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Canadian group says indigenous people should be at NAFTA negotiating table

August 21, 2017

A Canadian advocacy association focused on the rights of indigenous people is calling on the government to ensure those people are represented at the NAFTA negotiating table, claiming that doing so would be in line with the Canadian government's existing commitments.

The International Inter-tribal Trade and Investment Organization is urging the Canadian government to allow indigenous representatives at the negotiating table to stake out their views during the talks. According to IITIO Vice Chair Michael Woods, having indigenous people represented at the talks would reflect the "nation-to-nation" concept the Canadian government and indigenous tribes are fostering.

IITIO Chair Wayne Garnons-Williams said the 1982 Canadian Constitution recognizes the rights of indigenous people in Canada. Section 35 of the Canadian Constitution says "The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed." Garnons-Williams interprets that as meaning the property and investment rights of indigenous people should be protected. Accordingly, the Canadian government should not renegotiate NAFTA -- which touches upon the property and investment rights of North America -- without consulting with indigenous people.

Woods, pointing to remarks by Prime Minister Justin Truedau in June, said he believes indigenous rights are being addressed in NAFTA because the Canadian government is realizing the need to adequately respect those rights.

Trudeau said that "No relationship is more important to Canada than the relationship with Indigenous Peoples. Our Government is working together with Indigenous Peoples to build a nation-to-nation, Inuit-Crown, government-to-government relationship -- one based on respect, partnership, and recognition of rights."

Garnons-Williams and Woods pointed to two actions by the Trudeau government during its NAFTA consultation period that they say prove it has an interest in reflecting indigenous priorities in NAFTA. First, Canadian Foreign Affairs Minister Chrystial Freeland said Canada would push for inclusion of a chapter on indigenous people in NAFTA. Having an indigenous rights chapter in NAFTA is part of Canada's "progressive trade agenda," Freeland said last week.

Second, Assembly of First Nations National Chief Perry Bellegarde was named to Canada's "NAFTA Council," which will advise Freeland on the talks. Freeland is Canada's political lead on NAFTA.

NAFTA could also incorporate aspects of an 18th-century agreement signed by the U.S. and Great Britain that originally governed trade between U.S. Native Americans and Canadian indigenous tribes. Canada does not recognize that agreement -- the 1794 Jay Treaty -- because it was under British rule at the time the treaty was signed.

The operative part of the treaty for NAFTA purposes is Article 3, which states: "No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever."

According to Woods, indigenous tribes are subject to the de minimis levied by the U.S. and Canadian governments, which is an issue for tribes that commonly trade across the U.S.-Canadian border. For instance, the Mohawk tribe lives in Canada and New York state and cannot freely trade goods across the border. Woods said the Jay Treaty recognized the fact that inter-tribal commerce was happening long before Europeans settled in North America and said he hopes an indigenous chapter in NAFTA will provide similar recognition. -- Brett Fortnam (

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