NAFTA IP & Indigenous Traditional Knowledge

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Indigenous Traditional Knowledge

By Wayne D. Garnons-Williams, Chair, IITIO

To provide some contrast and perspective to Indigenous “traditional knowledge” in comparison to Intellectual property (hereinafter referred to as “IP”) it is first important to provide some basic definitions of various IP aspects:  Patents, Copyrights and Trademarks

Patents

In the seminal textbook by Kintner & Lahr entitled An Intellectual Property Law Primer, Patents are defined as:

“In its simplest terms a patent is an agreement between an inventor and the public, represented by the federal government: in return for a full public disclosure of the invention the inventor is granted the right for a fixed period of time to exclude others from making, using, or selling the defined invention in the United States. It is a limited monopoly, designed not primarily to reward the inventor (this may or may not follow), but to encourage a public disclosure of inventions so that after the monopoly expires, the public is free to take unrestricted advantage of the invention.”

Kintner & Lahr, An Intellectual Property Law Primer, p.127

 

Generally, patents cover products or processes, giving the patent holder the right to exclude others from making, using, marketing, selling, or importing the invention for a set number of years from the date the patent application was filed with the Patent and Trademark Office.

Copyright

Copyright is defined in Blacks Law Dictionary as:

“The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.”

Copyright does not protect ideas, but their expression, which must be original and fixed in a tangible medium.

Trademarks

Black’s defines a trademark as:

“A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others. The main purpose of a trademark is to designate the source of goods or services.”

In effect, the trademark is the commercial substitute for one’s signature.

 

Traditional Knowledge

Indigenous ‟Traditional Knowledge” is roughly the understanding or skill possessed by Indigenous Peoples pertaining to their culture and folklore, their technologies, and their use of native plants for medicinal purposes. Most definitions of what qualifies as “Traditional Knowledge” are extremely broad. According to the World Intellectual Property Organization (WIPO), which has spearheaded the serious discussion at the international level, Traditional Knowledge includes:

…all tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary, or artistic fields.  […]

 

Categories of traditional knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity-related knowledge; “expressions of folklore” in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of languages, such as names, geographical indications and symbols; and, movable cultural properties.

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge 1998-1999, (Geneva) April 2001, p.25

Traditional Knowledge thus both includes and goes beyond the subject matter of intellectual property (IP) in the “modern” sense.  According to WIPO, what sets Traditional Knowledge apart from ordinary IP is the requirement that the knowledge be “tradition‑based,” referring to:

Knowledge systems, creations, innovations and cultural expressions which: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and are constantly evolving in response to a changing environment.

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge 1998-1999, (Geneva) April 2001, p.25

 

The Government of Panama has also defined Traditional Knowledge, or as they term it “collective Indigenous Rights,” in their domestic legislation, with an important emphasis: the collective history of the Traditional Knowledge:

“Collective indigenous rights” means the indigenous cultural and intellectual property rights relating to art, music, literature, biological, medical and ecological knowledge and other subject matter and manifestations that have no known author or owner and no date of origin and constitute the heritage of an entire indigenous people. (emphasis added)

Panama Legislative Assembly, Law No. 20 (of June 26, 2000), Chapter 1, Article 2 (v)

 

As this definition demonstrates, there is an important distinction: Traditional Knowledge is not fixed in time (going back to “time immemorial” and going forward indefinitely) and is assigned to a collective entity. IP is fixed in a specific time period and is assigned to a specific owner (individual or corporate, and current). As Professor Graham Dutfield states:

Traditional knowledge, more fully and carefully defined, is understanding or skill, which is typically possessed by indigenous peoples and whose existence typically predates colonial contact (typically with the West), that relates to medical remedies, plant and animal products, technologies, and cultural expressions. The term “cultural expressions” includes religious rituals, sacred objects, rites of passage, songs, dances, myths, stories, and folklore generally. These forms of knowledge and cultural expressions are rarely frozen in time. Generally, they evolve over decades and centuries.

Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 Case W. Res. J. Int’l L. 233, (2001), p.240

 

In many cases, Traditional Knowledge has been in existence since time immemorial. Even if an individual author or inventor is known, most proposals for Traditional Knowledge should be regarded as the property of the collective culture or tribe as a whole.  An example of this would be the Cowichan sweater: the original designers, weavers and artisans are long dead, but the Cowichan people, part of the Coast Salish peoples of southwestern British Columbia, claim a distinctive collective Traditional Knowledge/Intellectual Property right over the knitted product and art form.  No one person or family claims the design/technique or art; it has been held by the Cowichan people as an entity since time immemorial; it will be carried forward through all their generations to come; and it is expressed collectively.

 

Efforts to improve the protection of Traditional Knowledge have been informed largely by a recognition of the need to counter the negative effects on indigenous communities arising from the widespread commercial exploitation of Traditional Knowledge, especially in the pharmaceutical, agricultural, cosmetic, and entertainment industries, and in the retail market sectors (see Kintner and Lahr, An Intellectual Property Law Primer, pp. 61, 117, 119, 125 & 273).

 

Indigenous groups have been quite vocal in their complaints about the lack of adequate compensation, loss of community rights, misrepresentations of products and practices as indigenous, and the unauthorized public disclosure and use of secret knowledge, images, and other sensitive information pertaining to indigenous communities (see Darrell A. Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (1996), p.27).

 

Given the above, a strong case has been made for the recognition and protection of Traditional Knowledge in the NAFTA. The development of measures specifically adapted to the nature and characteristics of Indigenous knowledge within the framework of a binding Indigenous Chapter, in keeping with customary/traditional Indigenous law is designed, not to confer economic benefits on individual creators, but for common exploitation.

 

Using terms that would serve well as a starting point for inclusion of a subheading Traditional Knowledge into an Aboriginal chapter of NAFTA, Munzer submits, in his article, a “robust package of legal protection for traditional knowledge”:

(1) An indigenous people holds their various claim-rights and liberty-rights communally and has the power to override or nullify some actions by their members.

(2) An indigenous people has a claim-right to

(a) their traditional medicines and health practices, including a claim‑right to state protection of minerals, plants, and animals used in these medicines and practices;

(b) their folklore, folk art, crafts, techniques, and knowledge;

(c) the biodiversity of their region; and

(d) their genetic material, bodily fluids, and tissues.

(3) An indigenous people has the power to create rules binding on others for access to the items listed in paragraph “2”, including physical samples and audio, visual, written, or electronic records of these items.

