Dissertation au deuxième rang du concours de dissertation pour étudiants et étudiantes en droit de la Section nationale du droit de la vie privée et de l’accès à l’information

  • 22 aoĂ»t 2019

(disponible uniquement en anglais).

Introduction to Indigenous Canadian Conceptions of Privacy: A Legal Primer

Kimberly Gee, Thompson Rivers University Faculty of Law

Introduction

Privacy is a broad and contestable concept.Among those with divergent conceptions of privacy are Canada’s Indigenous peoples.[1] In the more than 600 indigenous communities throughout Canada, and within those different communities, there are various understandings of what privacy is, as well as an array of protocols in place to limit who and under what circumstances persons may access information (including cultural knowledge).While noting that diversity exists in indigenous communities and expressing caution in generalizing, some organizations and individuals nevertheless assert that Indigenous peoples have conceptions of privacy that reveal common perceptions and concerns.

Part I of the paper contains a general overview of the concept of privacy. Part II examines conceptions of privacy as articulated by Indigenous peoples in the literature, legislation, and jurisprudence. Included here is a discussion of what has been designated “the most common formulation of privacy interests expressed by First Nations stakeholders (the OCAP™ principles).”[2] The OCAP™ principles provide a framework for First Nations people to exercise ownership, control, access and possession over their own information and the way information is collected, used, and shared.”[3] Also included in this part is an overview of how Indigenous conceptions of privacy relate to Indigenous affirmations of sovereignty. Part III of the paper outlines some of the challenges associated with integrating the OCAP™ principles into law and practice, and, furthermore, how Canada’s existing regulatory regime works directly against the OCAP™ principles and Indigenous assertions of self-determination. Part IV of the paper looks to the future of privacy law advocating for greater appreciation for Indigenous notions of privacy and recommending the meaningful incorporation of the OCAP™ principles into Canada’s policy and legislative initiatives.

PART I: Conceptualizing Privacy

What is Privacy?

Privacy is a wide-ranging topic with many distinct features.[4] The Supreme Court of Canada (SCC) has noted that there is a “privileged, foundational position of privacy interests in our social and legal culture.”[5] The SCC also proclaimed that “[p]rivacy is a broad and somewhat evanescent concept.”[6] Privacy, as evidenced in its prevalence in legal orders and mainstream media, is widely recognized as an important value.[7]  Despite privacy’s prominence, scholars remain unable to reach a consensus respecting a universal definition of privacy.[8]  Agreeing on a definition of privacy is challenging in part because of the sheer extent of what it includes.[9]  Privacy touches on so many parts of our lives that we find it difficult to define or limit it.[10]  While agreement respecting any one definition has yet to be achieved, celebrated writers in the privacy domain such as Thomas Cooley, Samuel Warren, and Louis Brandeis have defined privacy simply as the 'right to be let alone.'[11] Arguably, this statement lacks the features of a robust definition yet it resonates with many who would agree that at the core of privacy “is the value placed on being free from unwanted intrusion into private space, physical or conceptual, and on the freedom to avoid or resist scrutiny of the details of one’s thoughts, words, and activities.”[12]  Many similar such definitions focus on privacy as providing a space free from outside interference and a sacrosanct “sphere of protection” for the individual.[13]

Beyond Individualistic Conceptions of Privacy

Some people, however, articulate privacy as more than an individualistic concept and embrace privacy as a group interest with relational aspects.  In her article, “Towards an Equality Enhancing Conception of Privacy,” Jane Bailey advocates for thinking of privacy in terms that reflect privacy’s collective and social value.  For Bailey, and other advocates of a collective concept of privacy, “[g]roup privacy emphasises the social value of privacy. It is meant to restore dignity, self-determination, integrity and anonymity to individuals in marginalized groups.”[14]  Some cultures support a community-based concept of privacy and it is this communal privacy interest, rather than an individualistic approach to privacy, that is the focus of this paper.

Privacy as a Right

In their oft-cited 1890 article “The Right of Privacy” Samuel Warren and Louis Brandeis argued for the treatment of privacy as a cognizable right that should be reflected in law as an absolute right against personal interference.[15]  In her book, Privacy in the 21st Century, legal academic Alexandra Rengel claims that privacy is universally considered a valued right spanning geographical borders and varied legal orders.[16]  According to Rengel, divergent legal orders have borrowed from each other to recognize an individual’s right to privacy as expressed in laws, custom, practice, and jurisprudence within nation states and the international domain.[17]  The right to privacy is often articulated as a universal right with limits which necessarily involves the balancing of an individual’s privacy rights against those of any public interests (such as an interest in security or research data).  

Collective Privacy as a Right

Privacy, articulated as a collective privacy right, is increasingly asserted by groups that recognize that the community owns information collectively in the same way that an individual owns his or her personal information.  Along with group ownership comes the the right to access, manage, and make decisions regarding access to their collective information.  Collective privacy can be asserted through laws or policies that require community consent for data collection, data access and disclosure, and for the sharing or reporting of data or results.[18]  Assertions of collective privacy will often apply to data already held in government or academic databases, as well as to new research.[19]  While personal privacy provides individual protection, collective privacy is for the community or group.  Collective privacy has a jurisdictional dimension for cultures that value self-determination both individually and collectively.[20]

PART II: INDIGENOUS Conceptions of Privacy

There is no single Indigenous perspective of privacy.  Indigenous populations in Canada have always been and continue to be diverse, and individuals, families and communities find meaning in their traditional culture to differing degrees and in differing ways.[21]  Furthermore, “[f]or the First Nations people, many of their communities are individual nations with their own set of languages and cultural practices.”[22] For this reason, and many others, it is problematic to generalize about Indigenous communities.[23] There is no such thing as a single “Indigenous” outlook because there is great variance and diversity among Indigenous legal orders and perspectives.[24] However, a review of the literature suggests to authors Williams and Jahnke that “[A]boriginal worldviews seem to emphasize totality and interconnectedness, as opposed to the individualism found in classical and modern liberalism.” [25]

Sources of Aboriginal Conceptions of Privacy

Indigenous Law

One source, to which we can turn for an understanding of Indigenous conceptions of privacy is Indigenous law.  However, caution should be exercised when interpreting and reaching conclusions about another culture’s narratives and laws.[26] BC Chief Justice Finch (as he then was) notes that the majority of legal practitioners are non-Indigenous and most lack formal training in disciplines such as anthropology or historiography which would prepare them with the skills necessary to research and analyze other cultures’ normative belief systems and legal orders.[27]  To reinforce his point, Justice Finch cites acclaimed legal scholar, John Burrows:

