International Trade Agreements and Indigenous Peoples: The Canadian Approach

As part of our inclusive approach to trade, Canada is actively advancing programs and policies to enhance the ability of Indigenous peoples and Indigenous businesses to benefit from the opportunities created by international trade and investment.

Canada is applying a two-track approach to advance the interests of Indigenous peoples through free trade agreements by:

• continuing its longstanding approach of including reservations and exceptions that provides the Government of Canada with the flexibility to maintain or implement measures and programs related to Indigenous peoples and Indigenous businesses
• pursuing innovative provisions designed to increase Indigenous peoples’ access to and participation in trade and investment opportunities created by the agreement

1. Reservations and Exceptions

Canada’s Traditional Chapter-specific Reservations, Exceptions, and Exclusions

Canada’s obligations to Indigenous peoples under the Canadian Constitution cannot be superseded or undermined by commitments under a free trade agreement (FTA). These legal obligations include those recognized and affirmed by Section 35 of the Constitution Act, 1982, and those set out in self-government agreements.  Further, Canada retains policy flexibility to create or maintain programs or set-asides that seek to advance the interests of Indigenous peoples and Indigenous-owned businesses, including in the areas of services, investment, environment, government procurement and state-owned enterprises.

Advancing an Indigenous Peoples Rights General Exception

In addition to Canada’s traditional approach of including chapter-specific reservations and exceptions related to Indigenous peoples and Indigenous businesses, the Canada-United States-Mexico Agreement (CUSMA) includes a general exception related to the rights of Indigenous peoples. A first for Canada’s FTAs, this dedicated Indigenous general exception (IGE) provides greater certainty that the Government of Canada can adopt or maintain measures necessary to fulfil its legal obligations to Indigenous peoples, including Aboriginal rights as recognized and affirmed by Section 35 of the Constitution Act, 1982, and those rights set out in self-government agreements. Canada has engaged closely with Indigenous peoples, Indigenous organizations, and business associations through Global Affairs Canada’s trade-focused Indigenous Working Group (IWG) on the development of the IGE.

The IGE co-exists with and complements Canada’s other chapter-specific reservations, exceptions, exclusions, and other provisions dedicated to advancing the trade related interests of Indigenous peoples throughout CUSMA.

2. Increasing International Trade and Investment Opportunities

Canada is also actively seeking provisions in its FTAs to increase the opportunities for Indigenous peoples to benefit from trade and investment.   

The Government of Canada is engaging in ongoing dialogue with Indigenous peoples on a wide range of trade policy issues through the IWG. Together, Canada and the IWG have developed various provisions on trade and Indigenous peoples for possible inclusion in Canada’s FTAs, where appropriate.

These include provisions to:

• acknowledge the importance of enhancing the ability of Indigenous peoples and Indigenous businesses to benefit from the opportunities created by international trade and investment
• reaffirm a number of important existing Indigenous-specific international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples
• recognize the important role of the environment in the economic, social and cultural well-being of Indigenous peoples and the importance of respecting, preserving and maintaining the knowledge and practices of Indigenous peoples that contribute to the conservation of the environment
• facilitate cooperation activities between the Parties, including the sharing of information and establishment of a dedicated website containing information on the agreement that is useful to Indigenous entrepreneurs and businesses
• establish a mechanism under the agreement to determine and facilitate cooperation activities between the Parties to support the trade related interests and objectives of Indigenous peoples

Engaging with Indigenous Peoples on Canada’s International Trade Policy Priorities

Global Affairs Canada established the trade-focused IWG in September 2017.

Participation in the IWG is drawn from:

• National Indigenous Organizations^{Footnote 1}
• modern treaty and self-government partners
• Indigenous groups and business associations^{Footnote 2}
• legal and policy experts.^{Footnote 3}

Since its inception, officials have actively engaged with the members of the IWG through ongoing dialogue on a wide range of trade and investment issues that the IWG has identified as important for Indigenous peoples in Canada. This, in turn, has informed Canada’s negotiating positions in recent and ongoing international trade negotiations, including CUSMA, Mercosur and Pacific Alliance.

Officials from Global Affairs Canada continue to engage with Indigenous peoples through the IWG on a regular basis, keeping them apprised of Canada’s FTA negotiations and other trade initiatives of interest.

Canada’s Existing FTAs: Key International Trade and Investment Resources for Indigenous Peoples and Indigenous Businesses

Canada-United States-Mexico Agreement

• Canada-United States-Mexico Agreement (CUSMA)
• Trade and Indigenous peoples – Summary of outcomes

Indigenous-specific provisions appear in the:

• Exceptions and General Provisions chapter
• Small and Medium-sized Enterprises chapter
• Textile and Apparel Goods chapter
• Environment chapter
• Investment chapter
• Annex II Investment and Services Non-Conforming Measures – Investment and Cross-Border in Services: Aboriginal Affairs
• Annex IV – State-Owned Enterprises and Designated Monopolies Non-Conforming Activities – All existing and future state-owned enterprises

Canada and European Union (EU) Comprehensive Economic and Trade Agreement (CETA)

• Canada and European Union (EU) Comprehensive Economic and Trade Agreement (CETA)

Indigenous-specific provisions appear in the:

• Trade and Environment Chapter
• Government Procurement Chapter
• Domestic Regulations Chapter
• Protocol on Rules of Origin and Origin Procedures
• Annex II: Reservations for future measures – Services and Investment Canada Federal Annex II – Aboriginal Affairs

Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

• Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) –

Indigenous-specific provisions appear in the:

• Preamble
• Intellectual Property chapter – Traditional knowledge
• Exceptions and General Provisions chapter – Traditional Knowledge and Traditional Cultural Expression
• Environment chapter
• Government Procurement Chapter
• Annex II Canada – Cross-Border Trade in Services and Investment Non-Conforming Measures – Aboriginal Affairs
• Annex IV Canada – State-Owned Enterprises and Designated Monopolies Non-Conforming Measures - All existing and future state-owned enterprises favourable treatment for Aboriginal peoples