The Canada-U.S.-Mexico Agreement (CUSMA), which succeeded the North American Free Trade Agreement (NAFTA) in July 2020, contains a number of changes that address some common criticisms of international trade agreements. For example, CUSMA includes stronger enforceable labour provisions and phased out investor-state dispute settlement, at least between Canada and the United States.
For Aotearoa New Zealand, the most interesting change is the inclusion of a new exception for Indigenous Peoples’ rights advanced by Canada (Article 32.5 of the agreement). The wording is based on the Treaty of Waitangi exception that New Zealand governments have required in all free trade agreements since 2001, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which also applies to Mexico and Canada but not the U.S.
These exceptions are similar, but not identical. The New Zealand treaty exception allows the government to take policies or actions that accord “more favourable treatment” to Māori.CUSMA is broader—allowing for any “measure [a government] deems necessary to fulfill its legal obligations to indigenous peoples.” The treaty exception refers broadly to Crown obligations to Māori, including under the Treaty of Waitangi, and prevents other parties from reviewing the government’s interpretations of those obligations using a dispute panel. CUSMA refers to the state’s “legal obligations” to Indigenous Peoples—and, unlike in the New Zealand exception, requires that they prove the existence of those obligations.
Both exceptions leave it to the state to decide if the policy in question is necessary to meet those obligations—which means they allow the colonial state to self-judge. But, critically, both exceptions are subject to a “chapeau” that cancels out the protection if the dispute panel finds the state engaged in arbitrary or unjustified discrimination, or that a policy or law is actually a disguised restriction on trade.
Canadian First Nations had been optimistic that the CUSMA clause would provide comprehensive protection so Indigenous Peoples’ rights could not be held hostage to trade or investment rules. Both Canada and Mexico publicly shared that optimism, with the Mexican government’s fact sheet boldly interpreting Article 32.5 as stating that “legal obligations to Indigenous people cannot be defeated or interfered with by commitments under trade rules.”
New Zealand governments (in colonial terms, the Crown) likewise have insisted that their treaty exception fully protects policymakers’ “policy space” to meet their obligations under the Treaty of Waitangi, to justify rolling the same provision over into each new agreement. That is despite repeated challenges from Māori that the exception fails to provide effective protection for their responsibilities and rights under the 1840 Tiriti o Waitangi (the Māori-language version of the Treaty), which guarantees their ongoing rangatiratanga (self-determination) and authority over te Ao Māori (the Māori world), and a finding from the Waitangi Tribunal which supported that argument in relation trade rules covering electronic commerce.
These arguments are not new. Māori have been at the forefront of mass protests against free trade and investment agreements, notably against the Multilateral Agreement on Investment (MAI) and the CPTPP. Prominent Māori have brought legal challenges in the specialist Waitangi Tribunal and conducted highly critical Tiriti o Waitangi assessments of recent agreements.
New Zealand policymakers ignored Māori demands for a paradigmatic shift in the objectives, processes, participation, decision-making and protections in trade agreements, including comprehensive carve-outs where required. As part of a 2020 mediation agreement with Māori over the CPTPP, the Crown has just begun to discuss what alternative protection might look like—without conceding the existing Treaty of Waitangi exception is flawed.
The Mexico corn case
Until now, these Indigenous exceptions had not been tested in a dispute. In December 2024, a state-to-state arbitration panel ruled in favour of the U.S. in a dispute against Mexico. The conflict was over a decree in which the Mexican government banned the use of genetically engineered (GE) corn in tortillas or dough, in part to protect native corn from transgenic contamination. A core part of Mexico’s argument was that its decree aimed to protect the rights of Indigenous Peoples, for whom corn is a staple crop with major cultural significance.
The fact this dispute involved genetic engineering is significant, as it highlights the paradigm conflict between Western colonial capitalism and science, and Indigenous Peoples’ identity, values, worldviews and responsibilities to protect them using their own knowledge and methodologies.
In Aotearoa, the Waitangi Tribunal conducted a landmark inquiry which concluded in 2011 known as Wai 262, where it sought to re-establish Māori authority over traditional knowledge, including responsibilities to protect tāonga species (Indigenous plants and seeds)and their use for foods and rongoā (healing).It also examined the threats that GE poses to “indigenous flora and fauna and thus to Māori food systems, te taiao (environment), tikanga Māori (Māori law) and ourselves more broadly.”
The inquiry’s foundational objection to GE was that the “movement of genes within an organism impacts on the mauri (the essential life force derived from the atua (gods) which all living things possess, wairua (spirit) and whakapapa (links across all living things)) of that organism and its wider surroundings.” The “role of kaitiaki (guardians) is to protect and maintain the mauri of our flora and fauna whanaunga for future generations, including at the molecular level.”
In the CUSMA dispute, Mexico argued along similar lines that native corn is central to cultural identity of Mexican Indigenous communities and their creation narrative: “the fact of planting corn is linked to their own history, to their identity, to the way they conceive the world, to being part of a whole.”
The CUSMA panel essentially deemed the Indigenous worldview irrelevant. These arguments were only relevant to the dispute if, and to the extent that, they could be brought within the legal terms of the North American trade treaty.
The U.S. complaint related to the sanitary and phytosanitary (SPS) rules of the agreement, which expanded on the equivalent in the SPS agreement of the World Trade Organization. This meant the dispute panel would view the legitimacy of restrictions on GE products through a purely trade law lens. The purpose of the rules is to advance Western capitalism by minimizing restrictions on commerce. The conceptual tools are limited to Western science. The standards for assessing risk are set by international bodies that are heavily influenced by powerful corporate interests.
The panel found that Mexico’s decree breached those rules. Mexico then had to frame its defence to fit the Indigenous Peoples Rights exception in Article 32.5 of the agreement. Mexico’s arguments were supported by a brief by the Institute for Agricultural Trade Policy (IATP), the Rural Coalition, and the Alianza Nacional de Campesinas.
Mexico cited legal obligations to recognize Indigenous Peoples’ rights in relation to biodiversity and native corn in both its domestic and international law, supported by judicial decisions, as well as the constitution, and said it deemed the decree was necessary to meet those obligations.
Despite their earlier statements about the Indigenous Peoples’ exception, both the U.S. and Canada rejected the Mexican defence by applying narrow trade law arguments. The panel agreed that Mexico did have legal obligations to Indigenous Peoples to protect native corn. But it found the decree was discriminatory and a disguised trade restriction because it treated GE corn (mainly imported from the U.S.) differently from non-native non-GE corn (also grown domestically), when both could contaminate native corn. The fundamental difference for Indigenous Peoples between contamination by GE and non-GE corn was irrelevant.
Even if the exception had been framed to allow more expansive arguments, the panel of three trade and investment experts was neither competent nor appropriate to assess questions involving Indigenous responsibilities, rights, beliefs and knowledge. That requires experts in the relevant law, practices and worldviews of the relevant Indigenous people. A monocultural decision-making process that is seriously devoid of any Indigenous cultural context just deepens the systemic bias in the trade and investment regime.
The initial response from New Zealand trade officials is that the case is only relevant to Mexico’s measure and does not show either that the CUSMA or the New Zealand treaty exception is flawed. That narrow assessment, located exclusively within Western trade law, reinforces the need for a much more fundamental review of the trade and investment regime. Indigenous Peoples need to have a place, as of right, in deciding whether to negotiate, what to negotiate, with whom, what demands to make, where risks are posed to their obligations and rights, what trade-offs are acceptable, and what protections are required.