Impacts and implications of the UNESCO Convention ten years after and ten years ahead: the View from BC

Conférence de Vancouver du 25 février 2015

Catherine Murray with the assistance of Sylvia Blake

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions was passed in 2005 with support from an exceptional majority of nations (opposed only by the US and Israel with four countries abstaining), and was soon ratified by 134 countries plus the European Union[1]. Conceived and championed by Canadian experts and the Minister of Heritage at the time in partnership with France, the Convention arose not only as a hedge against Canada’s defeat in its Periodicals ruling at the World Trade Organization, but also out of a conviction for the need to set out an aggressive framework to assert the “distinctive nature of cultural products and services” as vehicles of identity, values and meaning. The first quadrennial reports from the countries who are party to the Convention were filed between 2012 and 2014, and an analytical summary of the reports is now available online[2]. UNESCO also recently released an evaluation of the standard-setting impact of the Convention to generate a better understanding about how conventions work in practice, i.e. how they affect the legislation and policies of Parties and the behavior of key institutional actors[3].

Ten years later, how may we evaluate the impact of the UNESCO Convention on the Diversity of Cultural Expressions (CDCE) in Canada’s creative economy and cultural sector, and its implications for BC’s arts and cultural communities?

The Center for Culture and Communities at Simon Fraser University was approached by the Coalition for the Diversity of Cultural Expressions (CDCE) to organize a British Columbia roundtable to mark the CDCE’s tenth anniversary. A roundtable of 48 members from BC civil society organisations, artists, cultural producers, industry representatives, lawyers and policy makers met at SFU Vancouver on February 25, 2015 for a review of the strategic highlights of the Convention in the BC context. Discussion covered three main areas : trade and intellectual property ; digital technologies and diversity on the Internet ; socio-cultural development and protection of minority expressions. The Roundtable concluded with some recommendations for the next ten years for policy measures to promote the diversity of cultural expressions in BC.

Invited Panelists were asked to speak on their themes in modified Pecha Kucha rules of three minutes each. Full video proceedings are available on the SFU and the CCD websites. The program and biographies of the expert participants are attached. A summary of the Roundtable is presented below, along with recommendations from the participants for the way forward.

SFU would like to acknowledge that the event would not have been possible without the support of the Canadian Coalition for the Diversity of Cultural Expressions, the Canadian Commission for UNESCO, Quebec Government’s Secretariat for Canadian Intergovernmental Affairs, Bell Media and the Canadian Institute for Research on Linguistic Minorities.

The origins of the Convention and its impacts

Keynote speaker Scott McIntyre started with the bold assertion that no one in British Columbia knows about the UNESCO Convention on the Protection and Promotion of Diversity of Cultural Expression, except as a moral imperative. He went on to say that it is invisible arguably in all of English Canada, but has proved especially “irrelevant” in BC as a province with a cultural policy, but no “orchestrated will” to act.

McIntyre drew on his experience as a member of the sectorial advisory group on international trade (SAGIT) for culture dating back to when it was established by Prime Minister Brian Mulroney in 1986. McIntyre noted that he played a role in the SAGIT only up until the release of its influential report in 1999, which endorsed the idea of a separate cultural instrument in international law. The SAGIT was later disbanded in 2006. McIntyre started from the postulate that “it is a fundamental right of any civilized polity to have a cultural policy that matters”. He admits that his perspective on the events leading up to UNESCO Universal Declaration on Cultural Diversity was primarily from book publishing and the cultural industries, and underlined how there was a palpable sense Canada was fighting a rearguard action.

McIntyre recalled that the turning point for the SAGIT came after Art Eggleton’s speech in Toronto, which asked, “can’t you give me something better than negativity ? You are against everything, you want protection…this is a very difficult portfolio. Can’t you do something better ?” From this stemmed the SAGIT conviction that the approach had to be positive and conjure up a treaty that tried to establish a legal template situating culture and the value of the arts in a broader affirmative context.

The 1999 SAGIT report began to chip away at the prevailing cynicism and have some impact. Canada, along with France, then spearheaded the notion of a CDCE internationally. While McIntyre himself did not support the idea of locating the Convention in UNESCO, it soon became the only place to house it. McIntyre acknowledged the exceptional championship of Sheila Copps, Pierre Pettigrew and Robert Pilon of the CCD in pulling other countries on board, and the fact they were up against big guns, with Condaleeza Rice herself writing a letter to every head of state prior to the vote advising them against supporting the Convention. The CDCE was eventually passed with just the US and Israel opposing— an accomplishment that McIntyre describes as a “victory of sorts”.

The CDCE now has 134 countries signed on, which is even more than the landmine treaty. It has created a huge international network of cultural producers and artists for the first time, and acknowledges the right of nations to make policies and reject restrictions on their policy toolkit. In his view, McIntyre thinks the 2005 Convention is “now situated in the global imagination” to the extent it is accepted policy in many places including the Canadian Europe Trade Agreement (CETA). In response to questions, McIntyre noted that on the signing of the Convention there was very little press coverage nationally, and it received next to no mention in the West.

