The intersection between investor rights, Indigenous land defence and human rights in NAFTA 2.0

On February 6, CTV reported, “The new NAFTA implementation bill passed the first legislative stage in the House of Commons on Wednesday [February 5] with the backing of the Conservatives, New Democrats and Greens.”

That article adds, “It is now being sent to the House International Trade Committee for further study. The committee has already begun hearing from witnesses offering stakeholder testimony on the reworked trilateral trade deal and is accepting online submissions.”

Investor rights, Indigenous rights and the risks faced by environmental human rights defenders are key areas that the Standing Committee should study and address.

Investor-state dispute settlement

While it has been argued that Chapter 11 has been removed from the new NAFTA, IISD highlights, “Mexico and the U.S. have negotiated an annex that allows investment arbitration to continue…” Significantly, this applies to the oil and gas sector.

The Sierra Club has noted that the investor-state dispute settlement provision in the USMCA “would allow corporate polluters to sue Mexico in private tribunals if new environmental policies undercut their government contracts for offshore drilling, fracking, oil and gas pipelines, refineries, or other polluting activities.”

That is why 350.org, Friends of the Earth, Greenpeace, Oil Change International, the Sierra Club, and Food and Water Action have rejected the agreement.

Indigenous rights

Article 32.5 in the “Exceptions and General Provisions” chapter of the USMCA states, “Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, this Agreement does not preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.”

In an article posted on the Yellowhead Institute website, Tina Ngata has commented, “In general, exception clauses are intended to allay concerns around what these agreements might mean for Indigenous Peoples.”

She adds, “Exception clauses amount to little more than tokenism, and short-change our full rights to determine trade relationships on our land and oceanic territories.”

Environmental human rights defenders at risk

Over just the past two years, 71 human rights defenders have been killed in Mexico. Many of them were Indigenous, land rights, and environmental defenders.

Some are impacted by Canadian capital.

Commenting on the TC Energy (formerly TransCanada Corp.) Coastal GasLink fracked gas pipeline and the RCMP raid on Wet’suwet’en territory, Educa Oaxaca (which is accompanied by the Peace Brigades International-Mexico Project), stated:

“It should be remembered that TransCanada was the first private company to build and operate gas pipelines in Mexico, where it currently has more than 1,618 kilometers of gas pipelines. In November 2018, its planned Tuxpan-Tula and Tula-Villa de Reyes gas pipelines were suspended due to the resistance of indigenous peoples in Veracruz, Puebla, Hidalgo and the State of Mexico.”

Martha Pskowski has noted that the murders of Rarámuri land advocates [Isidro Baldenegro Lóperz, Juan Ontiveros Ramos and Julián Carrillo Martínes] in the Sierra Tarahumara region in Mexico “discouraged some Rarámuri people from speaking out when the energy company TransCanada began building a natural gas pipeline through the area.”

She comments, “Investors and companies in the U.S. and Canada have done little to ensure that their money isn’t driving criminalization and attacks on local advocates. Until the companies take clear steps to prevent the violence, they are complicit in — and benefit from — the weak rule of law in their partner countries.”

This is an important intersection between investor rights, Indigenous rights, and the deadly risks faced by environmental human rights defenders in Mexico that the Trade Committee should consider and remedy.

Photo: Land defender Julián Carrillo Martínes was killed on October 24, 2018. To read more about the Rarámuri leaders who have been killed in the Sierra Tarahumara, please see this PBI-Mexico article: Killings in the Sierra Tarahumara: an open chapter.

The debate on NAFTA/CUSMA/USMCA in the House of Commons on February 6 can be read in Hansard here. The web-page for the House of Commons Standing Committee on International Trade can be found here.