One cannot understand First Nations law without an appreciation of how each story correlates with others. A full understanding of First Nations law, and their principles for governance, requires familiarity with other stories of the particular culture and the surrounding interpretations given to them by their people.[28]

Indigenous privacy law is, therefore, not readily available to the author of this paper.  Acknowledging, as Justice Finch does, that “Indigenous legal orders exist largely in the form of inherited and interrelated oral traditions, themselves subject to complex systems of ownership and protocols,” an analysis of Indigenous privacy law must be left to another, more equipped, legal researcher.[29]  Significant questions can and should be explored in another context (perhaps as a graduate level thesis) and by legal researchers with the appropriate training.  However, what can be examined in the space allocated here is how some Indigenous peoples and organizations articulate privacy as expressed in the literature, legislation, and case law.

Social Science Research and Recorded Testimony

Research into Indigenous legal systems and inquiries into ‘the Indigenous perspective’ will use historical and modern texts, testimonials, and observations taken, in many cases, from the point of view of non-Indigenous experts, travellers, witnesses, anthropologists, and other social scientists.[30]  While such sources may offer value as evidence, we would be advised to carefully “examine and scrutinize their reliability in terms of accuracy, completeness, and objective. Colonial onlookers may import both conscious and unconscious agendas to their project of collecting and recording.”[31]  While social scientists and researchers, both Indigenous and non-Indigenous, may offer observations about Indigenous conceptions of privacy, they are not examined here as this important research is also best left to a legal researcher with more advanced training in the ability to analyze these works with an eye to their value and trustworthiness as sources.[32]

Laws Enacted by Aboriginal Governments

Some First Nation governments have exercised their jurisdiction and opted to enact their own privacy protection laws.   Among the First Nations that have done so are Tsawwassen First Nation (TFN) and Tla’Amin First Nation.However, the laws enacted by these Aboriginal governments do not appear to be substantially different from the provincial Freedom of Information and Protection of Privacy statutes.In speaking with an administrator at TFN, the author was advised that future revisions to the TFN Freedom of Information and Privacy Protection Act and the accompanying Access to Information Regulation may incorporate a reference to protocols for access to traditional knowledge in the community.[33]  Information Management Coordinator and Judicial Council Clerk, Jennifer Jansen, stated that this process will likely be community driven and the protocol itself, rather than incorporated directly into the law, will exist in another form outside the law.[34]  It remains to be seen if, and to what extent, First Nations exercising privacy protection jurisdiction will deal with both personal privacy and community privacy.  It is by enacting their own laws that Aboriginal governments can build a “First Nation privacy and security infrastructure…in a manner that supports the law and a community’s own values and principles regarding privacy.”[35]

International Conventions: UNDRIP

Another source of Indigenous conceptions of privacy can be found in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).  Canada endorsed UNDRIP in December 2010 and has confirmed the intention to implement it.  UNDRIP recognizes that Indigenous peoples have collective ownership over communal property and a right to have access in privacy to their religious and cultural sites.  Also relevant to privacy interests is UNDRIP’s emphasis on the concept of meaningful consent.  Articles 11(1) and (2) outline that in the event that "cultural, intellectual, religious and spiritual property" is taken without the “free, prior and informed consent” of the communities concerned or in violation of their laws, traditions and customs, States are to provide redress through effective mechanisms (to be developed in conjunction with Indigenous peoples) which may include restitution.[36]  Article 12(1) establishes, among other rights, the right of Indigenous peoples "to maintain, protect, and have access in privacy to their religious and cultural sites".[37]

Case Law

Most Canadian and United States case law respecting privacy is couched in individualistic terminology.[38]  In their technical report, the authors Weber, Vis-Dunbar, and Williams provide a survey of noteworthy privacy case law and comment that courts have consistently used terms such as ‘individual dignity’ and ‘personal choices’.[39]  There are, however, a few examples to be found in the case law that grapple with communal privacy rights.  For instance, in 1988 the United States Supreme Court held in Lyng v. Northwest Indian Cemetery Protective Association that the constitutionally protected free exercise of religion did not preclude the government from constructing a road through a national forest, despite the view of certain Indian tribes that this would cause “serious and irreparable harm to the sanctity of the area” in which “they required privacy, silence and an undisturbed natural setting to effectively practice their religion in the area.”[40]  A freedom of religion argument was recently presented (also unsuccessfully) in the SCC case, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations).[41] Although in Ktunaxa Nation a claim of privacy was not specifically offered, the preliminary portion of Article 12 of UNDRIP was invoked in the Appellant’s factum.[42] As Aboriginal claimants seek to continue their Aboriginal religious and spiritual rights in the face of encroaching development projects on their undeclared Aboriginal title lands, it is conceivable that we may see cases that employ a privacy right argument citing UNDRIP’s Article 12 in full.

 The court’s overall treatment of Aboriginal perspectives suggestions communal privacy interests could be given a generous interpretation when Aboriginal rights are at issue.  In the 1990 case R v Sparrow[43] the SCC interpreted s. 35(1) of the Constitution Act, 1982 and articulated an obligation for the court to be attentive to the aboriginal perspective when assessing the nature of the aboriginal rights at stake.[44]  Jurisprudence since Sparrow continues to affirm that “the Aboriginal perspective, and accordingly Aboriginal legal principles, must be taken into account in many areas of existing Canadian law.”[45]  In the wake of Sparrow, courts continue to incorporate Aboriginal perspectives in many areas of law including family, criminal and sentencing, and natural resources.[46]  In theory, at least, as Justice Finch points out, “there is no inherent limit to the ways in which Canadian and Indigenous legal orders may be mutually enriched and harmonized.”[47] Given the judiciary’s approach to Aboriginal rights which includes consideration of oral evidence and other indices of the Aboriginal perspective, authors Williams, Vis-Dunbar, and Weber are optimistic that significant weight ought to be given to the communal interests of First Nations people in the realm of health care and privacy should such a case reach the SCC.[48]

Communal interests of First Nations people respecting privacy were of issue in the recently decided SCC case, Canada (Attorney General) v. Fontaine (2017).[49]  In this case Fontaine, the Chief Adjudicator of the Independent Assessment Process (IAP), the AFN, and many IAP claimants argued in favour of destroying records associated with the class action settlement for the residential school survivors. Among the arguments were those that emphasized the collective impacts that could result if residential school records were not kept private.  Of particular concern was the possibility that alleged student-on-student abuse claims could “raise unique and heightened privacy and safety risks within First Nation communities if the confidential information were to be released or even if there is a perception that the information may be released.”[50]  It was argued that the release of such private information, even if de-identified, could cause serious distress, harm, community discord and “would continue of the legacy of disfunction and trauma that was created by residential schools.”[51]  A unanimous court decided that the claimant alone is free to choose the fate of the transcript records. The decision offers an overview of competing concerns that arise when tensions exist between a perceived public interest in historically significant information and public expenditures on the one side and a desire (by some claimants and alleged perpetrators) to ensure autonomy exists over information that was shared confidentially within a contractual arrangement on the other. 

