Push for Indigenous spectrum sovereignty continues through ISED consultation responses

Indigenous leadership is once again pushing the government toward Indigenous sovereignty over spectrum covering Indigenous territories as part of their responses to a recent spectrum management consultation by the department of Innovation, Science and Economic Development Canada (ISED). “We question the authority of ISED to administer spectrum on behalf of Indigenous Nations,” the First Mile Connectivity Consortium (FMCC) wrote in its submission. The submissions are in response to ISED’s consultation on Spectrum Outlook 2022 to 2026. The comments regarding how ISED should approach spectrum managing and authorization in the next several years were released last month. The consultation is the first time the department has explicitly addressed Indigenous connectivity as a separate topic from the usual “rural, remote, and Indigenous'' connectivity issues. The department asked stakeholders "how can ISED’s spectrum management program best support Indigenous connectivity?” “As Indigenous legal scholars have noted, spectrum is a natural resource that existed prior to the establishment of the states such as Canada, and thus there is a lack of clear jurisdiction over spectrum covering Indigenous regions," the FMCC wrote in its submission. "Such a claim may suggest that First Nations and other Indigenous Peoples in Canada are entitled to ownership of this natural resource and/or to receive a share in the proceeds of the Federal Government’s spectrum auctions." Chief Andrew Victor wrote a submission on behalf of Cheam First Nation, B.C. He said that ownership of the resource “will critically benefit” access to emergency response, climate change response, economic independence, participation with the rest of Canada, food sovereignty and reducing barriers to the judicial system. Victor wrote that should an Indigenous community choose not to manage spectrum in their traditional territories, the government should at least turn over all spectrum proceeds to the respective community. ISED cannot ignore this issue any longer because Indigenous leadership flooded the department with feedback on spectrum sovereignty, according to Gregory Taylor, the principal researcher for Canadian Spectrum Policy Research and a professor at the University of Calgary. In a phone interview with The Wire Report, Taylor said that focusing on Indigenous connectivity is not bold because countries worldwide have been dealing with the issues for years, but it is “somewhat bold for ISED,” which has “largely ignored this issue for the past 20 years.” ISED noted in its consultation document that the government of Mexico exempted the civil association Telecomunicaciones Indigenas Comunitarias from paying hefty fees to use radio spectrum. It also highlighted efforts going on in New Zealand. Last year the New Zealand government announced a historic spectrum agreement with Māori that stipulates that 20 per cent of national commercial spectrum allocations will go to Māori at no cost. ISED declined to endorse any of those international agreements. Instead, ISED “expects stronger deployment requirements to result in licensees providing coverage to more households within their licence area, resulting in greater connectivity for remote Indigenous communities across Canada.” The department expects several other policies to support rural connectivity to benefit Indigenous communities, such as more targeted licence areas and reforms to licencing fees. Eeyou Communications Network (ECN), a majority Cree-owned broadband service provider in Québec’s north, submitted that “market forces are not an effective means of regulating spectrum in rural and remote regions, nor is it conducive to economic reconciliation with Indigenous peoples.” ECN, Victor and FMCC all called for the immediate release of the unused spectrum on and over traditional Indigenous territories for the use by and benefit of Indigenous peoples at no cost. FMCC endorsed the 2021 and 2022 Indigenous Connectivity Summit (ICS) Policy Recommendations. The latter set of recommendations called on the government to develop a consultation framework that positions First Nations as the rights-holders and not as stakeholders. “These recommendations stress that the Canadian government has an express duty to consult and has the power to meaningfully engage and consult with entities working with Indigenous communities. Until these concerns are addressed, we believe that the Spectrum Outlook 2022-2026 is in contravention of UNDRIP and the United Nations Declaration on the Rights of Indigenous Peoples Act,” FMCC wrote. FMCC said that rather than auctions, ISED should introduce an "Indigenous Priority Window" (as introduced by the FCC in the U.S. for some spectrum) to provide a workable mechanism for Indigenous providers to obtain spectrum at no cost. “We stress that auctions are not a viable means for Indigenous providers to obtain spectrum for both accessibility and financial reasons,” the organization wrote. “In recognition of the unique status of First Nations as rights-holders, no fees should be levied for the use of the spectrum resource in Indigenous territories or by Indigenous entities. As well, waiving fees for Indigenous providers and coverage of Indigenous land supports the principles of economic reconciliation.” The Government of Northwest Territories (GNWT) submitted that, as a natural resource, spectrum “has both commonalities and differences with other resources like land or water.” The GNWT noted that a priority window would benefit those who may wish to collaborate within given territories. A distinct allocation approach will help parties pursue different strategies within the same territories. On consultations, FMCC said ISED should only make decisions on its ongoing proceedings once it develops a more inclusive consultation process involving Indigenous voices. FMCC said that ISED is less transparent than the CRTC in its deliberations. It recommended that ISED follow in the commission’s footsteps by offering funding to encourage participation by public and consumer interest groups and groups representing Indigenous governments, organizations, and communities. Finally, FMCC pointed out that not all its members are familiar with the complex technology and terminology associated with spectrum. ISED should be proactive and transparent in publishing information associated with the spectrum licensing process – including satellite licensing. Both FMCC and ECN recommended that ISED, along with other government departments and agencies, should initiate two separate forums: one to review the broad issue of spectrum sovereignty and related matters, and another for Indigenous entities that would allow for open and transparent discussion on the technical and process level topics concerning spectrum. The Canadian Council for Aboriginal