(4) Individual members of an indigenous people have a liberty-right and a power to grant access to the items listed in paragraph “2” so long as the leaders of the indigenous people, or the indigenous people acting as a whole, have not limited this liberty-right and power.

(5) An indigenous people and its members have a claim-right to receive just compensation for granting, after giving informed consent, access to the items listed in paragraph “2”.

(6) If just compensation is not received, or if prior informed consent is not obtained, an indigenous people or its members have a claim-right to, and a power to seek, royalties, compensatory damages, and equitable relief, and the state has a power and a duty to fine or prosecute the offenders.

(7) With respect to copyrights and patents protected by the laws of host states or other states, an indigenous people and their members have powers to

(a) exempt their folkloric works from the usual copyright requirement of being fixed in a tangible medium of expression;

(b) prevent others from copyrighting or using their folkloric works; and

(c) prevent the patenting and use of their medicinal compounds by non-indigenous persons by establishing the prior invention and use of these compounds in any relevant indigenous language.

(8) An indigenous people has an immunity against expropriation of the items listed in paragraph “2” by the host state.

(9) The foregoing claim-rights, liberty-rights, powers, and immunities are of indefinite duration, unless an indigenous people exercises a liberty-right and power to limit their duration with due appreciation of the consequences.

Stephen R. Munzer, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009) pp. 5-6

 

In the course of related consultation, additional reference should be made to the United Nations Economic and Social Council [ECOSOC], Subcommittee on the Promotion and Protection of Human Rights, Commission on Human Rights, Human Rights of Indigenous Peoples, Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/2000/26 (June 19, 2000).

 

Conclusion

Supporters of Traditional Knowledge rights find the existing IP system, which favors discrete innovation and creation over more gradual and incremental processes, unfair to Indigenous peoples. The argument for the protection of Traditional Knowledge often starts with the fact that the Traditional Knowledge has tremendous cultural significance, but it is also of value to people outside the culture, for their own uses. For example, many non-Indigenous have benefitted from Indigenous healing methods, and yet in most situations a tribe has no legal recourse against entities who use and benefit from its tribal knowledge. The most obvious basis for protection, the intellectual property laws will, unless radically overhauled, ordinarily prove unavailable.

Therefore, an Indigenous Chapter could leave intact the existing IP, adding a parallel Indigenous TK model to protect Traditional Knowledge.

 

Authorities

WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge 1998-1999, (Geneva) April 2001, http://www.wipo.int/edocs/pubdocs/en/tk/768/wipo_pub_768.pdf

Panama Legislative Assembly, Law No. 20 (of June 26, 2000), Chapter 1, Article 2 (v), http://www.farmersrights.org/pdf/americas/Panama/Panama-tk00%2001.pdf

Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 Case W. Res. J. Int’l L. 233, (2001)

Blacks Law Dictionary, (6th Edition)

Kintner, Earl W. & Lahr, Jack L. An Intellectual Property Law Primer: A Survey of the Law of Patents, Trade Secrets, Trademarks, Franchises, Copyrights, and Personality and Entertainment Rights C. Boardman Company, 1982

  1. A. Posey & G. Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (1996) https://www.idrc.ca/en/book/beyond-intellectual-property-toward-traditional-resource-rights–peoples-and-local

Paul Kuruk, Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States, 48 Am. U. L. Rev. 769, (1999)

Stephen R. Munzer, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009)

U.N. Econ. & Soc. Council [ECOSOC], Subcommittee on the Promotion & Protection of Human Rights, Commission on Human Rights, Human Rights of Indigenous Peoples, Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/2000/26 (June 19, 2000) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G00/140/41/PDF/G0014041.pdf?OpenElement

 

 

NAFTA Submission to Global Affairs Canada from IITIO

Parliament and Teepees

Submission by

the International Inter-Tribal Trade and Investment Organization

to the Government of Canada

for the Renegotiation and Modernization of

the North American Free Trade Agreement

 

No relationship is more important to Canada than the relationship with Indigenous Peoples. Our Government is working together with Indigenous Peoples to build a nation-to-nation, Inuit-Crown, government‑to‑government relationship — one based on respect, partnership, and recognition of rights.  –Prime Minister Justin Trudeau, June 21, 2017

The Government of Canada is seeking the views of Canadians on the scope of the renegotiation and modernization of the existing North American Free Trade Agreement (NAFTA) with the United States and Mexico. The Government is seeking views on key areas in NAFTA that could be clarified or updated, and on any new areas that should form part of a modernized agreement. This notice is part of the Government of Canada’s ongoing domestic consultation process with stakeholders, including provinces and territories, businesses, civil society organizations, labour unions, academia, Canada’s Indigenous peoples, and individual Canadians.  –Global Affairs Canada, June 2107

 

This submission[1] is filed[2] by the International Inter-Tribal Trade and Investment Organization (IITIO),[3] a Canada-U.S. collaborative effort of legal experts from private practice and academia, and representatives from First Nations in Canada and Native Americans from the United States.  IITIO has been in existence since 2015.

The IITIO Terms of Reference[4] includes the following Mission:

…to support and enhance the implementation of the global flow and exchange of Indigenous goods, services and investments.

 

IITIO’s focus has been the examination of the convergence of the law on international trade and investment with Indigenous Peoples’ own long‑standing laws and customs relating to nation-to-nation trade and commerce. We also examine domestic and international law, as it is developing, on the nation-to-nation relationship.

 

With the help and support of the law faculties of both Thompson Rivers University in Kamloops, BC, and the University of Oklahoma in Norman, Oklahoma, and leading practitioners and scholars from North America, IITIO has engaged with representatives of individual Indigenous Nations who have participated in the three conferences organized by IITIO since April 2016.

 

IITIO’s Terms of Reference include other core aspects relevant to this submission:

 

…to apply the group’s combined international expertise, passion and experience in addressing tangible issues that can assist in the global flow and exchange of Indigenous goods, services and investments…

…to facilitate productive discussion, objective research, and effective education with respect to international inter-tribal trade and investment, through seminars, conferences and scholarly papers…

…and to recommend measures, activities and policy/regulatory/legislative proposals (initiatives) that can further the global flow and exchange of indigenous goods and services while respecting its principles…[5]

 

One of the most important messages coming out of our country’s collective reflections on the 150th anniversary of Confederation is that with respect to the place of our Indigenous Peoples, “we have a lot of work to do in the future, together.”[6]  Prime Minister Trudeau’s response to the Indigenous perspective on our shared history reflects modern Canada’s growing realization of the country’s “abject failure to respect rights, the spirit and intent of the original treaties with First Nations, Métis Nations, and Inuit Peoples. We have to transform that relationship.”[7]

 

The challenge of “transforming the relationship” has been acknowledged.  There will be a great deal of discussion, negotiation, and exchange of ideas.  We submit that the modernization/renegotiation of the North American Free Trade Agreement provides an early opportunity to test the Government of Canada’s resolve to address its 150 years of “abject failure” and start the work of righting ancient wrongs on a Nation to Nation, Government to Government basis.

