Guidance: Protecting Confidential Indigenous Knowledge under the Impact Assessment Act

This guidance is to be interpreted and applied in conjunction with other sections of the Practitioner’s Guide to Federal Impact Assessments, in particular, Guidance on Indigenous Knowledge under the Impact Assessment Act: Procedures for Working with Indigenous Communities. The reader should also refer to Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions on the Agency’s website.

1. Purpose

This guidance by the Impact Assessment Agency of Canada (the Agency) is for the management of confidential Indigenous Knowledge received during an impact assessment, a regional assessment or a strategic assessment under the Impact Assessment Act (IAA).

The Agency acknowledges that it is an honour to receive Indigenous Knowledge from communities and knowledge holders, and is committed to upholding the confidentiality of such information received in confidence. Under the IAA, when an Indigenous community specifies that they are providing specific Indigenous Knowledge in confidence, then that Indigenous Knowledge must be treated as confidential. This document provides guidance for practitioners to meet their confidentiality obligations under the IAA and promote good governance practices for the management of Indigenous Knowledge. Under the IAA, consideration of Indigenous Knowledge is mandatory when Indigenous Knowledge is provided.

2. Introduction

The Agency respects Indigenous communities’ and knowledge holders’ ownership of their knowledge, and works with them to follow their protocols for receiving, using, storing, and sharing information. Confidential Indigenous Knowledge provided under the IAA will not be published on the Canadian Impact Assessment Registry, and is also protected from public disclosure via access to information requests under the Access to Information Act. Subject to certain exceptions (see section 7 below), Indigenous Knowledge provided in confidence to the Agency, a review panel, the Minister of Environment and Climate Change, or a committee established to conduct a regional or strategic assessment, cannot be disclosed without written consent.

While Indigenous Knowledge should be considered in assessments led by other federal authorities of non-designated projects on federal lands and outside Canada, this guide applies only to the impact assessment of designated projects and to regional and strategic assessments. Since regional and strategic assessments under the IAA are not 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. Independent review panels and regional or strategic assessment committees are expected to take this guidance into consideration, but may develop their own procedures for managing confidential Indigenous Knowledge. Notably, this may be necessary when the review panel is jointly held or integrated with another jurisdiction.

3. Protecting confidential Indigenous Knowledge

Section 22 of the IAA states that consideration of Indigenous Knowledge provided in an assessment is mandatory. In addition, when an Indigenous community specifies that it is providing Indigenous Knowledge in confidence, it must be treated as confidential (section 119).

When Agency staff begin working with an Indigenous community during the Planning phase of a potential impact assessment, they make the community aware of confidentiality considerations in advance of any knowledge sharing. (This includes mention of the exceptions described in section 7 below.) For the purposes of this document, the term "Indigenous community" refers to a group or collective of Indigenous Peoples that the Government of Canada understands to represent the rights holders that could be affected by a project.

Generally, Indigenous communities have their own established protocols that should be followed for the sharing and use of Indigenous Knowledge by others. If, however, no protocol is in place, the Agency, review panel, regional or strategic assessment committee will agree an approach with the community for handling confidentiality in both written and oral transmissions of information. No confidential Indigenous knowledge should be given until such an approach has been formally agreed.

The Agency may inform the Indigenous community that detailed confidential information may not be necessary for the assessment and may encourage the community to summarize or generalize the information before providing it to the Agency so that the confidential information is not included. For example, specific locations of burial sites or sacred sites may not need to be disclosed when general information regarding their presence in the vicinity would be sufficient for the assessment. Not disclosing the confidential details may be a safeguard for the Indigenous community’s way of life, culture and interests.

In the instance where a community wishes to provide confidential Indigenous Knowledge, the Agency will document the agreed upon approach, which will be shared with the Indigenous community for their records.

Overall, discussions with the Agency, review panel or committee may include consideration of:

• the nature of the Indigenous Knowledge to be shared. In other words, the specific parts of that information that result in the community wishing to keep it confidential;
• depending upon the nature of the Indigenous Knowledge, whether the community wishes to summarize or generalize the Indigenous Knowledge so the sensitive details are not provided and the summary of the Indigenous Knowledge can be shared openly for the assessment, without need for confidentiality provisions;
• the specific requirements of the IAA regarding the confidentiality of Indigenous Knowledge, including exceptions where Indigenous Knowledge may be disclosed to certain parties (as set out in section 119);
• what could be shared with certain parties (e.g., the proponent, federal authorities) and the circumstances under which confidential Indigenous Knowledge may be disclosed, even if the exceptions under section 119 do not apply (e.g., where the parties agree it can be helpful to share the confidential Indigenous Knowledge to inform proponent project plans);
• the consequences of an Indigenous community’s withdrawal of its confidential Indigenous Knowledge (i.e. the confidential knowledge would not be considered in the impact assessment process and would not influence the analysis and decision of the Minister or cabinet); and
• the Agency’s information management practices for confidential Indigenous Knowledge.

4. Approach to confidentiality between the Agency and Indigenous communities

As mentioned in section 3, when the Agency and an Indigenous community reach an agreed approach for the provision of confidential Indigenous Knowledge, the Agency records it and shares the document with the community for their records. This formal documentation of the approach addresses the following:

• the roles and responsibilities of each party;
• the conditions for sharing confidential Indigenous Knowledge with other parties;
• limitations on who can access the confidential Indigenous Knowledge provided:
  • only Agency staff who need to see the confidential Indigenous Knowledge for the purposes of the project will have access to it;
  • the Agency will not share the confidential Indigenous Knowledge with any other party, unless the Indigenous community or Knowledge Holder requests that the Agency share it (or grants access in response to a request);
• information management procedures for the confidential knowledge provided;
• whether a non-confidential summary or redacted version of the Indigenous Knowledge could be created and shared with the public;
• when applicable, a summary of understandings with the proponent, including the Indigenous community’s consent to the sharing of confidential Indigenous Knowledge;
• any conditions informing the application of the exceptions provided under subsection. 119 of the IAA (detail in section 7 below);
• how the confidential Indigenous Knowledge may be reflected in the Impact Assessment Report; and other relevant documents such as the decision statement and/or reasons for determination,
• whether and how the confidential Indigenous Knowledge may be used in monitoring and follow-up programs.

