Assembly of First Nations

Legal Memorandum
TO: CC: FROM: DATE: RE: Jon Thompson Peter Dinsdale, Tim Thompson Stuart Wuttke July 24, 2013 AANDC Education Information System Project
“Privileged and Confidential”

Summary The AFN legal department was asked to provide an analysis on Aboriginal Affairs and Northern Development’s (AANDC) Education Information System (EIS). The specific concerns raised by AFN’s Education Unit are: the potential of the EIS project to violate the federal and provincial privacy laws; unknown use of the data provided by First Nations; the potential of the EIS to interfere with the exercise of the Aboriginal right to self-government; and the lack of consultation and accommodation of First Nations interests surrounding the EIS. This memo addresses these concerns and provides a potential framework for First Nations to seek changes to the policy to address their concerns and/or legally challenge the EIS program. The EIS: The EIS is AANDC’s attempt to consolidate reporting by First Nations schools by replacing the paper record keeping system with an electronic system. AANDC set aside $27 million over 5 years for development and implementation of the EIS, which is currently in its fourth year of development and implementation began in the fall of 2012. AANDC’s objective for developing EIS was to create a database capable of combining all education related reports into a single national system that is web based in order to enhance the Department’s ability to extract education related data from First Nations. AANDC anticipates that the EIS will streamline the process for obtaining funds for education programs. First Nations would be able to use the system to submit proposals and reports for education programs. The system would contain features that could make the reporting process easier, timelier, and reduce the work burden for First Nations and AANDC. A key stated feature for development is the ability to generate and analyze aggregate results on national and

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regional education outcomes and enable departmental officials to advocate more effectively to central agencies within the federal government. EIS will be owned, operated and controlled by AANDC. However, the data is expected to be directly populated by the First Nations. The data will be related to the education records and outcomes of all First Nations students, details of teaching staff and their salaries and other private information of First Nations students and employees. The EIS is being sold as a single integrated education dataset, performance measurement and management system. The most notable difference is that under the current paper system, education data is owned by First Nations Chiefs and Councils. In the new system, AANDC will own and control a complete copy of the dataset. As the implementation of EIS is rolled out, First Nations are becoming increasingly concerned that the data collected under the EIS will not be readily useable by First Nations, nor contain the data and information First Nations require to monitor program effectiveness and the quality of education. First Nations are concerned that the data of the EIS will be limited to the nominal role, special education reporting, staffing and proposals, which is tied to AANDC’s funding process. The annual funding is based on the number of students enrolled on one ‘representative’ day in early September or October (nominal roll). 1 There is no provision in the current system to provide funding for children who are added after that day and no provision to recoup funds provided to provincially run schools if students drop out of school after the nominal roll day. These all reinforce the perception of AANDC control over First Nation education, rather than supporting and moving towards First Nation control over First Nation education. Limited funding and funding timing issues seriously hampered the ability of First Nations to become fully involved in the development of the EIS. First Nations were provided with limited funding to participate, making it virtually impossible to review materials and provide input in any meaningful way. This left First Nations disheartened with a process and circumstances that prohibited their genuine feedback and use of their knowledgeable expertise. This was further exacerbated when feedback offered by First Nations didn’t appear to be reflected in the ongoing development of the EIS. Despite limited First Nations consultation and engagement, AANDC continued to develop the EIS and it is now clear that the Department is moving forward with its agenda for the implementation of the EIS database regardless of concerns that had been repeatedly raised by First Nations. AANDC justifies imposing the implementation of this system on First Nations because of pressures it is receiving to address accountability and transparency issues in its current reporting practices. These pressures, the AANDC contends, are a result of departmental audits, reports from the Auditor General and from the Treasury Board.

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The Elementary/Secondary Education Program - National Program Guidelines 2013-2014 states that the AANDC regional office will establish the level of attendance during this period that is required for a student to be confirmed on the nominal role for funding purposes (e.g., the number of days in September and October, or a percentage in each month). http://www.aadnc-aandc.gc.ca/eng/1362163764112/1362163843424.

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AANDC asserts that EIS is exempt from the duty to consult given it is implementing a new system rather than a new program. First Nations assert that this is bureaucratic arrogance in contradiction to the Government’s own principles and guidelines on the duty to consult and accommodate First Nations on any Government initiative that impacts Aboriginal or Treaty Rights. In September, 2011 First Nations convened a series of conference calls to discuss their concerns, which were identified, prioritized and presented to AANDC. Areas of concerns included:

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AANDC’s continued disregard of First Nations Inherent and Treaty Rights and First Nations Control over First Nations education throughout the EIS process; AANDC’s failure to honor its duty to consult and accommodate; privacy and ethical considerations; purpose and ongoing use and access to data; and adequate and sustainable funding.

Ongoing recommendations highlighted the need to: • • • • • ensure an adequate system of consultation is established to implement the EIS; determine the kind of data required and the purpose for the collection of specific data; protect First Nations data and ensure OCAP principles are respected; build First Nations information systems; and strengthen First Nations jurisdiction in education.

AANDC conducted a series of regional visits across Canada to speak with Chiefs at regional gatherings. While AANDC maintained consultation was not required to implement a new system, regions sought to find ways and means to protect and advance their interests, and reaction was varied across the country. While some regions rejected EIS outright and others were interested in hearing about EIS, it was nonetheless clearly communicated to AANDC that these information sessions were to determine how to minimize harms and disruption, and cannot be construed as consultation. LEGAL ANALYSIS 1. Privacy Concerns

First Nation governments recognize the privacy interests of their citizens and an individual’s right to be free from intrusion or interference by others. Individuals have privacy interests in relation to their personal information, expressed thoughts and opinions, personal communications, health records, education records and a whole host of information. The EIS has the potential to affect the privacy interests of First Nations citizens in different ways. The most notable privacy breach for First Nations governments is the potential loss of its right to control information about their students.

