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November 4, 2019
This post is part of a series setting the context for Indigenous Data Sovereignty. In our last post, Decolonizing Digital: The Future is Indigenous, we discussed two of four elements for decolonizing the digital space; Indigenous Peoples are still here and Indigenous Peoples are key players in global issues. This post will explore Indigenous rights.
It’s easy to take rights for granted as they are often invisible to those who have them - they are just there and they work. When you don't have to fight for or defend your rights, you have what is commonly referred to as privilege. Privilege is when rights are not respected and only apply to a certain group of people.
To check our privilege, let’s start with a common question that many First Nations people grapple with throughout their lives: are you a registered band member living on a reserve?
This question asks a lot. In the following words of the late and great Arthur Manuel:
In the infamous Section 91 of the BNA [British North America] Act, which sets out the long list of federal responsibilities, Subsection 24 lists “Indians and land reserved for Indians.” That’s it… Would you not be outraged by a founding state document that asserted the government’s absolute control and domination of [a certain race or ethnic group], when it is was also clearly stated that [they] were not considered “persons” under the law and had no democratic rights within the society?
To put this into perspective, imagine that your entire life - community, culture, language, and education - right down to the land on which you live became the sole responsibility of a foreign organization. Your entire way of life becomes dictated by this organization’s employees who you have never met. These strangers decided, with no consultation, how and where you live, what language you speak, and the fate of your children. Then, to make it worse, they no longer consider you a person. They insist that your existence is dependent on their generosity and goodwill. They give you an area to live far from your home and expect you to exist there until the end of your days.
The irony that emerges when examining this system (i.e., the reserve system) is how our discourse normalizes this inherently racist and patriarchal system as a foundational aspect of Canadian society.
The reserve system’s documentation requirements also have massive impacts on First Nations’ rights and daily lives. The Government of Canada dictates that individuals who live on reserve often need proof from some authority to act on behalf of the Nation or community. This process removes power from community members and shifts it to a system that has historically devastated that community. That is why we need to change the flow of information from “outside-in” to “inside-out”, where the people who the data is about have full control over what it says and how it’s used.
The housing situation on reserves is a practical example of how sovereignty is crucial to self-determination. Off-reserve, our concept of housing is straightforward; you find a home you like, negotiate with the existing owner or their proxy to rent or purchase the place, exchange money, and you may now live in that dwelling on that land. No one disputes that the land you are living on belongs to you because you have a piece of paper (a deed, rental agreement, or some other title recognized by the province or territory) that confirms that you own that land or you may reside on it as long as you fulfill the terms of your tenancy.
We cannot make these assumptions on reserve. First, the Crown holds the underlying title to the land so while you may own the structure you live in, the land under it does not belong to you. Not owning the land becomes a problem because houses, or buildings in general, depreciate in value. They require constant upkeep, maintenance, and renovations otherwise they will fall apart and no longer fulfill their intended purpose. When we talk about our homes appreciating, what we mean is the land the building sits on increasing in value. Land is finite; there won’t be any more land unless we colonize another planet, so capitalism assumes that land will increase in value.
It is economical to invest in the land a building is sitting on, not the building itself. Banks know this, which is why they offer mortgages. They may lose a few of their foreclosure bets from time to time, but they have enough capital - through mortgages and other loaning systems - that they can hold onto land long enough that they can flip it at a tidy profit as it increases in value over time.
But what does this have to do with sovereignty, let alone data sovereignty? This example shows that allotments made for Indigenous Peoples regarding housing or land ensure that the communities that live on reserve are dependent on the so-called authority of external governing structures because they can’t own the land. If they don’t have sovereignty over where they live, how can they have sovereignty in anything else? Sovereignty across all aspects of life is a fundamental building block for creating Nation-to-Nation relationships. Land is just a starting point, but it’s connected to so many other essential elements of self-determination.
