Tuesday, January 8, 2019

Self Determination and Human Rights of Indigenous Peoples in the New NAFTA Trade Zone of North America [Canada-US-Mexico]

¿Populations or Peoples?

Indigenous Peoples Collective Rights or Bureaucratic Consultations?
January 1, 2019

Arizona Republic January 30, 1993

AMLO and the U.S.MexicoCanada Agreeement
The inaugural speech given by president Andrés Manuel López Obrador (AMLO) of Mexico on December 1, 2018 in the central plaza of Mexico City was prefaced by an amazing display of cultural gestures on behalf of the Indigenous Peoples of Mexico, including the exchange of a Ceremonial Staff that has become an issue of controversy.  While being denominated in the public media discourse as a Staff of Authority (Bastón de Mando), the staff in question was not presented in representation of any traditional authority of any Indigenous Governing Council of Mexico but was instead a cultural gesture by leaders of indigenous organizations, not traditional authorities. 

Further, in clarification, the authority of a “Bastón de Mando” in the context of the jurisprudence of the Original Nations of Indigenous Peoples of Mexico, Anáhuac is never delivered individually from one person to another but is an exercise of collective jurisdiction and judgement that emerges from the jurisgenesis of the Original Nations themselves, not the contorted legaloid systems of the states.  These are two separate and distinct geopolitical systems.  One operates as a successor state to the Doctrine of Discovery of Christendom in service of the project of 526 years of colonization of the Americas, while the OrigiNations of Anáhuac continue to struggle for self-determination in the spirit of resistance, rebellion, and regeneration. 

This teaching is imbued in the symbolism of the staff of Quetzalcoatl, cosmetric ways of knowledge of the Toltecayotl. It is an indigenous articulation of the inherent power of cultural self-definition, in both individual and collective responsibility, which is the precept of the universal human right of self-determination.

With the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP 2007) which affirms the international right of Indigenous Peoples to Self Determination, equal to all other peoples, the purported claims of dominion of the colonial states over the inherent human rights of the Original Nations of Indigenous Peoples of Mexico, Anáhuac comes to its demise as a legitimate principle in the rule of International Law. The Original Nations of Indigenous Peoples of Anáhuac, Mexico are free to determine their own future in their own terms on their own territories in our continent of the Great Turtle Island Abya Yala.

Since UNDRIP, no state, no matter how benign, can legitimately delegate, define or diminish these collective Indigenous Rights.  It falls to the states to recognize, respect, and institute guarantees for the Protection of the Rights of Indigenous Peoples with effective restorative consequences for the violation of these rights.

In this sense, the critical question of historical context that emerged in contrast and contradiction in the Zócalo of Mexico City on December 1 was punctuated by the signing in approval of the final draft text of the USMexicoCanada Agreement 2018 (USMCA) on the evening of November 30, the night before, by exiting Mexican president Enrique Peña Nieto. The USMCA is being promoted as a revised and “modernized” version of the 1994 North American Free Trade Agreement (NAFTA) between Canada, the USA, and Mexico.

Just as on January 1, 1994 with the original NAFTA, December 1, 2018 marked the latest updated version of the colonial project of corporate capitalism riding south from the Rancho Grande of North America. Now disguised as a development strategy in alignment with the UN Sustainable Development Goals 2030, the US-Mexico-Trade Agreement is being unleashed.
Simultaneously, the indigenous resistance to the USMCA is being packaged and delivered to its new political managers, as yet just another commodity to be marketed in the public square, via social media platforms, as long as the corporate colonizing project itself remains on track. AMLO himself reaffirmed this in his speech announcing the decision of his government to ramrod the Maya Train project in the Yucatan which is already set to begin construction. 

Of particular serious concern is the lack of recognition and respect given by AMLO in his inaugural address to the principle of Free, Prior, and Informed Consent (FPIC) regarding economic development projects that impact the territories and Human Rights of Indigenous Peoples. 

UN Declaration on the Rights of Indigenous Peoples
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

In spite of these provisions of UNDRIP Article 32, the official Mexican government’s translated version of the English language text of the USMCA was never made available either to the Indigenous Peoples or the general public. Only Mexico’s negotiating team, which included staff from exiting president Enrique Peña Nieto along with those of president elect AMLO, were allowed access to review of terms of the agreement which was signed in approval on November 30, and then affirmed by AMLO in his speech on December 1st.

