Blog | From Hearings to Listening: C-11, the CRTC, and Meaningful Engagement

TLDR: This blog follows up on the Cultural Policy Hub’s recent Policy Roundtables event on Bill C-11. It highlights that, while the law is noteworthy for its explicit provisions requiring the new broadcasting framework to support Indigenous and equity-seeking creators, there remain significant barriers to meaningful engagement with regulators. The blog argues that the law’s implementation is iterative and should include ongoing consultation with communities, and calls for the Canadian Radio-television and Telecommunications Commission (CRTC) to establish an engagement group for members of equity-seeking and ethnocultural communities.

In April 2023, following years of consultation and debate, Bill C-11 became law. Formally titled The Online Streaming Act, this new law lays the foundation for the Government of Canada’s efforts to modernize the country’s broadcasting framework. The headline feature of the renewed framework is that it will, for the first time, require online streaming services to contribute to Canada’s content production and exhibition ecosystem. But for Indigenous peoples and members of equity-seeking communities, the Act is especially noteworthy for its explicit provisions requiring the new broadcasting framework to support Indigenous and equity-seeking creators, including creators from Black or other racialized communities.

Following the Act’s passage, it falls to the CRTC to devise and implement specific regulations to achieve the legislation’s broad goals, including its diversity mandates. As the CRTC embarked upon this multi-phase process last year, the Minister of Heritage issued a set of policy directions by way of guidance. Notably, these directions explicitly instruct the Commission to engage with Indigenous peoples and members of equity-seeking communities concerning the necessary tools and funding mechanisms to facilitate their full participation in the industry. These mandates directly reflect the input of advocates from these communities during the Bill C-11 consultation process, and it is worth reproducing the relevant directions in full:

Engagement

Indigenous peoples

14 In its regulation of the Canadian broadcasting system, the Commission is directed to engage with Indigenous peoples and Indigenous partners, governing bodies, broadcasters, creators, producers, industry organizations and community members and, in doing so, collaborate with relevant federal departments where possible to solicit comments on, among other things,

(a) how to best support Indigenous broadcasting undertakings to help ensure the viability of the Indigenous broadcasting sector;

(b) the use of regulatory conditions that foster the success of business models that provide and reflect Indigenous perspectives;

(c) how to support the discoverability of programs by Indigenous creators;

(d) the most appropriate tools, including funding mechanisms, for supporting Indigenous storytelling and production as well as Indigenous-led organizations that could manage and be responsible for that support; and

(e) the measures that are necessary to ensure its regulatory approach is in furtherance of the objectives of the United Nations Declaration on the Rights of Indigenous Peoples and supports narrative sovereignty in the Canadian broadcasting system.

Equity-seeking and ethnocultural groups

15 In its regulation of the Canadian broadcasting system, the Commission is directed to engage with members of equity-seeking and ethnocultural groups, including Black or other racialized communities, to solicit comments regarding

(a) the most appropriate tools, including funding mechanisms, to support those groups; and

(b) the development of a framework of measurable targets to support the creation, availability and discoverability of programming made by and broadcasting undertakings carried on by members of those groups.[1]

On paper, this language is greatly encouraging, particularly in conjunction with a subsequent clause directing the Commission to make those engagements “as accessible as possible.”[2] In practice, however, the Commission has not yet articulated specific plans to fulfill these engagement mandates in a dedicated, comprehensive, collaborative and indeed accessible manner.

A select number of organizations representing these communities were invited to participate in last fall’s public hearings convened by the CRTC on initial steps to establish the new regulatory framework. These organizations included the Indigenous Screen Office, BIPOC TV and Film, and the Canadian Independent Screen Fund for BPOC Creators (CISF), each of whom was also represented in the Cultural Policy Hub’s recent panel titled Hearing & Listening: A Bill C-11 Roundtable. As that conversation made clear, even for those organizations invited to present at the hearings, there remain significant barriers to meaningful engagement with regulators.

For example, because the hearings are a quasi-judicial process, participants benefit from being able to call upon the expertise of regulatory consultants and legal counsel. While for-profit entities may enjoy access to in-house legal teams, non-profits and community organizations typically lack the resources to employ lawyers to assist in preparing their submissions, and their staff seldom have the capacity to familiarize themselves with esoteric regulatory precedents. Compounding these disparities, the community organizations taking part in the fall CRTC hearings were generally allocated just five minutes to give the hearing presentations—half of what was typically allocated to representatives of larger commercial organizations.

As a representative of the Racial Equity Media Collective (REMC), I was asked to write this blog post in response to the discussion hosted by the Hub to provide some additional insight into the hearings process and the promise of “meaningful engagement.”

