he relationship between Indigenous rights and international trade has started being recognized in economic agreements. Yet, a comparison between the World Trade Organization (WTO) agreements and regional trade agreements illustrates how the multilateral system is falling behind in its promotion of inclusive and equitable trade provisions for Indigenous peoples. When trading partners enter into more formal agreements to deepen trade, they must consider the relationships that they are establishing — or impacting — with the Indigenous peoples of that territory. Here, New Zealand has led the way; the addition of a Treaty of Waitangi exception in trade agreements1 has protected the nation’s treaty with Māori for almost 20 years. New Zealand also negotiated the first Indigenous peoples cooperation chapter in its agreement with Taiwan.
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which came into force in 2018, is another example of the growing recognition that the relations between states and Indigenous peoples must be recognized in international trade agreements. The CPTPP is the first regional trade agreement to recognize Indigenous rights in its preamble. As well, the recently ratified Canada-United States-Mexico Agreement (CUSMA) provides an opportunity for all three member states to deepen relations with Indigenous peoples by protecting Indigenous rights with a general exception and with provisions that can help stimulate Indigenous economies. These improvements over its predecessor, the North American Free Trade Agreement, have been recognized by National Chief Perry Bellegarde of the Assembly of First Nations, who described CUSMA as the “most inclusive international trade agreement for Indigenous peoples to date.”2
Indigenous Peoples and the WTO
While regional trade agreements are beginning to develop models for Indigenous inclusion in trade, and have developed exceptions to protect Indigenous rights, they remain as islands in the sea of international agreements. The WTO agreements, in contrast, contain only a few exclusions and notifications that reference Indigenous peoples. However, these notifications do provide some indication of the enormity of the political and economic relationship between Indigenous peoples and WTO member states. For example, Canada has recently updated its notification for the Cabinet Directive on Regulation. This policy directive sets out the process for developing federal regulations, including the legal duty to consult Indigenous peoples if the proposed regulation has the potential to adversely impact asserted or established Aboriginal or treaty rights3 as affirmed in section 35 of Canada’s Constitution.
In 2015, New Zealand provided the WTO with notification of new provisions in its Patents Act 2013, pursuant to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Notification of Laws and Regulations under article 63.2, which included the establishment of a Māori Advisory Committee.4 This committee will advise New Zealand’s commissioner of patents on patent applications for inventions involving traditional knowledge or indigenous plants and animals. The committee’s role includes providing advice on “whether the commercial exploitation of such inventions would be offensive to Maori.”5
Some members have also provided for exclusions for Indigenous peoples in Annex 7 (“General Notes”) to the Agreement on Government Procurement (GPA). For example, Canada’s exclusion states, “This Agreement does not apply to any measure adopted or maintained with respect to Aboriginal peoples. It does not affect existing aboriginal or treaty rights of any of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”6 New Zealand and Australia also have Annex 7 exclusions for Indigenous peoples, while the United States excludes set-asides for minority businesses.
The exclusions to the GPA are arguably the most economically significant provisions for Indigenous peoples, as they provide certain WTO members with flexibility to create set-asides for government procurement opportunities. The United States and Australia have developed successful Indigenous procurement programs that stimulate Indigenous economies. Both New Zealand and Canada have made commitments to improve upon their procurement policies by, for example, setting mandatory set-aside targets so that Indigenous businesses can access procurement contracts.7 However, there is scope for innovation to Indigenous procurement as highlighted by a New Zealand expert panel report, which speaks to utilizing government procurement as a means of “lifting the prosperity of indigenous groups. Potentially this creates new opportunities for partnerships between Māori and other indigenous groups.”8
Although references relevant to Indigenous peoples in the WTO agreements are only found in exclusions and notifications, Indigenous peoples have been impacted by panels established pursuant to the WTO Dispute Settlement Understanding (DSU). However, as they are not WTO members, Indigenous peoples do not have the mechanisms available to effectively assert agency. Both the Inuit in European Communities–Measures Prohibiting the Importation and Marketing of Seal Products and the First Nations in US–Softwood Lumber IV were economically affected by the measures taken by member states.9
The EC–Seal Products decision of the disputes panel and the Appellate Body (AB) looked at the effectiveness of an exception for Inuit hunters without understanding the importance of the seal hunt to the social, cultural and economic fabric of their lives. Although the European ban on seal pelts devastated the way of life of Northern hunters and their families, it was found to be justified under the WTO exception to protect public morals, yet the discussion about the destruction of an important livelihood for Inuit was never looked at through the lens of morality. A documentary film from filmmaker Alethea Arnaquq-Baril, Angry Inuk, is a window into the impacts on Inuit of the ban on seal pelts,10 a context that the AB was not privy to, as the dispute was brought by Canada, with no direct interventions by Inuit.
