Pehdzéh Kı̨ seeks confidentiality for traditional knowledge on proposed Mackenzie Valley Highway

Pehdzéh Kı̨ First Nation (PKFN) is asking the Mackenzie Valley Environmental Impact Review Board for confidentiality before it submits traditional knowledge in support of a route change for the proposed Mackenzie Valley Highway from Wrigley, N.W.T. to Norman Wells.

Pehdzéh Kı̨ First Nation Chief Jamie Moses wrote in a March 17 letter to the board that his community has been put in the "difficult position of having to disclose private information to uphold our responsibility to protect our Ndeh [land]." 

The knowledge includes sensitive details, in some cases about sites of "intangible significance," and Moses said it would explain how the route interferes with PKFN's treaty rights for "traditional land use, harvesting, land management, cultural and spiritual uses and Dene education."

"Disclosure without our authorization would cause irremediable harm to inter-governmental relationships," said Moses.

PKFN has been pushing for the highway's proposed route to be changed. 

It's already signed a confidentiality agreement with the N.W.T. government this year seeking to relay confidential information as the project undergoes environmental assessment. 

The N.W.T.'s Department of Infrastructure said the territorial government and Pehdzéh Kı̨ First Nation have a non-disclosure agreement to exchange information specific to an Indigenous knowledge and a traditional land-use study completed by PKFN, wrote a spokesperson in an email.

The territorial government said it awaits a review board ruling on whether additional information can be confidentially provided to the board. 

PKFN said it would withdraw its documents if the board ruled against its request. 

The First Nation is gathering information for the N.W.T.'s infrastructure department and the board to explain its "predictions that the [Mackenzie Valley Highway] as planned will cause significant adverse effects for us and that much more mitigation and accommodation is required," wrote Moses.

In a separate letter, Moses told the review board that the current work plan timelines prevent meaningful consultation and accommodation for PKFN.

Public hearings are slated for the end of June, and a decision reporting on the assessment is expected in mid-2025, according to a draft work plan.

Confidentiality protects knowledge from 'misuse'

Larry Innes, a partner at Olthuis, Kleer, Townshend LLP, a firm with expertise in Indigenous and environmental law, said publicizing knowledge of harvesting locations and sacred sites can entice "outsiders to access those resources or disturb those sites."

Across Canada, Indigenous communities participating in public proceedings are expected to "provide information … in order to be heard, only to have that information misused," said Innes.

"That is a fairly grievous abuse of both the process and the trust that Indigenous peoples will place in those decision-makers," he said.

Innes said in one example, unauthorized cabins have been built in harvesting areas. Disclosure of cultural sites has also led to unwanted archeological tourism, exploitation of resources and important harvesting areas by tourism outfitters, he said.

Efforts to bring confidentiality into the public process grew out of the Berger Inquiry, and during efforts to establish a Mackenzie Valley pipeline where communities made similar confidentiality requests, he said. 

He said statutory bodies have had a "much greater level of attention and care" since then. 

Review boards now consider confidentiality requests from communities like Pehdzéh Kı̨ First Nation about submitting valuable information, balancing the public process while being "responsible and attentive" to the protection of Indigenous knowledge, he said. 

Innes said a board considers parties' submissions on whether or not confidentiality should be granted.

How the process works

Innes said mechanisms to protect Indigenous knowledge are being "hard fought" with "stringent guidelines" under principles like OCAP. OCAP principles assert that First Nations have control over data collection, and that they own and control how that information is used. 

Confidentiality at public boards acknowledges that Indigenous knowledge protections do not "fit nicely into the Western ideas of ownership or intellectual property protections" typically applied to proprietary corporate knowledge, he said.

"If there are parties that want that information to be disclosed and say that confidentiality should not apply here, then ultimately it's open to the community to say, well, we'd rather not share," said Innes.

In his letter, Moses said the community concerns raised arise from experience, and that at least one spiritually significant location is now inaccessible due to existing bridge construction. 

"Our members cannot do what we are supposed to do in relation to that place. We still mourn this loss," he wrote.