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Liberal secrecy denies debate on ‘legislative framework’ for Indigenous rights and NAFTA, the Trans-Pacific Partnership

The late Art Manuel and Nicole Schabus of the Indigenous Network on Economies and Trade have been critical voices in relation to the threats posed to Indigenous rights by trade policy.

Yesterday, the Liberal government of Justin Trudeau pledged a new ‘legislative framework’ for Indigenous rights in Canada.

The Globe and Mail reports, “The federal government says it will support Indigenous people in realizing their visions for their futures and in rebuilding their nations by creating new legislation that forces its officials to stop demanding that Indigenous people prove their constitutional rights exist.”

How might this relate to the North American Free Trade Agreement and the so-called ‘comprehensive and progressive’ Trans-Pacific Partnership?

The Liberals tabled a proposed an Indigenous rights chapter for NAFTA during the 5th round of talks that took place in November 2017. The proposed chapter was then discussed during the 6th round of talks that took place last month in Montreal.

After we saw the news report about the Indigenous rights chapter having been proposed, we filed an Access to Information Act request to see that chapter to be able to share it, analyze it, promote public discussion on it.

But Foreign Affairs, Trade and Development Canada denied us our request on the grounds that, “The head of a government institution may refuse to disclose any record requested under this Act that contains (c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto.”

Nicole Schabus of the Indigenous Network on Economies and Trade describes the proposed NAFTA chapter as “window dressing” unless it recognizes Indigenous rights over lands and resources. She says, “We know NAFTA doesn’t do that. What it does is prioritize corporate access to Indigenous lands and resources.”

This is in part because NAFTA includes the Chapter 11 provision that allows transnational corporations to sue governments in secret tribunals over legislation that protects the public interest. A similar provision is included in the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) that was ratified in September 2014 by the Harper Conservatives with the support of the Trudeau Liberals.

That agreement was opposed by the Hupacasath First Nation that argued it is an infringement of inherent Aboriginal Title and Rights because its ‘investment protection’ provisions gives the balance of power in questions of resource management to corporations rather than affected Indigenous communities.

The Crown responded in the Federal Court of Canada by saying, “The FIPA has no application to the way in which land and resources are managed within Canada. It does not change, or set the stage for future changes, to these domestic regulatory regimes. The CCFIPA does not alter in any way the Crown’s duty to consult where a resource management plan or project is contemplated that may adversely impact the Applicant’s rights.”

The ‘duty to consult’ is reflected in Section 35 of the Constitution Act. Yesterday, Trudeau stated his government is “finally fully embracing and giving life” to Section 35. But given the federal government has not seen ‘investment protection’ provisions as inconsistent with Section 35, it’s highly questionable how the proposed ‘legislative framework’ would protect Indigenous rights now undermined by trade policy.

This concern is further supported by the fact that the Liberals intend to sign the Trans-Pacific Partnership on March 8 in Chile. That deal does not contain an Indigenous rights chapter and, as highlighted in this campaign blog, is opposed by Māori and Mapuche peoples as a violation of their rights.

Following yesterday’s announcement, both Crown-Indigenous Relations minister Carolyn Bennett and Justice minister Jody Wilson-Raybould are to be part of a ministerial working group tasked with developing a “recognition of rights framework and ensuring the Crown is fully executing its legal, constitutional, and international human rights obligations and commitments, including constitutionally protected treaty rights.”

Reuters notes, “The government will consult with indigenous groups as well as provinces, industry and the public as it writes the legislation, which will be introduced this year and implemented before the 2019 election.”

The Council of Canadians calls on the Liberals to release its proposed Indigenous rights chapter for NAFTA and to delay its signing of the TPP and engage in a transparent process that makes public the text of the agreement and explores its compatibility with yesterday’s announcement of a new ‘legislative framework’ for Indigenous rights.