Ovide Mercredi, LLB.
Former National Chief, Assembly of First Nations
currently visiting professor at University of Lethbridge and University of Sudbury
for the National Campaign against the MAI
Ottawa, Ontario, Canada
The powerful corporate movement to establish a world-wide investment regime is advancing without the knowledge or input of citizens of those countries involved in a major strategy to make the world freer for investors. Canada is one of those countries that is secretly negotiating this global treaty about money, a treaty that will impact negatively on Canada's sovereignty and its ability to protect the public interest and to promote the common good.
In a country that hides this development from its own Canadian citizens, it is not surprising that First Nations governments, leaders and citizens have not been alerted to this new world initiative being co-ordinated by the Organization for Economic Cooperation and Development (OECD) and the World Trade Organization (WTO).
With this preliminary analysis of the Multilateral Agreement on Investment (MAI) for the First Nations, the National Campaign hopes to alert First Nations to the implications for their treaty and aboriginal rights of this emerging global treaty.
In this age of growing interdependence, any diminishment of Canadian sovereignty will result in a corresponding reduction in the power and capacity of First Nations to govern for the common good of their citizens. Today, as in the past, Canadian governments routinely deny First Nations their inherent and traditional rights to lands, resources and government. Undoubtedly this future international treaty, which creates "special status" and "special rights" for foreign investors, will entrench the political excuses or legal grounds for Canada to continue its policies of deliberate assimilation of First Nations peoples and governments into the national legal and political structures without regard for the unique constitutional rights of First Nations. Of course, with the MAI, Canada can now use international law to achieve this policy.
Without a doubt this special strategy of employing international standards and commitments for investors and transnationals is a new assault on, not just the political rights and freedoms of First Nations, but also the capacity of First Nations to govern their lands and resources. Equally important will be the impairment of the legal and political capacity of Canada to uphold and perform its constitutional and treaty obligations to the First Peoples of this country.
The belief systems of First Nations have always been in conflict with the world view of the colonizer. Many great orators of our past have inspired countless generations of First Peoples to resist full assimilation and to continue the sacred mission of ensuring the survival of our peoples and cultures. Perhaps it is the concept and role of money that has provided the greatest contrast between us and Canada as is evidenced by this statement of Chief Crowfoot of the Blackfoot Nation:
Our land is more valuable than your money. It will last forever. It will not even perish by the flames of fire. As long as the sun shines and the waters flow, this land will be here to give life to men and animals. We cannot sell the lives of men and animals. It was put here for us by the Great Spirit and we cannot sell it because it does not belong to us.
A century and a few decades after this statement was delivered by Chief Crowfoot to the Treaty Commissioners for Queen Victoria, it still resonates in our relationship with Canada. Yes, we are still fighting to retain our lands and we continue to resist the efforts of governments to use their money to entice our people to surrender their Aboriginal title. Now we are faced with another use for money - investing -- that gives contemporary significance to the words spoken on our behalf: "Our land is more valuable than your money."
The relationship between us, the land and the Creator continues to guide our behaviour on issues such as economic development, resource exploration and environmental management. For our people, it sounds foolish to hear that money should have special status when we see all around our country the ongoing resistance to the recognition and protection of our special status to the land.
What is particularly disturbing is that much of the "money looking for non-discrimination" has its origins in the massive theft and expropriation of indigenous lands and resources all over Mother Earth. When we view the ongoing struggles with national and provincial governments and corporations here in Canada, we can see the double standard. Our country is willing to recognize special rights and "non-discrimination of treatment" for transnational corporations and the rest of the privileged class of people with money, while denying the First Nations their rights to generate a livelihood or wealth from their land and resources .
In fact, the theft of our land, now called "development" of natural resources, continues to position aboriginal people against the rest of Canada. For instance, the preferential treatment given to transnational corporations in Voisey's Bay and the Lubicon territory presents a violation of human rights of the Innu in Labrador and the Cree in northern Alberta. But for most citizens in those provinces, the issues are jobs and economic development.
