This article is part of a series about what the renegotiation of the North American Free Trade Agreement means for the knowledge economy in Canada and the people who turn ideas into innovations within one of the world’s largest free trade zones.
 

When the North American Free Trade Agreement (NAFTA) was negotiated more than two decades ago, Indigenous peoples residing across the three nations were largely ignored. Land rights, cross-border free movement and unification of cross-border communities are some of the more obvious areas that should have included extensive Indigenous consultation at the inception of NAFTA. Although they did not have a seat at the table, Indigenous peoples were impacted by the trade deal.

Economic upheaval and changes to land rights in Mexico following the deal contributed to dramatic shifts in migration patterns, for instance. According to recent research published in The Public Eye, in the United States, “Indigenous people made up 7% of Mexican migrants in 1991–3, the years just before the passage of the North American Free Trade Agreement. In 2006–8, they made up 29% — four times more.”

The reasons behind this increased flight from the country by Indigenous peoples are complex. Economic factors played a role, including a significant price drop for corn following the deal, which opened up the Mexican market to heavily subsidized US maize and affected many small farmers.

The loss of land drove some to flee. To comply with proposed NAFTA rules, Mexico nullified section 27 of its constitution, which stated that land, water and minerals within the Mexican territory were held by Mexico for the people of Mexico. When former President Carlos Salinas removed section 27, significant land transfers began almost immediately from Indigenous communities to private and corporate entities. Previously, this section of the constitution had given the Mexican government the capacity to redistribute land to Indigenous peoples, who, with enough pressure, could win certain land concessions from the government. Indigenous peoples in Mexico do not have specific lands set out for them in the form of reserves.  

The extent of the dislocation experienced in Mexico after NAFTA underlines the immediate and profound impacts of free trade deals on Indigenous nations.

At a time when Canada’s government, under Prime Minister Justin Trudeau, is being criticized concerning the progress of reconciliation, leaving Indigenous leaders out of the conversation concerning the renegotiation of NAFTA would be a mistake. It would demonstrate that in the quarter-century since the deal was signed, Canada has not improved on its nation-to-nation commitment.

In a contemporary context, there are multiple sections of the agreement that warrant consultation with Indigenous peoples. Although it may not be the first to come to mind, Chapter 17, which deals with intellectual property (IP) rights, is ripe for revisiting.

At a time when Canada’s government, under Prime Minister Justin Trudeau, is being criticized concerning the progress of reconciliation, leaving Indigenous leaders out of the conversation concerning the renegotiation of NAFTA would be a mistake.

Indigenous art and crafts, as well as other IP industries such as books and films, are very important to the economic well-being of Indigenous nations and make a contribution to the Canadian economy generally. If we look at Nunavut artists and craftspersons, for instance, we find (as one economic impact study has noted) that “artists receive roughly $27.8 million for their finished work, and this art has a total end consumer sales value of approximately $52.1 million.”

Although countries in Europe and elsewhere are growing in importance as markets for these works, sales to the United States remain a critical source of revenue for Indigenous intellectual and cultural works.

Indigenous traditional knowledge concerning medicinal plants are very valuable assets for Indigenous peoples in Canada, and feature in a growing number of enterprises.

The Avataq Cultural Institute, an Inuit-owned non-profit organization dedicated to the protection and advancement of the language, culture and identity of the Inuit of Nunavik, exemplifies efforts to establish social enterprises in the North and has developed a popular line of teas.

In the fashion world, Indigenous designs are being used regularly without any consideration for the IP of the cultures that have produced them, giving rise to a body of scholarship and an ongoing international dialogue about traditional knowledge that warrants addressing as part of negotiations.

The cultural and spiritual significance of much of the Indigenous works that fall under the rubric of IP needs to be understood and put into perspective. This can be done only with the active participation of Indigenous representatives at the negotiations of Chapter 17 of NAFTA.

This step is in keeping with the Supreme Court of Canada’s decision in Tsilhqot’in Nation v British Columbia (2014). The court made a strong case for implementing consent as a standard for dealing with development on Indigenous-titled lands and as the preferred means to collaborate on non-titled lands. Consent is obviously different from consultation and points the federal government toward the direction that the Supreme Court will find acceptable concerning Indigenous-federal government relationships.

Taking direction from the Supreme Court can set the stage for the way forward in other commitments taken by the Trudeau government regarding Indigenous peoples and IP rights. Whether it is the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, or the evaluation of Canada’s position on the Nagoya Protocol — a supplementary agreement to the Convention on Biological Diversity that provides a transparent legal framework for the effective implementation of the fair and equitable sharing of benefits arising out of the utilization of genetic resources — a nation-to-nation relationship means allowing Indigenous peoples to speak for themselves rather than speaking on their behalf.

Having a place at the table of NAFTA Chapter 17 negotiations is the perfect opportunity for the Canadian government to put into action the nation-to-nation relationship that is the cornerstone of its engagement with Indigenous nations in Canada. Chapter 17 and its impact on the economic value and treatment of Indigenous cultural works — works that are pivotal to the empowerment and identity of Indigenous peoples — should be discussed with the full consultation of Indigenous representatives.

Finally, Canada can seize the opportunity to be a regional leader in inclusive Indigenous representation, especially when the cultural, spiritual and social well-being of Indigenous peoples is at stake, at a time when relations between Indigenous peoples and the United States and Mexico are strained.

Attempting to separate IP-related works from their cultural, spiritual and social context by focusing solely on the economic and legal elements would only demonstrate that the government is not listening to Indigenous voices on this very important issue.

About the Author

Konstantia Koutouki is a professor of law at the Université de Montréal, the lead counsel for Natural Resources with the Centre for International Sustainable Development Law at McGill University and the executive director at Nomomente Institute. Her research examines the links among international trade, IP and environmental protection. She has extensive experience working on issues concerning social, economic and cultural development of Indigenous and local communities, as well as the preservation of natural spaces and traditional knowledge. Konstantia has first-hand experience with Indigenous and local communities around the world, where she has spent much time as a guest and researcher. She has worked extensively to help preserve traditional Indigenous and local food and medicinal systems as well as to contribute to promoting agroecology and traditional medicine in general.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.