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Davis, Megan --- "International Trade Law and Indigenous Peoples: A New Direction in Human Rights Advocacy" [2005] AUIndigLawRpr 20; (2005) 9(2) Australian Indigenous Law Reporter 16

Commentary

International Trade Law and Indigenous Peoples:

A New Direction in Human Rights Advocacy*

Megan Davis **

The fact that aboriginal groups are looking to the World Trade Organisation, underscores the failure of the International Labour Organisation or the United Nations collection of institutions to effectively deal with aboriginal issues.

– Charles M Gastle[1]

The success of the Interior Alliance aboriginal group of British Columbia in intervening as amicus curiae[2] in the World Trade Organisation (‘WTO’) Softwood Lumber dispute between Canada and the United States was a significant development in international Indigenous advocacy. While it may seem unremarkable to make an amicus curiae submission at the WTO, it was a novel development for Indigenous peoples at the time, and now warrants greater examination.[3] Not only was it the first amicus curiae ever filed by an Indigenous group in the WTO, but the brief rested upon a core, innovative argument: that Canada’s failure to adequately recognise Aboriginal land title, and its lack of consultation with Indigenous peoples, gave Canadian softwood lumber producers an unfair economic advantage over United States softwood lumber producers.

This submission was a significant development in Indigenous peoples’ international advocacy, particularly given the perennial frustration of Indigenous peoples regarding the convenient employment by settler states of the sanctity of state sovereignty when it comes to human rights and the supervisory bodies of international human rights treaties.[4] The submission shows that Indigenous peoples are now using novel and innovative arguments in more powerful fora to draw attention to, and to remedy, the inadequate accommodation of Indigenous peoples’ rights within domestic legal frameworks.

In this paper, I reflect upon growing Indigenous engagement with international trade fora and consider whether this engagement signals a new shift in international human rights advocacy for Indigenous peoples. I conclude that while the approach is novel, it does not signify a substantive shift in international Indigenous advocacy. Nevertheless, the role of Indigenous engagement in international trade fora is a particularly timely issue given that the first United Nations International Decade of the World’s Indigenous Peoples has ended and the second decade has been recently proclaimed by the General Assembly.[5] The first part of this commentary provides background to the amicus brief, examines the Interior Alliance amicus curiae brief to the WTO Softwood Lumber dispute, and records the development of amicus curiae in the WTO Dispute Settlement Understanding (‘DSU’). Part two concludes by discussing the significance of a potential new direction in international Indigenous advocacy.

I Background to the Dispute

The Softwood Lumber case between Canada and the United States has a lengthy history spanning decades.[6] Softwood lumber accounts for 75% of lumber used in construction of homes in the United States. According to softwood lumber producers in the United States who lobbied the US Department of Commerce to investigate, Canadian softwood lumber producers are heavily subsidised by Federal and provincial governments based on a below market value stumpage fee – a fee per log – that lumber producers pay to the government. United States softwood lumber producers alleged that such an artificially low fee renders local United States lumber producers uncompetitive, and that the subsidies ultimately impact upon the domestic housing market, thereby injuring United States softwood lumber producers. As a result, the United States imposed countervailing duties on imported Canadian softwood lumber to offset the impact of the injury to the industry.

Canada requested that the WTO establish a panel to consider its complaint against the United States regarding the imposition of countervailing duties.[7] Canada alleged the duties were inconsistent with United State’s obligations under the WTO Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’).[8] Under the SCM Agreement, a subsidy exists if three elements are present: first, a financial contribution, second, which is made by a government or any public body within the territory of a WTO Member, and third, which confers a benefit.

The United States argued that the stumpage programs provided by some provincial governments effectively conferred a ‘right’ to harvest and that this right constituted a financial contribution in the form of a ‘good’ to Canadian lumber producers which, because it was at less than adequate remuneration, thereby conferred a ‘benefit’ of the Canadian producers. The US Department of Commerce believed that this benefit was specific to this industry and therefore stumpage was perceived by the United States to be provision of a good.[9]

In its final decision, the WTO Panel found in favour of the United States on the issue of whether the stumpage programs constituted a financial contribution in the form of the provision of a ‘good’. Ultimately, however, the Panel upheld Canada’s alternative claim that the countervailing duties were inconsistent with the SCM Agreement. This argument was that the United States’ determination of the existence and ‘amount’ of benefit to the Canadian lumber producers was erroneous and therefore the imposition of countervailing duties on the basis of that determination was inconsistent with the SCM Agreement. The United States requested the WTO Appellate Body to reverse the Panel’s decision. The Appellate Body upheld the Panel’s finding that Canada’s stumpage fee was a countervailable subsidy and therefore inconsistent with the SCM Agreement.[10]

II Indigenous Interest in the WTO Softwood Lumber Dispute

The Interior Alliance is a group of five Indigenous nations in the South Central Interior of British Columbia. Their interest in the WTO dispute lay in the fact that the vast majority of softwood lumber extraction is conducted in British Columbia. The Interior Alliance amicus curiae brief was submitted to a North American Free Trade Agreement (‘NAFTA’) panel review[11] and the WTO Panel that had been established to resolve the dispute.[12] The amicus brief essentially rested upon a core argument that Canada’s failure to adequately recognise Aboriginal land title and consult with Indigenous peoples constituted an unfair advantage to Canadian softwood lumber producers.[13]

