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Published online by Cambridge University Press: 19 July 2021
Canadian commitments under trade and investment treaties have been an ongoing concern for Indigenous peoples. The Canada-United States-Mexico Agreement (CUSMA) is the first Canadian treaty to include a general exception for measures that a party state “deems necessary to fulfill its legal obligations to [I]ndigenous peoples.” This exception is likely to afford Canada broad, but not unlimited, discretion to determine what its legal obligations to Indigenous peoples require. There is a residual risk that Canada’s reliance on the exception could be challenged through the CUSMA dispute settlement process. A CUSMA panel would not have the expertise necessary to decide inevitably complex questions related to what Canada’s legal obligations to Indigenous peoples require. While state-to-state cases under the North American Free Trade Agreement have been rare, a CUSMA panel adjudication regarding the Indigenous general exception risks damaging consequences for Canada’s relationship with Indigenous peoples.
Les engagements du Canada en vertu de traités de commerce et d'investissement sont une préoccupation constante des peuples autochtones. L’Accord Canada–États-Unis–Mexique (ACÉUM) est le premier traité canadien à inclure une exception générale pour les mesures qu'un État partie “juge nécessaire[s] pour remplir ses obligations légales à l’égard des peuples autochtones.” Cette exception donne vraisemblablement au Canada un pouvoir discrétionnaire large, mais non illimité, pour déterminer ce qu'exigent ses obligations juridiques envers les peuples autochtones. Il existe donc un risque résiduel que le recours éventuel du Canada à l'exception soit contesté dans le cadre du processus de règlement des différends de l’ACÉUM. Or, un groupe spécial institué en vertu de l’ACÉUM n’aurait pas l’expertise nécessaire pour trancher des questions inévitablement complexes liées aux obligations juridiques du Canada envers les peuples autochtones. Bien que les litiges d’État à État en vertu de l’Accord de libre-échange nord-américain aient été rares, une détermination d’un groupe spécial de l’ACÉUM concernant l’exception générale autochtone risque de nuire aux relations du Canada avec les peuples autochtones.
The authors would like to thank Caroline Henckels for her thoughtful comments on an early draft of this article and the anonymous peer reviewers for their comments.
1 Protocol Replacing the North American Free Trade Agreement with the Agreement between Canada, the United States of America, and the United Mexican States, 30 November 2018, Can TS 2020 No 5 (entered into force 1 July 2020); Protocol of Amendment to the Agreement between Canada, the United States of America, and the United Mexican States, 10 December 2019, Can TS 2020 No 6 (entered into force 1 July 2020) [CUSMA collectively].
2 CUSMA, supra note 1, art 32.5. We will refer to “Indigenous” rather than “indigenous” peoples and their rights. We will use the term “Indigenous peoples” when writing in our own hand, but we will occasionally use “Aboriginal peoples” to reflect that expression in constitutional documents, trade agreements, and other sources.
3 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
4 North American Free Trade Agreement, 17 December 1992, Can TS 1994 No 2 (entered into force 1 January 1994) [NAFTA].
5 Perhaps the leading example are the Calls to Action of the Truth and Reconciliation Commission of Canada (TRC) in 2015. The TRC’s summary of its final report began with these words: “For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.” TRC, Honouring the Truth, Reconciling for the Future: Summary Report of the Final Report of the Truth and Reconciliation Commission of Canada (2015) at 1, online: <www.trc.ca/assets/pdf/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf>.
6 Several examples are cited in Risa Schwartz, “Toward a Trade and Indigenous Peoples’ Chapter in a Modernized NAFTA,” CIGI Papers No 144 (September 2017) [Schwartz, “Toward”]. A burgeoning literature on Indigenous peoples and international trade exists. See e.g. Sergio Puig, “International Indigenous Economic Law” (2019) 52 UC Davis L Rev 1243; Patricia Goff, “Bringing Indigenous Goals and Concerns into the Progressive Trade Agenda” (2021) 65 Papers in Political Economy, online: <journals.openedition.org/interventionseconomiques/12777>.
7 Schwartz cites several real-world examples. Schwartz, “Toward,” supra note 6 . She also refers to Report of the Special Rapporteur of the Human Rights Council on the Rights of Indigenous Peoples on the Impact of International Investment and Free Trade on the Human Rights of Indigenous Peoples, UNGAOR, 70th Sess, UN Doc A/70/301 (2015), online: <www.un.org/en/ga/search/view_doc.asp?symbol=A/70/301>.
8 Risa Schwartz, “Guest Post: Protecting Indigenous Rights in the United States-Mexico-Canada Agreement,” International Economic Law and Policy Blog (8 October 2018), online: <worldtradelaw.typepad.com/ielpblog/2018/10/guest-post-protecting-indigenous-rights-in-the-united-states-mexico-canada-agreement.html> [“Schwartz, “Protecting”]. Canada had originally proposed a much broader set of provisions related to Indigenous peoples, including an Indigenous chapter. See Schwartz, “Toward,” supra note 6 at 15.
9 Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018 (entered into force 30 December 2018 for Canada, Australia, Japan, Mexico, New Zealand, Singapore; entered into force 14 January 2019 for Vietnam), online: <www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/text-texte/toc-tdm.aspx?lang=en> [CPTPP]; Comprehensive Economic Partnership Agreement Between Canada, of the One Part, and the European Union and Its Member States, of the Other Part, 30 October 2016 (provisionally applied 21 September 2017), online: <www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/toc-tdm.aspx?lang=eng> [CETA]. As discussed below, these agreements, unlike CUSMA, allow foreign investors to make claims for financial compensation directly against Canada for breach of investment chapter obligations, substantially increasing the risk of claims.
