Learning from First Nations experience with NAFTA
Wayne Garnons-Williams of Plains Cree, from Treaty 6, Moosomin First Nation, Founding President of the International Intertribal Trade and Investment Organization, Principal Director of the law firm Garwell Law Professional Corporation specialising in tribal trade and economic development.
If you are going to remember one thing about this talk, remember this: process for indigenous inclusiveness and collaboration is key to developing indigenous trade. Our organisation has conferences every six months when we look at issues of trade. We have just finished out conference three weeks ago where we looked at NZ as a trade destination. We had great speakers. We convinced the government of Canada to establish the very first indigenous trade mission, and the destination was NZ.
Some background. Canada is a constitutional democracy. The written Constitution was amended in 1982. Section 35 is a very important part that says existing aboriginal and treaty rights and hereby recognised and affirmed. We know what treaty rights are because they are listed in the treaties; I’m a member of Treaty 6. What are aboriginal rights? No one really knows until it is determined by the Supreme Court. The government always says it doesn’t accept an aboriginal right until the High Court tells us so. Only then will we actually go ahead and acknowledge that in the form of policy, programme and legislation.
In 1987 the Canada US Trade Agreement was established and then 1994 NAFTA was established. In both there was no indigenous consultation or involvement in their development. The case law in Canada, two cases basically say the same thing: consultation is key with respect to indigenous peoples with respect to the nation state. Both clearly demonstrate what the standard is and how the state has to meet it: full, fair, timely, supported by financial means for indigenous people to analyse what they are being consulted on.
The other important thing to note is that indigenous trade in Canada and the US, and I’m sure here to, has existed since time immemorial. That prior contact trade is reflected, for example the US Constitution (Article 1, Section 8, subsection 3) provides the power of the federal government for trade and commerce. With whom? With other nation states, with the states, and with Indian tribes, specifically listed. That’s the only reference in the US Constitution. So its significance is reflected in the building of the nations in North America.
What’s the political climate in North America? With respect to an indigenous lens, it’s all around the environment. I’m sure it’s the same here. Indigenous nations globally want economic development, but not at the expense of our regional climate, water, air and quality of life. Essentially the seven-generation principle is applicable here. You don’t adversely affect what would be a gift to the seventh generation, and generation we will never see, that will be alive when you are long dead and gone.
What was happening in relation to NAFTA? We have an indigenous rights clause in NAFTA. We have an indigenous trade chapter which was worked out, and which was not in NAFTA but is being brought out as one of the leading aspects for inter-tribal indigenous trade.
How did that happen? We have a similar vision and attitude to yours. Our Prime Minister, when he was first elected he issued mandate letters to his Cabinet that says this is what I want from you. Typically these mandates are private. Our PM made them public. All 38 Cabinet mandate letters contained this phrase: “no relationship is more important to me in Canada than the one with indigenous peoples. It’s time to renew the nation-to-nation relationship with indigenous peoples based on rights, respect, cooperation and partnership.” Various Cabinet ministers went out to try to meet that agenda. Our Justice Minister, who is indigenous, met with our national indigenous leaders and said, section 35 on indigenous rights, we don’t know what’s in it. It’s nicknamed the empty section 35 rights box. Until the court determines what it is you have no rights. The government said the best way to solve this is to consult widely across Canada and try to codify what those rights would be based on submissions from indigenous peoples across Canada and then providing legislation that codifies section 35 rights. So there can be legal action alleging failure to live up to section 35 rights written into statute. That’s a big step. That’s called the indigenous rights framework. It’s an election promise that will be passed before the next election.
The other thing that’s really important in Canada is the UN Declaration on the Rights of Indigenous Peoples. You may remember when it was first signed there were four hold-outs: US, Canada, Australia and NZ. Now everyone’s a party. What does it mean. In reality it has no meaning whatsoever, it’s feel good. Our government said we need to put some meat on these bones. In May this year it introduced legislation, which is now in the Senate, which has basically made the entire Declaration domestic law in Canada. Once that law gets passed indigenous peoples in Canada can rely on the Declaration as a means of enforcing their rights. These include free, prior, informed consent; the right to conservation and protection of the environment; the right to maintain and develop indigenous economic institutions and to freely engage in their traditional and other economic activities. What are economic rights for indigenous peoples? Look at what they originally had. Trade among nations, inter-tribal trade. that is an economic right that is prior, existing and practices since time immemorial until today.
Last year in July, Trump decided to renegotiate NAFTA. The government Canada said to the people of Canada “what should we do? Any issues to add?” My organisation put together a submission based on law, policy and common sense. We asked for the following: participation of aboriginal peoples in the negotiations; recognition of the rights of indigenous peoples in the decision making under NAFTA; development of a framework for a meaningful and increased participation in the process; development of an indigenous peoples chapter and an indigenous rights chapter; incorporation of the UN Declaration; protection of indigenous intellectual property and knowledge.
All this was in our submission. If the 2500 submissions made to the government we were the only one that made an indigenous rights submission. I got a call from the Minister who said she loved it and was passing it on to the Prime Minister to include in the progressive trade agenda for the government of Canada. They asked who do you want on the Canada NAFTA Council advising the Minister of Trade. A national indigenous chief was put on the Council. As well, the aspect of an indigenous rights chapter and indigenous trade chapter was immediately put on the agenda.