In spite of the constitutional provisions that recognize and affirm treaty and aboriginal rights in Canada's Constitution, we still see throughout this country Canadian governments taking issue with our rights and siding with already powerful corporate interests to fight against and to attempt to defeat our treaty and aboriginal rights.
We know, too well, based upon hard history, that our treaty and aboriginal rights have been and remain threatened by the laws, policies and decisions for development made by federal and provincial governments that have proven their propensity to further empower already powerful economic interests in Canadian society.
Be forewarned that the MAI will dwarf the grave injustices already committed by nation states against indigenous peoples and nations all over the world. The manifest destiny of a White Society in North America that resulted in the dislocation of our sovereignty and territories as First Nations was a violation of Human Rights that has not yet been given a fair hearing in Canada or the United Nations. This latest version of manifest destiny uses different code words such as "liberalization", "global economy", "free movement of capital", and "non-discriminatory treatment of investors", but to seasoned citizens of the First Nations these are synonyms for "discovery", "settlement", "development", "civilization", "Christianity", "pagan" and more recent weasel words like sui generis, that seek to maintain the dominance of Canadian society over indigenous cultures and societies.
No doubt our land will outlast all the money, past, present and future, but if we ignore the potential import of the MAI on our future as First Nations, we will certainly imperil our sovereignty, territory and culture. We are not one with the transnationals, who represent the new wave of indifference towards the perpetuation and survival of indigenous peoples and societies.
For the many elders of our indigenous Nations across Canada, the place and role of money in contemporary life has been viewed as a mixed blessing. As the traditional lifeways give way to a money economy, more and more of our people see the generation of wealth as the only alternative to overcoming current conditions of poverty and poor standards of life.
On the other hand, the introduction of money has unfortunately helped to break down traditional values, and has served to accelerate our assimilation into the mainstream society. But we have become accustomed to using money to survive, for food, clothing and shelter, while we have not fully understood the impact of investors' money on our rights and our quality of life. As poor people, First Nations do not have much money for investments. On the other hand, we should be rich in land and resources. However, we have barely hung on to our reservations, much less our traditional territories.
While White governments in the past have been the primary opponents to our capacity to rule our lands, resources and people, the transnational corporations have also become a source of anxiety in the past several decades. Now the MAI will grant special rights to investors without any protection for treaty and aboriginal rights and further impair the capacity of all governments, including First Nations governments, to pass laws or undertake economic measures that regulate the economy even for the interests of Canadians, not just for us.
Canadian economic initiatives always place our people at the bottom of the ladder. The MAI will restrict the ability of Canada to act in the best interests of their own citizens. It does not take much imagination to see that our rights and interests will be, for Canada, the ground of least resistance in the new investment regime.
For the indigenous elders, who have often expressed deep regrets about money becoming a new god for humanity, the hopes for a more just society, based on traditional values, have just been given another major setback as we enter the new millennium.
The West Coast Environmental Law Association (WCELA) in Vancouver has argued that the MAI will definitely impair the obligation of countries to plan for long-term stewardship of the environment. This restriction on all governments will arise due to the MAI principle of National Treatment. The WCELA argues that this principle of treating all investors the same (non-discrimination) will prohibit governments from favouring "community land tenure or resource management rights, citizenship requirements for seeking fishing or woodlot licences or subsidies to support community economic development".
This same concern about the undue limits placed on Canadian sovereignty was elaborated by the Government of British Columbia in its submission to the Sub-Committee on International Trade, Trade Disputes and Investments on November 26, 1997:
"British Columbia is concerned, for example, that the extension of National Treatment could lead to challenges that public expenditures targeted to small businesses and/or to community-based or non-profit health, social service and education providers should be extended on a "non-discriminatory" basis to large foreign-affiliated investors and service providers. Similarly, subsidies directed preferentially to non-profit enterprises (such as subsidies available only to non-profit child care providers) would also be exposed to challenge."
Other concrete examples are provided by the Western Governors' Association, which has studied the potential effects of the MAI on state and local governments. In their report dated April, 1997, the Governors state:
"Many states restrict in some way the ownership or sale of real estate, the use of public lands, and business licenses based on residency or citizenship. These restrictions would be inconsistent with the proposed MAI anti-discrimination provision for national treatment."
