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Bill C-36, 2003


Submitted to the Standing Committee on Canadian Heritage. The House of Commons, Canada respecting Bill C-36
An Act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain Acts in consequence

by Terry Cook

Archival Studies Graduate Program, Department of History, University of Manitoba

for the
Association of Canadian Archivists and the Canadian Historical Association

Thursday, 7 June 2003

Room 308,

West Block of the Parliament BuildingsIntroduction: A Bold Initiative for Canadians:

The Canadian Historical Association (CHA) and the Association of Canadian Archivists (ACA) are very pleased to be invited before your Committee. Archivists and historians in Canada wish to applaud the Government of Canada for sponsoring this important legislation, and to welcome the large measure of non-partisan support that it has garnered.

As representatives of professional archivists and historians in Canada, we are together dedicated to the preservation of authentic archival records relating to Canada and to their use to discover who we are as a nation, as groups, families, and individuals. As historians and archivists, we rely on published library materials as well as archival records for our own research. As professions equally mandated to share Canadas heritage with our fellow citizens, we applaud efforts to make that heritage less duplicated, more retrievable, and more accessible through the new Library and Archives of Canada. The ACA represents some 750 archivists and archival institutions from across Canada, and the CHA over 1,000 historians: both associations speak for the professional interests of many more professionals and volunteers who are not formal members, and for the communities across this nation which they serve.

Combining original archival records and published library materials as the documentary heritage about Canada -- its land, history, peoples, images, culture, and character in a new institution, the Library and Archives of Canada, is a bold initiative. It is a unique step, among First-World nations, not to have a separate National Library and National Archives. Yet the imperatives of the computerized world are breaking down barriers between disciplines, institutions, and definitions of published versus unpublished information, as is the obligation and public pressure to make this rich documentary heritage about Canada more readily accessible to Canadians across the country. To facilitate the knowledge society, ready access to relevant information, as identified and put in context by archivists and librarians, is important to Canadian competitiveness and identity, and to our sense of discovery, creativity, heritage, and culture. Yet because of the very boldness of merging our nation-level archives and library, this new experiment will be watched closely in Canada, and abroad.

While our two associations want to indicate today support, as above, for the general intent of Bill C-36, we are also here to help improve the bill, and so make the following four broad suggestions, relating to: 1) urgency of the bill; 2) specific amendments; 3) infrastructure issues; and 4) copyright.
Urgent Passage of C36 is Required

The transformation of the two institutions into the new Library and Archives of Canada has been proceeding since last fall in a planned, orderly way, with staff consultation and their extensive involvement in numerous transition teams. While merging the two institutions cultures will be an on-going activity over several years, the two institutions and two professions have now reached an impasse: no longer in their old world, but unable to advance further into their new world without this authorizing legislation. Thus the institutions professionals are in a state of limbo. We therefore urge the ready passage of this legislation, appropriately amended, before Parliament ends this current session, so that this important work, already well started, may be brought to fruition.
Two Acts into One: Strengths and Weaknesses

The new bill integrates the existing mandates of the two foundational pieces of legislation for the National Archives and National Library, but modernized and strengthened to address certain gaps and to deal with new technologies, such as sampling the internet to preserve Canadian cultural expression. We support all these changes, but feel that five areas need to be further improved.

  1. Protection of Government Records: No government record shall be disposed or destroyed without the prior authority of the Librarian and Archivist, or his delegate (section 12). We are concerned that the transfer of government records, identified as having historical and archival value during this disposal and destruction approval process, to the care and control of the LAC, remains subject to negotiated agreements (section 13), yet there is no compulsion on recalcitrant government institutions or officials to negotiate such an agreement. The new section 13.3, whereby the Librarian and Archivist may require the transfer of valuable records that are at risk, is still too weak: it should be made compulsory that the Librarian and Archivist, where he/she is aware of records at risk, shall require their transfer. With the technological fragility of electronic records especially, delay in transfer amounts to de facto illegal destruction. The Librarian and Archivist should accept this additional obligation on his/her role.

  2. Appraisal of Records: We are concerned that the bill with the exception of harvesting an sample from the internet does not authorize the most critical archival function of appraisal. Only 1 to 5 per cent of all government records, and even a smaller percentage of private-sector records, are appraised by archivists as having historical and archival value, and therefore targetted for acquisition by an archives. Appraisal is often described in the professional literature as the most difficult (and most controversial) function of archivists, based on detailed research and analysis, and the application of appraisal values. Appraisal determines what will be the surviving archive of our times. The silence on this critical function in section 7 (objects), section 8 (powers), and section 12 (destruction and disposal) should be corrected.

