoba, Ontario, Nova Scotia, New Brunswick, the Yukon, Nunavut and the Northwest Territories recognize Indian Act bands as aboriginal governments and provide protections for their records. Further, all of these provinces and territories except New Brunswick include the same protections for certain Aboriginal organizations. For example, in Alberta section 21(1) of the Freedom of Information and Protection of Privacy Act provides protection for “aboriginal organizations,” which includes Indian Act bands and other organizations formed to negotiate or implement treaties or self-government agreements. The protections include information supplied in confidence as well as for information that could harm relations with the provincial government, as follows:

Disclosure harmful to intergovernmental relations
21(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to:
harm relations between the Government of Alberta or its agencies and any of the following or their agencies:
…
an aboriginal organization that exercises government functions, including:
the council of a band as defined in the Indian Act (Canada), and
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement with the Government of
Canada,
reveal information supplied, explicitly or implicitly, in confidence by a government, local government body or an organization listed in clause (a) or its agencies.

The Ontario Freedom of Information and Protection of Privacy Act also recognizes a broad scope of “aboriginal community” which includes Indian Act bands. These provisions protect the information of an Aboriginal organization or community received in confidence, and records the disclosure of which could prejudice the conduct of relations between the two governments, as follows:

Relations with Aboriginal communities
15.1 (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
prejudice the conduct of relations between an Aboriginal community and the government of Ontario or an institution; or
reveal information received in confidence from an Aboriginal community by an institution.

Definition
In this section, “Aboriginal community” means,
a band within the meaning of the Indian Act (Canada),
an Aboriginal organization or community that is negotiating or has negotiated with the Government of Canada or the Government of Ontario on matters relating to,
Aboriginal or treaty rights under section 35 of the Constitution Act, 1982, or
a treaty, land claim or self-government agreement, and
any other Aboriginal organization or community prescribed by the regulations.

An overview of provincial and territorial protection for Aboriginal governments and Aboriginal organizations is attached as Attachment 2.

In contrast with the provincial and territorial recognition of First Nation governments, Canada has narrowly defined “aboriginal government” to exclude over 600 First Nations, many of whom are exercising government powers under sectoral legislative frameworks such as the FMA and the First Nations Land Management Act, and many of whom are in treaty and self-government negotiations. The ATIA provides no protection for the confidential information or communications of Aboriginal organizations. Although Aboriginal governments are not subject to the ATIA, their confidential information and communications can be captured and risks disclosure through access requests to federal institutions.

 Proposed Amendment to Section 13

To address this omission, section 13(3) of the ATIA should be deleted and a defined term for “Aboriginal government” should be included in section 3 of the ATIA. The definition should be included in section 3 because the defined term will be used in the proposed amendment set out below. The definition should be a broader definition that includes all Aboriginal governments and Aboriginal organizations that are exercising governmental functions. For example:

Aboriginal government means an Aboriginal organization exercising governmental functions;
OR
Aboriginal government means an Aboriginal organization exercising governmental functions
including, but not limited to,
the council of a band within the meaning of subsection 2(1) of the Indian Act;
a tribal council;
an Aboriginal group that is a party to a treaty, land claims agreement or self- government agreement with Canada or with a province, or an entity established under, or as a result of, such a treaty or agreement;
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement or treaty with the Government of Canada; or
an organization established to negotiate on matters related to aboriginal or treaty rights under section 35 of the Constitution Act, 1982.

AMENDMENT #2: Add a new provision to the ATIA to protect intergovernmental relations between a government institution and an aboriginal government.

In addition to amending the scope of “aboriginal government” to protect confidential information supplied by First Nation governments, a further amendment should be made in order to protect communications between an Aboriginal government and government and its institutions in appropriate situations.

Government and its institutions not only receive confidential information from Aboriginal governments, but also engage with those governments on a broad range of financial, legal and policy matters, and some of these communications will generate records that may not be appropriate to disclose through an access request. Aboriginal governments need the same protections from disclosure that are in place for other governments and their institutions.

 The Scope of Existing Protections

Section 14 of the ATIA currently enables protection of information the disclosure of which could reasonably be expected to be injurious to federal-provincial affairs. This provision provides protection for intergovernmental relationships at a federal-provincial level and does not apply to any Aboriginal governments.

