What is the real meaning of “self-regulation”?
A comment we run into whenever there is some event involving poor engineering or geoscience is the admonishment, “When will APEGA do something about this?” That question comes as often from registrants with APEGA as it does from the greater public, which is a sign of how poorly we have educated our registrants about how self-regulation works. Every registrant is part of the self-regulation framework. I’ll unpack that assertion.
Even if APEGA had three times our present budget, and three times our present number of staff, we would still be unable to be present for every act of engineering or geoscience that takes place in the province. With over 56,000 individual registrants and 4,600 corporate permit holders executing thousands of engineering and geoscience decisions per day our presence in all those processes is simply not possible.
This is reality with all regulatory and enforcement systems: we can’t be there all the time. The same dynamic exists with police forces, occupational health and safety and fire departments. That this is a readily apparent truth is often missed: if the fire department could be everywhere, always, there would never be loss or death due to fire. The same dynamic applies to engineering and geoscience regulation.
All regulatory and enforcement agencies must make choices about where limited resources flow. Equally critical is awareness of the limits of our authority, as the legislature has marked out boundaries within which we can use coercive authority, and where we may not. The authority to suspend a license to practice is huge, which is the reason there is a legislated process before such a decision can be taken. Since we are always resource limited, always expecting the regulator to be everywhere, doing all things for everyone is unreasonable.
The same is true with all law-making and standards-setting activities. There is no possible way a law or a technical or professional standard can address all possible situations. This is particularly true as regulatory agencies are not typically as expert in the practice of the full range of the profession being regulated. The Regulator is not usually able to write technical standards on every practice area being overseen. Rather self-regulation sets high level expectations of behaviour and how the practice is effected, and registrants are expected to adapt those expectations in individual practice areas.
Particularly in self-regulation systems the onus to regulate rests on every person or corporation which holds a license to practice. This is the core benefit of self-regulation over more purely enforcement activities like policing. In police-like systems there is no legal obligation that citizens make “citizen’s arrests” whenever the law is broken.
Not so in self-regulation where the onus to protect the public is written into our professional Rules of Conduct. In a high-performance self-regulatory framework, everyone licensed to practice is expected to assist in the task of regulating, with the legal Regulator really being the final step in a four-part regulatory process:
1. Registrants regulate themselves by exceeding expected performance and professional standards and supporting regulatory activities.
2. Registrants regulate each other by openly and ethically addressing issues with other registrants which deviate from the established standards.
3. Corporate registrants (permit holders) oversee the practice of staff registrants and other corporate registrants, with added obligation to ensure all registrants in their employ are engaged in self-regulation.
4. Finally, APEGA regulates as the final tier of protection of the public welfare and setting standards and expectations for practice.
The danger in leaving everything to APEGA is apparent. Not only is it impossible for the regulator to be omnipresent, but we do not have the expertise to examine and pass judgement on technical design work. Rather, we look at the processes in place to ensure that design work is done to a high quality including control systems and review systems for design work. What impression would it leave the public if APEGA disciplined an engineer for unskilled practice, and it later turned out that many registrants had already encountered that person’s unskilled practice in prior years, but had done nothing about it? (we do hear about this)
The APEGA Guideline for Ethical Practice sets this out in the discussion under Rule of Conduct 5 (included below) at paragraph 4.5.3, Reviewing the Work of Other Professionals:
A professional should not call into question the professional conduct or technical competence of another professional member without first consulting that member to attempt to determine the relevant facts.
If a member determines, or has reasonable and probable grounds to believe that the professional conduct or the technical competence of another professional member is in serious question, he or she has a clear and definite duty to inform APEGA accordingly.
This highlights the most present threat to the continued survival of self-regulation, the charge that professions will always opt for self-preservation over protection of the public. This dynamic has resulted in dramatic changes to regulatory structures throughout the United States, and in different ways throughout the Commonwealth and in some other provinces. Canada is one of the last places where self-regulation still exists in a traditional form. If we value the privilege of self-regulation and wish to maintain the present framework every registrant must be an active part of self-regulation.
Other materials
Rules of Conduct 1 and 5 are particularly relevant.
1 Professional engineers and geoscientists shall, in their areas of practice, hold paramount the health, safety and welfare of the public and have regard for the environment.
5 Professional engineers and geoscientists shall uphold and enhance the honour, dignity and reputation of their professions and thus the ability of the professions to serve the public interest.
From the APEGA Guideline for Ethical Practice, paragraph 4.1.2:
Professionals should also be vigilant in areas beyond their direct professional responsibility. They have an obligation to report conditions which present a material, immediate threat to safety, health, welfare, or the environment. These conditions should be reported first to those professionals who are responsible; if a satisfactory response is not forthcoming, then it should be reported to appropriate corporate or regulatory authorities.
A professional should not call into question the professional conduct or technical competence of another professional member without first consulting that member to attempt to determine the relevant facts. If a member determines, or has reasonable and probable grounds to believe that the professional conduct or the technical competence of another professional member is in serious question, he or she has a clear and definite duty to inform APEGA accordingly.
Emerging Regulatory Realities (now dated)
Emerging Regulatory Realities January 2020
A paper I wrote and kept updated the years I worked guiding the regulatory apparatus for 55,000 engineering and geoscience license holders, a high level view of the strategic landscape for professional regulation.
It’s a bit dated in terms of references, but the themes are consistent. The only aspect I’d add is that the general move to deregulation is a common trend across all Western governments regardless of political doctrine. Regulation is classically seen as a safety net to protect the public against shoddy or negligence work by professionals. Today it’s recharacterized as an expense like any other and needs to be justified through a cost-benefit approach. That’s not bad as an approach as regulation should be justified…BUT, it implies that in some cases cost may win out. That is where most of the mischief happens, like the FAA declining to require Boeing to rework mandatory parts of construction that it just stopped doing (copper foil lining of 787 wings for lightning protection as the case in point). The concept of ‘regulatory capture’ is even under attack to be re-defined as what happens when a regulator is allowed to over-regulate (eg, exactly the opposite of what the term means).
Goal: The goal of this review is to outline the changing landscape facing Canadian regulators from both domestic and international regulatory trends. This paper will outline the major influencers on the engineering and geoscience profession. Footnoted references are included for background.
A. The Cultural Landscape: The chief cultural shift impacting Western culture is a movement from the modern era to the post-modern era developing through the mid- to late-twentieth century.
- Post-modernism reflects foundational skepticism or outright rejection of the assumptions of Enlightenment rationality.[i] Claims to authority are automatically distrusted as self-serving.
- Oxford Dictionary’s 2016 word of the year was, “post-truth”.[ii] This presumptive skepticism is one of the themes leading to a loss of self-regulation globally.
B. Access to Knowledge: The levelling of the access to knowledge continues to reinforce a presumption of greater wisdom and capability than ever existed before.
- This is the principle development Richard Susskind discusses in his 2017 book, The Future of the Professions. Susskind asserts that the leveling of knowledge and the rise of expert systems will eventually eliminate the need for many professions (he deals explicitly with physicians, teachers, accountants, architects, clergy, consultants and lawyers but not engineers or geoscientists).
- A missing aspect of Susskind’s hypothesis is the practical application of knowledge as a necessary part of professional practice, a core aspect of engineering and geoscience.[iii] While you can learn about bridge design from Google, moving from knowledge to design and construction is a gap that will not be easily bridged by the leveling of access to information or use of expert systems.[iv] The same can be said of a medical diagnosis or filling a cavity in a tooth.
- There will be a day when automation and robotic technology will transform professions like dentistry and medicine. When that will be physically realized is still not clear.
C. Public Expectation: The expectation is a regulated profession should eliminate 100% of all malpractice, unskilled and unprofessional practice.
- Is it possible for any regulator, following any model of regulation, to guarantee 100% safety of the public welfare?
- Consider the August 2018 article, “Our Health Care System protects bad doctors and nurses and endangers patients”.[v] The case of nurse Elizabeth Wettlaufer is popularly cited as an example of regulatory failure when her professional deviation was being a serial killer.[vi]
- A similar example is the structural engineer responsible for inspecting the Algo Mall in Elliot Lake. Robert Wood’s license was already suspended, and he altered the mall inspection report after it was authenticated by a P.Eng. supervisor.[vii] No regulatory framework can capture all incidents where an individual or a corporation decides to break the law or ignore disciplinary sanctions (and neither do the police capture all crime).
- Regulatory reality: loss of regulatory authority is not usually motivated by rationality, but by sentiment. How much regulation is enough? At least an iota more than existed before an index incident.
- Also reinforced by more public calls for transparency, public involvement and demands for justice considering failures. Some regulators are proactively moving to models involving informal lay involvement (public advisory panels) in anticipation of this change being legislated.
D. Government Intervention: Governments globally have demonstrated willingness to intervene more directly in professions.
- The recent Professional Regulatory Review conducted of 5 natural resource regulators in British Columbia, including engineering and geoscience, is an example.[viii] The end of self-regulation for BC teachers[ix] and the BC Real Estate Council[x], and the Quebec government placing L’Ordre des ingénieurs du Québec under trusteeship[xi] are all recent examples of that type of intervention.
- The Professional Reliance Review was initiated based partly in the failure of a tailings retention dam at the Mount Polley mine and partly in frustration with the way a complaint was dealt with by Engineers and Geoscientists British Columbia. The complaints concerned conflict of interest allegations directed at engineers designing a toxic soil storage site on Vancouver Island at Shawnigan Lake, dismissed by the regulator after investigation. One of the principle opponents of that waste site is now a Green Party MLA in the BC coalition government. The review was written into the coalition agreement between the two parties.[xii] These diverse factors led the government to impose the review.[xiii]
- The result is new legislation that includes changes such as an independent oversight agency (a superintendent of regulators), and merit-based government appointment of public members for half of governing council members.[xiv] The remaining half of elected councilors also require merit-based pre-authorization prior to being added to the ballot.
- At least a part of the intervention is based in the expectation of zero failures, reasoned this way: If self-regulation is working, there will be no failures. There have been failures; therefore, self-regulation is not working.
- The investigation into the Mt. Polley tailings dam failure did not recommend increased regulation as a probable solution to the failure. The expert panel recommended advanced technology as a means of moving toward a zero-failure rate, contrasted with 100-year-old approaches to dam construction.[xv]
- EGBC has recently commenced disciplinary action against three engineers involved in the tailings dam.[xvi]
E. Unavoidable Pecuniary Interest: Self-regulated professions are globally seen by the public as focused first on economics and success of the membership and public welfare only secondarily.
- Self-regulated professions are seen by the public as unavoidably in conflict of interest as financial considerations win out over public welfare considerations. This is sometimes demonstrated factually (North Carolina State Dental Board teeth whitening case[xvii]) but is also carried as a public opinion matter.
- This is a global trend and a factor in the wide-spread imposition of lay majority governance in the USA self-regulatory sector and revisions to self-regulation throughout the Commonwealth.
F. Reduction in Regulatory Burden: Governments globally are seeking to reduce regulatory burden on industry and citizens.
- Changing global models of regulation. Canada is among the last still widely using self-regulation, beginning to be replaced by other approaches: lay regulation (BC Real Estate Council), government regulation (BC teachers), amalgamation into umbrella regulators (BC nurses). It is also common to see a move away from joint association/regulator model, as happened in health professions.