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The ethical and legal duty of all First Nations Education Authorities includes an obligation to safeguard confidential and private information of students and teaching staff. This includes the obligation to protect information from unauthorized access, use, disclosure, modification, loss or theft. The EIS would force First Nations governments to turn over confidential and private information of students and employees under the constant risk of being denied funding for educational programs. The Privacy Act The Privacy Act requires government departments, including AANDC, to collect its data directly from individuals. 2 Collecting personal data through third parties, such as a First Nations Education Authority, is not an option under the Privacy Act.3 The Privacy Act only protects an individual’s personal information. 4 The Privacy Act does not apply to a First Nation’s collection, use and retention of data, as they are not a federal department. Rather, the Privacy Act controls how federal government departments collect and use an individual’s private information. Under section 4 of the Privacy Act, a government department may only collect personal information if it relates directly to an operating program or activity of the institution.5 Section 7 provides that Personal information under the control of a government institution can only be used “for the purpose for which the information was obtained or compiled by the institution, or for a use consistent with that purpose”. The Treasury Board Guidelines on collecting information direct that when institutions seek authorization to collect personal information they should inform the individual of what information will be collected, how the information will be used, who will be providing the information, and the consequences if they refuse to authorize the disclosure.
The Privacy Act, R.S.C., 1985, c. P-21, section 5(1): A government institution shall, wherever possible, collect personal information that is intended to be used for an administrative purpose directly from the individual to whom it relates except where the individual authorizes otherwise. 3 Supra note 2, section 5(1) - Indirect collection of personal information is permitted only where the individual authorizes its collection. In addition, the Treasury Board of Canada’s Privacy and Data Collection Guidelines states “the phrase "wherever possible" is expected to allow for collection of personal information from another source where the individual is deceased or incapacitated, or cannot be located despite a reasonable effort. This phrase does not permit the collection of personal information from another source simply because it would be easier or less costly than direct collection. In circumstances where the personal information is not intended to be used for an administrative purpose, such as the collection of statistical information, institutions should still endeavour to collect the information directly from the individual to whom it relates, whenever possible”. http://www.tbssct.gc.ca/pol/doc-eng.aspx?id=25495&section=text. 4 In Montana Indian Band v. Canada (1988), 18 FTR 15, the court found that information about a small group may in some cases be considered personal information, but only where that information reveals personal information about an individual member of that group. The court found the information about the band was not personal information under the Privacy Act. 5 The Treasury Board of Canada’s Privacy and Data Collection guidelines states “The policy requires that institutions have administrative controls in place to ensure that they do not collect any more personal information than is necessary for the related programs or activities. This means that institutions must have parliamentary authority for the relevant program or activity, and a demonstrable need for each piece of personal information collected in order to carry out the program or activity.” http://www.tbs-sct.gc.ca/pol/doceng.aspx?id=25495&section=text .
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Assuming that the Privacy Act allows for AANDC to obtain data from First Nations, for the EIS to be compliant with the Privacy Act all individuals must be notified of the purpose and intended use of their personal information when it is collected by AANDC. Individuals must consent to this use before the AANDC can obtain their personal information. Data can only be used for a purpose that is consented to by individuals. However, AANDC only provides performance related reasons for collecting information in the EIS. Therefore, First Nations are reasonable in questioning whether AANDC has met the obligation of informing all teachers, students and First Nations why this information is being collected and what the data will be used for. In addition, AANDC has provided no mechanism or instrument to obtain the consent of individuals to authorize a First Nation to share their personal information with AANDC. The Privacy Act does not authorize a lesser standard for First Nations individuals and employees. Equally important is the fact that the Privacy Act does not contemplate the collective nature of First Nations communities. The special relationship between a First Nation and the personal information of its members and the communal nature of personal information within a First Nations is not a principle that is recognized in Canadian privacy law. The Assembly of First Nations has defined the principle of the communal property of information, including personal information, in the OCAP principles. OCAP stands for Ownership, Control, Access and Possession. These principles outline that First Nations communities have a communal interest in the personal and cultural information of its members. OCAP is a tool that First Nations can use as a guide to assert their right to self-governance over personal information. However, the Canadian legal system does not provide a mechanism for the Privacy Act to enforce or respect OCAP principles. There is a danger that First Nations and their members will be coerced into providing personal information to the EIS in violation of the OCAP principles. First Nations are dependent on AANDC for their education funding through contribution agreements. The federal government dictates the terms of these financial agreements. The federal government can coerce the collection of personal information from the First Nation as a condition of receiving education funding. Once AANDC has obtained and collected the personal information of First Nations students and employees of a First Nation, AANDC could theoretically use the data for their own purposes6 and disseminate the information to third parties. While the Privacy Act stipulates that a department cannot use the information indiscriminately, the Act provides a number of exclusions to this basic rule. 7
AANDC has indicated that one of the main reasons for introducing the EIS was to enable other federal departments to access First Nation education data. This was reiterated in a number of working group meeting, which heightened First Nation concerns over access. 7 Supra, note 2, section 8 (2) - Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed: for any purpose in accordance with any Act of Parliament; complying with a subpoena or warrant; for use in legal proceedings against Canada; a lawful investigation; under an agreement or arrangement with institution; to a member of Parliament; for internal audit purposes; to Library and Archives of Canada; to any person or body for research or statistical purposes; for any purpose where the public interest in disclosure outweighs any invasion of privacy.
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Disclosure under s. 8(2) of the Privacy Act by AANDC of personal information supplied by First Nations is permissible in a number of circumstances. For example, if AANDC deems it to be in the public interest 8 to disclose a First Nations’ education data.9 The public interest outweighs any invasion of privacy and personal information of students and teachers can be disclosed.10 Similarly, the data can be disclosed to individuals and institutions conducting research on First Nations education, where the research cannot reasonably be accomplished unless the information is provided in a form that would identify the individual, and the researcher provides a written undertaking that no subsequent disclosure of the information will be made. 11 There is no recourse under the Privacy Act that will enable a First Nation to stop AANDC from disclosing the information it collects under the EIS. AANDC will be allowed under all the circumstances set out in section 8(2) of the Privacy Act to disclose the personal information it collects in the EIS without the consent of individuals or First Nations. The Privacy Act provides little recourse where an individual files a complaint asserting that their personal information was used improperly or disclosed to third parties for an unlawful purpose. The first step to challenging the government’s actions is to file a complaint with the Privacy Commissioner.12 The Privacy Commissioner investigates the compliance of government bodies with the Privacy Act. Where the Privacy Commissioner finds that a violation of the Privacy Act has occurred, the Commissioner is required to write and deliver a report, with recommendations, to the government department in question. The Privacy Commissioner will include the results of the report in its annual report to parliament. The Privacy Commissioner is limited to making recommendations only. The Privacy Commissioner has no power or authority to award damages to individuals whose information is mismanaged or to compel government departments to comply with the Privacy Act. 13 The Privacy Act does not contain any legal remedy for the unlawful disclosure of information or
The Black’s Law Dictionary 6 ed defines public Interest as “something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in questions. Interest shared by the citizens generally in affairs of local, state or national government.” 9 In ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, the Supreme Court of Canada stated that it has long been recognized that what is "in the public interest" is not really a question of law or fact but is an opinion. The Court further observed that there are many approaches to "the public interest", and selection of an approach is inherently a matter of opinion and discretion. 10 In a series of decisions, the Federal Court of Canada has specifically found that the power to disclose personal information in the public interest pursuant to s. 8(2)(m)(i) of the Privacy Act is discretionary. See Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527; Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266; Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903 (QL). 11 Supra, note 2, section 8(2)(j)(i) and (ii). 12 Ibid, under s. 29(1)(a), an individual can make a complaint to the Privacy Commissioner alleging that the individual’s personal information has been used or disclosed contrary with section 7 and 8. Under s. 29(1)(h), the Privacy Commissioner will consider any other matter relating to the collection, retention, disposal, use, or disclosure of personal information. 13 See Murdoch v Royal Canadian Mounted Police, [2005] 4 FCR 340, (2005) FCJ No 522.