10 See e.g. Risa Schwartz, “Developing a Trade and Indigenous Peoples Chapter for International Trade Agreements” in John Borrows & Risa Schwartz, eds, Indigenous Peoples and International Trade: Building Equitable and Inclusive International Trade Agreements (Cambridge: Cambridge University Press, 2020) 248 at 272 [Schwartz, “Developing”].
11 CUSMA, supra note 1, art 32.5.
12 In the context of investment obligations, many have argued that the uncertainty of obligations contributes to this kind of “regulatory chill.” See e.g. Tienhaara, Kyla, “Regulatory Chill and the Threat of Arbitration: A View from Political Science” in Brown, Chester & Miles, Kate, eds, Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2011) 606.Google Scholar
13 See note 22 below and accompanying text for a list of these provisions.
14 NAFTA, supra note 4, Annex II: Reservations for Future Measures, Schedule of Canada.
15 Constitution Act, 1982, supra note 3.
16 CPTPP, supra note 9, Annex II, Schedule of Canada, Reservation II-C-I.
17 CETA, supra note 9, Annex II, Schedule of Canada, Reservation II-C-I.
18 CUSMA, supra note 1, Schedule of Canada, Reservation II-C-I.
19 As to whether self-government agreements are constitutionally protected under section 35, Sébastien Grammond describes some self-government arrangements as ancillary to modern land claim treaties. In those examples, the self-government arrangements are not part of the treaty and not protected by section 35. Grammond distinguishes those from treaties that do contain self-government provisions. In cases where the self-government provisions rest inside the treaty, all aspects of the agreement are protected by section 35. Grammond, Sébastien, “Treaties as Constitutional Agreements” in Oliver, Peter, Macklem, Patrick & Rosiers, Nathalie Des, eds, The Oxford Handbook of the Canadian Constitution (New York: Oxford University Press, 2017) 305 at 314–15Google Scholar.
20 Measures affecting Indigenous peoples with rights that transcend the border might be protected in Canada. See R v Desautel, 2021 SCC 17 [Desautel], where the majority found that Indigenous residents or citizens of the United States can come within “Aboriginal peoples of Canada” for the purposes of exercising Aboriginal rights in Canada. The trial decision (2007 BCSC 2389) was cited and discussed in Schwartz, “Toward,” supra note 6 at 5, 17–18.
21 The United States has taken a reservation permitting it “to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged minorities” that might be relied on in some cases. Mexico has taken an almost identical reservation. CUSMA, supra note 1, Annex II, Schedule of the United States, Schedule of Mexico.
22 Ibid, Annex II, Schedule of Canada, Reservation II-C-1. All existing regional government measures in force on the date CUSMA came into force as well as amendments to them are similarly carved out of these obligations. Ibid, arts 14.12(a)(ii), 15.7.1(a)(ii), and Annex I, Reservation of Canada I-C-26. For Canada, regional governments are provincial and territorial governments (art 1.4). CUSMA also incorporates the general exceptions from art XIV of the World Trade Organization’s (WTO) General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183 (entered into force 1 January 1995) in relation to the services chapter and some other chapters in the agreement. CUSMA, supra note 1, art 32.1(2).
23 See e.g. NAFTA, supra note 4, arts 1110, 1105.
24 United Nations Conference on Trade and Development (UNCTAD), Fair and Equitable Treatment, UNCTAD Series on Issues in International Investment Agreements II (New York: United Nations, 2011) at 1.
25 CUSMA, supra note 1, Annex 14-D, art 14.D.1, Definitions.
26 One linguistic difference is that the Indigenous general exception (IGE) refers to the rights of “[I]ndigenous” peoples, whereas the reservations, including in CUSMA, refer to “[A]boriginal” peoples. This is likely a response to changes in contemporary usage rather than any difference in the intended beneficiaries of the provisions.
29 Agreement on Government Procurement, 15 April 1994, 1869 UNTS 508 (entered into force 1 January 1995), General Notes, s 3; Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154 (entered into force 1 January 1995); General Agreement on Tariffs and Trade 1994, 15 April 1994, 1867 UNTS 187 (entered into force 1 January 1995) [GATT]. Mexico is not a party to the Agreement on Government Procurement. The investment obligations regarding national treatment (art 14.4), most-favoured nation treatment (art 14.4), and Senior Management and Boards of Directors (art 14.11) in CUSMA, supra note 1, do not apply to subsidies, grants, or government procurement at all (art 14.12). None of the obligations in the services chapter apply to subsidies, grants, or government procurement (art 15(2).2(b), (d)). These exceptions largely overlap the reservations described above.
30 CETA, supra note 9, art 12.2.2.
32 CUSMA, supra note 1, Annex 28-A, Additional Provisions Concerning the Scope of “Regulations” and “Regulatory Authorities.” Schwartz notes some other provisions in Canadian trade agreements related to Indigenous peoples, such as an exclusion from the rules applicable to state-owned enterprises (CPTPP, supra note 9, Annex IV, Schedule of Canada; CUSMA, ibid, Annex IV, Schedule of Canada); and the protection of Aboriginal harvesting (CPTPP, ibid, art 20.1; CETA, supra note 9, art 24.1; CUSMA, ibid, art 24.1 (definition of environmental law)) and Indigenous traditional knowledge (CPTPP, ibid, arts 20.13, 29.8) and linking the well-being of Indigenous peoples and the conservation of the natural environment (CUSMA, ibid, arts 24.2, 24.4, 24.15). Schwartz, “Developing,” supra note 10 at 259–61, 266–70.