- The focus on reduction of regulatory burden is apparent throughout the Commonwealth and the USA. The “Fit for the Future” review undertaken by Scotland’s legal services is one example.[xviii]
- This trend of fewer regulators and amalgamation of existing regulators was reflected in the Government of Alberta’s review of ABC’s, which had as a goal the rationalization of existing ABCs and amalgamation or elimination where possible (and started under the prior government). 75 agencies were dissolved or amalgamated by October 2017.[xix] This is also happening in BC, where a November 2019 consultation paper proposes reducing 20 health profession colleges to 5.[xx]
- Danger in the rise of “regulatory capitalism”. Scholar Charles Perrow issued a call in 2015 to identify the risks created by a movement to allow industries to self-regulate without arms-length oversight.[xxi] This is the result of broad moves to de-regulate or reduce regulatory burden on industry. Two current examples supporting Perrow’s assertion are the Boeing 737 Max and the state of buildings in New Zealand and Australia (where engineering legislation is now being imposed because of poor building construction).[xxii]
G. End of the Social Contract? Self-regulated professions have operated under the historic social contract since inception. Items A to F above suggest that social contract is nearing end of life.
- The social contract is based on 4 key assumptions:
- 1. Interests of the public and the profession are well aligned.
- 2. Non-professionals are assumed incapable of understanding or judging the specialized expertise of the profession.
- 3. The profession is judged to be particularly virtuous because of the values expressed in codes of conduct and behaviour.
- 4. The profession is believed willing to take decisive action where there is a professional deviation.[xxiii]
- The UK medical profession lost self-regulation in 2003 after a series of widely publicized deviations by physicians (murder, sexual assault and incompetence primarily). This included imposition of a “super-regulator” with oversight authority, adoption of a balanced lay/professional model of governance, independent and merit-based appointment of all council members (no more elections or nominations), and the loss of oversight of standards, license renewal requirements, continuing competence requirements and the discipline process.
- Global trends motivated by changes in Western culture have led to the destruction of deference to professions and the decline of professional authority. Public discourse has already established in some quarters that self-regulating professions are public welfare-reducing for society at large.[xxiv]
- This movement tends away from trust-based systems, which is the basis for the social contract, to confidence-based systems where public welfare is underwritten by external and public-centred oversight of the profession.
H. Adoption of Right-Touch Regulation: The Commonwealth best practice comes from the UK health regulator, the Professional Standards Authority (PSA). “Right-touch regulation” uses a risk-based framework to assess acceptable regulatory burden.[xxv]
- Right touch regulation is regulation that follows guiding risk-based principles:
- Identify the problem before the solution
- Quantify the risks
- Get as close to the problem as possible
- Focus on the outcome
- Use regulation only when necessary
- Keep it simple
- Check for unintended consequences
- Review and respond to change.[xxvi]
- Right touch regulation targets regulatory efforts to only those things which absolutely demand regulatory oversight. This approach is integrated and developing with some APEGA regulatory functions (eg. Board of Examiners, Appeal Board, Practice Reviews).
- One question is the applicability of conclusions about one profession (health care) to all other professions.
- EGBC completed a voluntary audit by the PSA to the Right Touch Regulation governance standards in 2018.[xxvii] This did not alter the Professional Reliance Review process.
- PEO underwent a PSA audit.[xxviii] The BC College of Dental Surgeons and Saskatchewan Registered Nurses have also recently been audited.[xxix] The Dental College report contains very wide-ranging recommendations which would dramatically shift the way self-regulation is carried out in that college.[xxx]
I. Globalization: The globalization of commerce and commodification of knowledge are both impacting engineering and geoscience professions. Increased off-shore provision of engineering and geoscience services is apparent.
- Ten years ago, was common to see portions of projects let to independent engineering shops overseas (20/80 split). Now some projects are nearly completely designed in off-shore shops owned by Canadian firms (80/20).[xxxi] The next stage is likely to be letting of projects entirely to off-shore firms. This raises issues with the unique Canadian environmental challenges.[xxxii]
- Challenge is ensuring public welfare through regulation of permit holders not in Alberta; and increasing numbers of applicants who have >2 years Canadian code & climate experience but have never worked in Canada (cultural competence).
- How do you regulate a professional who is practicing in another country, but providing services remotely into your jurisdiction? This received legal attention with respect to internet eyeglasses and pharmacies, but the trend is toward the wholesale provision of a full spectrum of professional services remotely.[xxxiii]
- There is probably little danger today in someone attempting to build a bridge or remove their appendix after watching a YouTube video, but the regulatory challenges are real. How might we deal with an engineering design and build done in Mumbai or a physician offering remote medical diagnostic services from Dubai? Or considering the advent of remote robotic surgery, a physician who might be performing surgery from another country or province? Or a person who watches some DIY videos and then proceeds to electrically rewire their business?
- Finally, the impact of globalization is increasingly presenting a challenge to regulators striving to protect the public welfare in situations where jurisdiction is severely limited. For example, the provision of complete engineering services (including authentication) by an off-shore permit holder staffed entirely with Licensees. How does APEGA regulate professionals and corporations which operate entirely in a different country? The same question may be asked about work performed in other provinces of Canada.[xxxiv] Furthermore, APEGA does not likely have the latitude to decline to register those foreign entities or individuals based on a presumption of an inability to fully regulate.[xxxv]
J. Human Rights Challenges: There will be continued tension between social justice pressures to quickly license newcomers to Canada and the need to maintain standards of education and experience.
- Risk of human rights challenges. Mihaly found prima facie discrimination existed in assigned confirmatory exams but was justified because of APEGA’s role in protection of the public welfare. (2016 ABQB 61)
- The root of much of the tension is the varied use of the term ‘engineer’ globally, and the reality that in some parts of the world it means a different type of education and experience than in Canada.
- Some foreign universities issue degrees with titles which imply equivalence with Canadian programs, but which are literal years apart in terms of quantity of education received.
K. Positive Social Change/Public Value: A new approach for regulatory bodies is to demonstrate to public and government that it is a force for positive social change in the society – not only protecting the public welfare, but actively working to better things for all. An alternative is the question of creation of public value by regulators.[xxxvi]
- Continued assertions that self-regulation is best model are no longer compelling. Regulators need to demonstrate we are developing positive social change or public value that cannot be delivered by other regulatory approaches.[xxxvii] What is the unique value added that only a self-regulatory style agency can offer?
- Increased onus for regulators to demonstrate they are promoting positive social change, not just protecting market share, member benefits and the status quo.
- The notable rise of both voice of and attention to marginalized groups such as Canada’s Indigenous Peoples and demands for greater representation for any historically under-represented groups.[xxxviii] (APEGA 2018 membership 0.42% Indig)
L. Emergent and Disruptive Technologies: This could be the subject of an entire paper unto itself, mentioned here for completeness.
- Emergent and disruptive technologies such as artificial intelligence, autonomous vehicles (on ground and in the air), and software engineering challenge traditional regulation. Combined with increasing interdisciplinary work, including work that crosses major fields of study such as engineering, medicine, chemistry and physics (biomedical engineering, nanotechnology, pharmacology), there are many new challenges since our regulatory framework was developed.
- Emergent technologies are a historic constant for engineering and geoscience. Bridge building encountered steel as a new technology, and engineers had to adapt to the changes to continue to serve the public welfare. Likewise, the development of aircraft pressurized cabins permitted higher, faster flight but introduced new failure modes such as cyclical fatigue which needed to be investigated and integrated into the design process. We have been here before.
M. Reconciliation with Indigenous Peoples: A national focus but not yet seriously engaged by any engineering regulator except for EGBC.
N. Practice Rights for Other Technical Groups: Along with the efforts by technologists we have recently seen an initiative to create a “Professional Master Electrician” along with an “authentication” seal. Other professions working in the technical regulatory space (ABSA, AER, Foresters, Agrologists, Chemists) may have cross-over areas.
O. Tightening Financial Margins: Market forces are motivating engineering and geoscience firms to look for ways to further trim the cost of business.
P. Loss of Regulatory Authority Through Legal Action: Potential loss of regulatory authority when testing the jurisdiction of the Act.
Q. Loss of Membership: Depending on the relevance of the profession in the future there may be less perceived value in holding a license for the lifetime of a practitioner. This would reduce membership to levels more comparable to the USA.
Afterword
An excellent article by Jim Casey of Field Law in May 2019 echoes many of these same themes. I’ll include his concluding summary of context below.
It is important to understand the broader context for these dramatic events of the past 6 months including:
- From my experience working in the area of professional regulation for the past 30 years, I consider that societal and political skepticism in Canada of the societal value of self-regulation is at an all-time high.
- Trends towards establishing independent oversight bodies.
- Trends towards amalgamation of Colleges including the three nursing Colleges in B.C.
- Trends towards rebalancing Councils to include a majority of public members.
- Rethinking the role of Councils and considering the possibility of merit-based appointments rather than electing members.
- The loss of self-regulation of the real estate profession in B.C.
- Governments taking control of a number of professions across Canada.
- Media stories about the self-regulating professions have an unrelenting focus on concerns about a lack of transparency.
- The McMaster Report on the governance of the health professions in Ontario recommending dramatic changes.[xxxix]
[i] Engineering and geoscience thought is highly conditioned by Enlightenment rationality. This is one reason engineers and geoscientists find post-modern thought irrational. The impact on the greater cultural context is still important, and this is the primary impact on professions.
[ii] Defined as: ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief’.
[iii] Susskind also speaks to this dynamic apocalyptically for the legal profession in The End of Lawyers (2010).
[iv] The video presentation of the Mt Polley investigation is an example of the knowledge base required to work in engineering or geoscience. Geologic systems are very complex, and no amount of googling would allow a lay person to undertake either the initial design of a tailings dam, or the analysis of the failure of one.
[v] https://ipolitics.ca/2018/08/17/bad-doctors/
[vi]https://www.thestar.com/news/canada/2017/06/12/nurses-college-under-fire-over-wettlaufer-case.html
[vii] https://www.attorneygeneral.jus.gov.on.ca/inquiries/elliotlake/report/index.html
[viii]https://engage.gov.bc.ca/app/uploads/sites/272/2018/06/Professional_Reliance_Review_Final_Report.pdf
[ix] https://www.clearhq.org/resources/Documents/LudvigsenWredenhagen%20Presentation.pdf
[x] https://www.recbc.ca/about/council-members.html
[xi]https://www.canadianconsultingengineer.com/companies-people/quebec-licensing-body-hopes-to-heal-engineering-firms-reputations/1002370858/
[xii] https://thetyee.ca/Documents/2017/05/30/BC%20Green-BC%20NDP%20Agreement_vf%20May%2029th%202017%20copy.pdf p. 6. “…and address failures in the professional reliance model in BC so that British Columbians’ faith in resource development can be restored.”
