"Trump Wall" and the USMCA: Violation of the Rights of Indigenous Peoples

The proclamation of a National Emergency at the US-Mexico border by President D.Trump effectively and procedurally blocks the approval of the US Mexico Canada Agreement (USMCA) by the US Congress, as prima facia evidence of violation of of the Rights of Indigenous Peoples articulated in Article 32.5:  Indigenous Peoples Rights Section A – Exceptions.

The proclamation of a National Emergency at the US-Mexico border by President D.Trump in order to build “Trump Wall” is a violation of the Right of Free, Prior, and Informed Consent  which is a required criteria for projects that impact the territories and human rights of Indigenous Peoples under the United Nations Declaration of the Rights of Indigenous Peoples (2007).

The proclamation of a National Emergency at the US-Mexico border by President D.Trump in order to build “Trump Wall” is a violation of the US-Mexico Treaty of Guadalupe Hidalgo (1848) for being a policy of international aggression and executive action in violation of the Peace established by the Treaty of Guadalupe Hidalgo between the two countries, a contemporary international treaty which just as NAFTA in 1994, did not consider, recognize, nor respect the rights of the Original Nations of Indigenous Peoples in the treaty territories.

D.Trump branded the USMCA as a new “modernized” NAFTA. In the historical context of the 1848 Treaty of Guadalupe Hidalgo, the 1994 North American Free Trade Agreement (NAFTA), and now the 2019 USMCA, no evaluation on the economic impact of the USMCA which is required of the US Congress before any “Fast Track” approval, can legitimately avoid addressing the “modern” context of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

The designation of Indigenous Peoples in the USMCA is definitive, in terms of the recognition of Indigenous Peoples as “peoples”. In the context of the 2007 UN Declaration on the Rights of Indigenous Peoples, which was not yet in place in 1994 during the original NAFTA agreement, the recognition of Indigenous Peoples in an international commercial agreement necessarily is accompanied and contextualized by the recognition of the Rights of Indigenous Peoples as articulated and affirmed in the relevant International Instruments such as Convention 169 of the International Labor Organization, the UN Declaration on the Rights of Indigenous Peoples, and the Global Compact on Migration (2019).

The principle of non-discrimination is a preemptive norm in international law.  Therefore, the recognition of Indigenous Peoples as “peoples’ in USMCA Article 32.5 Indigenous Peoples Rights must be taken as an affirmation and commitment to uphold, recognize, respect, and institute guarantees of protection for the collective rights of Indigenous Peoples, equal to all other peoples, without illegal or arbitrary discrimination, including effective consequences in the form of legal remedies to address the violation of these rights.

Consultation is not the same as consent.  

From the text of USMCA 2018: 
Subject to Legal Review for Accuracy, Clarity, and Consistency

Subject to Language Authentication

32-1

CHAPTER 32 EXCEPTIONS AND GENERAL PROVISIONS

Section A – Exceptions

Article 32.5:  Indigenous Peoples Rights

Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, nothing in this Agreement shall preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.

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Of the three countries engaged in the USMCA, Canada was the only government that provided reference of context for this operative Article of the USMCA.  This implies that the Canadian interpretation of standards regarding Indigenous Peoples Rights across the USMCA market zone will prevail.
 
The reference of context was given in a footnote that reads:

“For greater certainty, for Canada the legal obligations include those recognized and affirmed by section 35 of the Constitution Act, 1982 or those set out in self-government agreements between a central or regional level of government and indigenous peoples”.

Before the question is asked regarding the mechanisms to enforce legal obligations for Indigenous Peoples whose rights under International Law are impacted by USCMCA, rights that are inherent and inalienable in equality to all other peoples, beyond the qualifying constraints of section 35 of the Canadian Constitution, the US Constitution, or the Mexican Constitution -  it  is critically important to face the fact that the government of Justin Trudeau has already established a limiting framework of preconditions to constrict the debate and define the context of legal responsibilities:

“The Government of Canada recognizes that meaningful engagement with Indigenous peoples AIMS TO SECURE their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources."

 Canada 10 “principles” on government’s relationship with Indigenous peoples (July 14, 2017)