"State restrictions in commercial fishing could violate proposed MAI standards for national treatment, either because they explicitly favour state residents or because they have the effect of excluding new market entrants to the disadvantage of foreign contracts." "Many states seek to balance economic development with sound resource management of state lands. They do this by placing limitations and controls on the sale of public lands and the use of its resources. One of the mechanisms used is to limit beneficial use to state residents. Many of these measures could violate anti-discrimination and MFN [most-favoured nation] protections for investors under the MAI."
To First Nations, the MAI adds just another layer in our fight to govern ourselves and our lands consistent with our traditions and values, including the attachment and deference of our culture to the land and all of creation. In the future, any measure undertaken to protect our land and resources or even to limit its exploitation by other citizens will run afoul of the MAI.
As the Indian Act restricts our self-rule over our lands, the MAI will become the Kitchi (Cree for "Great" or "Big") Indian Act to restrict our ability to make laws for investors and investments on our lands and resources in our territories. Whatever concerns the provincial governments and the American governors have about the MAI also apply to us, only our situation is weaker by virtue of the fact that these same governments (provincial and state), while expressing concern for their own sovereignty, have no qualms whatsoever in ignoring ours. This, of course, does not lessen the threat that the MAI presents to the capacity of First Nations governments to exercise within their jurisdiction the principle of most-favoured treatment for their own people and cultures and not for investors. In short, the MAI is the new threat to our self-rule.
What is particularly galling about the federal government negotiating for all Canadians is that, in so doing, they have forgotten their constitutional obligation and duty to consult with First Nations before proceeding with negotiations that will ultimately infringe upon our Treaty and Aboriginal rights. Indeed, its duty from our point of view is not just for "mere consultation" but to demonstrate respect for our people as distinct peoples and nations who have the inherent right to represent themselves in any negotiations that may impact on our rights to land, resources and self-rule. And one can be confident that if the MAI affects provincial and federal powers on matters such as the environment, the economy, health care services and the rights of workers, then First Nations will once more become unwitting victims.
Another issue for First Nations is the assumption by Canada that it can bind our peoples and governments to international standards of any kind without our involvement or consent. Our people and nations have never surrendered their political sovereignty to the colonizer. An aspect of inherent self-determination is the historical convention that sees and treats us as nations of peoples. While we may not be nation-states in the same sense as Canada, we are no less determined to maintain our political freedom. We have no desire to be reduced to sub-national local governments within the Canadian nation-state.
Canada's negotiations for a new international regime for investors and investments cannot be deemed to have our approval. Nor can any such deal assume our eventual compliance. Indeed, it is not likely that our people and First Nations governments will allow the MAI to extend deep into their culture or territory. Non-compliance to measures of assimilation - Canadian laws against our spirituality provide an historic example - will more likely prevail, rather than our people eventually acquiescing to the MAI.
Indeed we find it less than amusing to see the Canadian government argue for a most-favoured treatment to foreign investors when in our own backyard it has yet to clean up its most-unfavoured treatment of Aboriginal peoples. At the same time that Canada has been helping to delay and prolong the international Declaration of Indigenous Rights, it has been supporting the hasty establishment of a money treaty that, unlike a declaration, is binding on all countries who sign it. Why was not a treaty made between nation-states to recognize the special status and position of indigenous peoples rather than one that will create new rights for people with money to spare for investments?
The so-called Performance Requirements of the proposed MAI should be more accurately called "non-performance" requirements since they severely restrict the ability of nation-states to better provide for the redistribution of wealth and social benefits in society.
Some of the practices in Canada that could become the basis of legal challenges under the MAI are the "buy domestic" programs and the small business set-asides. Just at a time when the federal government finally sets up an aboriginal procurement policy, the MAI rears its ugly head against such domestic procurement preferences. Indeed, any existing or future affirmative action measures would be deemed not to comply with the non-discrimination requirements of the MAI, leading to costly litigation that could result in taxpayers compensating aggrieved investors.
