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Toward Reconciliation

FOI laws don’t apply to most First Nations

Only a handful of more than 600 First Nations in Canada have laws that grant their members and the public access to information.

Paul Barnsley knows the Six Nations reserve in southern Ontario like few other non-band members do. Years ago, Barnsley, who today works as executive producer at APTN Investigates, the investigative unit at Aboriginal Peoples Television Network (APTN), repeatedly tried to access the basement of the Six Nations band office.

In the mid-1990s, that basement was where the reserve’s government stored its records and information. Accessing the basement wasn’t easy.

Paul Barnsley, executive producer at APTN Investigates, has been covering Indigenous communities for 24 years. He thinks better access to information would serve Indigenous communities and the media alike. Paul Barnsley
Paul Barnsley, executive producer at APTN Investigates, has been covering Indigenous communities for 24 years. He thinks better access to information would serve Indigenous communities and the media alike.

“You had to show up at a general meeting, make an application, and the council would vote on a band council resolution. And then they would either decide yes or no. It was a totally political decision,” says Barnsley, who has worked in media focused on Indigenous communities for almost 24 years.

Should Barnsley have been able to access that information? Most public bodies in Canada are subject to the Access to Information Act. The basic principle of the act is that “government information should be available to the public.” People have a right to ask for all information, excluding private personal information, confidential material like cabinet documents, or information that could have a negative impact on the country’s security and economy.

What is unclear to many people is whether or not these same rules apply to First Nations governments. While many organizations fight for better access to information in Canada, they mainly focus on federal and provincial governments and their agencies, not on First Nations. Canada has an Information Commissioner, but a spokesperson explained that the commissioner is only charged with watching over bodies of the federal government. That doesn’t include First Nations.

Of the more than 600 First Nations in the country, only a handful have their own freedom of information legislation. This means only a few thousand of the approximately 900,000 people identifying as First Nations in Canada can legally hold their governments accountable, or at least try to, through access to information that other Canadians take for granted.

Do FOI laws apply? No one knows

To figure out which freedom of information laws apply to First Nations, Discourse Media contacted many people, including representatives of First Nations governments, freedom of information experts, academics and federal bodies. They’re not all on the same page.

According to Duncan Pike, who works for Canadian Journalists for Free Expression (CJFE), “every government must be transparent to those it represents, and every citizen has a right to information about what its government is doing. This applies equally to federal, municipal or First Nations governments.”

But that’s not Lenny Carpenter’s experience. “A First Nations government does not have to provide information to any journalist or member of the public,” stated Carpenter, who manages Journalists for Human Rights (JHR)’s Indigenous Reporters Program. “I have never tried to file such a request for information from First Nations, nor do I know anyone who has successfully done so.” Either a First Nations government provides information voluntarily, or there’s no way to access it.

"Freedom of information is a first-world problem."
Discourse asked Indigenous and Northern Affairs Canada (INAC) whether Canada’s Access to Information Act applies to First Nations. The answer: “No, it does not apply to any.” But is there any other legislation that can be used to access information that First Nations hold? The clear answer from INAC: no. “It would be up to First Nations governments or bands to pass their own laws or bylaws,” responded a spokesperson via email.

But that’s not the view of the Assembly of First Nations (AFN), a national advocacy organization representing First Nations citizens in Canada. When asked the same question, the AFN responded by saying that First Nations are in fact “captured by federal access to information legislation.”

Discourse contacted more than 30 First Nations governments for this story. They were asked whether they had some form of freedom of information legislation, or whether they planned to draft such legislation in the future. Many didn’t reply, and most of those who did replied that their nations don’t have any legislation for access to information. Others believe it would be mandatory for them to follow the federal Access to Information Act.

Based on interviews with more than a dozen legal and research experts about the issue, one thing seems clear: the Access to Information Act does not apply to First Nations governments. Only public bodies mentioned in the act have to comply with it, and First Nations aren’t among the bodies mentioned.

The bottom line is that across the country, there is confusion about what rules apply to whom.

FOI legislation is up to the First Nation

The confusion around freedom of information rules doesn’t mean that transparency and accountability aren’t important to First Nations governments. Many First Nations choose to answer information requests from their members or from journalists, and many publish valid information like financial statements on their websites or on social media.

"Indigenous people have much more interest in accountability than the federal government."

Most bands comply with the transparency rulings of the First Nations Financial Transparency Act (FNFTA) that request them to make their financial statements public. For 2014-2015, according to the Canadian Taxpayers Federation, at least 93.5 per cent of all 581 First Nations that are subject to the FNFTA had filed their required documentation. It should be noted that many First Nations see the FNFTA as problematic. “It’s a totally patronizing act,” s
ays Nicole Schabus, an assistant professor of law at Thompson Rivers University in Kamloops, B.C.

