The B.C. Freedom of Information and Privacy Association (FIPA) has been made aware of troubling requirements being imposed by Crown-Indigenous Relations and Northern Affair Canada (CIRNAC) and Indigenous Services Canada (ISC) on First Nations researchers applying for access to those departments’ records for the purposes of validating historical claims against the federal government.
FIPA supports the National Claims Research Directors and their call for CIRNAC to withdraw the new requirements and uphold the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and meet its legal obligations outlined in the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) passed in June 2021. We support their calls for CIRNAC to withdraw the new requirements and enter meaningful consultation with First Nations prior to implementation of any new policies and procedures, as per Article 19 of the UNDRIP.
National Claims Research Directors brought the following to FIPAs attention. A previously informal access mechanism designed to efficiently and expediently support First Nations information rights in relation to substantiating historical claims against Canada has been modified with additional administrative requirements, devised without the free, prior, and informed consent of the First Nations concerned, contrary to Article 19 of the UNDRIP. Specifically, Canada now demands the following for any informal request for information:
a description of the claim, dispute, or grievance against Canada, including the proposed use, nature, and planned parties to the claim;
a description of the information being requested, including the type of records and associated date ranges, as well as a statement about why the records are required;
verification that the records being requested will not be shared with the First Nation on whose behalf the research is being conducted and that the records being requested will not be used for additional purposes, including other claims by the same First Nation (separate claims will require additional 8(2)(k) applications); and
verification that the records will not be shared with other members of the organization authorized by the First Nation to conduct the research. Claims researchers are being told they have 30 days to comply, or their requests will be abandoned by the department.
The National Claims Research Directors highlight these actions violate numerous articles under the UNDRIP, includingArticle 19 mandating “free, prior and informed consent” in relation to “legislative or administrative measures” that affect Indigenous Peoples, Article 27, mandating the right to “a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples,” Article 28, the “right to redress,” and Article 40, “the right to access to and prompt decision through just and fair procedures”.
As highlighted these measures are not in keeping with UNDRIP in a nation-to-nation relationship and create barriers for First Nations in accessing justice for the resolution of their claims. While longstanding, these barriers were most recently highlighted at the National Gathering on Unmarked Burials: Affirming Indigenous Data Sovereignty and Community Control over Knowledge and Information hosted by the Office of the Independent Special Interlocutor with the following agenda and presentations.
The National Claims Research Directors’ full letter to Minister of Crown–Indigenous Relations Marc Miller and Minister of Justice and Attorney General of Canada David Lametti regarding the subject can be found at the UBCIC website.
