Unpacking Equity: The Fight for Indigenous Rights Under USMCA

Unpacking Equity is a collaboration between the Public Policy and Governance Review and the Gender, Diversity and Public Policy Initiative (GDPP) at the Munk School of Global Affairs and Public Policy. This series aims to explain equity-related policy issues and break down complicated topics involving equity, diversity and inclusion. Policy professionals can gain a better understanding of these complex issues in order to incorporate an equity lens into their practice. To learn more, please get in touch with the GDPP.

By: Emma Schwartz

Photo Credit: Impakter                                                                                              

As negotiations surrounding the United States-Mexico-Canada Agreement (USMCA) came to a close in early October, the public began to analyze the new trilateral trade deal. Nicknamed “NAFTA 2.0” after its predecessor, the North American Free Trade Agreement, USMCA has been publicly touted as a victory by both US President Donald Trump and Prime Minister Justin Trudeau. Significantly less publicized than the deal’s anticipated effects on the dairy and motor industries is the inclusion of language aimed at protecting Indigenous interests – language that, according to Canadian Minister of Foreign Affairs Chrystia Freeland, makes USMCA “very progressive.” Despite not including a chapter solely dedicated to Indigenous rights, as was originally proposed, USMCA does highlight the vital role of Indigenous groups in environmental sustainability and encourages Indigenous participation in international trade and investment.

When NAFTA was first implemented in 1994, it was met with immediate criticism. The Aboriginal Multi-Media Society warned that “the economies of the FirstNations could be destroyed by American business interests if Native rights are not addressed in the North American Free Trade Agreement,” and asserted, “the greatest threat to the First Nations is the jurisdiction over resources within land claim regions, jurisdiction that has not yet been worked out.”

The only mention of Indigenous peoples in the agreement took the form of this exemption:

Canada reserves the right to adopt or maintain any measure denying investors of another Party and their investments, or service providers of another Party, any rights or preferences provided to aboriginal peoples.

Indigenous leaders quickly expressed dissatisfaction with the agreement, which they felt failed to protect their rights in international trade and overlooked the importance of traditional knowledge. The Assembly of First Nations issued a resolution predicting that the agreement would, overtime, “adversely affect all First Nations directly and/or indirectly vis-a-vis jurisdiction over the natural resources within traditional territories.”

In July 2017, soon after Global Affairs Canada announced the upcoming renegotiation of NAFTA, the Ottawa-based International Inter-Tribal Trade and Investment Organization (IITIO) submitted a proposal to the Canadian government. The proposal called for the inclusion of anIndigenous Peoples’ Chapter to “foster cooperation activities designed to improve the capacity and conditions for Indigenous Peoples in North America to engage successfully in crossborder trade,” and requested the “establishment of an Indigenous Peoples’ committee with Indigenous representation (nominated byIndigenous organizations) from all three NAFTA partners.” The IITIO argued that these negotiations offered a “unique opportunity to better align international trade and investment with international Indigenous and human rights law.”

Concrete suggestions raised by the proposal included:

  • “Stronger exceptions (reservations) that are more proactive in effectively protecting Aboriginal rights, treaty rights and Aboriginal title interests in land,”
  • A guarantee for “freer movement across the Canada/US border of Indigenous Peoples, and of goods traded byIndigenous People,” and
  • “Greater protection to Indigenous cultural property and traditional knowledge.”

The proposal was accepted, and in late 2017 Global Affairs Canada spokesperson John Babcock remarked, “The Government looks forward to continuing our dialogue with Indigenous peoples and Indigenous businesses on how a modernized NAFTA can better address their concerns and support their ability to benefit from NAFTA trade.”

Even as negotiations unfolded, some onlookers were skeptical. Nicole Schabus, a spokesperson for the Indigenous Network on Economies and Trade, warned that such a chapter would fail to protect Indigenous rights over lands and resources, and would instead“prioritize corporate access” to them. However, IITIO president Wayne Garnos-Williams said that its inclusion would “allow for an infrastructure where nation-to-nation Indigenous right of trade and commerce can take place,” and the proposed chapter was quickly supported in the United States by the National Congress of American Indians, and by the Traditional Authorities of the Rio Yaqui Pueblos of Sonora, Mexico.

Prime Minister Justin Trudeau and National Chief of the Assembly of First Nations Perry Bellegarde           

As talks intensified in September 2018, Canadian negotiators abandoned their push for an independent Indigenous chapter in an attempt to appease the U.S. delegation. Politicians from the United States never publicly stated their opposition to the inclusion of an Indigenous chapter in USMCA. However, National Chief of the Assembly of First Nations Perry Bellegarde, who worked closely with the Canadian delegation, characterized President Trump as “let’s just say – a little challenging to negotiate with,” insinuating that the U.S. delegation did not want the chapter included.

Despite this setback, mentions of Indigenous rights are – as the Prime Minister noted – “woven throughout” other chapters of the final agreement. In addition to a “general exemption,” which is similar in language and scope to the stipulation under NAFTA, USMCA includes more detailed provisions aimed at protecting Indigenous rights. Specifically:

  • Article 6.2 ensures that traditional, handcrafted Indigenous textiles and other goods can be imported duty-free.
  • Article 25.2 calls on each government to“increase trade and investment opportunities” with small and medium-sized business, and specifically to “strengthen their collaboration on activities”meant to promote Indigenous-owned firms.
  • Chapter 24 focuses on the environment and acknowledges “the importance of engaging with” Indigenous peoples “in the long-term conservation of our environment,” and formally recognizes “the importance of respecting, preserving and maintaining knowledge and practices of indigenous peoples and local communities embodying traditional lifestyles that contribute to the conservation and sustainable use of biological diversity.” The chapter also addresses the vital role of sustainable fisheries and responsible forest management in Indigenous communities.

While the lack of an independent Indigenous Peoples’ chapter may seem a missed opportunity, the agreement may nevertheless still represent a victory for Indigenous rights. Perry Bellegarde praised the deal, saying it will “increase stability, certainty and integrity” in international trade, and calling it “the most inclusive international trade agreement for Indigenous Peoples to date.”In a promising departure from previous Canadian free trade agreements, USMCA gives increased recognition to a group who were – in the words of Wayne Garnos-Williams – “the original traders in North America.”

Emma Schwartz is a first year Master of Global Affairs student pursuing a collaborative specialization in environmental studies. She holds a BA in political science from Wellesley College. Prior to moving to Toronto, she worked as a mental health educator and legal services advocate in the Boston area.