Protecting Confidential Indigenous Knowledge under the Impact Assessment Act

Supplementary Guidance to Indigenous Knowledge in Impact Assessment: Procedures for Working with Indigenous Communities

DISCLAIMER: This document provides initial guidance to understand obligations for managing confidential Indigenous knowledge under the Impact Assessment Act (IAA) and the process for submitting confidential Indigenous knowledge to the Impact Assessment Agency of Canada (the Agency). This document may change as a result of ongoing engagements with Indigenous peoples and policy work on Indigenous knowledge.

1. Purpose

This guidance is by the Impact Assessment Agency of Canada (the Agency) for managing confidential Indigenous knowledge received during an impact assessment, a regional or a strategic assessment under the Impact Assessment Act (IAA). While Indigenous knowledge should be considered in assessments led by other federal authorities of non-designated projects on federal lands and outside Canada, this interim guide only applies to impact assessment of designated projects, regional and strategic assessments. Regional and strategic assessments under the IAA may not be tied to any particular proponent. Guidance directed towards proponents may be applicable to Agency staff, committees and any other parties involved in a regional or strategic assessment, unless outlined otherwise in regional and strategic assessment policy and guidance. Due to their independence from the Agency, review panels and regional or strategic assessment committees may develop other procedures for managing confidential Indigenous knowledge.

2. Introduction

This guidance should be interpreted and applied in conjunction with the other sections of the Practitioner's Guide to Federal Impact Assessments under the Impact Assessment Act. In particular, the reader should refer to the Guidance on Indigenous Knowledge in Impact Assessment: Procedures for Working with Indigenous Communities, in section 3.6 of the Practitioner's Guide.

Under the IAA, consideration of Indigenous knowledge is required where Indigenous knowledge is provided. Transparency is important in impact, regional and strategic assessments, as is protecting Indigenous knowledge from unauthorized disclosure when it is provided in confidence. The Agency has developed this interim guidance to meet its obligations not to disclose confidential Indigenous knowledge and to promote good governance practices with respect to the management of any confidential Indigenous knowledge received under the IAA.

Confidential Indigenous knowledge provided under the IAA that cannot be disclosed under subsections 119(1) and (2) of the IAA is also protected from public disclosure via access to information requests under the Access to Information Act. Subject to certain exceptions, Indigenous knowledge provided in confidence to the Agency, a review panel, the Minister, or a committee established to conduct a regional or strategic assessment cannot be disclosed without written consent (see section 5, “Exceptions”, below).

3. Protecting confidential Indigenous knowledge

Indigenous communitiesFootnote1 have their own Indigenous knowledge protocols that should be followed for the sharing or use of Indigenous knowledge by others, while ensuring that the requirements of the IAA are met. If no protocols specific to Indigenous knowledge (or traditional knowledge) are in place, the Agency, review panel, regional or strategic assessment committee will discuss entering into an agreement with the Indigenous community, in the instance where the community wishes to provide confidential Indigenous knowledge.

When Agency staff begin working with an Indigenous community in the Planning phase for a potential impact assessment, they will make the community aware of confidentiality considerations from the beginning. Prior to an Indigenous community sharing knowledge with the Agency, the Agency will work with the community to understand and agree upon the ways in which confidential Indigenous knowledge may be provided, considered and shared with the Agency. This applies to both written and oral transmissions of Indigenous knowledge. Ideally, no confidential Indigenous knowledge would be given until an agreement has been reached.

This discussion with the Agency may include consideration of:

4. Confidentiality Agreements and Undertakings

Where the Agency and an Indigenous community have reached an understanding on the provision of confidential Indigenous knowledge, this will be set out in a confidentiality agreement or an exchange of letters. Other parties (for example, specific Agency staff or individuals working for the proponent) who will have access to the confidential Indigenous knowledge and who are granted permission by the community or knowledge holder, will enter into a confidentiality undertaking, when it is needed.

Confidentiality agreements and confidentiality undertakings should address the following:

5. Roles of Other Parties

It is best practice for proponents to begin engaging Indigenous communities and discussing Indigenous knowledge prior to submitting the initial Project Description; thus the approach and timing of addressing confidentiality differs for proponents. Also, proponents and Indigenous communities may agree on ways to prevent sensitive details from being disclosed within the open impact assessment process; more detail is provided in section 5.1.

Review panels, regional and strategic assessment committees have unique roles under the IAA (see section 5.2). Accordingly, these bodies may develop their own procedures for confidentiality. Sections 3.0 and 4.0 serve as a suggestion of best practices for them.