33 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) [VCLT]. Canada and Mexico are parties. The United States signed the treaty on 24 April 1970 but has not ratified it. Nevertheless, the United States accepts the VCLT as codifying customary international law. See US State Department, online: <2009-2017.state.gov/s/l/treaty/faqs/70139.htm>. See Kenneth J Vandevelde, “Treaty Interpretation from a Negotiator’s Perspective” (1988) 21 Vand J Transntl L 281 at 290.
34 VCLT, supra note 33, art 31(3)(c).
35 European Communities – Customs Classification of Certain Computer Equipment (Complaint by the United States) (1998), WTO Doc WT/DS62/AB/R at 67–68 (Appellate Body Report).
36 This kind of a contrario reasoning is commonly used in treaty interpretation. See e.g. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, [1986] ICJ Rep 14 at para 222.
37 Gazzini, Tarcisio, Interpretation of International Investment Treaties (Oxford: Hart, 2016) at 210–13Google Scholar.
38 Ibid.
39 GATT, supra note 29.
40 Oxford English Dictionary, sub verbo “deem,” online: <oed.com>.
41 E.g., Merriam-Webster Dictionary, sub verbo “deem,” online: <www.merriam-webster.com/dictionary/deem>.
42 Oxford English Dictionary, supra note 40, sub verbo “necessary”.
43 GATT, supra note 29.
44 Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (2016), WTO Doc WT/DS461/29 at paras 5.71–5.74 (Appellate Body Report), citing China – Publications and Audio-Visual Products (2009), WTO Doc WT/DS363/AB/R at paras 239–45 (Appellate Body Report); US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (2005), WTO Doc WT/DS285/AB/R (Appellate Body Report) [US – Gambling]; Korea – Various Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2001), WTO Doc WT/DS161/WT/DS169/AB/R at para 164 (Appellate Body Report) [Korea – Beef]. See generally Gabrielle Marceau & Joel Trachtman, “Responding to National Concerns” in Daniel Bethlehem et al, eds, Oxford Handbook on International Trade Law (Oxford: Oxford University Press, 2009) 210 at 216. This same approach has been followed in interpreting “necessary” in art XI of the Argentina – US bilateral investment treaty in Continental Casualty Co v Argentina, ICSID Case No ARB(AF)/04/1, Award (5 September 2008) at para 194. Other investment cases have taken a range of views. See José Alvarez & Kathryn Khamsi, “The Argentine Crisis and Foreign Investors” (2009) YB Intl Investment L 379.
45 Korea – Beef, supra note 44 at para 164.
46 Ibid at para 162.
47 Ibid at para 163.
48 Ibid.
49 EC – Measures Affecting Asbestos and Products Containing Asbestos (2001), WTO Doc WT/DS135/AB/R at para 172 (Appellate Body Report).
50 US – Gambling, supra note 44 at paras 308–11.
51 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945) [UN Charter].
52 Bruno Simma et al, eds, The Charter of the United Nations: A Commentary, 3rd ed, vol 2 (Geneva: United Nations, 2012) at 1260, para 47. Art 5 of the North Atlantic Treaty uses similar language, providing that, in case of armed attack against a member of the organization, each other member shall take “such action as it deems necessary.” North Atlantic Treaty, 4 April 1949, 34 UNTS 243 (entered into force 24 August 1949).
53 Russia – Measures Concerning Traffic in Transit, Report of the Panel (2019), WTO Doc WT/DS512/R (Panel Report) [Russia – Transit]. The panel report in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (2020), WTO Doc WT/DS567/R at paras 7.230, 7.231, 7.241ff (Panel Report) [Saudi Arabia – Intellectual Property] followed the Russia – Transit approach. Saudi Arabia has appealed the report, even though the Appellate Body is not available at the moment. The complainant, Qatar, has sought arbitration as an alternative.
54 Emphasis added.
55 Russia – Transit, supra note 53 at para 7.57.
56 Ibid at para 7.125.
57 Ibid at para 7.129–133. The panel did not address the meaning of “necessary,” simply saying “it is for Russia to determine the ‘necessity’ of the measures for the protection of its essential security interests” (at para 7.146).
58 Ibid at paras 7.134, 7.138. The panel found that Russia’s articulation of its security interests was sufficient because it was “minimally satisfactory” (para 7.137). In considering this issue, the panel suggested that the degree of articulation needed would depend on the seriousness of the emergency in international relations (at para 7.135). The panel in Saudi Arabia – Intellectual Property, supra note 53, characterized this standard as “not a particularly onerous one” and “appropriately subject to limited review” (at para 7.281).
59 Russia – Transit, supra note 53 at paras 7.5.6.1, 7.5.7.
60 Ibid at paras 7.83–7.100.
62 GATT, supra note 29, art XX provides in part: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of [a number of policy-based categories of measures, like the protection of human health].” Art XX is incorporated by reference in CUSMA, supra note 1, art 32.1, as it was in NAFTA, supra note 4, art 2101.1. The use of almost identical language in two places in the same treaty suggests that the language should be interpreted consistently.
63 See Canadian Model Foreign Investment Promotion and Protection Agreement, art 10, online: <http://italaw.com/documents/Canadian2004-FIPA-model-en.pdf>.
64 CPTPP, supra note 9, art 29.6. This language had been used in previous treaties signed by New Zealand. The historical practice of New Zealand is discussed in Waitangi Tribunal, Report on the Trans-Pacific Partnership Agreement (2016).
65 For a useful discussion, see Niall Moran, “The First Twenty Cases under GATT Article XX: Tuna or Shrimp Dear?” in Giovanna Adinolfi et al, eds, International Economic Law: Contemporary Issues (Heidelberg: Springer, 2017) 3. For a critique of the Appellate Body’s approach, see Lorand Bartels, “The Chapeau of the General Exceptions in the WTO GATT and GATS Agreements: A Reconstruction” (2015) 109 AJIL 95.