Business (CCAB) argued that ISED should develop a tripartite forum – including government, telecommunications companies, and Indigenous business and community leadership – to establish meaningful dialogue. The CCAB council recommended that ISED steer away from its “so-called fourth carrier” policy because of its negative impact on rural and remote Indigenous communities. “The result has been that spectrum, which could have otherwise been used to connect people and drive prosperity, remains undeployed. Fundamentally, it is a mistake to be focused on fourth carrier competition in a manner that allows spectrum which could be used to connect Indigenous peoples to remain unused,” it said, urging ISED to disincentivize the practice of having spectrum held as an asset or flipped for profit. FMCC further suggested that ISED develop a definition of economic reconciliation in the context of spectrum policy, agreeing with concerns put forward by the ECN, which stated that “not one Indigenous entity holds a radio frequency spectrum license for the provision of broadband services.” What do the Big 3 say? Taylor said he is disappointed BCE Inc. is skirting the question of what to do about Indigenous connectivity in Canada, especially during a time when many communities are now calling for spectrum sovereignty. “My suspicion is they have a lot of lobby firepower, and this issue is being brought up in private meetings,” Taylor said. “As the largest provider in Canada, you want to hear their views on the subject. I have to say I’m disappointed in that I think it needs to be on the public record. This is something of such importance in the country that it’s not just something that should be held in private discussion.” Spectrum sovereignty – the idea that Indigenous communities should have exclusive rights to the electromagnetic spectrum over their lands – is growing rapidly. Several countries have already carved a path toward that end goal, while Canada lags behind on Indigenous connectivity and reconciliation. “Yes, a lot of smaller players and different Indigenous groups have spoken up here. And I think that that’s very important. But it’s also very important to see what the major players say about all of this. I think it’s quite revealing Bell doesn’t mention it in the comments from Bell Mobility. There’s not one mention of Indigenous connectivity when that question was very explicit in the consultation,” Taylor said. Bell did not respond to a request for comment by the Wire Report. The 2021 Census reported that more than 50 per cent of municipalities that identify as Indigenous communities are situated in the most remote areas of Canada. On the topic of remote connectivity in general, Bell (the parent company of the Far North’s largest service provider NorthwestTel) stated that there was no business case for connecting the remaining one per cent of Canada and made no reference to Indigenous communities. The company suggested that the government should adopt a similar approach to the one taken with extending wireline service to these areas. “Specifically, in recognition of the uneconomic business case of such an extension for wireline facilities, governments offer subsidies to carriers as an incentive for expansion,” Bell wrote in its comments, referring to programs such as Connect to Innovate, the CRTC's Broadband Fund, and the Universal Broadband Fund, and provincial programs. If there is no business case for Canada’s Big 3 to connect in rural and remote areas, why not give up the spectrum so communities can do it themselves? Taylor said it is because the incumbents are not willing to give up control of the airwaves, as highlighted in Rogers Communications Inc.’s comments. Rogers noted that it had subordinated its spectrum licences to smaller players servicing rural and remote areas, including those owned and operated by Indigenous service providers. “Those have resulted in the provision of public and private wireless services using Rogers’ licensed spectrum in multiple, remote First Nations communities and Indigenous-owned businesses, served by local, community-based carriers,” the company wrote. Rogers said it remained open to entering into similar arrangements with its spectrum licences to extend coverage further. “They still want to maintain control of the frequencies. Take a look at what Rogers is saying: they are willing to work with Indigenous groups, but they make it very clear in their language about ‘using our frequencies.’ And so I think they don’t want to let go of the large control they have over the airwaves across the country,” Taylor said. “And they see this as ‘if you open one area to Indigenous sovereignty, it won’t be just one area, it’s going to be a lot of areas.’ This is something that governments are struggling around the world as far as how to do this properly. And Rogers and Bell don’t seem to see much benefit for themselves.” Rogers did not respond to a request for comment. Taylor said that out of Canada’s largest providers, Telus Corp. is the only incumbent “not completely ducking the issue” because it admitted that existing government policies are failing Indigenous communities. In its submission, Telus wrote that "it may be necessary to deviate from a reliance on market forces to benefit the environment or the pursuit of reconciliation with Indigenous peoples in Canada. Nevertheless, it is crucial that the carving out of spectrum for such purposes does not then result in it simply sitting fallow.” Telus also recommended that the government establish a tripartite forum to bring together Indigenous leadership, the private sector, and government departments such as ISED, the CRTC and Indigenous Services Canada. “As a part of this effort, the government should create a dedicated policy team within their organization as a single point of contact for Indigenous governments and stakeholders," the company wrote. "A thorough review and discussion of spectrum access should be undertaken in order to find additional opportunities for Indigenous parties to co-create an inclusive and equitable policy for spectrum allocation and management." It further noted that ISED and the CRTC should create dedicated policy teams within their organizations to ensure robust government-to-government consultation with Indigenous governments and organizations take place. A more inclusive consultation process and dedicated Indigenous policy teams within those organizations were some of the main calls to action the Indigenous Connectivity Institute developed during October’s summit. -Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Push for Indigenous spectrum sovereignty continues through ISED consultation responses

News | February 14, 2023

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Push for Indigenous spectrum sovereignty continues through ISED consultation responses

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