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misuse of personal information. A First Nation or an individual cannot request judicial review of non-authorized uses of personal information.14 The only right to judicial review of the decision of the Privacy Commissioner is with respect to the refusal to disclose to an individual his or her own personal information. Under s. 41, an individual who has been refused access to his or her personal information under s. 12(1), and who has made a complaint to the Privacy Commissioner, may apply to Federal Court to review the Privacy Commissioner’s decision. Section 74 of the Privacy Act contains a privative clause that limits any civil or criminal proceedings. 15 Provincial Privacy Legislation A complete review of all provincial privacy legislation is out of the scope of this memo. A summary of Ontario and Quebec legislation is presented below to give some examples of provincial privacy schemes. a) Ontario In Ontario, school boards are considered to be government bodies. The private information collected by school boards is protected by both the Education Act 16 and the Municipal Freedom of Information and Protection of Privacy Act 17 (Municipal Privacy Act). The Education Act requires the Principal of each school to establish, maintain and dispose of student records for each student enrolled in their school. Under the Education Act, an index card containing the student’s name, parents name, address, student number, date of birth and other information of each student remains at the school. In addition, the school maintains an Ontario Student Record which can be transferred when the student moves to another school. The Ontario Student Record contains detailed information such as: student’s date of birth, legal name, Ontario Education Number, report cards, progress reports, transcripts, student registration form, student photograph, summary of health conditions, participation in extracurricular activities, and date of entry into supervised alternative learning. The record also includes any information identified as being conducive to the improvement of the instruction, anecdotal and other informal reports of student progress, and copies of any meeting minutes, correspondence, and other commutations with student and/or parents. The Ontario student transcript and the office index card will be kept for 55 years after a student graduates. There is no express provision in the Education Act that prevents educators from possessing other kinds of records.
In Gauthier v. Canada (Minister of Consumer & Corporate Affairs), [1993] 1 F.C. 0 the Court found it lacks jurisdiction to review matter concerning complaint of improper disclosure. 15 Supra, note 2, section 74 “Notwithstanding any other Act of Parliament, no civil or criminal proceedings lie against the head of any government institution, or against any person acting on behalf or under the direction of the head of a government institution, and no proceedings lie against the Crown or any government institution, for the disclosure in good faith of any personal information pursuant to this Act, for any consequences that flow from that disclosure, or for the failure to give any notice required under this Act if reasonable care is taken to give the required notice.” 16 R.S.O. 1990, Chapter E.2. 17 R.S.O. 1990, Chapter M.56.
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Ontario school boards covered under the Municipal Privacy Act are authorized to collect personal information if it is required by law or necessary for the administration of a lawful activity. Similar to the federal Privacy Act, the Municipal Privacy Act enables school boards to collect and use personal information with the consent of individuals. That information must be either collected personally or with the consent of the individual in question. The Municipal Privacy Act defines what constitutes personal information, how personal information can be collected, used and shared and what government bodies the Municipal Privacy Act applies to. The Municipal Privacy Act controls how school boards can use private information once it is collected. It can be used in a way that is required by law under a provincial or federal statute (without the consent of the individual), or it can be used for purposes authorized by the individual. The Municipal Privacy Act provides that unless there is valid consent to release student records or a statutory authorization, a school board cannot release the information in absence of a court order, or used for purposes that are not authorized. The Government of Ontario has a comprehensive booklet on how Student Records are managed. 18 Agencies cannot compel individuals to consent to having their Student Record shared between agencies. The Education Act has a specific provision whereby the province can enter into an agreement with the federal government to provide education for First Nations children. It is possible that the federal government could require disclosure of student records under the funding part of the act. There is no doubt that this could be done with the consent of individual children, but it is unclear whether or not this constitutes a lawful purpose under the Privacy Act and could therefore be done without the consent of the individual. b) Quebec Quebec has similar privacy laws as Ontario. The main privacy act in Quebec is An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information. This Act protects information collected by school boards in Quebec. Personal information cannot be disclosed unless consent is obtained from the person in question or unless a statute authorizes the release. Personal information can only be used for the purpose that its owner consents to, or for a purpose authorised by a statute. There are a number of ways that information can be lawfully released to a public body. Identifiable information can be released with consent, or without consent in some cases. This includes release to a public body or an agency of another government, if such release is necessary for the exercise of valid powers of the receiving body or the implementation of a program under its management. Release is also permitted to a person or a body where exceptional circumstances justify it. However, written agreement is required for release in this situation.
Ontario Ministry of Education, “Ontario Student Record (OSR) Guideline” (2000): http://www.edu.gov.on.ca/eng/document/curricul/osr/osr.pdf
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The Commission d'accès à l'information, established by section 103 of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information may, in response to a written request, authorize a person or an agency to receive, for study, research, or statistical purposes, personal information contained in a personal information file without the consent of the persons concerned, if the Commission feels that the intended use is not frivolous, that the ends contemplated cannot be achieved unless the information is communicated in a form allowing the persons to be identified, and that the personal information will be used in a manner that will ensure its confidentiality. The Role of Consent All privacy legislation is fundamentally based upon the consent of individuals. Personal information can be collected, used and disclosed as long as the individual provides his or her informed consent. Most privacy statutes describe the special situations or circumstances when personal information may be used or disclosed without consent. Statutes typically also contain other incidental provisions such as: minimizing the retention period, requiring destruction of personal information that is no longer useful, and permitting individuals to access their own personal information. However, the bulk of all privacy statutes involve giving legal authority to data holders to use or disclose personal information without consent. Consent can be express or implied. Express consent exists where an individual indicates their consent in writing or through a verbal indication of acceptance. Implied consent arises where consent may reasonably be inferred from the action or inaction of an individual. When dealing with aggregated (non-identifying) information, an individual’s consent is not an issue and is not required, provided there is no reasonable way to use the aggregated information to re-identify any individual. Tort of Invasion of Privacy Canadian Courts have historically addressed invasion of privacy indirectly through the development and application of torts including, appropriation of personality, nuisance, harassment, defamation, and injurious falsehood. First Nations, through the EIS, may also be exposed to liability where provincial statues protect privacy through creation of torts. 19 In Somwar 20, the Ontario Superior Court of Justice declared that the time had come to recognize invasion of privacy as a common law tort. 21 Now, in 2013, the Ontario Court of Appeal has
Privacy Act, RSBC 1996, c373; Privacy Act, CCSM c P125; Privacy Act, RSNL 1990c P-22; Privacy Act RSS 1978 c P24. 20 Somwar v. McDonald's Restaurants of Canada Ltd. [2006] O.J. No. 64 (SCJ). 21 Ibid, in Somwar, Justice Stinson stated: “With advancements in technology, personal data of an individual can now be collected, accessed properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an ‘incremental
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recognized the tort of “intrusion upon seclusion.” 22 In doing so, Ontario became Canada’s only province to fully pronounce a civil cause of action for invasions of privacy under the common law. 23 Sharpe J.A. noted that in the tort of invasion of privacy, a plaintiff must establish three elements 24: 1. the defendant’s conduct must be intentional or reckless; 2. the invasion is, without lawful justification, into the plaintiff’s private affairs or concerns; and 3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. Justice Sharp stated: “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.” 25 A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. 26 In provinces with a statutory tort of invasion of privacy, specifically, British Columbia, Manitoba, Newfoundland and Saskatchewan 27, the courts have generally rejected the idea that there is an independent tort of invasion of privacy at common law. 28 Courts in these provinces have indicated that if there is a right to sue for invasion of privacy, then that right is found under the relevant statutory tort in the province.29 Should provincial privacy laws of general application apply, First Nations may become liable under the provincial torts of breach of privacy for providing student records to AANDC without

