Doing Things for Ourselves: Responding to the Condescending Ethos of Institutional Ethics Processes

This blog builds on the previous discussion of the condescending ethos of institutionalised ethics processes, by arguing for Maori/First Nation-led ethics processes:

Introduction

In a powerful call to arms for the decolonisation of the edifice of Eurocentric, colonialist research, Arthur Smith (1997: 25/26) asserts that:

It is self evident that Indigenous people now want their voice in research, and they want it to be heard and understood.... [t]he right to establish and control the terms and conditions of cultural research is an inalienable right for all peoples of the Earth. The colonial era is dead, if not yet buried.

Given the experiences of Research Ethics Board-related conduct reported in the previous blog, one might argue that at least in the realm of academic, institutionalised ethics, the paternalism that characterised colonialism is alive and kicking in the present.

One strong justification for the need for an overhaul of First Nation experience of institutionalised ethics is the impact it has on us as ‘ethical researchers’.  In the end, the repeated requests for assurances from the author that he would adhere to AUT University's preferred, individual-focused ethics protocols (particularly relating to informed consent) were given (albeit by my supervisor), simply so the REB would sign-off and enable my doctoral research to proceed.  This was done with full knowledge that in all instances the ethics protocols of First Nation communities, participants (whether as individuals, groups or communities) would take precedence over the protocols of the REB in question (see Haggerty, 2004: 408, for further discussion of the related issue of ‘conscious subversion of formulaic, institutionalised ethics protocols’).  Schwandt (2007: 92) refers to this strategy as ‘playing the game’ for the sake of receiving the gift of authorisation; a strategy she used from time-to-time to keep her own students safe (albeit from REBs) as related thus:

We publicly and privately complain about the onerous review process, but when it comes time to file the papers, we simply figure out what it is in terms of language and procedure that IRBs [REBs] are looking for and then find ways to say it just so.... a major problem with such a strategy is that it encourages confusing technical compliance with IRB regulations with careful and sound substantive ethical review of one’s research.  Moreover, it creates the impression that ethical matters are dealt with once IRB approval has been granted (ibid: 92).

According to focus group participants in research I carried out in New Zealand and Canada in 2010-11, personal communications with Indigenous researchers, and the extant literature,  ‘playing the game’ is widespread; indeed it is considered by some as necessary for their protection as a researcher, and for the protection of their participating Indigenous communities.  Understanding a researcher’s decision to ignore the advice and direction of an institutional REB is easy when we see that “... research ethics boards can create an unproductive tension between receiving ‘ethics approval’, and being an ‘ethical researcher... because REBs regularly confuse the difference between ‘ethics’ as a noun (i.e. a process for ‘ethics’ review), and ‘ethical as an adjective (i.e. a research review process that is ‘ethical’) ’” (Riviere, 2011: 195).  

While it is easy to understand or validate resistance strategies like ‘playing the game’, I wish to propose a different strategy, one that requires us to stop playing the ‘ethics game’ as dictated by institutional REBs.  I am advocating that we develop our own REB(s), modelled on our specific socio-cultural and ethical principles and practices (see Brant-Castellano, 2004 and Manson, Garroutte, Goins and Henderson, 2004: 60S for similar arguments in other colonial jurisdictions).

What is being proposed here is neither novel, nor unrealistic.  Similar calls have been made by Maori commentators in the past with regards the development of a Maori Ethical Framework (e.g. Palmer 2009; Te Ropu Rangahau Hauora a Eru Pomare, 1996) Precedents have already been set by other First Nations residing in Settler Societies; including the Cherokee (Manson et al, 2004: 65S-70S; Nuu Chah Nulth First Nation (Wiwchar, 2004) and Mi’kmaq Grand Council of Mi’kma’ki (also known as Sante Maio’mi within the seven districts of the Mi’kmaq nation, Nova Scotia).  Indeed, in relation to Canada Menzies (2001: 21) writes that:

Many First Nations communities have now instituted research protocols that researchers must abide by when researching in a First Nation community.  Such protocols, whether community – or researcher initiated, ultimately contribute to the establishment and maintenance of respectful research relations.   

Let us consider the example provided by the eminent leaders of the Mi’kmaq First Nations who authorised the development of the Mi’kmaw Ethics Watch (Ethics’ Eskinuapink) “to oversee research processes that involve Mi’kmaw knowledge sought among Mi’Kmaw people, ensuring that researchers conduct research ethically and appropriately within Mi’Kma’ki” (Battiste, 2007: 114).  Battiste (2007: 114-115) relates that developing the process was “... a significant step toward ensuring Mi’kmaw peoples’ self-determination and the protection of our cultural and intellectual property”.  The said Ethics Committee oversees the research protocol and ethical research throughout the seven traditional districts of the Grand Council, which includes the provinces of Newfoundland, New Brunswick, Nova Scotia, Prince Edward Island, and Quebec.  Members of the original Mi’kmaw Ethics Watch included community elders, leaders and researchers.  This body works in similar ways to REBs; members receive and consider research proposals, assessing them against identified ethics norms and protocols.  The purpose is again, similar to that of an institutionally-focused REB, except in this case the primary goal is the protection of Mi’Kmaw peoples and Mi’Kmaw knowledge (Battiste, 2007: 126-127).

