TONATIERRA

TONATIERRA

Community Development Institute

September 13, 2019

USMCA Working Group, US House of Representatives

Speaker of the House Nancy Pelosi, (D-Cal)

Representative Richard Neal (D-MA), Chairman

Representative Earl Blumenauer (D-Ore.)

Representative Jan Schakowsky (D-Ill.)

Representative Jimmy Gomez (D-Calif.)

Mike Thompson (D-Calif.)

Representative Suzanne Bonamici (D-Ore.)

John Larson (D-Conn.)

Reps. Terri Sewell (D-Ala.)

Rosa DeLauro (D-Conn.)

Good greetings.

Today, September 13, 2019 marks the 12th anniversary of the United Nations

Declaration on the Rights of Indigenous Peoples (UNDRIP). Upon review of the

public record of debate concerning the Human Rights of Indigenous Peoples in the

context of the proposed US-Mexico-Canada Agreement, the systemic disregard for

the territorial rights and human rights of Indigenous Peoples is blatantly discriminatory,

unacceptable and must be addressed before the agreement is put to vote before the House

of Representatives.

Specifically, we call today for a full public hearing before the appropriate committees

and/or Working Group formations of the US Congress for the purpose of informing the

US congressional representatives on the Right of Indigenous Peoples to Free, Prior,

and Informed Consent (FPIC) regarding projects which impact their collective rights.

Such a public hearing must be realized before the USMCA is approved.

The USMCA has been promoted as a necessary “update” of the 1994 North American Free

Trade Agreement (NAFTA). In distinction from NAFTA which was adopted in 1994

thirteen years before adoption of the UN Declaration on the Rights of Indigenous Peoples,

the signatories of USMCA must comply with the minimum standards of FPIC or the

corporate consortia investing in any development project in violation of FPIC will

immediately become financially liable and exposed to the risk of legal challenges

and financial penalties that must be presented before their constituencies (states) and

shareholders (corporations).

This principle is now well established, having been the subject of the Soft Woods

Lumber Dispute (1982) between the US and Canada which acknowledged the

proprietary rights of Indigenous Peoples over territories and resources in the

international trade tribunals. Recognizing this fact, the World Bank has restructured

its procedures, protocols and practices regarding Indigenous Peoples and the right of

Free, Prior, and Informed Consent under the Environmental and Social Standard 7 to

shield its interests.

There can be no approval of USMCA without recognition, respect, and effective

mechanisms for the protection of the internationally recognized Human Rights of

Indigenous Peoples in the trade zone encompassing the three countries, specifically

the right of Free, Prior, and Informed Consent (FPIC). Consultation is not consent.

Without the full and effective participation of Indigenous Peoples, as Peoples equal to all

other peoples, there can be no legitimate approval of the USMCA.

“The Indigenous peoples of the Americas possess the underlying and inalienable title

to their lands. Failure by settler governments to recognize that title within USMCA is

a violation of Indigenous rights and the principle of “free, prior and informed

consent” enshrined in the United Nations Declaration on the Rights of Indigenous

Peoples. As a legal violation that infringes on the property rights of Indigenous

peoples, this failure by settler governments creates a massive risk to the financial

interests that rely on the tripartite agreement. Businesses cannot hide behind USMCA

and disregard the rights of Indigenous peoples. Every investor, every corporation,

every entity with a financial interest that crosses the borders between Mexico, the

United States and Canada, must account for this risk when they operate on

Indigenous lands. Failure to account for the risks associated with Indigenous title will

result in faulty, and possibly fraudulent, valuations.” Dr. DT Cochrane, Economist

With representation of Indigenous Peoples from Mexico-US-Canada organized under the

Indigenous Network on Economies and Trade (INET), we offer to engage with

willing members of Congress to bring such a proposed hearing to effect.

Please contact me at your earliest convenience to clarify the position of the USMCA

Working Group regarding the issues we have raised in this intervention.

Tupac Enrique Acosta

TONATIERRA

FPIC

All Peoples have the right to self-determination. It is a fundamental

principle in international law, embodied in the Charter of the

United Nations and the International Covenant on Civil and

Political Rights and the International Covenant on Economic,

Social and Cultural Rights.

The standard, Free, Prior and Informed Consent (FPIC), as well as

Indigenous Peoples’ rights to lands, territories and natural

resources are embedded within the universal right to selfdetermination.

The normative framework for FPIC consists of a

series of international legal instruments including the United

Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP), the International Labour Organization Convention 169

(ILO 169), and the Convention on Diversity (CBD), among many

others.

FPIC is a specific right that pertains to Indigenous Peoples and is

recognized in the UNDRIP. It allows them to give or withhold

consent to a project that may affect them or their territories. Once

they have given their consent, they can withdraw it at any stage.

Furthermore, FPIC enables them to negotiate the conditions under

which the project will be designed, implemented, monitored and

evaluated.

Consultation is not consent.