Indigenous Broadcasting and the CRTC: Lessons from the Licensing of Native Type B Radio
Author: Julia Szwarc
Home university: Department of Communication, University of Ottawa
Education level: Master’s Student (MA Communication with Thesis, in progress)
Table of Contents
- The History of Indigenous Radio in Canada
- Theoretical Framework
- The CRTC Process
- The Native Broadcasting Policy
- Conclusion and Recommendations
The Indigenous broadcasting sector is an integral part of Canada’s diverse media landscape and provides a unique offering by broadcasting content that preserves Canada’s Aboriginal languagesFootnote 1, helps to retain cultural traditions, and offers opportunities for Indigenous youth across the country to participate in media production. As the Canadian radio-television and Telecommunications Commission (CRTC) prepares to review the Native Broadcasting Policy, CRTC 1990-89Footnote 2, it is important to focus on the impact that the existing policy has had on the sector in order to move forward and make recommendations for a modern interpretation of the policy.
This study utilizes information from the CRTC’s archives to understand the current state of the Indigenous broadcasting sector in Canada. Documentary analysis is used to consider license renewal decisions made by the CRTC with regards to ‘Native Type B Radio’ stations. These licensing decisions are analyzed to understand the current challenges facing the Indigenous broadcasting sector. Additionally, this analysis intends to highlight the role that Canada’s regulating body plays in upholding the country’s Broadcasting Act, 1991 goal to ensure that Canada’s diverse nature is reflected in it’s broadcasting sector. The CRTC has a mandate to ensure cultural diversity in Canada through the Native Broadcasting Policy, CRTC 1990-89, the Ethnic Broadcasting Policy, CRTC 1999-117, and the stated goal to increase and expand the availability of third-language stations in Canada (CRTC, 2016). This study will review the CRTC’s success in upholding these activities and policies with regards to the licensing of Indigenous stations.
The results of this study demonstrate how the existing Native Broadcasting Policy, CRTC 1990-89 creates important challenges for the Indigenous broadcasting sector. Analysis of 61 recent licence renewal decisions describe the current state of affairs and focuses on how the Native Broadcasting Policy is being upheld. Based on the analysis, recommendations are provided about how it could be altered and the study makes a case for a different approach to the inclusion of a diversity of voices in the Canadian media landscape. This study takes into account the Truth and Reconciliation Commission (2015) recommendation for more representation of Indigenous peoples in the media landscape and identifies ways in which the Indigenous media sector and the CRTC could better fulfill this call to action.
Native Type B Licencing Decisions are analyzed in this study to shed light on the challenges and issues facing the Indigenous broadcasting sector. Specifically, issues with the allocation of funding, as identified by licensees, is discussed. The relationship between the CRTC and the Indigenous broadcasting sector is also critically examined and a case is made for the re-evaluation of the Native Broadcasting Policy, CRTC 1990-89. The degree to which the CRTC is being held accountable to its mandates with respect to the Indigenous broadcasting sector is also analyzed. Finally, this study considers possible claims that Indigenous peoples in Canada have to the radio spectrum. Cases in the United States and New Zealand are compared to the Canadian system, in which no specific amount of spectrum is allocated to Indigenous peoples.
The History of Indigenous Radio in Canada
The origins of community radio can be traced to isolated Indigenous communities and the use of “trail radio” in the 1960’s. These do-it-yourself unlicensed radio operations formed the basis for the contemporary Indigenous broadcasting sector. Charles Fairchild (1998) describes how unlicensed and low power radio in Canada developed without regulation from the CRTC. As early as 1964, isolated Indigenous communities were using scavenged radio equipment as a two-way system to link distant communities. According to Salter (1981), once communities learned how to alter their two-way radios to operate at 10 watts they began broadcasting on the amateur band with their own stations. Consequently, operations like those in Pond Inlet, were told by the CRTC to shut down unlicensed operations once they were “discovered”. Fairchild (1998) writes that as of 1998 there were over three hundred ‘Aboriginal’ communities using low-power radio transmitters to broadcast radio in Northern Canada, and that many of these stations have maintained their sovereignty and self-determination by remaining unlicensed. Other organizations, like Wawatay Communications Society, decided to apply for CRTC licenses for its stations and transmitters, allowing them to receive Canadian government financial contributions, however, this funding was significantly cut in 1990 (Mohr, 2001).
Lorna Roth (2005) describes six distinct phases of Indigenous television broadcasting in her book, Something New in the Air. The first stage begins with the introduction of broadcasting in the early 20th century and continues into the 1960s. During this time, she explains that images of Indigenous peoples in Canada are largely stereotypical misrepresentations, and radio and television service is broadcast into Canada’s North without much input from Indigenous peoples about what kind of programming the broadcasts would include. By the 1970’s Indigenous peoples became aware of the harmful potential that Canadian broadcasting could have on their culture, and realized the potential that media holds to be used as a tool to resist pressure to assimilate (Roth, 2005). Fairchild (1998) goes as far as to say that the CBC’s Accelerated Coverage Plan, which was implemented in the 1970’s to broadcast CBC programming to all Canadian communities with more than 500 residents, was executed to facilitate government policies to assimilate Indigenous populations into Canadian society. The Accelerated Coverage Plan allowed Indigenous communities to choose which CBC programs to air, giving local broadcasters the ability to connect with their communities. The Accelerated Coverage Plan did increase Northerner’s media access, however, it was implemented without any consultation with Northern Indigenous communities and did not allow for programming by and for these communities. As a result of these efforts, organizations began to form to represent Indigenous communications in Canada (Fairchild, 1998).