5.1. Indigenous communities working with proponents

Indigenous communities may share confidential Indigenous knowledge directly with proponents and may enter into separate confidentiality arrangements with proponents. This guidance does not apply to such agreements, but may provide useful considerations. It is helpful for Indigenous communities to provide confidential Indigenous knowledge directly to proponents, especially where the Indigenous knowledge is site-specific and could inform project design or mitigation.

Each Indigenous community can also discuss with the proponent whether their Indigenous knowledge can be generalized or summarized prior to being included in the proponent’s submission (for example, in the Impact Statement), so that the confidential details are not submitted to the Agency or review panel. For example, this can be done by not disclosing exact locations of sites where plants are harvested, while still using that Indigenous knowledge in a way that can be shared publicly (e.g. there are harvesting sites in a general area and measures should be developed to avoid disturbing those areas).

Should the Indigenous community wish that confidential knowledge not be revised to remove the sensitive details, and wishes that the Agency or review panel have access to the confidential Indigenous knowledge, then the Indigenous community in question and the proponent must discuss the management of the confidential Indigenous knowledge with the Agency or review panel.

5.2. Review Panels, Regional and Strategic Assessment Committees

If the Indigenous community wishes to provide confidential Indigenous knowledge to a review panel, regional or strategic assessment committee, the community may consider seeking to enter into a confidentiality agreement, but the review panel or committee holds discretion as to the approaches for doing so.

Review panels hold hearings as part of the impact assessment process. If a knowledge holder or Indigenous community wishes to provide confidential Indigenous knowledge orally, the community or knowledge holder should request that a review panel hold an in-camera (closed) hearing session that would only be open to those party to the confidentiality agreement (and closed to the general public and other participants in the impact assessment). Any such requests would follow procedures developed by the review panel and the confidentiality agreement(s) entered into between the review panel and Indigenous community. Similarly, if an Indigenous community wishes to provide confidential Indigenous knowledge orally to a regional or strategic assessment committee, a request for a confidential process should be made.

6. Exceptions

There are three exceptions to the obligation not to disclose confidential Indigenous knowledge without written consent. These exceptions under subsection 119(2) of the IAA may be applied where Indigenous knowledge is provided in confidence to the Agency, review panel, committee or Minister. It must be ensured that Indigenous communities are made aware of these exceptions when the community is considering whether to provide confidential Indigenous knowledge. The Agency will always consult the Indigenous community prior to disclosing confidential Indigenous knowledge under an exception.

Under this subsection of the IAA, confidential Indigenous knowledge may be disclosed if:

a) it is publicly available

Prior to disclosing confidential Indigenous knowledge under this exception, the Agency must discuss with the Indigenous community what knowledge should be considered to be publicly available. If the Agency intends to proceed with disclosure, it will consult the community and provide the community with an opportunity to respond.

b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings

Natural justice and procedural fairness place decision-makers under a legal duty to afford interested persons a fair opportunity to participate in the decision-making process, before any action is taken that is detrimental to their interests. The content of this legal duty will depend on the particular context and may result in certain parties having a right to access confidential Indigenous knowledge being relied on to make a decision under the IAA.

For example, the proponent could be given access to confidential Indigenous knowledge so that the proponent may know the evidence used to make a decision about their project. Other Indigenous communities may have a right to access confidential Indigenous knowledge if a decision made on the basis of the specific details of the Indigenous knowledge has the potential to affect the exercise of their Aboriginal or Treaty rights.

If the Agency, review panel, committee or Minister is of the opinion that disclosure of confidential Indigenous knowledge is necessary for procedural fairness and natural justice, before making a disclosure, it must consult the Indigenous community and the person or entity to whom it is proposed to be disclosed about the scope of the proposed disclosure and any potential conditions on the disclosure. Binding conditions may be imposed on the person or entity to whom the Indigenous knowledge is disclosed.

When confidential Indigenous knowledge needs to be disclosed in litigation, the Agency undertakes to notify the Indigenous community that provided the knowledge in question. It will indicate what information will be disclosed, why it must be disclosed and describe the legal proceedings in question. Even where Indigenous knowledge is disclosed to certain persons or entities under this exception, it would still be kept confidential from others. Also, any disclosure will be the minimum amount necessary for procedural fairness and natural justice.

c) the disclosure is authorized in the prescribed circumstances

“Prescribed circumstances” refers to further exceptions that would be set out in regulations. There are no such regulations currently in place or under development that authorize disclosure of confidential Indigenous knowledge.

7. Reporting

In an IA report, regional or strategic assessment report, the Agency, review panel or committee will describe how it took into account and considered any Indigenous knowledge received in the assessment.

The Agency, review panel or committee will follow the practices and procedures required by confidentiality agreements that apply to them, while also meeting the requirements of the IAA.

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