Section 21(1) protects advice or recommendations developed by or for the government or a government institution. This provision protects advice or recommendations given to government and its institutions, and advice developed by the government or its institutions, subject to certain limitations.
This provision does not protect advice given by the government institution to Aboriginal governments, or the communications between them that relate to the Aboriginal government’s affairs.

 Aligning with Provincial and Territorial Access to Information Legislation

Many provinces have recognized the need for an exemption from disclosure to protect the relationship between government (and its agencies) and Aboriginal governments by enabling a public body to refuse disclosure of records that could reasonably be expected to harm relations between the province and the Aboriginal government. Specifically, British Columbia, Alberta, Manitoba, Ontario, Nova Scotia, the Yukon, Nunavut and the NWT provide protections for communications with Aboriginal governments where disclosure could cause harm. The excerpts provided above from Alberta and Ontario include this protection. Section 16 of the British Columbia Freedom of Information and Protection of Privacy Act also provides this protection in paragraphs 16(1)(b) and (c), as follows:

Disclosure harmful to intergovernmental relations or negotiations
16(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to:

harm the conduct by the government of British Columbia of relations between that government and any of the following or their agencies:
…
(iii) an aboriginal government;

reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies, or
harm the conduct of negotiations relating to aboriginal self government or treaties.

“Aboriginal government” is broadly defined as “means an aboriginal organization exercising governmental functions.”

 Proposed Amendment

In order to address this omission, an amendment should be made to the ATIA to include the following new language:

x. The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to relations between the Government of Canada or a government institution and an Aboriginal government.

ATTACHMENT 2
To the First Nations Tax Commission Submissions to the Treasury Board of Canada Secretariat
Respecting the review of the Access to Information Act

Provincial and Territorial Access to Information Legislation

Province/ Territory	Legislation	Applicable Provisions	
AB	Freedom of Information and Protection of Privacy Act (2000)	Disclosure harmful to intergovernmental relations
21(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to:
(a) harm relations between the Government of Alberta or its agencies and any of the following or their agencies:
the Government of Canada or a province or territory of Canada,
a local government body,
an aboriginal organization that exercises government functions, including:
the council of a band as defined in the Indian Act (Canada), and
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement with the Government of Canada,
the government of a foreign state, or
an international organization of states, or

(b) reveal information supplied, explicitly or implicitly, in confidence by a government, local government body or an organization listed in clause (a) or its
agencies.	
BC	Freedom of Information and Protection of Privacy Act (1996)	Disclosure harmful to intergovernmental relations or negotiations
16(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to:
harm the conduct by the government of British Columbia of relations between that government and any of the following or their agencies:
the government of Canada or a province of Canada;
the council of a municipality or the board of a regional district; (iii)an aboriginal government;
(iv)the government of a foreign state; (v)an international organization of states,
reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies, or
harm the conduct of negotiations relating to aboriginal self government or treaties.
Schedule 1 In this Act:
"aboriginal government" means an aboriginal organization exercising governmental
functions;	
MB	The Freedom of Information and Protection of Privacy Act (1997)	Information provided by another government to department or government agency 20(1) The head of a department or government agency shall refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by any of the following or their agencies:
the Government of Canada;
the government of another province or territory of Canada;	

		a local public body;
(c.1) the council of a band as defined in the Indian Act (Canada), or an organization performing government functions on behalf of one or more bands;
the government of a foreign country, or of a state, province or territory of a foreign country;
an organization representing one or more governments; or
an international organization of states.

Disclosure harmful to relations between Manitoba and other governments
21(1) The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to harm relations between the Government of Manitoba or a government agency and any of the following or their agencies:
a) the Government of Canada;
the government of another province or territory of Canada;
a local public body;
(c.1) the council of a band as defined in the Indian Act (Canada), or an organization performing government functions on behalf of one or more bands;
the government of a foreign country, or of a state, province or territory of a foreign country;
an organization representing one or more governments; or
an international organization of states.	
ON	Freedom of Information and Protection of Privacy Act (1990)	Relations with Aboriginal communities
15.1 (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
prejudice the conduct of relations between an Aboriginal community and the Government of Ontario or an institution; or
reveal information received in confidence from an Aboriginal community by an institution.

