PO Box 24009
Phoenix, AZ 85074
Message to the US Senate
USMCA and the Rights of Indigenous Peoples
January 10, 2020
Honorable Members of the US Senate,
Good greetings. On December 12th of last year we submitted a communique to the email address of the Tom Lantos Human Rights Commission requesting a public hearing before the commission for the purpose of informing the US Congressional representatives regarding the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) as stipulated in the UN Declaration on the Rights of Indigenous Peoples (2007).
Of critical and timely importance to this request has been the attempt by Indigenous Peoples, thus far unsuccessfully, to have this issue addressed before the final vote of approval in the US Senate on the US-Mexico-Canada-Agreement (USMCA).
In this context, also in December of last year, the United Nations Committee on the Elimination of Racial Discrimination issued a statement expressing concern “by the refusal to consider free, prior and informed consent” in regards to large-scale development projects in Canada, and “alarmed” by the escalating threat of violence against Indigenous Peoples the Committee urged the government of Canada to guarantee no force will be used against them.
These concerns were highlighted in a recent article in The Guardian that reported the RCMP were prepared to use lethal force against Indigenous protesters blocking workers from clearing the Coastal GasLink’s natural gas pipeline route a year ago in unceded Wet’suwet’en territory. On January 4th 2020, Wet’suwet’en Hereditary Chiefs evicted Coastal GasLink corporation from their territory in exercise of the right of Self Determination as Indigenous Peoples. The eviction notice applies to “Camp 9A” on Dark House territory, as well as the neighbouring Gidimt’en, Tsayu, and Laksamshu clan territories.
Meanwhile in Mexico, on December 19th 2020, the Mexico office of the United Nations High Commissioner for Human Rights (ONU-DH) said that the consultations on the government’s Maya Train project failed to meet all international human rights standards. Such international standards establish that a consultation process with indigenous communities must be carried out prior to a project being executed in a manner that is culturally appropriate, serves to inform and allows free participation.
Yet during information meetings regarding the Maya Train observed by the ONU-DH in Campeche, Yucatán, Quintana Roo, Chiapas and Tabasco, community members asked questions about the possible negative impacts of the project on several occasions “without obtaining a clear and complete response,” the statement said. The ONU-DH said that the absence of studies about the potential impacts or “the failure to disseminate” the studies made it difficult for people to reach an informed opinion about the Maya Train project.
The Mexico office of the United Nations High Commissioner for Human Rights (ONU-DH) said in a statement that during the month-long consultation process in southeastern states it observed that the information presented to indigenous communities only outlined the potential benefits of the project and not the negative impacts it may cause. According to public reports from Mexican President Andres Manuel Lopez Obrador (AMLO), US President D.Trump has offered support and financial backing for the Maya Train project, in spite of the concerns over Human Rights violations and the unawareness in the general American public of the role of their government in the scheme.
Going back to the fast tracking of the Dakota Access Pipeline in the Treaty Territories of the Oceti Sakuwin by President D.Trump as soon as he got into office in 2017, the current administration in Washington has blatantly disregarded the Human Rights of Indigenous Peoples, including freedom from discrimination and the right of Free, Prior and Informed Consent. The proclamation of a National Emergency at the US/Mexico border in order to circumvent domestic civil rights and environmental justice protections to facilitate building the Trump Wall at the border is also yet another example of the systemic violation of the Indigenous Peoples right to Free, Prior, and Informed Consent.
The Carrizo/Comecrudo Tribe of Esto'k Gna, whose traditional territories lie on both sides of the Texas, USA/Coahuila, Mexico border have consistently expressed their denial of consent for the D.Trump Border Wall project which in addition to bringing environmental destruction to the territory, will desecrate an ancestral burial site at the location of the Eli Jackson Cemetery. The cemetery also holds the final resting place of US veterans from WWI, WWII, and Korea.
Previously, in our letter to the USMCA Working Group of the US House of Representatives on September 13th 2019, we informed the Working Group members and House Speaker Pelosi that upon review of the public record of debate concerning the Human Rights of Indigenous Peoples in the context of the proposed US-Mexico-Canada Agreement (USMCA), the systemic disregard for the human rights of Indigenous Peoples is blatantly discriminatory, unacceptable and must be addressed before the agreement be put to vote. Completely disregarding this message, the House of Representatives passed the USMCA on December 19th, and the Senate Finance Committee then passed the United States-Mexico-Canada Agreement on January 9, 2020.