Most non-Indigenous people take for granted their rights to space; the house they live in, the land they own, or the apartment they rent. The very notion that they have limited - or no - rights on where they live would cause disbelief and outrage. Yet having limited to no rights is not an uncommon experience for Indigenous Peoples, and being unable to own land on reserves is just a small but important example of this experience. The causes of Indigenous poverty are not only found in the colonial distribution of capital, but also in the legal distribution of rights. This inequitable distribution is made clear in the following examples of rights that most Canadians take for granted (as they are enshrined in our constitution and other fundamental international rights documents):
These are just a few examples of the disparity between the rights of Indigenous and non-Indigenous people, but we must emphasize that this disparity is a problem for everyone. Where this disparity gets interesting is, while Indigenous Peoples continue to suffer from systematic human rights violations, we can also link many of our struggles to global issues like the climate crisis:
The common thread in the above articles is that we associate Indigenous land rights with environmental sustainability, biodiversity, and addressing the climate crisis. Therefore, the act of securing, promoting, and enhancing Indigenous rights is beneficial not only to Indigenous Peoples but to all of humanity. “All my relations” is more than a catchphrase for Indigenous Peoples; it’s a philosophical principle central to many Indigenous worldviews that establishes that all of us - settlers and Indigenous Peoples - are in this fight together. What’s ironic is that the people on the front lines of this struggle are also the people that have to simultaneously fight for their basic human rights.
So what are Indigenous rights, how are they different from human rights, and what role does Indigenous Data Sovereignty have to play in all of this?
The intersection between traditional territory and Indigenous rights has become a hot topic in Canadian politics, in part due to the 2014 Tsilhqot'in Nation v British Columbia decision and the subsequent Trans Mountain Pipeline drama. In 2018, The Discourse, Aboriginal Peoples Television Network (APTN), and HuffPost Canada collaborated to create a project called #TrackingTransMountain. Along with a few reported stories, it included a database that outlines where Indigenous communities stand on the Trans Mountain Pipeline.
While the #TrackingTransMountain project is an important attempt at centralizing and documenting Indigenous perspectives, it is not authoritative as it requires public data given by First Nations members who may - or may not - represent their communities. These kinds of projects, while beneficial to engaging the public in constructive discourse about Indigenous lands and rights, also risk the possibility of being seen as a concrete data set endorsed by the community, a reality that is often far from the truth.
Canada has a “duty to consult” Indigenous Peoples, but it’s not clear this duty means in practice. If anything, given Canada’s recent investment in the Trans Mountain Pipeline, there doesn't appear to be neutral facilitators in on these discussions. Recent court cases have demanded a better consultation process, but have yet to define the standard.
When we don’t clearly define the consultation process, meaningful consultation with anyone is difficult. The colonial consultation model is similar to a one-sided conversation. Indigenous communities expect external experts who want to engage in Indigenous spaces to “inform” the community. Meanwhile, we also expect the community to voice their concerns. What’s missing is that both parties have “experts”, but only one side is being heard. Consultation needs to be an open dialogue and multilateral sharing of expertise. This is why the principles of Free, Prior and Informed Consent (FPIC) - established by the International Labour Organization Indigenous and Tribal Peoples Convention (IL0), 1989 (ILO 169) and further validated by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) - are so important.
FPIC means that:
“consent should be sought before any project, plan or action takes place (prior), it should be independently decided upon (free) and based on accurate, timely and sufficient information provided in a culturally appropriate way (informed) for it to be considered a valid result or outcome of a collective decision-making process.”
Quote from “Free Prior and Informed Consent: An [I]ndigenous [P]eoples’ right and a good practice for local communities” - a UN Food and Agricultural Organization manual for project practitioners.
Free, Prior and Informed Consent is fundamental to respecting Indigenous rights throughout the world. Recognizing that Indigenous rights existed prior to colonization, such as in Tsilhqot'in decision, is only a foundation for further action. We need Indigenous Data Sovereignty in order to realize each of the FPIC principles. The ownership, control, access, and possession of Data have a major role in determining whether or not projects are destined to continue getting tied up in the court systems. There are some practical examples of why this occurs, and it’s worth exploring what Indigenous Data Sovereignty can do about it.
