Consulting Canadians on a Framework for Future Space Exploration Activities

We would like to start this two-part post with a reference to two very different and recent news articles from Canada: First, the positive: The Walrus article on First Nations astronomy in Canada.

The second, is the news about a mass grave containing the remains of 215 children has been found in Canada at a former residential school set up to assimilate indigenous people. These two are related because they refer to indigenous peoples and their knowledge, and the attempts to erase that knowledge.

This post is an expanded version of a response the authors wrote to the Canadian Space Agency (CSA) call for consultation with Canadians on Artemis Accords. In October 2020, Canada signed the US-led bilateral Artemis Accords, in order to establish a framework for future space exploration activities. The Accords provide a set of guidelines surrounding the Artemis Program for crewed exploration of the Moon. The project aims to return humans to the moon by 2024 and establish a crewed lunar base by 2030. Our objective is to look at this process from the perspective of Canadian constitutional rights of indigenous peoples, and the relevance of their knowledges for human activities in outer space. Part I focuses on the constitutional and treaty-based relationship between the government of Canada and indigenous peoples, and Part II will focus on the narratives of space exploration and the impact of satellite constellations.

Canada’s position of support and leadership in space exploration has a positive and impressive history. From the development of the CanadaArm and the participation in work on the International Space Station (ISS) to the new scientific contributions with respect to lunar and Martian exploration, Canada has many reasons to be proud.  However, it is worth noting that Canada’s role in space exploration has traditionally neglected to include Indigenous peoples, Indigenous knowledges, and Indigenous rights.  In general, the history of Canadian participation in space exploration did not have a substantial and direct impact on Indigenous peoples’ rights in Canada. With accelerating technological developments in the past twenty years, space has become more accessible for humans.  With these transformations, the current and proposed future of space exploration has the potential to negatively impact Indigenous peoples across Canada. One of the emerging issues for astronomers and various traditions including traditions of Indigenous peoples in Canada and elsewhere, is the launching of so-called satellite mega constellations, such as the SpaceX’s Starlink. Increasing the number of satellites in the Lower Earth’s Orbit (LEO), impacts further research. For various human cultures, Dark Skies have, among others, navigational and spiritual significance. Finally, the objective of our post is to emphasize the need for greater scientific understanding of the universe, which is achieved through research, education and outreach, and inclusion of multiple knowledges and ontologies. Without consultation with multiple knowledges of multicultural and multinational Canada, future space activities might contribute to the ongoing culture of colonization.

We present arguments for the ethical and legal requirements for the CSA to consult with and to be inclusive of Indigenous rights and concerns as Canada moves to support the Artemis Accords.  The Accords trigger a variety of issues in the outer space sector, which are beyond the scope of this brief post. The authors come to this work from two perspectives: the first being a Mi’kmaw astronomer who grew up in Newfoundland and is a status member of the Qalipu Nation, and co-author, a Bosnian-Canadian legal scholar.  Thereby we stress that our contribution is an opinion and has no intent to speak for Indigenous peoples in general and/or any Indigenous-led organization in Canada, or any particular group or community in Canada. Please note that we will be using the terms Indigenous, and Aboriginal interchangeably as we engage with the language of domestic (Canadian) and international documents, publications, institutions, and relevant regulatory and/or administrative bodies. The terms Indigenous and Aboriginal refers to the three different categories of Indigenous peoples in Canada – First Nation, Inuit, and Métis.

We reflect upon the CSA’s obligation to consult Indigenous peoples in Canada via two lenses: Firstly, where does Outer Space Law intersect with the modern and historic treaties between the First Nations and Canada (Crown)?  Do these treaties include the skies and outer space?

Secondly, considering its status as an international (and bilateral) agreement, where the Artemis Accords trigger the application of the United Nations Declaration on the Rights of Indigenous Peoples. Assuming that the Artemis Accords might, and in the situations where they do, trigger any responsibilities and obligations of Canada under the UNDRIP and its domestic laws to consult the First Nations, what are the CSA’s and Canada’s obligations to First Nation, Inuit, and Métis communities and Nations?

We engage with these two points considering the following:

That the questions of Indigenous rights and title in Canada, including the treaty rights, have significant impacts on how Canada consults with the First Nations and other communities and nations in Canada and pursues the ongoing and future space exploration accordingly;

That these questions also require a revisiting of the allegedly prevailing narrative as proposed by some scholars and members of the global outer space sector, generally speaking,  which treats space exploration as an analogy of the colonization of the Americas.

The legal framework of our argument is that of Canadian Constitutional obligations towards indigenous peoples. The relevant cases are discussed and listed in the rest the following sections.

Brief Consideration of Indigenous Rights in Canada

Canada’s obligations to Indigenous peoples under the Canadian Constitution cannot be superseded or undermined by commitments under a bilateral agreement such as the Artemis Accords. These legal obligations include those recognized and affirmed by Section 35 of the Constitution Act, 1982, and those set out in self-government agreements.

We recognize that, in 1985, the Supreme Court of Canada (SCC) concluded that treaties between Indigenous peoples and the Crown were not international treaties but were sui generis treaties (Simon v The Queen, [1985] 2 SCR 387 at para 33).  However, it is worth considering that ‘[f]or many Indigenous peoples, treaties concluded with European powers…are, above all, treaties of peace and friendship, destined to organize coexistence in – not their exclusion from – the same territory and not to regulate restrictively their lives…under the overall jurisdiction of non-Indigenous authorities’ (para 117).

While the United Nations, in documents including the UNDRIP, has recognized the potentially international character of Indigenous Crown treaties (UNDRIP Preamble, art 37(1)), we recognize that Canadian law has yet to consider this international recognition in domestic law. Nevertheless, as Henderson argues ‘any Crown authority over First Nations is limited to the actual scope of their treaty delegations. If no authority or power is delegated to the Crown, this power must be interpreted as reserved to First Nations, respectively, and is protected by prerogative rights and the common law since neither can extinguish a foreign legal system.’. There are plural and ongoing discussions on the status of Aboriginal title in Canada, as well as treaty obligations. It is beyond the scope of our comment to address the extensive international and domestic jurisprudence on the topic. However, we stress the existence of the Crown’s fiduciary duty to Aboriginal People as an aspect of various activities, including Canada’s activities in outer space (See, Annex I). Indeed, ‘The doctrine of Aboriginal rights exists… because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.  It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.’ (Chief Justice Lamer in R. v. Van der Peet, para 30).

Part II of this text can be found here.