  3. Private-Sector Archival Records: The role of the LAC in this regard is weakened from that of the National Archives of Canada, which may undermine the vitality of Canadas acclaimed total archives approach of balancing official government records with those from the private sector. The only archival records specifically mentioned for which the LAC is to be the permanent repository are government and ministerial records. Moreover, removing the qualifying phrase for eligible private-sector records needing to be of national significance from the National Archives Act and replacing it with records of interest to Canada opens the door for conflict with provincial, municipal, church, university, and other archival institutions. The qualifying phrase, private-sector records having national prominence or representative significance, should be included in the definitions, objects, and powers sections, and in the repository clause.

  4. Information Management in the Government of Canada: While the LAC retains the same power (section 7.d) to facilitate the management of government information, experience has shown that this is inadequate. Repeated observations by the Information Commissioner, auditors, and others have asserted that the records management system in the Government of Canada has broken down, after bearing a disproportionate portion of the downsizing cuts of the 1990's and facing the large challenges of managing records in the electronic workplace. This results in ineffective government operations, poor service to Canadians, reduced accountability, and a poor archival record. We believe that the bill should encourage the LAC more explicitly to work with the Treasury Board Secretariat, as the responsible agency, to require all government institutions to create and then manage reliable records as trustworthy evidence of government policies, operations, and program delivery to, and interactions with, citizens, groups, and organizations.

  5. Advisory Council: We believe that the Advisory Council (section 6) should not just deal with accessibility and public programming issues, but with all aspects of the mandate and programmes of the new LAC, and that, in addition to independent prominent individuals, Council membership should include representatives from the professional archival and library communities, historians, and genealogists.

Accessibility of the Documentary Heritage to Canadians versus the Critical Infrastructure Needed To Make It Happen

Bill C36 emphasizes making the LACs documentary heritage accessible to Canadians, and adds new language, powers, and an Advisory Council to this end. But there are three levels of infrastructure required to make this accessibility more than wishful thinking: one must have something intelligible to make accessible. This involves money, accommodation, and staff.

Money: Appraising, acquiring, arranging, processing, describing, cataloguing, preserving, and storing are critical (and invisible, behind-the-scenes) functions performed by archivists and librarians before the documentary heritage can be made available. For the newer machine-based audio-visual materials (film, radio, television, sound recordings) and even more so for computer-generated records (databases, office systems, web sites, and specialized digital photography, digital mapping, digital designing), the LAC will need a dramatic increase in its budget if it is to preserve and make accessible such media, especially after the crippling downsizing cuts of the 1990's.

Accommodation: The LAC will requires a new major building our two associations favour a second Gatineau Preservation Centre built beside and linked to the present state-of-the-art Gatineau Preservation Centre to house these specialized media, other records and books, their necessary equipment, and large numbers of staff soon to be orphaned when the condemned West Memorial is emptied for retrofitting as an office building.

Staff/Social Infrastructure: We remain concerned that the subject, media, and functional research-based expertise of professional archivists especially not be diluted into some new, bland, combined informational professional, skilled perhaps in process but not substance; and that, despite the new emphasis on web-based and remote access, this specialized archival expertise be more readily accessible to advanced researchers than it has been over the past decade. The unique knowledge and research foci of archivists and librarians needs to be respected.
Copyright Amendments

The copyright clauses of Bill C36 (sections 21 and 22) represent a negotiated agreement reached quite separately from the merging of the National Archives and National Library into the Library and Archives of Canada. The ACA and the CHA were parties of that agreement, and thus support these clauses. Clause 22 will especially benefit archivists and all researchers for its more effective administration of copyright law.

Our associations are only concerned that these amendments to the Copyright Act of 1997, being piggy-backed onto the creation of the Library and Archives of Canada, not derail the merger of the two institutions.
Recommended Formal Amendments to Bill C36

Based on the arguments presented above, we recommend the following formal amendments:

Destruction of government records at risk:

Section 13 (3): Change may require to shall require

Appraisal function the power to identify what is archival and what is not:

Section 7 (a): Add: to appraise, acquire and preserve....

Section 8 (a): Add: to appraise and acquire publications and records....

Section 13 (1): Delete considers to have and add:has appraised as having.

Private-sector records:

Section 2: Add: private-sector record means a record that is not under the control of the government institution or a ministerial record.

Section 7 (c): Add: ... historical and archival value, and of private-sector records having national prominence or representative significance.

Information Management:

Section 7(d): Add: ...government institutions, so that they create and manage reliable records as trustworthy evidence of government policies, operations, and program delivery.

Advisory Council:

Section 6: Add: The Council should include representatives from the professional archival, library, historical, and genealogical communities, in addition to other individuals.

The CHA and ACA thank the committee for receiving our views and hope that these will be helpful in amending the legislation and its later implementation.

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