Fontaine also illustrates the varied perspectives amongst Indigenous individuals and groups.  Some advocated the need to memorialize and commemorate the experience of residential school survivors and retain the records while others emphasized the issue of choice and autonomy over the disposition of the records.  The case also highlights privacy issues that can arise in the Indigenous context such as persons being identifiable (despite efforts to make information anonymous) due to the small nature of some indigenous communities.  Although not unique to indigenous communities, the issue of how de-identified information can nonetheless pinpoint information related to an individual or a collective group is a specific concern from the Indigenous perspective given the considerable number of Indigenous peoples living in small and remote communities throughout Canada.

Literature: Indigenous Communal Privacy Interests

Literature about privacy interests in the Indigenous context, though not given extensive treatment, covers a wide range of privacy concerns in relation to a multitude of types of information.[52]  While ‘private’ information in mainstream discussions is commonly understood to include financial and health information, for indigenous communities, ‘private’ information might include other types of information such as information associated with participation in ceremonies, hunting and gathering practices, or support for community development projects.[53]  Retaining privacy over certain traditional cultural practices is a long-established convention based on an understanding of collective privacy.[54] There is a strong interest in preserving and reviving indigenous languages, cultural practices, and value systems among Indigenous peoples and a resultant drive to have control over cultural heritage in a way that conforms with Indigenous laws and conventions.[55]  A tension exists, however, when the public asserts an interest in this information.  Authors of “Indigenous Data Sovereignty,” Tahu Kukutai and John Taylor, acknowledge that “[w]hile this information might be invaluable for…academics and others lacking a vested interest in these activities, collecting this information may be viewed as intrusive at a minimum or even threatening and potentially harmful.”[56] In response to such concerns, some literature outlines the limits to which research can be put.  For example, the Assembly of First Nations (AFN) published the “First Nations Ethics Guide on Research and Aboriginal Traditional Knowledge” in which it declares: “[r]esearch reports or parts thereof shall not be published where there are reasonable grounds for thinking that publication will violate the privacy of individuals or cause sigificant harm to participating Aboriginal communities or organizations.”[57] 

Most of the literature surrounding First Nations privacy interests center on the issue of personal health information and concerns about the limited utility of anonymization and de-identification when communal privacy rights are at issue.  Also of concern, is the inability of the present privacy legal framework to prevent or compensate for harms that arise from mishandling of personal health information in its aggregate form.[58] While anonymization and de-identification are the standard techniques for protecting the privacy of individuals, they do little to protect community privacy interests. In fact, deidentified and aggregated records can contain a lot of valuable information.[59] Because this type of information is not dealt with in privacy law, communities may be without recourse.[60]

Literature: Health Information

The Canadian government is developing electronic health record (EHR) systems to increase efficiency and to support collaborative care in health delivery.[61] Although these types of initiatives have the potential to offer great benefits in health care delivery, the use of these systems in the health care sphere brings about novel apprehensions surrounding privacy and security.[62] In their article, “First Nations Privacy and Modern Health Care Delivery,” James Williams, Megan Vis-Dunbar, and Jens Weber discuss First Nations conceptions of privacy in the context of Canada's electronic health records initiatives.[63]  According to the authors, although many commentators and policy makers have analyzed the privacy risks associated with aggregated data from the perspective of mainstream privacy law, much less consideration has been afforded to the privacy impacts on First Nations people.”[64] The authors also note the seriousness of this oversight:

[t]he unique nature of First Nations claims to sovereignty and self determination makes this a glaring omission, as a failure to accommodate the viewpoints of First Nations people risks perpetuating a historical relationship of paternalism and distrust.[65]

Some First Nations, understandably reluctant to participate in e-health initiatives, have opted not to partake or to limit their involvement.  E-health initiatives support holistic models of health providing what has been called a longitudinal health history over a person’s lifetime and a comprehensive database across health providers and disciplines.[66] The consequences of non-involvement could be detrimental to Indigenous health outcomes.  Fortunately, however, First Nations people are finding ways to express “their claims to sovereignty and self-determination in the information domain through the principles of Ownership, Control, Access and Possession, or the OCAP™ principles.”[67]

The OCAP™ Principles

An Overview

The right of First Nations communities to own, control, access, and possess information about their peoples is fundamentally tied to self-determination and to the preservation and development of their culture. OCAP™ allows a community to make decisions regarding why, how, and by whom information is collected, used or shared The term OCAP™ reflects First Nations values and jurisdiction regarding First Nations information and “the worldview of First Nations which have a unique history within Canada, a unique relationship with the Crown and unique jurisdiction and legal structure.”[69] he principles upon which OCAP™ originated may be shared by other Indigenous peoples, including MĂ©tis and Inuit, OCAP™ does not apply to non-First Nations information or research.[70]

Origins of OCAP ™ Principles

OCAP™ was created in 1998 by the First Nations Information Governance Centre (FNIGC) “to help guide the development of the First Nations Regional Health Survey (FNRHS), the only First Nations-governed, national health survey in Canada that collects information about First Nation on-reserve and northern communities.”[71]  OCAP™ has also been operationalized in many other initiatives in First Nations across Canada including eHealth record systems [and] research agreements.”[72] Since its inception, “the First Nations Principles OCAP™ have become the de facto ethical standard not only for conducting research using First Nations data, but also for the collection and management of First Nations information in general.”[73]

