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On November 30, 2018, Canada, the United States, and Mexico (collectively, the “Parties”) signed the Canada-United States-Mexico Agreement (“CUSMA”).  The CUSMA’s text can be found here.

The CUSMA replaces the North American Free Trade Agreement (“NAFTA”).  Both agreements regulate international trade and investment between the Parties.  NAFTA and the CUSMA create sanctions against a Party who restricts trade or investment in a manner inconsistent with either agreement.

One of the differences between the CUSMA and NAFTA is that the CUSMA’s text recognizes the importance of Indigenous peoples within the Parties’ respective territories.  The agreement includes a provision that shields a Party against liability under the CUSMA for actions that the Party considers necessary to fulfill its legal obligations to Indigenous peoples.

This exception would protect the Crown’s duty to consult, but also put Canada’s implementation of its Indigenous commitments under international scrutiny.

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