By the 1980’s, thirteen Native communications societies had begun to lobby the government for an explicit policy directed at ‘Native’ broadcasters. Many of these societies were funded by the Native Communications Program (NCP), which was instrumental in providing funding to stations who broadcast in multiple languages, and specifically targeted ‘Aboriginal’ populations in Canada (Canadian Communication Foundation, 2009). In 1983, a Northern Native Broadcasting Policy was created and was accompanied by a funding mechanism titled the Northern Native Broadcast Access Program (NNBAP). This policy was created as a reaction to the cultural crisis unfolding in the Northern regions of Canada: Satellite technology and increased access to media had created an influx of southern programming to remote Northern communities, including the Canadian Broadcasting Corporation’s (CBC) Northern Service. Unfortunately, much of this programming was not necessarily relevant to the communities that is was meant to serve. Furthermore, many worried that this influx of foreign programming would be a threat to the unique culture, language, and ways of being, of the Northern Indigenous populations (MacLennan, 2011). As a result of this concern, the CRTC established a committee chaired by Commissioner Real Therrien to review the broadcasting situation in the North. This Commission, known as the Therrien Commission, recommended support for Indigenous broadcasting, and suggested that it become an essential element of the Canadian broadcasting system. The Therrien Commission states that Canada should fulfil its obligation to facilitate the protection of Indigenous languages by supporting Indigenous people’s broadcasting and communications endeavors (National Indigenous Media Association of Canada, n.d.).
In 1989, the CRTC issued a review of the Northern Native Broadcasting policy, however, the proceeding did not include a public hearing. This review gave way to the introduction of the Native Broadcasting Policy, Public Notice 1990-89. This Policy created a new license class for ‘native’ radio undertakings, which are defined by their ownership, programming, and target audience. The policy mandates that these ‘native’ operations be owned and controlled by non-profit operations that focus their programming towards the interests of ‘Aboriginal’ populations. It defines ‘native programming’ as a, “program in any language directed specifically towards a distinct native audience, or a program about any aspect of the life, interests or culture of Canada’s native people” (CRTC Native Broadcasting Policy, Public Notice 1990-89). The Native Broadcasting Policy 1990-89 does not impose any quotas on the use of Aboriginal languages for Native radio undertakings, despite its expectation that these undertakings will help to preserve the languages and cultures of Indigenous peoples living in Canada. The Commission recognizes the issue of the disappearance of Aboriginal languages among large portions of the Indigenous population, but only expects ‘Native’ undertakings to preserve ancestral languages, “where possible” rather than enforcing quotas that mandate the use of Aboriginal languages over the airwaves (CRTC, Native Broadcasting Policy 1990-89).
According to the CRTC’s public records, there now are 47 companies holding licenses for Native Type B radio stations in Canada. These stations largely serve rural and on-reserve Indigenous populations across Canada. This paper proposes that greater evaluation of these stations, and the Policy that regulates them, is needed in order to understand how the broadcasting system is providing for Indigenous populations living in Canada.
Radio has a great capacity for revitalizing Indigenous language and culture through media empowerment. There are numerous scholars, activists, and media practitioners who are working to strengthen the Indigenous presence within the Canadian media system. Indigenous broadcasting has experienced triumphs, such as the launch of APTN as a common carriage television service, as well as challenges, due to reduced funding and the impacts of ongoing colonialism and cultural assimilation. At this point in time, the effectiveness of current Indigenous broadcasting policies, such as the Native Broadcasting Policy, CRTC 1990-89, have not been determined. There has been very little comprehensive research into the state of Indigenous media in Canada, and the CRTC has not reviewed the Native Broadcasting Policy, CRTC 1990-89 since its introduction in 1990. In 2001, the CRTC changed Indigenous broadcasters’ conditions of license with respect to Canadian content and advertising, however, this proceeding did not include a public hearing or a review of the Policy’s execution (Public Notice CRTC 2001-70). This lack of evaluation on the part of the CRTC has resulted in a lack of accountability. In short, we do not know if the policy has been successful in fulfilling its mandates, or the mandates with regards to ‘Aboriginal’ peoples outlined in the Broadcasting Act, 1991.
