Dennis Baker, Gad Horowitz, Stephen Sondheim

• Dennis Baker’s book is out. Not Quite Supreme, The Courts and Coordinate Constitutional Power (McGill-Queen’s). I started reading it from back to front –  the index, then the bibliography, then the notes. (Why not? Joan McGillvray, editor at MQUP recommends starting with the “end matter.” Most scholars do it, she says. Always a good way to get a feel for a book. A good index tells you something about the book and even more about the author. That’s Joan’s opinion. Perhaps she says it to keep her authors slogging through the last difficult task.) My report so far: the index is good and the bibliography, staggeringly good; it will appeal to the political philosophers among you. I’m now going at things properly, front to back. The cover is splendid. What an extraordinary building the Supreme Court is! In a strange and lonely setting. And why is the Canadian flag at half-mast?

• Dinner in Toronto with Gad Horowitz and Shannon Bell. It’s always a good occasion. Gad’s worried about the fact that the Left’s turned against Israel and can’t explain it any better than the rest of us. His festschrift, a work in progress for many years, is now more than 800 pages in manuscript. It’s Shannon’s job to prune it. (Shannon Bell and Peter Kulchyski, Contemporary Critical Theory in Canada: Essays in Honour of Gad Horowitz.) Good luck, Shannon. I know some of the contributing authors. Egoists, all of them.

• Stephen Sondheim’s ASSASSINS is playing in Toronto. It’s a musical about the men and women who murdered or attempted to murder the President of the United States, from John Wilkes Booth to Lee Harvey Oswald. A real romp, I hear, given a great production. The program notes are another matter. The dramaturge, Stefan Dzeparoski, writes: “It has been 18 years since the first production of ASSASSINS. What has changed since then that keeps this piece of theatre still relevant? Nothing and everything has changed one might say. The world is still in the state of perpetual war and fear, democracy is dead. In post 9/11 world, ASSASSINS are more than relevant in their role of exposing the exhausted destructive cultural and consciousness post-modern paradigm of Americanized world.”  The exhausted and destructive post-modern paradigm of the Americanized world! Democracy is dead! That’s the dramaturge speaking; Sondheim’s view is not so simple.

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Swaggering Bureaucrats: the SSHRC and CAUT

Last week I published Rhoda Howard-Hussmann’s letter criticizing constraints on aboriginal research set by Canada’s granting agencies. (Read the entire letter: February 5, Howard-Hussmann on Funding Aboriginal Studies.)

The agencies, chief among them the Social Sciences and Humanities Research Council of Canada, require researchers in the field of aboriginal studies to respect the centrality of community experience and communal identification in the lives of aboriginal persons. The successful grant proposal must indicate the researcher’s adherence to this notion of communal identity.

But in academe the importance of communal identification is not usually a researcher’s assumption. It is, rather, a matter to be studied, queried, weighed, pondered. For researchers in aboriginal studies today it is, I would say, the subject. A conscientious researcher in aboriginal studies cannot assume the importance of communal identification a priori.

To put it briefly, Canada’s guidelines on aboriginal research weigh in on one side of a contested academic issue, blindsiding the researcher and circumventing free inquiry.

Now think about the Canadian Association of University Teachers’ quarrel with Trinity Western University. TWU hires only women and men who identify themselves as Christians. Why should the CAUT care? It is their view apparently – the association will correct me if I am wrong – that an institution of higher learning should be neutral on the subject of religion.

I do not think the CAUT denies that particular religions, religiosity as phenomenon, and the history of religious belief, are appropriate subjects of study. They are assuming that these topics require an approach from outside the parameters of faith. Well, it is an old question, centuries old: can the agnostic researcher grasp the character of religious faith? Can believers grasp principles of science and philosophy?

The two great topics of study in universities before the modern era were Philosophy and Theology. These were the ruling disciplines. And the great question was this: is there a quarrel between them? Some said yes and some said no. The question remains alive. It is as fruitfully thought provoking as ever.

The CAUT is ham-fistedly weighing in on one side of a famously contested issue.

