NWAC Members Pass Resolution Calling for an End to the Misuse of Non-Disclosure Agreements to Conceal Misconduct

Resolution calls for survivor-centred reform, stronger accountability and protection of the right of survivors to choose confidentiality for themselves

OTTAWA — August 23, 2026 — Members of the Native Women’s Association of Canada (NWAC), meeting at NWAC’s 52nd Annual General Assembly (AGA), have passed a resolution calling for action to prevent non-disclosure agreements (NDAs) and confidentiality clauses from being used to conceal misconduct.

The resolution, “Ending the Misuse of Non-Disclosure Agreements (NDAs) to Conceal Misconduct,” was brought forward by Tara Q Tootoo Fotheringham, Amautiit: Nunavut Inuit Women’s Association.

The resolution recognizes that NDAs and confidentiality provisions may serve legitimate purposes, including protecting personal privacy, cultural knowledge, intellectual property, and other lawful interests. It draws a clear distinction, however, between legitimate confidentiality and the use of secrecy provisions to conceal sexual misconduct, harassment, violence, abuse, discrimination, retaliation or other serious wrongdoing.

It also recognizes the significant power imbalance that may exist when an individual is negotiating with an employer, institution, or other party with greater financial, legal or professional resources.

For Indigenous women, those power imbalances may be compounded by gender discrimination, anti-Indigenous racism, colonial systems, economic insecurity, geographic isolation, unequal access to legal representation, employment insecurity and other intersecting barriers.

“No survivor should have to choose between financial security and the ability to speak about misconduct that has affected their life. Confidentiality can be important when it is chosen by a survivor for their own privacy, dignity, and safety. It should not be imposed to protect institutions or wrongdoers from scrutiny and accountability. By adopting this resolution, NWAC members have given us a clear mandate to examine our own practices and to advocate nationally for reforms that put survivors, dignity, informed choice and accountability first.”

— Josie Nepinak, President, Native Women’s Association of Canada

The resolution applies a Culturally Relevant Gender-Based Analysis (CRGBA) to the issue, recognizing that workplace misconduct and institutional responses to misconduct are not experienced equally. Gender, Indigeneity, colonialism, racism, disability, sexual orientation, gender identity, geography, socioeconomic circumstances and other intersecting factors can affect whether a person is able to report misconduct, obtain support and pursue meaningful remedies.

The resolution further recognizes that Indigenous women and Indigenous women’s organizations bring lived experience, cultural knowledge and community relationships that should inform the development of public policy concerning NDAs, workplace misconduct, gender-based violence, discrimination and institutional accountability.

“This resolution is about restoring the purpose of confidentiality to where it belongs: protecting people, not protecting misconduct. Indigenous women can face enormous institutional, financial and professional pressures when trying to report wrongdoing or negotiate a settlement. A signature obtained in circumstances of fear, financial insecurity or unequal power does not automatically mean a person had meaningful choice. We want policies and laws that recognize those realities while always preserving a survivor’s right to request confidentiality when that is what she wants for herself.”

— Tara Q Tootoo Fotheringham, President, Amautiit: Nunavut Inuit Women’s Association

Under the resolution passed by members, NWAC will:

• develop and adopt, within 12 months of the 2026 AGA, an organizational policy prohibiting the use of NDAs or confidentiality clauses to conceal allegations or findings of misconduct;
• continue to permit legitimate confidentiality provisions, including those protecting personal privacy, intellectual property and confidentiality requested by a survivor;
• support and advocate for legislative and policy reforms across Canada restricting the use of NDAs in cases involving misconduct;
• encourage NWAC Provincial and Territorial Member Associations and other Indigenous organizations to consider comparable commitments; and
• report progress to members at the 2027 Annual General Assembly.

The resolution emphasizes that reform must remain survivor-centred. Nothing in the resolution is intended to prevent an individual who has experienced misconduct from choosing confidentiality for their own safety, privacy, dignity or autonomy.

Rather, the objective is to ensure that confidentiality is not imposed primarily for the purpose of shielding an institution, employer or alleged wrongdoer from legitimate scrutiny or accountability.