[xiii] https://en.wikipedia.org/wiki/Mount_Polley_mine_disaster see also https://biv.com/article/2017/08/investigation-clears-engineers-shawnigan-lake-cont
[xiv] https://engage.gov.bc.ca/app/uploads/sites/272/2018/06/Professional_Reliance_Review_Final_Report.pdf
[xv] https://www.mountpolleyreviewpanel.ca/final-report
[xvi]https://www.egbc.ca/Complaints-Discipline/Discipline-Notices
[xvii] USA Supreme Court case: North Carolina State Dental Board of Dental Examiners v. FTC the dental board was found to be too focused on self-interest of membership which led to the wholesale imposition of lay majority governance structures throughout self-regulated professions in the USA. https://en.wikipedia.org/wiki/North_Carolina_State_Board_of_Dental_Examiners_v._FTC
[xviii]https://www2.gov.scot/About/Review/Regulation-Legal-Services
[xix] In phase 1 of the ABC review 56 agencies were dissolved or amalgamated (November 2016). In phase 2, October 2017, an additional 19 agencies were identified for amalgamation or closure. This collaterally included reduction in pay for senior officials and CEOs serving on those ABCs. https://www.alberta.ca/release.cfm?xID=4888085F85AC9-B46E-93F4-94682C1FF01FDBDF
[xx] https://engage.gov.bc.ca/app/uploads/sites/578/2019/11/Modernizing-health-profession-regulatory-framework-Consultation-Paper.pdf
[xxi] Perrow, Charles. “Cracks in the ‘Regulatory State.’” Social Currents, vol. 2, no. 3, 2015, pp. 203–212. (copy available).
[xxii] The collapse of the CTV building in the Christchurch earthquake was attributed to unskilled structural engineering. https://www.telegraph.co.uk/news/worldnews/australiaandthepacific/newzealand/9733828/Christchurch-earthquake-collapsed-building-was-poorly-designed-and-constructed.html
[xxiii] M. Dixon-Woods, K. Yeung and C. Bosk, ‘Why is UK Medicine No Longer a Self-Regulating Profession? The Role of Scandals Involving “Bad Apple” Doctors’ (2011) 73(10) Social Science and Medicine 1452. (copy available)
[xxiv] Ibid.
[xxv] https://www.professionalstandards.org.uk/publications/discussion-papers
[xxvi] https://www.professionalstandards.org.uk/docs/default-source/publications/thought-paper/right-touch-regulation-2015.pdf
[xxvii] https://www.professionalstandards.org.uk/publications/detail/review-of-the-legislation-and-governance-for-engineers-and-geoscientists-in-british-columbia
[xxviii] https://www.professionalstandards.org.uk/publications/detail/review-of-the-regulatory-performance-of-peo
[xxix] https://www.professionalstandards.org.uk/publications/international-reports
[xxx] https://www.professionalstandards.org.uk/docs/default-source/publications/inquiry-into-the-performance-of-the-college-of-dental-surgeons-of-british-columbia.pdf?sfvrsn=ab897420_0
[xxxi] Those ratios were provided in an informal discussion about industry trends, and are not back with a reference.
[xxxii] Muskrat Falls Inquiry, Executive Summary, p. 31. https://www.muskratfallsinquiry.ca/ Concerns with the concrete contractor Astaldi’s experience with cold-weather concrete work were identified, and the company was eventually removed from work. https://www.cbc.ca/news/canada/newfoundland-labrador/muskrat-falls-formworks-findings-1.4093438
[xxxiii] Eye glasses: 2018 ONSC 206, http://canlii.ca/t/hq3bq; Pharmacy: 2013 ONCA 381, http://canlii.ca/t/fz49z. The eyeglasses case was overturned by the Ontario Court of Appeal, stating that dispensing of prescription lenses could be done through the Internet with mail delivery. http://www.visionmonday.com/latest-news/article/essilor-wins-legal-victory-in-ontario-online-eyewear-dispute/
[xxxiv] Provincial regulators have no authority to enforce Alberta legislation in other jurisdictions. This would render actions such as practice reviews or investigations consensual as this would be the only basis on which APEGA could enter another country/workplace to carry out its legislative mandate.
[xxxv] This is partly due to the use of obligatory language in the legislation, for example in the General Regulation, 14(1) for Licensees: “A person who meets all of the requirements of section 13 for registration as a professional member, except the requirement set out in section 13(1)(a), is entitled to be registered as a licensee.” Entitlements are typically non-discretionary decisions of administrative bodies, ie. if an applicant meets the requirements, registration cannot be refused.
[xxxvi] Cf. Mark H Moore, Recognizing Public Value (2013) and Creating Public Value: Strategic Management in Government (1995). Both Harvard Press.
[xxxvii] Consider, for example: Tracey L. Adams, “Self-regulating professions: past, present, future.” Journal of Professions and Organization, 2017, 4, 70–87 (https://doi.org/10.1093/jpo/jow004). Stephan et al. “Organizations Driving Positive Social Change: A Review and an Integrative Framework of Change Processes.” Journal of Management Vol. 42 No. 5, July 2016 1250–1281 (https://doi.org/10.1177/0149206316633268). Paul D. Paton, “Between a Rock and a Hard Place: The Future of Self-Regulation—Canada between the United States and the English /Australian Experience.” The Professional Lawyer, Fall 2008 (https://clp.law.utoronto.ca/sites/clp.law.utoronto.ca/files/documents/Self-Regulation.pdf).
[xxxviii] This can no longer be limited to just calls for gender equality as there is emerging a multitude of potential diversities which must be equally respected.
[xxxix] https://www.fieldlaw.com/News-Views-Events/149707/Professional-Regulation-The-Political-Winds-are-Blowing
Other References
Sparrow, Malcolm K., The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance., Brookings Institute Press, Washington, D.C. 2000.
What is Self-Regulation? August 22, 2019
A comment we run into whenever there is some event involving poor engineering or geoscience is the admonishment, “When will APEGA do something about this?” That question comes as often from registrants with APEGA as it does from the greater public, which is a sign of how poorly we have educated registrants about self-regulation.
Every registrant is part of the self-regulation framework. I’ll unpack that assertion.
Even if APEGA had three times our present budget and three times our present number of staff, we would still be unable to be present for every act of engineering or geoscience that takes place in the province. With over 56,000 individual registrants and 4,600 corporate permit holders executing thousands of engineering and geoscience decisions per day our presence in all those processes is simply impossible.
This is reality for all regulatory and enforcement systems: we can’t be there all the time. The same dynamic exists with police forces, occupational health and safety and fire departments. That this is a readily apparent truth is often missed: if the fire department could be everywhere, always, there would never be loss or death due to fire. The same dynamic applies to engineering and geoscience regulation. Since we are always resource limited, always expecting the regulator to be everywhere, doing all things for everyone is unreasonable.
All regulatory and enforcement agencies must make choices about where limited resources flow. Equally critical is awareness of the limits of our authority, as the legislature has marked out boundaries within which we can use coercive authority, and where we may not. The authority to suspend a license to practice is huge, which is why the legislature made law describing the process before such a decision can be taken.
The same is true with all law-making and standards-setting activities. There is no possible way a law or a technical or professional standard can address all possible situations. This is particularly true as regulatory agencies are not typically as expert in the practice of the full range of the regulated profession. The Regulator is not usually able to write technical standards on every practice area being overseen. The Regulator sets high level expectations of behaviour and how the practice is affected, and registrants are expected to adapt those expectations in individual practice areas.
Particularly in self-regulatory systems the onus to regulate rests on every person or corporation which holds a license to practice. This is the core benefit of self-regulation over more purely enforcement activities like policing. In police-like systems there is no legal obligation that citizens make “citizen’s arrests” whenever the law is broken.
Not so in self-regulation where the onus to protect the public is written into our professional Rules of Conduct. In a high-performance self-regulatory framework, everyone licensed to practice is obligated to play a role in regulation, with the Regulator really being the final step in a four-part regulatory process:
- Registrants regulate themselves by exceeding expected performance and professional standards and supporting regulatory activities.
- Registrants regulate each other by openly and ethically addressing issues with other registrants which deviate from the established standards.
- Corporate registrants (permit holders) oversee the practice of staff registrants and other corporate registrants, with added obligation to ensure all registrants in their employ are engaged in self-regulation.
- Finally, APEGA regulates as the final tier of protection of the public welfare and setting standards and expectations for practice.
The danger in leaving everything to APEGA is apparent. Not only is it impossible for the regulator to be omnipresent, but we do not have the expertise to examine and pass judgement on technical design work. Rather, we look at the processes in place to ensure that design work is done to a high-quality including control systems and review systems for design work. Registrants act as the eyes and ears of the overall system as they are the first ones who will encounter unprofessional conduct or unskilled practice. This is the reason registrants are legally obligated, through the Rules of Conduct, to take action when they encounter problematic professional practice.
The APEGA Guideline for Ethical Practice sets this out in the discussion under Rule of Conduct 5 (included below) at paragraph 4.5.3, Reviewing the Work of Other Professionals:
A professional should not call into question the professional conduct or technical competence of another professional member without first consulting that member to attempt to determine the relevant facts.
If a member determines or has reasonable and probable grounds to believe that the professional conduct or the technical competence of another professional member is in serious question, he or she has a clear and definite duty to inform APEGA accordingly.
This highlights the most present threat to the continued survival of self-regulation, the charge that professions will always opt for self-preservation over protection of the public. This dynamic has resulted in dramatic changes to regulatory structures throughout the United States, and in different ways throughout the Commonwealth and in some other provinces. Canada is one of the last places where self-regulation still exists in a traditional form. If we value the privilege of self-regulation and wish to maintain the present framework every registrant must be an active part of self-regulation.
Other materials
Rules of Conduct 1 and 5 are particularly relevant. (from the General Regulation to the Engineering and Geoscience Professions Act).
1 Professional engineers and geoscientists shall, in their areas of practice, hold paramount the health, safety and welfare of the public and have regard for the environment.
5 Professional engineers and geoscientists shall uphold and enhance the honour, dignity and reputation of their professions and thus the ability of the professions to serve the public interest.
From the APEGA Guideline for Ethical Practice, paragraph 4.1.2:
Professionals should also be vigilant in areas beyond their direct professional responsibility. They have an obligation to report conditions which present a material, immediate threat to safety, health, welfare, or the environment. These conditions should be reported first to those professionals who are responsible; if a satisfactory response is not forthcoming, then it should be reported to appropriate corporate or regulatory authorities.
How is the effectiveness of regulation measured?
Measuring the Effectiveness of Regulation
This was the problem definition I wrote for our attempted start of a contract with qualitative measurement specialists when working with the engineering regulator.
Regulatory Measurement: How do we prove we’re protecting the public?
Most regulators, be they self-regulatory associations or government regulators like the Ministry of the Environment, report on performance using production metrics. How many investigations led to discipline hearings and what was the average length of time to a decision are typical.1 For a government regulatory department that may include numbers of inspections conducted or numbers of citations or tickets issued. These are important measures of capacity and activity, but production metrics do not immediately support a conclusion that the public is being protected.
One can make the argument that 72 complaints investigated and resolved is safer for the public than no complaints investigated. However, if the universe of situations that required investigation is sized at over 7,000 incidents, 72 now seems wholly inadequate. The question of how much public protection is gained for a given cost or for a given volume of legislation is not answered by present approaches.
Looking at unlicensed practice or misuse of reserved title, APEGA reviews about 400 cases per year. Whether that is a high or low number is unknown because we do not have knowledge of the total universe of unlicensed practice or misuse of title. The challenge is like that faced by the police with crime statistics: is an objective drop in crime due to police action, due to other societal changes, or due to a reduction in the reporting of crimes by victims? For example, the number of practice reviews of licensed firms is not a direct measure of public value it is a measurement of intensity of effort.
