Section 18.1 Disclosure harmful to the interest of an Indigenous people
Last updated on June 7, 2022- Overview
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Section 18.1 is a mandatory exception to the public’s right of access. It protects information which, if disclosed, would harm cultural practices or traditional knowledge of an Indigenous people.
Section 18.1 of the Freedom of Information and Protection of Privacy Act
(1) The head of a public body must refuse to disclose information if the disclosure could reasonably be expected to harm the rights of an Indigenous people to maintain, control, protect or develop any of the following with respect to the Indigenous people:
(a) cultural heritage;
(b) traditional knowledge;
(c) traditional cultural expressions;
(d) manifestations of sciences, technologies or cultures.
(2) Subsection (1) does not apply if the Indigenous people has consented in writing to the disclosure.
Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) outlines the rights of Indigenous peoples to maintain, control, protect, and develop aspects of their culture such as language, traditional knowledge, and art.
The government of British Columbia, through the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), has adopted the UN Declaration as a framework that guides its reconciliation efforts.
Section 18.1 of FOIPPA aligns BC’s legislation with Article 31 of the UN Declaration by providing explicit protections for information that might harm aspects of Indigenous culture, and by granting Indigenous people control over the disclosure of that information.
It is a mandatory exception to disclosure which requires the head to refuse access to information that falls under the exception, unless the public body has obtained written consent from the Indigenous people that would be harmed by disclosure.
This section is also subject to the Third Party Notice procedures set out in sections 23 and 24 in instances where the head has reason to believe that information within a record may fall under this exception.
Could reasonably be expected to harm the rights of an Indigenous people
Section 18.1 is a harms-based exception, meaning that public bodies must be able to demonstrate that the disclosure of information will result in a reasonable expectation of probable harm.
For example, disclosure of traditional knowledge belonging to an Indigenous people may result in harm by causing the Indigenous people to no longer exercise control over that traditional knowledge. Once disclosed publicly, it is possible for the traditional knowledge to be appropriated by individuals or businesses from outside the Indigenous people in a way that is harmful to the Indigenous people or deprives the Indigenous people of the ability to realize economic benefits from the use of that information.
As is the case with other harms-based exceptions in FOIPPA, the public body must be able to demonstrate that any resulting harm is probable, not merely possible or speculative.
Cultural heritage; traditional knowledge; traditional cultural expressions; manifestations of sciences, technologies or cultures
See Interpretation Note #2.
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Third Party Notice
If the line by line review indicates that part or all of the requested information may fall under this exception and the head intends to refuse access, the head may give notice to the third party, but is not required to do so. However, where the head intends to give access, the head must give the third party a notice pursuant to section 23 and 24.
If it is not obvious from the records themselves, public bodies may wish to review the First Nations A-Z Listing, the Guide to Indigenous Organizations and Services and/or the Profiles of Indigenous Peoples
to identify the most appropriate representative of an Indigenous people for the purposes of Third Party Notice or seeking written consent for disclosure.
Interpretation
Interpretation Note 1:
An Indigenous people
This term may refer to a particular band, First Nation, tribal council, or other group of Indigenous people who are linked through a shared history, heritage, or language. The use of this term recognizes that cultural elements do not belong to any specific individual but rather to the collective group of individuals that make up a community. At the same time, it also recognizes cultural practices or knowledge may be specific to a particular group, rather than to Indigenous peoples as a whole.
Interpretation Note 2:
Cultural heritage; traditional knowledge; traditional cultural expressions; manifestations of sciences, technologies or cultures
The terminology used in section 18.1 of FOIPPA originates from Article 31 of the UN Declaration. As such, when interpreting this exception to disclosure, it can be useful to think about these information protections within the broader context of the UN Declaration and the rights of Indigenous peoples to maintain, control, protect and develop aspects of Indigenous culture. The explanatory text below highlights how some established institutions try to define the terms used in Article 31 of the UN Declaration, but should not be considered as authoritative or exhaustive.
Cultural heritage
“For Indigenous Peoples, cultural heritage refers to ideas, experiences, objects, artistic expressions, practices, knowledge, and places that are valued because they are culturally meaningful, connected to shared memory, or linked to collective identity.“
“Indigenous peoples’ cultures include tangible and intangible manifestations of their ways of life, achievements and creativity, are an expression of their self-determination and of their spiritual and physical relationships with their lands, territories and resources. Indigenous culture is a holistic concept based on common material and spiritual values and includes distinctive manifestations in language, spirituality, membership, arts, literature, traditional knowledge, customs, rituals, ceremonies, methods of production, festive events, music, sports and traditional games, behaviour, habits, tools, shelter, clothing, economic activities, morals, value systems, cosmovisions, laws, and activities such as hunting, fishing, trapping and gathering. Indigenous cultures are influenced by their environment, which impacts on a people’s common perspective of the world and underlines its connection with nature. Indigenous cultures shape their views of the world and life.”
Source (para 52): https://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/Session5/A-HRC-EMRIP-2012-3_en.pdf
Traditional knowledge and traditional cultural expressions
Traditional knowledge and traditional cultural expressions are concepts that are often used in the context of intellectual property protections. They describe types of knowledge developed and maintained by Indigenous peoples where it may not be possible to assign ownership within the framework of existing national or international intellectual property regimes.
“Traditional Knowledge generally refers to the know-how, skills, innovations and practices developed by Indigenous peoples related to biodiversity, agriculture, health and craftsmanship.”
“Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”
Source: https://www.wipo.int/tk/en/tk/
“Traditional cultural expressions generally refer to tangible and intangible forms in which Traditional Knowledge and culture are expressed and may include oral stories, artwork, handicrafts, dances, fabric, songs or ceremonies. It is also recognized that Traditional Knowledge and Traditional Cultural Expressions can be collectively held and may evolve and change over time as they are passed down from generation to generation.”
“Traditional cultural expressions (TCEs), also called "expressions of folklore", may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.”
Manifestations of sciences, technologies or cultures
This describes tangible items or displays that arise from the sciences, technologies or cultures of Indigenous peoples.
“Manifestation”: A clear sign or indication that a particular situation or feeling exists; that which exhibits, displays, or reveals.
Source: Black’s Law Dictionary (11th ed.)
The UN Declaration contains a non-exhaustive list of examples of “manifestations of sciences, technologies or cultures”:
- human and genetic resources, seeds
- medicines
- knowledge of the properties of fauna and flora
- oral traditions
- literatures
- designs
- sports and traditional games
- visual and performing arts
Source: Text of UN Declaration Article 31
Examples
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It could be reasonably expected that the disclosure of detailed information related to traditional medicine practices of an Indigenous people could lead to the Indigenous people losing control of that information and could limit their ability to use and develop that information in the manner of their choosing.
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It could be reasonably expected that harm would result from the disclosure of maps, or detailed descriptions of locations of sites that have heritage value or spiritual significance to an Indigenous people, as it could lead to the inability of the Indigenous people to adequately protect and maintain those sites.
The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers.
The information in this manual is not intended to be and should not take the place of legal advice.
Last updated: May 2022