66 US – Importation of Certain Shrimp and Shrimp Products (1998), WTO Doc WT/DS58/AB/R at paras 119–20 (Appellate Body Report) [US – Shrimp]. The Appellate Body later characterized the chapeau as meaning that the exceptions in art XX were “limited and conditional” (at para 157).
67 Ibid at paras 119–20.
68 This is the approach taken in this article to the interpretation of the IGE.
69 US – Shrimp, supra note 66 at paras 158–59.
70 That the IGE chapeau must have an independent meaning is confirmed by the well-established principle of treaty interpretation that treaty language must be interpreted in a manner that renders it effective. See Fisheries Jurisdiction Case (Spain v Canada), [1998] ICJ Rep 432 at para 52; Gillian White, “Treaty Interpretation: The Vienna Convention ‘Code’ as Applied by the World Trade Organisation Judiciary” (1999) 20 Australian YB Intl L 319 at 332-34.
71 “[P]erson of a Party” is defined in CUSMA, supra note 1, art 1.4 to include both a national and an enterprise of a state party. “[E]nterprise of a Party” is an enterprise constituted or organized under the laws of a state party, defined to include a corporation, partnership, or trust. For a comprehensive discussion of non-discrimination in trade and investment law, see Andrew Mitchell, David Heaton & Caroline Henckels, Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law (Cheltenham, UK: Edward Elgar, 2016).
72 WTO cases have been clear that what constitutes “arbitrary or unjustified discrimination” is distinct from a breach of the non-discrimination obligations in GATT art I (most favoured nation treatment) and art III (national treatment). This logically follows from the interpretive principle that, otherwise, the same language would have been used in the chapeau and the non-discrimination obligations. EC – Measures Prohibiting the Importation and Marketing of Seal Products (2014), WTO Doc WT/DS400/AB/R at paras 5.298, 5.318 (Appellate Body Report) [EC – Seal Products].
73 Brazil – Measures Affecting Imports of Retreaded Tyres (2007), WTO Doc WT/DS332/AB/R at para 226 (Appellate Body Report) [Brazil – Tyres].
74 US – Measures Concerning the Importation, Marketing and Sale of Tuna, Recourse to Article 21.5 of the DSU by Mexico (2015), WTO Doc WT/DS381/RW at para 7.316 (Appellate Body Report).
75 EC – Seal Products, supra note 72 at para 5.321. The Appellate Body has sometimes said that this requires asking whether the rationale for the discrimination has a rational connection to the objective of the measure (e.g. Brazil –Tyres, supra note 73 at para 226). Bartels, supra note 65 at 116–17, argues there is no basis for limiting the possible justifications in this way.
76 To be legal under CUSMA, supra note 1, art 14.8(b), an expropriation must be carried out “in a non-discriminatory manner.” Discrimination has been held to be relevant to a determination of whether the fair and equitable treatment obligation has been breached. See e.g. Waste Management Inc v Mexico, ICSID Case No ARB(AF)00/3, Award (30 April 2004) at paras 98–99, applied in Bilcon of Delaware et al v Government of Canada, PCA Case No 2009-04, Award on Jurisdiction and Liability (17 March 2015) at para 442; but see Methanex v United States, UNCITRAL Final Award on Jurisdiction and Merits (3 August 2005), Part IV, Chapter C at paras 9–26.
77 As written, this second criterion would seem to mean that the IGE chapeau would not prevent the application of the IGE unless the disguised restriction applied to trade in goods, services, and investment. Few measures will be a disguised restriction in relation to all three of these areas of economic activity, suggesting a very limited role for this second criterion in practice. We are grateful to Caroline Henckels for pointing out this surprising drafting.
78 Bartels, supra note 65 at 123.
79 Ibid. Indeed, this should be the only situation in which it can arise because it must be provisionally justified based on the legitimate policy goals set out in art XX.
80 One can imagine that proving such an intention would be challenging. On the issue of developing titled territory, see e.g. “Mining, Oil & Gas,” online: <www.tsilhqotin.ca/mining-oil-gas/>.
81 If the measure recognizing Indigenous title were challenged only as providing a right or preference in favour of the Indigenous group contrary to CUSMA’s national treatment obligation, no breach of CUSMA would arise because such a preference over a US investor is permitted under the Services and Investment Reservation. See note 22 above and accompanying text.
82 Many investor-state tribunals have rejected a requirement that a state have an intention to discriminate to be found to have breached national treatment obligations because of the difficulty of determining a state’s intention. E.g. Marvin Feldman v Mexico, ICSID Case No ARB(AF)/99/1, Award (16 December 2002) at paras 183–84.
83 For example, recently, the International Court of Justice found that art XXI(1)(d) of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States, which states that the treaty “shall not preclude measures necessary to protect essential security interests,” provides a defence. Certain Iranian Assets (Islamic Republic of Iran v United States of America), Preliminary Objections, [2019] ICJ Rep 7 at para 47.
84 Henckels argues that general exceptions and especially security exceptions (which as noted are similar to the IGE) should be interpreted as permissions rather than defences. Caroline Henckels, “Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law” (2020) 69 ICLQ 557. The same argument may apply to the characterization of the IGE. Henckels acknowledges that the treatment of exceptions by trade and investment tribunals “demonstrates inconsistent and incoherent approaches both within and between the two subfields” but suggests that the Russia – Transit panel’s approach can be understood as treating the GATT security exception as a permission, even though the panel was not clear in that regard (at 570–71).
85 CUSMA, supra note 1, art 32.5.
86 Customary international law rules are formed by “long-term, consistent and widespread state practice combined with opinio juris indicating that that practice is motivated by a sense of obligation.” Nadakavukaren, Krista, “Actors, Institutions, and Policy in Host Countries” in VanDuzer, J Anthony & Leblond, Patrick, eds, Promoting and Managing International Investment: Toward an Interdisciplinary Approach (London: Routledge, 2020) 51 at 54, n 11Google Scholar.