NAFTA became law on January 1, of 1994, thirteen years before UNDRIP. In 1994, Indigenous Peoples were not considered as “peoples” in the international arena, much less given the rights holder recognition that the term implies when it comes to negotiating International Trade Agreements.

We are now eleven years since the adoption of UNDRIP by the UN General Assembly in 2007, when Mexico voted in favor of passage.  Yet this made no difference to AMLO when he not only ignored but defiled the right of Free, Prior and Informed consent in his opening address to the Mexican People as their new president.

AMLO began his speech proclaiming:
“Here in the Zócalo of Mexico City, the main public square of the country, after receiving the staff of authority of the original peoples of our great nation, I reaffirm the commitment not to lie, not to steal and not to betray the people.”
He then went on to contextualize his platform as a set of policy of implementations which he calls the Fourth Transformation of public life in Mexico and began to articulate 100 distinct points of commitment and priority.
1. First, we will give special attention to the indigenous peoples of Mexico; It is an ignominy that our original peoples have lived for centuries under oppression and racism, with poverty and marginalization on their backs. All government programs will have as their preferred population the indigenous peoples of the diverse cultures of the country.
In making reference to the Indigenous Peoples of Mexico, “our” Indigenous Peoples – with no mention of the international legal context as Rights Holders with Collective Rights as Indigenous Peoples before the state, in equality to all the peoples of the world as articulated in the UN Declaration on the Rights of Peoples, AMLO negates the rule of modern international law in Mexico.  He subverts the struggle of the Indigenous Peoples of Mexico and provides a smokescreen for the systemic impunity of state sanctioned corporate colonialism, whose product is the oppression and racism to which he refers.

Instead of recognition, respect, and guarantees of Indigenous Rights in Mexico, AMLO announce he will propose a policy of paternalistic "special attention". Instead of the affirming the official recognition of Indigenous Peoples as peoples equal to all other peoples now established the context of International Law since UNDRIP 2007, the new president of Mexico stepped onto the world stage and immediately attempted to reduce the surviving constituencies of the Original Nations of Indigenous Peoples of Mexico, Anáhuac to the designation of “preferred populations.”

This reduction is the exact same technique, in concept and style of the Reductions of the Spanish Crown that began centuries ago with the initial colonization of Mexico.  It is an effective technique of colonization and genocide that when the Hispanic Settler State apparatus of the Criollos broke from direct rule under the Spanish Crown in 1821, the formal processes of reduction remained operational as the Criollos formulated the Independent Mexican Republic.  The Federation of Mexican States is a colonial republic built upon subjugation of the Indigenous Peoples and projected internationally with an Aztec facade that is perfumed by symbolic gestures and adornments of the original indigenous ancestral cultures.

And so instead on December 1st in full view of the multitude in Mexico and witnessed by the world community AMLO rejected the recognition of Indigenous Self Determination in Mexico and openly and criminally violated the Right of Free, Prior and Informed Consent by announcing in no uncertain terms:
68. The Maya Train will be built to communicate by means of this rapid and modern transportation system the national tourists and passengers in the states of Chiapas, Tabasco, Campeche, Yucatan and Quintana Roo.
For those who have yet to become aware of the Maya Train project in the Yucatán, it is a megadevelopment project that has been broadly denounced by the Maya communities of the region, national and international associations of environmental and Human Rights defenders, and very significantly a growing alliance of Original Nations of Indigenous Peoples that stretches from Mexico, across the USA and into Canada.  The Maya of the Yucatán have called the project the “Train that Tramples the Maya” and are moving towards an international boycott campaign and call to divest. 

For comparison, the unilateral and subversive approval of the Maya Train project in the Yucatán by AMLO can be understood as the Mexican version of the underhanded and unscrupulous manner which Donald Trump gave the fast track approval to the permit of the Dakota Access Pipeline when he first took office in 2017.  In Canada, under the government of Justin Trudeau, the same scenario is being played out across the country in different levels of conflict such as the resistance to the TransCanada Pipeline projects in the unceded territories of the Secwepemc Nation and the battle of the Unist’ot’en Camp [British Colombia] against the Tar Sands Gigaproject.  In the east, the fight against fracking by the Elsipogtog First Nation [New Brunswick] is one of the many ongoing active resistance efforts of the Indigenous Self Determination movement north of the “Medicine Line”, the US-Canada international border.

