ERASING INDIGENOUS RIGHTS:
THE FREE TRADE AREA OF THE AMERICAS

A Background Paper by the Indigenous Network for Economies and Trade (INET)
Continental Indigenous Summit
Mar de Plata, Argentina
November 1-5, 2006

Indigenous Peoples have called the Americas their home since time immemorial. It is from their strong historic and present link to their traditional territories that their indigenous rights arise:

“For Aboriginal People the land is part of their identity as people… When Europeans came to the Americas they were considered as outsiders, but were permitted to share in the land and its resources… Whatever rights the Europeans wanted had to be sought from those who were placed upon the land first by the Creator.”

It has taken the long unified struggle of indigenous peoples to gain recognition of their inherent rights and jurisdictions. But while indigenous peoples in North, Central and South America try to see their constitutional and inherent rights respected and implemented by national governments, these rights are being undermined by the drive to create bigger and more powerful international trade agreements.

Presently the governments of the Americas are negotiating the Free Trade Area of the Americas agreement extending and increasing these rules across the entire Western Hemisphere. Indigenous Peoples have to understand the impact this will have on their indigenous rights and their access to their lands and resources.

The FREE TRADE AREA OF THE AMERICAS

The Free Trade Area Of The Americas or FTAA will be the culmination of the trade liberalization movement and a model for the next step of the WTO. Incorporating many of the elements of the failed Multi-lateral Agreement on Investment or MAI that was rejected by Canada’s Assembly of First Nations, it would also include strengthened provisions on enforcement, technical barriers to trade (domestic laws and regulations), investment, and force the privatization of public services. It would also give special treatment or outright exemption to corporate officials from normal immigration processes when entering or leaving a country thus creating a class of the corporate executive diplomats.

The FTAA is an attempt to set low regional standards and thereby undermine stronger international standards. The Organization for American States has in the past been known for setting low regional standards, for example in the field of indigenous rights, to influence negotiations at the United Nations level.

How “Free Trade” Works

The underlying principle of free trade is that resources no longer belong to communities for their development but are available to the unrestricted operation of the international market place.

National Treatment means that foreign companies have to be treated equally to people doing business in their own community. National Treatment applies to everything from resources like water, oil, natural gas and lumber to providing services in communities whether public or private, and to investment. No barriers or regulations can be in place to encourage local development or protect the environment if a tribunal decides they unfairly interfere with trade.

National Treatment provisions exist in NAFTA (North American Free Trade Agreement), the agreements of the WTO2 like the GATT and the GATS and effectively stop governments right down to the local level from effecting the way their economies develop and ensuring that their communities benefit from that development.

The General Agreement on Trade in Services or GATS is taking this a step further by dictating how people can regulate services in their community even if they are treating foreign companies the same as local operations.3

Why It Is So Dangerous

Even though trade agreements exist along side of other international agreements like agreements on the environment and human rights, they were written with the intention of making them enforceable. While human rights agreements and environmental agreements rely on moral persuasion, diplomacy or good will to make sure the parties comply, trade agreements have strict enforcement measures that allow other counties to punish them economically for violating the deals or by allowing foreign companies to sue them for billions of dollars. This means that trade agreements will always win out over human rights and the environment.

Under NAFTA Chapter 11 a new kind of tribunal was established. Now investors4 can directly sue countries for loss in profits if they e.g.: enforce environmental protection guidelines or try to protect resources. Each decision so far awarded 100s of millions USD compensation to the companies. It is likely that in the future this will make governments more reluctant to restrict companies’ access to indigenous land.
The Costs of Free Trade

This new level of “Free Trade” will cost indigenous people the hard fought gains they have won within their national jurisdictions and on the international level.

Secwepemc elders in the Interior of BC for example can point out the negative impacts of ski-resorts and artificial snow-making on the water shed and their multifaceted use of their traditional territories5. Under GATS and NAFTA the number of tourism suppliers could not be restricted6 and no criteria for example regarding sustainable tourism and the traditional knowledge of indigenous peoples would be taken into account.

It is becoming clear that while indigenous people are struggling to establish independence and self-government through control of their communities and resources, the liberalization movement is sweeping away the right to exercise that sovereignty and control over their land and resources.

The Threat to Inherent Rights

Indigenous peoples have maintained those rights despite the undermining forces of colonization and assimilation, because they fought for them in any way they could. After long judicial struggles the courts recognized the inherent rights of indigenous peoples to the land and water. The Supreme Court of Canada recognized Aboriginal Title in the 1997 Delgamuukw Decision7 as the collective proprietary interest indigenous peoples hold in their traditional territories.

This follows international developments: in 1992 the rights of Aboriginal Peoples to the Australian continent had been recognized as Native Title8 and many of the new Latin American constitutions enshrine legal pluralism9, meaning the inherent, parallel jurisdiction of indigenous peoples, as a central principle.