revision’ and logical extension of the existing jurisprudence. [...] the time has come to recognize invasion of privacy as a tort in its own right” at paras 29 and 31. 22 Jones v. Tsige, 2013 ONCA 32. 23 Ibid. 24 Ibid, para 70. 25 Ibid, at para 71. 26 Ibid, at para 72 “Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.” 27 Supra, note 19. 28 See Demcak v Vo (2013), BCSC 899; Bank of Montreal v. Cochrane, [2010] A.J. No. 1210; Bingo Enterprises Ltd. et al. v. Plaxton et al., [1986] 26 D.L.R. (4th) 604 (Man. C.A.). The Court in Newfoundland indicated that one does have a right of action at common law for violation of his privacy and is not precluded by the legislation, Dawe v. Nova Scotia Collection Services (Nfld) Ltd., [1998] N.J. No. 22 (Nfld. Prov. Ct.). 29 Bracker v. Vancouver (City) Police Board, [2006] B.C.J. No.233; Peters Brown v. Regina District Health Board, [1995] S.J. No. 609.

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the consent of students.30 For example, a First Nation student from a prominent family may have been provided with specialized education to deal with an illness or addiction. This information could be a very personal in nature and would be humiliating or embarrassing if that information were to be viewed and disclosed to third parties by an individual who was not authorized to have access to the information. As a result, the information AANDC is asking First Nations to collect on students under the EIS is of the nature that, if it was intentionally viewed or used without the student’s permission without lawful justification, that student could have a potential tort claim. The question that arises is: who would be committing the breach if a First Nation collects the data, AANDC possess the data, and departmental employees discloses the data? It is possible that the First Nation creating the data could be committing a tort by disclosing that information to AANDC without the consent of the student. AANDC could very well be a party to the tort. Equally problematic are cases where data is accessed and disclosed by departmental officials who seek to discredit those who have legal claims against the department.31 The applicability to First Nations of the tort of invasion of privacy provides another reason to require AANDC to obtain adequate consent of students and employees in relation to information collected under the EIS. 32 Finally, it should be noted that the tort law relating to privacy interests includes a limitation relating to the public interest. The concept of the public interest arose in Caltagirone v. Scozzari-Cloutier 33 in the context of balancing competing interests. Deputy Justice Criger identified a number of principles “which might form a framework for a tort of breach of privacy”. 34 She recognized that not all personal information is private. The tort of invasion of privacy involves a balancing between competing public and private interests. Even very private information may be disclosed in “the service of the broader public good”. 35 Deputy Justice Criger set out the following questions as a framework to guide the balancing:
In R. v. Dyment, [1988] 2 S.C.R. 417 the Supreme Court of Canada stated “In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected, at para 22. 31 In May, 2013 the Federal Privacy Commissioner Jennifer Stoddart found that Aboriginal Affairs and the Department of Justice violated the Privacy Act in their monitoring of Cindy Blackstock. Cindy Blackstock is the Executive Director of the First Nation Child and Family Caring Society, which filed a complaint under the Canadian Human Rights Act alleging the federal government is discriminating First Nation Children in the provision of child welfare services on-reserve. The two departments have agreed to cease and desist such monitoring, destroy any personal information not directly linked to federal policy, and set up a new system to make sure such surveillance does not happen again. 32 Supra note 22, employers may be held vicariously liable for their employees’ breaches of privacy. The Court stated that on the facts of the case, Tsige’s employer may have had a defence on the grounds that Tsige was acting as a rogue and contrary to the employer’s internal policies. However, the Supreme Court’s decision in Bazley v. Curry, [1999] 2 S.C.R. 534 verifies that employers can be held responsible for their employees’ activities, including intentional wrongful conduct that is outside of the scope of their employment. 33 Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 (S.C.J.). 34 Ibid, Para 12. 35 Ibid at paras. 14-20.
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1. Is the information acquired, collected, disclosed or published of a kind that a reasonable person would consider private? 2. Has the Plaintiff consented to acquisition or collection of the information? 3. If not, has the information been acquired or collected for a legal process or public interest reason? If so, what is that reason? 4. Has the Plaintiff consented to disclosure or publication of the information? 5. If not, has the information been disclosed or published for a legal process or public interest reason? If so, what is that reason? 6. Is the legal process or public interest reason put forward for acquisition, collection, disclosure or publication one that a reasonable person would consider outweighing the interest of the individual in keeping the information private? Under the case law, the personal information of an individual is required to be protected, unless there is a legal process or public interest reason for acquiring, collecting and disclosing the information. The balancing of competing interests between an individual and the public good is a factor that must be assessed. However, informed consent is required before such private information should be made accessible to anyone other than that individual. 36 Summary AANDC has not provided the First Nations with details about the purpose for which the personal information is to be obtained or used under the EIS. AANDC appears to be taking the “trust us” approach to collection of personal information of First Nations’ students and employees, rather than providing the transparency of disclosure of purpose required by the Privacy Act. AANDC has not demonstrated how the EIS complies with section 5 of the Privacy Act. From the little information provided to First Nations, AANDC is not complying with its duties under the Privacy Act to obtain individual authorizations for First Nations students and employees to collect the data. If authorizations are obtained, AANDC must provide sufficient detail on why the information is being collected and how it will be used. The consequences for an individual who refuses to authorize a First Nation to provide the sought personal information to AANDC for the EIS is not known. AANDC ought to disclose the potential consequences if the individual refuses to authorize the disclosure. 2. Contract Law - Use and Compilation of Data

A full analysis of the EIS under contract law is beyond the scope of this memo, as the AFN has not received any copies of a contribution agreement to review. However, the AFN was provided with a template Memorandum of Understanding that AANDC intends to use with third parties accessing EIS data.
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Supra, note 33 at para 20.

