Enabling Indigenous Trade 2025

The infusion of Indigenous concepts and recognition of Indigenous rights in trade agreements not only respects and upholds the dignity of Indigenous Peoples but also enriches the agreements with diverse perspectives that contribute to more inclusive and sustainable trade practices. Examples of Indigenous trade provisions and chapters Since 2005, more than 31 trade agreements have included provisions concerning cultural intellectual property, traditional knowledge, folklore, traditional cultural expressions and genetic resources. Recent examples include the Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP), which covers 12 countries comprising more than 7% of the global population and around 15% of global gross domestic product (GDP). Indigenous-specific provisions appear in the preamble, the IP , Exceptions, Environment and Government Procurement chapters as well as various annexes. Similar provisions are also included in the Regional Comprehensive Economic Partnership (RCEP), which covers 30% of the world’s population and 30% of global GDP . Adopting a holistic approach in which a variety of these measures are included in trade agreements paves the way for a more inclusive and equitable trade environment for Indigenous Peoples. In terms of exceptions, New Zealand includes the Treaty of Waitangi exception in its free-trade agreements (FTAs) allowing it to adopt measures to accord “more favourable treatment” to Māori, including to fulfil its obligations under the Treaty of Waitangi. This is provided that the measures are not an arbitrary or unjustified discrimination or a disguised restriction on trade – similar to the “chapeau” or introductory clause to the general exceptions to the GATT.12 Canada advocated for an Indigenous-rights exception in the United States–Mexico–Canada Agreement (USMCA), requiring the parties to balance their trade obligations with their legal duties towards Indigenous Peoples. This exception, unlike New Zealand’s Treaty of Waitangi exception, does not include the “more favourable treatment” (MFT) limitation and applies to any measure fulfilling legal obligations to Indigenous Peoples, while retaining the chapeau against unjustifiable discrimination or arbitrary trade restrictions. The provision references Aboriginal rights in the Constitution Act and self- government agreements. In contrast, Canada’s 2023 FTA with Ukraine removed both the MFT and the chapeau, offering more flexibility. The USMCA is innovative in incorporating provisions that recognize Indigenous Peoples’ rights and interests. The preamble highlights Indigenous engagement in trade; Chapter 24 acknowledges the environmental role in Indigenous well-being and biodiversity conservation; and Chapter 6 grants duty-free treatment to Indigenous handicrafts. The agreement also preserves preferential treatment for Indigenous- owned businesses by state-owned enterprises and promotes Indigenous SMEs in Chapter 25. Chapter 14 encourages businesses to adopt corporate social responsibility principles addressing Indigenous rights. These provisions were informed by advances made in other agreements but also paved the way for more inclusive trade practices in future agreements. Indigenous infusions and inclusions in trade agreements BOX 2 2013: The Agreement Between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation (ANZTEC) was the first trade agreement to include a standalone Indigenous cooperation chapter, although the focus was targeted more at cultural cooperation. 2016: The Canada–European Union Free Trade Agreement (CETA) contains Indigenous-specific provisions/references in its Trade and Environment, Government Procurement and Domestic Regulation chapters, as well as reservations in its annexes. 2021: The Australia–United Kingdom Free Trade Agreement (AUKTA) includes provisions that benefit Indigenous Peoples in its IP , Cross-Border Trade in Services and Government Procurement chapters.2022 and 2023: New Zealand’s FTAs with the UK and the EU were the first agreements to include standalone Indigenous trade and economic-specific chapters. 2023: The updated Canada–Ukraine Free Trade Agreement (CUFTA) contains a dedicated chapter on Trade and Indigenous Peoples, as well as relevant provisions in the chapters on Government Procurement, Environment, Investment, Exceptions and Dispute Settlement. 2024: The Australia–United Arab Emirates (UAE) Comprehensive Economic Partnership Agreement (CEPA) has an Indigenous chapter that affirms the parties’ commitment to UNDRIP , sets out areas of cooperation, encourages responsible business conduct and creates contact points.13 Enabling Indigenous Trade: Actionable Guidance for Governments 12