NWAC will now begin the work required to implement the direction provided by its members.

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BACKGROUNDER

Ending the Misuse of Non-Disclosure Agreements to Conceal Misconduct

Resolution Adopted by Members at NWAC’s 2026 Annual General Assembly

The Issue

Non-disclosure agreements, commonly referred to as NDAs, are frequently incorporated into settlements and other agreements requiring one or more parties to keep specified information confidential.

Confidentiality can have legitimate and important purposes. It may protect personal information, privacy, cultural knowledge, intellectual property, commercially sensitive information and other lawful interests. A person who has experienced misconduct may also want confidentiality for their own safety, dignity and privacy.

The concern arises when an NDA or confidentiality clause is used to prevent a victim, survivor or whistleblower from speaking about workplace or institutional misconduct and, in doing so, allows harmful conduct to remain hidden or unaddressed.

NDAs should not be used to conceal sexual misconduct, harassment, violence, abuse, discrimination, retaliation or other significant or criminal wrongdoing.

Power Imbalances and Meaningful Consent

An agreement exists within the circumstances in which it was negotiated.

A substantial power imbalance can exist between an employer or institution and an individual who has experienced misconduct.

Unequal access to money, lawyers, employment security, professional networks and other supports can affect an individual’s practical ability to negotiate settlement conditions freely and on equal terms.

Women may also experience economic circumstances that increase that imbalance, including:

• wage inequity;
• caregiving responsibilities;
• precarious employment;
• geographic isolation;
• limited employment alternatives; and
• other forms of financial insecurity.

A person may consequently feel significant pressure to accept a settlement or severance agreement containing confidentiality provisions because the person requires immediate financial security.

The possibility of substantial financial penalties for breaching an NDA can create a continuing burden after an agreement has been signed. It may discourage an individual from seeking assistance, warning others, participating in accountability processes or speaking about wrongdoing.

A victim, survivor or whistleblower may also be negotiating while experiencing actual or perceived threats involving litigation, financial consequences, loss of employment, future employability, professional exclusion, reputational damage, retaliation, harassment or other harm.

Those circumstances can materially affect whether consent to confidentiality is meaningful and informed.

Indigenous Women and Intersecting Barriers

The resolution applies NWAC’s Culturally Relevant Gender-Based Analysis (CRGBA) and recognizes that misconduct and institutional responses to misconduct do not affect everyone equally.

Relevant intersecting considerations can include:

• gender;
• Indigeneity;
• colonialism;
• racism;
• disability;
• sexual orientation;
• gender identity;
• geography;
• socioeconomic circumstances; and
• other forms of systemic disadvantages.

Indigenous women may experience overlapping gender-based and anti-Indigenous discrimination as well as the continuing effects of colonial institutions and institutional power imbalances.

These circumstances can create additional barriers to reporting misconduct, obtaining culturally safe legal or workplace remedies and challenging institutions or individuals in positions of authority.

Effective reform therefore requires the meaningful participation of Indigenous women and Indigenous women’s organizations, whose lived experiences, cultural knowledge and community relationships can contribute directly to better public policy.

Survivor Choice Must Be Preserved

The resolution does not call for the elimination of all confidentiality agreements.

A survivor must continue to have the right to request confidentiality where confidentiality serves the survivor’s own privacy, safety, dignity or autonomy.

Legitimate confidentiality requirements relating to personal information, cultural knowledge, intellectual property and other lawful interests must also continue to be respected.

The distinction is between confidentiality that protects a person or legitimate interest, and confidentiality imposed primarily to protect an institution, employer or wrongdoer from scrutiny or accountability.

Survivor-centred reform should preserve a person’s ability to:

• obtain support;
• obtain legal advice;
• participate in legal, regulatory or other accountability processes;
• make informed decisions concerning disclosure of their own experiences; and
• exercise meaningful choice over whether confidentiality serves their interests.

About NWAC

The Native Women’s Association of Canada (NWAC) is a national Indigenous organization representing the political voice of Indigenous women, girls and gender-diverse people in Canada. NWAC works to advance their rights, well-being, safety and equality through advocacy, policy development, research, partnerships and engagement.