The FNIGC “was mandated through the AFN Special Chiefs Assembly and is governed by a Board of Directors appointed by each First Nation Region…to make the most of research and information that will truly benefit the health and well-being of First Nations.”[74]  The FNIGC aims to collaborate with organizations “working with First Nations through the use of credible information and processes that respect First Nations jurisdiction to own, protect, and control how their information is collected, used and disclosed.”[75] Arguably, First Nations themselves are distinctly situated with the knowledge and authority to balance the potential benefits and harms associated with the collection and use of their information.[76] The First Nations principles of OCAP™ are a response to Indigenous concerns about information management and acknowledge that Western laws and concepts fail to adequately acknowledge community rights and interests in information.[77]

OCAP™ has also been described as “a political response to colonialism and the role of knowledge production in reproducing colonial relations.”[78] According to the report of the Royal Commission on Aboriginal Peoples information gathering and use is “inherently political.”[79] Historically, Aboriginal people were not consulted “about what information should be collected, who should gather that information, who should maintain it, and who should have access to it.”[80]  Furthermore, “[t]he information gathered may or may not have been relevant to the questions, priorities and concerns of Aboriginal peoples.”[81]  As a consequence, of this past legacy of outside impositions of data gathering, resistance to data collection is not uncommon.[82]  First Nations communities have expressed exasperatedly, “[w]e’ve been researched to death.”[83]

OCAP ™ as an Expression of Sovereignty

The rights (including the right to self-determination) of Aboriginal peoples in Canada are recognized to be inherent.[84] This replaces an earlier paradigm that saw Aboriginal rights as being ‘granted’ by the Canadian state.[85]  The principles of OCAP™ are an expression of sovereignty over information in a way that can be likened to First Nations exercise of jurisdiction over First Nation lands.[86]  According to the FNIGC “[w]hen First Nations information is viewed as a resource, with value to both First Nations and non-First Nations, it is easier to see that the governance of that resource is part of a First Nation’s inherent right.”[87] According to author, Silke von Lewinski, the needs expressed by Indigenous peoples should be seen in the broad context of

their right of self-determination and with a view to the acknowledgement of sovereignty, indigenous peoples strive for control over the disposition and interpretation of their cultural knowledge and demand respect for their own laws and institutions.[88]

First Nations exercise jurisdiction respecting information governance by being accountable to their membership for the use and management of the community’s information. In this manner, the leadership can provide direction on how information will be used to benefit the community in a way that mitigates harm.[89]

The Principles

OCAP™ is a set of principles that establish a starting point for how First Nations data can and should be used and provides guidance to communities about why, how, and by whom their information is collected, used, or shared.  First Nations’ dedication to manage information in a way that brings benefit to the community, while minimizing harm is integral to the “OCAP™ principles. The principles of ownership, control, access, and possession offer one way that First Nations can express their values related to community privacy and information governance and are summarized by the AFN and the FNIGC to include:[90]

Ownership

Ownership refers to the relationship of First Nations to their cultural knowledge and collective information. This principle states that a group owns information collectively in the same way that an individual owns his or her personal information.

Control

Control affirms that First Nations, their communities, and representative bodies are within their rights in seeking to control over all aspects of research and information management processes that impact them. Control reflects a First Nations community's aspirations and inherent right to regain control of information. Control extends to all aspects of information management including policy and processes.

Access

Access entails a right to have access to information about oneself and one's community. First Nations communities have the right to access and manage (and make decisions regarding access to) their collective information, wherever it is stored. This may be achieved, in practice, through formal protocols.

Possession

Possession or stewardship refers to the physical control of data. The principle of possession is a mechanism to assert and protect ownership.  Information in the possession of other parties is difficult to control because of conflicting policies and legal instruments.

PART III: Current Challenges

Gaps in Canada's Regulatory Framework and Inappropriate Solutions

Among the challenges to implementing OCAP™ principles are the existence of gaps in the regulatory framework and the difficulty associated with implementing appropriate solutions.  The National Aboriginal Health Organization (NAHO) has voiced its concern that there is "no law in place that protects personal health information in First Nations communities, outside of federal, and some provincial activity".[91] To address gaps, the NAHO has urged OCAP™ be "brought to life by community codes or laws".[92] To further this objective, NAHO developed a toolkit, which published a sample Model Code for the protection of personal information on First Nation reserves. Created by a former British Columbia privacy commissioner, this document was based on the ten principles of the Canadian Standards Association (CSA) Model Code.[93]  The NAHO intended local communities to modify it to suit their individual needs.[94]  While the adoption of community codes or laws is a step in the right direction, from the NAHO's point of view, using the fair information principles as the default standard carries a risk of an incompatibility. The principles outlined in the CSA Model Code are highly individualistic in nature as evidenced in the wording that identifies ‘personal information’ as the significant asset, whereas the conception of privacy often expressed by First Nations groups is a communal one (as evidenced, for example, in the OCAP™ principles).[95]

OCAP ™ Principles are not incorporated into Canada’s Privacy Protection

When legislative or policy vacuums exist, other tools are necessarily employed to fill these gaps.[96]  First Nations are looking for assurances that both individual privacy and community privacy will be appropriately protected.[97]  Because the federal legislation does not recognize the concept of community privacy, other tools and strategies must be utilized to apply OCAP™.[98] The noticeable absence of group conceptions of privacy in Canada’s privacy protection regime is a problem if we agree with the assertion that First Nations data should be governed in a manner that respects personal privacy as well as community privacy and in conformance with First Nations information governance principles (OCAP™).[99]  Canadian privacy legislation is based on a core set of "fair information practices" that originated in international privacy norms.[100] These fair information practices are based on an individualistic notion of privacy. An example where individualistic phraseology reigns is in the consent principle.[101]   The principle of consent, which is widespread throughout Canadian privacy protection law, imposes a duty on an organization to obtain the consent of the individual before collecting, using and disclosing personal information.[102] As authors Williams, Vis-Dunbar, and Weber note “[c]ommunity interests are not mentioned explicitly, leading one to infer that a community's privacy interest is seen under Canadian law as being reducible to the privacy interests of its members.”[103]  The authors also assert that “[a]lthough exceptions exist, the individualistic approach to privacy is typical in the literature of the North American and European legal, philosophical and scientific communities.”[104] While recognizing that “deep conceptual difficulties [are] involved in reconciling communal privacy interests (such as those articulated in the OCAP principles) with individualistic conceptions of privacy” the authors also criticize the lack of commentary in the legal literature suggesting that the topic remains woefully understudied.[105]