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Generally, contribution and other funding agreements is AANDC’s preferred route of providing funding for First Nation programs and services across Canada. While AANDC asserts these arrangements provide for devolution of services under a First Nations’ control and administration, the federal government maintains a high degree of control over the services that First Nations provide through the prescriptive contractual provisions of the funding agreements. Funding arrangements are legal contracts that spell out the terms and conditions under which transfer payments are made by AANDC for the delivery of programs and services. The agreements stipulate how programs and services will be funded, the responsibilities of the First Nations governments, level of funding, amounts of social payments to be made to First Nations citizens, what items are eligible expenses, etc. The funding agreements also dictate how surpluses and deficits are to be assigned , and the steps to be taken should first Nations incur significant debt in providing the services. The Auditor General of Canada noted several problems with the government’s use of funding arrangements to provide services in First Nations communities. 37 AANDC is reluctant to move into more flexible arrangements or multi-year agreements with First Nations because there is a perceived loss of control, diminished accountability to AANDC and less information available to AANDC officials to support Ministerial accountability.38 Federal/provincial transfer arrangements differ from one another, but are similar in one major respect: they involve few if any constraints on how the recipient is to use the transferred funds. 39 Federal/provincial transfer payments contain little or no requirements for the recipient to account to the federal government on how the funds were used. AANDC does not provide these types of unconditional transfers to First Nations. From the information reviewed, it appears that AANDC is requiring First Nations to sign on to the EIS as a condition to receive education funding. Under contract law, the parties can set out binding obligations through an agreement. Contribution agreements will include provisions relating to EIS that will compel First Nations to collect specific data and provide this data to AANDC. According to the information AFN has received, First Nations are being told that they have to provide detailed student records, employee records and other personal information belonging to the First Nation education authorities. Should a First Nation not provide such data, they would be in breach of their contractual obligations and the default provisions of the funding agreement would take effect. The question then arises whether or not AANDC’s position on EIS for funding invalidates or otherwise affects the funding agreement that is
2011 Status Report of the Auditor General – Chapter 4: Page 3-4: Inadequate funding mechanisms have inhibited progress include the lack of clarity about service levels on First Nations reserves, lack of a legislative base to fund service delivery on reserves, a lack of an appropriate funding mechanism, and a lack of organizations that could support local service delivery. There is a risk that living conditions on many First Nations reserves will remain significantly below national averages, with little prospect of a brighter future. 38 Cona, Donna (2011), Special Study: Evolving Funding Arrangements with First Nations at p 22. 39 Gusen, Peter (2008), Funding Arrangements for First Nations Governments: Assessment and Alternative Models, February 2008.
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entered into. Under contract law, the doctrines of undue influence and duress could potentially be applicable if First Nations are forced to comply with EIS against their will as a condition for obtaining education funding. Although the doctrines of undue influence and duress could apply to the contractual situation at hand, they are not likely desirable as the remedy in applying either of these doctrines would be to render the funding agreement void and result in no education funding agreement at all. A more desirable result would be to sever the EISconditions from the signed education funding agreements contracts and subsequent education funding agreements. Undue Influence Undue Influence or inequality of bargaining power is applicable in situations in which the relationship between the parties to a contract is such that one party is stronger and has the ability to take unfair advantage of the weaker party. 40 An example of this type of relationship is that of a fiduciary and a beneficiary. The test for Undue Influence is outlined in Geffen v. Goodman Estate: 1. Whether the potential for domination is inherent in the nature of the relationship between the parties. 2. Whether the agreement is unfair, either by way of one party being unduly disadvantaged by it or by the other party being unduly benefited by it, taking into account that the courts will accord some degree of deference to the principle of freedom of contract. Also, the magnitude of the disadvantage or benefit is considered when deciding whether influence was exercised or not. 3. If 1 and 2 are answered in favor of the weaker party, then the onus shifts to the stronger party to rebut the presumption of undue influence that is raised and thus justify enforcement of the agreement. The relationship between AANDC and First Nations is fiduciary in nature and “the hallmark of a fiduciary relation is that the relative legal positions are such that one party is at the mercy of the other’s discretion”.41 The EIS provides a new way for AANDC to strengthen its administrative control over First Nations, while at the same time imposing financial and program liability to First Nations. The new requirement of the EIS, being a mandatory condition for continued education funding, is putting technical and practical burdens upon First Nations, many of whom will now have
40

Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 (S.C.C.): “[W]hen one speaks of "influence" one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power” at p. 377. 41 Guerin v. R.,[1984] 2 S.C.R. 335 (S.C.C.).

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additional tasks of data entry into the EIS framework. First Nations have not been provided with the means for proper infrastructure to setup the EIS, train staff or have technical support. Funding is tied to compliance and technical difficulties have already been experienced and have led to delayed reports and therefore delayed funding. Duress The doctrine of duress relates to the circumstances that surround the making of the contract, where one party has coerced the other party into signing the contract in a way that the weaker party does not have any alternative and is not acting of their free will. 42 If duress is found, the contract is usually seen as voidable at the option of the weaker Party. 43 There are various forms of duress, with the doctrine of economic duress being relevant in the EIS. Economic duress results in a contract or a contract amendment being voidable, with restitution of money and property paid under the contract being available once the contract is avoided. The English courts developed the concept of “overborne will” whereby duress is established where there is a coercion of the will so as to vitiate consent. The test articulated by the Privy Council set out four indicia of coercion of the will: 44 Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. ... [I]n a contractual situation commercial pressure is not enough. There must be present some factor ... which could in law be regarded as a coercion of [the] will [of the person alleging duress] so as to vitiate his [or her] consent... . In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the person alleged to have been coerced did or did not protest; whether, at the time he [or she] was allegedly coerced into making the contract, he [or she] did or did not have an alternative course open to him [or her] such as an adequate legal remedy; whether he [or she] was independently advised; and whether after entering the contract he [or she] took steps to avoid it. All these matters are ... relevant in determining whether [the person alleging duress] acted voluntarily or not.45 The English courts subsequently appear to have modified this test, by shifting the focus from a subjective inquiry into the wronged party’s “coerced will” to an objective inquiry into the legitimacy or illegitimacy of the pressure applied. 46 In Canada, the Courts have not fully adopted the English tests. In Greater Fredericton Airport Authority Inc. v. NAV Canada, 47 the
42 43

Barton v. Armstrong [1975] 2 All E.R. 465, [1976] A.C. 104. SM Waddams, The Law of Contracts, 6th ed (Toronto: Canada Law Book, 2010) at 509. 44 Pao On v. Lau Yiu Long, [1980] A.C. 614 (J.C.P.C.). 45 Ibid at 635. 46 Universe Tankships Inc. of Monrovia v. International Transport Workers Federation (The Universe Sentinel), [1983] 1 A.C. 366 (H.L.). 47 th Greater Fredericton Airport Authority Inc. v. NAV Canada (2008), 290 D.L.R. (4 ) 405.

