Indigenous Rights and Trade Obligations: How Does CUSMA’s Indigenous General Exception Apply to Canada?

Abstract

AbstractCanadian commitments under trade and investment treaties have been an ongoing concern for Indigenous peoples. The Canada-United States-Mexico Agreement (CUSMA) is the first Canadian treaty to include a general exception for measures that a party state “deems necessary to fulfill its legal obligations to [I]ndigenous peoples.” This exception is likely to afford Canada broad, but not unlimited, discretion to determine what its legal obligations to Indigenous peoples require. There is a residual risk that Canada’s reliance on the exception could be challenged through the CUSMA dispute settlement process. A CUSMA panel would not have the expertise necessary to decide inevitably complex questions related to what Canada’s legal obligations to Indigenous peoples require. While state-to-state cases under the North American Free Trade Agreement have been rare, a CUSMA panel adjudication regarding the Indigenous general exception risks damaging consequences for Canada’s relationship with Indigenous peoples.