Thank you, and good morning, friends and relatives.
[Witness speaks in Cree]
That's a little bit in Cree.
I'm very happy to be here. To the men and women, I acknowledge the creator for another beautiful day. To the respected members around the table, I greet you all in a humble, respectful way. I'm very honoured to be here to offer my remarks on the trans-Pacific partnership. My remarks focus on the impacts of international trade agreements on first nations treaty and inherent rights. The current approach to the TPP is not consistent with the government's commitment to rights recognition, respect, co-operation, and partnership. That's the first point I want to make.
We have several recommendations for action on the TPP affecting all first nations and indigenous peoples.
The government should immediately consult with all first nations, especially those who will be directly affected, on the potential impact of TPP on first nations rights, especially the right of self-determination.
The government should meaningfully involve interested and affected first nations on future bilateral negotiations related to the TPP, particularly bilateral negotiations with the United States. This is going to be good timing, because of the three amigos summit coming up on June 29. It's good to get this on to the agenda. The government should prepare and release an assessment of the TPP's impact on human rights. The government should also establish a first nations trade commission service, and it should also establish a trade investment fund for first nations and indigenous peoples.
There are a number of issues we won't be able to discuss given the time constraints of this appearance, but the Assembly of First Nations can and will follow up with a more fulsome written submission. Today I plan to touch on four points: one, investor state dispute settlement and first nations; two, impacts of the TPP on first nations self-determination; three, full and effective participation of indigenous peoples in implementing the TPP; and four, positive measures to facilitate first nations engagement in international trade.
Regarding the first point, investor state disputes and first nations peoples, our first concern relates to the investor state dispute settlement, or ISDS, provisions of the TPP. The ISDS provisions are not new to first nations. For example, the North American Free Trade Agreement contains an ISDS chapter. This is of particular concern to first nations, given that many federal and provincial actions to recognize the rights of first nations may be deemed indirect expropriations to investors under the TPP or other trade agreements. The ISDS provisions obligate Canada and investors to adjudicate the scope and content of first nations rights between each other. Some of the worst legal cases have resulted from third parties arguing about the scope and content of our rights without first nations present, most notably the St. Catharines Milling and Lumber case.
We know from our experience with NAFTA that investor state disputes related to first nations rights are likely. We know that a Canadian investor challenged a law passed by the State of California to protect an indigenous sacred site. We also know that an American investor once issued a claim implicating first nations treaty harvesting rights. We also know that several state-owned enterprises and investors from TPP countries are currently attempting to approve projects that might adversely impact the rights of first nations peoples. Finally, we know that some provisions of the Canadian Environmental Assessment Act have been deemed discriminatory under the North American Free Trade Agreement.
As to the second point, the TPP will have a dramatic effect on first nations self-determination, particularly self-government. This is especially true for first nations that have treaties or self-government agreements containing clauses on international legal obligations. For these first nations, the international obligations of Canada become the obligations of the first nations government. Depending on the content of the TPP, clauses on international legal obligations will curtail first nations constitutional rights under such agreements. This is why many of these agreements also contain clauses that obligate the government to consult with first nations before agreeing to any new obligations that might impact the right of self-determination recognized through the agreement.
We're calling on Global Affairs Canada to immediately conduct and share with all first nations an analysis of all potential impacts of the TPP on first nations self-governance.
The third point is that further negotiations are needed with first nations. The TPP text is not the final text. We know several countries will continue to exchange notes related to the implementation of the agreement. Therefore, we are calling for the immediate and full inclusion of first nations governments in future negotiations on the implementation of the TPP.
We further call for the development of a human rights impact assessment for the TPP. This follows from a recommendation from Olivier De Schutter, the former United Nations special rapporteur on the right to food, who called for a human rights impact assessment for all new international trade agreements. Such an assessment would use the UN Declaration on the Rights of Indigenous Peoples as a basis for assessing the impact of the TPP and ensuring that implementation of this trade agreement would support the rights of indigenous peoples rather than undermine them.
The fourth point has to do with creating a first nations trade commissioner service. The TPP, as with any trade agreement, could serve to facilitate greater economic growth for first nations people. Engagement with international markets could function as a catalyst for re-emergent first nations trade. To help achieve this potential, the federal government should develop a first nations trade commissioner service, functioning on a parallel track to the Government of Canada's trade commissioner service. The FNTCS would develop and deliver supports and programs to first nations businesses and entities interested in exploring the broader market.
Much like the TCS, the first nations TCS would provide services and advice on export issues, establishing companies abroad, market access issues, guidance on how to participate in global value chains, and support for expanded partnerships between first nations companies and other players in the global market.
As an example, with respect to potash, Chief Reg Bellerose from Muskowekwan is developing a trade agreement with India, directly. It has to tie in with rail, with shipping, but he's secured a market in India.