At this point is well to recall that when the Indigenous Network on Economies and Trade (INET), led by Arthur Manuel, brought the fight for Indigenous Rights forward into the international arena of trade agreements, INET was successful in establishing standing in the NAFTA and World Trade Organization (WTO) tribunals based on recognition of Indigenous Proprietary Rights in the Softwoods Lumber Dispute between Canada and the US (2000).  This dispute is ongoing, and it remains to be seen how, under the USMCA 2018 modifications, the fight for economic rights of indigenous self-determination will be strategically advanced, and how successful will the countermoves by the government-corporate cartels be in their permanent campaign to discredit, diminish, and destroy (by any means necessary) the legitimate resistance efforts of the Original Nations of Indigenous Peoples.  What can be foreseen, is how the Canadian strategy of propping up the voices of “compliant Indians” is being replicated and amplified in Mexico, as the AMLO government retools the Mexican Republic with a newly created National Institute of Indigenous Peoples (INPI). 

“They first came with the sword and the cross.
Now they show up with trade agreements and the UN.” 

Within the provisions of the 1994 North American Free Trade Agreement (NAFTA) each nation-state reserved the right to deny investors rights or preferences provided to “aboriginal peoples”, “socially or economically disadvantaged minorities”, or “socially or economically disadvantaged groups” in from two to five designated areas.  These provisions of exception are cited in NAFTA Annex II, as follows:
“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,”
“The United States reserves the right to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged minorities, including corporations organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act,”
“Mexico reserves the right to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged groups,”

In reference to these provisions of exception of NAFTA, professor Valerie J. Phillips correctly stated, “All three nation-states remembered indigenous peoples, but only long enough to put them in their place. All of these exemptions simply continue the ongoing nation-state subordination and marginalization of indigenous peoples.”

The terms subordination and marginalization are only the skin of the beast.  The actual process which has been ongoing since October 12, 1492 is genocide and colonialism, implemented via trade agreements and economic development policies that favor the process of colonization by European American “white” elites continentally and their corporate accomplices.  The Niña, the Pinta, the Santa Maria, the Mayflower: the NAFTA and the NARCO.

Whether it is Canada’s claim of succession to territorial jurisdiction via the Doctrine of Discovery (1492) and the Papal Bulls Inter Caetera (1493) under the terms of the Royal Proclamation of 1763, or the US claim under the SCOTUS Johnson v. M’Intosh decision of 1823, or the claim by the Republic of Mexico under the Constitution of 1917 to “original property of the state”: All three federal superstructures of both common law and civil law lineage and precedent share in illegal collusion and complicity the normalization of the racist tenets of the Doctrine of Discovery of Christendom.

In spite of UN General Assembly resolution 1514 (1960) which proclaimed colonization as an illegal violation of International Law, this colonial geopolitical infrastructure of the states of North America under which the original NAFTA was implemented continues as norm, policy and law even now under the mechanisms of “modernization” per USMCA 2018.  It is a legaloid system.

The case that INET brought forward in the Softwoods Lumber Dispute successfully argued that the lack of compensation (theft) of the lumber products of the Secwepemc Nation territories was an illegal and unfair subsidy to the Canadian lumber industry under NAFTA.  On the issue of unfair subsidies, the case is still yet to be made on how the theft of indigenous labor, specifically Mexican labor, is an unfair subsidy that the US economy enjoys as a result of the systemic exploitation of Mexican labor vis-a-vi the nexus of collusion between regional economic development policies and pogroms of “immigration” enforcement.

Which brings us to the call for affirmation and solidarity with the Human Rights of Indigenous Peoples as Migrant Workers with Families within the economic regime of USMCA 2018.

The international reference for this issue precedes UNDRIP 2007. The United Nations International Labor Organization Convention 169 (1989) was actually the first international instrument to specifically recognize Indigenous Peoples as Peoples, a term of art in the technical sense of contemporary international law.  Prior to Convention 169, to identify the constituencies of the Indigenous Nations, Pueblos, and communities in the existing system of International Law the term of official reference was “indigenous populations”.  As “populations”, not “peoples” there was no implicit recognition of the universal human right of self-determination ascribed to “all peoples” per UNGA 1514.

