{"id":228,"date":"2009-02-27T08:21:00","date_gmt":"2009-02-27T13:21:00","guid":{"rendered":"http:\/\/itn.mattrock.ca\/2009\/02\/27\/canadian-first-nations-chief-intervenes-in-nafta-chapter-11-tobacco-dispute\/"},"modified":"2013-02-05T10:00:41","modified_gmt":"2013-02-05T16:00:41","slug":"canadian-first-nations-chief-intervenes-in-nafta-chapter-11-tobacco-dispute","status":"publish","type":"post","link":"https:\/\/www.iisd.org\/itn\/2009\/02\/27\/canadian-first-nations-chief-intervenes-in-nafta-chapter-11-tobacco-dispute\/","title":{"rendered":"Canadian First Nations Chief intervenes in NAFTA Chapter 11 tobacco dispute"},"content":{"rendered":"

By Damon Vis-Dunbar
\n27 February 2009<\/strong><\/p>\n

The head of the Canadian Assembly of First Nations Peoples has voiced his support for a group of Canadian investors in a tobacco company who are suing the U.S. government for alleged violations of NAFTA<\/span> Chapter 11.<\/p>\n

As ITN<\/span> reported in January, the claimants \u2013 the tobacco company Grand River Enterprises Six Nations and its owners –\u00a0 complain that a settlement reached between the 46\u00a0U.S. States and\u00a0four major American tobacco manufacturers has resulted in legislation that has made its product uncompetitive in the U.S. market.*<\/p>\n

Recent briefings filed by both parties clash over the question of whether certain international treaties related to aboriginal peoples fall within the ambit of customary international law. This question is particularly relevant to the claimants\u2019 allegation that the United States has violated Article 1105 of NAFTA, which offers investors of the other NAFTA countries Fair and Equitable Treatment as reflected under customary international law.<\/p>\n

The claimants, who belong to the Haudenosaunee First Nations community, argue that certain international treaties and conventions, such as the U.N Declaration on the Rights of Indigenous People (UNDRP) and the International Labour Organization\u2019s Convention 167 (I.L.O Convention #167), comprise a part of the evolving norms of customary international law, and should therefore be \u201cconsidered by the Tribunal in its construction of NAFTA\u201d.<\/p>\n

However, the United States, along with Canada, has not signed the UNDRIP or ratified the I.L.O Convention #167, and both countries deny that these treaties meet the threshold of customary international law.<\/p>\n

In a letter to the tribunal, Phil Fontaine, the National Chief of the Assembly of First Nations, says that the arguments put forth by the U.S. \u201cignores the reality that we, the Indigenous peoples, have owned and occupied our lands, and conducted our businesses with each other, since time immemorial\u201d.<\/p>\n

According to Fontaine: \u201cThe Tribunal should accordingly find that First Nations investors who have been promised \u2018fair and equitable treatment\u2019 under NAFTA Article 1105 are entitled to have their legitimate expectations \u2013 based on their rights as Indigenous peoples \u2013 honoured by NAFTA government officials.\u201d<\/p>\n

Fontaine\u2019s submission will not necessarily be considered by the tribunal. The secretary to the tribunal says the letter was \u201cunsolicited\u201d, and that the tribunal will determine \u201cwhether to consider the submission\u201d in light of the NAFTA Free Trade Commission\u2019s statement on non-party participation, as well as any views expressed by the disputing parties.<\/p>\n

*For a fuller description of the dispute, see \u201cParties file memorials in long-running NAFTA dispute over U.S. tobacco settlements; Canada intervenes with opinion on customary international law related to aboriginal rights\u201d, By Fernando Cabrera and Damon Vis-Dunbar, Investment Treaty News, 29 January 2009, available at: http:\/\/www.investmenttreatynews.org\/cms\/news\/archive\/2009\/01\/29\/parties-file-memorials-in-long-running-nafta-dispute-over-u-s-tobacco-settlements-canada-intervenes-with-opinion-on-customary-international-law-related-to-aboriginal-rights.aspx<\/a><\/p>\n

Documents related to Grand River Enterprises Six Nations, Ltd., v. United States of America<\/em> are available from the U.S. Department of State website at: http:\/\/www.state.gov\/s\/l\/c11935.htm<\/a><\/p>\n