As one of those community advocacy organizations fortunate enough be able to participate in the hearings, I chose to use part of our own five-minute presentation to draw the Commission’s attention to an existing initiative that the CRTC has itself undertaken to advance the interests of official language minority communities (OLMCs). We emphasized that this initiative could serve as a suitable model for the kind of robust engagement contemplated by the policy directions set out above.

In 2006, the Commission established the CRTC-OLMC Discussion Group as a forum to “enhance the vitality and support the development of OLMCs and to promote Canada’s linguistic duality,” in accordance with the Official Languages Act.[3] Per the CRTC:

The Discussion Group is a forum for exchange, communication and co-operation where the OLMCs and the CRTC can identify ways and ensure the follow-up required to maximize the communities’ participation in the CRTC’s public processes and take their realities into account in the CRTC’s analysis and discussions leading to decisions, policies and other initiatives in which the CRTC’s role in respect of OLMCs is engaged.

The discussion group is committed to meeting at least three times a year. These meetings are generally held at the CRTC’s headquarters, with arrangements for participation via conference call or videoconference.[4]

In a written follow up to our hearing presentation, REMC called on the Commission to draw upon the example of the CRTC-OLMC Discussion Group and establish an engagement group for members of equity-seeking and ethnocultural communities, including Black or other racialized communities. As we envision it, this CRTC engagement group would convene on a similarly regular basis (i.e. three times a year), and would be a similarly open and cooperative space, premised on exchange and with a focus on maximizing our communities’ participation in the regulatory process. It would be free of the judicial trappings of the public hearings, shedding the legalistic procedures that can form a significant barrier to under-resourced community organizations without in-house counsel. During the hearings, participants were expected to respond from memory to spontaneous questions on complex topics—a format unlikely to elicit deep or detailed insights. In contrast, we imagine that a standing CRTC engagement group would issue detailed agendas to its participants in advance of meetings, and, where appropriate, allow participants to take questions away to facilitate responses informed by data collection and community consultation.

Establishing a dedicated CRTC engagement group for equity-seeking communities would send an important signal, indicating that the Commission takes its mandates seriously and recognizes the systemic barriers that may impede participation in its standard proceedings and public hearings. The CRTC-OLMC Discussion Group provides a clear precedent as to how the Commission can proactively make space to engage with minoritized communities, and, in our view, it would be difficult for the Commission to justify having created a group to serve one of its mandated engagement communities but not the others.[5]

The CTRC does not appear to have set out public criteria for participation in its OLMC Discussion Group, so I cannot comment on whether similar criteria would be appropriate for determining participation in an engagement group for equity-seeking communities. But in our view, the group certainly ought to include representatives from the Black Screen Office and the CISF, as these are the two Certified Independent Production Funds specifically dedicated to serving Black and racialized screen-based creators. We also imagine that the Disability Screen Office would make a natural participant, as the most prominent screen sector organization representing Canadians with disabilities. Of the other organizations that participated in the fall CRTC hearings, representatives from BIPOC TV & Film, the Reelworld Screen Institute, Coalition M.É.D.I.A., the Racial Equity Screen Office and ADVANCE would also be well positioned to contribute to a CRTC engagement group for equity-seeking communities.

Of course, we would hope that the CRTC would make additional efforts to include relevant organizations who did not participate in the public hearings, recognizing that many such groups may have been precluded from doing so by barriers like those previously referenced . And given the particular considerations applicable to Indigenous communities, including narrative sovereignty interests, we believe that it would be appropriate to establish a parallel Indigenous peoples engagement group dedicated specifically to addressing the Indigenous engagement mandates cited in the policy directions above.

The final window for comments in response to the CRTC’s fall hearings closed on February 15, and the Commission has yet to make pronouncements on its initial findings, including whether it plans to establish an engagement group for members of equity-seeking communities. However, in late January, the Department of Heritage committed to allocating $650,000 to the Broadcasting Participation Fund (BPF) for the two-year period of 2023-2025. The BPF provides support to public interest groups appearing before the CRTC, as well as support for research, analysis and advocacy. Last year, BPF administrators announced that the fund was critically oversubscribed and in danger of closure. This infusion from the government was therefore essential.

But the BPF itself cannot ameliorate all barriers to participation, not least because it can only reimburse groups for eligible costs already incurred. Especially given the practically limitless legal and lobbying resources of the U.S.-based streamers, if equity-seeking communities are to play a meaningful role in re-envisioning the Canadian broadcast system, a dedicated, collaborative and ongoing space for engagement with policymakers and regulators is urgently required.