Doing Things for Ourselves

The important thing is that the time has passed when non-Indigenous researchers could even presume to speak on behalf of Indigenous Australians or speculate for one moment about whether their research is different and what the current priorities are, or will be.  This is Aboriginal or Torres Strait Islander business.  The right to establish and control the terms and conditions of cultural research is an inalienable right for all peoples of the Earth.  The colonial era is dead, if not yet buried (Smith, 1997: 25). 

No doubt that the construction of a pan-Maori ethics process would cause discomfort for some REBs and non-Indigenous researchers.  After all, as Glass and Kaufert (2007: 27) write REBs “are accustomed to being the sole arbiters of the ethical acceptability of a project.  With contemporary demands for indigenous participation, they may now be asked (or told) to collaborate with communities who perform another review”.... and furthermore that “[m]ost conventional boards are not yet well prepared to meet the demand of communities for a more interactive partnership”.  No doubt some, including Maori and other Indigenous researchers, will likely advocate for continued participation in REBs, in order to enhance their processes ‘from within’, in a display of beneficial co-operation.  There is some validity to this position because most, if not all New Zealand REBs involve Maori academics as members or external advisors'.  Also, most committees in their protocols a sub-section dedicated to ‘protecting’ vulnerable populations such as Maori and Pacifica peoples.  And yet despite all this, too many Maori academics and post-graduate researchers report being victimised and sidelined by analysis and decision-making behaviour of these committees.  So, by all means let us carry on being members of REBs, and provide gentle chastisement for any unethical, disempowering conduct and decisions.  But let us not lose sight of who they work for in the first instance – the institutions in which they reside.  We need to force the issue by developing a body dedicated to advising, nurturing and supporting our post-graduates and established researchers; a body capable of holding REBs, government agencies and private researchers to task if their conduct negatively impacts Maori researchers and Maori research participants.

In response to the anticipated resistance from REB, their members and the wider Academy, I offer the following rationale: I believe that a separate Maori ethics review forum is a necessity because it would:

• underline the unique status of Maori as Treaty partners;
• serve as a real, observable action that operationalises self-determination in the realm of knowledge production (see Bishop, 1998: 201);
• send a strong message to the non-Indigenous academy, and in particular the institutions they serve, that their perspective on ‘how to research’ the Indigenous Other is no longer hegemonic;
• provide emerging and experienced Maori researchers with an experienced body of experts to whom they can turn for support; advice on methods, methodology, analysis and all other issues relating to scholarship;
• provide an experienced body to which non-Maori/Indigenous scholars, REBs, etc, can engage with to enhance their ability to carry out ethical research with Maori; and
• provide a Maori-dominated body to which Maori individuals, organisations, hapu, iwi and communities can turn for support when confronted with issues involving researchers, REBs and academic institutions. 

Furthermore, by developing our own REB, albeit freed from the ideological strains brought about by Eurocentric hegemony, we will move towards enveloping knowledge construction within the movement towards sovereignty (Wilson, 2004).  We will, in effect, be better positioned to meet the required actions of a sovereign people, as identified in First Nation literature, namely to:

1. resist or reject Eurocentric theory – in this instance theories about the gathering and dissemination of ‘valid’ knowledge;
2. resist or reject versions of ourselves that are fantasies of the power elite – in this instance the hegemonic constructions of ‘otherness’ that permeate New Zealand REB’s;
3. free ourselves to explore epistemological differences, thus freeing ourselves from the constraints of Eurocentric epistemology;
4. reclaim that which is too often denied us – namely the right to gather and disseminate information as we see fit, and resist (if need be) what is said and written about us (see Tuck and Fine, 2007: 163 and Battiste, 2000).

Any arguments (especially by members of the Academy and REB’s) to this suggestion will need to respond to the recent United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly in 2007 that recognises the often poor treatment of Indigenous peoples by its member states and calls for “control by Indigenous peoples over development effecting them and their land”, and the need for Indigenous peoples to give their “[f]ree, prior and informed consent” to any decisions or actions that affect their well-being.  Inarguably, the actions of researchers and research bodies – including academic institutions and their REB’s – can be considered as such. And as Castellano (2004: 102) rightly points out:

 [f]undamental to the exercise of self-determination is the right of peoples to construct knowledge in accordance with self-determined definitions of what is real and what is valuable.  Just as colonial policies have denied Aboriginal Peoples access to their traditional lands, so also colonial definitions of truth and value have denied Aboriginal Peoples the tools to assert and implement their knowledge.  Research under the control of outsiders to the Aboriginal community has been instrumental in rationalising colonialist perceptions of Aboriginal incapacity and the need for paternalistic control.