The Interior Alliance of Indigenous Nations, a First Nations organization, submitted an amicus curiae brief in 2002 in the WTO softwood lumber dispute. The brief argued that Canada’s failure to recognize Aboriginal title and failure to appropriately remunerate First Nations for timber harvested on title lands could be considered unjustifiable subsidies on the resource. Although the panel received the Interior Alliance’s brief, there is no evidence that their arguments had any impact on the decision.
The 2030 Agenda and the UN Declaration on the Rights of Indigenous Peoples
The global population of Indigenous peoples is approximately 400 million people, living in more than 90 countries. According to the World Bank, Indigenous peoples make up about five percent of the global population, but 15 percent of those who live in extreme poverty.11 The 2030 Agenda for Sustainable Development (2030 Agenda) is a UN Resolution that was adopted by the General Assembly in 2015. The 2030 Agenda is the blueprint for an ambitious agenda to eradicate poverty, including extreme poverty. Indigenous peoples are specifically referenced six times in the 2030 Agenda.12 However, many of the 17 Sustainable Development Goals (SDGs) resonate with Indigenous peoples, including SDGs 1 (end of poverty); 2 (end of hunger); 3 (health); 4 (quality education); 5 (gender equity); 6 (clean water and sanitation); 8 (inclusive and sustainable economic growth); 13 and 15 (climate change and environment); and 16 (peaceful and inclusive societies and justice for all).
Another relevant instrument to the modernization of the WTO is the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration13). The UN Declaration was adopted by 143 UN members in the General Assembly in 2007. Since then, the four UN members that initially voted against the Declaration have now endorsed it, which means that it has the support of a significant majority of WTO members, including the United States. The UN Declaration is an important human rights instrument, but the Indigenous rights set out in its 46 articles can also be categorized as social, cultural and economic rights. Articles 3, 21 and 36, when read within the context of the UN Declaration, speak to the economic self-determination of Indigenous peoples, including the right to establish trade relations among their own members, including those separated by international borders. Modernizing the WTO in a manner that provides for inclusive distribution of economic benefits is not only consistent with the economic rights of Indigenous peoples in the UN Declaration, but would also be a step toward achieving the goals of the 2030 Agenda on Sustainable Development, so that “no one will be left behind.”14
A Joint Declaration for Trade and Indigenous Peoples
More research, engagement and policy leadership are needed at the global level to protect Indigenous peoples’ rights and interests. Since the creation of the WTO, the global economy has evolved, and with changes come opportunities to assess and implement course adjustments for inclusive and equitable trade policy. The reform of the WTO agreements would be best undertaken in a new round of negotiations. The modernization of the WTO agreements requires an examination of intersections between multilateral trade and Indigenous peoples’ lands, resources, knowledge and cultural heritage to provide for inclusion, equity and protection of Indigenous peoples’ rights. An overhaul to the TRIPS agreement is needed to ensure that it does not violate Indigenous peoples’ jurisdiction over their traditional knowledge and cultural heritage. Greater transparency requirements are needed to revise the DSU, including expanding the scope for intervenors to provide participatory rights for Indigenous peoples in disputes that affect Indigenous rights. New agreements, such as on the environment and sustainable development, would provide for consistency in the multilateral trading system and bring it in line with modern regional trade agreements. As well, modernization of the WTO needs to provide for impact assessment on human rights and Indigenous peoples’ rights, as well as the environment, including global trade’s contribution to climate change. More than just creating new agreements and amendments, modernizing means the WTO needs to re-examine how obligations are created and who is invited into the room for negotiations. Effective reform must include the participation of those who have traditionally been excluded from core decision-making mechanisms, to allow for the restoration of legitimacy to, and for enhanced confidence in, the multilateral trading system.
Unfortunately, the current political climate does not support ambitious multilateral actions, as the impasse with the AB at the WTO has demonstrated. However, an approach that has found success for inclusive trade at the WTO is the Joint Declaration on Trade and Women’s Economic Empowerment, which was supported by 121 WTO members and observers at the WTO Ministerial in Buenos Aires in 2017.15
The joint declaration pledges to remove barriers, support women’s economic empowerment and promote economic growth for women through trade. In the two years since the declaration, the WTO secretariat has created the position of a “trade and gender focal point,” a role tasked with coordinating the work of the WTO and creating awareness of the link between trade and gender. Much of the approach behind the joint declaration could be directly applied to advancing WTO action for Indigenous peoples and trade, especially regarding the generation and collection of data on the impact of trade on Indigenous peoples.