Regulatory legislation reflects a governance trade-off founded in the social contract between professions and the public: you grant us the authority to control access to the profession, we will ensure that profession will always act in the best interests of the public. State-imposed laws that protect title and practice and create a literal monopoly for a certain segment of services. The willingness of the body politic to continue to support such a regime requires that those professions be able to demonstrate credible public value in placing economic limits on the market.
Most citizens of first-world countries take quality engineering and geoscience for granted. They accept that the current system (which is mostly a black box) keeps them protected. It’s only when major incidents occur that they attempt to understand the issue and determine who should be held to account.2 This means that regulators like APEGA are typically one major incident away from losing social license. Further, governments are demonstrating more willingness to intervene in the affairs of previously sacrosanct institutions like professional regulatory associations
Government willingness to intervene in the affairs of previously sacrosanct institutions like professional regulatory associations has increased.3 Those associations lack substantial defense against such challengers due to the lack of an effectiveness evaluation framework that allows protection of the public to be rendered somehow measurable. Some theorists (Mark H. Moore) suggest the appropriate metric in these cases is public value, which also resists direct measurement.
Our questions:
- What public value is created by APEGA’s activities?
- How is that public value measured and demonstrated in a compelling way?
- Is there a better way to measure protection of the public?
References
Moore, M. (1995). Creating public value: Strategic management in government. Cambridge, Mass.: Harvard University Press.
Moore, Mark H. (2013). Recognizing Public Value. Cambridge, Mass.: Harvard University Press.
Moore, Mark H. (2014) “Public Value Accounting: Establishing the Philosophical Basis”. Public Administration Review, Vol. 74, Iss. 4, pp. 465–477. (available on request)
Sparrow, Malcolm. (2008). The Character of Harms: Operational Challenges in Control. Cambridge University Press.
A Reflection/Devotion on Atonement and Reconciliation
Devotion & Prayer for King’s Board of Governors, 22 March 2024
I was asked recently to teach a class to graduating engineering students about engineering and Indigenous reconciliation. It’s led to reflection on what that word ‘reconciliation’ means and how it’s attempted regularly without success. As the whole idea of reconciling is fairly core to our understanding of our faith and relationship to the Creator and to each other, this is what came from my discernment about an opening devotion for today, and it is Lent, an appropriate time to talk about reconciliation and atonement.
I get asked often if I believe that reconciliation with Indigenous is a possibility. As we live today, I do not believe it is likely to be achieved in any real or lasting way. When discussing this in engineering contexts I describe these as immiscible cosmologies – unmixable, like oil and water. In our communities of faith we encounter similar immiscible situations, and indeed our Christian history is full of all sorts of horrors that tie right back to irreconcilable worldviews. I resigned my license as a pastor in 2022 for exactly that reason – an inability to reconcile myself to continued harmful patterns of behaviour against Indigenous and clergy sexual abuse survivors in my denomination.
Why that is true in our communities of faith isn’t just an Indigenous reconciliation matter, it impacts our ability to be reconciled to all sorts of people and things in impaired relationship. Part of the root of this is our inability to focus on a necessary pre-condition for reconciliation, atonement. Atonement and reconciliation are used interchangeably in modern discussion and bible translation, but reflect different things which bring about different changes in relationship. If I do something that causes you injury, I can apologize for the harm I’ve caused, commit to not repeating it, you accept my apology by offering forgiveness, and we are reconciled. Atonement speaks to a much deeper fracture, one that usually involves a large power differential between the parties, and an injury that is both broad and deep in its impact – whole nations unsettled for generations types of harms. Harms that require massive effort by the harming party to atone, as a precondition of reconciliation. With roots deep in Hebrew tradition that continues today in aspects of yom-kippur (The Day of Atonement) and is taken deep into Christian theology to describe Christ’s action and how it allows us to individually atone with God. But, the depth and scope of the idea of atonement is today mostly a gloss, and so most attempts at reconciliation fizzle as we miss the necessary first steps.
It really clicked for me when I read the TRC’s definition of reconciliation: “. . . Reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, an acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.”
This definition is from a secular community – the TRC. Yet it gets reconciliation is necessarily preceded with atonement. It’s not something I’ve noted as broadly present in our Christian communities, certainly not in a form that translates routinely into action.
This week I listened to a presentation about the Linnii rematriation project – the Blood Nation’s reintroduction of Plains Bison to their land starting four years back. The changes they’re documenting to the native prairie as the bison interact for the first time in 200 years are incredible, the return of species not seen in this lifetime, the transformation of the plants. The bison bring healing to the land. This is an image of Indigenous-led atonement for historic harms to the ecosystem.
I’m going to tell two short stories about atonement without getting into the theology – this is a very Indigenous approach. These are both from my home territory, Red River. I do this deliberately as I’ve found encounters in our present space and time create immediate reactions that obscure the teaching behind the story. I could easily find very similar stories from today’s context in this territory. Easily. The present issues over tailings pond leaks from Imperial Oil’s Kearl site is the same sort of concern.
The first story involves Shoal Lake #40 First Nation, a 100-year story of harm. In the early 1900’s Winnipeg was searching for a secure and clean supply of water to resolve repeated typhoid outbreaks. Engineers selected Shoal Lake about 160 kilometers to the east. A long concrete siphon aqueduct was completed in 1919, an engineering marvel of the day, and still the source of Winnipeg’s potable water supply. To build the intake near the mouth of the Falcon River, the First Nation dwelling there was forced to relocate to a peninsula in the lake alongside Indian Bay. To ensure a supply of clear water, a canal was dug across the base of the peninsula, converting the peninsula into an island, cutting off the only road access to the relocated community.
The construction of the aqueduct, a lengthy dike, and the new land for the reserve consumed all the local gravel supplies, excavated the nation’s traditional burial grounds, and transferred 3000 acres of previous reserve lands to the City of Winnipeg’s ownership. Building safe water for Winnipeg literally consumed the community and its burial areas.
Over the next 100 years the reserve could only be reached by ferry. Numerous drownings happened in the winter months as people crossed the ice to access the mainland. In 1997 the City of Winnipeg needed to build a water treatment plant to deal with deteriorating water quality, which also marked the start of a 25-year long boil water advisory for Shoal Lake First Nation who had no water treatment plant.
Shoal Lake First Nation began advocating publicly in 2007. In 2014 with the opening of the Canadian Museum of Human Rights in Winnipeg, Shoal Lake citizens camped outside the museum for 4 days. Central to the exterior of the museum are reflecting pools offered as a “healing” element for harms to human rights. Reflecting pools filled with water from Shoal Lake. The museum supported this action, brought wood for the sacred fire, and provided other supports such as food and washrooms.
Around the same time the Mennonite Church became involved in advocacy and musician Steve Bell became engaged, promoting what was called Freedom Road. Some 100 local churches in Winnipeg (a fraction of the total) took on the project, placing notices on sign boards and undertaking an advocacy campaign. Finally in 2019 two bridges were built, followed in 2021 by a water treatment plant ending the boil water advisory. There were adults in the Shoal Lake community who had literally never drank water from the tap.
The turning point for some pastors in Winnipeg, particularly in the Mennonite community, came when they realized that they were baptizing new believers in their churches in Winnipeg, using water from Shoal Lake. This core activity of our faith, tied into imagery that stretches back to Israel fleeing from Egypt, was enabled by water brought to the baptismal font, at the expense of the First Nation’s safety and security and its permanent displacement from land granted under treaty. That reality itself – a century of baptizing Christian believers in Winnipeg using water drawn from the suffering of others – is what makes it a question of atonement, versus simple apology-based reconciliation.
Sarah Augustine, in her book “The Land is Not Empty: Following Jesus in Dismantling the Doctrine of Discovery” writes this, “The Doctrine of Discovery is a theological, philosophical and legal framework dating to the 15th century that gave Christian governments legal and moral right to invade and seize Indigenous lands and dominate Indigenous peoples.” What other cycles of harm to we as people of faith participate in tacitly for extended periods without considering harm and atonement?
The second story has the unresolved air that many of these accounts hold, about a Metis community in Manitoba, or more accurately the place where there used to be a Metis community. After 1870, the year of both the first resistance and the creation of Manitoba as a province, the Red River Settlement became unbearable for many Metis. The arrival of Protestant militia from Canada who were anti-Indigenous, anti-French and anti-Catholic launched a time known in my community as “the reign of terror”. This started an exodus west, north and south. One group of this dispersal settled in an area frequently used by Metis in the early 1800s, building homes in 1902 just south of Riding Mountain National Park a community that they named Ste Madeleine. By 1920 over 400 Metis families lived in the community. Roll forward to the 1930s, when poor farming practices and a drought created the dustbowl years of the dirty thirties. The federal Prairie Farm Rehabilitation Act was passed into law to rescue poverty-stricken farmers, partly through the creation of community pastures. For Ste Madeleine, the local community pasture of Spy Hill-Ellice was placed on top of their village. Between 1938 and 1941 the residents of Madeleine were forced out. Those who held deeds and had taxes paid up were given land elsewhere. Those who held deeds with taxes in arrears, and those occupying the land ‘according to the country custom’, were expelled and left landless. The 35 homes and barns were burned to the ground, family dogs were shot, and the parish church was dismantled and converted into a hog barn. Some returned that fall from working away with their families to discover their homes burned. This bit of history is one of many, many such stories, but this one is mostly unknown even though some of those impacted are still alive today.
And in Metis fashion, won’t end with any answers, but some questions before we pray.
What does atonement, making right the past harms to open a path where reconciliation becomes a possible future, mean in the framing of Ste Madeleine?
Now, from the perspective of atonement, which narrative successfully addressed the harm, and took steps to address the cause of that harm? Which narrative created the condition where reconciliation passes into the realm of the possible? Which narrative creates the possibility of community and relationship? What is the role of us here, as Christians living in communities of faith, in making atonement and reconciliation realities? ///
Let us pray.
Lord, we listen to the stories of your people, and yearn for that promised wellspring of water that will relieve our thirst evermore, but find we constantly trip over our own feet in trying to make this a reality for everyone in the here and now. The gifts you give each of us sometimes lead us into a desire for status and envy instead of humility and an answer to call to serve others through those gifts. Your desire that we atone and reconcile with all our relations for present and past harms, instead leads us to self-protection and distraction away to focus on only our needs and concerns.
As we seek to lead and support this community of learning, give us each a child’s heart and grant us clarity and perception to find those difficult paths of atonement and reconciliation. Bless us through this gathering and throughout our work past, present and future as we seek to create the community you call us to be and become. Amen. Hiy Hiy.
Somewhat inspired by this prayer:
Stanley Hauerwas, Prayers Plainly Spoken, 16-17, 47-48 (1999 University Press)
Addressing the God Who is not the ‘Ultimate Vagueness’
God, you alone know how we are to pray to you on occasions like this. We do not fear you, since we prefer to fear one another. Accordingly, our prayers are not to you but to some “ultimate vagueness.” You have, of course, tried to scare the hell out of some of us through the creation of your people Israel and through the life, death and resurrection of Jesus. But we are a subtle, crafty and stiff-necked people who prefer to be damned into vagueness. So we thank you for giving us common gifts such as food, friendship and good works that remind us our lives are gifts made possible by sacrifice. We are particularly grateful for your servant Reynolds Price, who graces our lives with your grace. Through such gifts may our desire for status and the envy status breeds be transformed into service that glorifies you. Amen.
