The new NAFTA, the United States-Mexico-Canada Agreement ("USMCA"), introduces specific protections for Indigenous peoples.

A Clear General Exception for Obligations to Indigenous Peoples

At Canada's request, USMCA includes a general exception to protect the rights of Indigenous peoples. This exception - Article 32.5 - clearly states that legal obligations to Indigenous peoples cannot be trumped, or interfered with, by commitments under trade rules: "nothing in this Agreement shall preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to Indigenous peoples". For Canada, this provides protection for the implementation of legal obligations affirmed by section 35 of the Constitution Act 1982, such as lands becoming subject to Aboriginal title or rights, or obligations set out in modern treaties like the Tsawwassen First Nation Final Agreement. The general exception covers the entire USMCA.

A New Chapter on the Environment

USMCA also includes a new chapter on the environment - Chapter 24. Provisions in this chapter recognize the specific importance of the environment for Indigenous peoples, and the role they play in its long-term conservation. Additionally, USMCA preserves the pre-existing carve-out related to Aboriginal harvesting of natural resources.

Trade in Indigenous Goods and Protection of Preferential Treatment of Indigenous Businesses

Indigenous peoples will benefit from Article 6.2, which allows Indigenous handicraft goods to be eligible for duty-free treatment. USMCA also preserves the pre-existing carve-out allowing state-owned enterprises to employ preferential treatment in the purchase of goods and services from Indigenous-owned businesses. Further, the chapter on small and medium-sized enterprises encourages parties to strengthen their collaboration on activities to promote enterprises owned by under-represented groups, including Indigenous peoples.

Corporate Social Responsibility

USMCA reaffirms the importance of encouraging enterprises to voluntarily incorporate standards, guidelines and principles of corporate social responsibility. Indigenous peoples' rights are specifically listed as an area that these standards, guidelines and principles may address.

A Step Forward

Overall, USMCA is regarded as the most inclusive trade deal for Indigenous peoples, largely as a result of the clear general exception. That being said, USMCA has also been criticized for failing to reference the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"). UNDRIP, with its legal obligations to Indigenous peoples, has been endorsed by the United States, adopted by Mexico, and is likely to be adopted by Canada when Bill C-262 passes. As a result, obligations under UNDRIP may fall under the protection of the general exception - as legal obligations to Indigenous peoples - even absent any direct reference in the USMCA.

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