Canadian First Nations Chief intervenes in NAFTA Chapter 11 tobacco dispute

By Damon Vis-Dunbar
27 February 2009

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 Chapter 11.

As ITN reported in January, the claimants – the tobacco company Grand River Enterprises Six Nations and its owners –  complain that a settlement reached between the 46 U.S. States and four major American tobacco manufacturers has resulted in legislation that has made its product uncompetitive in the U.S. market.*

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’ 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.

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’s Convention 167 (I.L.O Convention #167), comprise a part of the evolving norms of customary international law, and should therefore be “considered by the Tribunal in its construction of NAFTA”.

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.

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. “ignores the reality that we, the Indigenous peoples, have owned and occupied our lands, and conducted our businesses with each other, since time immemorial”.

According to Fontaine: “The Tribunal should accordingly find that First Nations investors who have been promised ‘fair and equitable treatment’ under NAFTA Article 1105 are entitled to have their legitimate expectations – based on their rights as Indigenous peoples – honoured by NAFTA government officials.”

Fontaine’s submission will not necessarily be considered by the tribunal. The secretary to the tribunal says the letter was “unsolicited”, and that the tribunal will determine “whether to consider the submission” in light of the NAFTA Free Trade Commission’s statement on non-party participation, as well as any views expressed by the disputing parties.

*For a fuller description of the dispute, see “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”, 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

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