Considering Indigenous rights in the open data and technology space is a relatively new concept. Called “Indigenous Data Sovereignty” (IDS), it is defined as “the right of Indigenous peoples to govern the collection, ownership, and application of data about Indigenous communities, peoples, lands, and resources”, regardless of where the data is held or by whom. By default, this broad and all-encompassing framework bucks fundamental concepts of open data, and asks traditional open data practitioners to critically consider how open data can be used as a tool of transparency that also upholds equal rights for all.¹
Indigenous Data Sovereignty at RightsCon 2019
The goals of open data have been to make some data freely available for everyone to use, without restrictions from mechanisms like copyright and patents. Yet, when applied to Indigenous and ethnic communities, unique risks and harms can arise, particularly due to the biases found in data on Indigenous peoples, and the relevance of that data for the communities. Very seldom have Indigenous and ethnic communities been involved in open and frank discussions about their rights within the technology space. This year at RightsCon 2019 in Tunis, Tunisia, (sessions here and here) a consortium of stakeholders gathered to openly discuss and define how IDS intersects with open data, with the aim of developing tools or guidelines towards promoting and mainstreaming IDS within open data movements.
Indigenous Data Sovereignty principles:
Participants (including ethnic and Indigenous representatives, Indigenous peoples’ organizations, traditional open data practitioners and those working on the fringes of these issues) were asked to define their current context in relation to IDS frameworks and raise some of the challenges and barriers to implementing IDS in their work, networks and daily lives. This was done in great depth due to the diversity of participants. Some participants were overwhelmed by what might be required for Indigenous and ethnic communities to overcome power imbalances to take back their sovereign rights to data both physically (hardware and software) and structurally (data governance).
Others questioned the priority of Indigenous data sovereignty over the fundamental issues of poverty and marginalization that so many Indigenous communities face daily. Ultimately, the consensus was that the ability of governments and other non-state actors to use data against Indigenous and ethnic minorities to divest them of their sovereign rights far outweighed these concerns.
Four main areas of concern and relevant barriers identified by participants were:
Self-determination to identify their membership
- National governments in many states, particularly across Asia and South America, still do not allow for self-determination under the law. Even when legislation offers some recognition these are scarcely enforced, and mainstream discourse demonises Indigenous self-determination.
- However, because Indigenous and ethnic minorities frequently face hardships and persecution on a daily basis, there were concerns about the applicability of data sovereignty at the local levels.
Intellectual Property Protocols
- It has become the norm in the everyday lives of people for big tech companies to extract data in excessive amounts. How do disenfranchised communities combat this?
- Indigenous data is often misappropriated to the detriment of Indigenous peoples.
- Intellectual property concepts, such as copyright, are not an ideal approach for protecting Indigenous knowledge and intellectual property rights because they are rooted in commercialistic ideals that are difficult to apply to Indigenous contexts. This is especially so because many groups do not practice commercialization in the globalized context. Also, as a concept based on exclusivity (i.e., when licenses expire knowledge gets transferred over as public goods), it doesn’t take into account the collectivist ideals of Indigenous peoples.
- Ultimately, data protection is about protecting lives. Having the ability to use data to direct decisions on Indigenous development places greater control in the hands of Indigenous peoples.
- National governments are barriers due to conflicts in sovereignty interests. Nation-state legal systems are often contradictory to customary laws, and thus don’t often reflect rights-based approaches.
Consent — Free Prior and Informed Consent (FPIC)
- FPIC, referring to a set of principles that define the process and mechanisms that apply specifically to Indigenous peoples in relation to the exercise of their collective rights, is a well-known phrase. They are intended to ensure that Indigenous peoples are treated as sovereign peoples with their own decision-making power, customary governance systems, and collective decision-making processes, but it is questionable as to what level one can ensure true FPIC in the Indigenous context.²
- It remains a question as too how effectively due diligence can be applied to research protocols, so as to ensure that the rights associated with FPIC and the UNDRIP framework are upheld.
Issues unique to IDS
Indigenous peoples’ rights to data are set out in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 18 stipulates that Indigenous peoples have the right to participate in decision-making in matters that would affect their rights, in accordance with their own procedures. The UNDRIP also specifically addresses the collective rights of Indigenous peoples — this is particularly relevant to IDS. This is because data rights have traditionally followed in the footsteps of intellectual property, which is made up of exclusive rights for individual entities; as UNDRIP indicates, Indigenous rights are necessarily collective.
IDS can sometimes appear disconnected from regional and global agendas since it is connected to localization processes. But, regional and global agendas are not necessarily irrelevant. Attention should be paid to bilateral agreements and transnational conventions that could hinder the freedom of Indigenous peoples to access and utilize their rights. This expressly concerns natural resource rights, which are one of the most contentious issues for Indigenous peoples globally.
In light of the immense challenges that Indigenous peoples face, compounded by the almost complete lack of Indigenous voices within the technology and open data sector, it is important to note that IDS needs to be a multi-stakeholder discussion. In addition, each stakeholder must recognize what their role is in supporting Indigenous communities’ engagement. At the nexus of human rights and technology, all stakeholders are responsible for engagement. In other words, this means that those engaged in the tech sector should actively seek input from Indigenous peoples to inform true co-creation of technology that respects all rights. This also means that Indigenous peoples need to educate themselves on technological advancements that could potentially leave them behind if they are not able to proactively engage as equal voices in these discussions.