First Nations governments that are ready for or already engaged in mainstream economic development on their lands need to understand that doing business under the MAI will definitely entail the loss rather than the retention of First Nations sovereignty. We will be unable to initiate our own procurement preferences that promote local business development, preferential hiring for women or people with disabilities, local buying and hiring measures, or undertake anything that appears to be an advantage, even for our people on our land.
That the MAI can be so far-reaching as to create a Bill of Rights for investors shows how threatened the public interest has become under the new global economy. While we are denied our Treaty and Aboriginal rights to land, resources and cultures by the Canadian governments on domestic soil, it is clear that Canadian negotiators are seeking completely inadequate "reservations" or "exceptions" to the MAI as a way of shielding our people, lands, resources and self-rule from the operators of this international treaty. Investors come first, First Nations come last.
Imagine the complicity of the federal government that continues to deny us our Treaty rights to education, for example, while keenly helping to establish Treaty rights for investors and protections for their investments. If Canada would only show the same esteem for Aboriginal people as it does for people with money, we most definitely would not be sharing one common experience -- poverty in the land of plenty.
How the federal government can be so willing to forego the "performance requirements" as a tool to hold investors accountable for jobs and local economic development is difficult to comprehend and accept. But for them to do so and affect the power of provincial governments, local governments and First Nations governments without their knowledge and consent is not just underhanded but downright irresponsible. In particular, when the federal government purports to bind the First Nations governments to all the MAI provisions, it is rewriting its own constitutional obligations to all Aboriginal peoples. For First Nations, this unilateral rewriting of our Treaties without our consent, like the Migratory Bird Convention of 1919 with the U.S. and Mexico, is another assault on our nation-to-nation relationship with the Crown and another means of assimilating our Treaties into Canadian law and economics.
In its submission to the House of Commons Standing Committee, the Government of British Columbia reminded the federal government that "performance requirements are used by governments to hold investors accountable to job creation and other economic benefit pledges; for example, when companies receive government financial assistance or permits to exploit publicly-owned resources" . The B.C. submission goes on to lament that the "MAI would prohibit governments from linking approval of investments, or providing a subsidy or other `advantage' to investors or investments, with certain types of performance requirements".
While the Government of British Columbia stated their position in strong language for foreign or domestic companies that are "granted the right to develop publicly-owned natural resources", it hardly bears repeating that all of those so-called publicly-owned natural resources are lodged in the homelands of First Nations Aboriginal titles. Of course, the issue of ownership and title is very much the heart of the matter whenever Aboriginal title is negotiated anywhere in Canada, including beautiful British Columbia. I suppose some satisfaction can be felt by First Nations in British Columbia to learn that the Government of British Columbia is eager to assert its jurisdiction in a responsible manner that holds investors accountable to the people in the province. One cannot help wondering, however, if that government or, for that matter, any Canadian government can empathize with the First Nations peoples in both the displacement of their lands and the dismissal of their sovereignty over traditional territories. On the other hand, two wrongs do not make a right. While we can sympathize with the loss of capacity to protect one's lands, resources and peoples, we don't have to accept the loss as inevitable.
Most of the analyses done on the MAI correctly identify the broad definition of "an investment" and its linkage to "expropriation" as the most offensive aspect of the MAI. This part of the treaty is nothing less than a bald measure to protect investors and their investments with a big stick . . . the right to compensation in the event of a breach of the treaty. Those with money to invest want to do business and to be guaranteed full compensation by any offending countries; namely, taxpayers. In the language of the global market it is called "liberalization of trade", but the consequences for countries who fail to "liberalize" are far from egalitarian; it is, pure and simple, opportunism. In any indigenous language, including Cree, Dene, Micmac or Coast Salish, "liberalization of trade" means simply to remain "open or receptive to trade with others". For investors and their investments, the new, expanded definitions carry the meaning "fair and equitable treatment and full and constant protection and security"
Being open to trade should not carry any liability for trading countries for "states of emergency", revolutions, civil disturbances, or armed conflicts. Yet the MAI may result in the creation of new rights for investors to restitution or compensation. On the other hand, if Canada wants to pay out taxpayers' dollars for "civil disturbances" related to conflicts about treaties or land claims and thereby provide "protection from strife" to all investors and their investments, they may open up an entirely new political strategy for First Nations people. Time will tell if we will take advantage of these provisions to force Canada to comply with our rights.