Who appointed these national managers? Who gives them their clout?

Howard-Hassmann on Funding of Aboriginal Studies

Rhoda Howard-Hassmann’s letter to Canada’s funding councils is given below in full. What is at issue can be seen at a glance in her second paragraph: “I believe that a strong and compelling argument can be made that Aboriginal Canadians are victims of cultural genocide. Thus, I believe that attempts to preserve their languages, indigenous religions, traditions, and cultures are very important. At the same time, however, I do not believe aboriginal communities should be essentialized as unchanging and without internal cleavages and disputes. Moreover, as a specialist in human rights I am concerned about academic freedom and freedom of speech as it pertains to research on Aboriginal communities, as it pertains everywhere else.”

Read the whole letter.

Rhoda E. Howard-Hassmann, Ph.D., FRSC

Canada Research Chair in International Human Rights

Wilfrid Laurier University

Global Studies Program, Alvin Woods Building

75 Universities Ave. W.

Waterloo, ON, Canada N2L 3C5

E-mail: hassmann”wlu.ca E-mail: wwebb”wlu.ca

Telephone: 519-884-0710 x 2780

Fax: 519-884-8854                                                                                                                          519-884-8854

http://www.chairs.gc.ca

February 5, 2010

Interagency Advisory Panel on Research Ethics,

350 Albert Street,

Ottawa, ON K1A 1H5

Dear Colleagues,

I am pleased to have the chance to comment on the second draft of Chapter 9 of the Tri-Council Policy Statement on Ethical Conduct for Research Involving Humans. I am copying this letter to the Associate Vice-President, Research, at Wilfrid Laurier University, to the WLU Faculty Association (WLUFA), and to the CAUT.  These are my own comments, and should not be understood as the views of WLU, the WLUFA, or the CAUT.

Since the Panel intends to post comments on this draft on its website, I wish to clarify my own background before presenting my concerns. I am a scholar of international human rights; I have also been teaching comparative genocide studies for twenty-five years. Although I am not a scholar of aboriginal affairs, I believe that a strong and compelling argument can be made that Aboriginal Canadians are victims of cultural genocide. Thus, I believe that attempts to preserve their languages, indigenous religions, traditions, and cultures are very important. At the same time, however, I do not believe aboriginal communities should be essentialized as unchanging and without internal cleavages and disputes. Moreover, as a specialist in human rights I am concerned about academic freedom and freedom of speech as it pertains to research on Aboriginal communities, as it pertains everywhere else.

I am pleased to see that some of the problems I noted in my earlier letter to you of January 19, 2009 have been remedied. Some, however, remain, or new problems have emerged. While I agree with most of the principles set out in this version of Chapter 9, I am still worried about what happens in cases of conflicts of interests between communities and researchers, and conflicts between communities and individuals. I also have some concerns about aboriginal knowledge, and about some potential legal matters.

Academic Freedom

The Draft still sidesteps the question of whether a community can absolutely block a research project. There may be occasions when communities and researchers cannot come to an agreement on research. If this happens, does the researcher have the right to continue with her research—perhaps by contacting individual members of the community—or not?  Article 9:10, lines 3678 ff states that a community can engage nominally or not at all in research,  Can the community deny the researcher access?

The idea of “partnership” (e.g. line 3363) between scholars and research subjects assumes no conflicts, or conflicts that can be resolved with good will. One would hope that such resolution would be the case, most of the time. But if conflicts can’t be resolved, whose views take precedence if there are disagreements over questions, methods, results, or conclusions? Line 3468-69 notes Aboriginal communities have often not had the chance to correct misinformation or ethnocentric interpretations. While this is true, what onus, if any, is the Panel putting on researchers here to accept such corrections, if offered?  Does the researcher have the right to reject offered corrections? Article 9:17, lines 3870-77 imply that the researcher does have such a right: but the Panel should make it clear that the researcher is entitled to have the last word. Similarly, with regard to Article 9:11:, lines 3704-3705: If there are “mutual responsibilities” in analysis and interpretations, production of reports and dissemination of results, does the researcher enjoy the academic freedom to publish her own analysis and interpretations in event of disagreement? Does she enjoy the academic freedom to disseminate her findings wherever she wishes?

