This blog represents my own personal opinions, thoughts and ideas, and should never be relied on as legal advice. My goal is have a national discussion with the grass roots citizens to see where we can affect the changes we want for our families, communities, and Nations. We owe it to our ancestors to protect our cultures and territories for our future generations.
published in Lawyer's Daily on October 10, 2017
is a long list of items that U.S. President Donald Trump has put on his “to
kill” list, including Obamacare, Planned Parenthood, the Department of
Education, immigration and most recently, NAFTA. Trump called the North
American Free Trade Agreement the “worst trade deal ever made” in U.S. history
and indicated he may have to kill the deal.
Prime Minister Justin Trudeau and Mexico’s President Enrique Pena Nieto, on the
other hand, are scrambling to renegotiate with Trump in order to save NAFTA.
But why the mad rush to feverishly save NAFTA? It’s not like it has widespread
support among the people of those three countries and I am sure if the planet
had a vote — it would be a resounding no.
what’s the big deal about NAFTA? NAFTA is a legal agreement that came into
effect on Jan. 1, 1994, to eliminate most of the tariffs on trade between the
three signatory countries with the intention of encouraging trade on a massive
scale. However, it is important to note that Canada and the U.S. already had
massive trading relations prior to NAFTA and would continue to trade on a large
scale, even if Trump kills NAFTA.
NAFTA is clearly a trade deal, the promise made to the citizens of all three
countries was that it would improve the standard of living for all. While it is
hard to analyze NAFTA’s impact on the Canadian economy in isolation from many
other factors — by many accounts, NAFTA has not been the economic saviour it
was originally touted to be when it was first signed.
recent studies have concluded that there have been minimal, if any, positive
impact on welfare in the three countries. In fact, Canada’s welfare shows an
actual decline of 0.06 per cent. Some experts have argued that NAFTA has
created more economic instability than actual benefit as millions have lost
their jobs, wages have stagnated generally and decreased in Mexico. Similarly,
while Canada’s trade increased by 11 per cent during NAFTA, its terms of trade
(relative price of imports to exports) decreased by 0.11 per cent. This doesn’t
even take into account the true cost of environmental destruction or the
localized impacts on Indigenous peoples in all three countries.
have referred to NAFTA as the end result of negotiations between
self-interested transnational corporate elite largely benefitting corporations
— not people or the planet. Numerous civil society organizations in all three
countries have rallied against NAFTA 2.0 unless there are substantive
amendments — including many thousands protesting in the streets in Mexico.
First Nations in Canada, tribal governments in the U.S., and Indigenous peoples
in Mexico have been left in the dark and have no meaningful say in whether
NAFTA goes ahead and if so, on what conditions. Here in Canada, the
negotiations themselves are taking place in relative secrecy and there are no
widespread consultations with Canadians, civil society organizations, experts
and no legal consent by First Nations.
important question is whether we want to save NAFTA at all costs and what are
have a great deal to worry about after all. Remember former Canadian Prime
Minister Harper’s secret Trans-Pacific Partnership negotiations? Just like
Trudeau’s process, there were no widespread consultations with First Nations
for the TPP either. The draft TPP agreement was eventually leaked and revealed that
there were no real protections for human rights, First Nation’s rights, the
environment or women. There is a very real concern that Canada’s negotiators
are relying on similar TPP wording for NAFTA — so as not to rock the trade
we are all distracted with NAFTA, the TPP negotiations we thought were dead —
continue under the radar. On Sept. 30, Canada announced a 30-day consultation
period regarding its ongoing TPP discussions with other nations including
Australia, New Zealand, Japan, Peru and Singapore and others (minus the U.S.).
Nations and Canadians alike have a great deal to worry about. While welfare has
decreased for Canadians since NAFTA, socioeconomic conditions have decreased to
crisis levels for First Nations. NAFTA has had other devastating impacts. Many
Mexicans have lost their farms and were subjected to substandard working
conditions. There has been significant environmental destruction in all three
countries and current NAFTA rules undermine attempts to address climate change
by states. Indigenous women and girls suffered increased violence at the hands
of the extractive industry bolstered by NAFTA — think about the thousands of
murdered and disappeared in Canada-U.S.-Mexico near mining projects or
man-camps. To make matters worse, there are no concrete legal protections,
enforcement mechanisms or redress for violations of Indigenous rights, human
rights or the environment under NAFTA.
that were not bad enough, Investor-State Dispute Settlement — known as ISDS —
leaves the decision-making for all disputes in the hands of a couple of trade
lawyers. The relevant laws considered in their decision-making are rooted
within NAFTA and laws relating to human rights, Indigenous rights and
environmental protections are not factored in. Under NAFTA’s controversial ISDS
provisions, Canada has earned the “most-sued country” title having paid out
hundreds of millions of taxpayer money to large corporate investors who have
sued Canada under ISDS. While the U.S. has yet to lose a single case under
ISDS, Canada stands to potentially lose billions more — not including the
millions in legal fees.
perceived benefits of NAFTA are far outweighed by the significant harms to
people and the planet. If Trump kills the deal, the world would not end. Trade
between the three countries would continue. We must keep in mind that this deal
impacts the lands, waters, resources and safety of First Nations in Canada and
legally, this deal cannot go ahead without their free, prior and informed consent.
That is, assuming Trudeau meant what he said at the United Nations General
Assembly last month when he said Canada accepts the United Nations Declaration
on the Rights of Indigenous Peoples (UNDRIP) without qualification. Article 19
is very clear that Canada must obtain the free, prior and informed consent of
Indigenous peoples before adopting any measure that may affect them.
perhaps the solution lies with First Nations? NAFTA is dead without First
Nation consent anyway — so, Trudeau ought to start the good faith consultation
process before his negotiators make promises they can’t keep.
to the article as originally published in Lawyer's Daily on Oct.10, 2017: