Below is a letter from Rhoda Howard-Hassmann to the Interagency Advisory Panel on Research Ethics concerning Chapter 9 of the Tri-Council Policy Statement (I have also posted a PDF of this letter on the Ethics page of this blog). Many very important points are raised in this letter, which will be of interest to all who study aboriginal-non-aboriginal relations. I will also be providing my comments shortly to the Canadian Political Science Association (CPSA) and to the Interagency Advisory Panel (due March 1, 2010), and urge others to do the same. Interestingly, Graham White, the President-Elect of the CPSA, wrote me on January 22, 2010 asking for feedback on Chapter 9 because he had been asked “to coordinate the Association’s reponse to one aspect of an important, ongoing process relating to the ethics regime for academic research in Canada”. This request is somewhat surprising since I was intending to present a paper on this “important, ongoing process” at the CPSA’s 2010 Annual Meeting, but the organization decided that my paper did not “fit” within the program, and subsequently relegated it to a “poster” session. Because of the CPSA’s recognition of the issue’s importance, one would think that it would jump at the chance to have the matter discussed on a panel, as well as having a scholarly paper on the subject posted on its website.
February 5, 2010
Interagency Advisory Panel on Research Ethics, 350 Albert Street, Ottawa, ON K1A 1H5
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.
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” 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?
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?
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.
Rhoda E. Howard-Hassmann
Cc. Dr. Paul Maxim, Associate Vice-President, Research, WLU
Dr. Judy Bates, President, WLUFA
Dr. Jim Turk, CAUT