Law Times

Page 4 November 13, 2017 • Law Times www.lawtimesnews.com Bill could hurt indigenous land claims Legislation to modernize access to information panned BY DALE SMITH For Law Times T he Liberal government's bill to modernize the Access to Information Act has been panned as being a step backward for access rights in Canada. Lawyers who work with indigenous groups say that provisions in Bill C-58 that would force access request- ers to have specifics in terms of subject matter, time frames and types of records will have a det- rimental impact on their ability to do needed research for land claims. "This is a perpetuation of colonization," says Scott Rob- erts, president of the Indigenous Bar Association and an associate with Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors in Rama, Ont. "Claims history in this country is hor- rible. Canada has institutional- ized claims to the point where it's almost a farce." Roberts says a lot of these claims come out of treaties that the federal government hasn't upheld, and for a long period of time, First Nations couldn't get lawyers to help them with their claims and that the newer tri- bunal to adjudicate claims is not impartial as they are not inde- pendent of the government. "When you finally do get to go to court, they stack the deck in how you litigate that claim," says Roberts. "Now, they're go- ing to the very institutions that hold the information that First Nations are required to use to le- gitimate their claim, and they're saying you won't be entitled to get that information." Section 6 of the bill stipulates that a requester shall provide sufficient detail to enable the institution to identify the record with a reasonable effort, includ- ing the specific subject matter of the request, the type of record being requested and the period for which the record is being re- quested or the date of the record. Failure to meet those conditions is listed as a reason to decline a request. Roberts adds that he has se- rious concerns that indigenous communities were not consult- ed when the bill was drafted. Lanise Hayes, head of the in- digenous practice group at Nel- ligan O'Brien Payne LLP in Ot- tawa, says information held by some indigenous communities can be vague and based on oral history. "Information relating to claims of a historic nature is difficult to describe in specific terms of the nature of the infor- mation, the timelines and dates or subject matter," says Hayes, adding that the specific type of document that one is looking for is particularly difficult to meet for the purposes of land claims. "One can imagine the sheer quantity of documents that might relate to a historic land claim or a specific claim," says Hayes. "At times, Canada has responded to access requests by throwing in massive amounts of questionable documents, leav- ing it for the indigenous appli- cant to swim through and find the relevant information." Hayes adds that the bill would not enable indigenous peoples to advance claims and work toward reconciliation. At his presentation before the Commons committee on Ac- cess to Information, Privacy and Ethics, Peter Di Gangi, direc- tor of policy and research with Algonquin Nation Secretariat, quoted the decision in Canada (Information Commissioner) v. Canada (Minister of Indus- try) [2006 FC 132]. "It would be absurd and wrong if the Crown had the evidence the Aboriginal people required to prove their land claim, but the Government was entitled to suppress it," wrote Justice Kelen. "This would be in- consistent with section 35 of the Constitution Act, 1982." Treasury Board president Scott Brison said at the second reading debate that a large or broad request or one that causes the government discomfort does not represent bad faith on the part of the requester. "Broad requests, particularly historical records to substanti- ate indigenous claims, are le- gitimate and consistent with the spirit of the act," said Jean-Luc Ferland, Brison's spokesman, in an emailed response. Ferland noted that the intent of Bill C-58 is to ensure that no government can abuse provi- sions in the legislation to block legitimate requests. "The amendments to Bill C-58 strengthen the bill by mak- ing it explicit that no department can refuse a request simply be- cause the subject, type of record or date of record isn't specified," said Ferland. "That was never our in- tent. Furthermore, no depart- ment will be able to reject a request without first obtaining the approval of the information commissioner. "We are fully committed to fulfilling Canada's fiduciary ob- ligation to assist First Nations in furthering their land claims and to the fundamental duty of the government to assist requesters," added Ferland. Opposition critics are not as optimistic that the legislation, as presented or even amended, will not fulfil the intent of the bill, especially as it pertains to indig- enous groups. "We believe that C-58 in its entirety is beyond redemption and beyond recovery — it's just a bad bill," says Conservative ethics critic Peter Kent (Thorn- hill, Ont.). "We agree with the information commissioner that overall [it is] a regressive piece of legislation and that the status quo is preferable to the bill as it is today." Kent says the issue should be split aside and that indigenous groups should have unrestricted access to information they con- sider essential to making their legal claims. "They aren't accessing infor- mation about other people — they're accessing information about themselves and their pre- decessors and the agreements that have been made with the Crown in its various dimen- sions," says Kent. NDP ethics critic Nathan Cullen (Skeena–Bulkley Valley, B.C.) says it shows that the prime minister's promise for reconcili- ation has been based on a lie. "Settling treaties, reconcil- ing the past is always based on information which the govern- ment holds," says Cullen. "C-58 will make reconciliation almost impossible because there will be no way to settle any of the ques- tions and conf licts with First Nations people. It's the opposite of respect." He adds that while the NDP has been putting forward amendments, hoping to salvage something of the bill, it has heard from civil society that, if the bill is not fundamentally changed, it will do more harm than good. Information Commissioner Suzanne Legault did not re- spond to a request for comment before deadline. LT NEWS NEWS NEWS Lanise Hayes says a bill to modernize the Access to Information Act will not enable indigenous peoples to advance land claims and work toward reconciliation. S.N.King Bookkeeping Services Law office specialist, PCLaw, LSUC audits, payroll, LSUC and tax reports. (905) 409-9109 sueking1234@gmail.com LAW TIMES Marketplace CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online 10th ANNUAL CORPORATE GOVERNANCE Toronto • Webinar | December 5 2017 COURSE LEADERS Walied Soliman, Partner, Norton Rose Fulbright Canada LLP Orestes Pasparakis, Partner, Norton Rose Fulbright Canada LLP COURSE HIGHLIGHTS • Update from the Toronto Stock Exchange • Update from the Ontario Securities Commission • Human Rights, Economic, Social and Corporate Governance – the Next Frontier • Update on Proxy Practice and Case Law • Update on ISS/Glass Lewis Practice • Trends in Boardroom Diversity • Future Developments in Corporate Governance DATE & LOCATION Toronto: December 5, 2017 Vantage Venues 150 King St West, 27th Floor, Toronto, ON M5H 1J9 *Discount applies to in-class only FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca Email: lexpert.questions@thomsonreuters.com Register online at www.lexpert.ca/cpdcentre EARLY BIRD E X TENDED TO NOV. 20* Untitled-1 1 2017-11-09 2:05 PM

• Cover