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New Brunswick Court decided to articulate its own version of the test for economic duress. The Court stated: Subject to the above observations, a finding of economic duress is dependent initially on two conditions precedent. First, the promise (the contractual variation) must be extracted as a result of the exercise of “pressure”, whether characterized as a “demand” or a “threat”. Second, the exercise of that pressure must have been such that the coerced party had no practical alternative but to agree to the coercer’s demand to vary the terms of the underlying contract. However, even if those two conditions precedent are satisfied, a finding of economic duress does not automatically follow. Once these two threshold requirements are met, the legal analysis must focus on the ultimate question: whether the coerced party “consented” to the variation. To make that determination three factors should be examined: (1) whether the promise was supported by consideration; (2) whether the coerced party made the promise “under protest” or “without prejudice”; and (3) if not, whether the coerced party took reasonable steps to disaffirm the promise as soon as practicable. Admittedly, the last two factors are more likely to have a bearing on the ultimate outcome of a case than the first.48 First Nations are dependent on long established yearly education funding agreement to provide education to their young people. A new term was unilaterally added to this contract and First Nations were told that it was a necessary condition of funding. First Nations did not have any other option but to sign the agreement, with the new term, in order to receive the necessary funds to provide education services for their young people. Initially joint working groups were established to review the EIS however funding and timing issues hampered the process and the feedback provided was not reflected in the development of the EIS. The concerns of First Nations have not been adequately addressed such that the EIS is, in reality, a unilateral imposition. In a relationship of trust such as that between fiduciary and beneficiary 49 it could not be seen as legitimate for the fiduciary to act in a unilateral way that puts a burden on the beneficiary and arguably places them in a potentially precarious legal position.50 There is ongoing correspondence from First Nations to Canada regarding concerns with EIS. There are discussions, reviews, reports and position papers being presented, and resolutions tabled at local, regional and national levels as evidence of protest and of taking steps to avoid this change to the education funding agreements since the inception of EIS. First Nations are trying
48 49

Supra, note 47, at para 53. Wewaykum Indian Band v. Canada [2002] 4 S.C.R. 245: not all Crown obligations are necessarily fiduciary in nature [83]. Existence of fiduciary obligations will depend on a “cognizable Indian interest” and an “undertaking of discretionary control…in a way that invokes responsibility” similar to a private law duty. 50 Manitoba Métis Federation Inc. v. Canada (Attorney General), [2010] 3 C.N.L.R. 233, the fiduciary standard of conduct, which mandates that the fiduciary act with reference to the best interests of the beneficiary and as a reasonable person would in handling his own affairs, at para 556.

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to work cooperatively with Canada to implement a system that is lawful and mutually beneficial. Although the doctrine of duress could apply to the contractual situation under the EIS, the remedy under the doctrine is not practical as it would be to render the entire funding agreement void and result in no education funding agreement at all. A more desirable result would be to remove the EIS condition from signed education funding agreements. Severability It is possible that a court can find a certain term of a contract unenforceable and remedy the situation by severing that term of the contract leaving the rest of the contract intact. This remedy can be used in response to limited circumstances such as removing an illegal feature of a contract. Illegality can be in reference to making the contract, the purpose or performance of the contract or the intentions of the parties. The “blue-pencil” test of the appropriateness of severance considers whether the contract can be made legal by striking out the offensive term in the contract, leaving the rest of the legal terms intact and also leaving the core of the agreement intact. Under the blue-pencil test, a contractual clause can be severed: “if the judge can strike out, by drawing a line through, the portion of the contract they want to remove, leaving the portions that are not tainted by illegality, without affecting the meaning of the part remaining. In other words, the offending provision must constitute a separate promise, and one that is not part of the main purport and substance of the contract”.51 A modern and discretionary application of the remedy of severance is that of “notional severance”. Notional severance involves a reading down of a contractual provision, whereby a judge rewords a contractual term to cure the offensive defect and thus render the entire contract legal and enforceable.52 The new EIS terms unilaterally inserted by AANDC into the education funding agreement now requires the use of the EIS as a condition of funding when previous contracts did not require this component. The information that is being required through the EIS has become more invasive as it includes more detailed and personal information about the students and teachers, some of which is not directly related to education programming. If the reporting through the EIS is proved to be an invasion of privacy and constitute the tort of intrusion upon seclusion on the part of First Nations, the clauses that relate to EIS may be found to be offensive or illegal. If this is the case, a First Nation could apply to a court to sever the EIS clauses from the rest of the funding agreement, as the primary purpose of the funding agreement is the provision of education services in a First Nations community.
51 52

Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7 at para 27. Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6.

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3.

The Right to Self-Government

First Nations hold the inherent right to self-government and self-determination. 53 These are existing aboriginal rights under s. 35 of the Constitution Act, 1982, and Canada recognizes them as such. 54 The Aboriginal right to self-government, has survived as one of the unwritten “underlying values” of the Constitution outside of the powers distributed to Parliament and the Legislatures in 1867.55 There is room in the Canadian Constitution for Aboriginal governments to exist and to exercise inherent jurisdiction. 56 Another source of the right to self-determination may be found in international law. The International Covenant of Civil and Political Rights provide that all peoples have the right to self-determination, and as such can determine their political status and pursue their own social, economic and cultural development.57 In the Quebec Secession Reference, 58 the Supreme Court of Canada noted that a people have a right of self-determination: At international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.59 Education is a key component of the right to self-determination and self-government. Jurisdiction over education arises in part from the right to education, which entails the right to make decisions on scope of education, such as the control of traditional knowledge, the development of pedagogy, teaching methodologies, standards, and the rights of students and teachers. Where a people hold the right to make decisions, they also have “the right to have a political structure for making those decisions”.60 First Nations’ jurisdiction over education is tied to a First Nations’ inherent right to retain and transmit their culture, languages, customs, histories, traditional knowledge, innovations and traditions to future generations. “Education is the instrument through which cultures

In Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010, the Supreme Court of Canada made some guiding statements about what the right to self-government consists of. The court concedes that an aboriginal right to selfgovernment exists and is therefore protected under the Charter. 54 Campbell v. British Columbia, [2000] 4 C.N.L.R. 1 (B.C.S.C.) at para. 175; Government of Canada, the Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (policy statement) online: http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844. 55 Ibid, at para. 81. 56 Kent McNeil, “The Jurisdiction of Inherent Aboriginal Governments” (research paper for the National Centre for First Nations Governance, 2007) online at: http://fngovernance.org/ncfng_research/kent_mcneil.pdf 57 UN GA Resolution 2200A (XXI), Article 1. 58 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 59 Ibid, at para 154. 60 Supra, note 54 at para. 137. The right to Aboriginal title in its full form includes the right to political structures for making decisions related to the land.

