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Indigenous economic reconciliation needs path toward spectrum sovereignty: experts

News | 09/30/2021 5:03 pm EDT
Photo via Pxhere.

While the Canadian government is busy collecting $8.9 billion dollars from its recent 3500 MHz spectrum auction, Nunavut is still 100 per cent dependent on satellites for its telecommunications, posing challenges with respect to services that are not reliable, stable, secure, nor affordable. 

In Nunavut — where 86 per cent of the population is Indigenous — the unreliable services mean businesses lose revenue if customers are not carrying cash on them when the debit machines are down, or overage costs for Zoom calls can come in at $100 per month, especially during the COVID-19 lockdowns.

“If we truly support Indigenous reconciliation as a country, we often need to support Indigenous economic reconciliation. We need to be allowed to get into sectors like telecommunications to develop our own engagement and partnerships and businesses in the sector, and develop Indigenous capacity,” chief operating officer of CanArctic Inuit Networks, Madeleine Redfern, told the Wire Report in a phone interview.

According to Redfern and other Indigenous advocates, that includes approaches like set-aside spectrum for Indigenous communities to full spectrum sovereignty — the idea that Indigenous communities should have exclusive rights to the electromagnetic spectrum that exists over their lands.

Telecommunication is now seen as a necessity and essential to Indigenous autonomy. The Canadian Truth and Reconciliation Committee’s 94 calls to action and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — which Canada officially aligned itself with earlier this year after passing Bill C-15 — both include articles to increase Indigenous-owned media to promote its language and culture.

However, that is a challenge when artists have difficulty consuming and creating content, having to mail their digital creations out on large data drivers to be edited and uploaded on servers in southern Canada, as is the case in Nunavut, according to Redfern. 

“The rest of the south has easier access to our cultural content than we do,” she said.

In some cases, telecommunications is also a human right. Redfern said there are instances when fibre optic lines are cut in British Columbia or the Yukon, killing the cell phone service in her region. That can be dangerous in life-threatening emergency situations, she said, as residents’ only option for help is to drive to emergency responders. 

Redfern said it is difficult to get Canada’s large telecommunications companies to partner with Indigenous communities to bring better connectivity to remote Canada because it’s not profitable. 

 “If we had access to the spectrum, if we had our own allocation, then there would be a requirement for the telecommunications companies to partner with us,” she said. “The federal government recently sold almost $9 billion worth of 5G spectrum, and there was no set-aside for Indigenous spectrum. If there was — like there is in the United States, New Zealand and Mexico — we could see our regions and our Indigenous businesses being able to partner with telecommunications companies to get better services.” 

Redfern said Canada should look at policies at the Federal Communications Commission (FCC), which licenses spectrum in the United States.

Last year while preparing to auction off the 2500 MHz band,  the FCC first gave certain Indigenous communities the opportunity to acquire the unassigned prime mid-band spectrum going over their lands for free, without going to auction, through its Rural Tribal Priority Window. As of Sept. 2021 the FCC granted 270 licenses to Tribes or Tribally-controlled entities, according to the commission.

Indigenous law and policy fellow at the University of Arizona, Darrah Blackwater, said that while what the FCC did is a step in the right direction, the system is still not perfect. 

She said the priority window was only open to the federally-recognized Native Nations in the United States when there are “many more that are not recognized by the colonial government.” In addition, the “rural” distinction poses a problem for federally-recognized Native Nations in urban settings who were also not eligible to apply. If Canada were to follow that approach that would exclude 41 per cent of Indigenous peoples who live in urban areas, according to Statistics Canada data.

Blackwater also argued that spectrum is a natural resource and therefore Indigenous peoples should have access to all of the spectrum over their land and see the financial profits from spectrum auctions. Since Canada’s first spectrum auction in 1999, the federal government has generated over $20 billion in revenue from auctioning off spectrum licenses.

In 1990, the Māori in New Zealand were the first to challenge the state’s right to sell radio spectrum without consulting the Indigenous population, arguing the government had a responsibility to protect the Indigenous culture. 

“New Zealand has largely taken the lead on this issue, and it’s been a front burner communication policy issue in New Zealand now for a couple of decades. So it’s something that I think when the rest of the world is looking at the place of Indigenous rights spectrum, they look to what is happening in New Zealand where this first came about as a real political issue,” said Gregory Taylor, the principal investigator for Canadian Spectrum Policy Research and a professor at the University of Calgary. 