 

A modern free trade agreement by its very nature involves the expression and exercise of sovereignty. Some would argue that by granting rights to trade and investment in its territory, a state is also ceding some of its sovereignty in the greater interest of opening markets and liberalizing trade on a reciprocal basis. At the same time and at its very core, the matter that divides Indigenous Peoples from the Canada of Confederation is the question of sovereignty. It is hard to accept the idea that those whom the Governor General has acknowledged to be “the original people of this land”[8] are left out of the process of what we submit is the Government of Canada’s largest expression of sovereignty.

 

The territory we call Canada is made up of land originally occupied by its First Peoples, who have treaty rights or claims over vast portions of that land.  It is submitted that the Government of Canada does not have the right to act unilaterally on behalf of Indigenous Peoples. It has that right neither in law nor based on the history of the Crown’s neglect and failure to provide even rudimentary consultation aligning with the standards set out by the Supreme Court of Canada.

 

A modern trade and investment treaty touches the most basic elements of sovereignty. In the context of both broad and specific effects of a free trade agreement in relation to the life of any nation, its peoples, and its principal sovereign rights, the matter of the effect on Indigenous Peoples is one that is both appreciable and non-speculative.

 

If the Government of Canada’s commitment to a Nation to Nation relationship is to be considered credible, any future international trade negotiations must include a place at the table for Indigenous Peoples as partner. This is a practical and workable step – the Canadian provinces and territories were included in the Comprehensive Economic and Trade Agreement (CETA) negotiations with the EU in recognition of their interests and part in Canada’s development.

 

More importantly, this is the right way to proceed. The United Nations Declaration on the Rights of Indigenous Peoples is listed as the first of the Truth and Reconciliation Commission’s ten principles of reconciliation.  “Rights, and the preventive steps to ensure that the abrogation of rights do not occur, are the foundation upon which this country can transform itself.”[9]

 

The renegotiation of NAFTA offers a unique opportunity to better align international trade and investment with international Indigenous and human rights law. The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 and the more recent reaffirmation of Indigenous rights by the adoption of the American Declaration on the Rights of Indigenous Peoples (ADRIP) in 2016 lends international support for participation of Indigenous peoples in the negotiation of international agreements that impact their rights. This is consistent with both international law and current Canadian domestic policy for Indigenous rights.

 

The right of Indigenous peoples to participate in decision making is found in various articles of UNDRIP, and it is an established principle of international human rights law.  While at this point there is not yet a crystal clear general legal requirement in Canadian law to consult with Indigenous peoples on the negotiation and ratification of international treaties, a number of ‘modern’ treaties, called comprehensive land claims settlements, include explicit obligations on Canada to consult with the Indigenous party in advance of new international treaties that might affect rights under these agreements.

 

As recently as July 7, 2017 the Government of Canada, through Minister of Justice Jody Wilson-Raybould, published a Statement of Principles guiding the Government’s efforts to hasten the process of decolonization through Canadian law and policy, entitled Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. [10]  While the entire Statement of Principles is worthy of reference, certain passages in the preamble are of pertinence:

…Indigenous perspectives and rights must be incorporated in all aspects of this relationship.

These Principles are to be read holistically and with their supporting commentary.

These Principles are a necessary starting point for the Crown to engage in partnership…

The work of shifting to, and implementing, recognition-based relationships is a process that will take dynamic and innovative action by the federal government and Indigenous peoples. These Principles are a step to building meaning into a renewed relationship.

 

The Supreme Court of Canada, in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, has furthermore provided guidance as to whether the duty to consult extends beyond individual projects that impact Aboriginal territory. According to the SCC, “government action is not confined to decisions or conduct which have an immediate impact on lands and resources. A potential for adverse impact suffices. Thus, the duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on Aboriginal claims and rights.”[11]

 

In Hupacasath First Nation v. Minister of Foreign Affairs Canada,[12] the Federal Court of Appeal found against one First Nation appellant seeking consultation prior to the ratification of a bilateral investment treaty with China.  The Court, however, did not discuss international legal obligations for the participation of Indigenous peoples in decisions that impact their rights as set out in UNDRIP, despite Canada’s endorsement of its requirements in 2010 and the promise to implement the Declaration made in 2016. The Federal Court of Appeal determined that treaty making was an appropriately reviewable government prerogative that could impact international treaty negotiation. This has left the door open to the possibility of future consultation requirements. The Court’s decision was not appealed to the Supreme Court of Canada.

 

Canada has acknowledged, in its duty‑to‑consult guidelines, that the duty may be triggered by international agreements.[13] As noted above, there are provisions in numerous modern treaties that require consultation before Canada consents to be bound by a new international treaty, giving rise to new international legal obligations, that may adversely affect a right of the Indigenous signatory parties.[14]

 

Principles 6 (six) and 8 (eight) of the Department of Justice statement of Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples[15] are instructive:

6. The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources.

8. The Government of Canada recognizes that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.

 

Principle 6 (six) of the Statement[16] is supported by explanatory notes, which are again very informative in providing guidance for implementation:

This Principle acknowledges the Government of Canada’s commitment to new nation-to-nation, government-to-government, and Inuit-Crown relationships that builds on and goes beyond the legal duty to consult. In delivering on this commitment, the Government recognizes the right of Indigenous peoples to participate in decision-making in matters that affect their rights through their own representative institutions and the need to consult and cooperate in good faith with the aim of securing their free, prior, and informed consent.