The Academy, especially members of REBs, and the general population of researchers, might balk at an Indigenous-led ethics process.  No doubt some will view it as just another level of ‘red-tape’.  Schnarch (2004: 93) preempts such concerns when he writes that:

Some researchers may balk at the idea of a First Nations review/approval process, construing it as political interference contrary to academic freedom.  They do, however, readily accept the constraints of peer review for funding proposals, journal articles, and so on.  As with academic review, a First Nations review process is generally intended to ensure quality of the work, its relevance, and the appropriateness of interpretation.

Having prompted some of the likely counter-arguments, I see no reason why we cannot proceed to develop a Maori-specific ethics body in the social sciences.  We already have a ready vehicle upon which to build the process, the Maori Association of Social Sciences, which I believe can easily be turned from a representative/relational body, into one that actively works to support and protect researchers and research communities. 

Concluding Remarks

This now brings us full circle, back to the opening section of the previous blog, that highlighted the range of First Nation criticisms of Eurocentric, institutionalised research processes.  A key motivation for the First Nation focus on Western modes of knowledge construction was the role this activity played in the colonisation process and its ongoing role in Indigenous marginalisation in the neo-colonial context (Tauri, 2009).  As Battiste and Henderson (2000: 132-133) write “[m]ost existing research on Indigenous peoples is contaminated by Eurocentric prejudice.... [thus the development of] ethical research must begin by replacing Eurocentric prejudice with new premises that value diversity over universality”.  It is my contention that if we are to achieve the retrenchment of Eurocentric hegemony over knowledge construction and dissemination, we must challenge the power and authority the academy has granted itself over the production process; a power that is personified in institutionally-centred bodies such as REBs. 

As if we need further justification for Indigenous resistance, we might consider Bradley's (2007: 341) comment that:

By controlling the models of research, who gets to speak and how subjects get to represent themselves, IRBs are in a powerful position as part of the institutional structure.  In this position they can, and often do, silence the voices of the marginalised and perpetuate an academic political economy and a traditional top-down research and professional model that quantify and objectify human lives by keeping them nameless, faceless and voiceless.

References

Battiste, M (2000) Introduction: Unfolding the Lessons of Colonisation, in M. Battiste (Ed.), Reclaiming Indigenous Voices and Vision: xvi-xxx.  Vancouver: University of British Columbia Press. 

Battiste, M (2007) Research Ethics for Protecting Indigenous Knowledge and Heritage: Institutional and Researcher Responsibilities, in N. Denzin; M. Giardina (Eds.), Ethical Futures in Qualitative Research: Decolonising the Politics of Knowledge: 111-132.  Walnut Creek (CA): Left Coast Press. 

Battiste, M and Henderson, J (2000) Protecting Indigenous Knowledge and Heritage: A Global Challenge.  Saskatoon: Purich Publications Ltd. 

Bishop, G (1998) Freeing Ourselves from Neo-colonial Domination in Research: A Maori Approach to Creating Knowledge, Qualitative Studies in Education, 11(2): 199-219.

Bradley, M (2007) Silenced for their own Protection: How the IRB Marginalises those it Feigns to Protect, ACME: An International E-Journal for Critical Geographies, 6(3): 339-349. 

Brant-Castellano, M (2004) Ethics of Aboriginal Research, Journal of Aboriginal Health, 103: 98-114.

Castellano, M (2004) Ethics of Aboriginal Research, Journal of Aboriginal Health: 98-114.

Glass, K and Kaufert, J (2007) Research Ethics Review and Aboriginal Community Values: Can the Two be Reconciled? Journal of Empirical Research on Human Research Ethics, 2(2): 25-40. 

Haggerty, K (2003) Ethical Drift: Governing Social Research in the Name of Ethics, paper presented at the American Law and Society meeting, Pittsburgh, 5-8 June.

Manson, S; Garroutte, E; Goins, R and Henderson, P (2004) Access, Relevance and Control in the Research Process: Lessons from Indian Country, Journal of Aging and Health, 16(5): 58S-77S. 

Menzies, C (2004) Putting Words into Action: Negotiating Collaborative Research in Gitxaala, Canadian Journal of Native Education, 28(1/2): 15-32. 

Palmer, S (2009) Te Tauranga Waka.  Coromandel: Tumana Research. 

Riviere, D (2011) Looking from the Outside/In: Re-thinking Research Ethics Review, Journal of Academic Ethics, 9: 193-204.  

Schnarch, B (2004) Ownership, Control, Access, and Possession (OCAP) or Self-determination Applied to Research: A Critical Analysis of Contemporary First Nations Research and Some Options for First Nation Communities, Journal of Aboriginal Health, January: 80-95. 

Schwandt, T (2007) The Pressing Need for Ethical Education: A Commentary on the Growing IRB Controversy, in N. Denzin; M. Giardina (Eds.), Ethical Futures in Qualitative Research: Decolonising the Politics of Knowledge: 85-98.  Walnut Creek (CA): Left Coast Press.

Smith, A (1997) Indigenous Research Ethics: Policy, Protocol and Practice, The Australian Journal of Indigenous Education, 25(1): 23-29.

Tauri, J (2009) The Maori Social Science Academy and Evidence-based Policy, MAI Review, June (online).  