As a result of the Māori challenge under the 1840 Treaty of Waitangi, the government in 1991 reserved frequencies to broadcast programming that would support Māori language and culture. Then in 1999, the Māori  — having recognized the economic potential with the 3G auctions —  launched another challenge to a tribunal established to handle the legacy of the treaty this time arguing  for full spectrum sovereignty, claiming it is a shared natural resource. “The claim defined radio spectrum as a shared natural resource with cultural meaning, against the Crown’s claim that it was a purely technological and economic resource,” writes Zita Joyce, a senior lecturer at the University of Canterbury. 

The Māori claims to spectrum in New Zealand were grounded in arguments that the Treaty of Waitangi mandates that the Crown and the Māori act “in partnership with respect to resources”, Joyce writes, and that spectrum should be considered what is known as a taonga, or a treasure. 

“In arguing that spectrum is a taonga, the claimants described it as the entity linking all things between the earth and the sky and as the conduit for transferring knowledge from the gods,” according to Joyce. 

A majority of the tribunal agreed, and recommended that the New Zealand government suspend its 3G auction until the government had negotiated with the Māori for a fair and equitable portion of the frequencies. The government declined, instead offering a trust of money and a 5 per cent discount on spectrum. 

“Spectrum is a public resource, and it doesn’t matter where you are in the world, spectrum is publicly owned. So, if you have the right to what is in the soil in your territory you also have the right to what naturally appears in the air. Nobody creates the spectrum, the spectrum is there. So I think that there is a really solid case to be made that if you are in control of land then you should also have control over the spectrum,” Taylor said.

Taylor said any Canadian developments that allow for spectrum sovereignty will likely reflect the wider international decisions. In the meantime, Taylor and media and technology researcher for the University of Alberta, Rob McMahon, said the Department of Innovation, Science, and Economic Development (ISED) — which recently issued consultation documents on spectrum policy aimed at freeing up the resource to rural Canada — can change its tiered approach to remove some barriers to Indigenous participation and connectivity.

“There’s certain aspects of ISED’s licensing process that are inherently challenging. They have huge service tiers and there’s no way that groups can compete in spectral auctions and the length and duration of the licenses for those large tiers is usually really long, like 20 years,” McMahon said.

McMahon explained that the larger tiers and deployment requirements  pose problems for rural areas because service providers will opt to cover cities like Thunder Bay in a large tier that would cover most of Northwest Ontario, leaving the surrounding remote areas without service.

“The smallest tier is Tier 5 and those aren’t bad, but they still cover quite large areas. So one thing might be to have smaller tiers that focus on Indigenous specific areas, like what they did in the U.S. where the FCC actually drilled down the actual tribal land base for their licenses… and then they had a ​​two year window whereby they had to deploy services,” he said.

Before any steps can be made to improve Indigenous connectivity and access to spectrum the government must also adapt its consultation process to better reflect the decision making processes of Indigenous communities, according to advocates.

Blackwater noted that the FCC’s priority window only gave nations three months to apply online, during the pandemic, which she said is not enough time, especially when Indigenous nations have their own decision making processes which could take more time.

​​According to McMahon, Mexico must invite its Indigenous nations to participate in any decisions over spectrum because its national telecommunications act  has a requirement that ties into UNDRIP’s calls to support Indigenous media and spectrum allocation is one of the means of guaranteeing the conditions for Indigenous people to operate their own media.

Executive director of Open Media, Laura Tribe, who works with Indigenious communities in Canada on consultation processes said that one of the main challenges she’s heard from Indigenous communities is that there is a lot of talk from the government about wanting to include Indigenous voices but not any outreach to facilitate that participation.

“When we look at these government consultations — particularly telecommunications policy when it comes to spectrum — in many cases it’s on a very tight timeline, and for groups that have been historically quite excluded from those processes to expect them to work on the same timeline as someone whose full time job is to follow this is a little unrealistic,” she said.

Tribe said ISED needs to design a compensation process with Indigenous people to figure out how they want to participate and be heard. She also added that the government needs to approach its spectrum and telecommunications policies from an Indigenous framework  rather than “throwing the word Indigenous on a page”  in their consultation documents “and calling it a day.”

Redfern also echoed those statements, noting that once the CRTC asked them to do a ping test, not realizing her community was not able to do that test because they did not have the proper internet connection to do the test.

“That’s why it is important for the telecommunications bodies to travel to the North, experience what the internet is like first hand and speak to the people directly,” she said.

“It’s not that Indigenous people need the internet, it’s that the internet needs Indigenous people. They need our ideas and our brilliance and our input into these technologies and to know what we can do for the world and what our traditional knowledge holds if we’re willing to share it,” Blackwater said.

— Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphyat mleemurphy@thewirereport.ca 

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