It’s a common and reasonable principle that if anyone coerces any party to an agreement or exercises undue influence upon them, then their consent to the agreement has not occurred. They haven’t been free to choose. This alone can nullify agreements or cause substantial project delays.
The rights-holders determine how to objectively and transparently share any relevant project data. They should be the ones who determine where, when and how meetings and decisions take place in a language and format of their choosing. All community members should also be free and able to take part. This is important in communities that have contested leadership between traditional and colonial forms of governance.
This presents basic coordination challenges:
Perhaps the more pressing and challenging questions are:
Video evidence, audio recordings, notes or any form of meeting records can allow for rights-holders to access information. Those data also serve as evidence to show harassment, intimidation, bribery, or any other denial of the rights-holders freedom of choice. The integrity, reliability, and accessibility of said data are important to make it undeniable that rights-holders have exercised free will.
However, while data transparency is important, it also presents a distinct challenge given the context of Indigenous data. Processes need to be in place that protects and segments sensitive data so they are still accessible to rights-holders and relevant parties but inaccessible to the public. Open data access could further exacerbate pre-existing power imbalances. Everyone may have access to open data, but not everyone can leverage those data. For example,
“Knowledge is power”, but it’s also a process that requires wisdom. How we leverage, use, and disseminate data are what becomes knowledge. However, this process is not devoid of power relationships. Before we make any decisions, we must identify and plan for these potential conflicts of interest as a key principle of free consent.
Before any project begins that could impact an Indigenous community and their rights, and before anyone gives any authorization to go ahead with any related activities on the ground, there needs to be adequate time for the community to access, analyze, evaluate, and understand data on the proposed activity. The rights-holders establish the timeline and the project proponents respect it; not the other way around.
Project proponents often base consultation on reports, dense with industry-specific jargon, or community engagement sessions, which can be little more than a presentation by a representative who has a shallow understanding of their audience and limited - if any - authority to negotiate. While these outsiders invite the community to “participate”, it’s an awkward and alien form of dialogue that doesn’t promote deep conversations or shared understanding. This isn’t meaningful data sharing, it’s political theatre.
The burden of sharing accurate information with the rights-holders often falls to community leadership or staff who may not have the resources they need to do the job. This is not because they don’t want to serve their community, but rather sometimes - not always - the tools needed to translate and distribute data generated by outsiders are either convoluted, bureaucratic, or non-existent.
For example, reports or datasets may be too dense and indecipherable or the community may not have accessible internal data that can verify the outsider’s claims. We can’t take data at face value as they are never free from bias (especially because of incentivized political projects).
Having the right people, the right data, and the right technology to account for the added responsibility of consultations is vital to ensuring that information is understood throughout the community. If information is concentrated in the hands of just a few specialists, they may be co-opted or they may just leave after their work is done. Even if communities have something as simple as a reliable database that members of the community can access in a manner that they can understand goes a long way in ensuring that data work for Indigenous Peoples, not against them.
It can take a lot of time for a community to be ready for consultations. The more complicated and controversial the project, the more time and resources are needed. The number of community members involved increases the complexity of the project, as the members may not be identified or available. For Indigenous governments or community organizations that are struggling with their existing responsibilities, the added surplus of work required for consultations is often unrealistic.
In FPIC, the informed principle is the one most often associated with data. However, as shown from the discussion above, data are a key element throughout consultations. If we’re informed, it also denotes a process, an ongoing relationship, or an exchange of information. It is imperative that data in these relationships are accessible, clear, consistent, complete, accurate, objective, and transparent. They also need to be culturally appropriate in both form and delivery.
Western worldview often finds experts among individuals who embody a rigid professional expectation gained through years of formalized education, labour, and recognition. In many Indigenous worldviews, we find experts in the community in both current spaces and the depths of time. While Elders may have a deeper pool of wisdom to pull from, as an individual their knowledge may miss necessary perspectives to which others can contribute. Considering an individual as an “expert” can be arrogant and shortsighted. Where authority resides is not as defined as it is in a Western worldview. This can create a potential disconnect between consulting parties. The data both perspectives bring may take different forms, and we need time for translation and coordination so both data sets are valued and respected.