Te Ropu Rangahau Hauora a Eru Pomare (1996) Hui Whakapiripiri: A Hui to Discuss Strategic Directions for Maori Health Research.  Wellington: Te Ropu Rangahau Hauora a Eru Pomare.

Tuck, E and Fine, M (2007) Inner Angles: A Range of Ethical Responses to/with Indigenous/Decolonising Theories, in N. Denzin; M. Giardina (Eds.), Ethical Futures in Qualitative Research: Decolonising the Politics of Knowledge: 145-169.  Walnut Creek (CA): Left Coast Press. 

Wilson, W (2004) Indigenous Knowledge Recovery as Indigenous Empowerment, American Indian Quarterly, 28: 359-372. 

Wiwichar, D (2004) Nuu-chah-nulth Blood Returns to West Coast, Ha-Shilth-Sa, 16 December.

Explaining the Condescending Ethics of Research Ethics Boards in Neo-Colonial Contexts

The purpose of this blog is to provoke discussion and debate about the practices of University Research Ethics Boards and the important role they play in determining what is, and what is not, 'ethical' research; often without the requisite experience of Indigenous approaches to knowledge construction, and little experience of research with (as opposed to 'on') Indigenous peoples.

Background 

To assume that the Aboriginal past or knowledge can be adequately explained from a totally foreign worldview is the essence of cognitive imperialism and academic colonisation                                    

                                                                              Henderson (1997, p. 23, emphasis added)

In 2008 I enrolled in my PhD at AUT University, in Auckland, New Zealand.  At the end of the following year I handed in my ethics approval forms as required of all students wanting to carry out post-graduate research at  a New Zealand university.  Having developed research/ethics guidelines for government agencies in the past, assisted other Maori post-graduates experiencing difficulties with institutional ethics processes, and cognisant of the many and varied issues with these processes as reported in the growing, critical literature (see Absolon, 2008; Berg, Evans & Fuller, 2007; Ellis & Earley, 2006; Marker, 2004; Smith, 1999; Wax, 1991), I was especially attentive to the principles and process utilised by AUT to measure the ethics of post-graduate student research.  

After reading through the wad of papers provided by AUT's Research Ethics Board (REB) (known as AUTEC) I had quickly come to the following conclusions:

1. the committee employed a set of risk-reduction focused, standardised  ethics 'tools'.  These tools were derived largely from the biomedical model that has long been challenged by 'critical' social researchers for privileging the 'autonomous, rational individual' over collective approaches with regards to all aspects of the research process;
2. the key concepts and related practices, such as informed consent, risk, anonymity, etc,  were central to the ethics toolbox;
3. the REB included the usual sub-section on 'engaging with Maori/Pacifica/minorities' which included the standard, vague command that we (researchers) 'ensure the cultural appropriateness of our research with Maori/minorities', etc, etc;
4. the REB in question relied heavily on a set of standardised, 'tick-the-box' processes for guiding its decision-making; and
5. despite having a Maori member, the Board had little experience of qualitative research with Maori, none whatsoever with Canadian First Nations, and no members with knowledge and experience of the discipline that informed the authors approach, Criminology. 

This situation was clearly going to cause problems for the proposed research as the methodology (including the ethics protocols - i.e., the key principles and practices that ensure you carry out respectful, appropriate research that does not place research participants at risk) was developed from significant, prior engagement with Indigenous advisers and potential research participants (both in Canada and New Zealand): in other words the 'ethics protocols' were set by the Indigenous participants themselves, accredited by experienced Indigenous researchers and experts from within the participating Indigenous communities.  This process - developing an ethical framework for research engagement with Indigenes - is central to much of the Indigenous scholarship on the subject of ethical research with Indigenous peoples (for references read pretty much all the references already cited in this piece, as well as Bishop, 1998; Glass and Kaufert, 2007 and Schnarch, 2004).  The engagement process resulted in an ethics protocol highlighted by the following:

1. no recording of interviews/focus groups in long houses/marae (if these venues are utilised);
2. informed consent for focus groups to be based on collective, verbal agreement and not signed forms;
3. where verbal agreement is given (and due to recording devices not being used), one individual (delegated by the group, or a designated elder) will be contactable by AUT persons if verification of consent is required; and
4. provisions will be made for individualised, written informed consent if requested by First Nation participants, but the emphasis would be on their preferred, collectivist engagement and consent practices.

In other words, the Indigenous-derived ethics process approach was to be privileged in both the New Zealand and Canadian contexts.

Unsurprisingly, the REB's response was less than ideal, with the original and subsequent applications being rejected, mostly on the basis of the privileging of collectivist, verbally derived informed consent over that of the standard, individual-focused, written consent process preferred by AUTEC.  The second application included a thorough critique of the REB's preferred consent process, based on Indigenous literature and the views of the author's Indigenous advisers, and a thorough explanation of the rationale behind the Indigenous ethics protocol.  As a compromise, the REB was offered a dual process: at the start of each community engagement, participants would be offered AUTEC's informed consent process; if this were rejected (as was likely), then the author would revert to the process stipulated by participants.  The REB in question rejected the compromise offered of a dual-consent process and continued to attempt to force its preferred individualised consent and engagement process upon the researcher and his research participants. Many more months were lost attempting to alter the approach taken by the REB, before my supervisor finally received formal sign off for the research to proceed in April 2010. 