In effect the international crime of genocide against the Indigenous Peoples had been systemically normalized to the point where lacking the international personality as “peoples” in the international arena, the only venue where the crime of genocide could be prosecuted - the indigenous survivors of the centuries of European Imperialism and colonization faced a scenario where the international personality of Indigenous Peoples was denied the human identity of “corpus” in order to be able to present a “habeus”.

This conceptual regime changed in 2007 with UNDRIP. When AMLO skirts the issue of Indigenous the right of Self Determination of Indigenous Peoples in Mexico and moves deliberately to reframe the conflicts involving blatant violations at horrendous scale of territorial rights and human rights by regressing to the concept and term of “preferred populations” he is acting in agency of a nefarious narrative that has been 526 years in the making.

In terms of the international borders of the USMCA states and the Human Rights of Indigenous Peoples, the proclamation of the Global Compact on Migration on December 10-11, 2018 in Morocco is about to redefine the entire context of the international debate. The government of Mexico took a lead role in redacting the text of the finalized agreement, another point which AMLO has not publicized.  A platform of global policy is being constructed regarding global migration, refugees, asylum seekers, and the stateless constituencies of global climate chaos within the criteria and concepts of the UN Sustainable Development Goals 2030.

Just as in the case of the USMCA, the Global Compact on Migration has had no substantive input or recognition of the human rights of Indigenous Peoples in regard to the international borders of the states.  The Global Compact on Migration instead appears to be the beginning of a global matrix of control and management that prioritizes the sustainability of the profit margins of the corporate elites that command the political power structures of the UN system of states with their respective international borders.

Regarding this issue, for the respective public constituencies of the USMCA countries, the crisis of the Caravan of Refugees that arrived at the US-Mexico border in November 2018 predominates.  Seeking human dignity, security of life, opportunities for employment, and asylum from the Central American countries of Honduras, Guatemala, and El Salvador thousands of families and individuals seek escape from the violence of organized crime.

And while no one involved in the controversy of debate over the caravan would credibly argue in favor of the interests of organized crime, the historical fact is that European American colonization of the Americas in violent affirmation of white supremacy is the absolute epitome of organized crime. It is a crime in progress, the international crime of colonization combined with genocide that is so well organized it passes as a social norm into invisibility, perpetuated in continental collusion and the anthropocentric patriarchy of the Master’s Narrative, AKA White Supremacy.

Today colonization is no longer called colonization, it is called development.

From the text of USMCA 2018: 
Subject to Legal Review for Accuracy, Clarity, and Consistency
Subject to Language Authentication
Section A – Exceptions
Article 32.5:  Indigenous Peoples Rights
Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, nothing in this Agreement shall preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.


Of the three countries engaged in the USMCA, Canada was the only government that provided reference of context for this operative Article of the USMCA.  This implies that the Canadian interpretation of standards regarding Indigenous Peoples Rights across the USMCA market zone will prevail.

The reference of context was given in a footnote that reads:
“For greater certainty, for Canada the legal obligations include those recognized and affirmed by section 35 of the Constitution Act, 1982 or those set out in self-government agreements between a central or regional level of government and indigenous peoples”.
Before the question is asked regarding the mechanisms to enforce legal obligations for Indigenous Peoples whose rights under International Law are impacted by USCMCA, rights that are inherent and inalienable in equality to all other peoples, beyond the qualifying constraints of section 35 of the Canadian Constitution, the US Constitution, or the Mexican Constitution -  it  is critically important to face the fact that the government of Justin Trudeau has already established a limiting framework of preconditions to constrict the debate and define the context of legal responsibilities:
“The Government of Canada recognizes that meaningful engagement with Indigenous peoples AIMS TO SECURE their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources."
 Canada 10 “principles” on government’s relationship with Indigenous peoples (July 14, 2017)

These are the same guys who took aim at William 'Wolverine' Jones Ignace during the Ts'Peten/Gustafsen LakeStandoff in 1995. They fired 77,000 rounds of ammunition into the camp, yet Wolverine walked out of the Ts'Peten/ Gustafsen Lake Standoff on September 17, 1995 in full command of all of his physical and spiritual powers as an unbroken warrior of the Ts’Peten and all Original Nations of Indigenous Peoples of the Great Turtle Island Abya Yala.

