It's the K'atl'odeeche First Nation, and my name is Peter Redvers. Chief Fabian has asked me to give some opening remarks. He may have some comments to add after that, and he is certainly available for questions. We do have a prepared presentation, although it's not ready to be submitted yet.
First of all, the K'atl'odeeche First Nation is located in the Northwest Territories, south of Great Slave Lake. It is a fairly large traditional territory and is currently in the process of trying to fully implement its rights under Treaty 8, as well as its inherent aboriginal rights. It has never ceded, released, or surrendered control over its traditional territory, either through Treaty 8 or through the establishment of the reserve.
The K'atl'odeeche First Nation's first concern with respect to the TPP from an indigenous rights perspective, which is the key concern, is the secret negotiation process.
Under Article 19 of the UN Declaration on the Rights of Indigenous Peoples, Canada is required to consult and to obtain the free, prior, and informed consent of indigenous peoples before adopting and implementing legislative or administrative measures that may affect them. Also, under the law in Canada, the duty to consult is triggered and consultation is required when governments are contemplating an action that may infringe rights, not at the eleventh hour. Certainly the TPP could be considered a legislative or administrative measure that has a high potential to affect indigenous peoples.
While Canada claims, or we assume it's claiming, to be consulting first nations and others now that the negotiations are over, that consultation is very weak, and the deal is almost impossible to change now. That's our reading, so this process is clearly an example of too little too late, both under the UN declaration as well as under the laws of Canada with respect to consultation.
A significant concern, which evolved from the first concern, has to do with the TPP chapter on dispute resolution, which has been identified by many others as having a potentially substantive impact on indigenous peoples.
Like NAFTA, the TPP allows companies to sue a country if they believe the agreement has been violated in a way that affects their interests and their profits. That lawsuit can occur in a potentially private arbitration process under an ad hoc tribunal, and it's referred to as investor state dispute resolution.
When I say a potentially private process, under article 9.24.2, although the tribunal is supposed to be conducting hearings open to the public, it also has the ability to close hearings, particularly to protect proprietary types of information, so the tribunal has the ability to restrict others from participating in it. Obviously the cost of participating in that kind of a process would be prohibitive for most first nations.
In theory, the ISDS is there to protect foreign firms from unfair discrimination; in practice, international corporations have used it to sue countries for all kinds of regulations that are in the public interest. For example, regulations to protect the environment, human health, human rights, labour, intellectual property, or others could be challenged.
KFN has a serious concern that the ISDS provisions in the TPP could give too much power to foreign corporations over the laws and policies within Canada, and in our case particularly in relation to land and resource management decisions. This could have a real impact on first nations, especially in disputes over natural resources and development on the land. We do know that certainly among the key beneficiaries of this TPP are Canadian exporters, particularly in the natural resource sectors. That's oil and gas and mining, clearly.
I point out one clause that's of particular concern, and that is 9.29.10: “Each party shall provide for the enforcement of an award in its territory.” This appears to be in the absence of acceptance of any determination by the tribunal and doesn't give much cause for a party, or a country, to challenge that using their own internal laws and jurisdictions.