On January 1st of 2020, having received urgent and direct testimony and witness from the Indigenous Peoples of Mexico on how the normalization of Human Rights violations under the USMCA will exacerbate an already very dire situation, where Indigenous Human Rights Defenders such as Samir Flores are being openly assassinated, we reissued our initial call to the Tom Lantos Human Rights Commission. As of today January 10th 2020, we have received no confirmation nor response to our messages.
The call a public hearing for the purpose of informing the US congressional representatives, trade representatives, and the public at large regarding the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) in the context of the USMCA is a call to conscience, and to the rule of law.
The USMCA has been promoted as a necessary "update" of the North American Free Trade Agreement (NAFTA). In distinction from NAFTA which was adopted in 1994 thirteen years before adoption of the UN Declaration on the Rights of Indigenous Peoples (2007), the signatories of USMCA must comply with the minimum standards of FPIC or the corporate consortia investing in any development project in violation of FPIC will immediately become financially liable and exposed to the risk of legal challenges and financial penalties that must be presented before their constituencies (states) and shareholders (corporations).
This principle is now well established, having been the subject of the Soft Woods Lumber Dispute (1982) between the US and Canada which acknowledged the proprietary rights of Indigenous Peoples over territories and resources in the international trade tribunals. Recognizing this fact, the World Bank has restructured its procedures, protocols and practices regarding Indigenous Peoples and the right of Free, Prior, and Informed Consent under the Environmental and Social Standard 7 to shield its interests.
The designation of Indigenous Peoples in the proposed text 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.
There can be no approval of USMCA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC). Consultation is not consent.
Without the full and effective participation of Indigenous Peoples, as Peoples equal to all other peoples, there can be no legitimate approval of the USMCA.
Tupac Enrique Acosta
Honorable Members of the US Senate,
Good greetings. On December 12th of last year we submitted a communique to the email address of the Tom Lantos Human Rights Commission requesting a public hearing before the commission for the purpose of informing the US Congressional representatives regarding the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) as stipulated in the UN Declaration on the Rights of Indigenous Peoples (2007).
Of critical and timely importance to this request has been the attempt by Indigenous Peoples, thus far unsuccessfully, to have this issue addressed before the final vote of approval in the US Senate on the US-Mexico-Canada-Agreement (USMCA).
In this context, also in December of last year, the United Nations Committee on the Elimination of Racial Discrimination issued a statement expressing concern “by the refusal to consider free, prior and informed consent” in regards to large-scale development projects in Canada, and “alarmed” by the escalating threat of violence against Indigenous Peoples the Committee urged the government of Canada to guarantee no force will be used against them.
These concerns were highlighted in a recent article in The Guardian that reported the RCMP were prepared to use lethal force against Indigenous protesters blocking workers from clearing the Coastal GasLink’s natural gas pipeline route a year ago in unceded Wet’suwet’en territory. On January 4th 2020, Wet’suwet’en Hereditary Chiefs evicted Coastal GasLink corporation from their territory in exercise of the right of Self Determination as Indigenous Peoples. The eviction notice applies to “Camp 9A” on Dark House territory, as well as the neighbouring Gidimt’en, Tsayu, and Laksamshu clan territories.
Meanwhile in Mexico, on December 19th 2020, the Mexico office of the United Nations High Commissioner for Human Rights (ONU-DH) said that the consultations on the government’s Maya Train project failed to meet all international human rights standards. Such international standards establish that a consultation process with indigenous communities must be carried out prior to a project being executed in a manner that is culturally appropriate, serves to inform and allows free participation.
Yet during information meetings regarding the Maya Train observed by the ONU-DH in Campeche, Yucatán, Quintana Roo, Chiapas and Tabasco, community members asked questions about the possible negative impacts of the project on several occasions “without obtaining a clear and complete response,” the statement said. The ONU-DH said that the absence of studies about the potential impacts or “the failure to disseminate” the studies made it difficult for people to reach an informed opinion about the Maya Train project.
The Mexico office of the United Nations High Commissioner for Human Rights (ONU-DH) said in a statement that during the month-long consultation process in southeastern states it observed that the information presented to indigenous communities only outlined the potential benefits of the project and not the negative impacts it may cause. According to public reports from Mexican President Andres Manuel Lopez Obrador (AMLO), US President D.Trump has offered support and financial backing for the Maya Train project, in spite of the concerns over Human Rights violations and the unawareness in the general American public of the role of their government in the scheme.