Wolverine did not walk out of the Ts'Peten/ Gustafsen Lake Standoff to surrender to the RCMP nor submit to the jurisdiction of the Canadian courts. Wolverine walked out of the Ts'Peten/Gustafsen Lake Standoff to deliver an INDICTMENT on behalf of the Original Nations of the Continental Commission Abya Yala denouncing the criminal violation of Human Rights and Territorial Rights being committed by Her Majesty the Queen in the Right of Canada.

Before his death William 'Wolverine' Jones Ignace wrote to Prime Minister Justin Trudeau in December of 2015, calling for a national public inquiry into the Ts'Peten/Gustafsen Lake Standoff.

Such inquiries are a necessary element of fact finding and verification that are necessary for the decolonization procedures inspired by UNGA 1514 and defined in UNGA1541.  Such tribunals of public conscience, policy, and law must now move forward deliberately and intentionally to supersede the colonial apparatus being modernized (USMCA 2018) in the present era of the empires of corporate capitalism for the benefit of an elite few and to the detriment of not only the Indigenous Peoples, but the future generations of all humanity. 

Final Clarifications:

1.)  The designation of Indigenous Peoples in the USMCA is definitive, in terms of the recognition of Indigenous Peoples as “peoples”.  In the context of the 2007 UN Declaration on the Rights of Indigenous Peoples, which was not yet in place in 1994 during the original NAFTA agreement, the recognition of Indigenous Peoples in an international commercial agreement necessarily is accompanied and contextualized by the recognition of the Rights of Indigenous Peoples as articulated and affirmed in the principles and articles of the UN Declaration on the Rights of Indigenous Peoples.

2)  The principle of non-discrimination is a preemptive norm in international law.  Therefore, the recognition of Indigenous Peoples as “peoples’ in USMCA Article 32.5 Indigenous Peoples Rights must be taken as an affirmation and commitment to uphold, recognize, respect, and institute guarantees of protection for the collective rights of Indigenous Peoples, equal to all other peoples, without illegal or arbitrary discrimination, including effective consequences in the form of legal remedies to address the violation of these rights. Colonization must not be disguised as development.

3)  Consultation is not the same as consent.  The UN Declaration on the Rights of Indigenous Peoples affirms the right of Free, Prior and Informed Consent in culturally appropriate manner for all economic development projects that impact the territories and human rights of Indigenous Peoples.

4) The official text in Spanish (or any indigenous language) of the USMCA agreement was never published in Mexico or anywhere else until the date of December 5, 2018 when our organization TONATIERRA requested an official copy at the offices of the Mexican consulate in Phoenix, Arizona. Without having the text of the USMCA agreement in advance, there is no legitimate or rational narrative that can explain how the Indigenous Peoples of Mexico have been consulted at least with respect to the protection of their particular and collective rights in the USMCA, much less taken into account with the opportunity to approve or DENY CONSENT.

Today, once again, the Continental Commission Abya Yala reiterates this call for accountability and justice in indigenous continental solidarity and agreement with the Reconciliation Manifesto of the Indigenous Network on Economies and Trade INET and in the spirit of the Manifesto Abya Yala. Our collective mandate is the defense of the Territorial Integrity of Mother Earth: Time is now.

Tupac Enrique Acosta, Huehuecoyotl 
Calpolli Nahuacalco



Since the last administration we have been expectant about the Maya Train megaproject, we have followed the project's trajectory promptly and ever since the project was first proposed we have been attentive to its development. We declare that from that initial moment we have disapproved of the project and do not favor its continuation as it violates our indigenous rights to which we are subjects that are enshrined in our Political Constitution. We had hoped with the change of administration that we, the indigenous communities, would become visible to the government of the National Federation and the means by which the Maya Train megaproject was being developed would be reconsidered but to our dismay we are stunned to realized that in this new administration, history will not change and the justice that may have been expected will not be the case for the Indigenous Peoples of Mexico.

