On the cusp of Canada's signing of the resurrected Trans-Pacific Partnership, a former Maori parliamentarian from New Zealand is warning First Nation peoples that the deal could leave nation-to-nation treaties vulnerable to foreign interests.
The new agreement, dubbed the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), is based on the originally negotiated Trans-Pacific Partnership (TPP), which outlined the conditions on which 12 countries skirting the Pacific ocean conduct business with each other.
It was estimated to be worth $4.3 billion for Canada, but has been under renegotiation since the United States pulled out in 2017. Reports suggest the new CPTPP could be signed and finalized in March.
The Waitangi clause
The original TPP included a clause that should be of interest to First Nations in Canada, says Hone Harawira, the Maori leader of an Indigenous rights-focused political party in New Zealand called the Mana Movement.
The clause affirms New Zealand's obligations to the Treaty of Waitangi between the British and the Maori, signed in the 1800s. The Treaty of Waitangi, much like First Nations Peace and Friendship Treaties, is regarded as a document that laid the foundation for what is now New Zealand.
"Waitangi states that Maori could retain sovereignty over their lands, forests and fisheries in return for allowing the British Crown to govern New Zealand," said Harawira.
"But of course, we didn't retain sovereignty of these things, and we've been fighting for it ever since."
Harawira calls the TPP's Waitangi clause "cosmetic only" and "useless in principle." He said Canada's First Nations should learn from the Maori.
"Keep pushing for your treaties to be included in international trade documents, but ensure your rights are adequately represented," he said.
Harawira said he thinks Indigenous Peoples should be given a seat in trade negotiations. He said he's concerned that some may not understand the nature of the CPTPP, and that it can allow foreign investors to infringe on their rights at no consequence.
A report by the United Nations Special Rapporteur on the rights of Indigenous Peoples, Victoria Tauli-Corpuz, suggests that in the event of a legal dispute between a country and a foreign corporation under the TPP, a settlement can overrule any of the country's domestic obligations or legal rulings.
In 2015, a U.S. mining company used the North American Free Trade Agreement to successfully sue Canada over the expansion of a quarry in rural Nova Scotia, which was protested by the Mi'kmaq because the quarry was in their traditional territory.
Simply put, international trade law can trump nation-to-nation treaties — and that's Harawira's concern.
"If confronted with a legal challenge by a major corporation over access to natural resources in this country, it's highly unlikely that the Crown will defend Maori interests," he said.
Because Indigenous treaty rights are affirmed by the constitution and in Supreme Court decisions, Canada's interest in the TPP, initiated by Stephen Harper, has been under the microscope by Indigenous rights advocates, and criticized for not acknowledging First Nations, Inuit and Métis title.
Consultation or consent?
The departments of Global Affairs and Indigenous and Northern Affairs told CBC News in a joint email statement that Canada is "continuing to engage with stakeholders" on the TPP and that since 2015, Canada has carried out "comprehensive, formal consultations," including "some 250 interactions" with stakeholders across the country — Indigenous and non-Indigenous alike.
In 2016, Chief Stacey Laforme of the Mississaugas of the New Credit First Nation near Toronto sat down with other Indigenous leaders to talk TPP with Indigenous and Northern Affairs Minister Carolyn Bennett and then-International Trade Minister Chrystia Freeland.
Laforme said at the time he was "very alarmed" by the power that international corporations were being given in the deal.
"It's not an issue of consultation. It's an issue of consent," said Laforme.
Laforme said the Canadian government has a "vague" definition of consultation, and that he felt little respect was given to the "degrees of ownership" the government and Indigenous peoples have over natural resources.
"Harper did not get to say 'Canada's open for business' without the consent of First Nations people, who still have rights and interests in the land … and this is no different," said Laforme.
"It's just a new prime minister with a slightly different agenda. You can't come and help yourself to the resources of this land, when you haven't asked the people who own the resources."
Laforme said he respected the Maori's inclusion of their treaty in the agreement, but said it would have "limited effectiveness" if First Nations were to try to have their treaties included. He said it's a "deeper issue."
"Let's face it. We need our rights clearly defined before we try to protect them in an agreement."
While the CPTPP has not yet been signed, and the agreement's contents are still missing from Canada's website, INAC and Global Affairs told CBC News that "the new CPTPP also makes explicit reference to our commitment to Indigenous Peoples by reaffirming the importance of promoting Indigenous rights, sustainable development and traditional knowledge, as well as the importance of preserving the state's right to regulate in the public interest."
The statement said Canada is approaching international partnerships in a way that seeks "balanced solutions that advance reconciliation," and added that, for example, Canada's negotiators are currently discussing the potential for integrating into the North American Free Trade Agreement a chapter on Trade and Indigenous People.