Transparency bill will weaken treaty rights, say First Nations

The Liberals’ transparency bill will make it harder for First Nations to defend their treaties, lawyers and experts who work for First Nations said Monday.

The federal government currently faces 58 ongoing claims in a special court tasked with handling allegations the Crown has breached a treaty. The claims, called ‘specific claims’ in government lingo, can often lead to compensation in the hundreds of millions of dollars.

Bill C-58, which recently was sent to committee, will put new conditions on First Nations asking for information and give federal officials greater powers to restrict requests, said the National Claims Research Directors (NCRC), a national body of technical experts who work on First Nations claims made against Ottawa.

Given the federal government holds a trove of information on how an alleged treaty breach happened, the changes that C-58 would make to Section 6 of the Access to Information Act have the potential to severely damage how First Nations defend their rights, the NCRD said.

“Taken together, the elements contained in section six will provide Canada with ample means to frustrate First Nations in their efforts to gather the evidence required to document their claims, grievances and dispute against Canada,” says an NCRD letter to the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

“They will also provide an easy way to suppress the release of such evidence.”

Sixty-five First Nations, the Assembly of First Nations and several dozen other groups signed a letter Monday in support of the NCRD’s criticism’s of C-58.

The Liberals say the bill will make government more transparent. But two weeks ago, Information of Commissioner of Canada Suzanne Legault blasted C-58 as a step backward for public access to government information in a special report.

Some of the criticisms Legault made are the same ones the First Nations are now raising.

In her report, the information commissioner pointed to three electoral promises that are nowhere to be found in C-58: applying the Access to Information Act to the Prime Minister’s Office and ministers’ offices, applying the act to administrative institutions that support Parliament and giving the information commissioner the power to order the government to release information.

But she also criticized the new conditions C-58 would introduce for those making information requests — changes that would be made in the Access to Information Act‘s section six.

The bill would require Canadians requesting information to specify the subject matter of the request, the type of record being requested and the time period under request.

These changes are “so specific, particularly the requirement for type of record, that they increase the possibility that requesters will not get the information they are seeking,” Legault wrote.

The NCRD backs Legault on that point. Indigenous and Northern Affairs Canada (INAC), which the Liberal government is splitting into two separate departments, does not have a system in place to help outsiders find information, it doesn’t allow access to its filing organizational structure, and it doesn’t allow First Nations researchers to search the department’s files for themselves, the NCRD says.

Currently, researchers make a request for information that begins broadly and then becomes more specific in dialogue with officials, the NCRD said. Putting in the request conditions is “too prescriptive and will stifle legitimate requests,” they said.

C-58 will also allow officials to decline a request if the documents are too big or if the information has been released before through other means. The Liberals aren’t defining what ‘too big’ means in this context and there are many ways an earlier release of information wouldn’t nullify a new request, Legault said in her special report.

The NRDC said the size issue is already being used to block requests and that the restriction based on past information releases is “ripe for abuse.”

The NRDC is asking the committee to withdraw C-58 and to consult with First Nations on the creation of a new piece of legislation reforming the Access to Information Act.

The committee is meeting Monday afternoon and will likely choose a time to schedule its hearings on C-58 then, said Hugues Le Rue, committee clerk.

In a separate process from C-58, the federal government is reviewing all of its legislation and policies surrounding specific claims, though there is no date for the review’s completion.

Ottawa and the Snuneymuxw First Nation officially signed an agreement in Nanaimo last Tuesday awarding the First Nations $49 million, the largest compensation for a specific claim in B.C.’s history.