Ste Madeleine
https://www.mhs.mb.ca/docs/mb_history/17/stemadeleine.shtml
Trevor Herriot documents this in his book, Towards A Prairie Atonement, around a visit to the Ste Madeleine cemetery with Norman Fleury, a Michif who grew up in Ste Madeleine.
https://www.cbc.ca/news/canada/manitoba/manitoba-museum-metis-ste-madeleine-1.5149812
Shoal Lake No. 40 First Nation
Mennonite Church video on Shoal Lake: https://www.youtube.com/watch?v=-K2TExu6uns
Steve Bell’s video: https://www.youtube.com/watch?v=J8INrMVTXeQ
What is the measure of a “committed” Christian?
A major activity in Christian communities is the practice of ‘othering’. I’ve run into this so many times, in so many different contexts, that it’s now a constant expectation of mine. Even in healthy communities I see it under the surface, but it’s held in check by the bonds of relationship linking people. If those bonds don’t exist, it’s usually plainly in sight.
The Christian Scriptures are full of admonishments about not following the practice of ‘othering’, in spite of the Hebrew Scriptures (the Old Testament in Christian terms) being full of admonishments to be a people set apart.
Maybe that dichotomy is one of the reasons why ‘othering’ continues to have such a place in Christian communities. In spite of passages like this,
Luke 18 (RSV)
The Parable of the Pharisee and the Tax Collector
9 To some who were confident of their own righteousness and looked down on everyone else, Jesus told this parable: 10 “Two men went up to the temple to pray, one a Pharisee and the other a tax collector. 11 The Pharisee stood by himself and prayed: ‘God, I thank you that I am not like other people—robbers, evildoers, adulterers—or even like this tax collector. 12 I fast twice a week and give a tenth of all I get.’
13 “But the tax collector stood at a distance. He would not even look up to heaven, but beat his breast and said, ‘God, have mercy on me, a sinner.’
14 “I tell you that this man, rather than the other, went home justified before God. For all those who exalt themselves will be humbled, and those who humble themselves will be exalted.”
That is a direct charge to not fall into the trap of ‘othering’ someone based on your perception of their state of grace. I know that my assessment of other’s relationship with Creator will always, always, always be coloured by my biases and presumptions about that person. It is too easy for us to fall into that pattern of ‘othering’ people, and saying that they have no place with us because they are unlike us.
‘othering’ is the basis of almost all discrimination and racism and everything else that involves doing things to one group over another. My Metis relations live this daily as they are placed in the ‘other’ category who are those unsafe, uncertain, doubtful to be part of our ‘safe’ group.
The reason for this charge to not other is stated in many other places in the Gospels, like Matthew 9:
10 And as he sat at table[b] in the house, behold, many tax collectors and sinners came and sat down with Jesus and his disciples. 11 And when the Pharisees saw this, they said to his disciples, “Why does your teacher eat with tax collectors and sinners?” 12 But when he heard it, he said, “Those who are well have no need of a physician, but those who are sick. 13 Go and learn what this means, ‘I desire mercy, and not sacrifice.’ For I came not to call the righteous, but sinners.”
It raises troublesome questions for the Christian church that are at least partly tied up in the reason I found it imperative to relinquish my license as an Anglican priest in 2022. An organization that claims as a rally cry at one point, ‘draw the circle wide’ and trumpets inclusion for all routinely, but still is very much engaged in ‘othering’, and then blaming the others for not being willing to accept the welcome they’re proclaiming.
It reflects the oft-seen confusion of local parishes as they seek to grow their numbers, and try programs and outreaches (bring a neighbour to church Sunday), and nothing really changes. “We’re so welcoming!” I heard often, followed by confusion as to why the building wasn’t straining at the seams. Too routinely the issue was welcome was only present in the minds of the community to the extent that they put that work into the people already community members, eg, those who were not ‘the other’. Far more routine to visit a new parish as a stranger and stay for coffee afterwards, and to have no one speak to you unless you initiate the conversation. Far rarer to find parishes where every single person takes it on themselves to say hello and make a newcomer comfortable.
The same thing is reflected in respiratory pathogen transmission mitigations. Churches, based on the charge to love one another as Jesus loves you, should be the safest places for gatherings of people. THE ABSOLUTE SAFEST. I’ve been in churches 3 times since the pandemic started, all for funerals of family. The main reason for that is the complete abandonment of any pretense of trying to make people safe from transmission of Sars2…especially in communities that are full of vulnerable people.
That outrageous love means that every person in the community should voluntarily wear a respirator, so there is no one who stands out in the community. That’s what welcoming everyone looks like. In fact, a willingness for you to voluntarily become “the other” so that the actual others all feel they have a place. In Creator’s economy we are all, after all, others in some way, and it is when we attempt to convince ourselves that we are the basis for defining all othering that trouble starts.
This is very apparent whenever a notionally Christian community begins discussions about inclusion. Invariably, someone will invoke ‘the other’ as the one class of remarkable ‘sinner’ that radical inclusion should not apply to. That rationalization is done very sincerely, with plenty of Scriptural quotes to support the position. But, in the end it comes down to the same simple ‘othering’ of the Pharisee to the tax collector. Usually with protests that the person doing ‘the othering’ recognizes that they too are in a state of sin, but unlike ‘the other’ they realize that, so it places them in a different category.
The logical fold point that permits this ‘ontological side-step’, is the assertion that, while I’m a sinner, I recognize that and take steps to reform myself daily.
There’s a particular type of self-blindness that permits that sort of assertion to other someone, while not realizing how totally irrational it truly is.
It’s well-known in pilot communities that the ‘most’ dangerous time for a pilot is in the 100-300 hr flying experience range. Those numbers vary by report, but it confirms a recognized reality – we are often most dangerous or at highest risk when we believe we have enough experience to start extending beyond our comfort zone. I’ve seen this in myself, and in other professionals. My most dangerous point of engineering practice was at about 5 years after licensing (so about 10 years after graduation). At that point I’d completed a graduate degree, done two tours in the air force, and just been promoted to senior rank. I was pretty certain that I was an expert in every sense of the word, and my behaviours showed it.
Similar to the new pilot, there’s this point where you feel expert, but have no knowledge of how much you don’t know. I didn’t fully realize that until I started doing forensics seriously and had to pull apart causation analysis, and until I came out publicly as Metis and started encountering the routine polite racism is that is a part of Canadian culture. Both of those experiences taught me, in a very intimate way, that I didn’t know as much about the world as I thought. I was living with large areas of unconscious incompetence – not knowing what I didn’t know (an idea from adult education).
Moving into theology, what those learnings mean to me, is my understanding of sin and repentance change fairly dramatically. Rather than that unconscious incompetence attitude, that I recognize and repent of my sin regularly, I realized that the real risk to my state of grace are the sins I commit that I am not aware of – either because I don’t consider them sins, or because they’re parts of who I am that I’m unaware of. This dramatically shifted my understanding of the charge to ‘take the log out of your own eye before worrying about the speck in your brother’s’. Often when that passage is quoted, people automatically assume you can see the log in your own eye.
But usually, you can’t. It’s an invisible log to you; although, if you talk the people who know you best they’ll give you lots of hints about it.
It’s hard for me to take seriously someone who says, “I know I’m a sinner but I do something about it regularly” followed by “Let me tell you why this group of people are different than me.” Like the Pharisee, this sets up a clear dynamic: I’m holy: others are suspect: some I know are not holy.
It’s equally hard to take seriously a person who invokes Christian teachings as an authority, and immediately uses those teachings to explain why someone should be excluded.
Apart from being based in poor theology, this is an exceptionally colonial approach to the question of belonging and who is welcomed.
First, colonial thought loves to label things. Everything must be placed into a box and categorized. This is clear in the reams of paper used to set out the legal definitions of Indigenous membership.
Second, colonial thought uses dichotomous categories (or dualist categories) to define reality. The dipole sinner – saved is a classic example of that in Christian communities. This is not how the canon of Scripture talks about reality which is far, far more nuanced (Peter rejected Christ three times, and yet was still ‘the rock’ – there is an abundance of grey space in Scriptural accounts).
Third, the willingness and indeed the imperative, to exclude those who are seen as harmful to the dominant group, is core colonialism.
Back to the initial language of ‘committed Christian’ – which I quite frankly have trouble including myself in as a descriptor (maybe because I don’t understand what it means). It’s risky language in some ways, as if it’s your litmus test of membership in a community, what happens when a person starts to have serious doubts about their understanding of the faith? This happens regularly in healthy growth (my observation) as we are forced to question and re-assess our previous ‘comfortable dispensations’.
With me as a case in point, my departure from the ranks of licensed clergy certainly signals a change in level of commitment, at least to the institutional form of Christianity. My inability to attend community worship in person due to the dangers of Sars2, likewise could be assessed as a lack of commitment. After all, many Christians are now ignoring the disease burden and rampant spread of Sars2 and returned to their old practices happily. The fact they may be asymptomatic carriers, infecting vulnerable people in their faith community, never enters their assessment (unconscious incompetence).
It also highlights something else I’ve noticed – some of the most caring people I’ve met, who are advocates for social justice always, leaders in all they do to improve things for others, highly relational, who wear respirators in public as much to protect themselves as to protect others, call themselves atheists.
There should be a lesson in that for Christian communities concerned with marking out ‘the other’.
Causation: Legal vs. Scientific Perspectives or How to tell if A caused B…
(I wrote this article for a staff newsletter in 2010 – note the ‘recent case’ comment – when I was adjudicating workers’ compensation appeals. My understanding has changed a lot since then, but the basic contrasting between science and medicine’s understanding of evidence and causation I’d endorse today. One part I’d change is the line ‘physicians are trained to use the scientific method’. I think that’s somewhat true in that MD training includes exposure to evidence based medicine (EBM) and what constitutes good evidence. It’s incorrect that they are specifically trained in the scientific method, as this Scientific American article identifies. EBM is a good framework when it’s used appropriately, like drug trials. But, just like trying to use a thermocouple designed for cryogenic use to measure molten lead’s temperature is inappropriate, using EBM to assess engineering or physical interventions where the fundamental physics are well-understood and defined analytically is the road to irrelevant and corrupt data. This is discussed in this earlier article about EBM misuse.) Links may be dead after this point.
A medical specialist says that it is “possible, but not probable” that an accident caused a particular injury: does this meet the threshold for the legal but-for test or the material contribution test, greater than de minimus? Workers’ Compensation cases often turn on the legal interpretation of medical evidence, so it is interesting to consider if medicine and the law speak the same language.
Physicians are trained to use the scientific method when offering opinion about causal relationships. Science asks for a very high level of probability before concluding a causal relationship might exist. Science usually assesses relationship based on a two sigma level of confidence (we can discuss this over coffee if you’re a fan of statistics). For a normally distributed population, this means that you can say with confidence that 95% of data points will fall inside a given range. When calculating ballistics, the military drops test bombs until there are enough data points to say, with 95% confidence, where a given bomb would hit. A bomb landing outside the “normal” range, one of the 5%, would be considered, “possible, but not probable.”