The Current Regulatory Regime Works Against OCAP™

Canada, as a result of its fiduciary obligations and constitutional responsibilities to Indigenous peoples, collects and holds a significant amount of information on First Nations people.[106] The collection, use and disclosure of this information is regulated by the Privacy Act, the Access to Information Act (ATIP), and the Library and Archives of Canada Act, all of which apply exclusively to federal government institutions.[107]  Due to the way ATIP is drafted only a few First Nations in Canada “can share confidential information with the government of Canada and expect that information to be treated confidentially.”[108] While ATIP may protect the personal privacy of individual First Nation members, it does not offer protections for aggregate reports, demographic data, survey information, traditional knowledge, or reporting that takes place under contribution agreements.[109] In fact, except for those few First Nations that ATIP recognizes as “governments”, almost any information or data that First Nations provide to Canada, or that Canada collects from its members and other sources (as long as names and personal identifiers are de-identified) can be released to the public under ATIP.[110]   Through OCAP™ First Nations express their values and principles, however, as a quick look at ATIP indicates, these principles are not recognized by the government in federal legislation.[111] Against this backdrop, “OCAP™ is a way for First Nations to express principles of information governance and community privacy in an aggregate sense – a notion that seems quite foreign to many non-First Nations.”[112]

Insufficiency of First Nation Data Stewardship and Capacity Building

While federal legislation remains deficient, Indigenous peoples are able to ensure a degree of data stewardship through mechanisms such as service contracts, data sharing agreements, licenses to use, and other legal instruments when First Nations information is shared with other organizations.[113]  These mechanisms can include provisions that protect First Nations OCAP™ of the data.[114]  For OCAP™ principles to be respected, First Nations should have a chance to participate in information governance.[115] The AFN asserted in its report, OCAP™: Ownership, Control, Access and Possession” that OCAP™ only obstructs collaboration when there is "no willingness to respect First Nations rights to self-governance, including over our information".[116]  One way to implement OCAP™ is to develop the capacity of First Nations communities to be data stewards so they can fully manage their information including how information is collected, analyzed and shared. The AFN advocated that "all entities that make use of First Nations data should be making investments into community capacity building for information management".[117]  While some First Nations communities are beginning to purchase or build their own health information systems, it is an investment in human capital and financial resources that not all First Nations are able to make.[118]

Although building capacity for First Nation information management is a laudable goal, authors Williams, Vis-Dunbar, and Weber note that this empowerment is not enough to fulfill OCAP™ principles.[119]  Because individuals are mobile and will often receive care in a multitude of settings “[a] First Nations person who visits a hospital during a vacation may leave a trail of information in the various paper charts, x-rays and electronic records systems.”[120] Consequently, even if a community assumes control over information management, information about First Nations communities may appear in legacy or dispersed systems that are managed by a variety of organizations. While some systems allow administrators to flag records belonging to individuals of “Aboriginal” descent, even if these flags are used, conceivably data from these systems could nonetheless be used for diverse of purposes, including research and teaching.[121] As a result, it is clear that respecting the OCAP™ principles requires more than mere capacity building. Existing health care systems should find a way to incorporate First Nations conceptions of self-governance and autonomy with respect to information.[122]  

Not Enough Understanding of OCAP™ Principles

A concern has been expressed that “[i]n general, the academic literature fails to reflect the amount of activity devoted to OCAP™ in both First Nations communities and the various levels of government.”[123]  Among the few writers offering commentary, the authors Williams, Vis-Dunbar, and Weber seek to bring attention to the strain between individual and communal rights.[124] While its widely acknowledged that Canadian courts will, no doubt, continue balancing individual and group rights, for some First Nation communities “it is not clear that the situations are entirely equivalent, owing to the unique formulation of community privacy contained in the OCAP™ principles.”[125] For these concerned communities, “OCAP™ cannot be respected without a deeper understanding of the ways in which First Nations conceptions of communal privacy interface with the individualistic conceptions that form the basis for Canadian data protection law.”[126] For the authors Williams, Vis-Dunbar and Weber “[a]lthough a core part of the issue lies in reconciling individual and communal interests - a task not foreign to aboriginal law,…there are other components that have not been addressed in either the jurisprudence or the legal literature.”[127]

Lack of First Nation Participation and Input into New Health Information Initiatives

The federal government’s approach to health information management in policy and practice has to-date run contrary First Nations aspirations to self-government as articulated in the OCAP™ principles.[128] For example, when the Canadian government designed the architecture for the First Nation Health Information System (FNHIS), First Nations were not consulted.  Although an effort was later made to integrate the OCAP™ principles, incorporating privacy after the fact posed substantial challenges. Unsatisfied with the results, “some First Nations communities are still using the FNHIS in a limited capacity, [while] others have moved to purchasing or developing their own health information systems.”[129]

Existing health care systems do not yet accommodate First Nations conceptions of self-governance and autonomy with respect to information. The OCAP™ control principle requires that First Nations communities should have input on all aspects of information management, including policy development, implementation, review processes, and data management. It is important to note that the practical realities associated with implementing the control principle are challenging.  For example, the requirement to obtain consensus from each First Nations community in a province could foreseeably stall entire projects.[130] At least a partial solution is to embrace “[n]ew models of collaboration that respect both First Nations interests and the practical realities of information systems deployment.”[131] One such desirable method of collaboration is to incorporate First Nation stakeholders into working groups.  The lack of First Nations representation to-date on projects designed to initiate new information systems and to respond to existing information system concerns has been a major impediment to incorporating OCAP™ principles into these initiatives.[132]

PART IV. Recommendations

The way forward respecting integrating OCAP™ principles into Canada’s privacy regime is a priority for the AFN, however, the AFN is aware of the difficulties involved in reconciling individualistic and communal conceptions of privacy.  For the AFN, it is Canada's privacy laws that form the "biggest barriers to First Nations attempting to assert control over their information"[133] The solution, according to the AFN lies in “aligning OCAP with privacy legislation and providing resources to First Nations to enact their own privacy legislation [thereby] assist[ing] in enabling First Nations to take control over their own information."[134]

Facilitate Greater Understanding of Indigenous Conceptions of Privacy

In his paper, Justice Finch reminds us that there is value, and indeed, an obligation, on legal professionals to better understand Indigenous perspectives. He writes:

We speak often in the field of Aboriginal law of the honour of the Crown, which mandates, among other requirements, the duty to approach questions of interpretation generously, the duty to consult and the duty to accommodate. Now, I suggest, a more widely applicable concept of honour imposes on all members of the legal profession the duty to learn: at the very least, to holding ourselves ready to learn.  In addition, the legal obligation to take account of the Aboriginal perspective engages the principle of the rule of law. If the rights of all Canadians, including Aboriginal Canadians, are to be articulated and guarded by the courts, the courts must necessarily be capable of understanding the nature of those interests.”[135]

This paper offers one such invitation to understand Indigenous points of view.