Having provided the background, I want to move to explaining why this type of situation commonly occurs when Indigenous researchers, and research participants, find themselves engaging with academic REBs.

Indigenous critique of institutionalised ethics

Recently, a number of First Nation researchers have criticised the role REB’s play in stifling Indigenous-led, community-driven research.  Indigenous and (critical) non-Indigenous  critique of REB conduct covers a broad range of issues, including (but by no means exclusively):

Individualism – marked by the privileging of the autonomous research participant, and informed consent processes that forces individualised research and ethics protocols upon collectives.

Lack of expertise – members of REBs often lack adequate disciplinary, epistemological and methodological expertise in Indigenous research/issues, resulting in an over-reliance on tick-the-box approaches that ensure the hegemony of institutionally-derived protocols.

Universalism – the propensity for REBs to utilise processes derived from Eurocentric notions of ‘right’ (research) conduct, and essentialist notions of what does/does not constitute an ethical researcher, all of which eulogise the ‘individual’ research participant and marginalise social groups which prefer collectivist constructs to guide the research process.

Formulism – an over-reliance on standardised, formulaic, ‘tick-the-box’ approaches that mask the complexity of the social context within which research takes place.

I argue that the research-related universalism described above, forms a key operating principle for AUT's REB, and perhaps for all academic institutions across Settler Societies.  

Universalism works as a dominant operational principle throughout the country, despite the fact that all REB-related guidelines include text exhorting researchers (and, one presumes, REB’s) to ‘respect difference’.  Universalism, especially the Eurocentric, 'one-size-fits-all' approach to ethics it encourages, poses a significant risk for the Indigenous researcher and their research participants; a point repeatedly made during the interviews and focus groups I proceeded with in the second half of 2010 and throughout 2011 - and to which I included a set of questions on my participants views of AUTEC's behaviour.  For example, one prominent Maori researcher, when interviewed for my doctoral research said the following about AUTEC's attempts to override the Indigenous-derived ethics protocols I had initially developed:

The issue seems to me to be about their (the REBs) authority, and not about the best way of going about this business.  As Maori we have the right to determine how both insiders and outsiders research with us... reading that document [the REB’s written determination re: the second EA1 application], reads like they didn’t want to understand because it was easier to stick with what they know.  That is not a system based on everyone being the same [Universalism], but on everyone being like them. It is condescending to the extreme to tell us our ways are unethical.

The condescending ethics of research ethics boards

‘Condescending ethics’ – positions participants as the ‘Other’, reinforces powerlessness, and further marginalises them with knowledge production processes.                                    

                                                                                
                                                                               Reid and Brief (2009, p. 83)

So how do we explain the current state of affairs of institutionalised ethics processes in New Zealand and other Settler Societies?  To begin we might describe their processes and behaviour as little more than a contemporary manifestation of the condescending ethos that formed the basis of the role played by the academy and its research activities in the colonisation of First Nations (Battiste, 2000; Smith, 1999).  

The condescension of academic REBs and their processes relates directly to their preference for individualised research ethics, and the categorisation of the ‘subject’ as an autonomous entity to be engaged in meaningful ways, preferably after the institutionally-focused review process has been followed.  It is in the construction of the 'ethical' research subject as he/she whom acts autonomously (apart from the collective), and who can only give consent 'in writing', that we find the basis of the condescending institutional formulation of the 'right way' to engage ethically; a way that by necessity, marginalises any and all other approaches to gathering, analysing and disseminating knowledge.

Butzs’ invocation of Habermas’ concept of communicative action in relation to his own experiences of REB’s, provides a useful conceptual framework for understanding the condescending ethos that supports institutionalised ethics processes such as those employed by AUTEC and other, similar institutional Boards.  

According to Butz, Habermas distinguishes between two principle forms of ‘action’ in late modernity, Instrumental and Communicative.  Instrumental action is “oriented to technical manipulation and control, and communicative action to the ideal of intersubjective understanding and consensus among individuals” (Butz, 2008, p. 250).  As Butz states (Ibid, p. 250, emphasis his)

The former is outcome oriented, the latter process oriented.  For Habermas, communicative action is ethically prior to instrumental action, in that the justice of an outcome is contingent on the justice of the process that yielded it.  In contemporary modernity, he argues, the communicative effort to reach consensus is frequently sacrificed to the imperative of bureaucratic efficiency.

It is easy to view the author’s experience of REB’s in New Zealand (and, according to the extant literature, other Settler societies), in this vein, especially: 

[w]hen it is assumed that the problem of voluntary informed consent is solved by asking participants individually to sign written consent agreements regardless of the research context, then a fully communicative appreciation of the adjectives voluntary and informed are subordinated to the instrumental purposes of the monitoring and controlling attached to the noun consent (Butz, 2002, p. 251 – emphasis his).