The two-sigma level is a very high standard, which likely even far surpasses the criminal test of beyond a reasonable doubt (some have set that limit at about 0.70 to 0.74, although some would say there can be no number assigned to the legal question… “Proof beyond a reasonable doubt is a quantum without a number.”) However, there is risk in making such comparisons, for the legal and the scientific tests for causation are based on entirely different sets of assumptions. A straight numerical comparison, 51% versus 95%, for example, will miss those critical differences.
Consider a person who has a blood test with an abnormal result that might be the result of a work accident. If this was a hearing, would you consider that abnormal result to be proof of an injury: but for the accident or beyond a de minimus level? “Normal” for blood tests is established to a two-sigma level by science: 95% of the population’s blood test result will fall within the “normal” range. However, “normal” excludes about 5% of the population who have blood chemistry normally outside that of 95% of the population (who, we might say, are normally abnormal). If you ask a physician about that blood test, she would say that a healthy value outside the “normal” range is “possible, but not probable.”
A decision-maker needs to be aware of the difference between the two approaches to causation when weighing medical opinion. The medical professional offering the opinion is not thinking (or at least, should not be thinking) about writing to satisfy the legal test, but rather the scientific standard. “Possible, but not probable” may suffice to meet a legal test, depending on the fact picture in play, the legal test being applied, and the totality of the evidence.
A recent case, Libby Wallace 2010 ABQB 368, at paragraph 86-87, stated this distinction with respect to medical panel findings, “…while it is the medical panel’s function to decide the medical issues, it is the appeal body’s function to apply the law to determine whether an injury was caused by a compensable work accident…Questions about causation raise some medical issues that are within the purview of a medical panel, but there is a distinction between scientific and legal findings. This distinction exists both in common law (see Laferrier v. Lawson, [1991] 1 S.C.R. 541 at para. 156) and in workers compensation case law. At law, causation need not be determined with precision, but must meet the appropriate burden of proof…On the other hand, scientific analysis of causation seeks a far higher degree of certainty to establish causation.”
When a physician states something is “possible, but not probable” they do so with that scientific standard in mind, and not the legal test. “Probable”, for a scientist, indicates certainty at a 95% level of confidence; “possible” means something less.
To summarize the differences between the legal and scientific approaches to causation:
- science deals with population-based analysis (general)
- the law is concerned with the individual case (particular)
- science deals with probabilities (the uncertainty of the truth)
- the law is concerned with a single event or group of events (the absolute certainty of the truth)
- science does not seek finality, but is an ongoing quest for new understanding; all theories are tentative
- the law seeks finality (there is no res judicata or collateral estoppel in science, climate change advocates apart)
- science’s goal is to create abstracted models of reality based on empirical evidence (what is)
- law’s goal is more tentative, seeking truth sometimes based on incomplete or inferred evidence, assessed collectively (what ought to be)
Law Society of Alberta, Mandatory CPD and Indigenous Learning
I learned about the coming bylaw vote at a special meeting of the Law Society on 3 Feb recently. At issue is the Law Society’s authority to set mandatory continuing professional development (CPD) for license holders. The sparking issue is a 5-hour Indigenous cultural competencies course.
I’ve not been able to get my mind off this and some of the things I’ve heard and read.
First, maybe the easier regulatory perspective. It’s (imo) pretty trite law in Canada now to say that regulators are considered to have the authority to mandate education. In spite of a number of lawyers stating this is beyond the authority of the LSA, cases over the past decade generally affirm the authority of a regulator to require continuing competency even if its enabling statute does not explicitly grant that authority.
This is an important perspective as I’ve heard the issue clarified as one of freedom and independence.
Self-regulating professions generally require mandatory CPD. The LSA requires continuing competence. APEGA (Alberta engineering regulator) was one of the first in Canada to require CPD for engineers and geoscientists. Currently 80 hours per year across at least 3/6 categories.
It is possible to make aspects of that education mandatory. This is very common in health professions around the development of practice standards, which are often rolled out with mandatory education. To balk at it being mandatory is a strange reaction for a license holder in a self-regulating profession. If my peers and betters have determined I should do a course for the better of the profession, not sure what it says if I decide to fight that.
Mandatory CPD programs were an issue in BC and ON for engineers, in both locations membership voted down those initiatives repeatedly. Until in both locations legislative amendments made these law. It’s a caution to self-regulating professions that if you believe you know better, the public may disagree with you and take a legislative option.
On the Indigenous side, it seems 5 hours is a small burden to bear if only as a sign to reflect that your profession supports the concept of reconciliation and decolonization. We’ll be watching the vote outcomes to see what the LSA membership believes is the right thing to do.
The CBC article on this matter was very disturbing. The line which really hit me was this (from someone who appears to be from a birth country other than Canada):
Song also says he does not believe Canada as a country has a history of systemic discrimination.
“To me it is not,” said Song in a phone interview. “You can believe what you want to believe.”
Unpacking that. Not sure systemic discrimination is a matter of belief. In Canada I’d suggest it’s a matter of historic fact.
The suggestion Canada doesn’t have a history of systemic discrimination is so ludicrous that it makes me question what is really going on behind this challenge. Recently visited the internment memorial near Castle Mountain, Alberta commemorating the mostly Ukrainian Canadians who were forced into labour camps during WW I as feared enemy agents and build much of the infrastructure in Banff National Park
There’s a clear pattern there. Banff was cleared of Indigenous (mostly Blackfoot) so that Settlers could enjoy “pristine, untouched” wilderness. The clearing was by force. Then the park was developed using forced labour by recent immigrants.
I’m also aware that Indigenous in Canada could not hire a lawyer up into the 1950’s, a law passed to prevent legal challenges of discriminatory and genocidal policies of the Canadian government.
So to suggest there is no history of systemic discrimination in Canada is, to be blunt, ahistorical and disconnected from reality.
And of course, there was the Chinese head tax, enforced by government and supported by the nation a means to deter the immigration of undesirables. This in spite of the key role played in the construction of the railway by those same undesirables.
This may be a small group of fringe lawyers. I hope so. The outcome of the vote will say much about the state of the legal profession in Alberta to Indigenous lawyers and observers.
I’ve said repeatedly that one reason engineering has a heavy burden in reconciliation is because we were the literal engine of colonization and resource extraction.
If engineers were the engine of colonization, than the legal profession was the fuel that allowed that engine to operate.
The Benchers (the elected discipline and governance body of the LSA) wrote a letter that aligns with my regulatory thoughts.
Pope’s Visit – does it matter?
There are a bunch of Indigenous super stoked that the Pope is visiting and will apologize. I’m really happy for them. For those who find their Catholic faith to be healing and supportive, I understand how this is a watershed moment. It’s also something called for by survivors for years. It might be the start of a new beginning.
But, I’m not naïve enough to hold out much hope that this is a new beginning. The institutional church is going to do what it has done for centuries – the same thing.
It has certainly stirred up the Indigenous community. For every person happy at the visit there is another one furious about it, and another re-traumatized by it. It’s like our community – complicated to tease out what it might really mean.
And my skepticism has to do with decades of reports, commissions and most recently the TRC that all said the same sorts of things, recommended the same sorts of actions. In 2021 the Yellowhead Institute’s report card on TRC calls to action reported 11 of 94 were completed, in the six years since the TRC wrapped up. This is pretty typical for the Canadian state. Recall JT’s election words in the first election, that there was no relationship more important to his government than Indigenous. All the clean water issues were promised to be resolved by March 31, 2021, now that number is 2025 but government is unwilling to set an end date. The Auditor General reported last year that progress was poor,
The auditor general found that since the prime minister made that commitment, 100 advisories have been lifted. But 60 remained in effect in 41 First Nations communities as of November 2020, and some communities won’t be able to get clean water out of their taps for many years.
https://www.cbc.ca/news/politics/auditor-general-reports-2021-1.5927572
https://www.oag-bvg.gc.ca/internet/English/parl_oag_202102_03_e_43749.html
Not to mention all the FN housing shortage issues, and the huge number of homes that do not have plumbing, all things that were promised under the treaties. All things that were supposed to be paid for from the immense number of dollars of resources extracted from treaty lands over the past several hundred years.
So what in particular am I critical of in this visit by the pope? Here’s a short list:
- The Catholic Church in Canada has still not paid it’s damage assessment in the residential school settlement, and shows no signs of doing so.
- This was certainly an issue of individuals acting in a morally evil manner, in the abuse and assaults and torture. But, this was an institutionally-enacted and endorsed policy that allowed all of these harms to take place, including cultural genocide that was certainly endorsed by church leadership.
- There are oodles of church and religious order residential school records still being kept secret. (along with federal government records like those from the notorious St Anne’s school)
- There are still priests, nuns and lay workers alive who are known abusers who are not facing justice for their crimes (crimes under Settler law).
- Vatican museums are full of Indigenous items taken from communities but no discussion of returning these.
- The Doctrine of Discovery and terra nullis were created by papal bull, and still stand as the definitive statement of the church as to why land could be stolen. These are both used in Canadian and USA law to justify the state’s ability to seize lands. Yes, that’s right, some of the Settler case law about land is based in declarations made by a pope.
- As Brandi Morin reported recently, the pope’s visit meant Sacred Heart Parish in Edmonton needed to be secured, which meant fencing it in and clearing away all the homeless who see that place as a refuge in Boyle-McCauley. Security of a church leader over the marginalized.
- Likewise the conversion of St Joseph’s Seminary (including Newman College and library) into a fortified installation with mesh fencing, spotlights and cameras.
- While Sacred Heart is a huge exception, there is little place in most churches (RC or otherwise) for Indigenous to practice their ceremony alongside their Christian faith.
- The continued assertion of doctrines and teachings that are openly harmful to Indigenous through condemning our ceremonies and teachings, in some cases still attributing these to satan worship.
- The failure to acknowledge that Indigenous spirituality is a valid and valuable expression of our relationship with Creator.
- There is little reaction from the RC church to the recent confirmation of many graves at former residential schools. Something the Indigenous community knows for generations and is only entering Canadian awareness now because of ground penetrating radar.
- The institutional church continues to focus primarily on its own protection over caring for the many, many people harmed by that church.
- A church that actually represented the teachings of Jesus would actively seek its own death in order to care for the marginalized, and particularly for those harmed by the church’s actions or the actions of its agents.
That last point is my biggest issue, and the reason I resigned my license as an Anglican priest last month (June 2022). When the church closed ranks to protect itself against the public disclosure of re-traumatization of survivors of clergy abuse, it confirmed for me that the Settler church has learned nothing. If we can’t get caring treatment of survivors of clergy abuse right today, I realized that any hope for actual reconciliation with Indigenous is a complete fantasy.
In his first apology at Ermineskin IRS, the pope said,
“I ask for forgiveness, in particular, for the ways in which many members of the Church and of religious communities co-operated, not least through their indifference, in projects of cultural destruction and forced assimilation promoted by the governments of that time…”
This is similar language to what we heard during the Indigenous visits to Rome, and I have difficultly not hearing Vatican lawyer’s language in those words. Note this “in which many members of the Church” limits the apology to the bad actors who caused all the harm, and not to the institution that permitted and endorsed that harm, and refused to act when parents complained about hurt or dead children. He is also drawing a line between the church and religious communities, which is legally accurate as some schools were church, some were entirely run by one religious order. But, it’s all one church in spiritual reality and those religious orders profess obedience to the Bishop of Rome. Finally the “projects of cultural destruction and forced assimilation” were not only “promoted by governments of that time” these were actively promoted by the institutional church as a way of saving the heathen.