Going back to the fast tracking of the Dakota Access Pipeline in the Treaty Territories of the Oceti Sakuwin by President D.Trump as soon as he got into office in 2017, the current administration in Washington has blatantly disregarded the Human Rights of Indigenous Peoples, including freedom from discrimination and the right of Free, Prior and Informed Consent. The proclamation of a National Emergency at the US/Mexico border in order to circumvent domestic civil rights and environmental justice protections to facilitate building the Trump Wall at the border is also yet another example of the systemic violation of the Indigenous Peoples right to Free, Prior, and Informed Consent.
The Carrizo/Comecrudo Tribe of Esto'k Gna, whose traditional territories lie on both sides of the Texas, USA/Coahuila, Mexico border have consistently expressed their denial of consent for the D.Trump Border Wall project which in addition to bringing environmental destruction to the territory, will desecrate an ancestral burial site at the location of the Eli Jackson Cemetery. The cemetery also holds the final resting place of US veterans from WWI, WWII, and Korea.
Previously, in our letter to the USMCA Working Group of the US House of Representatives on September 13th 2019, we informed the Working Group members and House Speaker Pelosi that upon review of the public record of debate concerning the Human Rights of Indigenous Peoples in the context of the proposed US-Mexico-Canada Agreement (USMCA), the systemic disregard for the human rights of Indigenous Peoples is blatantly discriminatory, unacceptable and must be addressed before the agreement be put to vote. Completely disregarding this message, the House of Representatives passed the USMCA on December 19th, and the Senate Finance Committee then passed the United States-Mexico-Canada Agreement on January 9, 2020.
On January 1st of 2020, having received urgent and direct testimony and witness from the Indigenous Peoples of Mexico on how the normalization of Human Rights violations under the USMCA will exacerbate an already very dire situation, where Indigenous Human Rights Defenders such as Samir Flores are being openly assassinated, we reissued our initial call to the Tom Lantos Human Rights Commission. As of today January 10th 2020, we have received no confirmation nor response to our messages.
The call a public hearing for the purpose of informing the US congressional representatives, trade representatives, and the public at large regarding the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) in the context of the USMCA is a call to conscience, and to the rule of law.
The USMCA has been promoted as a necessary "update" of the North American Free Trade Agreement (NAFTA). In distinction from NAFTA which was adopted in 1994 thirteen years before adoption of the UN Declaration on the Rights of Indigenous Peoples (2007), the signatories of USMCA must comply with the minimum standards of FPIC or the corporate consortia investing in any development project in violation of FPIC will immediately become financially liable and exposed to the risk of legal challenges and financial penalties that must be presented before their constituencies (states) and shareholders (corporations).
This principle is now well established, having been the subject of the Soft Woods Lumber Dispute (1982) between the US and Canada which acknowledged the proprietary rights of Indigenous Peoples over territories and resources in the international trade tribunals. Recognizing this fact, the World Bank has restructured its procedures, protocols and practices regarding Indigenous Peoples and the right of Free, Prior, and Informed Consent under the Environmental and Social Standard 7 to shield its interests.
The designation of Indigenous Peoples in the proposed text 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.
There can be no approval of USMCA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC). Consultation is not consent.
Without the full and effective participation of Indigenous Peoples, as Peoples equal to all other peoples, there can be no legitimate approval of the USMCA.
Tupac Enrique Acosta
TONATIERRA
Free Prior and Informed Consent (FPIC)
All Peoples have
the right to self-determination. It is a fundamental principle in international
law, embodied in the Charter of the United Nations and the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights.
The standard, Free,
Prior and Informed Consent (FPIC), as well as Indigenous Peoples’ rights to
lands, territories and natural resources are embedded within the universal
right to self- determination. The normative framework for FPIC consists of a
series of international legal instruments including the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP), the International
Labour Organization Convention 169 (ILO 169), and the Convention on
Biological Diversity (CBD), among many others.
FPIC is a
specific right that pertains to Indigenous Peoples and is recognized in the
UNDRIP. It allows them to give or withhold consent to a project that may affect
them or their territories. Once they have given their consent, they can
withdraw it at any stage. Furthermore, FPIC enables them to negotiate the
conditions under which the project will be designed, implemented, monitored and
evaluated.
Consultation is not consent.
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