Meadows and Avison (2000) suggest that the development of ‘Aboriginal’ media products is largely a reaction to the fear of cultural and language erosion because of the influence of Canadian and American mainstream media. Their study of ‘Aboriginal’ newspapers uses Fraser’s (1993) theory of the public sphere to suggest that instead of an all-encompassing public sphere there are, “a series of parallel and over lapping public spheres – spaces where participants with similar cultural backgrounds engage in activities concerning issues and interests of importance to them” (Meadows et al., 2000 pg. 1). They propose that a public sphere is needed to provide for Indigenous people’s cultural needs, especially because of the influence of mainstream media in their communities. Media technologies can be used by Indigenous peoples to negotiate a separate public space, away from the mainstream Canadian cultural environment that has been used as a tool for assimilation. This case study of Indigenous stories in mainstream media coverage in Canada found that Indigenous people were used as sources only 20% of the time in coverage of Indigenous issues (Meadows et al., 2000). This lack of representation sheds light on a shortcoming of the media system in Canada, and is an example of why it is necessary that Indigenous peoples are represented fairly in the mainstream media, but also provides an explanation for the importance of a public sphere for their expression. This space should allow Indigenous people to create their own discourses and positions which could then be brought to the wider, mainstream public sphere, thus allowing Indigenous people to interact, “across lines of cultural diversity” (Fraser, 1993 p. 13).
Indigenous radio remains an important subject of study, particularly because there has been very little research into the state of the sector and how it can be improved to better serve its intended audiences and support other Indigenous media products. Radio remains important to isolated communities who have limited access to affordable Internet, and whose television choices are limited (Bonin, 2017). Also, radio, as a medium, is important because of its unique ability to support ‘Aboriginal’ languages. When asked how radio can be used as a unique tool for Indigenous people, Gunargie O’Sullivan, a Vancouver-based community broadcaster, replied, “I think that radio can be used as a skill to develop our tools and for us to reach our oral histories and I value radio on many levels. If we allow ourselves to have a voice and to reconnect with our cultures through communication it will only make us stronger as a people” (O’Sullivan, 2015). O’Sullivan (2015) goes on to emphasize radio as a viable medium to restore culture and language, specifically for urban Indigenous people who have been displaced from their lands. She states the importance of hearing Aboriginal language on the airwaves as a way to re-instill pride in their language and identity, and as a way to make the Indigenous presence known within Canada (O’Sullivan, 2015).
The CRTC is responsible for the regulation of the broadcasting and telecommunication sectors in Canada, and as an extension of this duty is mandated in the Native Broadcasting Policy, CRTC 1990-89 to encourage ‘Aboriginal’ broadcasting through supporting ownership of stations that preserve ‘Aboriginal’ languages and cultures.For radio to legitimately promote a democratic public sphere for Indigenous peoples in Canada, which supports the preservation of Indigenous languages and cultures, there must be accountability. This accountability is extended both to the CRTC, which regulates the Indigenous broadcasting sector, and to the broadcasters operating with ‘Native Type B Radio’ licences. It important that those in power are held accountable for activities that are performed with public funds and in the interest of the public. This can be applied to the licensing of Native radio stations which use public resources in the form of radio airwaves, and public funding through Heritage Canada and the Northern Native Broadcast Access Program (NNBAP)Footnote 3. The CRTC’s duty to allocate radio spectrum in Canada requires further consideration, given the fact that Indigenous peoples in Canada never officially ceded their claim to this limited, and valuable, resource. The study of CRTC practices is relevant to the study of public spheres in Canada, as it is an organization responsible for upholding the ideals of diversity and democracy, which is acknowledged in the laws and policies that govern its activities.
The CRTC Process
This study focuses on the current state of the Indigenous broadcasting sector and the CRTC policies that regulate it. The CRTC is an independent public organization that is responsible for regulating and supervising broadcasting and telecommunications in Canada. It also has a responsibility to regulate broadcasting by implementing the policy of the Broadcasting Act, 1991. The CRTC operates as an administrative tribunal, its powers include the ability to licence broadcasting undertakings, to create regulatory policies to meet the objectives of the Broadcasting Act, 1991, and to monitor compliance with regulations. It exercises its power in numerous ways, including the ability to issue licences of up to 7 years in length, to impose conditions of licences, and the ability to renew, suspend, or revoke licences (Bonin, 2010).
When a station is found to be in non-compliance with its conditions of licence the CRTC asks that station’s owner to ‘show cause’ for its non-compliance. When a station is found in non-compliance for the first-time licences are asked to explain the reasons for non-compliance in writing. If a station repeats an infraction, its managers are asked to attend a public hearing to orally justify their actions and provide a plan to ensure that non-compliance will not reoccur (Bonin, 2010)Footnote 4.
The CRTC uses short-term licence renewals as a disciplinary measure for stations that are found in non-compliance. Short-term licences are a burden because they force stations to refile paperwork, which can be a costly and time-consuming activity, especially for stations that lack funding and staff members. Generally, 7-year licences are granted to stations who are fully in compliance with CRTC regulations and their conditions of licence. Shorter renewal periods are used by the CRTC to monitor a station’s efforts to come into compliance: Two-year renewals are awarded when the CRTC is satisfied with a station’s reasoning and it believes in its ability to come into compliance in the future. One-year administrative renewals are sometimes used by the CRTC to automatically renew licences in situations where the CRTC does not have time to examine issues with licences before the expiry of the licence in question (Bonin, 2010).