These matters must be clarified: as it stands, this draft waffles about what happens in case of conflict between researchers and aboriginal communities. If researchers do not enjoy the normal rights of academic freedom, then Chapter 9 should begin with an Article that states clearly that researchers on Aboriginal affairs do not enjoy these rights. As I stated in my letter of 2009, if the principles of academic freedom are to apply to all research except research about aboriginal communities, then this should be clearly stated so that researchers on aboriginal matters know they are operating under a different set of rules than they are used to.

Individuals and Community

This draft, like the earlier version, still assumes that individual aboriginal Canadians do not have the same rights to autonomy as all other Canadians. The foreword states that First Nation, Inuit and Métis communities, but not individuals from these communities, are invited to respond to the draft. A community is defined (line 3178-79) as “a collectivity with shared identity or interests that has the capacity to act or express itself as a group.” This definition ignores communities within which interests many not be shared, even if identities are.

Throughout, references are made to Aboriginal communities as if all Aboriginal individuals live in such communities. Many do not. How is research on urban aboriginals without ties to any Aboriginal community to be conducted? If, for example, a researcher wishes to conduct research on Aboriginal university graduates living in Toronto, how is she supposed to do so?

The phrase, “while continuing to respect individual autonomy” (l. 3139-40) is not sufficient to protect the autonomy of Aboriginal individuals, an autonomy considered in other parts of the Policy Statement as key to respect for all non-Aboriginal Canadians. The Policy does not yet clarify what a researcher is to do if the interests of the “community” (or those who represent it or purport to do so) do not coincide with the interests of individuals. Indeed, the Policy still does not present guidance on how researchers can by-pass community leaders to access individuals who may wish to participate in research that the community leaders do not wish to see conducted.

I repeat what I said in my letter of 2009: there must be some statement that aboriginal leaders or elders do not have the right to veto research in which individual aboriginals might be interested in participating. The possibility of not engaging with the community in some situations must be allowed; for example, if all the community leaders are members of extended family x, and do not want extended family y’s circumstances to be investigated, the researcher must be permitted to circumvent the community leaders and go directly to family y. Aboriginal leaders do not always serve the collective welfare of the individuals within their communities (l. 3239). Lines 3330-31- state that when the “welfare of relevant communities is not affected…informed consent of individuals is sufficient.” Who decides when the welfare of the community is affected? This statement presumes, once more, that community leaders enjoy the support of all members of the community and make decisions that do not adversely affect any community members. In no other Canadian community is this assumed.

The Chapter as a whole glosses over real and potential differences between individual and community interests. Acknowledgement of diversity among and within Aboriginal communities, and the statement that such diversity “increases the important of clarifying mutual expectations and obligations within the community” (line 3338-44) is facile, and does not confront the hard question of whose interests take precedence when there is conflict. The statement in lines 3389-93 that “First Nations, Inuit and Métis individuals…enjoy freedom of expression as does any other citizen [and that] “they are free to give informed consent…” is not strong enough.  This statement should be front and centre in this chapter and it should be made clear that potential research participants enjoy this freedom whether or not the welfare of the community is likely to be affected by their decisions and whether or not community leaders agree with their decision.

Similarly, the paragraph starting at line 3510 should be front and centre. It should refer not only to “subgroups” but to individuals, whether vulnerable or not.  It should clarify that research among these people should not be viewed as covert. The Panel should be supporting overt research in communities even when there are intra-community conflicts and especially when there are risks to participants. Canada is a democracy: no citizen should have to fear that her or his rights as an individual will be undermined because of her or his decision to participate in research. This paragraph is written as though Aboriginal communities are not legally obliged to protect their citizens’ individual rights.

