Indigenous Peoples and Multilateral Trade Regimes:
Navigating New Opportunities for Advocacy

New York University School of Law
May 17-19, 2002

June 3, 2002

CONFERENCE SUMMARY AND ACTION PLAN

Our conference was timed to coincide with the first session of the United Nations Permanent Forum on Indigenous Issues (May 13-24, 2002) and, like the Forum, aimed to broaden Indigenous advocacy from its narrow focus on human rights complaints against States, to a more proactive economic agenda. Multilateral trade regimes (MTOs) such as NAFTA and World Trade Organization have been criticized by Indigenous organizations as new and more powerful instruments of domination. Indigenous peoples have learned to make effective uses of national courts and the United Nations, however, although these institutions were also created by nation-states to serve states' interests. In what ways and to what extent can Indigenous peoples use MTOs to combat discrimination and economic marginalization? We conceived of gathering a small, informal group of experienced and creative lawyers, scholars, and Indigenous leaders to "workshop" this question, and agree on some practical ways of bringing more lawyers and leaders into the discussion.

Participants included both faculty and students from New York University School of Law, the Law School and Centre for International Indigenous Studies at the University of British Columbia and the Indigenous Law Journal at the University of Toronto, as well as economists and legal scholars from the Harvard Business School, the Estey Centre for Law and Economics in International Trade, and the International Institute for Indigenous Resource Management (IIIRM). We were also privileged to have guests from the Interior Alliance of British Columbia First Nations, the Nishnawbe-Aski Nation, and the Atlantic Policy Congress of First Nation Chiefs, joined on the last day by the coordinators of the Andean Indian lawyers' network CAPAJ, and the Ethnic Minority and Indigenous Rights Organization of Africa. Natalie Drache (Digital Broadcast Network) recorded all of our discussions on audiotapes for future reference.

Following a Friday evening seminar on the land-rights issues currently before the WTO in the U.S.-Canada softwood lumber dispute, including an address by Chief Arthur Manuel and commentaries by the lawyers representing the Interior Alliance and NorSask (Meadow Lake Tribal Council), we had a a lively and far-ranging discussion on Saturday of ways that Indigenous peoples can avoid becoming victims of trade liberalization and "globalization," and use the new generation of multilateral trade regimes to protect and promote their own interests. Four broad areas of strategic opportunities were identified:

1. New multilateral dispute-resolution mechanisms offer forums of convenience to put economic pressure on States that abuse or exploit Indigenous peoples. In the current WTO softwood lumber proceedings, for example, First Nations of British Columbia have successfully intervened as amicus curiae by making a link between their unresolved land claims and the low export price of wood products. Non-recognition or insecurity of Indigenous peoples' land rights is probably a factor in many other trade disputes involving basic commodities.

2. Multilateral trade negotiations increasingly take account of the large economic inequalities that still exist within and between States, for example by allowing States to provide some "green light" subsidies to disadvantaged industries and regions. Indigenous peoples could negotiate for green lights to protect special benefits such as the U.S. "Indian preference" for government employment and procurement, as well as positive rights to the regional redistribution of income such as the Saami have achieved within the EEC.

3. While Indigenous peoples and developing countries have criticized the patent harmonization requirements of the TRIPS Agreement, TRIPS also strengthens the international enforcement regime for trademarks, geographical names, and copyright. These tools can be used by Indigenous peoples to identify, certify, and promote consumer recognition and preference for products actually made by, or made with the consent and participation of Indigenous communities.

4. Globalization is increasing the ability of Indigenous peoples to communicate and coordinate with each other. Global communication and coordination will make it possible for Indigenous peoples to mount more effective international campaigns against particularly abusive States and corporations through means such as transboundary property and tort litigation, the mobilization of socially responsible ("ethical") investors, shareholder action, and consumer boycotts.

Five kinds of follow-up activities were identified on Sunday morning, drawing on the interests, resources and expertise of the participants:

A. Grassroots pilot projects on the creation, promotion, management, and defense of Indigenous certification, trademark, and geographical names. We discussed a range of possible products and communities, including forest products from Aboriginal territories in Ontario and British Columbia, lobsters from Míkmaw territory in Atlantic Canada, and quinoa and alpaca products from Aymara communities in the Andes. We also considered ways that distinctive marks and names can be used to protect traditional medicines, plant genetic resources such as wild rice, and cultural productions.