87 For example, Canada is a party to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and the International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). Both state in art 1 that “[a]ll peoples have the right of self-determination.” The UN Charter, supra note 51, refers in art 1(2) to “respect for the principle of equal rights and self-determination of peoples” as one of its primary purposes. Canada is required by international law to comply with these obligations.
88 Indian Act, RSC 1985, c I-5. As pointed out by numerous commentators and observers, the Indian Act has also been a primary vehicle for curtailing Indigenous rights. In addition to the TRC, supra note 5, see generally Kelm, Mary-Ellen & Smith, Keith D, Talking Back to the Indian Act: Critical Readings in Settler Colonial Histories (Toronto: University of Toronto Press, 2018)Google Scholar.
89 Recent controversy in Wet’suwet’en territory — never “surrendered” by treaty — demonstrates how unsettled questions between Crown and Indigenous nations governments’ approval of projects absent dialogue informed by Indigenous law can upend projects. Nation-wide protests and blockades sprang up after hereditary Wet’suwet’en leadership opposed a natural gas pipeline through their territory. The project had received approval, but the hereditary leaders said this was not the case based on Wet’suwet’en law. See e.g. Douglas Sanderson, “Give the Wet’suwet’en Space to Conduct their Lawmaking, Away from the Barricades,” Policy Options (24 February 2020) online: <policyoptions.irpp.org/magazines/february-2020/give-the-wetsuweten-space-to-conduct-their-law-making-away-from-barricades/>. After weeks of stand-offs, the federal government and Wet’suwet’en leadership negotiated a preliminary agreement recognizing Wet’suwet’en title, although details remain unknown. “Wet’suwet’en Chiefs, Ministers Reach Tentative Arrangement over Land Title but Debate over Pipeline Continues,” CBC News (1 March 2020), online: <www.cbc.ca/news/canada/british-columbia/wetsuweten-agreement-reached-1.5481681>.
90 The seminal Royal Commission on Aboriginal Peoples (RCAP), for instance, spoke to federal legislative classifications that ignore “cultural and national differences” between Indigenous groups. Royal Commission on Aboriginal Peoples (RCAP), Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: Supply and Services Canada, 1996), online: <data2.archives.ca/e/e448/e011188230-01.pdf>. That source also explains that, “[f]or statistical and other purposes, the federal government usually divides the Aboriginal population into four categories: North American Indians registered under the Indian Act, North American Indians not registered under the Indian Act (the non-status population), Métis people and Inuit. Basic population characteristics of each group are described below using the 1991 Aboriginal Peoples Survey as the source” (at 23). References to government inclusion and exclusion under the Indian Act highlight the colonialism involved in such categories.
91 Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), “First Nations,” online: <www.rcaanc-cirnac.gc.ca/eng/1100100013791/1535470872302>. Some of the government’s information aligns with that produced in RCAP, supra note 90 at 20. But current population numbers exceed those recorded in the RCAP’s report.
93 See e.g. United Nations, Department of Economic and Social Affairs, “Indigenous Peoples at the United Nations” online: <www.un.org/development/desa/indigenouspeoples/about-us.html>. The summarized Martinez Cobo report helps define commonalities between Indigenous nations affected by colonialism, without rigidly defining who Indigenous peoples are.
94 In Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 28, the Supreme Court of Canada defined the Crown as “[t]he personification in Her Majesty of the Canadian state in exercising the prerogatives and privileges reserved to it. The Crown also, however, denotes the sovereign in the exercise of her formal legislative role (in assenting, refusing assent to, or reserving legislative or parliamentary bills), and as the head of executive authority. … For this reason, the term ‘Crown’ is commonly used to symbolize and denote executive power.”
95 See e.g. John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference (Vancouver: UBC Press, 1997) 155 at 155. For a different perspective on imperial views on internal sovereignty at the time, see e.g. Justice Harry S LaForme with Claire Truesdale, “Section 25 of the Charter; Section 35 of the Constitution Act, 1982: Aboriginal and Treaty Rights — 30 Years of Recognition and Affirmation” in Errol Mendes & Stéphane Beaulac, eds, Canadian Charter of Rights and Freedoms, 5th ed (Markham, ON: LexisNexis, 2013) 1337 at 1343–45.
96 See e.g. Coyle, Michael, “As Long as the Sun Shines: Recognizing That Treaties Were Intended to Last” in Borrows, John & Coyle, Michael, eds, The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 39 at 46–47 Google Scholar.
97 See Cardinal, Harold & Hildebrandt, Walter, Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized as Nations (Calgary: University of Calgary Press, 2000)CrossRefGoogle Scholar.
98 Much of British Columbia was settled without treaties, although some treaties were made on what is now called Vancouver Island.
99 Julie Jai, “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate the Interpretation of Historical Treaties” in Borrows & Coyle, supra note 96, 105 at 111.
100 Ibid.
101 See Laforme & Truesdale, supra note 95 at 1341–42.
102 Ibid at 1351–52. See also Russell, Peter H, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017) at 149–50Google Scholar.
103 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5.
104 Indian Act, supra note 88, c I-5, ss 18(1), 37–38.
105 Beginning in the late nineteenth century, Canada forced Indigenous children to leave their parents and communities and attend residential schools as part of a program of assimilation. The operation of residential schools and their devastating effects on generations of Indigenous peoples is described in TRC, supra note 5.
106 Section 37 of the Constitution Act, 1982, supra note 3, which provided for a constitutional conference to address identification and definition of the rights of Indigenous peoples to be included in the Constitution of Canada, was automatically repealed one year following the coming into force of the Constitution Act, 1982, ibid, s 54.