 

The importance of free, prior, and informed consent, as identified in the UN Declaration, extends beyond title lands. To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together. It will ensure that Indigenous peoples and their governments have a role in public decision-making as part of Canada’s constitutional framework and ensure that Indigenous rights, interests, and aspirations are recognized in decision-making.     (emphasis added)

 

As well, the mandate letters of both the Minister of Foreign Affairs and the Minister of International Trade have the following instruction, made by Prime Minister Justin Trudeau:

“No relationship is more important to me and to Canada than the one with Indigenous peoples. It is time for a renewed, nation-to-nation relationship with Indigenous peoples, based on recognition of rights, respect, co‑operation, and partnership.”[17]

 

The Aboriginal right to trade is still very much open to judicial recognition regardless of the finding in R. v Mitchell where the Supreme Court of Canada found that the claimed Aboriginal right (to cross-border trade) never came into existence. It is also acknowledged that Justice Minister Jody Wilson-Raybould stated, on behalf of the Government of Canada at the Assembly of First Nations Annual General Meeting in Niagara Falls in July 2016, that the Liberal Government policy is to anticipate how Aboriginal and Treaty Rights will eventually be articulated by the Supreme Court of Canada so as to act accordingly, by establishing policies that “fill the section 35 rights box” in advance of slow and expensive Indigenous rights decisions from the Supreme Court of Canada. We submit that the Indigenous economic right is one of those anticipatory rights to go into the section 35 box. Accordingly, at minimum, Indigenous people need to be consulted, but above all need to be involved, in the NAFTA trade negotiations.

 

Without benefit of the Supreme Court of Canada’s guidance, at this point, on whether trade negotiations trigger consultation requirements, we submit that Canada should fill this policy gap and develop a framework for meaningful participation and increased involvement for Indigenous Peoples in NAFTA re‑negotiations.

 

In addition to our general comments we submit these specific recommendations:

a. Development in NAFTA of a Chapter for Indigenous Peoples that promotes and enhances co-operation in trade and investment among all three NAFTA partners. There are some useful precedents from other international treaties that can be utilized in this context, such as the new Gender Chapter in the Canada‑China Free Trade Agreement. Fostering co-operation activities designed to improve the capacity and conditions for Indigenous Peoples in North America to engage successfully in cross‑border trade are essential additions to a revised NAFTA. The establishment of an Indigenous Peoples’ committee with Indigenous representation (nominated by Indigenous organizations) from all three NAFTA partners is crucial.

b. We recommend that the NAFTA Indigenous Peoples’ Chapter should retain all the exceptions currently in NAFTA to preserve any preferences provided to Indigenous peoples. A revised NAFTA should contain stronger exceptions (reservations) that are more proactive in effectively protecting Aboriginal rights, treaty rights and Aboriginal title interests in land. Language included by New Zealand in Article 29 of the Trans‑Pacific Partnership provides an excellent precedent stating:

 

     Article 29.6: Treaty of Waitangi

1. 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, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.

2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 28 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party’s rights under this Agreement.

 

c. Inclusion of a NAFTA Indigenous Peoples’ Chapter that would work along the lines of these sections of the Trans-Pacific Partnership, but that would replace mention of the Treaty of Waitangi with reference to s. 35 of Canada’s Constitution Act, 1982, the mandated Supreme Court of Canada duty to consult and accommodate Indigenous concerns, and to recognize Aboriginal Title as part of the common law as it stands in Canada.

d. Incorporation, in the NAFTA Indigenous Peoples’ Chapter, of human rights obligations from the relevant international Indigenous and human rights instruments, such as UNDRIP, ADRIP, the International Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights.

e. Inclusion of provisions that allow for the freer movement across the Canada/US border of Indigenous Peoples, and of goods traded by Indigenous Peoples, consistent with the Treaty of Amity, Commerce, and Navigation, also known as the Jay Treaty, entered into by the United States and Great Britain on November 19, 1794. Article III of the Jay Treaty stated that the Parties would allow First Nations people to live on either side of the newly established border and to freely cross the border:

“It is agreed that at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of said Boundary Line freely to pass and re-pass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson’s Bay Company only excepted) and to navigate all the Lakes, Rivers and waters thereof, and freely to carry on trade and commerce with each other […] …No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or re-passing with their own proper Goods and Effects of whatever nature, pay for the same any Import or Duty whatever. But Goods in Bales, or other large Packages unusual among the Indians shall not be considered as Goods belonging bona fide to Indians.

 

f. Inclusion of provisions in the NAFTA Indigenous Peoples’ Chapter for greater protection to Indigenous cultural property and traditional knowledge. Implement obligations from the Convention for Biological Diversity and the Nagoya Protocol, consistent with other, modern trade agreements. Professor Jean-Frédéric Morin has produced a publication, for the Centre for International Governance Innovation, reviewing all trade agreements that provide protections of Indigenous traditional knowledge. According to his research, “a total of 41 agreements mention traditional knowledge, most often enjoining states to put into place domestic measures to ensure its protection. For instance, the agreement between Nicaragua and Taiwan calls for a protection of ‘the collective intellectual property rights and the traditional knowledge of Indigenous peoples and local and ethnic communities in which any of their creations…are used commercially’. In addition, 17 agreements ensure that access to this knowledge is subject to the prior informed consent of indigenous communities (for example, Colombia-Costa Rica, 2013), and 29 agreements encourage the sharing of benefits derived from the use of this knowledge (for example, Caribbean Community-European Community, 2008)”[18]

g. Inclusion of Indigenous negotiators. In order to negotiate an effective Indigenous Peoples’ Chapter in accordance with Indigenous peoples’ right to participate in decision making for administrative decisions that impact their rights, Canada’s negotiation teams must include Indigenous negotiators nominated by each of the three Aboriginal peoples recognized in s. 35 of Canada’s Constitution Act, 1982.[19]

h. Application of the principle of large and liberal interpretation. In accordance with the accepted case law in both Canada and the United States, conflicting interpretations of provisions within treaties between national governments and Indigenous peoples shall be approached by providing a large and liberal interpretation in favour of the Indigenous party to the treaty. This principle should be applied in the interpretation of provisions within a revised NAFTA when determining the rights and obligations of the parties thereunder.

 

The Hupacasath decision aptly demonstrated the interest of Indigenous peoples to engage on the development, or a renewal of international trade and investment agreements.  Hupacasath First Nation was furthermore supported by other First Nations in British Columbia and Ontario, including Serpent River First Nation and the Tsawwassen First Nation, along with the Union of BC Indian Chiefs and the Chiefs of Ontario.[20]  Interest in Indigenous peoples’ participation in international trade and investment agreements has only grown, both in Canada and internationally, through creation of organizations examining how to increase cross‑border trade and investment among Indigenous communities.

 

As well, both the Assembly of First Nations and Métis Nation have made submissions to the Standing Committee on International Trade to request meaningful consultation, to note their concerns about investment treaties, and to seek out provisions that would ensure preferential treatment for Indigenous peoples.

