On October 29th, 2024, the Independent Special Interlocutor, Kimberly R. Murray, officially presented her Final Report and the Indigenous-led Reparations Framework for Missing and Disappeared Children and Unmarked Burials associated with Indian Residential Schools to Survivors and the federal Minister of Justice and Attorney General of Canada, at the 7th National Gathering on Unmarked Burials.

Access the Report | View the Press Release | Watch the Video 

FIPA was grateful for the opportunity to attend the gathering in Vancouver, and to make submission in the process.  

As part of our consideration of this important material we asked, Gage Smith to review the report. Gage is enrolled at the University of Victoria Law Program. During his time at FIPA, he has completed the Principles of OCAP® program through the First Nations Information Governance Centre and drafted FIPA’s submission (submission, post) to the Office of the Special Interlocutor (OSI) in 2023.  

After reviewing the material for its access, information management and privacy implications, he has drafted the following.  

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FOI and Indigenous Data Sovereignty: OSI Final Report 

Introduction 

Special Interlocutor¹ Kimberly Murray has released her office’s final report² after a two-year mandate to take part in conversations with Survivors, Indigenous families, and communities who are leading the Sacred work of recovering the missing children and unmarked burials from the Residential School system.³  

Rigid freedom of information laws uphold a blatant conflict of interest in Canadian law. Canada committed the cultural genocide of Indigenous peoples through the Residential School system.⁴ Canada is also the creator and holder of the self-incriminating records from that system that it has not yet destroyed.⁵ Many Indigenous families need access to these records to honour their responsibilities under Indigenous laws.⁶ 

To have any hope of doing so, Indigenous families must navigate freedom of information (FOI) laws that prioritize the rights of colonial institutions over theirs.⁷ The Report identifies reforms that would bring FOI frameworks closer to compliance with the principles of Indigenous Data Sovereignty and OCAP®. 

Indigenous Data Sovereignty and OCAP® Principles 

What is Indigenous Data Sovereignty? 

Indigenous data sovereignty refers to the inherent right of Indigenous communities to control, access, interpret, manage, and collectively own data about their communities, lands, and cultures.⁸  The foundation of Indigenous Data Sovereignty is in the inherent rights of Indigenous peoples to autonomous self-government.  

What are the Principles of OCAP®? 

The First Nations Information Governance Centre has articulated the principles of OCAP® as a tool to support First Nations in asserting data sovereignty:⁹ 

• Ownership: First Nations communities or groups own information collectively in the same way that an individual owns their personal information. 
• Control: First Nations are within their rights to seek control over all aspects of research and information management processes that impact them. 
• Access: First Nations must have access to information and data about themselves and their communities regardless of where it is held. 
• Possession: While ownership identifies the relationship between a people and their information in principle, possession or stewardship is more concrete: it refers to the physical control of data. Possession is the mechanism by which ownership can be asserted and protected.¹⁰¹¹ 

Problems in FOI respecting Indigenous Data Sovereignty 

Historical Violations 

The report highlights two key historical issues: failure to keep records, and the destruction of records.  

“Though various departments of Indian Affairs have operated since 1755, creating an enormous number of records, research has shown that, ‘there was no standard filing system used in Indian Affairs field agencies prior to 1950.”¹² This failure to document is a clear violation of Indigenous data sovereignty.  

In the 1930s and 1940s, the Department of Indian Affairs intentionally destroyed countless records about Indigenous children in residential schools; experts estimate that roughly 15 tons of paper records were marked for destruction from 1937-1938.¹³  

Modern Barriers 

Even where records exist, FOI frameworks create barriers that prevent Indigenous communities from accessing them. Requests from Residential School survivors and Indigenous researchers are regularly delayed, denied under claims of privacy or national security, or heavily redacted after production. ¹⁴ The final report included a case study demonstrating how Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) handles requests from researchers with Indigenous organizations.¹⁵  

Publicly available versions of Indian Residential School Narratives are short, redacted, roughly 20-page summaries on the histories of certain Residential Schools.¹⁶ The full narratives were detailed, and some were thousands of pages long. When a researcher with the Children of Shingwauk Alumni Association requested the full narratives, CIRNAC “refused to process the request, citing confidentiality concerns and resource constraints,” even after acknowledging the existence of the documents.¹⁷ The Information and Privacy Commissioner found that CIRNAC failed to conduct a reasonable search for records. 

Such procedural barriers clearly and seriously infringe on the rights of Indigenous peoples to own, control, access, and possess their data. 