107 See e.g. Delgamuukw v British Columbia, [1997] 3 SCR 1010 at 1123–24, 153 DLR (4th) 193 [Delgamuukw]; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 at para 33 [Nacho Nyak].
108 R v Van der Peet, [1996] 2 SCR 507 at 548ff, 137 DLR (4th) 289 [Van der Peet].
109 Ibid. See generally R v Pamajewon, [1996] 2 SCR 821, 138 DLR (4th) 204, for an example of the test’s application and how the Court recharacterizes parties’ claims. On this, see also Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams].
110 Van der Peet, supra note 108 at 549.
111 Ibid at 554.
112 For critical commentary, see e.g. Russel L Barsh & James Youngblood Henderson, “The Supreme Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill LJ 993; John Borrows, “The Trickster: Integral to a Distinctive Culture” (1997) 8 Const Forum Const 27.
113 See e.g. R v Gladstone, [1996] 2 SCR 723, 200 NR 189 [Gladstone]; R v Powley, 2003 SCC 43 (recognizing Métis Aboriginal hunting rights); R v Sappier; R v Gray, 2006 SCC 54 (right to cultivate wood for domestic purposes).
115 R v Badger, [1996] 1 SCR 771 at 793–93, 133 DLR (4th) 324 [Badger]. See also RCAP, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol 2 (Ottawa: Supply and Services Canada, 1996) at 41, online: <data2.archives.ca/e/e448/e011188230-02.pdf>.
116 See e.g. R v Simon, [1985] 2 SCR 387 at 402, 62 NR 366. These special rules of treaty interpretation have been criticized on numerous grounds, including the failure of the courts to faithfully apply them. See e.g. Craft, Aimée, “Treaty Interpretation: A Tale of Two Stories” in Craft, Aimée, Breathing Life into the Stone Fort Treaty (Vancouver: UBC Press/Purich, 2013)Google Scholar.
117 See e.g. R v Morris, 2006 SCC 59; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69; R v Marshall, [1999] 3 SCR 456 at 470, 177 DLR (4th) 513.
118 The Agreement between the Grand Council of the Crees (of Quebec), the Northern Quebec Inuit Association, the Government of Quebec, la Société d’énergie de la Baie James, la Société de développement de la Baie James, la Commission hydro-électrique de Québec and the Government of Canada, 11 November 1975, online: <www3.publicationsduquebec.gouv.qc.ca/produits/conventions/lois/loi2/pages/page4.en.html>, also known as the James Bay Northern Quebec Agreement, was the first “modern” treaty. See e.g. Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 12 [Little Salmon].
120 Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon, 1993, online: <www.rcaanc-cirnac.gc.ca/eng/1297278586814/1542811130481>.
121 Little Salmon, supra note 118 at para 36.
122 See e.g. Nacho Nyak, supra note 107 at paras 36–38.
123 Calder v Attorney-General of British Columbia, [1973] SCR 313, 34 DLR (3d) 145, affirmed title as a common law doctrine, but the Court did not make a title declaration in that case.
124 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 73 [Tsilhqot’in].
125 Ibid at para 92.
126 Bradford W Morse, “Tsilhqot’in Nation v. British Columbia: Is It a Game Changer in Canadian Aboriginal Title Law and Crown-Indigenous Relations?” (2017) 2 Lakehead LJ 64 at 80–81. That said, Morse goes on to enumerate subsequent cases from various levels of courts where decisions were “business as usual,” but those decisions were not necessarily informed by the UNDRIP, as subsequently discussed (at 81–82). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/61/49 (2008) [UNDRIP].
128 See R v Sparrow, [1990] 1 SCR 1075,70 DLR (4th) 385; Gladstone, supra note 113, allowed the Crown to “balance” a range of other interests when an Indigenous commercial right is at stake.
129 Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at para 59 [Manitoba Metis], citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 18 [Haida Nation]. The seminal case on this is Guerin v the Queen, [1984] 2 SCR 335, 13 DLR (4th) 321 [Guerin].
130 Guerin, supra note 129 at 382.
131 See e.g. Haida Nation, supra note 129 at para 32, where the Court linked the ever-present honour to “the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.” See also Manitoba Metis, supra note 129 at para 66; Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at para 21 [Mikisew 2018]. See also Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29 SCLR (2d) 433 at 443–44.
132 Manitoba Metis, supra note 129 at paras 68–69, consolidating previous jurisprudence.
133 Ibid at para 73; Haida Nation, supra note 129 at paras 19, 32. The Crown’s honour is implicated in making and implementing treaties with Indigenous nations, prohibiting any “sharp dealing” by the Crown. Badger, supra note 115 at 794, also established that the honour of the Crown informs the appropriate interpretation of legislation that affects Indigenous interests.
134 Haida Nation, supra note 129 at paras 37, 39, 43–45.
135 Ibid at para 43.
136 Tsilhqot’in, supra note 124 at para 76. At para 73 of the decision, the Court listed some of the incidents of title, including the “right to decide how the land will be used”; “the right to the economic benefits of the land”; and “the right to pro-actively use and manage the land.” See further para 77 for comments about justified infringement.
137 Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at paras 40–50 [Rio Tinto].
138 Ibid at para 44 [citations omitted]. In Mikisew 2018, supra note 131, a plurality of judges also rejected the idea that a duty is owed when developing and enacting legislation. In different sets of reasons, these judges underlined that the duty falls on executive actors and not legislative ones, even in a system with a less than stark distinction between the two branches. The UNDRIP, supra note 126, does mandate consultation in that context, but the Court did not refer to the declaration.