 

Given that the Government of Canada has committed to the implementation of UNDRIP, which requires the participation of Indigenous peoples in decision making for matters that impact their rights, and given that future international trade negotiations must include a place at the table for Indigenous peoples as partner, we conclude with a Summary of Recommendations:

Summary of Recommendations:

 

  • Support for participation of Indigenous Peoples in the negotiation of international agreements that impact their rights

  • Recognition of the right of Indigenous Peoples to participate in decision making in the NAFTA renegotiation process

  • Development of a framework for meaningful and increased participation by Indigenous Peoples in NAFTA negotiations

  • Development of a NAFTA Indigenous Peoples Chapter

  • Inclusion in NAFTA of a reference to s. 35 of Canada’s Constitution Act, 1982 with wording similar to that of the Treaty of Waitangi

  • Incorporation of UNDRIP, ADRIP, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights into a revised NAFTA

  • Revision of NAFTA to include provisions consistent with the Jay Treaty

  • Protection of Indigenous cultural property and traditional knowledge aligned with the Convention for Biological Diversity, and implementation of the obligations assumed under the Nagoya Protocol

  • Inclusion of Indigenous negotiators on the NAFTA re-negotiation team

  • Large and liberal interpretation in favour of the Indigenous parties to NAFTA

 

All of Which is Respectfully Submitted

 

This 14th day of July 2017

_____________________________________

Wayne D. Garnons-Williams

Chair

International Intertribal Trade and Investment Organization (IITIO)

 

On behalf of the IITIO Executive:

 

Bradford W. Morse

Dean of Law

Faculty of Law

Thompson Rivers University

 

Lindsay G. Robertson

Faculty Director

Center for the Study of American Indian Law and Policy

College of Law

University of Oklahoma

 

Michael Woods

Senior Partner

Woods, LaFortune, LLP

 

Jim Ransom

Director of Economic Development

Mohawk Council of Akwesasne

Mohawks of Akwesasne

  

Kyle Delisle

Chief Executive Officer

Kahnawa:ke Economic Development

Mohawks of Kahnawa:ke

 

Miles G. Richardson, O.C.

Director

National Consortium for Indigenous Economic Development

University of Victoria

 

James C. Collard, Ph.D.

Director of Planning and Economic Development

Citizen Potawatomi Nation

 

Scott Freeny

Senior Legal Director

Choctaw Nation of Oklahoma

 

Gena Timberman

Luski Group

Choctaw Nation of Oklahoma

 

Jonna Kirschner

Senior Vice President

Economic Development

Chickasaw Nation Industries Inc.

 

 

 

[1]    IITIO acknowledges the excellent contributions of our fellow executive member, Michael Woods, who has provided valuable international law insight from his many years of practice in the field of International law in both the public sector and the private sector.  Further international law reading from to Mr. Woods can be found at:  http://www.wl-tradelaw.com/

[2]    IITIO would like to thank Risa Schwartz, Senior Research Fellow of the Centre for International Governance Innovation, for her presentation, “Increasing Indigenous Peoples’ Participation in International Trade and Investment,” at the 3rd International Inter-Tribal Trade Mission and Conference in Oklahoma on June 5-6, 2017. Ms. Schwartz’ presentation forms the background to this submission.  Further reading related to this submission can be found at https://www.cigionline.org/sites/default/files/documents/cigi_paper_no.109_1.pdf

[3]    IITIO is a non-profit NGO with a Canadian head office in Ottawa, Canada.  IITIO symposiums run every six months and alternate between the U.S and Canada. IITIO’s inaugural inter-tribal conference took place at the University of Oklahoma College of Law in April 2016. Subsequent conferences have been held at Thompson Rivers University (November 2016) and at the University of Oklahoma (June 2017).   For IITIO’s full Terms of Reference visit http://iitio.org/terms-reference-iitio-2/

[4]    IITIO Terms of Reference  http://iitio.org/terms-reference-iitio-2/

[5]    IITIO’s full Terms of Reference http://iitio.org/terms-reference-iitio-2/

[6]    Coyle, Jim.  Author post July 1, 2017: “Indigenous Discontent Gives 150th Anniversary a Defining Theme.” The Toronto Star. https://www.thestar.com/news/canada/2017/07/01/indigenous-discontent-gives-150th-anniversary-a-defining-theme.html

[7]   Wells, Paul. Author post July 1, 2017: “An Interview with Justin Trudeau.” McLean’s Magazine http://www.macleans.ca/

[8]    Pedwell, Terry. Author post June 19, 2017: “Governor-General David Johnston Apologizes for Referring to Indigenous People as Immigrants.” The Globe and Mailhttps://www.theglobeandmail.com/news/national/david-johnston-apologizes-for-referring-to-indigenous-people-as-immigrants/article35360297/

[9]    Ry Moran. “Rights and Reconciliation”; Canada’s History, Vol 97:3 June-July 2017, p. 40.

[10] Justice Minister Jody Wilson-Raybould.  Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. July 7, 2017. Government of Canada Department of Justice, “Canada’s System of Justice.” http://www.justice.gc.ca/eng/csj-sjc/principles-principes.html

[11]    Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 2 SCR 650 at para 44.

[12]    Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at para 58, 379 DLR (4th) 737.

[13]    “Officials should assess whether provisions in land claim agreements or self-government agreements require that consultation take place in relation to legally binding international instruments. Second, officials must determine whether legislation requires Canada to consult on international instruments. Officials should seek legal advice, which will support the broader departmental or agency assessments and decision‑making processes.” Canada, Minister of the Department of Aboriginal Affairs and Northern Development Canada, Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, (Ottawa: Public Works and Government Services Canada, 2011) at 23, online: Indigenous and Northern Affairs Canada.

[14]    For example, see art 24 of Tla’amin Final Agreement, Spring 2014, online: Indigenous and Northern Affairs Canada www.aadncaandc.gc.ca/eng/1397152724601/1397152939293

[15]     Justice Minister Jody Wilson-Raybould.  Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. July 7, 2017. Government of Canada Department of Justice, “Canada’s System of Justice.” http://www.justice.gc.ca/eng/csj-sjc/principles-principes.html

[16] Principles respecting the Government of Canada’s relationship with Indigenous peoples   http://www.justice.gc.ca/eng/csj-sjc/principles-principes.html

[17]   Mandate Letter, The Right Honourable Justin Trudeau to Foreign Affairs Minister Chrystia Freeland:  http://pm.gc.ca/eng/minister-foreign-affairs-mandate-letter

[18]   Jean-Frédéric Morin and Mathilde Gauquelin, Trade Agreements as Vectors for the Nagoya Protocol’s Implementation, CIGI Papers No.115 — November 2016 at pages 2-3.  https://www.cigionline.org/sites/default/files/documents/Paper%20no.115.pdf

[19]    Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[20]    “Hupacasath Brings Canada-China Foreign Investment Promotion and Protection Agreement to the Federal Court” News Release (Coast Salish Territory/Vancouver, B.C. – June 5, 2013) http://www.ubcic.bc.ca/News_Releases/UBCICNews06051301.html#axzz4eM6UXvgM

Tribal Trade Success

IITIO Executive with Golden Eagle from Citizen Potawatomi Nation Eagle Aviary

IITIO Executive with Golden Eagle from Citizen Potawatomi Nation Eagle Aviary

 

On April 22, 2016 as President of the International Inter-tribal Trade and Investment Organization (www.IITIO.org) I had the honour of giving the opening address to the inaugural International Inter-tribal Trade and Investment Conference in the Bell Court Room at the College of Law, University of Oklahoma.