Participants at RightsCon 2019 were not without suggestions for how to increase IDS within mainstream open data sectors. These suggestions include:
- Building Indigenous capacity, improving support for infrastructure and employing these trained technologists in Indigenous communities. This would not only allow for the creation of tools and technology that are applicable to Indigenous peoples but allow them to connect with mainstream technologists and begin to drive conversations in the open data and technology spaces.
- Pushing back on the concept that everything needs to be online. The current trend is toward knowledge transfer exclusively on a virtual pathway. Yet, knowledge transfer refers only to knowledge movement from one point to another. Pathways of knowledge are not set and can be built using different mechanisms: print, visual art, and storytelling, to name just a few.
- Creating decentralized systems that can be connected, in order to build greater trust and to counter-surveillance. This can serve community needs and interests. Self-governing mechanisms like these, that are standardized and adhere to compliance structures, can be replicated, thus adding interconnectedness between communities and broader networks.
- Having ownership and control of local infrastructure for data storage and management, including collective knowledge and analysis that reflects this knowledge. For this to be realised, localisation of technology is needed to allow for native language support (written, audio, and visual) that preserves and revitalises culture, alongside governance to support better service delivery and economic development. In doing so, Indigenous communities can be empowered to further achieve their aspirations toward community well-being and sovereignty.
- Forming a network or linking up with the existing networks on Indigenous data to share lessons learnt, sharing and ongoing exchanges in experience.
There are approximately 370 million Indigenous peoples living in 90 countries, with up to 5,000 different Indigenous cultures around the world.³ Yet the representation of Indigenous rights within the open data and technology sector is near non-existent. This forum was a step toward the inclusion of Indigenous agendas within the open data and technology space. However, more work must be done to be inclusive and promote diversity in this space.
Making people count goes beyond simply tracking the numbers. Real engagement requires taking conscious steps to break down dominant ideals of engagement and create solutions to cross cultural and language barriers. We can start by ensuring proactive engagement and building meaningful relationships that go beyond simply engaging with passive presence. Only then can we truly acknowledge and recognise that Indigenous knowledge and expertise is valuable and authoritative.
Additionally, It is overwhelmingly clear that the interconnection of everyday challenges in regaining control of land and natural resources is a key thematic area requiring specific attention. The deep connection Indigenous peoples have to land and their territories embodies much of their traditional customs and cultural identity. It would be worthwhile to further explore the use-case of technology in helping Indigenous peoples reinstate control of Indigenous land and natural resource data and how this can extend to other forms of Indigenous knowledge.
This consortium agrees to take the first necessary steps towards greater awareness raising through:
- Having one meet-up session at the local level to share/spread the knowledge. We will bring back experiences and feedback from this session to the group.
- Creating an Indigenous Working Group. With this group we aim to:
- Screen the Indigenous networks that are already in place to engage them in IDS discussions if they are not already doing so. This could be through initiating and facilitating online forums for discussions on IDS. These can be either open group (for everyone inclusively) or closed group (specifically for creating a safe space for indigenous and ethnic minorities to share among themselves and build trust).
- Bring more Indigenous representatives to the table at tech and open data events such as RightsCon where Indigenous representation is low. Move beyond passive presence to active participation and contributions during conferences.
- Share experiences and tools through the above two modalities as well as raising awareness of indigenous rights to be taken into consideration.
For now, we thank all participants who contributed during the session and offered their time and openness to put Indigenous issues on the human rights/technology agenda. We will work together by bringing these commitments into our communities, workplaces and daily lives. Together we can start to shift the dialogue on Indigenous rights to shape our own narratives in data and technology.
Read about experiences from the Mekong during a discussion session with indigenous representatives from Cambodia, Thailand and Vietnam here.
- Rainie, S., Kukutai, T., Walter, M., Figueroa-Rodriguez, O., Walker, J., & Axelsson, P. (2019) Issues in Open Data — Indigenous Data Sovereignty. In T. Davies, S. Walker, M. Rubinstein, & F. Perini (Eds.), The State of Open Data: Histories and Horizons. Cape Town and Ottawa: African Minds and International Development Research Centre. Print version DOI: 10.5281/zenodo.2677801
- According to UNDRIP Art.3, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” United Nations. (2008). Declaration of the rights of Indigenous peoples. New York: United Nations. https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
- United Nations Department of Economic and Social Affairs. (2009). State of the world’s Indigenous peoples. New York, NY: United Nations Publications. https://www.un.org/esa/socdev/unpfii/documents/SOWIP/en/SOWIP_web.pdf
- Te Mana Raraunga, the Maori Data Sovereignty Network in Aotearoa/New Zealand. Available at www.temanararaunga.maori.nz.
- Kukutai T & Taylor J. (Eds). (2016). Indigenous Data Sovereignty. Canberra: Australian National University Press.