It also avoids a bunch of other issues. Murder. Child sexual abuse. Torture. Cultural destruction and forced assimilation for sure, but little to acknowledge all the other things that happened and were not addressed by the institution. He did promise an investigation, but with no details. Given that most of the abusers are now in their 90’s, any inquiry needs to happen very, very quickly – I’d say it’s already too late if it’s not up and running. To be credible it would require independent participants from our communities who have full authority to read records and edit any reporting, and I’d suggest that some of those need to be non-Roman Catholic adherents.
So confirmation of what I expected. Carefully crafted words that skirt the legal issues where the church wishes to avoid increased risk exposure. Exactly what you’d expect from a religious leader of an institution that seeks to protect itself above all else.
I’m lacking the ability to be generous in looking at what sounds like a very sincere apology from a moral person, because it again carefully skirts around the elephant that is the institutional culpability in legal, moral and ethical senses.
If the pope’s apology included action to release all the records; repudiate the Doctrine of Discovery; pay the damages claim; establish a healing fund to pay for all the counselling required to undo generational trauma; bring to justice all surviving abusers through legal action and independent investigation; pressure the Canadian government to live into its obligations and to release its records, I would be pleasantly surprised and might say, hey, this could be a real new beginning.
But I won’t be holding my breath. It’s still a Settler church.
Post-colonial Period?
A post I wrote last year but never published because of my obedience obligations under my license to minister.
General tip for Settlers. Not really your role to offer opinions on the state of colonization. You don’t see it because you’re part of the colonial default presumptions about reality. Want to be an ally? Learn to defer to Indigenous. Got one Indigenous person telling you one thing and others something else? Maybe avoid expressing an opinion while we work out our issues. Certainly not your role to adjudicate who is the more credible Indigenous person. Some relations are so compromised by colonial harm they can’t see clearly.
Most of all when Indigenous tell you they’ve been harmed by your actions. Sit and listen.
A daily devotional reflection from the Bishop of Edmonton. I read this on the evening of Truth and Reconciliation Day (30 September 2021) after it was posted that morning in Facebook.
Devotional
Reflecting on the word “Postcolonial”
As I sat in my devotionals for this morning, I gave thanks for this Day of Truth and Reconciliation. It is the day also known as Orange Shirt Day. Both the words ‘Truth’ and ‘Reconciliation’ are essential to the Christian life. God cuts through the falsehoods of our hearts and our world for the purpose of restoring relationships and the flourishing of life. This is what the word Postcolonial means to me. I recognize that it may be an unfamiliar word to many. On one level, it simply means that once upon a time we lived a world in which the church was part of an effort from Europe to establish an economic and administrative colony in North America, and now, we no longer live in that time. We come after the colonial era.
In reality, this time is not just ‘after;’ it is an aftermath. Colonialism has often left a legacy of pain, brokenness, rage, fear, and shame. Truth in this case is what we call a hard truth. It takes a commitment and a determination of the settler heart to listen to the stories without defensiveness. I have had to learn to listen. These are not my stories to tell, but I know from experience that my settler heart instinctively wants to dodge or deflect or dampen. But without hard truth there is no reconciliation, and it is to this reconciliation that Jesus calls us.
The combination of truth and reconciliation is captured in another word: repentance. It means to change our ways based on our encounter with truth. To repent is to desire and work for true reconciliation with God and our neighbour. For me, the word postcolonial is a word of hope. It embodies the desire to embrace a new way of being church: walking together with Indigenous peoples in a new way: with humility, listening, and the recognition of the inherent dignity of every person. It is a new way that neither ignores the past nor is about shaming people. It is about a church that is both true to the teachings and traditions that have been handed down, and open to new insights from Indigenous wisdom and practices. As Gospel Based Discipleship teaches us (https://www.anglican.ca/im/introgbd/), it is about truly placing the Gospel at the centre of our sacred circle. This is a time to listen. We pray for eyes to see and ears to hear. [bolding added]
This doesn’t happen often, but when I read the post I went right through the roof. I know Steve is a caring and kind priest, so that contextualizes my understanding. But, the parallel my mind immediately went to was Harper’s declaration that Canada was not ‘a colonial nation’. Steve is not Harper, but these words fall into a similar bucket of Settler observations about Indigenous realities.
Also suspect that this is a technical use of the term ‘postcolonial’ as I know there is a field of studies around that idea. It’s an unfortunate title because it implies a future reality that does not exist today – not at all the reality lived by Indigenous Peoples in Canada. That applies to the field of studies BTW – a topic for a different day, but the academy is not the place to look for intelligence about Indigenous issues with a few rare exceptions. The academy is part of the ongoing colonial machine too.
Using that term, and a bold assertion, “We come after the colonial era.” sets up a familiar dynamic for Indigenous. The reasoning runs like this, “Hey, there was a lot of nasty, bad stuff in the past. Look at all those graves! But it’s going to be different going forward. My Canada doesn’t do things like that now, so lets fix this bad past and get on with life.” This is a moral high ground action of erasure, as it sets up colonialism as a past event. While it may acknowledge the ongoing impact of trauma, that is a pathology which will be eliminated with time and treatment.
Look at the use of language set in the past tense, “was part of an effort”, “once upon a time”, “has often left” as markers of that all behind us now default perspective.
It makes colonialism a leg broken by a fall down a set of stairs – we’ve added a good railing and no-slip surface treatment so that a future fall down the stairs will be (probabilistically at least) a thing of the past. The leg will heal and apart from a bit of an ache just before it rains (surprisingly useful when camping), the fall and break are only a fading memory. If you keep complaining about the break, eventually someone will tell you, “Can’t you just get over it?”
The reality for Indigenous is that the set of stairs are remodelled every few years (for some reason coincident with the federal election cycle). Sometimes the changes are nice, fresh paint, a helmet so you don’t hit your head on the way down. Sometimes not so nice, spikes on the handrailing. What doesn’t change is the fall down the stairs which happens over and over again. What also doesn’t change is the action of the ongoing colonial state that, too many times to count, actually pushes you off the top step…and then blames you for your injuries after the fall.
To carry the metaphor even further, colonialism forces us to use the stairs as a condition of existing, in spite of there being traditional paths that allow us to move and climb in ways that are uniquely ours. Until decolonization removes all those staircases, ‘post-staircase era’ we’re still in the colonial era. If you can’t see that clearly as our reality, that blindness too is colonialism alive an
Our reality is an ongoing and persistent pattern of cultural discourse, legislation, enforcement by the state, stolen children, violence against our women, children and men, outright murder condoned by the justice system, justice denied, overt racism, trailer hitches thrown out of passing vehicles, statements like “you don’t seem that Indigenous to me”, being ignored in an ER or burning to death at a campsite in the river valley…and I could go on. This is happening right now, and all those situations I’ve just described are from real events only over the past year or two, as is the long list of names I could give you.
Diversion: If you haven’t listened to CanadaLand’s podcast on Thunder Bay expertly narrated by Ryan McMahon or read Tanya Talaga’s book, Seven Fallen Feathers, so so at some point. It appears there is a serial killer at work in TB preying on Indigenous teens, or a systemic effort by a group to murder them. What that’s horrifying in itself, what should really horrify you is the lack of response from the police or community leaders.
This is today’s reality, and to suggest that we’re in some post-colonial era is in itself a highly colonial action. In fact, the only person who can get away with making a statement like that is a Settler person of privilege — for only a person within the colonial framework can declare that its over (in spite of all the evidence to the contrary). It is particularly rich coming from a church that still hasn’t begun to grapple with the harm it has caused and continues to cause to Indigenous Peoples. For sure there are brief glimmers of a different way of doing things – the Indigenous parallel diocese in Northern Ontario for one. But, in many ways the church is still not a safe place to be Indigenous. You’ll have to trust me on that, but it is a comment repeated often by Indigenous clergy that will never be spoken publicly (because we’ve learned better).
One example. My practice is to smudge with Sage prior to preaching or leading worship. It is a ceremony that clears me of all the other stuff going on in my world and focuses me on the Creator. It is sacred time. While I accept that my parish community isn’t there in terms of Indigenous practice, you would think there would be room for my spirituality in their midst. Not so much.
After three separate encounters with different people in different parts of the church, that all involved complaints about the stink, I switched to smudging in my car in the parking lot.
Amazingly (in a dystopian kind of sense), that’s the same thing I have to do at my day job in a downtown office tower. Along with all the smokers who sneak into their cars at -40C for a quick butt. While my Muslim coworkers have prayer space (which is super and needs to be there), I need to sneak into the parkade to burn medicine. Knowing that one day there will be a knock on my window from security…
As a second example, in a sermon I asked some rhetorical questions about social justice. One was – why is it that Indigenous children are apprehended by the system at a rate many times any other racialized grouping? The answer is because the CFS system is designed to apprehend Indigenous children, and places a reverse onus on Indigenous moms (mostly), where they have to prove they’re good parents. For the rest of Settler society that’s a birthright, and it’s only after the state proves you’re not fit that your kids will be taken away. It is literally an automatic activity for many Indigenous moms – think about that.
You demand due process in any activity in which you may have freedom removed or limited. Before the state can take your property there is a highly ritualized and legislated expropriation process that must be followed, and is subject to court oversight. On the court-recognized traditional territories of the Wet’suwet’en, that legally-confirmed right is subverted by the enforcement of an injunction by police (issued by another court that recognized the land title issue but said this was not the place to resolve that). Why is it not resolved? Because the federal government continues to ignore the decisions of its own Supreme Court of Canada that identify traditional title to the land, and has never acted to legislatively deal with that reality. So the Prime Minister can smile on camera and say, “Canada is a rule of law nation.” (or in the leader’s debate, “We’re not fighting Indigenous children in court.” except they are, and the decision against the government, one in a series of losses just came down and is “under review” and subject to another appeal)
Particularly when you make the laws.
That sermon passed and afterwards I was approached by someone who works in the CFS system. They asked me, rhetorically, if I knew that there were good reasons that all those Indigenous children were apprehended.
That’s what ongoing colonialism looks like in practice.
And the people involved in the system will defend the morality and ethics of what they’re doing up and down. There are few people who deliberately enact evil on others. By contrast there are multitudes (legion?) who conduct evil activities on others while smiling and telling them, “This is for your own good. You’ll thank me some day.”
C.S. Lewis addresses this in the Problem with Pain. He points out the real issue isn’t the mass murderer standing there with blood on his hands on top of the bodies of his victims. Everyone (almost) will recognize that as evil. The problem is the bureaucrat who implements policies that have the same outcome, but goes to bed every night and sleeps pink-faced like a newborn baby (if I’m recalling Lewis’ imagery). And then does that day after day, all the while convinced of the sanctity of his mission and calling. (this may be an incorrect attribution as I can’t find this passage)
Ongoing colonialism in practice is just the way things are. It’s actions that are all attributed to shortcomings in the population being oppressed (aka gaslighting). It’s bad parents. Sure it might be related to trauma, but we need to protect these children today. Not my job to sort out inter-generational trauma, I’m only here for the kids. And so on.
