What Are The Fiduciary Duties Of Heritage Minister James Moore?

I’ve traded comments with Andrei Mincov on one of my earlier posts. Andrei has some definite views, which I partially agree with, and partially disagree with. Like Andrei, I’m for freedom. Unlike Andrei, I recognize that freedom stems from regulation. Without regulations criminals would rule the streets. Without regulations, we would all be serfs.

Consider the Magna Carta Libertatum. Originally it was an agreement (enforced at sword point) between King John of England and his vassals, the Barons. To quote from Wikipedia:

Magna Carta required King John of England to proclaim certain rights (pertaining to freemen), respect certain legal procedures, and accept that his will could be bound by the law. It explicitly protected certain rights of the King’s subjects, whether free or fettered — and implicitly supported what became the writ of habeas corpus, allowing appeal against unlawful imprisonment.

Technically this abridgment of King John’s freedom, secured the freedom of his subjects. It limited the actions that the King could take, by binding him to the law (previously the law did not apply to the King).

It is recognized in human society that various sorts of limitations are necessary for human civilization to function. When those limits do not exist (for example in Josef Stalin‘s Soviet Union) society breaks down. In places where those limits are shaky, like in the United States, society suffers.

Andrei commented:

Government has no right to deprive someone of the right to fail at someone else’s expense.

My response was

So I should be able to sell you a car that is improperly designed, and make a profit, even if it kills you. That’s an interesting concept.

There is a fine line between over regulation and the public good. Too much regulation, and you have a situation where nothing can happen (I’ll refer to the later Soviet Union, where bureaucracy paralyzed the state, except for the armed forces, which the bureaucracy was designed to support). Too little regulation and you have a situation where criminals control society – the Barons that King John faced were some of the worst sociopaths in the country. They had to be to retain their baronial seats against the king, and against their peers.

At this point I’d like to segue to the Gulf of Mexico – should BP be allowed to cause damage to it’s neighbors? Think about it. The fisherman in Louisiana may loose their livelihoods because of the oil spill. Does BP have a responsibility to repair the damage caused by the oil spill? Because it is the same issue. Andrei also made a claim that

That’s what the monstrosity about social justice is all about. It requires that in order to give the unearned to the undeserving, the government use force to extort value from people of achievement.

You could read Andrei’s statement as saying that the money that the people of Louisiana could earn from having a sound ecosystem is unearned, and that they are undeserving of government protection. Or legal protection if you wish. Executive. Legislature. Judiciary. These are the three legs of government. The courts, or judiciary, are the third leg of the government stool. All three parts of the government have a fiduciary duty to the citizenry. When part of the government fails to act on a situation for which it is responsible, the damage can be profound.

While any government has a fiduciary duty to its citizens it is most notable in a democracy. Admittedly Canadian Democracy was originally designed to allow a small group of cognoscenti to maintain control of the country, much like the system in our mother country, England. Again much like England, there has been many shifts in power since Wolfe‘s soldiers beat Montcalm‘s soldiers on the Plains of Abraham in September of 1759 AD. The Canadian and English systems are flexible enough to allow for these transferals of power, unlike the American system, which appears to have been based on one of the wonderfully crazy cartoon machines drawn by legendary cartoonist Rube Goldberg.

Regardless which government has been in power in Canada, that fiduciary duty exists. In some cases it may force the government to act against the wishes of the citizenry, a good example being the Canadian declaration of war against Germany in 1939, which was very unpopular in Quebec, or the legalization of same sex marriage, which is still a contentious issue in many circles. In both of these cases, it could be argued that the best interests of the people, did not coincide with public opinion.

Social Justice often involves the government taking action that the citizenry may not appreciate. Consider seat belt laws. By enacting seat belt laws the government is saying that it knows what is better for you than you do. I can remember my father’s fury about the seat belt law when it came into effect in Ontario. He swore that there was no damned way he was ever going to wear a seat belt. Ever. No matter how may lives seat belt laws have saved, Andrei and those like him (and my father) would argue that these laws are an infringement on our freedoms. It doesn’t matter that there are thousands of children who have parents who are still alive to love them because they were wearing seat belts, the government made a law which infringes on the freedom of adults to make their own choices.

Social Justice is aimed at those in society who are unable to protect themselves, children, adults with disabilities, people who work in fields where there is an imbalance of power, that would not allow the average person to negotiate from a position of equality. Take the CRIA and the RIAA. Both are suffering at present due to the internet, which has given their customers and their suppliers (the artists) a position of equality for the first time in years. This horrifies the CRIA/RIAA. This is why the rumor on the street is that Canada will shortly have a new copyright law, based on the Digital Millennium Copyright Act of the United States. The recording industry organizations have been begging for a piece of legislation that would give them back the control they used to have, when music was delivered on phonograph records, cassette tapes, and compact discs. That this would hurt the artists, who the industry claims to serve, is not their concern. They believe that the recording industry is more important than the artists. If the artists get hurt, that’s just too bad. What matters is that the recording industry maintain control, so that they can continue to profit, even if it is at the expense of the artists.

Which brings us to Heritage Minister James Moore. Rumor is that there was a political battle between James Moore, the Canadian Heritage Minister, and Tony Clement, the Canadian Industry Minister, about the direction of copyright reform in Canada, which James Moore won, and the result will be ‘DMCA Canada‘. But James Moore is not responsible to the CRIA or the RIAA. He’s responsible to the Canadian public. He has a fiduciary duty to the citizens of Canada, which is represented by the oath of office that he swore. And as Heritage Minister, he is also responsible to Canadian artists and other creators of Canadian culture. To quote from Wikipedia:

In a fiduciary relation one person, in a position of vulnerability, justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests.

Will Heritage Minister Moore act for the sole benefit of the Canadian public, or will he act for the benefit of foreign corporations?

We should know this week.


Wayne Borean

Sunday May 23, 2010


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