Confidential Indigenous Knowledge
Transparency is a cornerstone of project reviews and regulatory decisions. Information considered by the CER in its decision making is generally readily available to the public and Indigenous Peoples. This helps to ensure procedural fairness and robust consideration of all the information before decisions are made. While the CER acknowledges that Indigenous Knowledge is important for making good decisions, the CER recognizes that some Indigenous Knowledge requires confidential treatment. Some examples of the type of Indigenous Knowledge that may require confidential treatment include specific locations of sacred sites (e.g., burial sites), information regarding a species’ habitat, or information that could reveal hunting or fishing camps.
Protections for confidential Indigenous knowledge
The Canadian Energy Regulator Act (CERA) requires the CER to consider Indigenous Knowledge when it is provided. The CERA also requires that Indigenous Knowledge provided in confidence is to be treated as confidential.
What does confidential mean?
It is the decision of the individual or group who provides the Indigenous Knowledge to determine if it is confidential. When the CER receives confidential Indigenous Knowledge we will not make it publically available. Only those staff or Commissioners who need to review the information to make a regulatory decision will be granted access.
How to provide confidential Indigenous Knowledge
Before submitting confidential Indigenous Knowledge, consider if the confidential aspects of the information could be removed. This could mean filing a copy of a document with certain portions blacked out or providing a summary of the information without specific details. This could apply whether in writing or in verbal communication.
Before you provide confidential Indigenous Knowledge, inform CER staff, or make it clear in your written document what is to be kept confidential. This way, CER staff can ensure that it is handled appropriately. For written material you can send the confidential information or documents by by fax or mail (paper copy). Mark them very clearly as “CONFIDENTIAL”.
Potential disclosure of confidential Indigenous Knowledge
The CER recognizes the significance of Indigenous Knowledge and will treat it with the utmost respect.
The CER will not disclose, without written consent, any Indigenous Knowledge that is provided in confidence, except as authorized or required by CERA. The information will be maintained in a secure manner to ensure that unauthorized disclosure does not occur.
CERA provides certain exceptions that may permit confidential Indigenous Knowledge to be disclosed. Those are:
- If the Indigenous Knowledge is publically available; or
- If disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings.
The procedural fairness exception would be used when the CER was required to take an action that affects another party and relies on confidential Indigenous Knowledge to do so. The CER must consult with the provider of the confidential Indigenous Knowledge on the terms and conditions to be imposed on disclosure (The CER is required to impose conditions that would prohibit further disclosure). This would happen before disclosing the confidential Indigenous Knowledge to the other party. This type of disclosure would be limited to one or more parties, and would not result in the confidential Indigenous Knowledge being publically available.
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