Public consultation on the Privacy Act – Submission – Native Women’s Association of Canada

Cette soumission n’est disponible qu’en anglais.

February 2021


The following comments are submitted with respect to the Government of Canada’s consultations on the modernization of the Privacy Act. These submissions are focused on the rights and interests of Indigenous women with respect to their personal information and the dynamic relationship of this information with collective Indigenous rights.

About NWAC

Founded in 1974, the Native Women’s Association of Canada (NWAC) is a National Indigenous Organization (NIO) representing Indigenous women, girls and gender-diverse people in Canada, inclusive of First Nations on and off reserve, status and non-status, disenfranchised, Métis, and Inuit. NWAC engages in national and international advocacy for policy reforms, promoting equality for Indigenous women, girls, and gender diverse people.

NWAC was founded on the collective goal to enhance, promote, and foster the social, economic, cultural, and political well-being of Indigenous women within their respective communities and Canada societies.

Through advocacy, policy, and legislative analysis, NWAC works to preserve Indigenous culture and advance the well-being of all Indigenous women, girls and gender diverse people, as well as their families and communities.


Privacy and Indigenous Rights

The First Nations and Inuit Regional Health Survey National Steering Committee recognized the OCAP principles in 1998: ownership, control, access and possession. These principles were identified to guide how First Nations’ data should be collected, protected, used and shared and to support First Nations’ conception of collective ownership of group information.

The United Nations Declarations on the Rights of Indigenous Peoples also sets out rights related to personal information. While UNDRIP is, in large part, a codification of collective rights, certain provisions relate to the privacy rights of individuals, including the right to effective remedies for infringements of their individual and collective rights.

Personal information of Indigenous peoples can be highly relevant to the community, such as information related to their heritage, family, marital status or parental status. While this information may be of relevance to collective rights of Indigenous peoples, it can also be highly sensitive and closely guarded. Unlawful disclosures of this information can place Indigenous women at physical, psychological, social and political harm and, in such events of disclosure, victims ought to be entitled to prompt and fit remedies.

Recommendation 1: The Act should include in its preamble recognition and affirmation of the Government of Canada’s commitment to the OCAP principles and UNDRIP.

Recommendation 2: The Act should amend the mandate of the Privacy Commissioner to include a duty to undertake prompt investigations of complaints that relate to disclosure of the personal information of Indigenous peoples that may adversely affect individual or collective Indigenous rights or that create the risk of physical, psychological, social or political harm to an Indigenous person, with particular attention to the risk of violence toward Indigenous women and girls.

De-identified Personal Information

De-identification of personal information is an important tool for strengthening the work, programs and policies of government departments with relevant data while protecting the personal information of individuals. This tool may be of particular usefulness in Indigenous communities and can support the work and policies of Indigenous governing bodies.

Recommendation 3: The Act should define “de-identified personal information” and afford the Governor in Council with authority to make regulations, on recommendations from the Privacy Commissioner, respecting the processes and standards for de-identification of personal information.

Integrity of Information-Sharing

Improving information-sharing with Indigenous governing bodies is consistent with principle 4 of the Department of Justice’s Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, that recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.

Access to and management of the personal information of their members can be vital to the effective and efficient administration of policies and programs by Indigenous governing bodies. For example, many First Nations communities operate their own health service centres under federal sharing agreements. First Nations approaches to health generally include a view to broadly ensuring a healthy community as well as health care for individuals. Communities that wish to research collective health patterns require access to records that may be restricted under privacy laws.

The Report on the Royal Commission on Aboriginal Peoples identified the ways in which Privacy Act provisions were sometimes barriers for Indigenous people wishing to learn more about their ancestry and lineage after having been adopted out, because these records may have been withheld under the Act.Footnote 1

The British Columbia Office of Commissioner of Information and Privacy also found privacy laws being used as a barrier for non-Indigenous landowners (and prospective landowners) to access information about whether their land was on an Indigenous archaeological or heritage site. In Re Vancouver (City)Footnote 2, the issue was whether disclosure of a site’s archaeological significance to the Squamish First Nation should be kept private so as not to put the land at risk of harm from non-Indigenous land owners. The Commissioner held this belief unreasonable.

While improved data-sharing with Indigenous governing bodies can help in advancing reconciliation and is consistent with Indigenous self-government in the context of modern cooperative federalism, the integrity of information protections must be maintained in order for individuals to have confidence in the legislation and related processes. The relevance of personal information of Indigenous individuals to collective Indigenous rights does not invalidate the rights of individuals to the secure protection of their personal information.

The disclosure of sensitive information about Indigenous women and their families can expose them to risks of harm. Any systems of information sharing under the Act must recognize the unique and sensitive nature of the personal information of Indigenous women and their families and ensure that the integrity of information protections are preserved.

Recommendation 4: The Act should provide Indigenous governing bodies with the option to enter into information sharing agreements the provide access to the personal information of their members; however, strict information protection measures should be included in these agreements and the Act should set out specific offences for breaches of information provided under these types of agreements. Moreover, the Act should provide individuals that may be affected by such an agreement with notice of a pending agreement and an opportunity to opt-out of the disclosure of their personal information with an Indigenous governing body.