It does seem rather odd, however, to see Canada so eager to create these new rights for investors and protections for their investments, especially in light of the fact that "restitution, indemnification, compensation or any other settlement" are the very issues that remain outstanding to First Nations and other Aboriginal peoples who have suffered losses under the domination of Canada in the past century and more. Perhaps we should redefine ourselves as First Nations Investors in order for Canada to take notice and become our champion for the "fair and equitable treatment and full and constant protection and security."
Under "Part V" of the MAI, "Dispute Settlement", investors would be given the right to have their own investor-state dispute mechanisms. The arbitration tribunal would be obligated to give full meaning and effect to the MAI. The concern expressed here is that disputes between an investor and a country would routinely bypass domestic laws and courts, thereby "increasing the uncertainty for policy-makers and expos[ing] the Canadian taxpayer to additional financial liability" .
Apart from the issue of whether investors should have their own tribunal, the other uncertainty is what conflicts would, under the broad protection given investors, allow them to allege expropriation.
For the First Nations in British Columbia, this should serve as a warning that action be taken to protect the land claims process and negotiations, which are already viewed as threats by investors. Indeed, the Government of British Columbia uses the following example of what potentially qualifies as a valid claim by an investor for full compensation:
"To take a current, complex and highly sensitive issue -- if the settlement of an aboriginal land claim involves depriving third parties of property interests covered under the broad MAI definition, then, if that third party is a foreign-affiliated investor, it could seek full compensation under the investor-state provisions of the MAI. (This recourse would not be available to domestic Canadian investors.) An arbitrated panel ruling would be binding and monetary damage awards would be enforceable through the Canadian courts. Consequently, the MAI could expose governments to increased costs and, by providing foreign-affiliated investors with a unilateral option to go to binding international arbitration, could adversely change the dynamics of land claim settlement negotiations."
The danger identified is the "increased costs" to governments, but of course the real damage to First Nations will be the adverse impact on settlement negotiations that result from the new rights to compensation bestowed on investors. Public opinion would be hostile to the possibility of paying twice for the same settlements.
The question that immediately jumps to mind is: Who is minding the store? Where is the federal fiduciary responsibility to protect Aboriginal peoples, their lands and their resources? Why is the federal government ignoring its responsibilities to Aboriginal peoples while, at the same time, bowing to the wishes of transnational corporations and big-time investors? For that matter, who is protecting the public purse against investors who see an opportunity to recover bad investments?
Another approach that we can take as First Nations is to demand from the federal government our own international tribunal for the resolution of our disputes on treaties and Aboriginal rights and title. The idea of being able to nominate our own representative on a tribunal has been for decades an expressed alternative to domestic courts, many of which have shown a complete disregard of our inherent rights. But the likelihood of Canada championing an independent international tribunal for First Nations is indeed remote. In fact, it isn't hard to prophesy that if another country were to seek the establishment of an independent tribunal at the UN to resolve our Treaty and Aboriginal title disputes, Canada would oppose it in the strongest language, including arguing for preservation of its sovereignty. That Canada is perfectly willing to give up its sovereignty for the sake of investors and their investments, and to pay the additional costs (compensation) of doing business in the future, is incomprehensible and irresponsible.
There are many issues and problems with the MAI that will eventually impact the lives of all people in Canada. Concerns have been identified by health care advocates, environmentalists, labour, cultural advocates and others. The following excerpts are taken from independent analyses to demonstrate the range of problems that different groups and individuals have with the MAI and to also show the potential that exists for coalitions and alliances to make the MAI as well-known and disliked as the Meech Lake Accord. These selected quotations are used to further raise the profile of the MAI in our communities.
"The MAI could lead to gradual foreign takeover, and greater commercialization of, Canada's public health care system. The Government's plans to introduce pharmacare and related health care programs could be considerably restricted under the MAI rules."
Tony Clarke Polaris Institute December 4, 1997
"Potentially, the MAI could have a profoundly negative effect on a range of cultural communities in Canada. It is a more serious threat than any of the other trade agreements to which Canada has ascribed in the past decade."