Central to our understanding of the condescending nature of REB process and Indigenous research, is the concept of power.  In the mythology of the development of contemporary research ethics, REBs arose from concerns of power imbalances between the researcher - all powerful, and therefore ‘potentially dangerous’, and the research subject – powerless and in need of protection, provided, of course, by REBs as the independent arbiter of ‘righteous research conduct’ (Juritzen, Grimen & Heggen, 2011).  Juritzen et al argue in favour of expanding the conceptualisation of power in the researcher-research subject relationship to critically encompass “ethics committees as one among several actors that exert power and that act in a relational interplay with researchers and participants” (ibid, p. 640).  Thus, given the considerable power REBs wield, they cannot be exempt from critical commentary.  Let us now turn to explaining how and why condescending ethics processes manifest themselves through institutionally-derived REBs.

Lack of expertise, REBs and condescending ethics

The reported experiences of First Nation commentators and researchers points consistently to one key source of discontent with REBs, namely that their members generally lack experience of Indigenous communities, and the core principles and practices that are central to knowledge construction and dissemination within these Nations (Smith, 1999).  Sadly, in my experience, and that of other Indigenous researchers, this results in REBs that are dominated by non-Indigenous academics and external advisors' who make decisions about appropriate ethics protocols, while lacking the necessary socio-cultural experience and knowledge to make informed decisions on the 'ethics' of Indigenous research conduct. 

Van den Hoonaard (2006, p. 269) contends that the issue for many researchers is not the ethics codes used by REBs, but rather how these codes are interpreted and employed by committee members; especially where members clearly have little experience of the context within which research takes place.  This position is supported by significant literature (e.g., Anthony, 2004; Bradley, 2007; Haggerty, 2003) and comments made to the author during his recent engagement with First Nation researchers, including one research participant who stated that:

In my dealings with IRBs, I find they will have a standard ethics guidelines; go to the bibliography and all the usual experts are there, Henderson, Smith... they [REBs] say the right things, consult, engage, privilege [the Indigenous], but the practice is different.  Mainly white committees, no experience of us, who revert to their ways, to what they understand to be right.

Reid and Brief (2009, p. 83) highlight this failing with respect to their own experience of REB interference in their ethnographic project: “.... they did not have the capacity or resources to fully support ethical decision-making in the project, nor did they have the mechanisms in place to hear from the community researchers themselves”. 

Arguably, in the case of Indigenous-focused research, the lack of knowledge and experience of the research context is of greater risk to both researcher and participants than lack of disciplinary expertise.  Hammersley (2006, p. 4) describes the dangers thus: “Researchers’ decisions about how to pursue their enquiries involve weighting ethical and other considerations against one another, and this requires detailed knowledge of the contexts concerned”.  By drawing conclusions on the ethics of research situations they have little expertise in or knowledge of, and ignoring advice from those with the relevant experience, REBs place Indigenous researchers and their research participants in danger of experiencing ‘unethical institutionalised research’.  Hammersley (2006, p. 6) further states that:

What is involved here, to a large extent, is a great pretence: ethics committees are to operate as if making research decisions were a matter of applying a coherent [standardised] set of ethical rules that do not conflict with any other considerations, or that override them, and that good decisions can be made without having much contextual knowledge.

While following and conforming to an institutionalised bureaucratised ethics process means you have ‘acted’ as an ethical researcher in that particular context, the experience of the author, his research participants and the published (critical Indigenous) record, demonstrates that simply following REB processes does not guarantee ethical research ‘on the ground’.  It is argued here that conformity to the Academy’s bureaucratised processes comes with significant, potentially ‘unethical’ baggage because, as Knight et al (2004, p. 397) argue, institutionalised ethics protocols are a set of “cultural norms that [serve] the interests and reflects the values of the IRB and the academy”.   These cultural norms, replicated through mandatory engagement with institutional ethics processes, reflects the ‘knowledge by mass production’ that permeates so much of the Academy today; the dangers of which are beautifully summarised by Lorenz (2012, p. 606) who writes that:

We should not be surprised.... that universities have been changing in the direction of academic capitalism in the form of entrepreneurial McUniversities.  This development boils down to ‘a move from elite specialisation with strong professional controls towards a ‘Fordist’ mass production arrangement’. 

The McDonaldisation of the Academy is perhaps most evident when the formalisation of research becomes married with an over-reliance by academic institutions on universalistic processes of knowledge construction.  This situation, combined with the general lack of expertise of REB members of the Indigenous social context, generates an environment for the Indigenous pursuit of knowledge that is often seriously impeded by the inherent contradictions and condescension of the Academy's Eurocentric notions of 'right conduct' in the research context.  

In the next instalment of The Indigenous Criminologist I will offer a solution to the current dominance of REBs in determining what is/is not ethical conduct with Indigenous peoples, by arguing for a Maori-led process developed and delivered through the auspices of the Maori Association of Social Sciences.  