There has been relatively little work done on the evaluation of radio broadcasting regulation in Canada (Bonin, 2010), and virtually no published academic work that evaluates the Native Broadcasting Policy, CRTC Public Notice 1990-89. This study provides a localized analysis of the renewal process of ‘Native Type B’ radio broadcasting licences between 2008 and 2016, however, this provides only a base analysis of the policy. Indeed, there is a need for additional research regarding the implications and challenges associated with the current Native Broadcasting Policy. If this Policy is to be appropriately updated, further inquiry is necessary to understand its successes and failures, and the impact that the Policy has had on the lived experiences of Indigenous broadcasters and listeners in Canada. This study seeks to establish a body of research regarding the regulation of Indigenous media through evaluating the Native Broadcasting Policy’s implications for the licencing of radio stations in Canada.
The Native Broadcasting Policy
The Native Broadcasting Policy is outlined in Public Notice CRTC 1990-89 and was created after a series of public hearings were conducted to review the Northern Broadcasting Policy (CRTC, Public Notice CRTC 1989-53). The Policy provides a definition of ‘native’ undertakings which relies on the ownership, programming, and target audience of the station. The CRTC uses the terms ‘native’ and ‘aboriginal’ interchangeably, to describe, “aboriginal peoples of Canada… the Indian, Inuit, and Métis peoples of Canada” as they are described in the Canadian Constitution (Native Broadcasting Policy, Public Notice CRTC 1990-89). A ‘native undertaking’ is defined by the CRTC as an organization that is owned by a non-profit organization and includes board membership by the Indigenous population of the region it is serving. ‘Native undertakings’ are meant to broadcast programming, in any ‘native Canadian language’ or in English or French, that is ‘oriented’ towards the interests and needs of the population that it is licenced to serve. A ‘native program’ is defined as a program of any language, that is directed at ‘native’ audiences, or a program that is about any aspect of, “the life, interests, or culture of Canada’s native people” (Native Broadcasting Policy, Public Notice CRTC 1990-89). The CRTC does not set forth an explicit definition of ‘native music’, and there is no airplay quota associated with the broadcast of ‘native music’ in Canada.
The Native Broadcasting Policy, Public Notice CRTC 1990-89 describes roles that Indigenous broadcasters are expected to fulfill:
“to address the specific cultural and linguistic needs of their audiences, while creating an environment in which aboriginal artists and musicians, writers and producers, can develop and flourish. In this way aboriginal broadcasters can provide an element of diversity to counter-balance and complement non-native programming sources. For its part, the Commission considers it essential that the regulatory framework within which aboriginal broadcasters operate remain flexible and adaptable to the varying circumstances of each region. Such a regulatory framework needs to be tailored to reflect the specific needs of native audiences, while remaining streamlined to minimize the regulatory burden.” (CRTC, Public Notice CRTC 1999-89)
The Native Broadcasting Policy, Public Notice CRTC 1990-89 originally set out two classes of ‘Native Radio’ licences, however, in 1998 the CRTC exempt ‘Type A’ stations from licensing requirements (CRTC 1998-62). This order exempt ‘native radio stations’, operating in remote areas, from most conditions set out in the Radio Regulations, 1986, instead of being licenced, these stations must simply follow a registration process. The ‘Native Type B’ licence is designed for non-profit stations that intend to serve ‘Aboriginal’ communities in Canada, located in areas with at least one other commercial station. If Indigenous groups wish to operate on a for-profit basis they must apply for a commercial licence. Furthermore, when Indigenous broadcasters wish to operate in more densely populated areas, where spectrum is a more valuable commodity, they must participate in a competitive process (Broadcasting Notice of Consultation, CRTC 2017-01).
In the case of ‘Native Type B’ licensees, there are very few conditions of licence to which stations must adhere. Although stations must currently file a ‘Promise of Performance’ with the CRTC, these promises are not imposed as conditions of licence. However, ‘Native Type B’ licensees are expected to conform to usual conditions of licence with regards to advertising, a Canadian content requirement for musical selections, and adherence to industry codes regarding ‘sex-role stereotyping’ and ‘advertising to children’ (Native Broadcasting Policy, Public Notice CRTC 1990-89). With regards to advertising, ‘Type B’ stations can broadcast four minutes of advertising per hour per day, to supplement the limited funding that the NNBAP provides. ‘Type B’ stations are also expected to comply with the Radio Regulations, 1986.
This study limits its scope to Native Type B licence renewal decisions that took place between 2008 and 2017. The longest licence renewal that the CRTC will grant is 7 years, so by considering licence renewals from 2008 until the present, this study is able to focus on Native Radio undertakings that are currently in operation. Licence renewals were chosen as the focus for this study because they contain information that sheds light on how the CRTC enforces the relevant policies of Native Radio licensees.
The CRTC does not keep a record of the number of licence renewals that it grants. As such, a preliminary search of the CRTC’s online records was used to populate a table describing all licencing decisions made since 1995. CRTC Decisions made before 1995 are not currently easily accessible, and due to time constraints, these decisions were not included in this study. This preliminary search resulted in the documentation of 239 decisions made by the CRTC with regards to ‘Native’ stations (Appendix 2). These results were entered into a Microsoft Excel sheet and included the CRTC decision number, the applicant’s name, the location of the station, the decision made by the CRTC, and a brief summary of the type of application filed. These decisions represent the entire population of formal licensing decisions made with regards to Native Type B stations between 1995 and 2016.