Like McIntyre, keynote speaker Peter Grant acknowledged that once the Canadian Government decided to back the Convention, his role took a back seat. But he confirmed the notion that the idea “caught fire” and ended with the US being voted down. Support for the CDCE was not automatic at first : aside from France, few in Europe saw the relevance of the idea. For example, Germany does not regulate private broadcasters, and had no real interest in quotas. It was not until a personal meeting between Jacques Chirac and Gerhard Schroder that the tide turned. Schroder immediately signed on, despite resistance at lower levels in the administration. With Germany came the entire Eastern Bloc, followed by the Nordic Countries and then the UK. The epochal vote was 148 : 2. The success of the Convention is demonstrated in the fact that countries representing two-thirds of the world’s population endorsed it.

In Grant’s view, the CDCE is best thought of as a “shield not a sword”. It protects Canada from the rest of the world entering into multilateral agreements pushed by the US. In the wake of its loss in the WTO periodical ruling, Canada faced the challenge of educating the rest of the world about the importance of not allowing trade policy to trump cultural policy. Even with the swing away from multilateralism and towards bilateralism, countries must continue to resist the US efforts to roll back their cultural protections.

The Canadian Government has adopted the principle that they will not sign any trade agreement without a broad exception for cultural activities, based on the first such exception in the Free Trade Agreement in 1988 drafted by Konrad Fickenstein. Today, Canada’s 26 investment treaties and 5-10 more bilateral agreements all include this exception. Grant has reviewed CETA and found it consistent with such earlier exceptions.

The next important step is to see if the EU can draw on the CETA precedent to persuade the United States to maintain this exemption in their forthcoming trade agreement. The CDCE’s impact may be limited in this context, as countries can only use the Convention to file complaints against other signatories, which the US is not.

During the question period, Grant said the UNESCO Convention was broad enough to embrace the Internet, even though it is not explicitly mentioned in the document. Further, he pointed to the European Court of Justice ruling that upheld a Spanish broadcasting regulation earmarking 5 % of revenue for films made in one of Spain’s five official languages. The decision cites the CDCE’s reference to the importance of protecting diversity in language.

In response to a comment that nothing in the Convention seemed relevant to BC experience, Grant demurred. He reminded the audience of the 2008 Screen Actor’s Guild strike to win the right to residuals, and the fight against runaway production. Grant noted the campaign failed less due to the Convention than to the opposition from the Hollywood Producers themselves, who were happy with the subsidies. Can the Convention be used to support the BC labour tax credits, which attract foreign location shooting if the runaway protest happens again ? Not directly, says Grant, since the United States did not sign it, but it can be used to interpret ambiguous clauses. Foreign service production in BC now is at a new high : $ 1.6 billion, with apparently some $ 275 million estimated in labour tax rebates from treasury. The biggest way such credits are immune now from trade retaliation, in his view, is that NAFTA does not cover services.

Trade and copyright[4]

Sylvia Blake argues that diversity is a flexible concept which is used in many ways in Canadian policy, and has yet to be stabilized. It often has generalized support, but people often talk at cross-purposes, either not using the same language or using similar language to mean very different things. At various times in Canada’s broadcasting policy, the concept of “diversity” has suggested diversity across eight areas : bilingualism/ biculturalism, aboriginal voices, inclusion of equity seeking groups, localism/ regionalism, diversity in broadcast ownership and control, Canadian cultural expression, sectoral diversity, or consumer choice. Some of these policy goals conflict, and stakeholders often have a poor understanding of others’ position on what it means to protect and promote diverse expression.

Blake argues that Canada’s position on diversity has often been contradictory, with policies that are either poorly enforced or are critiqued for a narrow support of industry or specific political goals rather than public interest objectives. In her view, there is a pressing need for research partnerships between policy practitioners, civil society and industry actors and academics to understand what role the UNESCO’s Convention can play in making sense of this complex policy area.

Dal Yong Jin’s paper, presented by David Newman, took a rather more critical view of the trend to bilateral negotiations in trade than presented by Mr. Grant. He suggested in his experience examining South Korea-US and South Korea-Canada trade agreements that there is a powerful trade lens, as embodied in, for example, pressure for negotiators to trade off culture for cars. It is important not to underestimate how the US government can target a particular country to be more open to US cultural products.

The Canada-Korea Free Trade agreement comes into effect this year. Canada feels this secures its place in the Korean market, where the EU and US already have privileged access. Canada’s track record to succeed in Korea will depend on innovative ideas and an ability to attract investment. A commitment to intellectual property rights and rules for reinforcement are important. Korea is BC’s 4th largest export market, and half of the goods exported to Korea originate from BC, including exports from forestry, agri- business and, in the future, likely also liquefied natural gas. In Jin’s view, the bilateral era of free trade agreements makes it harder for future governments to support cultural policy that will not clash with the interests of transnational business.

Lawyer Beth McDonald underlined the importance of the Convention in blessing the cultural policy toolkit. She notes that cultural exemptions are now embedded in 11 Free Trade Agreements (with the 12th to be CETA) and 28 bilateral foreign investment promotion agreements. CETA includes a preamble about the significance and recognition of the UNESCO Convention, and although we will have to wait and see, she believes that these protections may go further than earlier ones. The Convention, however, will not roll back existing obligations under the 1947 GATTS for trade in goods, and we have seen the beating that products like books and periodicals have taken in extending the national treatment rule. Copyright treaties are similarly based on national treatment for foreign authors. There have been many changes on the copyright front, with a recent Combatting Counterfeit Products Act (January 2015). MacDonald sees continuing risk of retaliation against runaway productions in BC. But the biggest looming risk is that the distinction between goods and services gained in NAFTA may erode. The US wants to treat digital products sent over the Internet as goods rather than services. It will be important to continue to monitor Canada’s position, for it has as yet been non-committal.