The larger question here is whether Aboriginals are citizens of Canada, or only members of their own Aboriginal communities. If they are citizens of Canada, then they have the same right as any other citizen to make up their own mind as to whether to participate in a research project, irrespective of the wishes of community leaders. No other competent Canadian adult is obliged to take into account any opinion but her own before deciding whether to participate in a research project. If collective decision-making is merely a “complement” to individual decisions (l. 3272) in research projects on indigenous peoples outside Canada, then it should be clear throughout this document that within Canada as well, researchers may have direct access to individuals, who may make their own decisions about participation in research regardless of their community’s views. If, however, individual Aboriginals are to be denied the autonomy that all other competent Canadian adults are assumed to enjoy, that should be clearly stated at the outset of the Chapter.

Indigenous Knowledge

“Indigenous knowledge” is now defined as “holistic, involving body, mind, feeling and spirit” (lines 3208-09). As far as I can determine, however, this Draft still refers not only to statements of fact that are empirically verifiable according to normal scientific standards, but also to non-verifiable Aboriginal beliefs and myths, as knowledge. There is still no suggestion that this “knowledge” could be inaccurate. Yet academic freedom implies that any researcher can investigate anything an individual or a group claims to be its “knowledge”; we do not, for example, protect non-aboriginal Christians who insist on the empirical accuracy of their Biblical origin myth from academic inquiry into it, even if falsification of such a myth might undermine their Christian identity.  I find it patronizing that this Draft assumes that Aboriginal Canadians—alone among all the peoples of the world—are incapable of withstanding normal academic challenges to what they construe to be knowledge, and incapable of differentiating between verifiable scientific knowledge and unverifiable beliefs or myths.

Moreover, I question the statement (l. 3211-12) that “indigenous peoples value their relationship with the land as a living entity that reveals the way to living a good life.” This may be true of many indigenous (as well as some non-indigenous) individuals, but it is a romanticized view of many others, some of whom live in such situations of severe poverty and social dislocation that their relationship (if any) with the land is unlikely to figure largely in their worldview.  That such poverty and social dislocation is a consequence in large part of past Canadian genocidal and colonial policies does not mean that all indigenous people would, if they could, value their relationship with the land. Aboriginal knowledge is here essentialized as a consequence of an undifferentiated, romantic view of Aboriginal people that does not take account of social reality.

As a minor point, why assume that indigenous Canadians can express their spirituality only through traditional or Christian practices? Does the Panel possess evidence that no spiritual indigenous person practices any other religion?

Legal Matters

Surely the statement that Article 9.1, (a), lines 3300-3302, applies to “lands over which a claim has been asserted but not settled,” is too broad. What about non-Aboriginals living on such land, as in the current concern over land claims in Caledonia, Ontario? Are researchers to be precluded from access to such individuals because the land claim is not settled?  Does the Panel have the authority to pre-judge legal claims in this manner, making authoritative statements about the responsibilities of researchers based on hypothetical outcomes of legal cases?

Also regarding Article 9; 1, lines 3310-3311. Canada did not vote for the United Nations Declaration on the Rights of Indigenous Peoples (2007). Surely this should be noted, whether one agrees with Canada’s negative vote or not. How can a publicly funded organization refer Canadian researchers to an international document that the Canadian government has not accepted, without noting that fact?

Article 9:18 re intellectual copyright. Has the Tri-Council Panel come up with proper guidelines on this? Individual researchers in fields such as anthropology probably do not have the capacity, even with complete good will, to negotiate appropriate intellectual property guidelines. Do individual REBs now have the responsibility to assist researchers in copyright matters? This is an extremely complex legal field. Legal advice is absolutely necessary to both researcher and the Aboriginal group concerned. Theft of traditional plant knowledge by private corporations, for example, is now common in many indigenous communities. Are there budget lines in the three Councils’ grant applications for the researcher(s) to seek appropriate legal advice? If so, will these budgets cover the costs of consulting with lawyers who may well charge up to $1,000 per hour?

Surely the three councils should be drafting a document with legal guidelines, having consulted with top-flight intellectual property lawyers, separate from the Research Ethics document, on the problem of intellectual copyright?