Definition
In this section, “Aboriginal community” means,
a band within the meaning of the Indian Act (Canada),
an Aboriginal organization or community that is negotiating or has negotiated with the Government of Canada or the Government of Ontario on matters relating to,
Aboriginal or treaty rights under section 35 of the Constitution Act, 1982, or
a treaty, land claim or self-government agreement, and
any other Aboriginal organization or community prescribed by the regulations.	
NB	Right to Information and Protection of Privacy Act (2009)	Information provided by a council of the band
19(1) The head of a public body shall refuse to disclose information to an applicant that could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence by a council of the band as defined in the Indian Act (Canada).
19(2) Subsection (1) does not apply if the council of the band consents to the disclosure or makes the information public.	
NS	Freedom of Information and Protection of Privacy Act (1993)	Intergovernmental affairs
12 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to
(a) harm the conduct by the Government of Nova Scotia of relations between the
Government and any of the following or their agencies:	

		the Government of Canada or a province of Canada,
a municipal unit or the Conseil scolaire acadien provincial,
an aboriginal government,
the government of a foreign state, or
an international organization of states;
(b) reveal information received in confidence from a government, body or organization listed in clause (a) or their agencies unless the government, body, organization or its agency consents to the disclosure or makes the
information public.	
NT	Access to Information and Protection of Privacy Act (1996)	Disclosure prejudicial to intergovernmental relations
16. (1) The head of a public body may refuse to disclose information to an applicant where the disclosure could reasonably be expected to
impair relations between the Government
of the Northwest Territories and any of the following or their agencies:
the Government of Canada or the government of a province or territory,
an aboriginal organization exercising governmental functions, including, but not limited to
a band council, and
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement or treaty with the Government of Canada,
a municipal council or other local authority,
the government of a foreign state,
an international organization of states;
prejudice the conduct of negotiations relating to aboriginal self-government or to a treaty or land claims agreement; or
reveal information received, explicitly or implicitly, in confidence from a government, local authority or organization referred to in paragraph (a)
or its agency.
Disclosure harmful to conservation
19. The head of a public body may refuse to disclose information to an applicant where the disclosure could reasonably be expected to result in damage to or interfere with the conservation of
(b) sites having an anthropological or heritage value or aboriginal cultural
significance;	
NU	Access to Information and Protection of Privacy Act (1999)	Disclosure prejudicial to intergovernmental relations
16. (1) The head of a public body may refuse to
disclose information to an applicant where the disclosure could reasonably be expected to
impair relations between the Government of the Northwest Territories and any of the following or their agencies:
the Government of Canada or a province or territory,
an aboriginal organization exercising governmental functions, including, but not limited to
a band council, and
an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement or treaty with the Government of Canada,
a municipal or settlement council or other local authority,
the government of a foreign state,
an international organization of states;	

		prejudice the conduct of negotiations relating to aboriginal self-government or to a treaty or land claims agreement; or
reveal information received, explicitly or implicitly, in confidence from a government, local authority or organization referred to in paragraph (a) or its agency.

Disclosure harmful to the conservation of heritage sites
19. The head of a public body may refuse to disclose information to an applicant where the disclosure could reasonably be expected to result in damage to or interfere with the conservation of
(b) sites having an anthropological or heritage value or aboriginal cultural
significance;	
YT	Access to Information and Protection of Privacy Act (2002)	Disclosure harmful to intergovernmental relations or negotiations
20(1) A public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to:
harm the conduct by the Government of the Yukon of relations between that Government and any of the following or their agencies:
the Government of Canada or a province or territory of Canada,
the council of a municipality,
a Yukon First Nation government or similar government established under a land claims settlement, the governing body of a band under the Indian Act (Canada), or other aboriginal authority or organization,
the government of a foreign state, or
an international organization of states;
reveal information received in confidence from a government, council or organization listed in paragraph (a) or their agencies; or
harm the conduct of negotiations relating to or arising from aboriginal self government or land claims settlements.
(3) Subsection (1) does not apply to information in a record that has been in existence for 15 or more years other than information in a record in respect of unfinished negotiations relating to aboriginal self-government
or land claims settlements.