Aside from the reality that seizing kids from their parents is actually the reinforcement of that inter-generational trauma. And that action is the ongoing implementation of something historic known as “the sixties scoop”, that actually isn’t historic at all, because its being done more today than it was in the 1960’s.
That’s why we’re not even close to, “We come after the colonial era“. We’re in it and I don’t appreciate having a Settler assert otherwise.
If you didn’t catch the comments about the Prime Minister above, just to be really clear. I expect our government to publicly lie about Indigenous issues to the public. It’s not even a surprise because it happens so frequently and so blatantly. Which is another sign of ongoing colonialism. Neither the fifth estate nor the public call that same government to account (and I’m being apolitical here because it’s a consistent trope with colonial government regardless of their doctrinal leanings).
And even my more social justice focused associates frequently object. Well, you know it’s not right that they’re standing in the way of that pipeline. After all, there’s a court injunction. And then look away when you point out that armed police in combat clothing are pulling elders away from a barricade and handcuffing them and forcing the media to stand 500 metres back so they can’t film.
That’s exactly what ongoing colonialism looks like.
Because I can never just end a piece.
Re-reading Steve’s reflection there’s a last bit that catches me but involves a move in an entirely different direction. This sentence:
It is about a church that is both true to the teachings and traditions that have been handed down, and open to new insights from Indigenous wisdom and practices.
One other aspect of that ongoing colonial action is the decimation and downgrading of Indigenous knowledge systems. This too is a fundamental goal of the colonial objective to destroy anything that stands in the way of colonial objectives of possession. The Western system of knowledge is based strongly in default Newtonian presumptions about the nature of reality (many of which are incorrect, but that’s another discussion). Core is the belief that colonial knowledge is real, clean, pure, true knowledge; we may take inspiration from other sources but they are lower-grade and we control when, what and the how of our inspiration.
The reality is Indigenous spirituality (even writing that reflects the limitations of English as a language as it’s not a separate thing from my science or my emotion or my physical being or my cats for that matter) is a robust system of belief and practice that pre-existed the concept of Christianity by thousands of years. It is a deep and nuanced system that reflects in intimate connection with all aspects of the creation – something that only a few of the mystical or nature saints grasped in church history. It is a faith that actually describes my relationship to the Creation in a way that allows me to live my true life daily.
Describing the church as “open to new insights” places that dynamic as clear as the government’s ongoing smokescreen around “national to nation” relationships. We’ll use the language, but will constantly work to make you realize that we’re in charge. We’ll let you play nation only until it places our ability to dominate and control resources at risk, and then we’ll take deliberate action to shut you down.
I’ve written elsewhere about having to be bilingual to exist as a priest/Métis and as an engineer/Métis, because I need to speak both the language of the colonizer as well as my own default language of being. What was not surprising in the end was to discover that priest/engineer actually speak the same language, so enmeshed is the church in Western scientific ways of being and knowing.
That’s what ongoing colonialism looks like.
Relinquishment of Ordained Ministry
The church law concerning relinquishing ministry is in Canon XIX: https://www.anglican.ca/wp-content/uploads/219-2019-canon-xix.pdf
This is effectively a voluntary request to have a license to administer the sacraments and to preach suspended. It does not presume re-licensing can never occur in the future. Ontologically it is not an ending of sacramental orders, just an ending of the temporal license to minister, preach and celebrate sacraments (communion, baptism, reconciliation etc). As a weak metaphor, it’s like asking the province to cancel my driver’s license. I still maintain the knowledge and skill and inner being to drive, but I’ve lost my legal authority to do so.
Dated this letter 6 June, both the 18th anniversary of my ordination to the diaconate (2004) and the anniversary of the D-Day invasion. Seemed fitting.
I’m indebted to Vine Deloria, Jr’s writings. Just realizing that this decision is the culmination of thoughts leading from his works God is Red: A Native View of Religion and Spirit and Reason. Those informed an article I published in 2019 about reconciliation between Christians and Indigenous.
Last post has all the rationale for this decision. The text of my letter to the Bishop is below:
Enclosed please find schedule A from Canon XIX confirming my voluntary relinquishment of the exercise of ministry.
There are two primary reasons for this decision.
First, as I’ve related to you, I can no longer participate as a part of the institutional church that continues to do so poorly around issues of Indigenous relations and reconciliation. My observation is the organization continues to be forward in expressing an opinion about what needs to be done, with little interest in listening and forming the Indigenous relationships necessary to be community. It is the work of a colonial church to decolonize, and not the work of Indigenous clergy.
Part of the issue is a Christology subordinated to a poor ecclesiology that misforms the church’s mission: a continued idolatry of institution. Decolonizing and reconciling are not activities amenable to the work of a diocesan committee. These require community and relationship in true reciprocity, Indigenous community, not church-mediated community. The decolonization work requires the centering of Indigenous voices in church community. It means embracing, “nothing about us without us” in a way that honours Indigenous ways of reciprocal relationality captured in concepts like wakhotowin.
Second is the recent disclosures by the three survivors about their experiences with the national church and the Anglican Journal. The immense violation of the personal information of survivors of clerical abuse is reprehensible, as is the response from the national church and the Primate. As someone who supervised staff handling confidential personal information, if a member of my staff had deliberately disclosed personal information in that manner they would be discharged immediately. The official gaslighting and undermining of their trauma I’ve seen reinforces that protecting the institution is a clear priority for those in leadership positions. This is that flawed ecclesiology put into practice, and it is a highly colonial artifact.
CoGS confirmed this foundational flaw in ecclesiology in its response statement to the survivors, “A third is the challenge faced by church leadership at all levels, given both the Gospel imperative to care for the powerless and victimized, and their covenanted responsibility to the institution.”[1]
While there are legal imperatives on councils to govern the legal entity responsibly, the assertion that there is an implied balancing between legal institutional responsibility and the Gospel imperative to care is an error of ecclesiology. I expect secular institutions to place self-preservation first and foremost at the expense of individuals, I don’t expect that of a community that follows Christ. While they may be well-intentioned the harm caused is real and unrecognized by even those ordained to care for the victim.
My concerns as Indigenous clergy are confirmed and reinforced by the recent #acctoo experiences. The institutional church is very good at speaking and telling people its truth, listening and caring for survivors not so much. If in this advanced day we can’t get care for survivors of clergy abuse correct, decolonization is really a bridge too far.
My calling today is to focus on Indigenous community and leave Settler colonial communities to work out their decolonization, or not. Indigenous in Canada continue to suffer with burial discoveries, the murder of community members (sometimes endorsed by the justice system), and the forced displacement of people off land that Settler courts have said is untitled land. Yet I hear Canada is a “rule of law” nation. Lots of space for Settlers to intervene in their unjust systems, or not. Settler work to decolonize.
My discernment leads me to conclude that remaining as licensed clergy in the institution effectively tacitly endorses it’s approach. It is time for the institutional church to encounter me as Métis, and not a priest who happens to also be Indigenous.
I’m not going to presume to send a cc of this letter to the national church. You have my permission to share this letter as you feel appropriate.
The Royal Military College and the Arbour Report
Troubled and need to write something, but not willing to do it on a social platform like LinkedIn as I’ve already seen a couple scraps that detract from the issues and potentially cause further harm. So doing it here to get this out onto paper.
Former Supreme Court Justice Madame Louise Arbour just released a report into sexual misconduct and sexual harassment in the Canadian Armed Forces. This is a problem and was a problem, certainly during my time in uniform that caused much harm to my colleagues. As much as I tried to create a good environment for everyone, I was certainly a part of that problematic system.
One recommendation relates to a review of the military college system:
Recommendation #29: A combination of Defence Team members and external experts, led by an external education specialist, should conduct a detailed review of the benefits, disadvantages and costs, both for the CAF and more broadly, of continuing to educate ROTP cadets at the military colleges. The review should focus on the quality of education, socialization and military training in that environment. It should also consider and assess the different models for delivering university-level and military leadership training to naval/officer cadets, and determine whether the RMC Kingston and the RMC Saint-Jean should continue as undergraduate degree-granting institutions, or whether officer candidates should be required to attend civilian university undergraduate programs through the ROTP.
In the interim, the CPCC should engage with the RMC Kingston and the RMC St-Jean authorities to address the long-standing culture concerns unique to the military college environment, including the continuing misogynistic and discriminatory environment and the ongoing incidence of sexual misconduct. Progress should be measured by metrics other than the number of hours of training given to cadets. The Exit Survey of graduating cadets should be adapted to capture cadets’ experiences with sexual misconduct or discrimination.
This is good, imo. I’m a graduate (twice) of the Royal Military College, once as a cadet, once as a grad student. I attended RRMC for my first two years and my class (1987) was the last RRMC class which was all-male. RMC does lots of good things, but it also has cultural aspects that are harmful and perpetuate the issues M. Arbour identifies.
Now the problem. A number of RMC grads are changing their profile pictures on LinkedIn to their grad photos and stating their support of the organization in response to the report recommendation. I’ve only seen a couple of contrary opinions.
I get this totally. I am who I am today because of places like RRMC and RMC, and I owe that system a huge debt (if nothing else tolerating hours on the parade square trained me to live with later-life chronic pain). But this all strikes me as being quite tone deaf. There are a bunch of our classmates who have been and are suffering because of their lived adverse experiences at the same place.
I won’t pretend to understand those experiences, but it seems that my contribution should be, at a minimum, to keep my mouth shut and listen and to support needed change. Publicly stating my support of the institution that is described as possessing a, “continuing misogynistic and discriminatory environment and the ongoing incidence of sexual misconduct” looks like I’m saying, sure there was some bad stuff but we can’t throw out that bath water just yet, because the institution is really, really important.
One of those dysfunctional aspects of RMC is the halo that surrounds an iconic institution. That halo leads to vigorous defense of any threat, and also serves to resist any attempt to change or shift culture. It’s also a culture which sees any deviation from expected behaviour and performance as a moral failing.
It’s time to make the necessary changes to bring about the cultural changes that M. Arbour (and several previous reports) identify as critical. If you value the milcol system, maybe a good time to get behind that change initiative fully – we live in an era when sacred cattle are not so sacred anymore.
Some pushback against the “here’s my grad photo on LinkedIn” movement in the media, and a serving general officer deleted his post after realizing it could cause others harm. Gee, you think so? https://globalnews.ca/news/8906501/military-misconduct-report-linkedin-apology/
One thing I’ve learned really clearly in reading (and a few experiences) about colonization and racism. Those holding power rarely realize that they are causing harm, and will vigorously oppose anyone who suggests they are. The CanadaLand interview with Glavin about his residential school denial article is a classic example: Glavin’s main objection is he’s done so much for Indigenous people over his career, no one has the right to criticize his commentary (and the Indigenous people who did were illiterate).
What does this mean to me as a man and a veteran? I never experienced sexual assault or harassment in the military. I have colleagues and coworkers who I respect deeply who did, and have, and are experiencing those things. I know from reading Sandra Perron’s book and the Arbour Report that my behaviour contributed to those harms, even though I never intended to harm anyone (but that doesn’t matter, good intention actually makes things worse). My role when those colleagues and coworkers speak up is to shut up and listen, and to ask one question – “what can I do?” Not to post my grad photo and talk about my experience of RRMC/RMC.
"As I mused, the fire burned" 