Because confidential lndigenous Knowledge is legally protected by the IAA, non-disclosure agreements (also known as confidentiality agreements) are not required. However, the Agency may enter into a confidentiality agreement at the request of the Indigenous community.

5. Review panels, regional and strategic assessment committees

Review panels, regional and strategic assessment committees have unique roles under the IAA. Accordingly, these bodies may develop their own confidentiality procedures, in which case sections 3 and 4 above serve as best practices and the procedures developed are published on the project assessment or regional assessment web page of the Canadian Impact Assessment Registry.

In cases where the Indigenous community decides to provide confidential Indigenous Knowledge to a review panel (or a regional or strategic assessment committee), the panel or committee must adhere to IAA provisions, including the obligation to keep confidential any Indigenous knowledge provided in confidence. The review panel or committee should give due consideration to the Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions. The review panel or committee holds discretion as to the approach for handling confidential Indigenous Knowledge that is not set out in the IAA.

Processes for providing confidential Indigenous Knowledge orally

Review panels develop hearing procedures and hold public hearings as part of the impact assessment process. If a knowledge holder or Indigenous community wishes to provide confidential Indigenous Knowledge orally during a public hearing, the community or knowledge holder should request an in-camera (closed) hearing session. Any such requests would adhere to procedures developed by the review panel in consultation with the Indigenous community. In consideration of procedural fairness, a review panel may determine that other parties, such as the proponent, may have the right to participate in the in-camera session or access the knowledge. The in-camera hearing session would, however, be closed to the general public and other participants in the impact assessment. Further, information shared at an in-camera session is not published on the Canadian Impact Assessment Registry.

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 following any procedures developed by the committee.

6. Roles of proponents

It is best practice for proponents to engage Indigenous communities and discuss Indigenous Knowledge prior to submitting the Initial Project Description. Among other benefits, early engagement can opportunely inform project design and decisions about what should be included in baseline studies. Thus, the approach and timing of addressing confidentiality may need to be done earlier by proponents.

Indigenous communities may choose to share confidential Indigenous Knowledge directly with proponents and may enter into confidentiality arrangements with them that are separate from those between the community and the Agency. It is often helpful when Indigenous communities provide confidential Indigenous Knowledge directly to proponents, especially if it is site-specific and could inform the project design or mitigation measures.

As mentioned in section 3, in sharing Indigenous Knowledge with the Agency, Indigenous communities may consider ways to protect Indigenous Knowledge by generalizing or summarizing information prior to it being shared, so that the sensitive details are not included. Similarly, a community may decide to share confidential details exclusively with the proponent (for example, if sensitive details are important to inform the project design). The information would then be generalized or summarized to protect confidential details from public disclosure in the proponent’s Impact Statement. In this case, these details would not be 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).

The Indigenous community may decide that confidential Indigenous knowledge not be revised to remove the sensitive details, and may direct that the proponent provide the confidential Indigenous Knowledge to the Agency, panel or committee on their behalf. In this situation, as listed in section 4, documentation of the approach to confidentiality would additionally need to include a summary of understandings with the proponent, including the Indigenous community’s consent to the sharing of confidential Indigenous Knowledge.

7. Exceptions that may allow the disclosure of Indigenous Knowledge

Under the IAA there are three exceptions to the obligation not to disclose confidential Indigenous Knowledge without written consent. These exceptions under subsection 119 of the IAA may be applied where Indigenous Knowledge is provided in confidence to the Agency, a review panel, a committee or the Minister. Indigenous communities must be made aware of these exceptions when considering whether to provide confidential Indigenous Knowledge and before it is shared. The Agency will consult the Indigenous community prior to disclosing the confidential Indigenous Knowledge under an exception.

Under subsection 119 (2) of the IAA, confidential Indigenous Knowledge may be disclosed if any of the following circumstances applies.

1. It is publicly available. Prior to disclosing confidential Indigenous Knowledge under this exception, the Agency will discuss with the Indigenous community what Knowledge should be considered to be publicly available. If the Agency intends to proceed with disclosure, it will notify the community and provide the community with an opportunity to respond.
2. 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 legal duty to afford interested persons a fair opportunity to participate in the 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 its 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 own 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, it must consult before making a disclosure. These consultations will include the Indigenous community and the person or entity to whom the confidential Indigenous Knowledge 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 for use in legal proceedings (e.g., 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 the public and from interveners in the legal proceedings who do not need to see the confidential Indigenous Knowledge. Also, any disclosure will be the minimum amount necessary for procedural fairness and natural justice.
3. 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 the disclosure of confidential Indigenous Knowledge.

8. Reporting

In the Assessment Report, the Agency, review panel or committee must describe how it considered any Indigenous Knowledge received in the assessment. Prior to publication, the Indigenous community or Knowledge Holder who shared their information should have an opportunity to comment on how their Indigenous Knowledge, or a summary of their Indigenous Knowledge, is presented within the report.

The Agency, review panel or committee must meet all requirements of the IAA and adhere to any documentation or agreement related to setting out procedures for the use, information management and sharing of confidential Indigenous Knowledge.