IITIO has the mandate to: “To support and enhance the implementation of the global flow and exchange of Indigenous goods, services and investments.”

IITIO’s purpose is to:  “Apply the group’s combined international expertise, passion and experience in addressing tangible issues that can assist in the global flow and exchange of Indigenous goods, services and investments.”

The organization’s principles are:

  1. Respect for the Indigenous teachings and, where possible, apply these teachings to the issue of international inter-tribal trade and investment.
  2. Respect and preference for environmentally sustainable international inter-tribal trade and investment practices.
  3. Sharing of Indigenous trading practices following the Group’s mandate to inform, educate and encourage all parties to Indigenous trade and investment to adopt these best practices where practicable.
  4. Fostering, through international inter-tribal trade and investment, healthy Indigenous communities and more robust and stable Indigenous economies.

 

The IITIO Conference brought together scholars, economists, lawyers, business leaders and tribal leaders interested and passionate about international inter-tribal trade.  Our results from the one day gathering will now focus on research, writing and publication of scholarly peer-reviewed papers that will offer meaningful options to further the development of various sub-topics on International Inter-tribal trade.  These scholarly papers will be presented at the faculty of law, Thompson Rivers University during the next IITIO Conference in six months.

Attached the reader will find a video of the opening address of the April 22, 2016 IITIO conference held at the College of Law, University of Oklahoma.

 

 

Appearing in the above photo are members of the IITIO Executive. From left to right: Jim Ransom, Gena Timberman, Lindsay Robertson, James Collard, Bradford W. Morse and Wayne D. Garnons-Williams

 

 

 

Incentives & Reconciliation

FullSizeRender-3

Replacing the Adversarial Ideology:

Indigenous Reconciliation

through Incentives

 

By Wayne Garnons-Williams

 

True Indigenous reconciliation can finally start, now that federal government decision makers have real incentives for effecting change and a framework to allow for that change happen.

 

On December 8-10, 2015, the Assembly of First Nations (AFN) held its annual gathering of all Chiefs. As the AFN does with every important assembly, it extended an invitation to the Prime Minister of Canada. The last time a Prime Minister had actually made an appearance at an AFN all‑chiefs conference was back in the early 1980s, when, as part of his preparations for patriating Canada’s Constitution, Prime Minister Pierre Trudeau attended.

 

In October 2015, when Justin Trudeau was elected Prime Minister, he received the same invitation. He immediately accepted. Understanding the importance of this gathering, Prime Minister Justin Trudeau not only showed up, he also brought his Justice Minister, his Minister of Fisheries and Oceans, the Commissioner of the RCMP and the Minister of Indigenous Affairs and Northern Development.

 

As we all know, politicians who want to dodge an issue merely make an appearance. They are window dressing, applauding their Prime Minister’s speech and leaving immediately. Not so the top officials who formed Prime Minister Justin Trudeau’s posse. Together they made this year’s AFN gathering an historic occasion. Each one stayed for the day. Each attended the conference plenary sessions. Each made it clear that they were receptive to the concerns and ideas expressed, and that they were open to dialogue. These new heads of major government departments listened attentively to the concerns of the assembled chiefs. Along with the Prime Minister they spoke, and attempted to capture the issues of concern, suggesting steps for follow‑up. Their consultation was genuine; their action was immediate.

 

During the conference, the newly elected Liberal government made significant statements, promising removal of the 2% Indigenous funding cap and the re‑examination and possible roll back of Harper‑era anti-Indigenous laws. Commissioner Paulson of the RCMP formally admitted that racism is present in the ranks of the RCMP and needs to be addressed. Justice Minister Jody Wilson‑Raybould noted that the Inquiry into Missing and Murdered Indigenous Women will begin its consultation phase immediately. Hunter Tootoo, Minister of Fisheries and Oceans, emphasized that fisheries management needs to be consistent with constitutionally protected Aboriginal and treaty rights. And Prime Minister Justin Trudeau stated that Canada will sign the United Nations Declaration on the Rights of Indigenous Peoples, and will actively live up to Canada’s commitment to have a true, meaningful, Nation‑to‑Nation relationship with Canada’s Indigenous peoples.

 

Each of these messages in its own right is a huge leap forward for Canada, toward reconciliation with her Indigenous peoples. Most striking, however, is the fact that they aren’t just statements of good intent. They are clearly conceived goals, backed up with solid, detailed methods for making reconciliation actually happen. They include the means, and the framework, for bringing these goals to fruition.

 

 

Statements alone are nothing new. Generations of Indigenous peoples have heard endless promises from successive governments, complete with slogans like “outstanding business,” “in all fairness,” and “Justice at Last.” None of these promises has ever been followed through with meaningful and positive change, or even with a re‑start to the relationship. There has always been a disjuncture between the word at the top, and the action on the ground. Government of Canada institutions have always, since pre-Confederation, engaged in adversarial brinkmanship against Indigenous interests. They have done this despite countless promises from successive new governments. Government of Canada managers have always lacked the will and the mechanism to effect true change. Until today.

 

Structural Incentives for Reconciliation Results

 

The new Liberal government of Justin Trudeau has accomplished something that no other previous government of Canada has ever managed. It has made a Nation‑to‑Nation relationship possible, through individual letters of mandate issued by the Prime Minister to his senior Cabinet Ministers. These are no ordinary orders. They make Nation‑to‑Nation partnership a national priority and provide the means for government to effect these positive changes.

 

 

Prime Minister issues mandate letters to the Ministers who run the government. Mandate letters empower Ministers to set political priorities and to express those priorities in terms of policy. They set up a framework to be carried out by a Ministerial Deputy Head or Deputy Minister (DM), the specialists who oversee and run government departments. Armed with a mandate letter, a DM can issue specific and detailed expectations to his or her assistant deputy ministers (ADM), in the form of annual personal and tailored performance objectives. To the degree his or her performance objectives are met, each executive gets a bonus ranging from 3% of salary for “fully satisfactory” performance to 10‑12%, for performance deemed “exemplary.”

