International trade has long had an impact on the livelihoods of Indigenous peoples in Canada – whether historically through the fur trade or more recently as a result of the current and projected exploitation of natural resources on their territories. They have much at stake in any free trade agreement (FTA) to which Canada is party, not only in an economic sense, but more broadly in terms of their legal and political treaty relationships with the federal government. Increasingly, Indigenous peoples have successfully insisted that they have a stake in shaping resource development that must be respected. This has crucial implications for international trade.

The federal government is in the process of renegotiating the terms of the North American Free Trade Agreement (NAFTA). Many of the principles informing these talks also informed the negotiations of the first iteration of the Trans-Pacific Partnership (TPP). Although the United States withdrew from the TPP, the other 11 countries are still trying to move forward with the deal. Given this, it is instructive to take a careful look at the earlier version of the TPP in terms of the significance of its content for Indigenous peoples and the role they played in the consultation process.

Negotiating the TPP: Process and content

During the first TPP negotiations, New Zealand (Aotearoa) recognized its constitutional obligations to Māori in a provision that entrenches the pre-eminence of Crown’s obligations under the Treaty of Waitangi. By contrast, the Canadian government showed limited consideration for the interests of Canada’s Indigenous peoples during the talks. The negotiations that led to the TPP began in 2010, and Canada joined these negotiations in 2012 under Conservative Party leadership. It was the Liberal government under Justin Trudeau that signed the TPP Agreement in early 2016.

To a degree, the process changed gears once the new government took power. Although the Conservative government did undertake stakeholder consultations, there was a marked increase in the number and breadth of these once the Liberals were in power. The new government appeared to adopt a position of greater accountability and transparency than had its predecessors, and it undertook a series of discussions with key stakeholders and the general public on the TPP. However, because these consultations began only after the TPP negotiations had concluded, whether they will have an impact on the agreement is debatable.

The federal government’s “special group” consultations ran between November 2015 and November 2016. According to publicly available records, government representatives met specifically with Indigenous leaders four times. During the public consultations of the House of Commons’ Standing Committee on International Trade (CIIT), only a handful of submissions, including those of Amnesty International, Inter Pares, and the Council of Canadians, addressed the implications of the TPP for Indigenous peoples. The CIIT also held a session that focused exclusively on the perspectives of Indigenous peoples regarding the TPP.

During that session, several Indigenous speakers stressed that they were not opposed to trade but it must be environmentally sustainable, and their rights must be respected. Some addressed procedure, arguing that by not including them in the negotiations, Canada’s signing of the TPP Agreement was unconstitutional, because constitutional recognition of Aboriginal title and treaty rights requires that Indigenous peoples be informed, consulted, accommodated and consent to the TPP negotiations. They stressed that the government had not obtained free, prior, and informed consent (FPIC) from Indigenous peoples before signing the TPP.

Notably, at a policy level, the government has committed itself to the principle of FPIC through both its adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2016 and its stated principles concerning the government’s relationship with Indigenous peoples. In addition, in his mandate letter to International Trade Minister François-Philippe Champagne, the Prime Minister said “No relationship is more important to me and to Canada than the one with Indigenous peoples.”

And yet, the content of the TPP that refers specifically to Canada makes scant reference to Indigenous peoples, mentioning them only in the following contexts:

  • government procurement (chapter 15-A), cross-border services (annex II), and state-owned enterprises (annex IV) – earmarking preferential treatment in the purchase of goods and services;
  • the definition of environmental law (chapter 20) – excluding regulations aimed at managing subsistence or Aboriginal harvesting of natural resources; and
  • indirectly in two side instruments signed with Malaysia and Peru, addressing traditional knowledge.

However, a number of broader issues covered by the TPP may be of concern to Indigenous peoples, as they could threaten their lands, resources, self-determination and self-government. This applies not only to unceded territories but also where treaties have been signed.

Chapter 20 of the agreement touches on the environment. UNDRIP, the Canadian Constitution, various modern treaties between the Crown and Indigenous peoples in Canada, and the recent statement of principles regarding government relations with Indigenous peoples all stress the right of Indigenous peoples to have a say over the development of their territories’ resources. In contrast, the TPP parties and their investors have no obligations to respect the Crown’s treaties with Indigenous peoples in Canada, despite the fact that the agreement permits these parties and investors to have a stake in Canada’s environmental laws and policies. This means that in order to respect its TPP obligations, the Crown will be less likely to respond appropriately to Indigenous peoples’ concerns about how resource developments affect their territories. The Crown will also be less inclined to consider Indigenous peoples’ systems of law, values and practices with respect to the environment, despite the requirement that it to do so is included in numerous treaties.