References

Absolon, K. (2008). Kaandosswin, this is how we come to know!  Indigenous graduate research in the academy: Worldviews and methodologies, unpublished PhD, University of Toronto, Toronto.
Anthony, R. (2004). Consistency of ethics review, Forum Qualitative Sozialforshung/Forum: Qualitative Social Research, Vol. 6 No. 1, online.  
Battiste, M. (2000). Introduction: Unfolding the lessons of colonisation.  In M. Battiste (Ed.), Reclaiming Indigenous Voices and Vision, xvi-xxx.  Vancouver: University of British Columbia Press.  
Berg, L., Evans, M. and Fuller, D. (2007). Ethics, hegemonic whiteness, and the contested imagination of 'aboriginal community' in social science research in Canada, ACME: An International E-Journal for Critical Geographies, Vol. 6 No. 3, pp. 395-410.  
Bishop, R. (1998). Freeing ourselves from neo-colonial domination in research: A Maori approach to creating knowledge, International Journal of Qualitative Studies in Education, Vol. 11, pp. 199-219. 
Bradley, M. (2007). Silenced for their own protection: How the IRB marginalises those it feigns to protect, ACME: An International E-Journal for Critical Geographies, 6(3), 339-349. 
Butz, D. (2008). Sidelined by the guidelines: Reflections on the limitations of standard informed consent procedures for the conduct of research, ACME: An International E-Journal for Critical Geographies, Vol. 7 No. 2, pp. 239-259. 
Ellis, J. and Earley, M. (2006). Reciprocity and constructions of informed consent: Researching with indigenous populations, International Journal of Qualitative Methods, Vol. 5 No. 4, pp. 2-13.
Glass, K. and Kaufert, J. (2007). Research ethics review and aboriginal community values: Can the two be reconciled?  Journal of Empirical Research on Human Research Ethics, Vol. 3 No 2, pp. 25-40. 
Haggerty, K. (2003). Ethical drift: Governing social research in the name of ethics, paper presented at the American Law and Society meeting, Pittsburgh, 5-8 June. 
Hammersley, M. (2006). Are ethics committees ethical?  Qualitative Researcher, Vol 2, 4-7. 
Henderson, J. (1997). The Mi'kmaw Concordat. Halifax, Fernwood Publishing.
Juritzen, T., Grimen, H. and Heggen, K. (2011). Protecting vulnerable research participants: A Foucault-inspired analysis of ethics committees,  Nursing Ethics, Vol 18 No. 5, pp. 640-650. 
Knight, M., Bentley, C., Norton, N. and Dixon, I. (2004). (De)constructing (in)visible parent/guardian consent forms: Negotiating power, reflexivity, and the collective within qualitative research,  Qualitative Inquiry, Vol 10 No. 3, pp. 684-699. 
Lorenz, C. (2012). If you’re so smart, why are you under surveillance?  Universities, neoliberalism, and new public management.  Critical Inquiry, Vol. 38, pp. 599-629.
Marker, M. (2004). Theories and disciplines as sites of struggle: The reproduction of colonial dominance through the controlling of knowledge in the academy, Canadian Journal of Native Education, Vol. 28 No. 1/2, pp. 102-110. 
Reid, C., and Brief, E. (2009). Confronting condescending ethics: How community-based research challenges traditional approaches to consent, confidentiality, and capacity,  Journal of Academic Ethics, Vol. 7, pp. 75-85.
Smith, L. (1999). Decolonising methodologies: Research and indigenous peoples. Dunedin: University of Otago Press.  
Scharch, B. (2004). Ownership, control, access, and possession (OCAP) or self-determination applied research: A critical analysis of contemporary First Nation research and some options for First Nation communities,  Journal of Aboriginal Health, January, pp. 80-95. 
van den Hoonard, W. (2006). New angles and tangles in the ethics review of research,  Journal of Academic Ethics, 4, 261-274. 
Wax, M. (1991). The ethics of research in American Indian communities,  American Indian Quarterly, Vol. 15 No. 4, pp 457-469. 

Critiquing Arguments Against Extending the Jurisdiction of Indigenous Law

The following post is not written in the 'academic style', just notes I use when discussing with students in my Indigenous Justice unit at Queensland University of Technology, arguments for and against extending the use of 'customary law', or what I prefer to call Indigenous Law.  My apologies to colleagues if I haven't referenced as per the academic convention (as long as I've presented our ideas accurately!).  Nor have I rewritten the piece to correct grammar, etc; instead it is written very much how it is spoken in class; in general, not specific terms. I've simply uploaded the notes as prepared for the lecture; in other words posted 'as is' in order to contribute to debate on this issue:

A Few Comments on Customary Law to my QUT Indigenous Justice Students

For JSB381 students to consider:

The term customary law: is something that should give you all pause to think; why is it that any other ‘law’ besides European (British) law is often described as ‘customary’? 

This is an issue within ‘law’ and justice that has been pondered by great Indigenous theorists, jurist and thinkers.  For example, the great Nigerian Criminologist, Biko Agozino refers to this type of ‘reasoning’ – that all European law is ‘the law’ while all others are ‘customary’ - as a continuation of the Imperialist Reasoning used to legitimise the colonisation of Indigenous peoples and the imposition of European legal jurisdiction over subjugated peoples.