Graham Reynolds took the position that, despite Canada’s modernization of copyright, there is a real question about the degree to which copyright may incentivize a diverse range of cultural expression. He argues that copyright can prevent dissemination of work that builds on or incorporates parts of existing copyrighted works without authorization. The provisions for fair dealing did provide a fairly broad defense for non-commercial dissemination. But, Reynolds notes that the Canadian Courts have not accepted that intellectual copyright is connected to human rights, so if one of the Convention’s guiding principles is Respect for Human Rights and Fundamental Freedoms, copyright law may need to be revised.

Under Article 8 of the 2005 UNESCO Convention, a country may determine a special situation where cultural expression in its territory is at risk of extinction or under serious threat. In some cases, Copyright may actually contribute to the extinction of cultural expression—if it is not being reproduced by the copyright owner, but cannot be used or reproduced by others. Can Copyright law take into consideration those circumstances where letting others archive the work which might otherwise not be around for future generations ? It is not yet clear if new kinds of protections are needed specifically to protect indigenous cultural expressions. The implicit idea of authorship in current copyright law is that it is individual and not collective, and is therefore inconsistent with aboriginal practice. Terms may also be inconsistent with the need to protect historical knowledge over a very long time.

Charles Vallerand reviewed the myriad of trade developments since the passage of the Convention, all of which set a fairly robust set of exceptions of culture from trade. However, export of IP goods continues to boom for the US on the world market. IP-intensive industries account for 61 % of total US merchandise or about $ 775 billion estimated in 2010. IP intensive services from the US are now at about 19 % of such exports. Clearly, there continues to be much room for growth in service exports. E-commerce rules are therefore becoming a central preoccupation.

There are two WIPO treaties which are together known as the “Internet Treaties” that set norms for preventing unauthorized access to and use of creative works on digital networks, which Canada ratified in 2014. Now, 91 countries have ratified the WIPO. Vallerand differed from Reynolds in arguing that with CETA, the discussion of IP brings Canada “up to standard”. In part, this is informed by the conviction that UNESCO really left copyright entirely to WIPO.

Interesting also was Vallerand’s discussion of the variance in Canada and France’s definitions of the cultural industries in trade agreements : with France narrower and Canada wider. He noted a couple issues on the agenda. The first, is the US drive to extend copyright protection to 70 years, which is longer than the current Canadian limit of 50 years. The second, a proposal on E-commerce in the leaked Trade in Services Agreement, would challenge local content requirements, effectively preventing, for example, the CRTC from imposing Canadian content requirements on over-the-top Internet services providers such as Netflix (a measure the CRTC feels is in its jurisdiction, but has henceforth declined to regulate). Vallerand concluded by drawing the audience’s attention to the work of scholar Jane Kelsey from New Zealand, who argues that, notwithstanding the UNESCO Convention, the battle in services is not over.

In subsequent discussion, a representative from Canadian Artists Representation (CARFAC) announced the ratification results of the first collective agreement of visual artists with the National Gallery of Canada, which included digital rights, and drew attention to the Status of the Artist protections implied in the Convention. CARFAC had to go to the Supreme Court of Canada to get its agreement. The representative was disappointed to see that CETA did not include an artist’s resale right. Some members of the audience called for more BC examples to show how the Convention can impact the artist in BC.

Relevance of the Convention for digitization[5]

Can the Convention embrace the degree of new creative community formation today that the Internet enables? Any IP literalist approach fails to understand the extent of the change underway. Jon Festinger pointed out how today we have new modding, machinima, fan fiction, remix and 3D printing communities…all enabled by the digital world that was present but not fully considered at the time of the Convention’s negotiations. Indeed, today the Hollywood model of cultural creativity is up against the Remix model on the Net. Is creativity more important than monetization? Never before have the tensions been as clear as they are in the digital world today. The old 1985 King Kong Versus Donkey Kong case (1985 US Court of Appeal) saw Universal lose, and have punitive damages levied against it. What will be the outcome of future such cases? In video games today, there is a growing acceptance of mods. Will cultural “expression” and “diversity” in the Convention come to include these “new” communities and groups which the digital world enables? Will it protect from over-assertion of IP rights?

Josh Tabish or Open Media.ca made the case the forthcoming US decision on Net Neutrality is what the scholar Robert McChesney calls the “existential question of the Internet” and should be closely watched by Canadians, noting over 300,000 worldwide had joined their campaign to influence the FCC on the issue. Net neutrality upholds the principle that all traffic is treated equally on a given network. A given conglomerate cannot act as a gatekeeper or give its own cultural products or services preference on its distribution platform. The CRTC’s decision against Bell on Mobile TV recently, which Open Media.ca also participated in, was pivotal in upholding this non-preferential treatment. Net neutrality gives communities the means to control their own story. Without it, the Net could become “the biggest legal facilitator of discrimination the world has ever seen”. Public movements need to push back against censorship and an open net to mobilize. Openmedia.ca is calling for the establishment of municipally- owned and operated broadband networks, which would benefit artists and cultural creators as well as all citizens. Tabish also cited the importance of the work of bodies like the Centre for Media Justice in the US, which pushes for media rights, access and representation for everyone.

