Towards a Fairer Partnership: The Indigenous Chapter of NAFTA

Lian Francis is a first-year student at the McGill Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She also holds a Bachelor of Science in Psychology from McGill.

At the mouth of the St. Clair River, which marks the border between eastern Michigan and southern Ontario, lie the sprawling unceded lands of the Walpole Island First Nation. These lands are home to a confederacy of Ojibway, Odawa, and Potawatomi peoples. In August of last year, other Potawatomi peoples from Ontario, Indiana, Kansas, and Oklahoma gathered at Walpole Island for their annual meeting. One of the discussions centred around economy and trade, a particularly topical subject given that renegotiation of the North American Free Trade Agreement (NAFTA) also commenced that month. Walpole Island Chief Dan Miskokomon expressed hope that the negotiations would include recognition of his peoples’ “inherent and treaty rights.” The traditional territory of the Potawatomi, he said, extends on both sides of the St. Clair River; the delineation of the US-Canada border later divided it, but the border holds little meaning for communities like Walpole Island which have always straddled it.

Historically, Canada has a poor track record for consulting Indigenous peoples before ratifying international trade and investment agreements. Indigenous communities were not given a voice when NAFTA was first signed in 1994. More recently, the Hupacasath First Nation challenged the Canadian government in court over the lack of consultation preceding the ratification of a foreign investment promotion and protection agreement between Canada and China, an agreement the First Nation said engaged Aboriginal lands rights and interests. The Federal Court of Appeal ruled that Canada did not have a duty to consult with the Hupacasath before entering into the agreement given that effects upon the First Nation’s interests were “non-appreciable” and merely “speculative” (Hupacasath First Nation v Canada (Minister of Foreign Affairs and Attorney-General of Canada), 2015 FCA 4).

A UN report for the Human Rights Council on the rights of Indigenous peoples remarks that many international trade and investment agreements embody systemic imbalances between the enforcement of corporate investors’ rights and human rights. Such agreements, the report argues, have the potential to erode protections for Indigenous lands and to act as a significant barrier to land claims by prioritizing investors’ rights to access land. It should be noted that NAFTA does contain what are called “carve-outs” – exemption clauses intended to allow Canada to uphold the rights and preferences accorded to Indigenous peoples. However, these clauses are very limited in scope, and have not resulted from any formal consultation with Indigenous peoples.

But things seem to be changing, as the Canadian government has proposed the inclusion in NAFTA of an “Indigenous chapter” and has brought a draft to the negotiation table. This initiative represents one element of the government’s progressive trade agenda and one step towards its self-proclaimed commitment to building a nation-to-nation relationship with Indigenous peoples. And this time, consultation with Indigenous peoples has been a priority. Assembly of First Nations National Chief Perry Bellegarde was appointed to Canada’s NAFTA Council, which will advise the Minister of Foreign Affairs during the negotiations. Kenneth Deer, the external relations representative for the Haudenosaunee Confederacy, commended the extent of the government’s efforts to seek input from Indigenous communities on the NAFTA talks, saying it was “relatively new” for the government to engage with the Confederacy. Canada hosted several consultation sessions on international trade, which were attended by representatives from the Assembly of First Nations, the Métis National Council, and the Congress of Aboriginal Peoples, and also extended an open call for submissions from other stakeholders who wanted to take part in the negotiations.

One of these submissions was a proposal from the International Inter-Tribal Trade and Investment Organization (IITIO), a Canada-US NGO of legal experts and Indigenous representatives. This proposal became the basis of the Indigenous chapter of NAFTA, and may provide a glimpse into its contents. The submission proposes the creation of a committee of Indigenous representatives from all three NAFTA partners to assist in the development of programs to promote Indigenous peoples’ participation in national and international economies. The proposal insists that a revised NAFTA both retain current carve-outs and contain stronger exemptions that more effectively protect Aboriginal rights, treaty and title rights as well as cultural property and traditional knowledge. It stresses the importance of adhering to and directly referencing international human rights instruments like the UN Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples. The submission also recommends the inclusion of provisions in NAFTA allowing for freer movement of Indigenous peoples and their goods across the Canada-US border. In support of this contention, the proposal quotes the Treaty of Amity, Commerce and Navigation (also known as the Jay Treaty), an agreement signed in 1794 between the recently independent United States and Great Britain. The treaty stipulated that First Nations could choose to live on either side of the newly established border and could move and trade freely across it. Despite some accommodations by the US for freer movement, the Jay Treaty has not been sanctioned or implemented in Canada.

The IITIO submission contains worthy aspirations and important recommendations, but one might wonder what the real impact of an Indigenous chapter of NAFTA would be, particularly given the concern that the US might back out of the agreement entirely. Chapter drafters Michael Woods and Wayne Garnons-Williams of the IITIO believe that even if the chapter is not incorporated or the talks fail altogether, the process surrounding its creation and the discussion it provokes may lead to a modernization and revitalization of Indigenous trade and commerce. The chapter could also serve as a model for other Canadian and international trade agreements, as could a binational Canada-Mexico Indigenous peoples’ committee if the US were to remove itself from negotiations. Another question arises, however, as to whether the Indigenous chapter will truly improve outcomes for Indigenous peoples in Mexico. Mexican Indigenous farmers already suffer from competition with US imports under the current NAFTA regime. The Mexican government rarely consults Indigenous peoples before approving a project in traditional territories, and when it does, the consultation often occurs after the project is already underway. Perhaps unsurprisingly, the Mexican government has made no attempt to gather the input of Indigenous peoples on NAFTA negotiations. A third concern regarding the actual impact of the chapter surrounds the effect of directly referencing the UN Declaration on the Rights of Indigenous peoples given that both Canada and the US voted against the Declaration when it was adopted in 2007. Both have since endorsed the document, but the Declaration remains purely aspirational in the United States, and even Canada, which officially adopted it in 2016, has taken few concrete steps towards its implementation. Still, the inclusion of an Indigenous chapter seems a step in the right direction towards recognition and respect for Indigenous rights and the fostering of a fairer partnership. As the sixth round of negotiations has come to a close, the fate and impact of the Indigenous chapter of NAFTA is still to be seen.

 

For further information on this topic, hear Wayne Garnons-Williams, one of the lawyers behind the Indigenous chapter of NAFTA, speak at the McGill Journal of Sustainable Development Law colloquium this Friday, February 9th at 2:45 pm in the Thompson House Ballroom!

 

Also see the following articles from the journal’s past issues:

Reconciling Aboriginal Rights with International Trade Agreements: Hupacasath First Nation v. Canada

International Investment Agreements Between Developed and Developing Countries: Dancing with the Devil? Case Comment on the Vivendi, Sempra and Enron Awards

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