The FNFTA aside, what’s missing in most cases is an official route for members and non-members to directly ask First Nations governments for access to information they hold.

The Tsawwassen First Nation, south of Vancouver, B.C., is an exception. It is one of only a few First Nations governments that has created a legal pathway to accountability, having passed their own comprehensive freedom of information legislation.

“The right to information about what government is doing is vital to the democratic process,” Jennifer Jansen, records analyst for the Tsawwassen government, wrote in an email. The law has been applied nine times since it came into effect in January 2010.

The Tla’amin First Nation on B.C.’s Sunshine Coast also passed a detailed freedom of information law in April 2016. “The motivation is to operate in a way that is similar to the rest of Canada with regard to information dissemination,” says Rod Allen, chief administrative officer for the Tla’amin First Nation. The Tla’amin law hasn’t been applied yet, according to Allen.

The terms of the Tsawwassen First Nation Final Agreement (or treaty) are contained in this document. The treaty went into effect on April 3, 2009, granting Tsawwassen the rights to their land and self-government jurisdiction. Tsawwassen is one of the first modern treaty First Nations whose government has passed official freedom of information legislation.

More First Nations could follow the Tsawwassen and Tla’amin First Nations’ lead. Both First Nations were able to pass their own laws because they have signed treaties with the federal and provincial governments.

Right now there are almost 100 active treaty negotiations happening across Canada. About 60 negotiations have reached an agreement-in-principle — the last step before a treaty. Many agreements or treaties include a passage about freedom of information, but often it’s only meant to make sure that the federal government won’t disclose information it receives from a First Nations government. In other words, the intent is to prevent access to information, not to provide it.

How to respect true self-government?


So should the federal government push for better freedom of information legislation in treaty negotiations? It’s hard to expect that from a state apparatus that many critics deem very secretive itself.

The Tla'amin Government House opened in April 2016 when the Tla'amin signed a treaty to become the fourth modern self-governing First Nation in Canada. This allowed them to pass a detailed freedom of information law enabling greater public access and accountability.Government of British Columbia / CC BY-NC-ND 2.0
The Tla'amin Government House opened in April 2016 when the Tla'amin signed a treaty to become the fourth modern self-governing First Nation in Canada. This allowed them to pass a detailed freedom of information law enabling greater public access and accountability.

Nicole Schabus doesn’t think it’s the federal government’s responsibility to press First Nations for better access to information. From her perspective, any attempt by federal or provincial governments to impose legislation on First Nations would be patronizing.

APTN producer Paul Barnsley addresses another issue: “Freedom of information is a first-world problem — very low on the list, unfortunately, considering what some bands are still going through.” There are simply much more pressing issues for many First Nations. And they don’t have any of the support mechanisms that a state government would have to draw up legislation, Barnsley says.

Maybe that’s one reason why so few First Nations have real legislation for freedom of information. But that doesn’t mean their members can’t access information held by their governments, says Schabus. “Indigenous people have much more interest in accountability than the federal government.” Band members can request information from their government and should expect a response, she said.

"The right to information about what government is doing is vital to the democratic process."

But there are no guarantees, and for non-band members, it’s even more complicated. “Even though I am First Nations, I myself have been removed from certain meetings because I am not affiliated with the First Nation in question,” wrote JHR's Lenny Carpenter in an email.

Official legislation could help those who want to hold governments accountable. “We strongly encourage all First Nations to implement robust access to information legislation to increase transparency, enable meaningful participation in the democratic process and hold elected officials accountable,” writes CJFE’s Duncan Pike.

But among the more than 600 different First Nations in Canada, it’s evident there is no single solution. Barnsley’s advice: “All you can do, in a respectful relationship, is make your case — that we think it is good in a democratic society that the people have access to information.”

 

 

 

This is the third article in a five-part investigation into freedom of the press in First Nations. Read the whole series:

1. In First Nations, freedom of the press is unclear

Treaties are no guarantee of freedom of the press — but there’s little media coverage in First Nations anyway.

2. The unreported

Thirty-five stories that are unlikely to ever see the light of day.

3. FOI laws don’t apply to most First Nations

Only a handful of more than 600 First Nations in Canada have laws that grant their members and the public access to information.

4. The freedom to limit freedom of the press

Some Indigenous band councils are banning journalists, challenging freedom of the press guaranteed by the Charter of Rights and Freedoms. Are they protecting their communities from harm, or protecting themselves from scrutiny?

5. The new press on the block

First Nations community members are pushing for post-treaty freedom of the press — but a lack of journalism training opportunities is holding back those trying to hold their governments to account.