53

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perpetuate themselves”.61 The Report of the Royal Commission on Aboriginal Peoples highlights the importance of passing on culture, observing that, “[t]he destiny of a people is intricately bound to the way its children are educated. Education is the transmission of cultural DNA from one generation to the next.” 62 In Chadee v. Norway House First Nation, 63 the Manitoba Court of Appeal confirmed that the present legislative scheme enables First Nations to control the education of their children. In reflecting on sections 114 and 115 of the Indian Act, the court stated: These provisions permit the Governor in Council or the Minister to make provision for the education of Indian children. But the sections are not mandatory. The local community is free to make its own arrangements for facilities and staff to provide a suitable education program for its children. In doing so, the band council is not under the direction or supervision of the Minister. 64 Indigenous peoples’ right to govern their own educational systems is confirmed in Article 14(1) of the United Nations Declaration on the Rights of Indigenous Peoples 65 (UNDRIP). The Article recognizes that Indigenous peoples have the right “to establish and control their educational systems and institutions in their own languages, in a manner appropriate to their cultural methods of teaching and learning.” This international standard places an obligation on state governments to support Indigenous peoples to establish their own education systems, institutions and facilities. 66 UNDRIP affirms that Indigenous peoples, “in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs”.67 Education is “a fundamental aspect and a crucial tool” 68 to Indigenous peoples pursuing the right to freely determine their political status and freely pursue their economic, social, and cultural development.69 Education is necessary for Indigenous peoples’ realization of their full right to self-determination.

Cree School Board v. Canada (Attorney General), [2002] 1 C.N.L.R. 112 at para. 96, citing I. James Quillen, “Problems and Prospects” in George D. Spindle ed., Education and Culture: Anthropological Approaches (New York: Holt, Rinehart and Winston, 1963) at 50. 62 Report of the Royal Commission on Aboriginal Peoples: Gathering Strength, vol. 3 (Ottawa: Supply and Services Canada, 1996) at 433. 63 Chadee v. Norway House First Nation, [1997] 2 CNLR 48 (MB CA). 64 Ibid at 57. 65 GA Res. 61/295, U.N. Doc. A/RES/61/295 (2007). 66 International Labour Organisation Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, art. 27(3). 67 Supra note 65, at art. 4. 68 Lorie Graham, “The Right to Education and the UN Declaration on the Rights of Indigenous Peoples” (2010), Suffolk University Law School Research Paper No. 10-61. http://ssrn.com/abstract=1701913. 69 Charter of the United Nations; International Covenant on Economic, Social and Cultural Rights.

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Given First Nations’ inherent right to education and the scope of their potential authority over education, the EIS appears to regulate or restrict the exercise of this jurisdiction, or would make it subordinate to federal oversight. This is an infringement of the aboriginal right to selfgovernment and self-determination. The proposed EIS would inevitably affect the exercise of this right. Therefore, by contemplating the creation of the EIS, the Crown has triggered the duty to consult.70 The principle of free, prior and informed consent appears throughout UNDRIP and other international standards. The most relevant occurrence in relation to the EIS is in Article 19 which states: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” 71 The courts have never answered the question of whether or not an aboriginal right to selfgovernance over education exists. However, courts will settle a claim to an aboriginal right based on the specific history of the group claiming the right. 72 Individual bands will be required to prove that they have a right to self-govern education, as this practice occurred and continued to occur prior and subsequent to the arrival of the Europeans. It is likely that such a right could be proven, although the process is extremely complex. With respect to funding, the right for funding for education flows from the historic treaties and the fiduciary relationship. Many of the historic treaties guarantee a right to funding for education. The exact duty of the federal government to provide education would depend on the treaty in question. However, a full review of the right to education under the treaties is out of the scope of this memo. The real question at the heart of the EIS project is: Can the government control First Nations by making school funding conditional on the release of education data? Government funding is done under the ‘federal spending power’ and can legally impose a broad range of conditions. But conditions to aboriginal peoples are subject to the Honour of the Crown. The Crown must act honourably and deal with treaty issues in good faith and owes aboriginal peoples a fiduciary duty to act in their best interests. 73 If the government violates that duty, the court can enforce interpretations of the treaties that are in the best interest of those First Nations who are signatories to the numbered treaties.

70 71

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para 35. Supra, note 65. 72 R v Van der Peet, [1996] 2 SCR 507 at 73. 73 R v Marshall [1999] SCJ No 55.

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4.

Consultation & Accommodation

Where the Crown contemplates legislation, a course of action or a decision that could have an adverse effect on established or asserted aboriginal and treaty rights, it must consult with the relevant aboriginal peoples and, where appropriate, seek to achieve a reasonable accommodation of their rights and interests.74 Consultation is a crucial component of the fiduciary relationship between the Crown and First Nations. In matters where federal government is creating laws, regulations or policies that deal directly with First Nations interests, First Nations citizens and the scope and content of Aboriginal or treaty rights, there is a constitutional duty to consult. Consultation is a constitutional principle.75 The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might negatively affect it.76 The scope of the duty to consult will depend on the nature and strength of the claim, 77 minor claims requiring mere notice, while stronger claims requiring more stringent consultation duties.78 At a minimum the content of the consultation must be consistent with the Honor of the Crown. 79 As the scope of the duty to consult continues to develop, it is clear that good faith by both parties is required.80 The consultation must be meaningful, absent of sharp dealings, and the Crown must intend to substantially address the concerns of the First Nations. The First Nations, in turn, should not take unreasonable positions or frustrate the Crown’s reasonable good faith attempts. 81 The duty to consult applies in cases of the pending resolution of claims. 82 It also applies where there is an established aboriginal or treaty right and there is the potential of developing new laws, regulations or programs that impact those rights. The consultation framework that followed from Sparrow and Delgamuukw was always meant to have occurred prior to the infringement. The honor of the Crown requires those exercising governmental decision-making authority to consult with affected First Nations. 83 Where there is no consultation in the development of regulation, policy or program, there an infringement on the exercise of those rights and the inherent right of Aboriginal people to self-government.

74

Supra, note 70 at para 10; Also see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para. 51. 75 Beckman v. Little Salmon/Carmacks First Nation, [2010] SCR 103. 76 Supra note 70, at para 35. 77 Beckman v. Little Salmon/Carmacks First Nation, [2010] SCR 103. 78 Supra, note 70 at 37. 79 Ibid at para 38. 80 Ibid at para 41. 81 Ibid at para 42. 82 Ibid at para 27. 83 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] SCR 650. Consultation should happen at the stages of strategic high level decision-making.

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In 1999, the B.C. Court of Appeal in Halfway River84 stated: The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.85 Meaningful consultation may oblige the Crown to change its proposed plans based on the information obtained in the consultation process. 86 Accommodation results from this. The Court concludes that in claims which are not yet proven, accommodation means “seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other’s concerns and move to address them”. 87 AANDC has not undertaken any meaningful consultation or accommodation on the EIS. AANDC has expressed an opinion that consultation is not required because the department is implementing a new data collection system, as opposed to a new program. First Nations were afforded an opportunity to raise questions regarding the EIS. However, First Nations have expressed frustration in that the input they provided on the EIS was not taken seriously by AANDC officials and did not influence the development of the EIS. AANDC responded that they considered input from First Nations to ensure they had an easy to use system, with a singleentry point for AANDC’s services through the AANDC Services Portal. 5. Potential Legal Arguments

First Nations may choose to challenge that EIS program through a number of ways. The following provides some high level arguments that may be used, and it is not intended to be an exhaustive list: 1. First Nations can challenge the EIS on the ground that the AANDC has failed to adequately consult and accommodate their interest in the development and implementation of the program. 2. First Nations have raised a number of concerns regarding EIS over the last few years. AANDC has dismissed or ignored the concerns and recommendations of First Nations. In doing so, AANDC has failed in its legal obligations to accommodate First Nations educational interests.