Incorporate Communal Conceptions of Privacy and Recognize First Nation Governments as Governments

The Canadian privacy regime stands to benefit from incorporating Indigenous international law as outlined in UNDRIP including the principle of meaningful consent and the notion of communal privacy in religious and cultural practices. Legislators should also be invited to move away from exclusively individualistic conceptions of privacy and incorporate community-based conceptions of privacy.  The AFN and the FNIGC call on the federal government to amend the Access to Information Act and the Library and Archives of Canada Act to recognize OCAP™ principles and mechanisms that would permit “First Nations to govern the collection, use and disclosure of the data within government control.”[136] Additionally, these organizations invite the federal government to “follow the lead of provinces such as Alberta and Nova Scotia, and simply recognize First Nation governments as ‘governments’ in the same manner as international, provincial, municipal, and other governments are already recognized.”[137] This recognition would further OCAP™ principles and sovereignty over information in First Nation communities.

Put OCAP™ into the Context of Individual First Nation Communities

It is important to note that “OCAP™ is not a catch-all list that researchers or other First Nations data stewards may check off according to their own standards.”[138] OCAP™ must be understood in the context of a particular First Nation. OCAP™ requires consideration of a First Nation’s unique “governance structures, values, history, and expectations.”[139] As the FNIGC has noted “[w]hat may work for one community may not be appropriate for another [and] what is acceptable at a national level may not be acceptable at a regional or community level.”[140] Rather than a standard checklist, the OCAP principles are intended to serve as overarching framework.[141] The vision is that individual First Nations can interpret the principles and prescribe them at the level of their community or Nation.  As the AFN has articulated, it is for the individual communities to give meaning to OCAP.[142] Communities are invited to express their own vision of the principles which might include not using the term OCAP™ at all.[143] Thus, OCAP™ is simply a beginning point or one option a community can explore in their expressions self-governance in the sphere of information management.[144]

Conclusion

This paper offers an introduction to Indigenous conceptions of privacy with reference to the literature, jurisprudence, and legislation.  The concerns expressed by Indigenous people about information management include assertions of sovereignty as expressed by four key principles: ownership, control, access and possession (OCAP™).[145]  Among other mechanisms, Indigenous communities exercise control over information by building information governance capacity, enacting their own laws, entering into data sharing agreements, and taking back their data.[146]  OCAP™ offers a First Nations approach to research, data and information management and a way to accept beneficial research while rejecting research that may result in harm.[147]

Among the many Indigenous communities there are bound to be different interpretations of privacy and, within those communities, likely still to be differing understandings of privacy as a concept.  However, some Indigenous peoples have expressed conceptions of privacy that include notions of collective privacy and meaningful consent. A discussion of Indigenous law and social science research is beyond the scope of this paper, however, these avenues present opportunities for further analysis of Indigenous and community-based conceptions of privacy with the aim of incorporating these understandings into the norms and jurisprudence of Canadian law. 

Bibliography

LEGISLATION: FEDERAL

Access to Information Act, R.S.C. 1985, c. A-1.

Library and Archives of Canada Act, S.C. 2004, c. 11.

Privacy Act, R.S.C. 1985, c. P-21.

LEGISLATION: ABORIGINAL GOVERNMENTS

Tla’Amin First Nation Freedom of Information and Protection of Privacy Act, 06/2016.  Accessed online November 1, 2017. <http://www.tlaaminnation.com/wp-content/uploads/2016/11/Freedom-of-Information-Protection-Privacy-Law.pdf>.

Tsawwassen First Nation Freedom of Information and Protection of Privacy Act, 2009.  Accessed online November 1, 2017. <http://www.tsawwassenfirstnation.com/pdfs/TFN-Laws-Regulations-Policies/Laws/Laws/FOIPOP_Act_2009.pdf>.

INTERNATIONAL CONVENTIONS

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR (2007), online: <www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>.

JURISPRUDENCE

Canada (Attorney General) v. Fontaine, (2017) S.C.J. No. 47.

Dagg v. Canada (Minister of Finance), (1997) S.C.J. No. 63.

R. v. Sparrow, (1990) 1 S.C.R. 1075.

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (2017) S.C.J. No. 54, 2017.

ARGUMENTS AND EVIDENTIARY DOCUMENTS

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (2017) S.C.J. No. 54, 2017 (Factum of the Appellant).

SECONDARY MATERIAL: MONOGRAPHS

Rengel, Alexandra. Privacy in the 21st Century (Boston: Martinus Nijhoff), 2013.

Richardson, Janice. Law and the Philosophy of Privacy (Abingdon, Oxon; New York, NY: Routledge), 2016.

von Lewinski, Silke. Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (The Netherlands: Kluwer Law International), 2008.

SECONDARY MATERIAL: ARTICLES

Bailey, Jane. “Towards an Equality Enhancing Conception of Privacy” (Fall, 2008) 31 Dalhousie L.J. 267.

Karanja. “Group Privacy” 2 Stud. Ethics L. & Tech. 1, 22 (2008).

Kukutai, Tahu & John Taylor (ed). “Indigenous Data Sovereignty: Toward an Agenda” Australia, ANU Press: 2016.

Renwick, James. “Protection of Aboriginal Sacred Sites in the Northern Territory - A Legal Experiment” 19 Fed. L. Rev. 378, 419 (1990).

Williams, James, Megan Vis-Dunbar and Jens Weber. “First Nations Privacy and Modern Health Care Delivery,” 10 Indigenous L.J. 101, 132 (2011).

SECONDARY MATERIAL: TECHNICAL REPORTS

Vis-Dunbar, Megan, James Williams & Jens H. Weber Jahnke. “Indigenous and Community-based Notions of Privacy.”  Technical Report of the Informational Privacy Interdisciplinary Research Group Victoria: University of Victoria (2011) 10.13140/RG.2.2.16005.14568.