In answer to questions from the audience, Festinger made the point that if the Internet is allowed to further corporatize, what everyone has been fighting for in terms of the Convention on Cultural Diversity will simply not matter anymore. Tabish suggested that Canada has strong net neutrality rules, but there are always efforts to undermine them. As yet, the CRTC has not directly addressed the issue of regulating content available over the Internet (like Netflix) and in Festinger’s view it would be surprising if it chose to do so.

Socio-cultural development[6]

Rob Gloor of the Alliance for Arts + Culture confirmed McIntyre’s contention that BCers had not heard much about the Convention : despite countless Arts Summits in BC, he had not heard of the Convention before this panel. To prepare, he consulted Canada’s 2012 Quadrennial Report to UNESCO and succinctly summarized the apparent federal message as “we’re doing the same things we did before but more digitally”. Nothing new seems to have happened after 2005 in cultural policies (with the exception of copyright). On international cooperation, BC still faces challenges with the free movement of artists in and out of Canada with the temporary foreign workers issues. Advocacy here has come from the arts community, not guidance from the Convention. Gloor finds sparse progress on sustainable development during the era of austerity, and finds that civil society has been stronger than government in championing its principles. In the ensuing decade, BC was still recovering from the drastic 44 % cuts to the BC Arts Council in 2009, and in 2013 restored some funding. It did introduce new programs and structures like Creative BC : however, there was no clear policy guidance connecting the Convention to the province’s role in promoting diversity of cultural expressions. Is BC better or worse off than when the Convention was adopted ? Gloor concludes maybe a little better, but bruised, and it has little to do with the Convention. The current policy environment of instability is due to a policy vacuum, and the Alliance is facilitating a province-wide consultation to develop a new policy framework. Gloor is of the view that it is potentially an important step if arts advocates could promote the UNESCO Convention domestically and between governments at different levels. A new BC policy statement could include official recognition of the Convention on the Protection and Promotion of the Diversity of Cultural Expression within it.

Alden Habacon, who was based with the regional CBC in charge of the national portfolio for diversity at the time, also was shocked to recall no one in the CBC even mentioned the Convention—yet obviously it makes the CBC and APTN a priority. Habacon endorsed the importance of Net Neutrality, drawing attention to the website Google Killed My Website as proof how the Google search optimization engines can kill diversity. TV still dominates in leisure hours, but the Trojan horse for corporatization of TV are the commercial or not for profit ratings services, which systematically underreport minority aboriginal, ethnic, immigrant or youth audiences. Until the audience ratings are fixed, Habacon says the system is not neutral in Canada, unlike in the US where the Nielsen’s have found the first show to have an Asian-American family to rank highly.

Storyhive, a digital, disruptive platform supported by TELUS’ local expenditure requirement, focuses on emerging artists, new talent that cannot access traditional funding sources, and allows them to pitch ideas for short form programming. Prem Gill described how the public votes to see which stories move to the next stage of development—creating a community of people to help make these stories happen. TELUS has just funded 30 web series at $ 10,000 each (with 3-7 minute episodes), and helps facilitate a creative directory to network new talent in the community. While Storyhive or ventures like it are not the fix for everything, they are entirely consistent with the spirit of the Convention.

Yet some stories are not getting told in minority languages. Anne Robineau of CIRLM showed how the French language has been in decline outside of Quebec in Canada in the ten years since the UNESCO Convention. The concept of sustainable development of linguistic minorities is gaining traction. Linguistic minorities face challenges in access to artistic networks, training, professional development, finding enough staff, or generating artistic recognition and connecting with audiences. Sustainability is the contrast to Loss—of language and heritage—and it is a new affirmative way of thinking about cultural diversity. There are already too many Canadians who cannot communicate with their elders or transmit their mother tongue to their children. BC’s francophone community faces acute challenges : at 1.3 %, or 57,280, they are small compared to Chinese at 8.2 % or 357,000, so seeking new ways to adapt and be resilient. Robineau drew attention to some recent programs introduced by New Brunswick, especially to accommodate new French language immigrants. The promotion of the French language cannot be efficient without the promotion of cultural diversity within French communities, and the UNESCO Convention can be useful to reach this goal, in her view.

Marcus Youssef conveyed his recollection that CBC diversity initiatives in the 2000s had hired visible minorities, mostly born and raised in Canada, and mostly middle class. Disputes over race and portrayal continue in the Canadian arts scene. In 2006, an MP rose in Parliament and demanded to know why the Department of Canadian Heritage was showing an anti-Semitic work. The play was My Name is Rachel Corrie (for a woman killed by an Israeli bulldozer on the Gaza Strip in 2003) (it was neither funded by the Department nor anti-Semitic). In 2012 the play Home Grown about a terror suspect premiered in Toronto to a media firestorm. Not long after the Summerworks Festival which had exhibited it had its Canadian Heritage grant inexplicably cancelled. Youssef also drew attention to a recent quote from Peter MacKay on a murder plot in Halifax. The Minister had said the plot could not be terrorism because it wasn’t “culturally specific” (that is, not involving people of a certain racialized minority). The remark implies that terrorism is a cultural not a political phenomenon. The point of these cases is to illustrate how it is easy to find broad support for a generalized idea of diversity, according to Youssef. But things get harder when people’s “diverse” experiences lead them to adopt positions that challenge dominant mainstream discourse.

