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Exploration of the Impact of Canada’s Information Management Regime on First Nations Data Sovereignty

Exploration of the Impact of Canada’s Information Management Regime on First Nations Data Sovereignty

August 30, 2022

The First Nations Information Governance Centre (FNIGC) recently released a discussion paper that examines the impact of Canada’s information management legislation on First Nations data sovereignty.

The discussion paper explores the conflicts between the current Canadian information management regime and First Nations data sovereignty and offers suggestions for further exploration that may offer short‑term and long‑term improvements of the system.

Executive Summary

The First Nations Information Governance Centre (FNIGC) is an incorporated, non‑profit organization committed to producing evidence‑based research and information that will contribute to First Nations in Canada achieving data sovereignty in alignment with their world views. The FNIGC is strictly technical and apolitical and is not a rights‑holding organization. The FNIGC does not speak directly for First Nations. Mandated by the Assembly of First Nations’ Chiefs‑in‑Assembly (AFN Resolution #48, December 2009), the mission of FNIGC is to strengthen First Nations data sovereignty and foster the development of information governance and management at the community level. We adhere to free, prior and informed consent, respect Nation‑to‑Nation relationships, and recognize the distinct customs of First Nations, to achieve transformative change. Our work includes research and analysis of the technical elements of First Nations data sovereignty, like information management.

This discussion paper explores the conflicts between the current Canadian information management regime and First Nations data sovereignty. At the time of writing, Canada is reviewing the Privacy Act with a view to amendments and is conducting a five‑year review of the Access to Information Act. In response, the federal government undertook a review of the Privacy Act. (Minister of Justice, 2017). As part of the review, the Department of Justice (DOJ) issued a series of discussion papers on the Privacy Act inviting public comment (DOJ, 2019; DOJ, 2020). Each of the first four 2019 discussion papers raise issues of relevance to First Nations data sovereignty. In addition, there is a fifth paper specifically on Modernizing the Privacy Act’s relationship with Canada’s [sic] Indigenous peoples (DOJ, 2019e). Based on a first round of dialogue, additional considerations for reflection were presented by DOJ in 2020 (DOJ, 2020). This includes recognizing the objective of advancing reconciliation with First Nations through amendments to the Privacy Act.

FNIGC acknowledges the challenges with the Privacy Act identified by the Standing Committee and DOJ. To respect First Nations data sovereignty, however, the information management regime amendments must go far beyond those issues and beyond the Privacy Act and Access to Information Act. A system‑wide review of Canada’s information management regime is required. This paper has been prepared to assist First Nations as they press for change to the Privacy Act and associated legislation to better respect their rights. It also is intended to assist Canada by identifying areas for reform.

First Nations data sovereignty is an element of their inherent, Treaty, and constitutional rights to self‑determination and self‑government. First Nations data sovereignty means First Nations data is governed by First Nations laws. It incorporates the First Nations principles of OCAP® – ownership, control, access, and possession of data. Data is defined in this paper to mean information in any form:

  1. About First Nations people like health, jobs, and housing;
  2. From First Nations like languages, patterns, songs, dances; and
  3. About First Nations reserve and traditional lands, waters, resources, and the environment.

The analysis presented here is a critical review of Canada’s information management regime, highlighting systemic barriers to First Nation data sovereignty. These barriers include unilateral decision‑making by the Crown, a conflict of values and the imposition of an individualistic regime and forced dependence on the private law of contracts to fill a gap in public law. More specific problems are also addressed, including:

  • An over‑collection of First Nations data and information, for which the Crown has been chastised by the Auditors General four times since 2002;
  • The sale of access to First Nations data by the Crown to third parties;
  • A reliance on flawed consent provisions by the Crown to grant itself authority to use First Nations data at will;
  • The use of First Nations data in a manner that sustains negative stereotypes; and
  • The creation of roadblocks to First Nations access to their data and information.

This paper offers several suggestions for further exploration that may offer short‑term and long‑term improvements of the system. Three interconnected, multifaceted suggestions are offered. One addresses the colonialism inherent in the system, which means amending it to respect First Nations rights to self‑determination and self‑government as recognized by the Constitution, international commitments like the United Nations Declaration on the Rights of Indigenous Peoples and promises from successive Prime Ministers.

Another is the adoption of a multilateral system to engage First Nations decision‑makers. A multilateral system is one that involves multiple decision makers, in this case Canada and the many First Nations, working cooperatively while respecting each other’s laws, perspectives, and sovereign rights. In the short term, this might include pan‑First Nations selected and operated review boards independent of, but embedded in, each federal department to oversee access, collection and publication of First Nations data held by the Crown. The long‑term vision is Nation‑based information management systems incorporating First Nations protocols, processes, and decisions about First Nations data.

A third suggestion addresses the Crown’s presumptive ownership of First Nations data. Instead of owner, the Crown and First Nations can explore how Canada could instead serve as a steward or custodian of First Nations data. This simple shift of perspective would further support efforts to redress the inherent colonialism in the system.

In the short term, First Nations might enter into agreements with the Crown about how they wish their data to be stewarded. Over the longer‑term, data repatriation and further enhancing First Nations data management capacity will ensure direct supervision by First Nations of their own data. A joint First Nation – Canada working group to dialogue on the separation of First Nations data from that legitimately owned by the Crown might be established to explore this complex question. The work of such a group might also support repatriation of First Nations data. This paper also echoes the Auditors General requirement that the Crown address its tendency to over‑collect First Nations data. Finally, in the interest of building a just society, it is suggested the Crown respect its position as potential adversary in First Nations claims against the Crown by facilitating free, liberal, and timely access to First Nations data for claims research.

The conclusion of this paper is that it is the systemic impact of Eurocentric non‑Indigenous concepts of privacy and ownership that impedes First Nations data sovereignty. The Crown assumes ownership of all First Nations data and information in its control and makes decisions about how to use, share, or dispose of that data through unilateral decision‑making processes. Canada’s information management regime is in breach of the Crown’s moral and legal obligations to respect First Nations rights to self‑determination and self‑government. A system‑wide, First Nations driven overhaul is required to accommodate First Nations data sovereignty premised on a Nation‑to‑Nation relationship. Multiple opportunities for improvement are identified. FNIGC encourages further discussion and refinement of the ideas presented herein to advance First Nations data sovereignty.

(Via First Nations Information Governance Centre)

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