Open Letter: Call for the Immediate Withdrawal of Bill 22, Freedom of Information and Protection of Privacy Amendment Act, 2021
Dear Premier Horgan and Minister Beare,
On October 18, 2021, your government introduced amendments to British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA) through Bill 22. We have learned that Bill 22 is quickly proceeding through the legislature and is anticipated to receive Royal Assent before the end of the current legislative session on November 25th. However, the bill in its current form fails to uphold First Nations’ unique rights of access to information as many of the proposed amendments will create new barriers for First Nations requiring access to provincial government records to substantiate their historical grievances against the Crown. Further, several proposed amendments disregard significant concerns we identified in formal submissions to the public engagement process, and introduce measures about which we were never informed, contravening Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), and your government’s legal obligations under the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
We call on your government now to withdraw Bill 22 and establish a process of substantive engagement with Indigenous governing bodies affected by the FIPPA to ensure that transparency, openness, and fairness are enhanced and First Nations’ rights under the UN Declaration are upheld.
The right to access information is a fundamental component of First Nations’ efforts to resolve historical land-related grievances, such as specific claims. Because First Nations are required to produce a wide range of records to substantiate their land claims and historical land-related grievances against the Crown, Freedom of Information has direct impacts on the ability of First Nations to achieve justice through government mechanisms of redress, a right articulated in Article 28 of the UN Declaration.
In April 2018, the Union of BC Indian Chiefs made a formal submission to the Ministry of Citizens’ Services’ engagement process in which we identified key barriers First Nations routinely experience when attempting to obtain provincial government records through Freedom of Information, including prohibitive fees and the denial of requests for fee waivers, prolonged delays, overly broad applications of exceptions to disclosure, widespread failures to create, retain, and transfer records, and the exclusion of subsidiaries from duties of disclosure. We emphasized that the barriers faced by First Nations seeking information access must be specifically and systematically targeted, such that rights to redress are advanced and protected.
The provisions in Bill 22 ignore our concerns and further entrench barriers to access. The introduction of an application fee for all Freedom of Information requests will disproportionately harm First Nations requesters since they experience higher levels of poverty and often lack resource capacity. Your characterization of the new fee as “modest” displays astounding ignorance and insensitivity since legal processes of redress for historical losses require First Nations to make multiple formal requests for records from various public bodies in order to obtain evidence. It is nonsensical that a government publicly committed to reconciliation, transparency, and accountability would impose further financial hardships on First Nations who require access to provincial government records to substantiate claims of government wrongdoing. The bill also prevents the Information and Privacy Commissioner from waiving the application fee if the request is in the public interest.
It is especially egregious that the introduction of an application fee was never discussed with First Nations or their representative organizations, and as such contravenes Article 19 of the UN Declaration which requires governments to consult and cooperate in good faith with Indigenous peoples to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. The provincial government’s selective application of Article 19 violates the DRIPA and betrays a colonial attitude toward its implementation.
Bill 22 introduces no penalties for public bodies who exceed legislated timelines for providing requested information, which will do nothing to address delays and the under-resourcing of the information management system which accounts for it. The bill continues to exclude subsidiaries from mandatory disclosure, compromising First Nations’ abilities to obtain complete historical records required for their claims to succeed.
Alarmingly, the bill removes the Office of the Premier and Executive Council Operations from the list of public bodies covered by the FIPPA, and fails to create, enforce, or oversee a ‘duty to document’. This amounts to willful obstruction and hampers First Nations seeking access to information. While specific claims are historical grievances that occurred at least fifteen years prior to the filing of a claim, this bill effectively absolves your office of any legal responsibility to disclose records related to the actions or decisions which may be subject to future claims. The same can be said about the bill’s failure to make it mandatory for public bodies to create records of all actions and decisions, something the provincial NDP championed when it was in opposition and about which it now, holding a majority in the legislature, seems to regard with disdain.
Advocates for government accountability and transparency, organizations committed to human rights, and the provincial Information and Privacy Commissioner are condemning this bill, calling it a highly unethical step backward. The amendments introduced through Bill 22 as discussed above will have concrete, negative impacts on First Nations’ access to justice. This is a fundamental concern for the communities we represent.
We reiterate our call for you to withdraw Bill 22 and take immediate steps to make meaningful, direct dialogue with First Nations a priority. This work must be guided by transparency, due process, and full enactment of the government-to-government approaches articulated within the UN Declaration and outlined in DRIPA.
On behalf of the UNION OF BC INDIAN CHIEFS
Grand Chief Stewart Phillip Chief Don Tom Kukpi7 Judy Wilson
President Vice-President Secretary-Treasurer