Garry T. Neil, Alliance of Canadian Television and Radio Actors October, 1997
"At a minimum, the NAFTA example shows the need for a general or country-specific exclusion for social services if public and not-for-profit delivery of services are not to be challenged as "discriminatory" by corporations. There is no such exclusion in the draft MAI."
Andrew Jackson, Canadian Labour Congress, August 27, 1997
"Canada has failed to propose reservations to protect the ability of governments to take environmental measures that would otherwise violate the MAI. As a result, Canada has chosen to voluntarily bind itself, its provinces and its municipalities to obligations which protect investments over the environment."
Barry Appleton, Appleton & Associates, November 18, 1997
"Even more than previous international trade agreements, the MAI suffers from a lack of balance between commercial interests and the interests of citizens and the environment."
Canadian Environmental Law Association
"The Government of Canada should totally exempt government-sponsored services for health or social benefits from the MAI."
Barry Appleton, Appleton & Associates, December 4, 1997
"Of the world's 100 largest economies, 51 are corporations -- only 49 are countries. WAL-MART is bigger than 161 countries, including Poland, Israel and Greece. Mitsubishi is larger than the fourth most populous nation on Earth -- Indonesia. General Motors is bigger than Denmark. Ford is bigger than South Africa. Philip Morris is larger than New Zealand. Toyota is bigger than Norway.
" As a result of these changes, governments may still govern, but they no longer rule. Corporations rule. The MAI, if it passes, will further this power and increase their influence over our lives."
Maude Barlow, The Council of Canadians
"When it really matters, governments have been willing to create meaningful exceptions to MAI rules. For example, a broad and unequivocal exemption has been included, at the insistence of the U.S., for measures deemed necessary for the "protection of essential security interests". But so far no government has been willing to advance the notion that a similar exception is needed to preserve the authority of governments to assure our ecological security."
West Coast Environmental Law Association
There are many quotations that can be selected to generate public debate and to mobilize public resistance to the MAI or, alternatively, to seek to change it before it becomes a new form of Indian Act, suffocating freedom, self-reliance and self-rule.
One of the biggest grounds for suspicion has been the secrecy of the negotiations. The Government of Canada has not reached out to Canadian citizens, and even the provincial governments are outside the loop of negotiations, although they are being briefed on developments.
In the recent decision on Delgamuukw, the Supreme Court of Canada went to great lengths to define the fiduciary duty of government to talk to Aboriginal people whenever the governments are considering measures that may or will impact on Aboriginal title. The duty has been described as ranging from consultation to the involvement of Aboriginal people in the decisions to even requiring "the full consent of an Aboriginal nation". In describing when "full consent" may be required, the Supreme Court cited the example of when provinces enact hunting and fishing regulations in relation to Aboriginal lands:
"In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an Aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands."
The MAI has been hidden from Canadians and were it not for the Council of Canadians, many of us would still be in the dark. Yet, Canada has been told by its Supreme Court that it has a fiduciary duty not just to disclose information to First Nations, but, more importantly, in measures that are likely to infringe on Aboriginal title, to go beyond "mere consultation". The MAI is a measure in which that duty can only be satisfied if First Nations consent to its provisions. To date, no First Nation government or organization has been approached for a "heads up", much less consultation or consent.
First Nations can and will use their lands in ways that are good for the nation and the environment. In so doing, First Nations will develop laws that will represent their character as a people and not as ordained by the MAI. Reserve lands are only a small piece of the Aboriginal title, not all of it. The Treaties, as understood by our people, do not surrender title to the Crown. In sum, Aboriginal title exists in all parts of Canada and that title has not been extinguished. But the MAI, which would apply everywhere in Canada, would infringe upon how we use our lands and what laws we may make in the future to protect our land and to provide benefits to our citizens as other governmental jurisdictions have done in the past, unfettered by the MAI.
The federal government has a battery of lawyers at its disposal and it is not inconceivable that the issue of Treaty rights and Aboriginal rights have not been broached in relation to the MAI. What is more likely and consistent with First Nations-government relations is that the federal government has once again chosen to ignore the constitutional rights of First Nations and its fiduciary responsibility towards them.