84 85

Halfway River First Nation v. B.C. (Ministry of Forests), 1999 BCCA 470. Ibid, at paras 160-161. 86 Supra, note 70 at para 46. 87 Ibid at para 49.

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3. First Nations have the inherent right to self-governance and thereby have authority to enact their own privacy laws and regulations. Should any First Nation enact its own privacy law, the EIS would have to be reviewed to ensure that the participating First Nation complies with its own laws. 4. First Nations may challenge the EIS on the ground that the EIS has been established without the legislative base. The EIS is not defined in or authorized by any federal statute. As described above, the EIS is not in compliance with the Privacy Act. As a consequence, AANDC has removed affirmative legal duties for the government and First Nations educational bodies to protect private student data and employee records. 5. First Nations are concerned that student’s records will be disclosed without the proper consent to a host of unregulated entities. With respect to privacy legislation, the courts have interpreted this important issue to not increase the risk of harm to people. Where there is substantially increased risk of harm or a substantial probability of harm, the courts will take these factors into account. There is a substantial increased risk of harm that the records will be disclosed to unregulated parties because EIS will provide access to researchers and third parties to audit or evaluate the federal education data. Pursuant to the EIS MOU regarding access to researchers, there is literally no limit on the number of individuals who will be able to access student records, employee records and other private information. 6. First Nations education entities compile private information on students and the collected information will be in excess of what is needed for EIS compliance. First Nations collection of student information includes the following: student ID numbers; other unique personal identifiers; names; addresses; telephone listings; dates and places of birth; major fields of study; grades; transcripts; participation in officially recognize activities and sports; medical information; attendance; degrees and awards received; and most recent previous education agencies or institutions attended by the student. Because First Nations collect excess information, there is a substantial probability that pursuant to the EIS, students’ personally identifiable information will be disclosed to third parties, researchers and others. Many First Nations are concerned about these consequential harms and other potential breaches. 7. Parliament’s intention is clear as evidenced through the Privacy Act and legislative history which demonstrates that students should be able to prevent disclosures of their personal information. AANDC’s interpretation of the Privacy Act is not reasonable, because parents and students should have the opportunity to withhold private information from public disclosure or disclosure to third parties. The EIS removes students’ statutory right to withhold personal information in violation of the Privacy Act. This provision is particularly important in the context of student privacy interests. Where First Nation education institutions disclose the information, they must first notify students and provide an opportunity for students to prohibit disclosure of their information. Through the EIS, students and employees of First Nations have no control

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over their data and private information. This directly contravenes the legislative protections of First Nations’ students and employees. 8. The information contained in education records of the student can provide sensitive and potentially embarrassing reports, which if disclosed could amount to privacy invasions. This information can also be used for business purposes, employment decisions, educational assessments, and even identity theft. The identification using student’s unique ID numbers is relatively simple. Many schools provide access to education records by using ID numbers and other directory information, such as birthdays and email addresses. The EIS would provide access to student ID numbers by permitting access to records by third parties, researchers and others who fall under the exemptions of the Privacy Act. 9. The EIS contemplates the ability of third-party representatives to access data contained in the system for various purposes such as audit and evaluation. The program will circumvent the Privacy Act’s intended purpose of keeping information confidential and in the hands of a federal department. The EIS will authorize third parties to have direct control and access to the education records of students without their knowledge or consent. Where private information is housed, the Privacy Act requires Federal departments to limit access to personal information to those officials who require such data. In other words, data in the possession of the federal government is not available to any employee. The EIS grants access to a limited number of other governmental departments and agencies, as well as third party entities who audit or evaluate education programs. The EIS renders the concept of an authorized access meaningless. 10. The granting of access to third parties without the consent of students and employees of First Nations increases risk that these third parties may pursue goals inconsistent with AANDC and the Privacy Act. The MOU allows third parties and researchers access to EIS data, who are not required to adhere to any regulatory scheme detailing how to protect First Nations student and employee records. The Department’s ability to grant access to third parties is no more than a carte blanche for them to use education records how they see fit. Non-regulatory guidance through written MOUs includes specific provisions. Designators are required to use reasonable, unenforceable, non-regulatory methods to uphold student privacy protections. AANDC explicitly declines to impose specific requirements for reasonable methods under the EIS and instead uses nonregulated guidance on best practices for reasonable methods. This is contrary to the intent of the Privacy Act. 11. First Nations are particularly prone to abuse under the EIS as they have no ability to opt out of the program. Under the provisions of contribution agreements, the federal government may withhold federal funding to a First Nation that does not provide student records. This may result in unconscionable and sharp dealings under contract law.

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12. The EIS grants access to education records in connection with the audit and evaluation of federal education programs or in connection with enforcement of federal requirements which regulate such programs. An education program is any program principally engaged in the provision of education, including but not limited to early childhood education, elementary and secondary education, post-secondary education, special education, job training, career and technical education, adult education, and any program that is administered by a First Nations education authority. Education programs also include such programs as bullying prevention, substance abuse treatment and violence prevention. An expansive definition of education programs can also include non-academic services provided by audiologists, family therapists, nurses, nutritionists, occupational therapist, mobility specialist, pediatricians, physicians, physical therapists, psychologists, social workers, special educators and special language pathologists. These non-academic services collect information that does not pertain to education but is included in student records. AANDC does not require these types of information to evaluate the effectiveness of First Nation education. 13. This expansive set of student information possessed by First Nations will become accessible to auditors and evaluators. These individuals will have virtually limitless access to education records in order to evaluate education programs. This potential forces many First Nations to choose between keeping their education records private or obtaining much-needed education funding. Permissible construction of the Privacy Act does not allow the release of education records to evaluate programs that do not relate to education. Therefore the EIS decision to include social and health services and other programs incidental to education is inconsistent with privacy laws. 14. First Nations have the right of self-government. The EIS is another part of the ongoing federal strategy to eliminate and restrict Aboriginal and Treaty rights by continually attempting to place them under the control of the colonial administrative framework. Conclusion In our opinion, the EIS has serious policy and privacy implications for First Nations. The EIS is inconsistent with the privacy interests of First Nations, First Nations students and employees of First Nation education authorities. Based on the information provided to the AFN, it is likely that the EIS will enable researchers and third parties limitless access to the private information of students and employees. It is of serious concern that AANDC continues to move forward with the implementation of the EIS without consideration of the interests and recommended amendments brought forward by First Nation governments and First Nation experts. A number of First Nations have rejected the EIS, while others have expressed sincere reservation about the security of the data and the various exemptions that allow access under the Privacy Act. The lack of consultation by AANDC directly contradicts and undermines the nation-to-nation relationship with First Nations.

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