Accessed online: <https://www.researchgate.net/publication/310482039_Indigenous_and_Community-based_Notions_of_Privacy>.

Weber, Jens & Vis-Dunbar, Megan & Williams, James. (2011). “Reconciling Individualistic and Communal Notions of Privacy.” Technical Report of the Informational Privacy Interdisciplinary Research Group Victoria: University of Victoria (2011) 10.13140/RG.2.2.12230.27207.

Williams, James and Jens H. Weber Jahnke. “Methodologies & Tools in Support of Reconciling Aboriginal Privacy Goals and eHealth Infrastructure Objectives” (2011).  Accessed online September 29, 2017. 10.13140/RG.2.2.28181.73448. <https://www.researchgate.net/publication/310606808_Methodologies_Tools_in_Support_of_Reconciling_Aboriginal_Privacy_Goals_and_eHealth_Infrastructure_Objectives>.

Other Materials

Assembly of First Nations, “First Nations Ethics Guide on Research and Aboriginal Traditional Knowledge” (2008). Accessed online September 29, 2017.

BC Law Institute, “Report on the Privacy Act of British Columbia” (2008). Accessed online September 29, 2017.

Canadian Institute for Health Information, ed., Mentally Healthy Communities: Aboriginal

Perspectives (Ottawa, Ont.: CIHI), 2009.

Finch, Lance. BC Chief Justice (former). “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice”, paper presented at the “Indigenous Legal Orders and the Common Law” British Columbia Continuing Legal Education Conference (CLEBC) in Vancouver, 2012. Accessed through the CLEBC’s CLE online September 29, 2017. <http://online.cle.bc.ca/CourseMaterial/pdfs/2012/648_2_1.pdf>.

FNIGC Harnessing the Power of Data (Brochure). Accessed online: <http://fnigc.ca/sites/default/files/docs/fnigc-brochure-english_final.pdf>.

First Nations Information Governance Centre (2007). OCAP™: Ownership, Control, Access and Possession” Sanctioned by the First Nations Information Governance Committee, Assembly of First Nations. Ottawa: National Aboriginal Health Organization.

First Nations Information Governance Centre <http://fnigc.ca/ocap.html>.

First Nations Information Governance Centre “Sample Documents to Consider for a Privacy Toolkit” <http://www.afn.ca/uploads/files/nihbforum/info_and_privacy_doc_-_afn_privacy_toolkit.pdf>.

First Nations Information Governance Centre “The First Nation Principles of OCAP™” <http://www.afn.ca/uploads/files/nihbforum/info_and_privacy_doc-ocap.pdf>.

First Nations Information Governance Centre “Ownership, Control, Access, and Possession (OCAP™): Access, The Path to First Nations Information Governance” <http://fnigc.ca/sites/default/files/docs/ocap_path_to_fn_information_governance_en_final.pdf>.

First Nations Information Governance Centre. “Barriers and Levers for the Implementation of OCAP™” The International Indigenous Policy Journal, 5(2), 2014. Accessed online: <http://ir.lib.uwo.ca/iipj/vol5/iss2/3>.

Jansen, Jennifer, Information Management Coordinator and Judicial Council Clerk, Tsawwassen First Nation (Discussion with author July 2017).

Rights of Indigenous Peoples, 75 Int'l L. Ass'n Rep. Conf. 503, 553 (2012).

Endnotes

[1] Indigenous peoples refers to Aboriginal peoples including First Nations, Inuit, and MĂ©tis people living in Canada.  The terms Aboriginal and First Nations are used throughout the paper when it is appropriate to do so in the context or when that term is preferred by the authors cited.

[2] James Williams, Megan Vis-Dunbar and Jens Weber, “First Nations Privacy and Modern Health Care Delivery,” 10 Indigenous Law Journal 101, 132 (2011) at 131 [Williams, Vis-Dunbar & Weber]. 

[3] Ibid at 104.

[4] Alexandra Rengel, Privacy in the 21st Century. Boston: Martinus Nijhoff (October 4, 2013) at 199 [Rengel].

[5] Dagg v. Canada (Minister of Finance), (1997) S.C.J. No. 63 at para 69.

[7] Megan Vis-Dunbar, James Williams and Jens H. Weber Jahnke, “Indigenous and Community-based Notions of Privacy” Technical Report of the Informational Privacy Interdisciplinary Research Group Victoria: University of Victoria (2011) at 6 [Indigenous and Community-based Notions of Privacy].

[8] Supra Rengel, 199.

[9] Ibid.

[10] Ibid.

[11] Karanja. “Group Privacy” 2 Stud. Ethics L. & Tech. 1, 22 (2008) at 5 [Karanja]. 

[12] Report on the Privacy Act of British Columbia (2008) at 1.

[13] Supra Karanja at 5.

[14] Ibid at 22. 

[15] Supra Karanja at 5.

[16] Supra Rengel at 200.

[17] Supra Rengel 4 at 200-201. 

[18] First Nations Information Governance Centre (2007). OCAP™: Ownership, Control, Access and Possession” Sanctioned by the First Nations Information Governance Committee, Assembly of First Nations. Ottawa: National Aboriginal Health Organization. First Nations Information Governance Centre at 9 [FNIG: OCAP].

[19] Ibid.

[20] Ibid.

[21] Canadian Institute for Health Information, ed., Mentally Healthy Communities: Aboriginal Perspectives (Ottawa: CIHI, 2009) at 14. [Mentally Healthy Communities].

[22] Ibid at 3.

[23] Ibid.

[24] BC Chief Justice Lance Finch (former), “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice”, (CLEBC) Vancouver, 2012 at para 27 [Finch].

[25] Williams, James and Jens H. Weber Jahnke. “Methodologies & Tools in Support of Reconciling Aboriginal Privacy Goals and eHealth Infrastructure Objectives” (July 2011) at 8 [Methodologies & Tools].

[26] Supra Finch at para 45. 

[27] Ibid at para 3.

[28] John Burrows Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 18 as cited in supra Finch at para 20.

[29] Supra Finch at para 27.

[30] Ibid at para 33.

[31] Ibid.

[32] See Indigenous and Community-based Notions of Privacy at 13-14 for aboriginal community member testimony respecting the subtle connection between culture and privacy.

