Bonjour. Good Morning. Ni'n teluisi Pam Palmater. I'm from the sovereign Mi'kmaq nation that rests on unceded territory in most of the Atlantic provinces.
First, it's my responsibility and honour to acknowledge the traditional territory on which we sit.
In terms of my background, I've been a practising lawyer for 18 years, specializing in legislation and laws impacting first nations, both domestically at parliamentary committees and at the United Nations, most recently on the treaty negotiations for transnational corporations and the lethal harm it does to indigenous communities.
The most important point here is that trade and treaty are the foundation of Canada, not just politically but legally. Canada would not exist but for the relationships cemented in treaties which originated from trade, and trade is a joint jurisdiction of sovereign first nations in this country with Canada. The current TPP agreement violates that jurisdiction, but worse than that, legally it violates the Constitution.
By not including first nations, by not having consulted with first nations—and a five-minute presentation, with all due respect, is not consultation with all the first nations in this country—we have violated Canada's Constitution. The TPP itself violates Canada's Constitution.
The Supreme Court of Canada has already recognized that many first nations, including the Mi'kmaq, sustain themselves and govern themselves through trade. They fought to the death to protect their trade routes and their jurisdiction to manage and govern trade. That right has never been surrendered or ceded and still is valid today. You can see that in the Mi'kmaq treaties of 1760-61 and 1752, which not only mention trading rights but Mi'kmaq rights to trade anywhere to their best advantage. I would argue that also includes trading with other nations like Canada, the United States, and the rest of the world.
These rights and agreements are the foundation of Canada, and because these rights and agreements have been incorporated into the Constitution, if they are not respected or included in the TPP, they naturally violate the Constitution, making the TPP not able to be ratified. Without substantive amendments to the TPP, Canada cannot legally ratify this agreement, whether every Canadian is on board or not. We have a problem with the legality here, both domestically and internationally.
Aside from treaties, and the treaty right to trade and jurisdiction over trade, there are also first nations that have aboriginal title lands. We know from the Tsilhqot'in case what aboriginal title land means. It means the exclusive jurisdiction to determine what happens with the lands and resources and benefits in that territory. Exclusive means exclusive. Nothing in the TPP can happen on any aboriginal title lands in this country without the consent of first nations. That's not just aboriginal title lands in B.C., but the Mi'kmaq don't have land surrender treaties, so all of our lands are unceded as well.
Domestic law requires, at a minimum, consultation, accommodation, and Delgamuukw said even consent. Tsilhqot'in confirmed consent. International law, which the Prime Minister has now recommitted to in his commitment to implement UNDRIP, requires free, informed, and prior consent. There's simply no way around that. First nations haven't even been involved, and we're being asked to comment now on a done deal. We wouldn't be sitting here with this problem about whether we consent or not had first nations been engaged from the very beginning at international negotiations.
Even worse is the human rights aspect in all of the instruments and documents that Canada has ratified. All of the UN experts, all of the special rapporteurs on food, health, the environment, independent judiciaries, democracy, indigenous peoples, unanimously agree that the TPP violates these international instruments, and in fact could spark international insecurity and violence in these countries. Canada is no exception to that. It protects the investors and not the states. Canada should actually be a little more self-interested in the erosion of state sovereignty that the TPP has done with all of the excess powers given to investors, even setting aside what indigenous interests are.
I have 5,000 recommendations. I couldn't possibly list them all here, so I'll just hit the highlights. One is that I agree with the UN experts that there should be a moratorium on the TPP process until there is a fair, open, and democratic process within Canada, not just with Canadians, but a special process with first nations who have not been engaged to date.
There should be a joint consultation process, and there's a whole bunch of recommendations under that. Indigenous peoples' lands and resources must be protected from the TPP. There are options. You can either exempt indigenous lands, resources, rights, and interests from the TPP's application, or you can have specific protections like New Zealand has.
I would argue for a stronger treaty protection than what New Zealand has, but they at least argued for a treaty exemption for the Treaty of Waitangi, because of their constitutional obligations. Canada didn't even bring that to mind and didn't even have that discussion, despite the fact that it's in its own Constitution.
International human rights obligations have to be specifically incorporated within TPP. Investor state dispute resolution mechanisms cannot touch aboriginal rights and interests of any kind, domestic or international. It's simply not up to arbitrators or investors to have any interpretation or say over those rights.
Canada should specifically ratify, and include in the TPP, the Nagoya Protocol, which specifically protects fair and equitable sharing of benefits from genetic resources. It should not just sign a side letter, but should specifically incorporate it.
Last, there should be a protocol that's specific to indigenous peoples being part of every single trade and investment process, and not just the TPP, but every one going forward and retroactively address the ones that they haven't been a part of.
Thank you.