The issue of investor-state dispute settlements (ISDS) – chapter 9, section B of the TPP – has been controversial in previous trade agreements. The settlements can supplant domestic judicial findings, undermining not only national sovereignty but also the inclination to respect nation-to-nation relations, which are essential to Canada’s treaties. According to a report by the UN Special Rapporteur on the rights of Indigenous peoples, ISDS potentially grant transnational corporations greater rights than Indigenous peoples have over how their land and resources will be used. Corporations have used ISDS to challenge judgements that favour Indigenous peoples seeking to protect the environment. For example, in Nova Scotia, despite the opposition of local Mi’kmaq, the American company Bilcon successfully used NAFTA to sue the federal government, whose environmental assessment panel had rejected Bilcon’s proposed quarry development. The TPP holds the potential for more such challenges.

Outcomes of the Commons committee consultations

During the public consultations on the TPP, despite the fact that people spoke overwhelmingly against the agreement, the final report of the CIIT recommends that the government pursue it. The report concludes with a series of recommendations. Although a number of these have implications for Indigenous peoples, only one refers to them specifically: recommendation 5 stresses the need for broad public consultations that include Indigenous stakeholders. The report also contains a dissenting opinion from the New Democratic Party (NDP) members of the committee, who recommend that the TPP be rejected. Their criticisms of the process include the fact that the government did not uphold its commitments under UNDRIP and did not obtain FPIC from Indigenous peoples before signing the TPP. The NDP’s recommendations include obtaining FPIC before signing any future trade agreements (#7) and undertaking broad consultations that involve Indigenous peoples should the government pursue alternative agreements with TPP countries (#8).

The Trade Minister’s response to the Commons committee’s final report makes few specific references to Indigenous peoples, although it states that it will work with them in the planning, funding and delivery of infrastructure. It also mentions, as part of its “progressive trade agenda,” that the government will ensure Indigenous peoples can share in the opportunities that flow from trade and investment and will prioritize “broad and inclusive consultations” and “open and transparent dialogue” with various stakeholders, including Indigenous peoples. “Consultations” and “dialogue,” however, are a far cry from FPIC.

If the TPP is indicative of what is to come, it seems that the government’s policy statements on trade as they concern Indigenous peoples may not include them in the negotiation process or in the terms of the agreements. Given that the government will be undertaking trade negotiations in the near future – most significantly with China and India – it remains to be seen whether its approach to Indigenous peoples will evolve to more closely reflect the language in its “Principles respecting the Government of Canada’s relationship with Indigenous peoples.”

Will the government take these principles into account, combine them with the feedback it received in evidence during the TPP consultations, and reconfigure its approach to FTA negotiations? In mid-August 2017, during a speech on the NAFTA renegotiations, Foreign Affairs Minister Chrystia Freeland talked about the need to include “an Indigenous chapter” as part of Canada’s progressive trade agenda. How this actually plays out in future negotiations, only time will tell. For now, Freeland’s speech suggests that since the government’s response to the CIIT’s final report there has been some evolution in its thinking about Indigenous peoples’ interests in relation to FTAs.

It will also be interesting to see how Indigenous peoples will respond to the various FTA negotiations. After participating in the belated and truncated TPP consultation, will they challenge the status quo to ensure that their voices are heard and their interests translated into substantive content in future agreements? Indigenous peoples are using words like “resurgence,” “decolonization’, and “restitution” in public discourse. Will these find a place in Indigenous peoples’ responses to FTAs?

In New Zealand, there have been careful studies on the TPP’s implications with regard to Māori rights. This has not occurred in Canada. And the UN has made recommendations to reform FTAs so that they respect the rights of Indigenous peoples. Ultimately, all of us in Canada – Indigenous and non-Indigenous people, governmental and nongovernmental organizations – need to take a careful look at the ramifications of FTAs for Canada’s treaty obligations, for they are at the core of the country’s existence.

Photo: Trade ministers and delegates from the remaining members of the Trans Pacific Partnership (TPP) attend the TPP ministerial meeting on the side lines of the Asia-Pacific Economic Cooperation (APEC) leaders summit in Danang, Vietnam in November 2017 (AP Photo/Na Son Nguyen, Pool).

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Nicole Gombay
Nicole Gombay teaches in the Department of Geography at l'Université de Montréal. Among other things she researches the links among legal and political processes and Indigenous peoples’ economies.

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