Solutions through Indigenous Data Sovereignty 

The report calls on Canadians to support and empower Indigenous truth seekers with search and recovery work. Reforming FOI frameworks to comply with Indigenous Data Sovereignty and the principles of OCAP® is a key part of that process. The Special Interlocutor articulates 42 obligations that Canadian governments must fulfill.¹⁸ The following obligations (summarized here) directly address FOI frameworks:¹⁹  

Obligations #14 and 15: Indigenous Data Sovereignty 

• The federal government must make a plan to uphold Indigenous Data Sovereignty in alignment with UNDRIP.  
  • FOI frameworks are in tension with Indigenous Data Sovereignty. So, a plan to uphold Indigenous Data Sovereignty is likely also a plan to reform FOI frameworks.  
    • “The federal government, in consultation and collaboration with Indigenous Peoples, must establish a National Indigenous Data Sovereignty Strategy and Action Plan. This must align with Articles 11 and 31 of the UN Declaration on the Rights of Indigenous Peoples, the recommendations of the UN Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, and the Joinet-Orentlicher Principles.” 
• All information held by institutions about missing children and unmarked burials must be transferred to Indigenous Peoples in compliance with Indigenous Data Sovereignty. 
  • This obligation would prevent institutions from using obstructive tactics that are available to them under the current FOI system. Indigenous communities would no longer be required to ask the perpetrator of their genocide for self-incriminating evidence.  
    • “All institutions, including federal, provincial, territorial, and municipal departments and archives, church entities, universities, and other organizations that hold records relating to Indigenous Peoples must: 
    • Create a proactive plan to search their record systems and archives for information about missing and disappeared children and unmarked burials and create a public, transparent, and accessible inventory of these records;   
    •  Work to transfer these records to Indigenous Peoples, in compliance with First Nations, Inuit, and Métis Indigenous data sovereignty principles; and 
    •  Provide education and training for archivists and staff on international human rights laws and principles, including the UN Declaration on the Rights of Indigenous Peoples and the Joinet-Orentlicher Principles.” 

Obligation #16: Federal Right to Truth Legislation 

• The federal government must require individuals and institutions to register all records relating to children at Residential Schools in a National Registry. Indigenous families and communities must give consent for records relating to them in this registry to be destroyed.
  • Current FOI frameworks generally allow institutions to establish their own methods of retaining and safeguarding records.  
    • “The federal government, in consultation and collaboration with Indigenous Peoples, must enact federal legislation creating a statutory requirement for all individuals, governments, churches, universities, and organizations that hold records relating to children at Indian Residential Schools and associated institutions to register their holdings in a National Records Registry. This Federal Right to Truth legislation must: 
      • Specify a time frame for the registration of holdings; 
      • Require federal departments and agencies, including Library and Archives Canada and the Royal Canadian Mounted Police (RCMP), to provide notice to Indigenous families and communities if they wish to destroy records that relate to them. No records shall be destroyed without their consent; 
      • Create an offence for destroying or altering such records; 
      • Include penalties for failing to abide by the time frame and requirements set out in the legislation; and 
      • Include appropriate enforcement powers and mechanisms. 
  • The preamble should state that, consistent with the right to the truth, the UN Declaration on the Rights of Indigenous Peoples, and the Joinet-Orentlicher Principles, it is in the collective public interest that all records relating to Canada’s treatment of Indigenous Peoples be preserved.” 

Obligations #17 and 18: Moratorium or Prohibition of Destruction of Records 

• This obligation prevents institutions from destroying records which may relate to the death of a child while at a Residential School.  
  • No such requirement exists in FOI frameworks. 
    • “Federal, provincial, territorial, and municipal governments, along with organizations, institutions, and other entities holding records that may contain information related to the death of a child while in the care of Indian Residential Schools and associated institutions, must implement immediate moratoriums on record destruction. These moratoriums should encompass health and dental records, court files, police records, and various government departmental records, including those pertaining to education, child welfare, juvenile detention, and corrections.”   
    • “The federal government must create an inventory of records relating to Indigenous Peoples that have already been destroyed and provide the dates of, and reasons for, their destruction. This inventory must be made available to those leading search and recovery work and to the Commission of Investigation into Missing and Disappeared Children and Unmarked Burials, once it is established.” 

Obligations #19 and 20: Access to, and Protection of, Records 

• This obligation directly requires amendments to FOI frameworks: 
  • “The federal government, in consultation and collaboration with Indigenous Peoples, must review, amend, and modernize the federal access to information system, including by amending the Access to Information Act and the Privacy Act. Such amendments should: 
    • Recognize Indigenous Peoples’ collective rights; 
    • Implement a “public interest” override that specifically recognizes Indigenous Peoples’ interests; 
    • Create independent oversight to ensure full and timely access and disclosure of records relating to Indigenous Peoples, including the missing and disappeared children; and 
    • Align with the UN Declaration on the Rights of Indigenous Peoples, the Joinet-Orentlicher Principles, and the right to truth.” 
  • “Federal, provincial, and territorial governments, in consultation and collaboration with Indigenous Peoples, must review and amend existing laws, policies, and procedures on the access, retention, and destruction of records. Indigenous Peoples should determine what government records are of ‘historical’ value and ought to be preserved. No government records relating to Indigenous Peoples should be destroyed without their consent.” 

Obligation #21: Support for Families and Communities to Obtain Records 

• This obligation would require all jurisdictions in Canada to actively support Indigenous families with accessing information about children who went to Residential School.  
  •  “All provinces and territories must enact new legislation to establish a permanent office to provide support for families and communities of missing and disappeared children. These offices can draw on the successful aspects of Bill 79, An Act to Authorize the Communication of Personal Information to the Families of Indigenous Children Who Went Missing or Died after Being Admitted to an Institution, in Quebec. (See: FIPA Submission to the OSI).”