Youssef made the case that conflict and trouble are an important part of any real diversity agenda. Diversity policy can never be seen as an act of charity, or preservation, or as something that the strong have to do on the part of the weak :

Instead, diversity is a conscious and risk-filled invitation to those that may have views that are radically different from our own, to challenge us. Challenge and trouble are what actually allow cultures to grow. This is a moral position, and that is the point of these works.

Article 7(1) measures to promote cultural expressions of indigenous peoples

Were indigenous people consulted at any time in the drafting of the SAGIT recommendation in 1999 and later Convention ? If not, why the oversight, challenged independent producer Jeff Bear. Bear is the author of a 2004 report entitled Connections for the screen industry organizations—a report which he contends was shelved internally even as Canada and the Coalition were apparently pushing for diversity in UNESCO. Like Alden Habacon, Bear had not heard of the UNESCO Convention before this panel. Much better known to him was the UN Declaration on the Rights of Indigenous Peoples adopted two years later in 2007—with a majority of 144 nations, but opposed by Canada as one of four nations against and 11 abstentions. (Canada has since signed in 2010 arguing the UN Declaration is primarily aspirational, and still not sufficiently accommodating individual freedoms envisioned in the Charter of Rights and Freedoms). He particularly drew attention to that UN Charter’s article 16 which says indigenous peoples have the right to establish their own media in their own languages and that States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. Yet he contends that the CBC, like Global and CTV, does not buy from aboriginal producers even today. The main place where independently-produced aboriginal programs get exhibited is through APTN, established at the suggestion of the Royal Commission on Aboriginal Affairs’ 1998 Report. City and Bravo occasionally air indigenous programs, but CTV cancelled its only aboriginal show, First Story. Networks are notoriously slow to realize the need to accommodate different aboriginal narrative forms : many producers do not want to use the 3-act structure in TV writing. He ended by citing the Push Festival’s multimedia production by Marie Clements’ The Road Forward, telling the story of the native brotherhood and sisterhood of BC and the highway of tears as a positive legacy of the Cultural Olympiad’s commissions for 2010. Chris Creighton-Kelly ironically noted, however, that its recent performance at the Cultch in East Vancouver had not obtained coverage from the Georgia Straight because the editor did not deem it theater.

The CDCE, in Chris Creighton-Kelly’s view, was never proposed or intended as an instrument to deal with domestic cultural diversity, a perspective also shared by the two keynote speakers. In so doing, Canada “missed a chance to be a leader and role on the international stage”. Then Heritage Minister Sheila Copps, and the Canada Conference for the Arts, which at the time housed the Coalition and Canadian Commission for UNESCO, were repeatedly told to frame it as an instrument for domestic diversity—but she said “let’s ratify it first, and deal with cultural diversity after”. Well, he stated, that never happened. Creighton-Kelly drew attention to the recent closure of the Vancouver Playhouse theatre, which failed in part because it didn’t deal with diversity and seek out new audiences. Creighton-Kelly also speculated that the Canadian Conference of the Arts might still be alive if they listened and opened to more cultures in Canada. He found it telling that the Coalition for the Diversity of Cultural Expressions itself has not one aboriginal organization or organization for people of colour which belongs. It is a Coalition for the Diversity of Cultural Expressions that is talking about the franco-anglo duality only.

Creighton-Kelly outlined the colonial history behind the evolution of language on cultural diversity, indigenous cultures (themselves multi-cultural) and immigrant cultures. All histories are partial, but some are a lie. The real history of Canada has been denied to the point of eradication by the two founding races. Eurocentric power structures are at the heart of Coalitions on cultural diversity. Cultural diversity as a term comes from the top-down state-imposed multiculturalism. But what really matters is giving real power to real people to express their rights in this country. Multiculturalism is a dead end. We are, in Canada, manifestly multicultural, multiracial, and multilingual. Diasporic movements, the developments of meta states like the EU, and digital changes online both spread and dilute cultural integrity. Yet, institutions like the UNESCO and the UN of which it is a part, are built on the wreckage of World War II with a strong emphasis on the nation state. It is hard to define nation states or national cultures today. One national culture does not work, but this is the paradigm in which the Convention is located.

How can we evaluate the UNESCO Convention in light of the BC cultural sector ? This is a disconnected and absurd question according to Creighton-Kelly. There has been no impact :

We need a new understanding of Canada with indigenous cultures and our practices at the centre. We need to treat may cultures with respect, move beyond racism, denial, guilt, tolerance, sacrifice, listen and tell the historical truth.

Cathi Charles Wherry, of the First Nations’ Cultural Council in BC, mapped to startling effect the visual extent of diversity among the 203 First Nations in BC, with 34 languages and 61 dialects. She told the story how each language is born from the land and expresses a unique way of looking at and walking in the world, connected to knowledge, laws, values, leadership and methods of their transmission. Yet First Nations peoples had been disrupted by colonization, legislation and acts that were intended to destroy their cultures. How can we now strengthen indigenous cultural expression for creators and cultural workers ? There is an urgent need for more support for the intergenerational transmission of indigenous knowledge, and the UNESCO Convention does call for special provision for urgent issues. The elders carry knowledge, but the elders are aging, and we need to help them share their knowledge. The youth are committed and strong and ready to take up the legacy. Under the Indian Act, and continuing systemic racism in Canada, Aboriginal people cannot be seen as equal participants in the creative economy any more than they are in the general economy. To help them develop, call on Article 16 of the Convention which says preferential treatment should be extended to Aboriginal peoples, and protect collective intellectual property and traditional knowledge from misappropriation. Wherry was not previously aware of the Convention, but will now refer to it.