The Maori jurist, Moana Jackson, goes a little further, describing this kind of representation of Indigenous law as being based upon racist assumptions of the superiority of Eurocentric law, and the baseness of the law of coloured folk; of its inherent weakness due to its not being written, codified or institutionalised.  Building on the work of the legal Anthropologist Fitzgerald, who wrote about the mythology of law, we might describe these assumptions as forming the Great White Myth of Law, one based on the racist assumption of the inherent superiority of ‘White Ways’ due to a related belief that the legal system we now practice in Settler Societies is the end point of legal evolution; that is it the ‘best way’ of 'doing law and seeking justice'.

Let us take a moment to consider and dissect these notions:

1.    That Indigenous law was not codified: we are able to demonstrate that this is pure myth; at the time of colonisation, Europeans were writing of the codified laws of the Dine (Navajo), and of the six Nations of the Iroquois peoples who straddled what is now the Eastern US/Canadian border, and who’s Confederation the founding fathers of the American constitution and the Republic, actually based that constitution upon (at least in part). 

2.  The myth of codification is based on an assumption that Indigenous law is inherently weak(er) than White Law because it was not written down; it was practiced and hand down thru generations orally.  And yet we have 19^th and 20^th century European Anthropologists recording and reporting the sophisticated, orally derived legal processes of numerous First Nations; of Tohunga, legal specialists trained in linking genealogy with ‘cases’ that demonstrate precedence and an evolving jurisdiction, the supposed hallmark of the superior, codified Western European law.

3.   Indigenous law is inferior because it is based in the distant past: things have changed, so therefore it is not applicable to the contemporary moment: and yet we see in Africa, over the past 2 decades, more and more jurisdictional autonomy being given to First Nations in various countries, to mould a contemporary justice system based on ‘ancient’ philosophies and practices, carried out via resurrected, localised justice institutions.  We see in New Zealand over the same period (in a small number of largely rural areas), the resurrection of communal, marae-based justice processes, based on tikanga (think about Aroha Terry's marae-based justice process for dealing with sexual offending, practiced in the Waikato region in the 1990s onwards), blended with contemporary notions and practices of human rights, which yet again highlights the racism inherent in the assumption that Indigenous justice and cultural is incapable of ‘evolving and changing’, and incapable of being applicable to the modern world. 

      If this were so, then how do we explain the movement amongst Western, European jurisdictions to adopt so many of our justice philosophies and practices; FGC’s, Circles, significant elements of what they call restorative justice, etc?  It is evident that continued moves by existing legal institutions, law makers, politicians and the like, to block the extension of jurisdictional autonomy to First Nations, has little to do with the inherent weakness of Indigenous law, or the inability of our peoples and culture to ‘evolve’, but instead has everything to do with maintaining the status quo, namely the hegemony of their way of law.

4.   So, let's look closely at the law and legal institutions of contemporary Settler States:  does the fact that it is written (in fact almost all contemporary Indigenous justice processes are now written and codified, yet again underlining the myth of our inability to grow and adapt), that it is codified and institutionalised make it inherently more just than Indigenous justice?  If your answer is yes, then think about the growing numbers of exonerations being passed down in American, Canadian, New Zealand jurisdictions, and becoming a not so rare feature of Australian jurisdictions: decisions that come about, in the main (or in part, depending on your ideological persuasion!), because of judicial and police racism, classism and sexism.  Think about the racist laws passed (or the laws and powers used in racist ways) that drive people of colour in to the system, or drive them ever deeper into it; e.g. the anti-drug laws of America, search and seizure laws in Great Britain targeting black youth, ‘move on’ and search laws in Australia, the NTER, and so on.  Think about the massive amount of research evidence gathered by white criminologists and Indigenous researchers on the failings of our legal system; of its class, race and gender bias, of the myriad unjust sentences/decisions, and of the inhumanity of our correctional regimes….. consider all this body of evidence and think twice about arguing, as some do here in Australia, that Indigenous justice should not be promoted or extended because it promotes/supports child rape, violence against women, and is founded on archaic, inhumane punishments.

5.   On the argument of the violence of Indigenous justice: we often hear or read non-Indigenous commentators saying that ‘customary law’ supports violence, that it is inhumane – let us be frank, in times past our responses to social harm were by today’s standards, ‘inhumane’, but as previously discussed, this presupposes that those same penalties will be employed in a contemporary, reconstituted Indigenous legal system.  In others words, those espousing such views are falling back on the tired, racist assumptions about our inability to change with the times.  And with all the injustice and inhumanity practiced in Western jurisdictions, as stated previously, can anyone truly argue that the contemporary system is always just and humane? 

 

Lastly, on the argument that Indigenous law supports violence against women and children, we have no evidence to that effect so we can’t argue definitively either way on this matter: unfortunately, what we most definitely have is evidence that western influences have permeated some Indigenous communities, re: ‘imported’ notions and practices of gender and familial relations, power and authority, that have framed ‘institutionalised’ violence within our communities (and yes, a trend we must acknowledge, own and respond to ourselves).