In the Canadian debate over Indigenous cultural appropriation, the position of the Canada Council for the Arts (CCA) is cited as an authoritative argument. In turn, the CCA relies on the authority of the Truth and Reconciliation Commission’s (TRC) report and the United Declaration on the Rights of Indigenous Peoples. This does not withstand closer scrutiny.
The CCA issued a statement in September 2017 titled “Supporting Indigenous Art in the Spirit of Cultural Self-determination and Opposing Appropriation.” In it the national arts funding agency took a step in the direction of systematically excluding noncollaborative projects by saying it “considers it normal to ask the artists and organizations applying for grants for projects that address, deal with, incorporate, comment on, interpret or depict unique aspects of the First Nations, Inuit or Métis culture, to show that they have respect and true regard for Indigenous art and culture in their endeavours. Without dictating a specific or mandatory way to go about it, it can be expected that authentic and respectful efforts have been made to engage with artists or other members of the Indigenous communities whose culture or protocols are addressed by the project for which the Canada Council’s support is sought.”
This pronouncement suggests that it’s not only the artistic quality of projected works that influences granting decisions. The CCA would, in addition, require some parallel evidence of applicants’ “respect and true regard” for a “culture” they intend to deal with, as well as efforts to “engage” with members of “communities” that own that culture.
A Disingenuous Discourse
When the statement was released, the CCA told Le Devoir that it does not stipulate “criteria to meet” or any “mandatory process,” but simply “initiates a dialogue.” A year later, the Ex Machina company’s Kanata, a play about settler-Indigenous relations, was cancelled following complaints that no Indigenous person or organization played or had taken part in the production. The work had been considered but not recommended for a grant, and the CCA released an “information update,” saying, “The issue of appropriation of Indigenous culture by non-Indigenous artists is not included in the Canada Council’s eligibility or funding criteria, but continues to be a topic of discussion in many peer assessment committees, as it has been for many years.”
The CCA blows hot and cold on the freedom of artistic creation; its various communications on the role that the idea of “cultural appropriation” plays in its funding decisions are thoroughly unclear. On the one hand, it says in its 2017 statement that it “has, and will always maintain its support of free expression and artistic independence for cultural creators and producers.” On the other hand, the statement says “these freedoms are only actualized when they come with responsibility, reciprocity and respect.” So there is the language of continuity, and then there is the language of change: “The Canada Council is taking responsibility and choosing change,” wrote CEO Simon Brault and Steven Loft, director of an Indigenous arts program at the CCA, in the Globe and Mail when the statement was issued. There are two commitments, they said: one to freedom of artistic creation and one to respect for Indigenous histories and cultures, which “are not mutually exclusive.” Yet, in the CCA’s actual policy and practice, the integration of the two ideas is never achieved.
Brault and Loft wrote that the CCA “recognizes that both the traditional and contemporary cultural and artistic practices of Indigenous peoples are their property.” And in its statement, the CCA quotes with approval an Indigenous artist who claims that not only artworks but “Indigenous stories” and “ways of being” are “the property of Indigenous people.”
The CCA’s first argument is to vaguely refer to the TRC. The problem is that, although the TRC did “call upon the Canada Council for the Arts to establish, as a funding priority, a strategy for Indigenous and non-Indigenous artists to undertake collaborative projects and produce works that contribute to the reconciliation process,” it never said that non-Indigenous artists addressing Indigenous peoples, cultures or history in any way should always consult with Indigenous artists or “members” of the culture in order to be eligible for funding.
The idea of giving priority to collaborative projects did not necessarily imply imposing such a strain on artistic freedom. The TRC focused its recommendation on supporting Indigenous artists, not on adding a distinct moral or political criterion to artistic value, as a reasonable, workable, and sustainable means to make art contribute to reconciliation. Moreover, in its final report (both in the Summary and in Volume 6, Reconciliation), the TRC mentioned “cultural appropriation” only once, quoting a statement by the National Centre for Truth and Reconciliation about the spirit of its support services. Insofar as the arts are concerned, the TRC’s report is about Indigenous peoples’ right of self-expression. The TRC acknowledges that artistic intercultural dialogue can be healing and yet that art “does not always cross this cultural divide, and neither does it have to in order to have a high impact.” It also recognizes that Indigenous artists may “choose to keep their residential school experiences private or share them only with other Aboriginal people.” But the right to keep one’s traumatic experience “private” in the context of artistic expression does not, and neither should it, entail the idea that Indigenous people have a monopoly on any artistic approach, in one way or another, to Indigenous subjects.
The CCA’s second argument consists in relying on the United Nations Declaration on the Rights of Indigenous Peoples, of which it even ventures to quote specific provisions: 11.1, 31.1 and 31.2. But nothing in these sections supports the idea that Indigenous peoples should be recognized as having a monopoly over their experiences as a main or incidental theme for fiction or creative art. Granted, the idea of Indigenous peoples’ right to control their cultural heritage is compatible with that of a monopoly of those peoples on artistic treatment of “unique aspects” of their “culture(s).” Yet, things cannot be as simple as the CAC assumes.