After reviewing the content of several decisions, it was determined that licence renewals provide the most information about the state of the Indigenous broadcasting sector, as they describe not just the promises that licensees make when applying to broadcast, but also the ability of stations to follow through with their commitments. Furthermore, the licence renewal process is the tool most often used by the CRTC to ‘enforce’ regulations.
Documentation analysis is used to process the 61 CRTC Licence Renewal decisions considered in this study. The period of 2008-2016 is chosen to describe the most recent decisions made by the CRTC, allowing stations that are likely currently in operation to be considered. Once selected, these renewal decisions are coded in an Excel document: The CRTC Decision number is entered, as well as the name of the licence applicant, the location of the station, and whether the application was approved or not. Next, if a station is in non-compliance, a note is included to explain which section of the regulations was in question. This table also notes whether this was the first non-compliance, the number of years which the licence is renewed for, and if applicable, details given by the licensee with regards to its non-compliance is included.
The information compiled for analysis was collected from the CRTC website www.crtc.gc.ca. This website includes information about the decision notices, CRTC policies, and annual reports. There are very few ethical implications associated with documentation analysis which uses public, and easily accessible, records, like those used in this study. However, because this study is concerned specifically with licence renewals of Indigenous-run stations, the OCAP ® principles were consideredFootnote 5.
61 CRTC ‘Native Radio’ licence decisions were considered for this study. Of these decisions, 21 were found to be fully in-compliance with the conditions in their licences and 40 were found to be in non-compliance with their licence agreements.
Table 1 - Station Non-Compliance
|Status of Decision||Frequency||Percentage (%)|
A total of 40 licence renewals were found to be in non-compliance with station’s conditions of licence. This figure by itself is telling, as more than half of the time, licensees were found to be in non-compliance. This amount becomes even more pronounced when compared with non-compliance rates within the commercial broadcasting sector. In 2010, Bonin found that 12.4% of 298 licence renewals of commercial stations were found to be in non-compliance (Bonin, 2010, pg. 130). Whereas all of the ‘native’ stations were found in non-compliance with Radio Regulations, 1986, only 6 stations, or 2% of commercial stations studied were in breach of these regulations (Bonin, 2010).
Table 2 – Description of Non-Compliance
|Section 9(2) and 9(4)||4||6.5|
|None (fully in compliance)||21||34.4|
|Section 9(2) and other conditions of licence||1*||1.6|
*refers to Broadcasting Decision CRTC 2015-282 (Aboriginal Voices Radio)
As stated above, ‘native’ radio undertakings are subject to very few conditions of licence, however, they remain responsible for adhering to certain regulations contained in the Radio Regulations, 1986. With the exception of Aboriginal Voices Radio, all of the licensees found in non-compliance had issues with Section 9(2) or Section 9(4) of the Radio Regulations, 1986. Section 9(2) refers to the timely filing of annual returns, as stations must submit a statement of account to the CRTC before November 30th of each year. All 40 of the stations found in non-compliance were in breach of this regulation. Four of these stations were also in non-compliance with Section 9(4) which refers to the CRTC’s request for information from a licensee. In other words, those in non-compliance with Section 9(4) failed to provide the CRTC with information when requested. One licensee, Aboriginal Voices Radio, was found to be in non-compliance with other conditions of licence.
Table 3 – Frequency table of duration of licence renewals
|Duration of Licence||Frequency||Percentage (%)|
|1 (Administrative Renewal)||6||9.8|
The CRTC uses shorter licence renewal terms as a mechanism to ensure compliance with regulations and conditions of licence. In this case, duration of licence was determined by the licensee’s compliance, and in cases of non-compliance the duration depended on how many years the licensee was in non-compliance and by the explanation that licensees provided for non-compliance. Shorter licence renewals are detrimental to licensees as they require them to go through the lengthy and costly licence renewal process earlier than expected.
In the Native Broadcasting Policy, Public Notice CRTC 1990-89 the CRTC recognizes the role that the NNBAP funding program played in facilitating broadcasting services to Northern Indigenous audiencesFootnote 6, who may otherwise not receive the first level of services that the CBC, Canada’s national public broadcaster, would normally provide. The Policy also discusses the challenge that many ‘native broadcasters’ experience because they are dependent on public funding, making them vulnerable to funding cuts by Government.
The CRTC itself recognizes the funding difficulties that Indigenous stations face due to a lack of market for advertising, their remote locations, and because of Government cuts to the NNBAP (Native Broadcasting Policy, Public Notice CRTC 1990-89). The findings of this study confirm this challenge that the Indigenous broadcasting sector is facing. Of the forty stations found to be in non-compliance by the CRTC, eight stations cited instability with the management of the station, and four cited their limited finances as the reason for their inability to comply with CRTC regulations.