How often do project proponents think about whose consent they are seeking? This is one of the biggest elephants in the room for many communities whose traditional leadership systems or governments have survived colonialism. Divided communities and infighting may skew or complicate notions of community consent. This leads to challenging questions that, when ignored, increases the risk of project delays, conflicts or cancellations. For example,
These questions are in a Canadian context, but we could also ask ourselves more general questions applicable throughout the world:
These are all difficult and uncomfortable questions that sometimes don’t have an easy answer, but they are essential components of consent. The irony is that the very systems that sought to fragment and disintegrate First Nations are now holding back further projects that seek to control and exploit Indigenous land. Like a snake eating its own tail, the short-sighted settler-colonial project appears to be turning in on itself while blaming Indigenous Peoples for its downfall.
Because of the incessant destabilization of Indigenous identity by settler colonialism, different ideas of who belongs within communities occur. Also, each community may have different leadership structures that are not always recognized by outsiders. There are many recent high profile examples of ingratitude, but this very issue often simmers at the heart of any community defined by outsiders.
Other key questions more specific to data gathering and analysis are:
In the larger scheme of things, can the community ever give consent if another state determines its governance structure? Are Western notions of “democracy”, such as anonymous voting or parliamentary representation, incompatible with Indigenous governance mechanisms that put a higher priority on direct responsibility and accountability? Can a Nation, confederacy, community, clan, family, house, or individual give consent if they don’t have sovereignty? Can we use technology to augment traditional governance in a way that supports self-determination?
The ongoing effects of colonialism seep into the very notion of consent. This is why the popular misconception of Indigenous Peoples exercising veto power over the rest of the country terrifies so many people. Until we address this misunderstanding, or willful ignorance, of the complexity inherent in respecting Indigenous rights, it is unlikely for us to establish what is required to gain consent.
Indigenous Data Sovereignty is at the heart of FPIC. But before we recognize this key element of ILO 169 and UNDRIP, we must develop a framework where Indigenous Data Sovereignty lays the foundation for any FPIC legislation. The challenge we have to undertake is making the case for Indigenous Data Sovereignty when it has been suppressed by colonial powers and ignored by multinational corporations for so long.
The ultimate irony is that FPIC is often in the best interests of colonial powers and multinational corporations because it’s a far more cost-effective use of economic, political, and moral capital for all parties involved. The bigger the project, and the more assets tied up in it, the bigger the risk that a sunken-cost fallacy influences the project proponent and skews their decision-making processes. Rights-holders are the best consultants to determine if the best course of action is to stop a project before it even begins.
The province of British Columbia has just tabled a bill that begins the long process of aligning provincial laws with UNDRIP. While this is an essential first step to recognizing Indigenous rights, UNDRIP only contains foundational standards that don’t challenge the overall power structure, dominance, and white supremacy of the Canadian state. The fatal flaw of UNDRIP is Article 46(1) which protects “the territorial integrity or political unity of sovereign and independent States.” This is the proverbial, and perhaps literal, get-out-of-jail-free card that Canada and other colonial states can use whenever they wish.
Regardless of how colonial states interpret Indigenous rights mechanisms, Indigenous Peoples aren’t going to disappear. If anything, many of our populations are growing. We are more likely than ever to gain sovereignty as human rights become a stronger political and corporate social responsibility issue. Yet as the world grows ever hungrier for land and resources, Indigenous Peoples are left shouldering the responsibility of environmental stewardship on top of the struggle for them to acknowledge their basic rights. Instead of assimilating and expropriating, perhaps it’s best that settler governments, businesses, and civil society listen to Indigenous voices; they will only get louder.
This article described just a few examples of the many ways that data are integral in supporting Indigenous rights. The next post will explore how Indigenous Data Sovereignty acts as a pillar and support mechanism for self-determination. To read our other articles on Decolonizing Digital, see below:
November 4, 2019
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