Danika Billie Littlejohn considers the Articles 5, 6 and 7 of the UNESCO Convention can be better strengthened by reference to the UN Declaration on the Rights of Indigenous Peoples in 2007. This is the lense through which other standard-setting instruments ought to be understood. In fact, she suggested the reason for the paucity of references in the 2005 UNESCO Convention was because aboriginal people were told they didn’t need to be in it because they soon would get their “own declaration”. Canada needs to get away from this partitioning and understand fully how a human rights-based approach to different international standards must be implemented and integrated at national and international levels. On the International Convention on the Elimination of all forms of Racial Discrimination (passed in 1965 and in force in 1969), Canada has had some pressure from indigenous communities, but not as much as from other groups in regard to the obligations from this instrument. The Canadian Coalition of Municipalities against Racism has produced an important tool in its article 10 to “promote, respect understand and appreciate the inclusion of aboriginal and racialised communities into the cultural fabric of the community”. Vancouver is a signatory. What needs far more analysis is how these various laws and policies interrelate and impact each other. In the 2005 Convention, Article 15 is about partnerships and collaboration in terms of developing countries, but the principle is also relevant to subnational communities within Canada. In her view, nothing has really changed as a consequence of this Convention within Canada, but if we take all the international standards “and six pack them” so they support each other and bring them to the table, there is some possibility for more effective implementation. We must be vigilant to make sure Canada does not say one thing internationally, and another at home.

The way forward & implications for BC[7]

While the UNESCO Convention was conceived as a shield against external intervention in a nation-state’s cultural self-determination, in the view of many participants, the extensive number of articles on values of cultural diversity the Convention contains did suggest a positive obligation on States to promote and protect cultural diversity within. However, Quebec is seen as the primary provincial actor in UNESCO, and the Conservative Government’s portfolio even under the strong BC Heritage Minister James Moore did not seem to carry on commitment to cultural diversity in any but a superficial way[8].

In the Canadian Quadrennial 2012 Periodical Report to UNESCO, the federal government stated “Canadian provinces and territories establish their own cultural objectives through the mechanisms that are best suited to their needs.” These mechanisms include cultural policies, strategic plans and the mandate of public organizations. It goes on to state that measures implemented by provincial and territorial organizations are numerous and cover all stages of cultural expression. Each province and territory evaluates the impact of its cultural measures according to its own accountability system.

The mid-term report’s section on provinces and territories included pro forma links to the BC Arts Council Annual Report 2009-2010, the BC Ministry of Public Services and Solicitor General’s Gaming Policy and Enforcement Branch, and the Annual Report of BC Film and Media 2010-2011. At the time, the BC Arts Council was struggling with some cuts to its budget (since recovered), and the sole reference to principles consistent with the Convention was its goal 4, that diversity in cultural traditions is recognized and supported, and new art forms encouraged which has subsequently led to a small envelope of new funding directed to aboriginal arts production. British Columbia’s Arts Partners in Creative Development (BCAPCD) was cited as one of four examples in the 2012 Quadrennial Report. BCACPD invested more than CA$ 6 million in 84 projects in 16 communities to assist in the creation and development of new works at the highest standards and showcase both locally and worldwide. As well, the report mentioned BC’s two programs, the BC Arts Council’s Tourism initiatives, and BC Film+ Media’s passport to markets program which supports organizations so they can attend international markets and exchanges.

At the concluding reception, participants agreed that British Columbia needs to construct a more effective framework for cultural policy and for ways to protect and promote cultural diversity. Rob Gloor of the Alliance for Arts+Culture indicated that the Alliance’s Creative Convergence province-wide consultations underway between March and June 2015 would allow for a window to consider if BC should expand on its commitments under the UNESCO Convention more fully. The Alliance for Arts + Culture[9] is undertaking a series of some twenty community consultations across the province about the need for a BC Cultural Policy Framework. Entitled BC Creative Convergence the outcome of the province-wide engagement process will be presented June 18 and 19, 2015.

Gloor noted the mid-term report to UNESCO filed by the Canadian Government reported solely on initiatives already underway at the time of ratification, and did not acknowledge that any cultural activities were under threat–thereby losing credibility. He argued for undertaking some real critical self-reflection on how we are meeting the Convention’s lofty objectives.

Another participant underlined the point that austerity and cutbacks are forcing a reappraisal of commitments to diversity—and even redistribution.

Sheila MacKinnon, cultural planner for Surrey, endorsed the need for more public awareness and education about the Convention, and possible links for such initiatives to the annual meetings of the Creative City Network of municipal cultural planners. She was particularly interested in further information about two municipally relevant initiatives : Open Media.ca’s drive to increase free municipal broadband internet in cities, and the initiative against racism involving a network of Canadian cities. Anne Robineau agreed by stating that cities and local governments in Canada need to push for more of a presence at the cultural policy table, and her view was that the UN language in reference to cities would become increasingly frequent in the coming years. BC Culture Days, a fairly recent innovation, could become more explicitly focused on diversity of BC cultural expressions, and perhaps even make reference to the UNESCO Convention.