Finally, with respect to process the government said we are true specialists in international trade. But we’ve never really done indigenous trade so we need your help and seek your guidance. We sat down with them and worked out a process and framework that was inclusive. In essence, we kept the circle even wider. We included any indigenous nation or rights holder that had an interest in developing the indigenous trade chapter and clarifying the indigenous rights chapter. Every week for 2 hours we would meet with our external affairs specialists, and look at various topics within NAFTA. The specialists would give their presentation, whether it was procurement or anti-dumping. Then we would look at it from an indigenous lens and discuss it. We asked that they used their ears rather than their mouths when consulting. We also asked that they not consult with the Department of Indian Affairs because they bring a tainted perspective to indigenous affairs. They bring their own perceptions and biases. We also encouraged them to read the relevant case law on consultation and they completely understood it. So we were able to work with them on a regular basis and discuss how we could move each issue along. We did this for a year and a half. Our circle near the end was about 60 rights holders, stakeholders and interest groups that were contributing to make this a robust process.
I can’t tell you what’s in the indigenous trade chapter, unfortunately, because right now it’s still being used as a tool internationally by the government of Canada. I’m happy to say that regardless of NAFTA the government of Canada came back to us and said we have enjoyed this process and we’ve learned a lot and we think we have learned something about how to deal with indigenous relations.
But secondly, the end state of getting to an indigenous trade chapter that is respectful and empowering, that’s really cool. So regardless of NAFTA, we’re going to take this indigenous trade chapter and shop it around the world. If there are any other nation states that have indigenous peoples that are looking for indigenous to indigenous trade, we want to present this chapter to them to negotiate in an international agreement. As you know, indigenous peoples are not nation states by designation and cannot by law trade unilaterally with Maori, Haida or others. You need an international framework where nation states respect and protect that opportunity, for example to trade fish for timber.
While I can’t tell you the details of the chapter, I can tell you the three principles of the chapter. 1. Recognise the important role that indigenous peoples have played in trade and continue to pay today. 2. Facilitate cooperative activities between the parties to enhance the abilities of indigenous peoples to participate in and benefit from international trade. 3. Establish a committee to oversee this chapter alone.
As well, the government of Canada has invited us to participate on the regular briefings on NAFTA or other negotiations like the Pacific Alliance. We get the briefings just like any other groups. I’m happy to say that the indigenous trade chapter for the Pacific Alliance negotiations was first introduced as a side document with the government of New Zealand. We have been working with the government of New Zealand for some time now, so we are well aware that NZ has done a lot of work. When we introduced our indigenous trade chapter to NZ, NZ said that looks very nice. Have you seen our draft of an indigenous trade chapter. So the cool thing is that you’ve got two nation states who have exchanged their chapters regarding indigenous trade. We’re that close to including a nation state to nation state clause in an international agreement that protects indigenous to indigenous trade. That’s cool. That’s empowering.
Let’s go back to NAFTA. The new US Mexico Canada agreement. We didn’t get the indigenous trade chapter because Trump is Trump. We did get the indigenous rights chapter. It says “nothing in this agreement shall preclude a party from adopting or maintaining a measure that it deems necessary to fulfil its obligations to indigenous peoples”. Then as a footnote – “for greater certainty for Canada the legal obligations include those recognised and affirmed by section 35 of the Constitution 1982.” That section is no longer in a box, it is codified in legislation. We are moving from a shield to a sword for trade.
So what’s been learned here? From a process viewpoint: the government of Canada initially after reading the leading cases and the law and said we accept two principles: indigenous peoples have a right to participate in decision on matters that would directly affect their rights through representatives of their own chosen by their own procedures; and indigenous peoples have the right to develop and maintain their own decision-making systems within their own territories. So mutual cooperation and joint decision making is key to this relationship. It’s an up front recognition of indigenous rights is important and that your history of trading is part of your economic rights. Consideration of indigenous knowledge and rights, and the impacts of rights and culture on trade. and early and ongoing engagement concerning the federal and provincial regulatory and policy process.
When I testified before the standing committee on trade in the Parliament they asked me what happens if there’s no indigenous trade chapter? My position was clear that indigenous trade will continue. But we need you to help us move that on. I was suggesting legislation providing indigenous trade zones. Not foreign trade zones, but indigenous trade zones. So for example the Maori and the Haida could have their own designated transshipment points to trade their goods back and forth that are protected with respect to tax. It’s that kind of framework for healthy tribal nation to nation trade.
I am happy to say Canada has taken the first step to provide the first indigenous trade mission to NZ and others will follow. We’ve met with the ambassador to Peru with respect to indigenous trade opportunities and continue to do so in the UN Permanent Forum on Indigenous Peoples, and trying to develop those aspects.
Two closing points: the indigenous trade chapter and indigenous rights chapter were developed by collaboration, by partnership, by working hand in hand, not a top down approach; and second, true reconciliation includes economic reconciliation, and the recognition of indigenous rights of trade.