A joint declaration on trade and Indigenous peoples should reaffirm the UN Declaration and the 2030 Agenda goal of eradicating poverty, including through inclusive and sustainable trade. Ideally, an Indigenous peoples joint declaration proposed by like-minded states, including Canada, Chile and New Zealand, could launch a new program of work at the twelfth WTO Ministerial Council.
An Indigenous peoples joint declaration might include provisions such as the following:
- Encourage WTO members of the GPA to explore policies that would create reciprocal incentives to procure goods and services from Indigenous peoples by expanding procurement opportunities and promoting Indigenous partnerships and inter-Indigenous Nation trade.
- Reaffirm WTO member commitment to the UN Declaration and to the 2030 Agenda on Sustainable Development and the SDGs.
- Create an Indigenous peoples contact point at the WTO as a clearinghouse of information to monitor and evaluate opportunities and benefits created by the Indigenous peoples joint declaration.
- Establish a symposium on trade and Indigenous peoples at the WTO to invite the participation of Indigenous experts to explore further reforms in an open dialogue with WTO members. The symposium could include a focus on expanding areas of effective participation and increased transparency for Indigenous peoples in the multilateral trading system, including through dispute settlement and ensuring that the TRIPS Agreement does not violate the knowledge and cultural rights of Indigenous peoples.
- Examine the intersections between multilateral trade and Indigenous peoples’ lands, resources, knowledge and cultural heritage to provide for inclusion, equity and protection of Indigenous peoples’ rights.
- Explore opportunities to include a text in the WTO agreements to ensure that the rights of Indigenous peoples are respected and protected.
It is time for the WTO to move forward on trade policies and programs for Indigenous peoples, so that trade liberalization is a benefit to all. A joint declaration on trade and Indigenous peoples would serve as a launching pad for further discussion and research on trade policies to lessen barriers and provide export opportunities for Indigenous businesses. Modernizing the WTO through the lens of the UN Declaration and Agenda 2030 is a foundation for inclusion and equity as well as for protection of Indigenous peoples’ rights within the multilateral trading system.
1 See e.g. Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation, 10 July 2013, NZTS 2013-11, c 24, art 6 (entered into force 1 December 2013), online: <www.nzcio.com/assets/ANZTEC/ANZTEC-Final-Text-10-July-2013-NZ.pdf>.
2 See Perry Bellegarde, “By including Indigenous peoples, the USMCA breaks new ground”, Maclean’s (4 October 2018), online: <www.macleans.ca/opinion/by-including-indigenous-peoples-the-usmca-breaks-new-ground/>.
3 WTO, Committee on Technical Barriers to Trade, Implementation and Administration of the Agreement on Technical Barriers to Trade: Communication from Canada (Revision), WTO Doc G/TBT/2/Add.6/ Rev.4 (2019) at para 1.3, online: <https://docs.wto.org/dol2fe/Pages/FE_Search/DDFDocuments/251614/q/G/TBT/2A6R4.pdf>.
4 WTO, Council for Trade-Related Aspects of Intellectual Property Rights, Notification of Laws and Regulations Under Article 63.2 of the TRIPS Agreement. New Zealand: Patents Act 2013, WTO Doc IP/N/1/NZL/5, IP/N/1/NZL/P/5 (2015), online: <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/N/1NZL5.pdf>.
5 Ibid at 2.
6 WTO, Canada, Agreement on Government Procurement (2014), WTO Doc No WT/Let/954, Annex 7 at para 3 (General Notes), online: WTO <https://e-gpa.wto.org/en/Annex/Details?Agreement=GPA113&Party=Canada&AnnexNo=7&ContentCulture=en>.
7 See e.g. Indigenous and Northern Affairs Canada, “The Set-Aside Program for Aboriginal Business” in Procurement Strategy for Aboriginal Business: Booklet (Ottawa: Indigenous and Northern Affairs Canada), ch 3 at 2, online: <www.aadnc-aandc.gc.ca/eng/1354798736570/1354798836012#chp3_2>.
9 See WTO, Secretariat, “DS400: European Communities — Measures Prohibiting the Importation and Marketing of Seal Products” (8 October 2014), online: <www.wto.org/english/tratop_e/dispu_e/cases_e/ds400_e.htm>; WTO, Secretariat, “DS257: United States — Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada” (24 February 2010), online: <www.wto.org/english/tratop_e/dispu_e/cases_e/ds257_e.htm>.
12 Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res 70/1, UNGAOR, 70th Sess, UN Doc A/RES/70/1 (2015).
13 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/ RES/61/295, 46 ILM 1013 (2007).
14 Transforming Our World, supra note 12, Preamble.
15 WTO, “Women and trade — Buenos Aires Declaration on Trade and Women’s Economic Empowerment” (12 December 2017), online: <www.wto.org/english/tratop_e/womenandtrade_e/womenandtrade_e.htm>.