Others suggested a program review of the BC Arts Council and the new body Creative BC and in particular, the BC Gaming Branch in the Ministry of Finance which disburses money to arts organizations, informing them of Canada’s compliance with the UNESCO Convention, and more extensive assessment of BC’s priority to promote the diversity of cultural expressions.

Danika Billie Littlejohn suggested BC civil society actors should monitor the post 2015 Development Agenda at the United Nations Economic and Social Council. It will be important for international communities to pressure Canada to add culture to the 17 goals on sustainable agenda, since negotiations seemed to be abandoning early conceptions of culture as a pillar of sustainable development. In her view, indigenous peoples are mentioned just twice in 17 goals and arguably still insufficiently protected.

Chris Creighton-Kelly noted the uneven discourse in popular discussion of cultural diversity. “We don’t understand the arts of others at all” in his view, and he cited his co-authored work for the Canada Council entitled Understanding Aboriginal Art Today (2012) as an example of what is needed to translate cultural form, practice and intention between and among a number of other ethno cultural groups.

Charles Vallerand responded to the critical attitudes expressed by some about shallow cultural diversity with a question if the change to “sustainability” as appears to be growing in international circles is perhaps a preferable framework to establish the protection of languages or cultural practices under threat of extinction. In BC, the term invokes association with Trans Mountain Pipeline and predominantly environmental debate, so BCers would need to be persuaded.

In mobilizing Canadian cultural policy support, Peter Grant reminded the audience that the support for elite arts and for popular cultural industries posed very different challenges for a lawyer in determining what we are supporting. He noted most BC members of the Director’s Guild never worked on domestic productions, and rarely had any idea of what there was worth protecting. A participant also drew attention to the fact that 30,000 seats would be on offer for cultural performances in the city this month, but only half would be filled—signaling important sustainability issues, and challenges for audience growth. Competition with the outdoors for audiences and the parlous position of many arts organizations all too often perpetuates sectoral fractionation, and partially explains the failure to raise the profile for arts+culture in a province where a resource extraction policy focus seems predominant.

Important impending developments in BC

The Alliance for Arts + Cultlure will release the report on the BC Creative Convergence province-wide consultations this June 2015, with the expectation it may then inform a strategy to lobby the BC Government for some form of policy statement and greater coordination of institutional players. It will be important to monitor how this policy formulation will acknowledge the principles of the UNESCO Convention.

Cathi Charles Wherry notified the Roundtable that last year the First People’s Council organized and co-hosted with the En’owkin Centre a forum for discussing Cultural Protocols and the Arts. The report on the proceedings will be available soon, and the FPCC plans to convene an advisory group and work towards a tool kit to enable this. Jeff Bear, drawing on his earlier Connections report, expanded his suggested set of recommendations to make Canada’ participation in the UNESCO Convention more meaningful. These highlights are presented below.

Suggested objectives for the next ten years

  1. The process of making recommendations must be more inclusive of indigenous people at many levels.
  2. Government agencies, and all cultural agencies should be informed of the Convention.
  3. The Canadian Parliament should pass enabling legislation that would require amendments to the many statutes that deal with culture.
  4. There should be an Aboriginal Broadcasting Act that oversees the governance and mandate of the APTN as they go forward into the digital world[10].
  5. Broadcasters (BDUs), Cable and Telecommunications Providers should be held to the provisions of providing greater balance in its cultural content, to have more programs produced by independent indigenous producers to meet the demands of such content.

Suggested action imperatives

  1. In the context of inclusiveness, the Coalition for the Diversity of Cultural Expressions and other such Alliances must hire indigenous people to be part of its team ; an independent body of indigenous cultural experts and practitioners should be created and convened that could provide more meaningful input to the dialogue ; all of this is possible within the first year.
  2. Over the course of the next two years, Government and cultural agencies must be informed and the Convention must be adopted as an interim measure for “best practices” guiding any new policy development and revising old and out-dated ones that are barriers to diversity.

    Longer Term

  3. It seems logical that …something big like a Royal Commission on the future of Digital media in the context of the Canadian Broadcasting Act could be held. It could involve smaller, legislative initiatives by Parliamentarians.
  4. The CRTC and other public cultural institutions at all levels need to adopt both the Convention and the Declaration on Indigenous Rights.

Selective bibliography

Alliance for Arts and Culture (2015). Creative Convergence : Towards a Cultural Policy Framework. Report and Recommendations for a Provincial Cultural policy framework.

Bear, Jeff (2004). At the Crossroads. Prepared for Telefilm Canada, the Canadian Television Fund, the National Film Board, the Department of Canadian Heritage and the CBC.

British Columbia, Ministry of Community Sport and Cultural Development (2013). BC Creative Futures : Building British Columbia’s Creative Economy.

Canadian Commission for UNESCO (2012). Canadian Coalition of Municipalities Against Racism and Discrimination. Toolkit for Municipalities, Organisations and Citizens, [Online], https://bit.ly/2MAQOTZ, accessed May 28, 2015.

Festinger, Jon (2016). “Legal Constraints on Digital Creativity”, the University of British Columbia, [Online], http://creativity.law.ubc.ca/, accessed May 28, 2015.

Jeannotte, Sharon (2013). Flat lined but Still Alive. Overview of the 2012-2013 Provincial and Territorial Budgets from the Perspective of the Arts and Culture Sector. Ottawa, Canadian Conference of the Arts/Centre on Governance, University of Ottawa.