First Nations, in compliance with their nation-to-nation status and their constitutional rights, should be automatically granted immunity from the MAI, through the use of exceptions and/or reservations.
Exceptions are used in international agreements to blanket certain areas from the provisions of the agreement. In the MAI, the general exceptions that would apply across the board are: national security, public order, and international peace and security. There are no proposals for exceptions to protect the rights and freedoms of indigenous peoples. Canada has not yet proposed any exceptions on behalf of Aboriginal people. It is not likely to do so unless pushed hard.
Reservations are a lower form of exception that are used to deal with country-specific "carve-outs" to an agreement. In a legal opinion prepared for the Council of Canadians, international lawyer Barry Appleton advised "Reservations are a form of exception to international treaty commitments and are interpreted narrowly by international courts and tribunals. Great care must be taken in the making of reservations as they will be interpreted strictly by international tribunals."
Canada's role in the negotiations has been criticized, and rightly so, for placing investors and their investments over its constitutional and good government obligations and its responsibility to Canadians. Issues have been raised about the absence of protection in the MAI for "matters that go to the heart of being a Canadian", such as health and child care, education services, environmental conservation and protection, culture and cultural industries. If the Government of Canada will not fight for Canadian identity, it will certainly not fight for those values and matters that are at the heart of being First Nations peoples. In other words, a country-specific reservation for First Nations and their inherent rights has not been proposed or even contemplated by the Government of Canada.
Another problem raised is the use of "roll-backs" and "standstills" as additional measures to get the greater level of compliance to the MAI. On these two additional issues the Western Governors' Association described the problem in this way:
"Country-specific reservations are more narrow areas of government practice negotiated with respect to a member country that are formally acknowledged not to fall under the rules of the agreement. MAI negotiators see country-specific reservations as a political necessity to get an agreement, but they recommend a stringent approach to limiting the life of these exceptions. They also propose a "roll-back" or "sunset" process that removes existing laws in conflict with the MAI over a specified period of time. U.S. negotiators have stated that they are prepared to follow the NAFTA precedent and reserve or "grandfather" all existing state laws. Assuming that this position is accepted by the other OECD countries, grandfathering existing state law would likely lead to a "standstill" or freeze of state lawmaking authority in the future, and it may also entail a rollback" of non-conforming state laws by some date in the future."
In other words, the goal is full compliance by all to the MAI.
First Nations are not given the same kind of respect that Scandinavian countries have shown to the Sami people, an indigenous nation. These countries have proposed a country-specific reservation to protect the Sami people and their traditions. Why was this done? Because these countries are "committed to preserving and developing the means of livelihood, language, culture and way of life of the Sami people". This proposed reservation for the Sami is attached at the end of this primer on the MAI.
What is interesting about this reservation is that it seeks to protect the exclusive rights to reindeer husbandry and their "traditional Sami areas". Instead of conforming with the ideas of "roll-back" and "standstill" this reservation may allow for future amendments "to take account of further developments of exclusive Sami rights linked to their traditional means of livelihood." Unfortunately for the Sami this reservation is permissive and not mandatory.
In Canada, First Nations can negotiate for a stronger reservation taking into account the recent decision of the Supreme Court that Aboriginal title entails the use and occupancy of land that transcends "traditional only" activities. In that decision, the Supreme Court defined Aboriginal title to include "more than the right to engage in specific activities which may be themselves aboriginal rights." In other words, First Nations in Canada must take immediate measures to negotiate with Canada a country-specific reservation that will entail an exception to the MAI for First Nations peoples, their lands and resources, and their sovereignty. A non-derogation clause, like in the Meech Lake Accord, will not suffice.
First Nations leaders have power whenever they move as one political mass to fight government and to protect their rights, lands and people. In the past, whenever we have chosen to do so, we have also formed powerful coalitions and alliances with churches, human rights groups, environmental groups, labour, women's groups and others to collectively take on governments that have in some way violated the public trust.
This is such a time!