B. Preparation and submission of amicus briefs in carefully selected trade disputes pending before MTOs. We discussed the significance of decisions by the WTO softwood lumber panel to accept an amicus brief submitted by the Interior Alliance submission, and to reject an amicus brief prepared by NorSask. WTO is experimenting with some kind of amicus standing for Indigenous peoples and other groups directly involved in the facts of trade disputes. The substantive and procedural rules for amicus participation are unclear, and need to be refined in the context of thoughtful, well-considered submissions to panels in future disputes, as well as consultations with WTO staff lawyers. As a network we can advance this process by (1) monitoring new trade disputes; (2) assessing their Indigenous aspects and potential as test cases; (2) alerting the Indigenous peoples concerned; and (3) providing legal assistance to Indigenous peoples in appropriate test cases. This activity is ideally suited for law students working under the direction of the commercial lawyers and law teachers amongst us.

C. Preparing and disseminating a draft trade-treaty chapter on Indigenous peoples, to stimulate wider understanding and interest among Indigenous peoples in current trade negotiations such as FTAA and the WTO's Doha Round. We discussed defining some of the collective rights and national programs and services for Indigenous peoples as "green light" subsidies to render them "GATT-proof," and the possibility of including a positive duty of states to redistribute wealth and economic opportunities to Indigenous peoples on the model of the Social Charter of the European Economic Community. Crafting a draft trade-treaty chapter is an excellent project for law students. Once completed, the chapter can be posted on our linked web pages with a button or link for feedback, and can also be used as a centerpiece for educational workshops organized for Indigenous leaders.

D. Involving U.S. and Canadian Indigenous leaders in U.S.-Canada bilateral trade and environmental negotiations, as a prototype for increasing Indigenous participation in wider multilateral trade negotiations. A U.S.-Canada negotiating framework could easily be expanded to include Mexico, as part of NAFTA. We discussed several possible issues for our starting-point, ranging from forest products and salmon fisheries to proposed bulk water transfers from Canada to the western U.S. states, and considered the (expired) U.S.-Canada Pacific Salmon Treaty as a precedent and possible model. The leadership on this initiative must be taken by Indigenous leaders with the requisite political authority.

E. Develop and selectively test some creative applications of private international law to the defense and recovery of Indigenous peoples' lands and cultural resources. We discussed litigating the ownership of timber, minerals, and other resources extracted from Indigenous territories without prior informed consent and mutually agreed compensation. Constructive trust theories may be used to impose legally enforceable duties on importers and distributors of such resources, for example the duty to segregate the proceeds of sales and to account to the rightful Indigenous owners. With the assistance of law students, the commercial lawyers amongst us can network and collaborate on significant test cases that may come our way, especially disputes that arise in developing countries where the assets or proceeds are found in the U.S. or Canada. Private commercial litigation also appears to be most promising for promoting recognition and respect for Indigenous customary property laws.

For ease of identification, I suggest that we refer to ourselves as the First Peoples Trade Law Network. Most of us are lawyers, and the work we discussed sharing falls in the realm of litigation and negotiation as well as research and education. It is important that we avoid a name that implies that we are always either for or against trade. We are interested in promoting trade wherever Indigenous peoples feel that it is in their interest; and intervening forcefully whenever and wherever international trade exploits Indigenous communities. For the time being, we are a network of individuals and institutions with a commitment to designing and undertaking concrete collaborative projects and cases.

I cannot say too much or too often how delighted I was to share ideas with you at New York University, and how much I look forward to a lot of challenging, interlocking collaborations in the future. Please forgive me for any errors or omissions in this report, and-whether or not we find ourselves working together directly on the follow-up from this conference-continue to apprise me of your efforts and accomplishments in this field of shared interest and concern.

Russel Barsh

Follow-up Contacts

Tomás Alarcón CAPAJ capaj@heroica.upt.edu.pe
Russel Barsh New York University russelbarsh@cs.com
Gavin Clarkson Harvard Business School gclarkson@hbs.edu
Bryce Edwards University of Toronto bryce.edwards@utoronto.ca
Raymond Ferris Nishnawbe-Aski Nation rferris@nan.on.ca
Chuck Gastle Estey Centre chuck.gastle@shibleyrighton.com
Sakej Henderson Native Law Centre hendrsny@duke.usask.ca
James Hopkins University of Arizona hopkins@nt.law.arizona.edu
Alfred Ilemre EMIRO-Africa emiroaf@hotmail.com
William Kerr Estey Centre kerr.w@sk.sympatico.ca
Benedict Kingsbury New York University kingsbur@juris.law.nyu.edu
Arthur Manuel Interior Alliance artmanuel@earthlink.net
June McCue University British Columbia mccue@law.ubc.ca
Bob Paterson University British Columbia paterson@law.ubc.ca
Nicole Schabus Interior Alliance nicole.schabus@interioralliance.org
Mervyn Tano IIIRM mervtano@iiirm.org