Lorimer, Rowland (2012). Dreamcatcher. Towards a creativity/innovation strategic plan for British Columbia : a BCreative 2012 Conference Report. Vancouver, Canadian Centre for Studies in Publishing Press. [Online], http://www.sfu.ca/bcreative/, accessed May 28, 2015.

Murray, Catherine (2009). “Place-making and Place Taking : Cultural Policy in BC”, in Michael Howlett, Dennis Pilon and Tracey Summerville (eds.). British Columbia Government and Politics. Toronto, Edmond Montgomery, 2009, p. 371-392.

Trepanier, France, and Chris Chreighton-Kelly (2011). Understanding Aboriginal Arts in Canada Today : A Review of Knowledge and Literature. Ottawa, Canada Council for the Arts. [Online], http://canadacouncil.ca/council/research/find-research/2012/understanding-aboriginal-arts, accessed May 28, 2015.

Wyman, Max (2004). The Defiant Imagination. Vancouver, Douglas and McIntyre.


  1. See UNESCO, [Online], http://www.unesco.org/new/en/culture/themes/cultural-diversity/culturalexpressions/the-convention/convention-text/, accessed May 28, 2015.
  2. See UNESCO, [Online], https://en.unesco.org/creativity/periodic-reports/2012-5, accessed May 28, 2015.
  3. See UNESCO (2014). Report on the “Evaluation of UNESCO’s Standard-setting Work of the Culture Sector Part IV – 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions”. [Online], https://en.unesco.org/creativity/sites/creativity/files/8IGC_5b_Report%20IOS_desk%20study.pdf, accessed May 28, 2015.
  4. Participants were invited to reflect on the following : How has the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions influenced Canada’s subsequent and current trade negotiations (South Korea, EU, CARICOM, India, TPP) ? What are recent developments in trade and copyright ? What risks of real or potential trade barriers, complaints (about production tax credits) or retaliation may face BC cultural producers and exporters in the near term ? How might the dispute mechanism envisaged in the Convention work to protect creators ? Conversely, how might the WTO become more sensitive to diversity issues ? For more information, see the Convention, Article 20.
  5. Participants were asked to address the following : Although there are no explicit references to digital technologies, can it be said the Convention is compatible with Net Neutrality, and indeed, measures to protect and promote diversity of cultural expressions in the Internet age ?
  6. In the past ten years, how well has Canada worked to create an environment which encourages individuals and social groups to create, produce, disseminate, and have access to their own cultural expressions, paying attention to the special circumstances and needs of women as well as various social groups including minorities and indigenous peoples ? What would strengthen minority and indigenous cultural expression for creators and cultural workers in BC over the next ten years ? And what are the implications for global cooperation for development, including preferential treatment for developing countries ? For more information, see the Convention’s Articles 7, 15, and 16, as well as the creation of the International Fund for Cultural Diversity (Article 18). Finally, in theory, the Convention may be used by cultural minorities within nations to launch global social movements and lobby for policy change, or conversely, file grievances against harms to cultural diversity or draw attention to special situations where cultural expressions are at risk of extinction or under serious threat. If so, where are such mobilizations likely to occur ?
  7. While establishing a wide ambit of sovereignty for the nation state in cultural policy, proponents wonder about the Convention’s implications for the other levels of government in Canada. Among Canadian provinces, only Quebec is active and leading on the cultural diversity file with UNESCO.
    Can the UNESCO Convention or its principles be used to lobby for the advancement of domestic cultural policy in BC, or conversely, influence the evolution of cultural policy at municipal, provincial and regional federal levels in the next ten years ? How compatible is the policy statement BC Creative Futures with the Convention ? Should arts and culture advocates lobby for the BC Legislature to adopt a motion in favour of the convention, as Quebec did, and push for BC-NGO standing with UNESCO ? What should be the top ten recommendations on the agenda to advance cultural diversity of expressions in BC ?
  8. It is important to acknowledge that the Canadian 2012 Quadrennial Report to UNESCO on implementation of the 2005 Convention claims it “made a point to involve Canadians in all stages of drafting, ratification and implementation of the Convention”, citing representatives from Canadian civil society were invited to each of the departmental meetings of the International Network on Cultural Policy, the 2008 International Forum on the Creative Economy, widespread copyright consultations and the Canada Council peer evaluator process. It goes on to say “Canadian provinces and territories also provide a lot of room for civil society in developing and implementing their cultural measures”, citing Quebec, Ontario and Nova Scotia. The Coalition for the Diversity of Cultural Expressions notes that “It is …necessary to reflect upon how to involve a greater number of provincial and municipal structures, given their important role in culture and the priority they bring to diversity” (p. 45).
  9. Begun in 1986, the Alliance is an advocate, not-for-profit association and service provider representing over 350 members across the artistic disciplines. After 2009, it began to extend its mandate province-wide.
  10. APTN board members are elected for life. Technically they have terms but those terms are made and governed internally. The APTN management is there forever. As long they are perceived to be doing a good job. CBC on the other hand changes its board of directors and senior management frequently. That is because they are a public service, no different than the corporate and public model for APTN. In New Zealand, the APTN counterpart is Maori television and are governed by a Maori Broadcasting Act, a statute that guarantee’s both funding and a mandate.


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