In essence, we have two choices: to oppose the MAI or to change it. Neither choice will be easy since complete opposition will entail international dimensions and any changes we seek will be resisted by a federal government that has shown no desire to involve the provinces or its citizens in the negotiations, much less Aboriginal peoples.
However, in terms of power to challenge the unilateral actions of the federal government, no collective in Canada except the First Nations has the legal muscle (fiduciary duty) to challenge and halt Canada's involvement in these ongoing negotiations in the domestic courts.
The following recommendations to the First Nations are made as direct measures that will help to advance and protect our rights and interests in relation to the future impacts of the MAI:
The principal purpose of this primer is to alert First Nations governments and people to the impact of the MAI on our lands, resources, people and sovereignty. The recommendations are designed to further the goal of understanding the impacts of the MAI and developing a strategy that would result in protecting First Nations rights and interests.
As part of the effort to educate the general public, Tony Clarke and Maude Barlow have written a book, which is available in most bookstores, called MAI: The Multilateral Agreement on Investment and the Threat to Canadian Sovereignty, which is recommended reading to First Nations leaders and advisors. The main countries who are behind the MAI hope to approve in principle the final draft of the MAI by the spring of 1998. Accordingly, the measures needed to protect First Nations rights and interests have to be implemented quickly and a national and regional strategy must be developed before this time to force the Canadian government to honour their fiduciary responsibilities, our Treaty and Aboriginal rights and the nation-to-nation relationship.
(From the OECD MAI text, October 1997)
(Contribution by Three Delegations)
THE CONTRACTING PARTIES,
RECOGNIZING the obligations and commitments of these countries with regard to the Sami people under national and international law,
NOTING, in particular, that these countries are committed to preserving and developing the means of livelihood, language, culture and way of life of the Sami people,
CONSIDERING the dependence on traditional Sami culture and livelihood on primary economic activities, such as reindeer husbandry in the traditional areas of Sami settlement,
HAVE AGREED on the following provisions.
Notwithstanding the provisions of this Agreement, exclusive rights to reindeer husbandry within traditional Sami areas may be granted to the Sami people.
This Annex may be extended to take account of any further development of exclusive Sami rights linked to their traditional means of livelihood. The Parties Group may adopt the necessary amendments to this Annex.
Transnational Corporations and First Nations
The following are a few examples of economic sectors where transnational corporations are likely to intensify their operations affecting First Nations communities in Canada under the MAI.
Forestry: First Nations communities are familiar with big timber corporations like Daishawa from Japan and Canadian-based forestry giants like MacMillan Bloedel, Noranda and Albitibi Price. But the new MAI rules could make our forests the target of some of the world's biggest timber conglomerates including the Georgia Pacific and Weyerhaeuser from the U.S. and New Zealand's Fletcher Challenge.
Mining: Canadian companies like Inco, Alcan, Noranda, Falconbridge, Rio Algom and Placer Dome are well known to First Nations for their role in extracting minerals from Aboriginal lands. With the MAI, mining corporations from Australia, Germany, Japan and the U.S. would have more direct access to mineral resources on Aboriginal lands in Canada.
Oil and Gas: Companies like Imperial Oil, Amoco, and Petro Canada are well known to First Nations which have oil and gas reserves on their lands. The MAI would open the door to increased exploration, extraction and production by global petroleum giants like Royal Dutch Shell and British Petroleum as well as U.S. conglomerates like Exxon, Mobil, Chevron and Texas Gulf.
Pipelines: Increasing oil and gas production often brings large scale pipeline projects. While Canadian companies like Trans Canada Pipelines, IPL Energy, Gaz Metropolitan and West Coast Energy have built pipeline projects on First Nations' territories in the past, it is quite likely that American, European and Japanese corporations will be involved in developing massive energy transportation corridors in the future under the MAI.
Telecommunications: In recent years, Canadian telecommunications companies like Bell Canada, Northern Telecom and Rogers Communications have been establishing operations in First Nations' territories. Under the MAI, however, telecommunications giants like AT&T from the U.S., Nippon Tel & Tel from Japan, and Deutsche Telecom from Germany could take advantage of the MAI rules to move and set up operations on Aboriginal lands.
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