Indigenous and Northern Affairs Committee on Oct. 31st, 2012

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chairman.

It is a real pleasure to be here today to join this committee and this study. I am not a member of this standing committee, but I am very interested in this piece of legislation.

I want to thank you for being here, Ms. Stoddart. It's been a while since I've seen you. I think the last time I saw you was when I was a member of the ethics committee. I very much appreciated the work you did through that committee, and I also very much appreciate the work you do as our privacy commissioner.

I appreciated your statement and what I thought was a very balanced approach to this issue. I also appreciate a statement that you made early on in your introduction, that:

...C-27 would effectively harmonize all reporting to the department and provide a legislative basis for proactively disclosing this information publicly available on the Internet.

I guess what I want to do is bring the conversation back to those areas that you are very comfortable in speaking to. My first question would be, what are some of the pieces of legislation and principles of transparency relating to financial transparency that governments in Canada are expected to follow?

[Jennifer Stoddart]

Financial transparency for governments in Canada would probably vary according to the province. Again, there are other people who know more about financial transparency than I do, but I think, first of all, our parliamentary budget process means, in principle—I know it's a complex process now, and it's hard for many of us to follow—that the budget statements and the intentions of the government in spending are laid before the representatives of the people. More recently, in the search for greater transparency, we've gone to publishing a lot of expenditures on websites, so they are very readily available.

I believe the Accountability Act of 2006 brought in a whole series of new measures where our budget, incremental expenses of many officials, expenses of organizations, and, more recently, our quarterly budget reporting in the last 12 months for departmental and agencies have to be published online.

These are the main thrusts. The Comptroller General and the Auditor General also make reports to the public.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Are you aware of any pieces that you just referred to applied to first nations governments?

[Jennifer Stoddart]

I don't know that, honourable member. I have read that the Auditor General has audited the first nations, and I'm aware that he or she raised the issue of the reporting burden in the past, but that is all I can say.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Okay. How do the standards for first nations government that are set out in this bill compare to that of other governments? Maybe speak more specifically to the federal government in Canada.

[Jennifer Stoddart]

In my presentation I suggested that this is a trend, with the caveat that to the extent you can compare the elected officials of first nations and some of their high-ranking employees to government officials. There may be constitutional arguments. There are doubtless aboriginal law arguments that seek to make that distinction. But to the extent that they are public officials, I noted that there is a trend in Canada, with very few exceptions, to requiring greater transparency about their remuneration, benefits, and other moneys they may spend personally.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Speaking about the fact that it may reasonably be in line with public expectations to disclose the salaries of chiefs and councils because other levels of government are doing that as well, I'm wondering if you would be able to share with this committee any of the benefits for first nations or for government—the federal government or other governments in Canada—that you see as a result of this legislation.

[Jennifer Stoddart]

Thank you for that question.

As Privacy Commissioner, I spend more time thinking about the protection of personal information than the contrary. As I mentioned in my statement, there is a growing trend toward transparency throughout the democratic world. As Privacy Commissioner, I have tried not to stand in the way of that trend. It's important for democracies, but at the same time, we also understand that we have to protect personal information very strongly.

For example, this morning I was talking to a group about the ongoing challenge of having civil servants look into files where they have no business. That is unacceptable in a democracy. That doesn't mean that in general we should be transparent about things that are not personal. The challenge before us today in this case is which people in jobs of importance that are funded by money collected by the public—at least in part, but in the case of the federal government totally—deserve to have their remuneration posted online as an exception to the general rule, because the public has a great level of trust in them and needs to know exactly what is happening with them.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We will now turn to Ms. Bennett for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

As my colleague from the NDP was explaining, there are some serious concerns, including those from Chief Darcy Bear. The announcement of this bill took place in his community. His understanding of the bill was that the first nations community would be entitled to have a look at the salaries of the chief and council because of the complexity of how so many first nations are funded, meaning a mixture of own-source revenue as well as government funding. I think everyone was surprised that this bill lumped together salaries plus expenses plus honoraria in a way that could look quite alarming for somebody who is not used to understanding how much it costs to represent a community in Canada that is very distant from Ottawa, and the kind of cost it takes to come together to form public policy in Canada for first nations by first nations.

Is there a different test for the privacy that all Canadians should be able to have, compared to what the community itself should have, with a password-protected way of getting to the band website, or having it posted on the wall in the band council office? Is that a different test, in terms of privacy and in terms of elected office, to the people who elected them?

[Jennifer Stoddart]

I guess we haven't been able to think as much as we would like to along these lines, but certain researchers, notably the Australian Law Reform Commission, in its review of their privacy legislation raised the question of group rights and group attitudes to privacy, particularly in aboriginal communities, which would be different from those of us with perhaps a more European individual privacy rights origin.

Last year we did fund a study, done out of the University of Victoria, about that topic. Perhaps I could ask the general counsel to describe it briefly, to the extent that this is a reality.

[Patricia Kosseim]

Under our contribution program, we funded research that was conducted out in B.C., I believe. It had to do more specifically with electronic health records in the context of aboriginal groups, and it explored this concept of group privacy as it could be applied to aboriginal peoples. Of course, our laws are silent on the concept of group privacy and are founded on the notion of individual privacy.