Table 3 - Reasons Given for Non-Compliance
|Reason Provided for Non-Compliance||Frequency||Percentage (%)|
|Issues with Management of Station (instability)||8||20.0|
|Unaware of CRTC Standards/Procedures||5||12.5|
|No Explanation Given||14||35|
|Total Stations in Non-Compliance||40|
An additional five licensees were found to be in violation of CRTC standards because they were unaware of the proper procedures for filing annual returns and responding for information requests from the CRTC. This finding is possibly due to a lack of user-friendly information from the CRTC, or a lack of attention on the part of the licensee.
In conclusion, most licensees who gave reasoning for non-compliance cited instability due to high employee turnover and limited financial resources. Furthermore, the CRTC itself avoids strict regulation of ‘native’ stations because of the extreme financial instability that they face. This is problematic for the broadcasters themselves and impacts the CRTC’s ability to regulate the sector. Without the proper resources which are used for training and building employee competencies, it seems likely that stations will continue to be found in non-compliance, thereby limiting their own success and the CRTC’s ability to properly observe their activities.
Accountability and Responsibility
The Native Broadcasting Policy, CRTC 1990-89, and Exemption Order CRTC 1998-62 have reduced the regulatory burden of the CRTC, and the burden of compliance for ‘native’ radio stations, however, this light-handed approach to regulation does not come without implications. The CRTC cited financial constraints as the central reason for exempting ‘native’ stations from regulations that affect other licence classes (Public Notice CRTC 1990-89). However, a more effective solution for regulating could be to create a funding mechanism that provides stations with the resources needed to comply with more strict content quotas. This ‘light-handed’ approach to regulation could be interpreted as the CRTC respecting Indigenous self-determination and control over its own industries, however, this has never been stated in a CRTC publication or decision. Regardless of the reason for exempting ‘native’ stations, this approach makes it more difficult for the CRTC to adhere to mandates that support the Indigenous media sector, and to protect Indigenous languages and culture. At this point in time, the CRTC has not taken an active role in working to protect Indigenous language and culture, as there are no mandated content requirements for ‘Aboriginal’ language programming. Instead, this practice is simply ‘encouraged’ by the CRTC. Current CRTC Policies and governing Acts are vigilant in preserving a unique ‘Canadian culture’ through spoken-word quotas, Canadian music quotas, and an array of funding mechanisms. This level of regulation has not yet been applied to Indigenous broadcasters.
The light-hand that the CRTC is currently applying to Native Radio broadcasters can be attributed to sovereignty debates, or because these broadcasters cannot currently afford to comply with the CRTC’s rigid requirements. Regardless of the reason, the CRTC is not currently adhering to its mandate to provide a space for Indigenous voices in Canada. This study seeks to evaluate the success of the CRTC in upholding its mandate to help preserve the unique languages and cultures of Indigenous peoples living in Canada, however, because the CRTC does not collect information about the use of Aboriginal languages over the airwaves, and does not enforce ‘Aboriginal’ content requirements, we know very little about its success or failure in this respect. This is a problem within itself, as there is apparently no external or internal accountability for the preservation of language or culture on the airwaves.
Radio is an important medium for strengthening Indigenous languages and cultures in Canada. This objective is currently being tackled by Indigenous broadcasters, creators, journalists, and knowledge-keepers, however, regulators and policy-makers are mandated to support these processes. The current policies regulating the Indigenous broadcasting sector have not been evaluated for their effectiveness and there has been very little discussion regarding who should be regulating Indigenous media. Whether this challenge is delegated to sovereign First Nations, or if it is maintained by the CRTC, it is imperative that organizations are held accountable to their mandates.
The Native Broadcasting Policy, CRTC 1990-89 has not been sufficiently reviewed since its introduction over 29 years ago. The Policy was updated in 2001, but this did not include a public hearing, nor did it include a substantive review of the Policy’s achievement (Public Notice CRTC 2001-70, 2001). Furthermore, there was an absence of meaningful input from Indigenous peoples. This is quite striking, because in comparison, the CRTC has consulted the public about commercial and non-commercial radio on at least 17 occasions since 1990, resulting in at least 27 policy revisions. The CRTC has mentioned reviewing the Policy 5 times since 2000 in CRTC Action Plans, however, for unidentified reasons a policy review has never occurred (Auer, 2017). The CRTC has continued to licence Native Radio undertakings, as late as June 2017 (Broadcasting Decision CRTC 2017-198), without conducting research into how the needs and interests of Indigenous communities are being, or not being met, by the current Policy.
This Policy has not been reviewed to reflect substantial changes in the Canadian media landscape. Since 1990 the internet and digital technologies have revolutionized the way Canadians produce and consume media. As the CRTC prepares to update this policy, substantive research should be undertaken to measure the impact that these digital technologies have had on Indigenous populations, and any future policy should reflect these changes. Furthermore, the Native Broadcasting Policy, CRTC 1990-89 was operationalized before the release of the United Nations Declaration on the Rights of Indigenous Peoples (2010) and the Truth and Reconciliation Commission Report (2015). Both documents declare certain rights to be given to Indigenous people with regards to media participation and access.
