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By including Indigenous peoples, the USMCA breaks new ground

Opinion: Perry Bellegarde on why the ’new NAFTA’ is the most inclusive international trade agreement for Indigenous peoples developed to date
Assembly of First Nations Chief Perry Bellegarde speaks during a press conference at the National Press Theatre in Ottawa on Thursday Nov. 2, 2017, regarding National Day of Action on First Nations Child Welfare. (Sean Kilpatrick/CP)

Perry Bellegarde is the national chief of the Assembly of First Nations.

It’s a deal secured after tough negotiations—and the result is ground-breaking for Indigenous peoples and their rights. In the most inclusive international trade agreement for Indigenous peoples to date, the United States-Mexico-Canada Agreement (USMCA) will serve to help protect Indigenous peoples’ rights when it comes to their enterprises and goods.

Throughout the negotiations, First Nations have had significant influence on the outcome of the deal, and I had an opportunity to provide advice to Foreign Minister Chrystia Freeland, too; early on, she agreed it was a priority for Canada to have a dedicated chapter on trade and Indigenous peoples. When she met with resistance against such a chapter at the negotiating table, the minister continued to push for provisions to protect and benefit Indigenous peoples in North America. I am pleased to see the agreement in principle contains some provisions to protect the rights of Indigenous peoples.

READ MORE: How NAFTA was saved

The single most important provision in the USMCA for Indigenous peoples is the General Exception for Indigenous Rights. This clause is pivotal. It assures the parties freedom to meet their legal obligations to Indigenous Peoples and to act in the interests of Indigenous peoples without the concern that such actions may run afoul of trade or investment rules, meaning that one state cannot bully the other at the cost of Indigenous peoples’ rights. That’s crucial for Canada, as its constitutional and international human rights obligations requires our government to protect the rights, title and jurisdiction of First Nations and all Indigenous peoples across North America.

The general exception clause is much stronger than we have seen in other agreements. The exception included within NAFTA only covered certain sections of the investment chapter, and not the ones most likely to lead to a dispute.  This new exception clause covers the entire agreement and applies to Indigenous peoples across North America.  It will allow the three states to take action to fulfill their legal obligations to Indigenous peoples.

Specific references to protection of Indigenous peoples’ interests are found throughout the agreement. The language around corporate social responsibility, which has become boilerplate in investment agreements, finally makes a specific reference to Indigenous peoples. This is a positive step and a strong signal to foreign corporations that First Nations must be involved from day one for any proposed projects on their lands.  It is good business sense and provides the security needed to develop large resource-development projects in Canada.

The USMCA also recognizes the important role Indigenous peoples play in the long-term conservation of the environment. Water is the foundation of life, and although there was no specific mention of First Nations on this, it was good to see that the USMCA creates no rights to the natural water resources of Canada.

The USMCA is a trade agreement, so of course the business provisions that benefit Indigenous peoples are crucial. There is a new emphasis on cooperation activities to promote and enhance opportunities for Indigenous businesses in the chapter on small- and medium-sized enterprises. Indigenous peoples are the youngest and fastest-growing demographic in Canada, and opportunities for Indigenous business means opportunities for our women and youth—especially if the activities span the border and spur on inter-nation trade amongst Indigenous peoples.

READ MORE: The USMCA keeps Canada in America’s thrall

In the Textiles chapter, there is a provision that provides for duty-free treatment of Indigenous handicraft goods. To achieve the advantages this provision provides, Indigenous peoples must determine what does and does not qualify as an Indigenous handicraft. Our artists proudly produce goods of the finest quality—beadwork, leatherwork as well as carvings and paintings—and they are known worldwide.  Ensuring that Indigenous handicrafts are legitimate and certified authentic by the Nations who produce them will only add more value to customers who love our art.

During a truly challenging negotiation, Canada was able to make some advances that benefit Indigenous peoples. But there is still much more to do. All three parties to the USMCA have endorsed the United Nations Declaration on the Rights of Indigenous Peoples, and although there is no mention of the declaration in the USMCA, trade agreements cannot and must not trump such fundamental human rights. I will continue to push to ensure all trade agreements explicitly acknowledge the United Nations Declaration on the Rights of Indigenous Peoples, and to include a full chapter on Indigenous peoples. I will also continue efforts to improve the corporate social responsibility language in future investment agreements, so that free, prior, informed consent becomes the standard for investors and proposed developments that involve Indigenous lands will only proceed with the full and equal participation of First Nations.

The USMCA also does not address an issue of great importance to many First Nations whose communities are separated by a border not of our making, and so First Nations would welcome discussions with Canada and the United States about mobility rights and inter-nation trade.

As National Chief, I pressed for the inclusion of First Nations negotiators as part of Canada’s team, and that request was not met. It is time for Canada to include First Nations representatives in such teams; this would be the most effective way to ensure proper consultation and cooperation. Due to their Aboriginal and inherent rights, jurisdiction and title, First Nations need representation in the negotiation room at future trade and investment tables. I will continue to urge Canada to work in partnership with First Nations to ensure recognition, protection, implementation and enforcement of First Nations rights in this agreement and other international trade and investment agreements.

First Nations are ready to get to work to improve trade opportunities for our people. It should be clear by now that economic and legal certainty cannot be achieved without First Nations at the table as governments and decision-makers. It makes good business sense for First Nations, Canada and North America.