The Law of Exceptions: NAFTA and the UN Declaration on the Rights of Indigenous Peoples

Open Letter to the Ministers of State and the Public Societies of Canada-US-Mexico

NAFTA and the UN Declaration on the Rights of Indigenous Peoples

October 27, 2011

Greetings.  Today the ancient arc of pilgrimage of the Nations and Pueblos of the Indigenous Peoples of Anahuac, Turtle Island and Abya Yala [the Americas] purposefully intersects once more with the trajectory of the government states whom you represent on our continent.  Today the traditional representatives of the Wixarika Nation bring the case of the Defense of Wirikuta, sacred heart of Mexico, to the fore of the national, international and global agenda of discussion on the Rights of Indigenous Peoples, and the rights of Mother Earth.  As Nican Tlacah, we are on a pilgrimage of purpose to generate the collective understanding necessary among all human society for the sacredness of life itself to be lived, to be celebrated, and to be protected in the homelands and sacred shrines of the Indigenous Peoples.

Today in Mexico City, and at the Canadian Embassy in Mexico a petition demanding respect and protection for the sacred sites of the Wirikuta is being delivered to the Mexican and Canadian governments. We here-now, Nican Tlacah Izkalotecah, extend our solidarity and commitment to rectify the historical and social injustices that have created the immoral and illegal complicity among corporate interests and government officials who should be defending the common good and not acting as agents of corporate profits. 

Context

Within the provisions of the 1994 North American Free Trade Agreement (NAFTA) among your governments, each nation-state reserved the right to deny investors rights or preferences provided to “aboriginal peoples”, “socially or economically disadvantaged minorities”, or “socially or economically disadvantaged groups” in from two to five designated areas.  These provisions of exception are cited in Annex II, as follows:

·      “Canada reserves the right to adopt or maintain any measure denying investors of another Party and their investments, or service providers of another Party, any rights or preferences provided to aboriginal peoples,”

·      “The United States reserves the right to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged minorities, including corporations organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act,”

·      “Mexico reserves the right to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged groups,” 

In reference to these provisions of exception of NAFTA, professor Valerie J. Phillips correctly stated, “All three nation-states remembered indigenous peoples, but only long enough to put them in their place. All of these exemptions simply continue the ongoing nation-state subordination and marginalization of indigenous peoples.”

The terms subordination and marginalization are only the skin of the beast.  The actual process which has been ongoing since October 12, 1492 is genocide and colonialism, implemented via trade agreements and economic development policies that favor the process of colonization by European American “white” elites continentally and their corporate accomplices.  The Niña, the Pinta, the Santa Maria, the Mayflower: the NAFTA and the NARCO.

Marcha del 27 octubre Mexico, DF

The invasion of Turtle Island Abya Yala continues, yet our resistance, as Indigenous Peoples is also unbroken.  We resist and rebel, we regenerate and call out once more today for rectification and clarity, purpose and solidarity as children of the Nations and Pueblos of Mother Earth.

Clarifications:

From the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly September 13, 2007:

Article 32


States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

It is evident that the lack of processes and accountability for violations of the Right of Free, Prior, and Informed Consent for Indigenous Peoples is a fatal flaw not only the consultations which led to the NAFTA as a regional commercial compact, but for the actual ongoing implementation of the agreement.  The case of Wirikuta in Mexico is mirrored in the crisis of the Tar Sands in Alberta, Canada and Mt. Tenabo in Nevada as well as scores of other development projects impacting Indigenous Nations across North America including the San Francisco Peaks in Arizona. The violation of the right of Free, Prior and Informed Consent extends across the entire spectrum of economic development programs that are promoted and protected with preferential economic policies by the governments of the North American Free Trade Agreement (NAFTA) regime.

The violation of the Right of Free, Prior, and Informed Consent is systemic under the neoliberal policies of these states, as is their complicity in the criminal exploitation and expropriation of the natural resources and labor of our Nations and Pueblos.  This is a grave foreign policy issue of crisis that must be addressed under the standards of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on September 13, 2007.

Focusing in on the US context of the issues, Anthony Bothwell, remarks that the European taking of America involved “the most extensive land fraud and the largest holocaust in world history”.  He argues persuasively that, within the United States, the Supreme Court distorted international “laws” or doctrines regarding conquest and discovery to “rationalize white supremacist usurpation of Indian nation sovereignty, even while conceding that the great injustice may have violated international law principles”.  Bothwell goes even further than the mere analysis of then-existing international laws to assert that the taking of America violated binding treaties, the law of nations as recognized in the U.S. Constitution, as well as the Supremacy, Commerce, Takings, Contracts, and Fifth Amendment Due Process Clauses of the U.S. Constitution.

Yet, in spite of these assessments and predictions of the Master’s Narrative, today the Wixarica speak to the World once more from the ceremonial ground of Mexico in pilgrimage of purpose and clarification. The Cuachichilcameh Izkalotecah respond and relay the following message, once more:

Continental Proclamation

Abya Yala

Permanent Forum on Indigenous Issues

Fifth Period of Sessions  May 15- 26, 2006

United Nations   NY, NY

Recalling the memory, will and spirit of our ancestors of time immemorial, they who gave origination to we the Indigenous Nations of the Continent Abya Yala,

Reclaiming the power of destiny as Peoples of Humanity,

In safeguard of the Rights of the Future Generations of our Nations of Indigenous Peoples,

Invoking the ancestral mandates of our Continental Confederation of the Eagle and the Condor, and the respective pronunciations ratified in Continental Summit of Indigenous Peoples in Quito, Ecuador 2004, and in Mar de Plata, Argentina 2005,

WE HEREBY PROCLAIM

Presenting ourselves as Nations of the Indigenous Peoples of our continent Abya Yala before this Fifth Period of Sessions of the Permanent Forum on Indigenous Issues of the United Nations, and upon being received as such by the convoking authorities on the floor of the General Assembly,

That the Papal Bull Inter Caetera of Pope Alexander VI is hereby ANNULLED, as well as whatever Doctrine of Discovery proceeding from which that pretends to deform the relationship of Harmony, Justice, and Peace of we the Indigenous Peoples of Humanity in its entirety.

May 18, 2006

CONCLUSION

We call upon the ministers of government at all levels of Canada-US-Mexico and the public constituencies of their respective societies to address without prejudice or discrimination the above clarifications. We assert that these clarifications command rectification of the crime of colonialism and a moratorium on all NAFTA economic development projects impacting the territories of the Nations and Pueblos of Indigenous Peoples until the right of Free, Prior and Informed Consent of the Indigenous Peoples is fully recognized, respected, and protected in the spirit of the UN Declaration on the Rights of Indigenous Peoples, as follows:

“Affirming that Indigenous Peoples are equal to all other peoples,…..”

NAHUACALLI

Embassy of Indigenous Peoples

www.nahuacalli.org