 

 

Prime Minister Justin Trudeau has issued a Mandate Letter to each of his Ministers that empowers them to steer their departments toward true Nation‑to‑Nation relationships with First Nations. This priority, as apportioned in each performance agreement, will resonate all the way to the pocket books of senior managers in every department in the Government of Canada. It provides monetary motivation to every senior manager in government to achieve concrete results. The better the senior managers are at achieving these measurable performance objectives, the greater their personal financial reward. The effect will be galvanizing.

 

A Nation‑to‑Nation relationship between Canada’s Indigenous peoples and the federal government of Canada is much more likely to be achieved at the grassroots level of each government department.

 

Replacing Adversarial Ideology with Partnership

 

 

There is an outdated old ideology, still prevalent in the federal government, that depicts Canada’s Indigenous peoples as a threat to the Crown. This hostile system needs to be replaced, in the hearts and minds of federal government decision makers, department heads and senior managers, with a new mind-set viewing the original and rightful owners as cooperative partners.

 

Carolyn Bennett, Minister of Indigenous and Northern Affairs, has captured the new ideological framework needed: only recognition of “Rights, Respect, Cooperation and Partnership” (which has already come to be known, in government circles, as “Triple RCP”) will allow government departments to consult and work with Indigenous peoples toward reconciliation and a Nation‑to‑Nation relationship. This new approach applies to every government decision maker, at every level. As a problem solving tool for Indigenous issues, Triple RCP is a brilliantly constructed. It will dissolve reluctance on the part of bureaucrats to move away from the status quo.

 

Conclusion

 

If real change is going to happen, there are crucial next steps. A lot of work will have to be done by both Indigenous peoples and government decision makers.

 

 

The Prime Minister’s Mandate Letter prioritizing the Nation‑to‑Nation partnership provides a yardstick for measuring results; there can now be a significant move toward true reconciliation with Indigenous peoples of Canada.

 

About the Author:

Wayne is Senior Lawyer and Principal Director of Garwill Law Professional Corporation. Garwill Law offers Litigation, Advocacy, and ADR representation as well as policy, regulatory and legislative analysis, opinion, and development in most areas of federal government.

Specific Claims Tribunal Review

SCT1

Specific Claims Tribunal Act Five Year Review

Submissions of

Wayne Garnons-Williams, Senior Lawyer and Principal Director,

Garwill Law Professional Corporation

&

Gordon Lafortune, Managing Partner,

Woods Lafortune, LLP

April 13, 2015

  1. These submissions are made in response to the Request for Views to be considered as part of the Five-Year Review of the Specific Claims Tribunal Act (the “Act”).
  1. The Request for Views document issued by the Department of Aboriginal Affairs and Northern Development lists nineteen questions which are intended to elicit comments on five specific issues which comprise the focus of the review as set out in Section 41(1) of the Act. Rather than separately address the mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal (the “Tribunal”) separately, this submission will focus on the fifth specific issue listed in Section 41(1); “other matters related to the Act.”
  1. The mandate, structure, efficiency and effectiveness of the Tribunal are important and should be periodically considered and amended, as necessary. However, a review of these specific issues is premature at this time because actions taken by the Government of Canada since the Tribunal was established have undermined operation of the arbitral process underlying the Act and the Tribunal. Consequently, a fair and balanced review of the Tribunal’s mandate, structure, efficiency and effectiveness is not possible at this time.

The Purpose of the Specific Claims Tribunal

  1. The Specific Claims Tribunal Act was drafted, and the Tribunal was established, to improve the previous procedures for addressing specific claims.
  1. The Act which created the Tribunal was based on an Agreement between Minister Chuck Strahl and Phil Fontaine, National Chief of the Assembly of First Nations; the Political Agreement between the Minister of Indian Affairs and Northern Development and the National Chief of the Assembly of First Nations in Relation to Specific Claims Reform (the “Political Agreement”).
  1. The Political Agreement is an important foundational document that cannot be overlooked in this Five-Year Review, because it sets out the agreement between the parties and their intentions in establishing an arbitration process to address specific claims. The key comments in the Political Agreement that cannot be ignored in this review are as follows:
  1. The Preamble states, “… it is a legal and moral imperative of Canadians to address the Specific Land Claims of the First Nations in a just and timely manner.”
  1. The Preamble further states that “[t]he Minister and the National Chief celebrate the fact that we have developed together a draft Bill to address Specific Land Claims in a fair and final manner.”
  1. In the section entitled “Future Work,” the Political Agreement notes that “[i]n an effort to continue to seek out improvements … the Minister and the National Chief are committed to work together to inform ongoing policy work ….”
  1. In the section entitled “Five-Year Review,” the Political Agreement states that “[t]he Assembly of First Nations will participate in the five-year review as set out in the Specific Claims Tribunal legislation.”
  1. In the section entitled “Communications,” the Political Agreement states that, “[t]o the extent possible, the parties will work together to produce and communicate information/materials designed to explain the proposed legislation, best practices and other matters within its mandate.”
  1. Based on these clear and unequivocal statements, the Political Agreement executed the following:
  1. It committed the parties to establishing an arbitral process to address specific claims in a just, timely, fair and final manner.
  1. It confirmed that the Act and the Tribunal were the natural consequence of an agreement between the Minister and the National Chief.
  1. If committed the Minister and the National Chief to work together to on the future development of the Act and the Tribunal.
  1. In 2007, Minister Jim Prentice released the document entitled “Specific Claims: JUSTICE AT LAST” to set out the Department’s views on the new Specific Claims Act that would be introduced later that year. The Minister’s Message at the beginning of the document is particularly relevant. The Minister notes that “the First Nations’ frustration with the slow pace of progress in resolving their outstanding claims is understandable.” The Minister further noted that “the number of unsettled claims in the federal system has doubled since 1993 and there is a growing backlog of claims awaiting attention or action.” The Minister concluded on this point by saying

This is an unacceptable situation for First Nation people and for all Canadians – a situation that delays economic and social progress in our country, to the detriment of Canada as a whole.

