AFN Legal Memo on AANDC Ed Info Systems Final (3)

7/27/2019 AFN Legal Memo on AANDC Ed Info Systems Final (3)

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Assembly of First Nations

Legal Memorandum Privileged and Confidential TO: Jon Thompson

CC: Peter Dinsdale, Tim Thompson

FROM: Stuart Wuttke

DATE: July 24, 2013

RE: AANDC Education Information System Project

Summary

The AFN legal department was asked to provide an analysis on Aboriginal Affairs and Northern

Developments (AANDC) Education Information System (EIS). The specific concerns raised by

AFNs 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 AANDCs 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. AANDCs 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 Departments 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 singleintegrated 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 AANDCs

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 inany 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 didnt 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.

1The 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 Governments 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 theirconcerns, which were identified, prioritized and presented to AANDC. Areas of concerns

included:

AANDCs continued disregard of First Nations Inherent and Treaty Rights and FirstNations Control over First Nations education throughout the EIS process;

AANDCs 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, andreaction 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 individuals

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 Actrequires 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.3The Privacy Actonly protects an

individuals personal information.4

The Privacy Actdoes not apply to a First Nations 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 individuals 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.

2

The Privacy Act, R.S.C., 1985, c. P-21, section 5(1): A government institution shall, wherever possible, collectpersonal 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 Canadas 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.tbs-

sct.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 Canadas 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/doc-

eng.aspx?id=25495&section=text .


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Assuming that the Privacy Actallows for AANDC to obtain data from First Nations, for the EIS to

be compliant with the Privacy Actall 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 inquestioning 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 Actto 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 governmentdictates 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

6AANDC 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.7Supra, 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 Actby 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 interest8

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 theinformation 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 Actprovides 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 governments 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 Actdoes not contain any legal remedy for the unlawful disclosure of information or

8The Blacks Law Dictionary 6

thed 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.9In 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 Actis 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

individuals 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 Commissioners decision.

Section 74 of the Privacy Act contains a privative clause that limits any civil or criminalproceedings.

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) OntarioIn Ontario, school boards are considered to be government bodies. The private information

collected by school boards is protected by both the Education Act16

and the Municipal Freedom

of Information and Protection of Privacy Act17

(Municipal Privacy Act).

The Education Actrequires 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 students 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: students date of birth,

legal name, Ontario Education Number, report cards, progress reports, transcripts, studentregistration form, student photograph, summary of health conditions, participation in extra-

curricular 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 Actthat prevents educators from possessing other kinds

of records.

14In 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 Actenables 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 Actapplies 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 Actprovides 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 Acthas 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) QuebecQuebec has similar privacy laws as Ontario. The main privacy act in Quebec isAn 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.

18Ontario 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'accs 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 iscommunicated 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 individuals 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

Somwar20

, 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

19Privacy Act, RSBC 1996, c373; Privacy Act, CCSM c P125; Privacy Act, RSNL 1990c P-22; Privacy ActRSS 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 individuals personal

information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate

protection against infringement of an individuals 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 Canadas 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

elements24

:

1. the defendants conduct must be intentional or reckless;2. the invasion is, without lawful justification, into the plaintiffs private affairs orconcerns; and3. 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 Saskatchewan27

, 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 liableunder 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 ones 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 students permission without lawful justification, that student could have apotential 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-Cloutier33

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:

30InR. 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 Stoddartfound 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, Tsiges employer may have had a defence on the grounds that Tsige was acting

as a rogue and contrary to the employers internal policies. However, the Supreme Courts 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.).34Ibid, Para 12.

35Ibidat paras. 14-20.


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1. Is the information acquired, collected, disclosed or published of a kind that a reasonableperson 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 publicinterest 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.AANDCappears 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 thelittle 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.

36Supra, note 33 at para 20.


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Generally, contribution and other funding agreements is AANDCs 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 governments 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 tothe 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 AANDCs

position on EIS for funding invalidates or otherwise affects the funding agreement that is

372011 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 educationfunding 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 relationshipbetween the parties.

2. Whether the agreement is unfair, either by way of one party being undulydisadvantaged 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 thestronger 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 others 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

40Geffen 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 didnot 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 partys 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

42Barton v. Armstrong [1975] 2 All E.R. 465, [1976] A.C. 104.

43SM Waddams, The Law of Contracts, 6th ed (Toronto: Canada Law Book, 2010) at 509.

44Pao On v. Lau Yiu Long, [1980] A.C. 614 (J.C.P.C.).

45Ibidat 635.

46Universe Tankships Inc. of Monrovia v. International Transport Workers Federation (The Universe Sentinel),

[1983] 1 A.C. 366 (H.L.).47

Greater Fredericton Airport Authority Inc. v. NAV Canada (2008), 290 D.L.R. (4th

) 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 thatpressure must have been such that the coerced party had no practical

alternative but to agree to the coercers 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 developmentof 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 beneficiary49

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

48Supra, note 47, at para 53.

49Wewaykum 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 controlin a way that invokes responsibility similar to a private law duty.50

Manitoba Mtis 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 testof 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 notionalseverance. 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.

51Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7 at para 27.

52Shafron 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 theLegislatures in 1867.

55There 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

53In 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 self-

government 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 Canadas 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.pdf57

UN GA Resolution 2200A (XXI), Article 1.58

Reference re Secession of Quebec, [1998] 2 S.C.R. 21759

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.


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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

theManitoba Court of Appeal confirmed that the

present legislative scheme enables First Nations to control the education of their children. Inreflecting 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 tool68

to Indigenous peoples

pursuing the right to freely determine their political status and freely pursue their economic,social, and cultural development.

69Education is necessary for Indigenous peoples realization of

their full right to self-determination.

61Cree School Boardv. 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

Ibidat 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 self-

government 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 self-

governance 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.

70Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para 35.

71Supra, note 65.

72R v Van der Peet, [1996] 2 SCR 507 at 73.

73R 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 federalgovernment 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 Crowns 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 thedevelopment of regulation, policy or program, there an infringement on the exercise of those

rights and the inherent right of Aboriginal people to self-government.

74Supra, 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

Ibidat para 38.80

Ibidat para 41.81

Ibidat para 42.82

Ibidat 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 Crowns 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 ofaction.

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 others 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 single-

entry point for AANDCs services through the AANDC Services Portal.

5. Potential Legal Arguments

First Nations may choose to challenge that EIS program through a number of ways. Thefollowing 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 toadequately 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.

84Halfway River First Nation v. B.C. (Ministry of Forests), 1999 BCCA 470.

85Ibid, at paras 160-161.

86Supra, note 70 at para 46.

87Ibidat para 49.


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3. First Nations have the inherent right to self-governance and thereby have authority toenact 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 establishedwithout the legislative base. The EIS is not defined in or authorized by any federalstatute. 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 students records will be disclosed without the properconsent 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 thecollected 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 awardsreceived; 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. Parliaments intention is clear as evidenced through the Privacy Act and legislativehistory which demonstrates that students should be able to prevent disclosures of their

personal information. AANDCs 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 andpotentially 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 studentsunique 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 containedin the system for various purposes such as audit and evaluation. The program will

circumvent the Privacy Acts 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 employeesof 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 EISdata, who are not required to adhere to any regulatory scheme detailing how to protect

First Nations student and employee records. The Departments 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 non-

regulated 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 optout 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 evaluationof 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. Educationprograms 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 becomeaccessible 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 ongoingfederal 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.