In the Spirit of World Peace

In the Spirit of Peace with Mother Earth

In global acknowledgement of the INTERNATIONAL SPIRITUAL MONUMENT at STANDING ROCK, in the Oceti Sakowin Treaty Territories of the Dakotas, the Great Turtle Island Abya Yala;

In denunciation of the War Crime of International Aggression by agents of the United States government, and paramilitary police proxies of the Dakota Access Pipeline, Energy Transfer Partners, et al for the acts of violence camouflaged as domestic police actions at Standing Rock;

The denial of the Recognition, Respect and Guarantees of Protection for the Right of Free, Prior and Informed Consent of the Oceti Sakowin Dakota Nakota Lakota for the Dakota Access Pipeline Project DAPL is not only a moral, ethical, and legal issue but a DEMAND that this DENIAL OF CONSENT by the Original Nations of the Missouri River Watershed for the project be NOTED OFFICIALLY AS A FINANCIAL LIABILITY on the ledgers of the owner corporation Energy Transfer Partners and all DAPL investors and partners.

We call for the full, effective and immediate recognition, respect and international guarantees for the right of Free, Prior, and Informed Consent of Indigenous Peoples over economic development projects that impact our traditional territories.

In the spirit of equality of Indigenous Peoples, we call for the World Bank to acknowledge the criteria of Free, Prior and Informed Consent as a Rights Holder position, not a merely stake holder position, in the processes of consultation that may or may not eventually deliver an agreement of free, prior and informed consent for World Bank supported projects.

We call for the full and effective application of the appropriate and necessary protocols and procedures of DECOLONIZATION as have been articulated under UN General Assembly Resolutions 1514, and GA1541 with respect to the Right of Self Determination of the Original Nations of Indigenous Peoples of the Great Turtle Island Abya Yala, equal to all other peoples.

We demand for restitution of the Treaty Archive of primary source materials that was lent to UN Special Rapporteur Dr. Miguel Alfonso Martinez for the purposes of the UN Study on Treaties, Agreements and special arrangements completed in 1999.

Continental Commission Abya Yala
Secretariat: TONATIERRA 




As still standing OrigiNations in Traditional Confederacy of Kinship, Friendship and Alliance with Treaties and Agreements of our own amongst ourselves, we will not allow our collective human rights to be violated, subverted or domesticated under the regimes of the successor states of the Doctrine of Discovery of Christendom in the Americas.

The legaloid constructs of the Doctrine of Discovery in the form of multinational trade agreements such as the USMCA will be denounced in the Parliament of Canada, in the Congress of the USA and Mexico, as extenuations of the 526 years of colonization and genocide in our continent of the Great Turtle Island Abya Yala.

We now call once again upon the respective public constituencies of Canada-USA-Mexico to reject the USMCA in violation of the Collective Right of Indigenous Peoples to Free, Prior and Informed Consent as is articulated in the United Nations Declaration on the Rights of Indigenous Peoples (2007).


We call upon the respective public constituencies of Canada-USA-Mexico to finally and for the first time, discard the nefarious, racist, Fake Narrative of the Doctrine of Discovery of Christendom as the foundation of their societies and cultural norms, and at last DISCOVER the reality of our common humanity, and along with the still surviving Original nations of Indigenous Peoples let us move forward together towards the global challenges of Climate Crisis, Climate Chaos and TERRACIDE.

Embassy of Indigenous Peoples


Kia Ora,
My name is Tina Ngata, I am a Ngāti Porou woman from the east coast of Te Ika a Maui, Aotearoa. I work primarily in the field of education on Indigenous Rights, the Treaty of Waitangi, and Indigenous environmental studies.

