Treasury Board President willing to amend access to information bill in response to First Nation concerns

Canada's treasury board president says he is open to amending a proposed bill to modernize federal access to information laws over First Nations' concerns it could be used to block the settling of historic claims.

New rules could make getting information more onerous for First Nations, says researchers

Treasury Board President Scott Brison makes an announcement on Parliament Hill in Ottawa on Monday, June 19, 2017, regarding Access to Information. (Sean Kilpatrick/Canadian Press )

Canada's treasury board president says he is open to amending a proposed bill to modernize federal access to information laws over First Nations' concerns it could be used to block the settling of historic claims.

Dozens of First Nations and tribal councils, from British Columbia to Quebec, have raised concerns over proposed changes, said Scott Brison. 

Those include "grave concerns" from a group of researchers called the National Claims Research Directors — sent to Brison and other Liberal ministers Monday — saying more stringent requirements could add obstacles to First Nations seeking redress for historical grievances against Canada over lost land and mishandled funds.

The act allows Canadians, for a $5 fee, to request copies of government documents. In June, the federal government introduced the first major proposed changes to the act since 1983 in Bill C-58,  including more proactive disclosure and more power to the ombudsman.

The researchers' primary concern is with a section of the bill tightening the criteria for accessing government records, which would now need to include the specific subject matter, type and date of information sought.

The nature of research needed to prepare specific claims makes it particularly vulnerable to the proposed changes, said veteran researcher Peter Di Gangi, director of policy and research for the Algonquin Nation Secretariat.

Researchers often begin with incomplete information in preparing a specific claim as a result of their historical nature and because the federal department responsible for Indigenous affairs holds all the records, said Di Gangi.

This makes it difficult for researchers to provide specifics because the majority of information is held by the federal government, he added

"The government caused these breaches and is the defendant. But it also has custody of the vast majority of evidence that First Nations need to file these claims," said Di Gangi. "So we are faced with going to the defendant to get evidence to prove claims against the defendant."

The proposed bill would also allow federal officials to deny requests if the records are available through other means.

Brison's department has known about their concerns since at least May 2017, said Di Gangi.

"We took a look and realized they never listened to anything we said," he said. "Since the new government came in it hasn't gotten better, it has gotten worse."

'We hear the concerns'

Brison encouraged First Nation representatives to provide feedback to the committee about the proposed changes.

"The committee is listening, we take the committee's work seriously. Rest assured, we have heard the concerns expressed and we are open to ways that [we] can address these specific concerns," he said.

"There is no relationship more important to our government than that with Indigenous peoples," Brison added Wednesday, following an appearance before the Commons access to information, privacy and ethics committee.

"First Nations are encouraged to make informal requests for information to the federal department in question. In many cases this does not result in substantive disclosure," according to a submission filed by the Claims Research Directors group with the Commons committee on Monday.

"As a result …  [the proposed bill] will prevent a First Nation from a making a formal … request if their initial informal request was not satisfactory. [Indigenous Affairs] staff already employ this rationale in denying access to records. Bill C-58 will provide the legislative justification to do so."

'Conflict of interest'

Kwikwasut'inuxw Haxwa'mis First Nation Chief Councillor Bob Chamberlin said First Nations need to have direct input on the new bill. (CBC)

The federal Liberals are well aware of issues with the overall specific claims file because they were raised by the Auditor General of Canada in 2016, said Kwikwasut'inuxw Haxwa'mis First Nation Chief Councillor Bob Chamberlin, vice-president of the Union of B.C. Indian Chiefs.

He said he hoped Brison would follow through with his commitment and allow direct input from First Nations on Bill C-58.

"The Auditor General's report indicated the government is in a conflict of interest as it is," Chamberlin said. "Putting further speed bumps in the path of justice is not going to assist the government in moving down the path of reconciliation."

Specific claims, taken together, represent a liability reaching into the billions of dollars for the federal government.  The claims usually stem from specific historical grievances based on Canada's failures to meet its legal obligations to First Nations in the handling of reserve lands. Sometimes Canada sold off reserve lands without informing the band or mismanaged monies held in trust for First Nations.

The current specific claims policy was created in 1982. In 2007, facing increased tensions between First Nations and Canada, the former conservative government created a tribunal to handle specific claims rejected by Ottawa.

Committee member and NDP MP Nathan Cullen said he plans to raise the issues voiced by First Nation researchers but he has little faith in Liberal promises.

We just recently asked you to do something, you refused to do it, but now you are open to it. So I ask why now?- Nathan Cullen

"I am not sure how much credibility the Liberals have saying they are open to changes, because the changes we recommended last time are not in the Act," said Cullen. "We just recently asked you to do something, you refused to do it, but now you are open to it. So I ask why now? Why weren't you open to it the first time around? There is a gap in credibility between what the Liberals have promised and what they are doing."  

The National Claims Research Directors state the proposed changes would contravene "standards of redress for historical wrongs articulated in the UN Declaration on the Rights of Indigenous Peoples," which has been endorsed by the Liberal government.

"Bill C-58 will impose substantive new barriers to the resolution of First Nations' claims," said the letter. "It will also provide legislative authority for the suppression of evidence which First Nations require to pursue their claims against Canada."