Indigenous Rights to the Electromagnetic Spectrum
In Islands of Resistance: Pirate Radio in Canada, Neskie Manuel writes:
Secwepemc Radio originally broadcast on the Neskonlith Reserve from July 2005 to June 2007. We did not get a licence from the CRTC when starting because of our position that as Aboriginal people we did not give up our right to make use of the electromagnetic spectrum to carry on our traditions, language and culture (Manuel, 2010, pg. 71).
He explains that the radio station was used as a way for his people, the Tk’emlúps te Secwe̓pemc Nation, to express themselves and acted as an extension of the oral traditions, language, and culture, that had traditionally been communicated over the campfire. For those broadcasting from Secwepemc Radio, they were expressing their sovereignty by choosing what programming would be broadcast over their airwaves (Manuel, 2010).
This sentiment is echoed again with regards to Radio Barriere Lake. When considering establishing a station to serve the Algonquin community living on the reserve located at Barriere Lake the community agreed that it, “would have to be pirate” (Mostoller, 2010, pg. 79), due to the long and expensive process needed to obtain a broadcasting licence through the CRTC. Over the past two decades, stations on reserves who felt that they could not access a CRTC licence have claimed protection due to Section 35 of the Canadian Constitution. Section 35 of the Constitution Act, 1982 recognizes the existing Aboriginal and treaty rights of “Indian, Inuit, and Métis peoples of Canada” (The Constitution Acts 1867 to 1982). Protections under Section 35 guarantee First Nations individuals “aboriginal rights” which are loosely defined and are meant to include access to land and hunting rights, among others (Mostoller, 2010). Although many Indigenous people see themselves as protected by Section 35 to use the electromagnetic spectrum without being licensed, this right has not yet been formally affirmed through case law in Canada. Theoretically, Section 35 rights could apply to the use of the spectrum if it is defined as a resource, that when distributed exclusively by the Crown, becomes a form of property (Chartrand, 2015). What must be decided is if the electromagnetic spectrum is a resource, do Indigenous peoples have Aboriginal or Treaty rights to use said resource?
Rights to the electromagnetic spectrum have not come to the fore of Indigenous rights discourse in Canada, however, outcomes from tribunals and decisions in the United States and New Zealand may have implications for Indigenous peoples in Canada. The case with the most direct implications for Canadian common law is the Radio Spectrum Waitangi Tribunal decision of 1999, in which the Waitangi Tribunal decided that the Māori, the Indigenous peoples of New Zealand, had greater right to use the newly discovered electromagnetic spectrum than the general public. In 1990, Sir Graham Latimer made a claim on behalf of the New Zealand Māori Council that New Zealand’s Radiocommunications Act, 1989, should not be used to manage the electromagnetic spectrum until Māori claims to the spectrum were settled. The claim argued that the sale of frequency licences would be in breach of the Treaty of Waitangi, if the Māori were not in agreement with the allocation of frequencies. Two main findings came from the Tribunal. First, the Tribunal found that the New Zealand government would be in breach of Treaty rights if they were to auction 2 gigahertz frequencies without reserving an equitable portion to the Māori. Second, the Crown would be in breach of the Radiocommunications Act, 1989, if they continued to manage the spectrum without consulting the Māori, especially because the Crown had an obligation to promote and protect Māori language and culture (Waitangi Tribunal Report, 1999). However, the Tribunal decisions were not legally binding, and the Crown continued to auction radio spectrum while receiving ongoing revenue from this licensing procedure (First Mile Connectivity Consortium, 2009).
In the United States of America, the federal government sets aside a portion of spectrum for the use of Native American tribes. In this case, the federal government views spectrum no differently than other resources which were ceded by Native Americans to the government over the past 200 years of colonization in the region. Much like the Waitangi Treaty in New Zealand, American treaties did not mention radio spectrum, however, the American government chose to actively support Native American language and cultural preservation through allocating ownership of spectrum to tribal groups (Waitangi Tribunal Report, 1999). In Canada, the Supreme Court of Canada recognizes ‘Aboriginal rights’ which include the right to maintain customs, activities, and traditions. A case could be made that Indigenous people in Canada have a specific right to spectrum because it is a resource that is necessary for the preservation of their languages and cultures. In remote regions, where Native Type A stations operate, this right to spectrum is not imperative as many stations currently broadcast without licenses from the CRTC. However, in more densely populated regions spectrum is a finite and valuable resource that is allocated by the CRTC based on the mandates set out in the Broadcasting Act, 1991. If it is determined that Indigenous peoples living in Canada do have spectrum rights this would have significant implications for the licensing operations of commercial and community stations in urban regions of Canada.
Article 32(2) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides guidelines for consultation with Indigenous peoples, it holds that, “States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources…” (United Nations, 2010, pg. 12). This Declaration does not make specific reference to the electromagnetic spectrum, however, if spectrum is interpreted as a resource this declaration will have implications for the CRTC. In the United States the electromagnetic spectrum is regarded as a resource, and therefore, Native American people have a right to access due to their treaty rights (Waitangi Tribunal Report, 1999).