[33] Discussion with Jennifer Jansen Information Management Coordinator and Judicial Council Clerk, Tsawwassen First Nation (July 2017).

[34] Ibid.

[35] First Nations Information Governance Centre. “Barriers and Levers for the Implementation of OCAP™” The International Indigenous Policy Journal, 5(2), 2014 at 7 [Barriers and Levers].

[36] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR (2007), online: <www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf> [UNDRIP].

[37] Rights of Indigenous Peoples, 75 Int'l L. Ass'n Rep. Conf. 503, 553 (2012) at 524.

[38] Weber, Jens & Vis-Dunbar, Megan & Williams, James. (2011). “Reconciling Individualistic and Communal Notions of Privacy.” Technical Report of the Informational Privacy Interdisciplinary Research Group Victoria: University of Victoria (2011) 10.13140/RG.2.2.12230.27207.

[39] Ibid.

[40] 19 Fed. L. Rev. 378, 419 (1990) as cited in James Renwick “Protection of Aboriginal Sacred Sites in the Northern Territory - A Legal Experiment” at 408-409.

[42] Ibid (Factum of the Appellant at para 141).

[44] Supra Finch at paras 9 and 10. 

[45] Ibid at para 14.

[46] Ibid

[47] Ibid

[48] Supra, Williams, Vis-Dunbar & Weber at 131.

[49] S.C.J. No. 47.

[50] Ibid at para 47.

[51] Ibid

[52] Supra Indigenous and Community-based Notions of Privacy at 21.

[53] Kukutai, Tahu & John Taylor (ed). “Indigenous Data Sovereignty: Toward an Agenda” Australia, ANU Press: 2016 at 48 [Indigenous Data Sovereignty].

[54] Supra FNIG: OCAP at 10.

[55] Supra Indigenous and Community-based Notions of Privacy at 13.

[56] Supra Indigenous Data Sovereignty at 48.

[57] Assembly of First Nations, “First Nations Ethics Guide on Research and Aboriginal Traditional Knowledge” (2008). Accessed online September 29, 2017 at 17.

[58] Supra Methodologies & Tools at 21.

[59] Ibid at 41.

[60] Ibid.

[61] Supra Williams, Vis-Dunbar & Weber at 106. 

[62] Ibid at 103.

[63] Ibid at 102. 

[64] Ibid at 103. 

[65] Ibid

[66] Ibid.

[67] Ibid at 103-104.

[68] FNIGC Harnessing the Power of Data (Brochure).

[69] First Nations Information Governance Centre “Ownership, Control, Access, and Possession (OCAP™): Access, The Path to First Nations Information Governance” at 37 [The Path to FNIG].

[70] Ibid at 36.

[71] Supra Barriers and Levers at 1.

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Supra The Path to FNIG at 17.

[76] Ibid at 12.

[77] Ibid.

[78] Ibid at 6.

[79] Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. Volume 3: Gathering Strength. Chapter 5 pp. 4 (1997) as cited in supra The Path to FNIG at 6.

[80] Ibid.

[81] Ibid.

[82] Ibid.

[83] Supra The Path to FNIG at 6.

[84] Supra note Indigenous and Community-based Notions of Privacy at 11. 

[85] Ibid.

[86] Path to FNIG at 12-13.

[87] Ibid at 13.

[88] Silke von Lewinski, Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore The Netherlands: Kluwer Law International, 2008 at 508.

[89] Supra The Path to FNIG at 13.

[90] Website: http://fnigc.ca/ocap.html and as defined by the AFN and summarized in supra Williams, Vis-Dunbar & Weber at 117.

[91] First Nations Centre, Privacy Toolkit, (Ottawa: National Aboriginal Health Organization). 

[92] Ibid at 6.

[93] Supra Williams, Vis-Dunbar & Weber at 127. See also Indigenous and Community-based Notions of Privacy at 8.

[94] Ibid.

[95] Ibid at 127. See also Indigenous and Community-based Notions of Privacy at 8.

[96] Supra Barriers and Levers at 1.

[97] Ibid.

[98] Ibid at 1-2.

[99] Ibid.

[100] Supra Williams, Vis-Dunbar & Weber at 118. See also Indigenous and Community-based Notions of Privacy at 7.

[101] Ibid at 8.

[102] Ibid 8-9.

[103] Supra Williams, Vis-Dunbar & Weber at 120. See also Indigenous and Community-based Notions of Privacy at 9.

[104] Ibid.

[106] Supra The Path to FNIG at 27.

[107] Ibid.

[108] Ibid at 28.

[109] Ibid at 28-29.

[110] Ibid at 29.

[111] Ibid at 34.

[112] Ibid.

[113] Ibid.

[114] Ibid at 12.

[115] First Nations Centre, OCAP: Ownership, Control, Access and Possession, First Nations Information Governance Committee, Assembly of First Nations (Ottawa: National Aboriginal Health Organization, 2007), at 12 [First Nations Centre] as cited in supra Williams, Vis-Dunbar & Weber at 120.

[116] Ibid at 5 as cited in supra Williams, Vis-Dunbar & Weber at 120.

[117] Ibid at 4 as cited in supra Williams, Vis-Dunbar & Weber at 120.

[118] Supra Williams, Vis-Dunbar & Weber at 120.

[119] Ibid.

[120] Ibid at 121.

[121] Ibid.

[122] Ibid

[123] Ibid at 123.

[124] Ibid.

[125] Ibid at 123-124.

[126] Ibid at 124.

[127] Ibid.

[128] Ibid at 116.

[129] Ibid.

[130] Ibid.

[131] Ibid at 124.

[132] Ibid at 125

[133] First Nations Centre at 9 as cited in supra Williams, Vis-Dunbar & Weber at 127.

[134] Ibid at 128.

[135] Supra Finch at para 15.

[136] Supra Barriers and Levers at 7.

[137] Ibid.

[138] Ibid at 5.

[139] Ibid.

[140] Ibid.

[141] Supra Indigenous and Community-based Notions of Privacy at 16.

[142] Ibid.

[143] Supra Barriers and Levers at 5.

[144] Supra Indigenous and Community-based Notions of Privacy at 16.

[145] Williams, Vis-Dunbar & Weber at 117.

[146] Supra The Path to FNIG at 49.

[147] Supra FNIG: OCAP at 1.