Also, in Canada First Nations fought for constitutional recognition of their inherent rights. In the 1980s thousands of Indians traveled from British Columbia to Ottawa and to Europe to have their rights recognized. Today Section 35 of the Canadian Constitution extends constitutional protection to Aboriginal Title and Rights, by stating10:
“ (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The United Nations has recognized that indigenous people have the inalienable right to self-determination, including the right to pursue and sustain their culture, as a central part to their traditional and spiritual life. The international community has to reaffirm their commitment to indigenous rights and recognize the collective rights of indigenous peoples in all fields of law, otherwise they violate the human rights of indigenous peoples.

A New Front

The FTAA is a deadly assault on the gains Indigenous Peoples have made in the Americas. As a culmination of the efforts of the trade liberalization movement that seeks to put all land and resources on the open market and strangle community and collective control, the FTAA is a development that threatens to undermine indigenous nationhood at the international level. As in the 1970’s when indigenous peoples first organized on the international level, starting what became known as “the Fourth World Movement”11, indigenous peoples now have to stand together and devise their own principles for protecting their inherent rights and values against the onslaught of corporate interest, because the trend that was already detected then continues today12:
“ Land-holding is moving under the control of multinational corporations, which have all the worst aspects of state control and none of the virtues.”

International trade agreements that preclude the recognition of indigenous rights, extinguish those rights. This is a violation of constitutional and international law.

Indigenous peoples hold collective proprietary interests in their traditional territories and natural resources that therefore can only be traded in the international market place. There can be no free trade that does not first guarantee indigenous rights and environmental and human rights throughout this hemisphere and that doesn’t take first recognize the collective proprietary interest of indigenous peoples.

As Indigenous People’s In Solidarity We Must:

? Demand that the negotiations of the FTAA stop immediately, as it is a threat to our rights, our culture and our existence as a people,

? Demand that existing trade agreements that do not recognize our rights be of no effect,

? Educate, organize and mobilize our communities to fight these agreements and future agreements that seek to extinguish our existing and inalienable indigenous rights to land and resources.

Some Examples of Their Power

In 1998 Canada was force to repeal a law banning the import of MMT, a gasoline additive that has known health-hazards made by American chemical giant Ethyl Corp.13. MMT is banned in many countries, and at the time, almost all American states. Ethyl Corp. sued Canada under NAFTA Chapter 11 and, without a tribunal decision, had the law repealed, was given $13 million US in compensation, and a letter from the Prime Minister of Canada stating that there was no proven harm to human health from MMT.

A Canadian company, Methanex14 is suing the American federal government for $970 million US because the governor of California has issued an executive order that a gasoline additive it manufactures called MTBE (methyl tertiary butyl ether) must be eliminated from gas sold in California by the 2003 due to its contamination of ground water throughout the state.

On August 25 , 2000 a NAFTA Chapter 11 tribunal ordered the government of Mexico to pay an American company, Metalclad, 16.7 million US because a Mexican community refused to allow the company to operate waste disposal site on ecologically sensitive land..15 The Canadian position on the decision is that Chapter 11 was never designed to allow companies to overturn domestic policy.16

In 1998 Sun Belt Water Inc. of Santa Barbara California sued the Canadian government under Chapter 11 of NAFTA for $410 million US because the province of British Columbia withdrew a water export license held by its Canadian partner. Sun Belt has since increased that claim to 10.5 billion US, 17because the broad definition of investment in chapter 11 also allows them to sue for the loss of future profits.

In 1999 a dispute with the United States over Canadian regulations over advertising in Canadian magazines caused the rewriting of Canadian publishing laws protecting culture.

(Footnotes)
1 Hamilton, A.C.; Sinclair, C.M. (1991) The Justice System and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, Winnipeg, Queen’s Printer, pp. 115-116
2 The World Trade Organization administers + rules on disputes of a dozen international trade agreeements
3 General Agreement on Trade in Services Article XVI prohibits six different categories of non-discriminatory regulatory controls.
4 Canada has been sued by Ethyl Corp. for banning a gasoline additive, Sun Belt Corp. for not allowing Water Exports, Mexico was sued by Metalclad for not allowing the construction of a waste dump
5 Adams Lake and Neskonlith Shuswap (1999) Traditional and Current Use Study, unpublished, maps
6 Shrybman, GATS and Water 2001
7 Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010
8 Mabo v. Queensland (no.2) (1992) 107 A.L.R. 1
9 Diaz-Polanco, H. (2000) Las reformas constitucionales, presentacion en el Congreso Mondial de Pluralismo Juridico, Arica, Chile (proceedings to be published by the Commission on Legal Pluralism)
10 Canadian Constitution (1982), Section 35
11 Manuel, George and Posluns, Michael (1974) The Fourth World, Free Press, New York
12 Manuel, p. 253
13 Appleton and Associates International Lawyers web site http://www.appletonlaw.com/4b1ethyl.htm
14 California Governor Gray Davis issued an Executive Order on March 25, 1999 directing the removal of MTBE from gasoline sold in California by December 31, 2002.
15 California Governor Gray Davis issued an Executive Order on March 25, 1999 directing the removal of MTBE from gasoline sold in California by December 31, 2002.
16 Greenfield, Gerald “Against the Current” 2001 7012 Michigan Avenue
Detroit, MI 48210
17 Jack, Ian, National Post, Sept. 1, 2000, C4
18 Sun Belt Water Inc., news release October 14, 1999

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