To go back to the question of different stakeholder groups, one of the fundamental principles, really, is the need to know and the need to divulge information necessary for the objective of the bill or of the program or of the initiative. The framework the commissioner presented allows you that flexibility to look at the kind of distinction you're making between different stakeholder groups: what they need to know, for what purposes, what are the broader policy objectives, and what are the least privacy-invasive ways of achieving those objectives.

Although we've presented it for Bill C-27 as it exists, there are many subtleties and distinctions that, in your wisdom, you may choose to make that will give you at least the framework, the tools, to deal with those questions.

Coming back to the concept of different stakeholder groups and different measures of accountability, depending on the ultimate purpose, those are the kinds of formulae that, as I said, in your wisdom parliamentarians could apply in a flexible way.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Chief Darcy Bear proposed a number of amendments because there is huge concern that the publication of financial statements of band-owned enterprises would leave them open to predatory practices of non-aboriginal companies. Again, sometimes that business may hire 20 people, and to look at it as though that member of council is receiving all that money is quite misleading.

There was also a concern that council members may not feel they want to open a business if this is going to happen, or that it wouldn't even be viable. Why would a successful business person in the community want to run for council if, all of a sudden, his business would be put at risk, compared with other people who aren't council members?

It sounds like the government is thinking about entertaining some of the amendments. In terms of your number one principle of whether the measure is demonstrably necessary to meet a specific need, who's need, in terms of transparency, are we talking about? Would you be prepared to have a look at the bill, with its amendments, to see if some of the issues you've raised in your four points would be better met with the newly amended bill?

[Jennifer Stoddart]

We haven't seen the amendments, but if you wanted us to come back to talk about them or.... You're well served, I think, by your parliamentary staff, but certainly if we could be helpful to you....

Perhaps I could mention to you, honourable member, that I think some of what you're talking about has to do with access to information. Financial information is not usually personal information per se, particularly if it's in a company or in an organization. In access to information, there are limits about confidentiality, about disclosing information that will jeopardize the profitability of a company. Another parallel to look at would be what the transparency requirements of Canadian companies are, both those that are publicly traded and those that aren't.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll now turn to Mr. Wilks, for seven minutes.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thanks, Chair.

Thanks for coming today.

I really respect the role you play. As a retired member of the RCMP, I recognize the privacy issues that come up from time to time and the importance of ensuring that certain information is protected, to protect those you may be putting in harm's way from time to time, but I also recognize the importance of being accountable to the public. Bill C-27 aims to do that.

I am curious: in what way does the Privacy Act apply to first nations governments? Is there anything that applies to first nations governments through the Privacy Act now?

[Jennifer Stoddart]

Can I turn you over to the specialist on this?

[David Wilks, Conservative, Kootenay—Columbia, BC]

You certainly can.

[Patricia Kosseim]

The Privacy Act will apply to certain entities if they're listed in the schedule to the act. Of course, it applies to the departments like Aboriginal Affairs and Northern Development Canada, and it applies to certain first nations groups to the extent that they're explicitly listed in the schedule to the act.

On the other hand, most band councils, first nations councils, to the extent that they are creatures of the Indian Act under the jurisdiction of Parliament, will be covered by another legislation we administer, and that is the private sector legislation, or PIPEDA. To the extent that they are federal works or businesses carrying out the core activities intended by the spirit of the Indian Act, they will be covered by that legislation, with respect to their relationships with employees, for instance.

With respect to personal information that they may hold of third parties, they will also come under the private sector legislation, but only if the activity in question that we're looking at is of a commercial nature. So it really depends on a case-by-case basis, to make a factual determination as to whether that private sector legislation will cover—

[David Wilks, Conservative, Kootenay—Columbia, BC]

I wonder if you could expound on that a bit more. You tweaked my interest when you said the “commercial sector”. Could you just expound more on that part of it?

[Patricia Kosseim]

For instance, there is an example where a band council provided a complaint that came to our office. The activity in question was in their capacity as landlord to the complainant. In that capacity, they were not only a federal work, undertaking, or business—a FWUB—but because the third party was not an employee, we had to determine whether it was a commercial activity. In that case, we determined that providing a dwelling was a commercial activity and it therefore fell under the act. That's an example where something can be both a FWUB and a commercial activity covered by the act.

[David Wilks, Conservative, Kootenay—Columbia, BC]

You alluded to this in your statement, Ms. Stoddart, but I'm just going back to it. Section 8 of the Privacy Act prohibits the disclosure of personal information unless an individual consents. Then you went on with regard to paragraph 8(2)(b), where disclosure is authorized by a federal statute or regulation. In other words, if this bill were to pass, the minister would be allowed to disclose specific salaries for the purposes set out in Bill C-27. Part of that disclosure will be through a website. I'm going to suspect that is part of it.

I wonder if you could expound a bit more on that. I believe that what you've said is correct, but the disclosure of specific salaries would not only be to the ministry, but also to the public. Is that correct?

[Jennifer Stoddart]

That's what I understand the act provides for. It has to be on the first nations website, and then the Department of Aboriginal Affairs and Northern Development will put it on its website, so you would have named individuals and their salaries on websites.

[David Wilks, Conservative, Kootenay—Columbia, BC]

And remuneration as well. Okay.

Further to that, because Bill C-27 would require the public disclosure of financial information, including personal information, am I correct that once this information is publicly available, the personal information would no longer be subject to the use and disclosure requirements under sections 7 and 8, respectively, of the Privacy Act and that other parts of the Privacy Act would continue to apply?