Minister Prentice went on to state:

Recognizing that tinkering around the edges of the process is not enough, we are proposing major reforms that will fundamentally alter the way specific claims are handled. Our approach builds on the lessons learned from years of study and past consultations and responds to major concerns expressed by First Nations. The Specific Claims Action Plan will ensure impartiality and fairness, greater transparency, faster processing and better access to mediation. It is a critical first step in bringing the specific claims program into the 21st century to deal with the existing backlog once and for all.

Thus, the Minister announced a significant change in approach away from the courts and to a stand-alone process.

  1. Consequently, the purpose of the Act and the Specific Claims Tribunal is to give effect to the Political Agreement between the Minister and the National Chief to quickly, efficiently, effectively and finally resolve specific claims of First Nations outside the court process. Regardless of the authority conferred on the Tribunal in the Specific Claims Act, the Tribunal is clearly intended to be an alternative dispute resolution mechanism that is more like the arbitral procedures set out to resolve disputes in commercial contracts than a superior court. The distinction between an agreed arbitral procedure and an imposed court is important. Arbitral procedures are established by the parties to the agreement for the benefit of those parties and, like procedures before the Courts, arbitral procedures include a clear obligation to act in good faith throughout.

The Government’s Action since 2008

  1. Although the Tribunal was clearly established with the intention that it would impartially, fairly, quickly and efficiently resolve specific claims, the Tribunal’s ability to resolve specific claims has been undermined by subsequent Government decisions to take steps to delay resolution of specific claims. Since the Tribunal was established, the Government has consistently taken steps that have prevented First Nations from quickly and efficiently pursuing claims before the Tribunal, by delaying notice of its intention not to engage in negotiations with the First Nation, by refusing to consent to claims being filed with the Tribunal, by using its superior financial resources to delay arbitrations that proceed before the Tribunal, and by using its superior financial resources to file nuisance Applications for Judicial Review of Tribunal decisions. Examples are too numerous to mention; however, submissions by most First Nations to the AFN review panel clearly support these statements.
  1. In addition, the Government has not fully engaged the Assembly of First Nations in this Five Year Review. The Minister has indicated that it will accept the views of any interested parties, including the Assembly of First Nations, but this is not equivalent to cooperating to shape the questions and communication that are the basis for this Five‑Year Review. By denying the Assembly of First Nations the right to participate in the Five-Year Review process fully and from the beginning, the Government of Canada is apparently seeking to unilaterally amend the terms of the Political Agreement that gave rise to the Act and Tribunal in the first place.
  1. The Government of Canada is fully aware of the financial limitations and resource restrictions facing First Nations who are attempting to use the Tribunal to resolve specific claims. The Government of Canada must realize that the delay and unnecessary legal steps that it is imposing on the arbitral system through its actions make it more difficult, if not impossible, for many First Nations to pursue claims through the Tribunal process. Through its actions, the Government is clearly acting in bad faith, to the detriment of all Canadians.
  1. The mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal should be periodically reviewed, and changes should be made to ensure that the Tribunal provides the intended impartial, fair, transparent, efficient and effective mediation process. As noted above, a review is imperative and timely, because the Government’s deliberately sharp practice taints the Tribunal’s mandate, structure, efficiency and effectiveness.
  1. Since it is impossible to compel parties to act in good faith through legislation, we recommend that the Specific Claims Tribunal Act be amended to limit the Government’s ability to act in bad faith.

Recommendations

  1. First, that a full complement of judges be appointed to the Tribunal in accordance with the Act. This means that funding to the various superior courts of the province be guaranteed so that the bench strength of judges taken away for work at the Tribunal can be replenished.
  1. Second, that the reference to “three years” in Sections 16(1)(a) and (d) be deleted and replaced with “six months.” This amendment would prevent unnecessary delays in filing specific claims with the Tribunal while giving the Minister sufficient opportunity to determine whether or not s/he intends to engage in negotiations to resolve the specific claim.
  1. Third, that Section 12(1) of the Act be amended to allow the Tribunal to award costs on a punitive scale in cases where proceedings are unnecessarily delayed by any means.
  1. Fourth, that the Tribunal have the authority to hear submissions on case funding prior to a Stage One submission to the Minister. This application to the Tribunal for funding would include, but not be limited to, research funding, hiring of experts and the projected cost of hearing a matter at the Tribunal.
  1. Fifth, that the specific claim be filed in the Tribunal simultaneously at the Stage One submission to the Minister, and that all negotiations take place under the supervisory authority of the Tribunal from the point of filing.
  1. Sixth, that Tribunal judges not involved with the actual Tribunal hearing be designated as case management judges able to mediate/arbitrate any and all issues leading up to either a settlement or hearing at the Tribunal.
  1. Seventh, that upon filing of a claim with the Tribunal by a First Nation, the Crown be given 90 days to provide full disclosure of any and all related documents and to file a complete list of those documents with the Tribunal for case management.
  1. Eighth, that funding for Tribunal operations and administration be separate, distinct and robust and not part of the money allocated for claim research or claim development.

Conclusion

  1. The Act and Tribunal were established so that specific claims could be addressed quickly, efficiently and effectively; this remains an important goal. That the First Nations have, and will have, specific claims is clear and has been admitted by the Government through the actions it has taken to establish the Act and Tribunal.
  1. That specific claims are legitimate is also clear; these claims are part of debts owed to the First Nations resulting from the treaty process undertaken between the Government and First Nations. Specific claims are not unfair burdens imposed on other Canadians, nor are they handouts given to First Nations. These are legitimate claims that First Nations are entitled to pursue through a process that must and will result in fair resolution.
  1. Resolution of specific claims is not only important to First Nations, but to all Canadians. Resolution of specific claims will address the potential liability of the Government of Canada to First Nations and result in the certainty required for the Government, First Nations, businesses and investors to move forward with the knowledge that underlying claims have been addressed and resolved, thus achieving the Minister’s objective of supporting “economic and social progress in our country” to the benefit of Canada as a whole.
  1. Therefore, we urge the Minister to consider the recommendations set out in this submission and to incorporate these recommendations into the Act.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED AT OTTAWA this 13th day of April, 2015.

Wayne Garnons-Williams

_________________________________

Wayne Garnons-Williams

Senior Lawyer & Principal Director

Garwill Law Professional Corporation

World Exchange Plaza

45 O’Connor Street, suite 1150

Ottawa Ontario, K1P 1A4

Phone: (613) 778-8685

E: wayne@garwilllaw.com

Gordon LaFortune

________________________________

Gordon LaFortune

Managing Partner

Woods, LaFortune LLP

614 Arc-en-Ciel Street

Ottawa, Ontario, K4A 3H9

Phone: (613) 884-9390

E: lafortune@wl-tradelaw.com