Tina Ngata, Māori: USMCA and the "Exceptions Clause" NO CONSENT, NO JUSTICE

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 USMCA, 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 government.

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

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Self Determination and Human Rights of Indigenous Peoples inthe New NAFTA Trade Zone of North America

[Canada-US-Mexico]

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.