139 Rio Tinto, supra note 137 at para 47.
140 Ibid at paras 45–46.
141 See e.g. Grace Nosek, “Re-imagining Indigenous Peoples’ Role in Natural Resource Development Decision Making: Implementing Free, Prior and Informed Consent in Canada through Indigenous Legal Traditions” (2017) 50 UBC L Rev 95 at 96.
142 See e.g. Sarah Morales, “Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult” in John Borrows et al, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo, ON: Centre for International Governance Innovation, 2019) 65 at 68–69 [Borrows et al, Braiding]. See also Nosek, supra note 141 at 101–03, 105–09, nn 48–61. Dwight Newman amasses a list of critics of the duty in its present form but criticizes them, in turn, by saying that they are “overly skeptical from a descriptive point of view, [and] may also be focused on a limited range of values … thereby negatively judging all efforts at the real world reconciliation of interests and values that must actually occur.” Dwight Newman, “The Section 35 Duty to Consult” in Oliver, Macklem & Des Rosiers, supra note 19 at 353, n 21.
143 UNDRIP, supra note 126. The TRC’s final report called for full UNDRIP implementation as one measure necessary to improve Canada’s relationship with Indigenous peoples. See TRC, supra note 5, Call to Action 43. Academic support of the UNDRIP is legion. For one example, see Morales, supra note 142.
144 See e.g. UNDRIP, supra note 126, preamble, arts 3–4.
145 Emphasis added.
146 Kerry Wilkins, “Strategizing UNDRIP Implementation: Some Fundamentals” in Borrows et al, Braiding, supra note 142, 177 at 179.
147 Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2nd Sess, 42nd Parl, 2020 (first reading 3 December 2020). Minister Lametti, speaking in the House of Commons on 3 December 2020, said that the bill was intended to “implement” the UNDRIP. House of Commons Debates, 42-2, No 42 (3 December 2020) at 1500. The bill’s preamble refers to implementing the UNDRIP numerous times. But the text of the bill itself refers to ensuring that federal laws are “consistent with” the UNDRIP (clause 5) and crafting an action plan to “achieve the objectives of the Declaration” (clause 6). These clauses make it difficult to confidently state whether the legislation would create binding legal obligations for the purposes of the IGE. Bill C-15 was enacted after this article was written and was about to be published: see United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14. The foregoing description of Bill C-15 is consistent with the final, enacted provisions of the Act. The discussion below of British Columbia’s similar legislation is largely representative of considerations that may arise under the new federal legislation.
148 SBC 2019, c 44 [DRIPA]. The Trudeau government supported a New Democratic Party private member’s bill intended to “harmonize” Canada’s laws with the UNDRIP in a previous Parliament. That bill died in the Senate when an election was called in 2019. Bill C-262, An Act to Ensure the Laws of Canada Are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 42nd Parl, 1st Sess, 2016 (Hon Romeo Saganash) (committee report presented without amendment in the Senate).
149 The Attorney General of British Columbia recently asserted that “the Act does not give the UN Declaration the force of law in BC or create new substantive rights.” The statement was made in the Attorney General’s Reply Factum before the Supreme Court of Canada in the appeal of Desautel, supra note 20 at para 6, File no 38734, Reply Factum of the Appellant. The Attorney General cited Hansard in support of this point. British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), 41st Parl, 4th Sess, No 297 (25 November 2019) at 10753 (Hon S Fraser). Minister Fraser said: “I stated earlier that Bill 41 doesn’t give the UN Declaration itself the force of law and doesn’t create any new laws and new rights. That’s inclusive of private land. It’s to be applied within the constitutional framework of Canada, including section 35 of the constitution. … The degree of the constitutional protection already afforded to Indigenous land rights in Canada is unique, I think, among UN member states, largely because of section 35. How this and other articles will be applied in B.C. — whether it’s in relation to alignment of laws, in section 3, which is yet to come, or Bill 41 or development of the action plan set out in section 4 — will be done in consultation and cooperation with Indigenous peoples in British Columbia. This work will also involve — and this is, I think, referring to private land — engagement with the public, local governments and other stakeholders. Again, I look forward to those discussions coming.” We thank our colleague, John Mark Keyes, for discussion on this point.
150 DRIPA, supra note 148. In “The Impression of Harmony,” Gib van Ert assessed an earlier federal implementing bill with similar language, noting that it did not use orthodox implementing language. Gib van Ert, “The Impression of Harmony: Bill C-262 and the Implementation of UNDRIP in Canadian Law” (27 November 2018), online: <canlii.ca/t/2cvr>.
151 Sheryl Lightfoot, “Using Legislation to Implement the UN Declaration on the Rights of Indigenous Peoples” in Centre for International Governance Innovation & Wiyasiwewin Mikiwahp Native Law Centre, UNDRIP Implementation: More Reflections on Braiding International, Domestic and Indigenous Laws (Special Report) (Waterloo, ON: Centre for International Governance Innovation, 2018) 17 at 19, 22–23, online: <www.cigionline.org/sites/default/files/documents/UNDRIP%20Fall%202018%20lowres.pdf>.
152 Van Ert, supra note 150 at para 13. Lightfoot, supra note 151, explains the importance of domestic legislative surveys as important first steps to UNDRIP implementation. Lightfoot writes: “The handbook for parliamentarians on implementing the UN Declaration, published by the InterParliamentary Union and several UN agencies, cites the law-making role of parliaments as of particular importance in the implementation of the UN Declaration” (at 19–20).
