2024-01: Advancing Indigenous Reconciliation: Waiver of $5 Application Fee

1. Effective Date

This implementation notice takes effect on February 22, 2024.

2. Authorities

This implementation notice is issued pursuant to paragraph 70(1)(c) of the Access to Information Act (ATIA). This implementation notice is also issued in response to the President of the Treasury Board’s December 2021 mandate letter, in which the Prime Minister:

• underscored the need for the government to move faster on the path of reconciliation with First Nations, Inuit and Métis people
• directed every Minister to implement the United Nations Declaration on the Rights of Indigenous Peoples Act

3. Purpose

This implementation notice seeks to ensure that government institutions subject to the ATIA are taking concrete actions to advance reconciliation and remove barriers that Indigenous people face when they request access to information. More specifically, it is a commitment included in the key actions on access to information as a way to facilitate access to government information by removing financial barriers for Indigenous requesters, or those acting on their behalf.

4. Context

In 2007, the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples, and on June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) came into force in Canada. The passage of this law, which provides a framework for the federal government’s implementation of the declaration, was a critical step toward recognizing, promoting, protecting and upholding the human rights of Indigenous peoples in Canada.

As the Government of Canada moves from legislated commitments to taking tangible action to implement the UN Declaration Act and as part of the review of the ATIA, the Treasury Board of Canada Secretariat has been engaging with Indigenous groups and representatives to better understand their specific perspectives and needs relating to access to information.

In December 2022, the President of the Treasury Board tabled the Access to Information Review Report to Parliament, and TBS published an Indigenous-specific What We Heard Report that summarizes input received from Indigenous people during the review process.

Three themes emerged from this input:

• Indigenous data sovereignty
• Indigenous right of access
• the definition of “aboriginal government” in the ATIA

5. Guidance

In the spirit of the Government of Canada’s commitment to fully adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples, to promote substantive equality, and to advance reconciliation, heads of institutions are strongly encouraged to waive the $5 application fee for the purposes of advancing reconciliation. With a view to facilitating Indigenous people’s access to records, Indigenous requesters or their representatives can request fee waivers under the condition of ‘advancing reconciliation’.

By waiving the fee, institutions can alleviate the financial burden associated with making an access request and provide Indigenous requesters with a free, fair and equitable right of access to Indigenous information held by the Crown. This action will fulfill recommendations made by Indigenous partners and contribute to advancing Indigenous reconciliation in a meaningful way. Further, in accordance with the principle of substantive equality, differential treatment is recommended to support Indigenous peoples in overcoming the colonial history of this country and to help rebuild trusting nation-to-nation, Inuit-Crown, and government-to-government relationships.

As stated in the Indigenous-specific What We Heard Report, the ATI regime currently presents various barriers for many Indigenous requesters, including as it relates to the $5 application fee. During the engagement process with Indigenous partners, we learned that requesters may have difficulty paying the application fee, which requires access to banking services at a minimum, and often credit cards. The waiver of the fee would help remove this financial barrier to access and would also facilitate access to information Indigenous requesters may need from the Government of Canada to advance priorities critical to their communities, such as:

• claims related to historical grievances
• Aboriginal title, rights and treaty rights litigation
• to establish status under the Indian Act through genealogical records
• to foster community health and well-being
• to inform decision-making on matters related to governance
• to inform Indigenous economic development

Under subsection 11(2) of the ATIA, the head of a government institution has the discretion to waive, reduce or refund all or part of the fee payable under the ATIA and the Access to Information Regulations. Subsection 4.1.41 of the Directive on Access to Information Requests (the Directive) requires heads of institutions or their delegate to exercise discretion in this regard after completing the steps set out in subsection 4.1.1 of the Directive. Considering this policy guidance, as well as the information provided in this section of the implementation notice, it is strongly encouraged that the $5 fee be waived when a request is made for the purposes of advancing reconciliation.

6. Process

This process will require Indigenous requesters or their representatives to seek waivers under the condition of ‘advancing reconciliation’ with ATIP coordinators of the institutions from which they are seeking information. Institutions are encouraged to waive the $5 fee for reconciliatory purposes.

To ensure that this notice is implemented in a respectful way and to foster a relationship of trust, institutions are advised to not require Indigenous requesters or their representatives to provide any proof of Indigenous identity to be eligible for a fee waiver. All requests for this fee waiver are to be treated in good faith.

Institutions are strongly advised to update their websites to include the process for requesting this waiver.

The landing page of the ATIP Online Request system will indicate clearly that Indigenous requesters or their representatives can request a fee waiver under the condition of ‘advancing reconciliation’ by contacting the ATIP coordinator of the institution that holds the information they’re seeking, as set out in Chapter 8 of the Access to Information Manual.

7. Application

This implementation notice applies to government institutions as defined in section 3 of the ATIA, including parent Crown corporations and any wholly owned subsidiaries, but it does not apply to the Bank of Canada.

8. Reference

• Access to Information Act
• Access to Information Review Indigenous-specific What We Heard Report
• Access to Information Review Report to Parliament
• Directive on Access to Information Requests
• Policy on Access to Information
• President of the Treasury Board’s December 2021 Mandate Letter
• Truth and Reconciliation Commission of Canada: Calls to Action
• United Nations Declaration on the Rights of Indigenous Peoples
• United Nations Declaration on the Rights of Indigenous Peoples Act

9. Enquiries

Members of the public may contact Treasury Board of Canada Secretariat Public Enquiries for information about this Implementation Notice.

Employees of government institutions may contact their Access to Information and Privacy (ATIP) coordinator for information about this Implementation Notice.

ATIP coordinators may contact the Treasury Board of Canada Secretariat’s Access to Information Policy and Performance Division for information about this implementation notice.