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NAFTA, Indigenous rights and migration

Indigenous rights and migrant rights must be taken into account as the Trudeau government prepares for the upcoming negotiations on the North American Free Trade Agreement (NAFTA), particularly in relation to the controversial investor-state dispute settlement provision.

While Trudeau’s top advisers have had about a dozen high-level meetings on NAFTA with key members of President-elect Donald J. Trump’s transition team, there has been no commitment to public disclosure of negotiating objectives nor any promise to consult the public or First Nations. In fact, the Canadian ambassador to the US has stated, “We have a good sense of what would be in Canada’s interest”.

The Hupacasath First Nation, a 300-member nation located on Vancouver Island, has stated that the Canadian government failed to consult First Nations before signing the Canada-China Foreign Investment Protection and Promotion Agreement (FIPA) in 2012. They argued in Federal Court that FIPA, notably its investor-state provision, could be used to override Indigenous rights and give the balance of power in questions of resource management to corporations rather than affected communities. In short, they said, FIPA was an infringement on inherent Aboriginal Title and Rights.

In late-2016, the Council of Canadians Northwest Territories chapter held a public forum in opposition to the Trans-Pacific Partnership (TPP) featuring Brenda Sayers, the Hupacasath First Nation councillor who led the fight against FIPA. Sayers stated, “The TPP and associated processes usurp the ability of public and First Nations governments to legislate progressive environmental, social and economic measures. They threaten Indigenous title and treaty rights. They can result in the assignment of damage payments to foreign companies for any action which influences their corporate profits. They are an outrageous infringement of the democratic authority of Parliament and the  sovereignty of Indigenous nations, and they must be stopped.”

That’s a view shared by Victoria Tauli-Corpuz, the United Nations Special Rapporteur for Indigenous Rights. Tauli-Corpuz says, “The clause of non-discrimination between a local and an international investor [which] grants more rights to transnational firms, often at the expense of Indigenous rights.” She adds that this is a particular threat because most of the remaining natural resources are located on Indigenous lands.

Our ally Syed Hussan has written about the historical impact of NAFTA on Indigenous rights and migration.

He writes, “As a result of NAFTA, article 27 of the Mexican constitution was cancelled. This section of the constitution protected collectively owned Indigenous lands from being privatized. Once cancelled, Indigenous lands faced mass privatizations and hundreds of thousands of people were pushed out of their communities. For example, Indigenous people made up seven per cent of Mexican migrants in 1991 to 1993 in California, the years just before the passage of NAFTA. In 2006 to 2008, they made up 29 per cent — four times more. The TPP will do that at much greater scale.”

Hussan has also highlighted the impact of the NAFTA Chapter 11 investor-state dispute settlement provision. He writes, “One of the reasons Mexico is sued less is because Mexican authorities have swiftly downgraded environmental policies before they can be sued. This has downgraded working conditions, wages and the ecology of large regions, forcing out-migration and the creation of migrant workers.”

The Council of Canadians calls for:

1- transparency through the entirety of the negotiations – especially in regards to what Trudeau is conceding to Trump to maintain NAFTA

2- meaningful consultations with the general public, as well as consultations and consent from First Nations

3- removal of the controversial Chapter 11 investor-state provision

4- removal of all references to water in NAFTA as a good, service or investment, unless to allow for the specific protection or exclusion of water

5- an exemption from NAFTA’s energy proportionality rule in order to meet our Paris climate commitments

6- a North American Auto Pact to ensure that each country receives a proportional share of employment and investment, and that workers have good jobs and fair wages

7- strengthening the exemption of medicare in NAFTA to allow for an expansion of public health care in areas including pharmacare.

For our campaign web-page on NAFTA, please click here.