153 DRIPA, supra note 148, ss 2–3.
154 Wilkins, supra note 146 at 184. To be clear, Wilkins does not speak specifically to the DRIPA. Wilkins points to alternative ways of implementing the UNDRIP: formal constitutional amendment or through a treaty styled as a land claim agreement pursuant to section 35(3) of the Constitution Act, 1982. The last suggestion is premised on section 35’s protection of treaty rights that existed as of 1982; newer land claim agreements are constitutionally protected under section 35(3). And, finally, responding to a point Wilkins raises, section 14(1) of the provincial Interpretation Act, RSBC 1996, c 238, states that the “government” is bound by acts unless specifically exempted. But section 14(2) of that Act also states that enactments that “bind or affect the government in the use or development of land” do not bind or affect the government, possibly leading to questions that are beyond the scope of this article.
155 If the UNDRIP is not incorporated into Canadian law by implementing statute, it might form part of Canada’s legal obligations through the operation of customary international law or through the honour of the Crown doctrine. See van Ert, supra note 150 at paras 5, 16. In any case, the declaration could still influence courts’ interpretation of legislation and constitutional rights claims. See Wilkins, supra note 146 at 178.
156 This is the principle of contemporaneity. Humphrey Waldock, “Third Report on the Law of Treaties” (1964) 16:2 YB Intl L Commission 5 at 55-56; Michael Lennard, “Navigating by the Stars: Interpreting the WTO Agreements” (2002) 5 J Intl Econ L 17 at 39.
157 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16 at para 53; US – Shrimp, supra note 66. This approach to interpretation is discussed in Lennard, supra note 156 at 75–76.
158 US – Shrimp, supra note 66 .
159 CUSMA, supra note 1, art 31.9(1)(b).
160 Tariffs Applied by Canada to Certain US-Origin Agricultural Products, NAFTA Case No Can-US-95-2008-01, Final Report of the Panel (2 December 1996) [Tariffs on US Agricultural Products]; US Safeguard Action Taken on Broomcorn Brooms from Mexico, NAFTA Case No USA-97-2008-01, Final Report of the Panel (1 November 1998) [Brooms from Mexico]; In the Matter of Cross-Border Trucking Services, NAFTA Case No USA-Mex-98-2008-01, Final Report of the Panel (6 February 2001) [Cross-Border Trucking]. All decisions can be found on the Canada-Mexico-United States Secretariat website, online: <can-mex-usa-sec.org>.
161 CUSMA, supra note 1, art 31.9(1)(c). Roster members must possess “expertise or experience in international law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements,” be selected on the basis of “objectivity, reliability, and sound judgment,” be independent of all three CUSMA countries and comply with a code of conduct established by the Free Trade Commission.
162 Ibid, art 31.8(2).
163 Ibid, art 31.11. The New Zealand government is developing a protocol setting out rules that ensure effective participation by Māori in investor-state dispute settlement cases implicating the country’s trade and investment treaty exception for measures according more favourable treatment to Māori (see note 64 above). See New Zealand Ministry of Foreign Affairs and Trade, online: <www.mfat.govt.nz/assets/Trade-General/Investor-State-Dispute-Settlement-ISDS/Draft-ISDS-Protocol-for-consultation.pdf>. A similar protocol for CUSMA cases against Canada implicating the IGE might allay some concerns about participation by affected Indigenous peoples.
164 The same may be said for CUSMA’s reservation relating to the obligations in the Good Regulatory Practices chapter (Chapter 28). See note 32 above and accompanying text.
165 This was one of the factors relied on by the Federal Court in rejecting the claim by the Hupacasath First Nation, along with the “strong presumption” in Canadian law that, if land is expropriated by the state, compensation will be paid to the landowner. The Hupacasath First Nation had argued that Canada’s commitments to protect Chinese investors under the Canada-China Foreign Investment Promotion and Protection Agreement, 9 September 2012, Can TS 2014 No 26 (entered into force 1 October 2014), could conflict with their Aboriginal rights and interests in certain lands in British Columbia. These kinds of conflicts in the abstract were dismissed by the Federal Court as “speculative.” Hupacasath First Nation v Canada (Minister of Foreign Affairs), 2013 FC 900 at para 134, aff’d 2015 FCA 4.
166 One leading commentator described the standard as “maddeningly vague, frustratingly general, and treacherously elastic.” Jeswald Salacuse, The Law of Investment Treaties, 2nd ed (Oxford: Oxford University Press, 2015) at 221.
168 Cross-Border Trucking, supra note 160. The other cases were Tariffs on US Agricultural Products, supra note 160; Brooms from Mexico, supra note 160. A fourth case was commenced in 1998, Cross-Border Bus Services, NAFTA Case No USA-98-2008-02, though no panel decision was ever made public. Rafael Leal-Arcas, “Comparative Analysis of NAFTA’s Chapter 20 and the WTO’s Dispute Settlement Understanding” (2011) Queen Mary University of London, School of Law Research Paper No 94/2011.
169 J Anthony VanDuzer, “State-to-state Dispute Settlement under the USMCA: Better Than NAFTA?” in Festschrift in Honour of Professor Stephen T Zamora (Houston: Arte Publico, forthcoming).
170 Schwartz, “Developing,” supra note 10 at 238.
171 Risa Schwartz argues that situations in which Canada would face a challenge to an action in purported reliance on the IGE are likely to be rare because of Canada’s history of failing to live up to its obligations to Indigenous peoples. Ibid at 238–39.
172 Ibid.
173 CUSMA, supra note 1, art 31.18.
174 Ibid, art 31.19(1).
175 In one of the two NAFTA cases where non-compliance was found, retaliation was not used. In Cross-Border Trucking, supra note 160, Mexico finally decided to retaliate in 2009, eight years after the panel decision. Mexico imposed more than $2.4 billion in trade sanctions on US imports in 2009. Diario Oficial (Mexico), 18 March 2009, cited in Leal-Arcas, supra note 168 at 16.