Smaller questions/concerns

Article 9.1: does this refer only to research on human subjects, or is it meant to apply, e.g. to statistical research about Aboriginal Canadians?

Article 9.8 line 3555-56. Are Aboriginal cultures predominantly oral in 2010? Surely most Aboriginal Canadians are literate and many if not most of their laws, if not customs, are written down?

Article 9:14. I agree that research projects should support the enhancement of skills, education and training of Aboriginal peoples. However, do the individual granting agencies now have budget categories to make such training possible? Are there budget lines to cover costs such as feasting and gift-giving (lines 3822-28), which in other contexts would be considered illegitimate bribery?

I hope that the Panel will find my comments useful.

Yours sincerely,

Rhoda E. Howard-Hassmann

Cc. Dr. Paul Maxim, Associate Vice-President, Research, WLU

Dr. Judy Bates, President, WLUFA

Dr. Jim Turk, CAUT

Harper’s Senate Appointments

Blame the provincial premiers.

They were expected to set up the machinery for Senate elections, and didn’t. Remember the plan: the Prime Minister would recommend for appointment to the Upper Chamber persons elected by the provinces or regions, regardless of party affiliation.

But the premiers have fudged and stalled – Alberta is the exception – and to prevent depopulation of the Senate, Mr. Harper has resorted to the old method, making 18 appointments in December, 2008, and another five last week.

Why are the premiers avoiding the issue?

I’d say it’s because in the present set-up they have come to enjoy unprecedented prominence in national affairs. They have emerged as the representatives of their province – or as they sometimes say when they’re feeling their oats – representatives of an entire region. Remember that opposition parties are not invited to First Ministers’ Meetings. Thus Mr. McGuinty – to take my province as the example – becomes Mr. Ontario himself, the very embodiment of the province, speaking for us, Ontario’s citizens, with more freedom than he can in the provincial legislature.

In fact, those federal-provincial meetings resemble nothing so much as a gaggle of oligarchs. And if I know anything about politics it is that to a politician oligarchy is a compellingly attractive forbidden fruit. You will not find one to admit it; but it’s true. “Oh, to be rid of that clinging, complaining political opposition that hinders me in my appointed task – getting things done.”

The Fathers of Confederation envisaged no such jumped-up role for the provincial first ministers. The Senators were to speak for us on provincial matters in the national legislature. Or rather, it was the senators’ business to query the intrusion of provincial matters into the national legislature.

They gave the Senate three tasks. 1. It was to be an arena of national deliberation on the matters that affect everyone in the country equally. 2. It was to use its status as deliberative arena to resist attempts by the majority in the House of Commons to trespass on the rights of the provinces under the constitutional division of legislative powers. 3. It was to it was to assist in upholding the right of the political opposition to be heard in national debates.

We can’t return to the Fathers’ vision in toto. But adopting Mr. Harper’s plan would take us part way. Let me remind you that the Fathers were not opposed to the idea of an elective senate. Macdonald, certainly, favoured the elective Upper Chamber.

Haitian Relief

I go round the corner to my neighbourhood “alternative lifestyle restaurant” for a salad and glass of wine. For goodness sakes, there’s a sign announcing that they have contributed today $2,000 dollars to Haitian relief in the name of their regular customers. I’m one, a regular customer.

My high school emails to say it is contributing – in my name. And my university. And two local hospitals, one of which I have on my charity list. And my neighbourhood watch association. And Habitant for Humanity, another charity to which I sometimes send a cheque.

In this household we decided, after considerable discussion, to contribute through one of our (other) regular charities.

The world population increasingly thinks as a global unit. It’s heart warming. We know aid can go astray. We know that it sometimes ends up with the local oppressors. “Trade not Aid” is a good slogan for the sunny days. In an swift emergency: Aid.

“What plagues and what portents, what mutiny,

What raging of the sea, shaking of earth,

Commotions in the winds, frights, changes, horrors,

Divert and crack, rend and deracinate

The unity and married calm of states

Quite from their fixture!”

Shakespeare, Troilus and Cressida