Though Canada sought chapters in the renegotiated North American free trade deal dedicated to Indigenous issues and gender equality, advocates were left looking for signs of progress amid their disappointment after the Liberal government’s efforts were stymied at the negotiating table.
The renegotiated deal, now called the USMCA and finalized in the late hours of Sunday evening, does contains new chapters on labour and the environment but in a speech last year listing Canada’s core objectives for the talks, foreign minister Chrystia Freeland said she wanted to establish new chapters dedicated to all four of those areas, considered key aspects of the Liberals’ “progressive trade” agenda.
While there is no chapter dedicated to the rights of Indigenous peoples, there is “a new and important provision” on Indigenous issues and lots of new language woven throughout the deal, said Risa Schwartz, an expert on international trade law and Indigenous rights.
“This seems to be the most compressive and inclusive language for Indigenous peoples in any international trade or investment agreement,” said Schwartz. While a chapter devoted solely to Indigenous people would have “made a statement,” she said, the new deal is “definitely an advancement.”
One major new part of the deal is a general exception declaring that actions by any of the three countries intended to fulfill an obligation to Indigenous people can’t be considered a violation of the terms of the new trade agreement, unless it’s a cynical attempt to circumvent the rules for trade purposes.
“I expect to see the general exception in all new trade agreements that Canada enters into,” said Schwartz. “This shows that Canada is looking to protect Indigenous rights in its international trade agreements, and starting off with (the USMCA), which is probably not the easiest place to start.”
In particular, the environment section of the new trade deal makes several references to Indigenous people in sections about preserving fisheries and forests and acknowledges that “the environment plays an important role in the economic, social and cultural well-being of Indigenous peoples.”
Myra Tawfik, a law professor at the University of Windsor, said while a dedicated chapter would have “much more impact and much more symbolic effect,” Canada had made a good first step.
Tawfik compared it to the language dealing with environmental issues contained in the original NAFTA deal, an 11th-hour addition to that deal which in the USMCA is now the subject of a dedicated chapter. Indigenous issues could follow a similar trajectory, she said.
Gender rights didn’t get quite the same attention that Indigenous rights did, however.
In the past, language in trade deals regarding gender has been mainly political in nature, and thus “probably the first to be dropped” in a tough negotiation, said Maria Panezi, a research fellow at the Centre for International Governance Innovation. “It’s unfortunate, but it’s true,” she said.
What ultimately ended up in the USMCA deal amounts to a “vague encouragement to be nice,” said Panezi.
Despite disappointment over gender not being the subject of a dedicated chapter, Panezi said the Trudeau government’s commitment to the issue “is definitely genuine,” and lauded the progress made so far. Provisions Canada’s recent free trade deals with Chile and Israel, along with the government’s adoption of gender-based analysis, show a concerted effort, she said, but concrete provisions in trade deals would go a long way.
A trade-deal agreement to improve data collection related to gender would be a simple but important initiative that could make a big difference, Panezi said.
What recognition there is in the USMCA, though, leaves Panezi feeling more optimistic than pessimistic.
“Could this agreement be better? Absolutely. But I want this to work,” she said.
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