The Broadcasting Act, 1991 does formally recognize, in Section 3(1)(d)(iii), that programming in Canada should serve the needs and interests of Canadians, specifically, “the special place of aboriginal peoples within [Canada]” (Broadcasting Act, 1991). Section 3(1)(o) states that the Canadian broadcasting system will provide programming that reflects ‘Aboriginal cultures’, “as resources become available for the purpose” (Broadcasting Act, 1991). The operative phrase in this section of the Broadcasting Act, 1991, “as resources become available”, implies that programming that is meant to strengthen and reflect Indigenous peoples’ cultures in Canada is a luxury and not a priority. Although the Broadcasting Act, 1991, mentions ‘Aboriginal’ people, the policies that affect Indigenous broadcasting do not enforce any regulations that explicitly seek to protect Indigenous peoples’ languages and cultures. The reference to ‘Aboriginal’ interests in the Broadcasting Act, 1991, is, in fact, very vague and does not include any enforceable standards. Without proper evaluation of how the Broadcasting Act, 1991 is achieving its mandate to serve the needs of ‘Aboriginal’ peoples in Canada, the Act may fail to counter-act the pervasive effects that the mainstream media has had on Indigenous people’s cultures and languages.
Conclusion and Recommendations
The Native Broadcasting Policy, CRTC 1990-89 is long overdue for a comprehensive review by the CRTC. This study seeks to provide a base analysis of the Policy and provides the following recommendations for an updated policy: First, it is imperative that the CRTC complies with United Nations Principles for proper consultations with Indigenous peoples. There is no doubt that media affects the populations that it reaches, and therefore it is within the rights of Indigenous peoples to be considered when making decisions that will affect their lives. Future consultations must respect the UN Principles, and should engage with Indigenous populations across Canada to determine what communities need from future policies. There are currently no advocacy groups or organizations dedicated to Indigenous broadcasting in Canada, making it difficult for individuals to intervene with the CRTC or lobby Parliamentarians on behalf of Indigenous listeners in Canada. As such, it is important that the CRTC is proactive in reaching out to communities. Second, this study found that at least 30% of ‘native’ radio stations experience financial instability and a lack of accountable and permanent staff members. This funding problem affects the broadcasters, and the quality of the programming that they provide. Any new policy should include a funding mechanism that can support Indigenous broadcasters’ ability to comply with CRTC regulations and conditions of licenceFootnote 7. Third, the preservation of language and culture is paramount for Indigenous populations in Canada. This suggests that despite financial constraints, the CRTC should make an effort to enforce ‘Aboriginal’ language requirements on stations with ‘native’ licences. If it is decided that the CRTC is not the regulating body responsible for Indigenous broadcasters in Canada, it is important that whatever organization responsible for regulation, incorporates enforceable standards for in-language programming and high-quality content that is of interest to the communities being served. Finally, it is important that any new policy respects Indigenous rights to self-determination, and in some areas, self-governance. It may be that Indigenous peoples reject the CRTC’s authority over their airwaves because spectrum was never ceded by Indigenous peoples in Canada, and because Indigenous peoples were not included or consulted in the creation of the CRTC.
This lack of involvement by Indigenous peoples in the CRTC continues today. Auer (2016) notes that since 1968 there has only been one Indigenous person appointed to be a CRTC Commissioner, and there has never been an Indigenous person or a person of a visible minority group, appointed to be a Chairman or Vice-Chairman. Indigenous peoples living in Canada have equal opportunities to reach the CRTC through interventions or by participating in public hearings, however, this lack of formal representation signals a challenge for Indigenous groups wishing to affect change in the telecommunication and broadcasting policies that affect their communities. The CRTC is not responsible for the appointment of Commissioners, as the Federal Government name them. However, this is not the only way to include Indigenous peoples and perspectives in the creation and enforcement of CRTC policy. For example, under the current Native Broadcasting Policy, a position could be created at the CRTC for an officer dedicated to liaising with, and supporting, current Native radio licence holders. This certainly could help to address issues that stations have with the details of CRTC policy that were identified in this study. Furthermore, if the CRTC continues to regulate Indigenous broadcasting in Canada, a position could be created for a representative within the CRTC that is appointed by First Nations, Inuit, and Métis governments and organizations that is dedicated to the regulation of Indigenous broadcasters in Canada.
Limitations and Suggestions for Further Research
This study is somewhat limited by the research design that is used. Findings of this study would be strengthened by triangulating with other methods apart from documentation analysis. For example, interviews with station managers would help to strengthen the understanding of the reasons for non-compliance and the context within which the licensing decisions were made. There is also a need for additional qualitative study of the Indigenous broadcasting sector and the policies that affect it, such as the Native Broadcasting Policy, CRTC 1990-89, and the Broadcasting Act, 1991. Further evaluation-based studies are needed to understand the funding mechanisms to which ‘native’ broadcasters have access, and their respective success. Other licencing decisions, such as licence revocations and new licence approvals, may also be studied to further understand the state of the Indigenous broadcasting sector. More information can also be gained from interviewing Indigenous media creators and broadcasters in order to identify the challenges the sector is facing. Furthermore, input is needed from the communities that Indigenous broadcasting is meant to serve. Researchers would do well to study the lived experiences of people using radio as a means for cultural preservation and for language resurgence.
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