I am writing these points as a response to the recently developed Exceptions and General Provision Article 32.5 in the United States-Mexico-Canada Agreement, which states:
“Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, nothing in this Agreement shall preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.”
This is very similar to the exceptions allowed for in trade agreements between New Zealand government and other nations. Many of our finest Māori scholars, lawyers, and rights advocates have spoken out against the rampant negotiation of free trade agreements, and discussed the implications for us as Māori. Although the TPPA has more recently morphed into the CPTPP, many of our concerns remain. Overarching our concerns is the singular truth that, as sovereign people and Treaty partners, we expect to be present and directly negotiated with in relation to International trade relationships, as well as any agreements that have scope to influence laws upon our lands, waters, and people. Consultation is not good enough, nor are state government provisions such as the exception clause. We are Treaty partners and as such we expect direct negotiation from the outset on such issues. Both the TPPA and the CPTPP have failed on that front. Free trade agreements have been criticized upon many fronts for their direct and indirect impacts. The provisions that respond to these concerns rarely eliminate, or even significantly reduce, risk. One example of this are the provisions for the environment in the CPTPP – which largely deals with issues such as overfishing and wildlife trafficking but does not address the increased biosecurity risks of free trade agreements which are increasingly highlighted by environmentalists as a major biodiversity risk in Aotearoa. This, naturally, compounds the challenges for Māori who are under-resourced and overwhelmed with the challenges of maintaining our ancestral legacy for future generations.
Investor State Dispute Settlement (ISDS) provisions are an anathema for any group pursuing Indigenous rights. That settler-colonial governments willingly sign into arrangements that would see an international tribunal establish culpability for infringing upon the rights of investors is a direct insult to the ongoing struggle for these same rights to be accorded to the peoples upon whose land these governments have established themselves. The tribunal operates within the United Nations Centre for International Trade Related Arbitration Law (UNCITRAL) or at the International Court for the Settlement of Investment Disputes (ICSID) at the World Bank. The arbitration of this process has been heavily criticized for corporate bias, lack of transparency and conflicts of interest.
In general, exception clauses are intended to allay concerns around what these agreements might mean for Indigenous Peoples. Of course each Indigenous nation will have their own set of concerns that require distinct responses to that assumption – however the following can be noted in relation to the exception clause, as applied by the New Zealand govt:
1.     This clause was not developed alongside Māori. It was first included in the 2000 New Zealand trade agreement with Singapore. Māori have never offered our express consent for this clause as a measure of protection for our rights in a free trade agreement. From 2000 we have always held the position that it is not strong enough to protect our rights within a free trade agreement.
2.     It should be noted that the exclusion is only triggered if it does not “disguise restriction on trade in goods”. This part of the clause is very important, it is called the “chapeau” and it will influence the entire interpretation of the rest of the clause. This very important term is a significant loophole that could be exploited by any corporation to oppose an exclusion. Most Indigenous rights abuses relate to trade. If trade is prioritised over Indigenous rights in a trade agreement, then the exclusion clause is, effectively, toothless.
3.     With regard to “adopting or maintaining a measure it deems necessary to fulfill its legal obligation to Indigenous Peoples”. It is reasonable to assume that in this case it will be the Governments interpretation of its legal obligations to Indigenous Peoples, which rarely, if ever, aligns with Indigenous Peoples interpretation of State obligations.
4.     In spite of the current exclusion clause in the agreement, Māori are, however, still protesting and objecting to the agreement and have taken the NZ government to the Waitangi Tribunal for the following issues regarding the clause:
a)     At a conceptual level, we object to foreign investors having enforceable rights that we, as the Indigenous People of Aotearoa, still do not have over our own territories, resources, and intellectual property.
b)      It is impossible to predict how an ISDS tribunal may interpret the chapeau outlined in point 2 above.
c)     The exception clause is triggered when a government takes an action that will be in specific interest of Māori (for example, if government gave special grants to Māori owned businesses, and a foreign investor objected, then the government could call upon the exception clause). HOWEVER it does not cover areas that are not in specific relation to Māori, but will impact on Māori, incidentally (for instance, mining, fishing, public health). So even with this exception, there is nothing to stop a foreign investor challenging a government action in relation to, for instance, mining - even though we know that this has disproportionate impacts for Māori.
5.     The Tribunal found that although the exception clause was “likely” to offer “reasonable” protection for Māori – it did not accept the Crown’s claim that ‘nothing in the TPPA will prevent the Crown from meeting its Treaty obligations to Māori’. It therefore recommended continued discussions to improve protection.
6.     The Tribunal was not convinced that the exception protects Crown actions from a dispute by a foreign investor, for example on water or mining. This would have disproportionate impacts upon Māori that would therefore not be subject to the exception clause.

Ngā mihi, nā

Tina Ngata
Ngāti Porou