Although 31.1 of the UN Declaration provides that Indigenous peoples “also have” cultural self-determination rights in the form of intellectual property (IP), a collective monopoly over a “culture” is unworkable outside IP law and without IP law reform. Who will control the culture? How to safeguard the individual rights of artistic freedom of its members, the rights and interests of other Indigenous peoples, and the rights of the rest of the population? These are questions that would need to be answered in order to strike the right balance.
It is seldom a valid argument to cite just a few provisions out of their context, as the CCA has done, or even to consider a single legal instrument. In international law, the rights of Indigenous peoples are derived from human rights, which they are meant to reinforce and never to neutralize. Moreover, the Declaration, which is a resolution of the UN’s General Assembly, is not a treaty or any other binding instrument, but, at best, a contextualized interpretation of human rights contained in binding instruments.
True, 35 of the Declaration states that “Indigenous peoples have the right to determine the responsibilities of individuals to their communities.” But this self-determination interpretation principle is limited by the human rights of those individuals. It even stems from the Declaration itself, whose first article states that “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.” Again, 46.2 specifies that “[i]n the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected.”
The same exercise, leading to the same conclusion, can be done with the UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, to which Canada is one out of 146 parties. With this Convention, the parties intend to recognize “the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion.” But, being aware that “cultural diversity is strengthened by the free flow of ideas, and that it is nurtured by constant exchanges and interaction between cultures,” they also mean to reaffirm that “freedom of thought, expression and information, as well as diversity of the media, enable cultural expressions to flourish within societies.” According to article 1(b), one of their objectives is “to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner.” Through 2.1 and 2.7, for instance, they agree on guiding principles of respect for human rights and fundamental freedoms and “equitable access to a rich and diversified range of cultural expressions from all over the world,” respectively.
IP law reform for a better protection of Indigenous traditional knowledge and cultural expressions is serious business.
As the World Intellectual Property Organization (WIPO) explains, there are two angles to the protection of traditional knowledge and cultural expressions, defensive and positive. Defensive protection “aims to stop people outside the community from acquiring intellectual property rights over traditional knowledge (and cultural expressions), whereas positive protection “is the granting and exercise of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation.” Defensive protection can be secured by existing IP systems. Traditional cultural expressions, for instance, can be protected by copyright (and related rights), trademarks, designs, and geographical indications: “For example, contemporary adaptations of folklore may be copyrightable, while performances of traditional music, dance or theater may come under the WIPO Performances and Phonograms Treaty or the Beijing Treaty on Audiovisual Performances. Trademarks can be used to identify authentic indigenous arts, as the Maori Arts Board in New Zealand, Te Waka Toi, has done. Some countries also have special legislation for the protection of folklore. Panama has established a registration system for traditional cultural expressions, while the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture gives “traditional owners” the right to authorize or prevent use of folklore and receive a share of the benefits from commercial exploitation.”
Yet the existing international IP system does not fully protect traditional knowledge and cultural expressions; hence the current discussions for a possible international instrument providing sui generis protection. Clearly, “[t]he text of the legal instrument will have to draw the line between legitimate borrowing and unauthorized appropriation.”
These international efforts must not overshadow the crucial need for national strategies in that regard. In any event, as WIPO stresses in another background brief, it is important “to clarify what the TK (traditional knowledge) and TCEs (traditional cultural expressions) are to be protected against, and what forms of behavior should be considered unacceptable or illegal.” Very few reform proposals were made in Canada, and not much scholarly work has been published (see Gaudreault-DesBiens’ 1999 paper).
In other words, questions must be answered, diverse interests and rights must be taken into account, including those of heterodox Indigenous artists, a balance must be struck, and clear rules must be set. The CCA goes way too far even if it does not clarify anything by actually drawing the line; rather, it fuels ambiguity. The CCA’s sketchy and hypocritical “statement,” rather than contributing to a solution, adds to the problem.
A new need for legal strictures
In its information update on Ex Machina’s Kanata, the CCA makes a flawed use of its institutional independence in an attempt to justify its approach to Indigenous cultural appropriation.
CCA prides itself in being a “Crown corporation” that “develops policies and programs and make funding decisions free from any political interference or influence.” This is a misappropriation (no pun intended) of the meaning of the word “political” in the context of institutional independence from the executive branch of government, which is by no means determinative of the issue of whether or not the Council is increasingly influenced by political ideology.
Moreover, no administrative entity, not even an independent one, is above enabling legislation. It is just that Parliament trusted the CCA when it enacted the Canada Council for the Arts Act, since it did not really define its mandate, but basically contented itself with the following statement: “The objects of the Council are to foster and promote the study and enjoyment of, and the production of works in, the arts (…)” (para 8(1)). The CCA has been proving that this trust was misplaced.
The CCA’s self-justification on cultural appropriation points out that its peer committees “assess grant applications according to the Council’s Funding Principles.” Alongside “outstanding ability and artistic merit” and “freedom of thought and expression,” these include, not only “cultural self-determination of Indigenous peoples,” but “respectful workplaces” and “equity and diversity.” But we already have labour and human rights commissions and tribunals in Canada. The CCA’s policies amount to a certain agenda for the political moralization of the arts, and, as its enabling act allows it, it feels free to change the way it conceives of itself and its mission (see Brault in Le Devoir).
“We believe that the artists of our country do not want to perpetuate darkness,” write Brault and Loft in their Globe and Mail op-ed. The trouble is, moral-political criteria for public funding of the arts are darkness.