In its preliminary work, the Interior Alliance had also forged close alliances with United States Indian tribes that own forestry operations, and who were reportedly negatively impacted upon by the cheap importation of Canadian softwood lumber. In some circumstances, these tribes reported that their prices had dropped by more than 50%.[14] At the outset, the United States Department of Commerce was supportive of a submission from them and asked both groups from the United States and Canada to

document how Indian people presently are excluded from the industry and how existing bidding processes are still influenced by big industry and also provide alternatives and how Indian people envision the forest industry with their involvement ensuring more sustainable forest management.[15]

Ultimately, the United States Department of Commerce decided that the question of land rights was one to be dealt with by the Canadian legal and political system. Nevertheless, the Interior Alliance position was supported in the United States Department of Commerce’s ‘Final Affirmative Countervailing Duty Determination’[16] which had found that Canadian softwood lumber producers benefited from countervailing subsidies.

The decision to submit an amicus curiae brief to the WTO was significant not only because of the controversy over WTO dispute settlement bodies accepting amicus curiae briefs, but because it was the first Indigenous amicus brief. Amicus curiae is the Latin phrase for ‘friend of the court’ and is commonly used to refer to submissions made by a person or entity that has a significant interest in a particular issue or outcome of a case, yet has no standing or ‘direct legal interest in the dispute’.[17] Even though the party submitting the brief has no direct interest in the proceedings, the brief is regarded as offering, ‘new factual details or new legal argument’ to the court.[18]

In US–Shrimp, the WTO Appellate Body made a key decision that enabled WTO Panels to accept amicus curiae briefs.[19] In that case, the Panel had originally found that the acceptance and consideration of amicus curiae briefs was precluded by a textual understanding of Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’),[20] which states that ‘[e]ach panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate’. The Panel reasoned that unsolicited information in the form of an amicus curiae brief was not relevant because the information had not been actively sought by the Panel. In overturning the Panel’s decision, the Appellate Body held that the ‘right to seek information’ neither prohibits nor obliges Panel’s to accept unsolicited information, but rather that acceptance of such information is discretionary. The Appellate Body stated that ‘right to seek information’ is:

Not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.[21]

The conundrum of amicus curiae briefs being accepted at the level of the Appellate Body was finally resolved by the body in the US Steel Bar case,[22] when the Appellate Body held that its discretion to accept amicus briefs was empowered by Article 17.9 of the DSU.

Since this significant juridical development, amicus curiae submissions have become more frequent.[23] Australian fishermen, for example, submitted amicus curiae during the Australia–Salmon[24] dispute. Initially, due to the somewhat controversial legal reasoning which has enabled the submission of briefs from non-state parties, amicus curiae briefs were a contentious issue. Some trade commentators view their acceptance as constituting judicial activism. Indeed, the Appellate Body was criticised in the same manner ‘as conservative American jurists lambasted the US Supreme Court in the 1960s and 1970s’.[25] The acceptance of amicus curiae briefs was a big win for civil society, which had typically found its rights and interests excluded from consideration in WTO decisions, and some Member States were typically hostile to the introduction of civil society activity in the WTO.[26] However, as Members have become accustomed to the practice there have been calls, particularly from developed county Members such as the United States, for greater transparency of the DSU, including proposed guidelines for the submission and acceptance amicus curiae submissions.[27] The increased transparency and accessibility of the WTO for members of civil society has not gone unnoticed. The recent release of the Eminent Persons Review into the future of the WTO confirms that amicus curiae briefs have been an institutional success for the WTO.[28] The mechanism of amicus curiae is important for Indigenous peoples groups. Even if the briefs aren’t dealt with substantively, it provides a forum, similar to the international human rights supervisory bodies, to disseminate information about the laws and policies operating within state borders to deny Indigenous peoples human rights.

III The Interior Alliance Amicus Curiae Brief

The core argument of the Interior Alliance, in its submission to the US Department of Commerce, NAFTA and the WTO, was that the failure to adequately protect Indigenous peoples land title was an unfair advantage to the Canadian softwood lumber industry and was consequently, among many things, a subsidy under the SCM Agreement:

Canada is arguing that its competitive advantage comes from the fact that Canada has more trees. When in reality it comes from the fact that it gives the forests over to the companies who pay only a small extraction fee and no-one pays a dime to the Aboriginal co-owners of the forests or even to the people of Canada.[29]

It is not clear in the brief whether the Alliance is arguing either that failure to consult is the ‘financial contribution’ or that, in accordance with the position of the United States government, the stumpage fee programs are the relevant financial contribution. Nevertheless, two central propositions can be drawn from the Alliance brief. First, jurisprudence of the Supreme Court of Canada requires that aboriginal title be taken into account by government organs ‘when allocating rights to harvest timber and making land use decisions’. This constitutes an additional requirement for the acquisition of full, unencumbered ownership.[30] The Alliance argues that if this is so then it implies that there should be a determination of new market prices that will remunerate Indigenous peoples. Any other pricing regimes confer a benefit on Canadian forestry companies. According to Grand Chief Stan Beardy of the Nishnawbe Aski Nation in Ontario (Treaty #9), who supported the brief:

In our area, half of our 49 First Nations have experienced significant depletion of their natural resources without receiving any compensation in recognition of our proprietary interests in the resources, as intended by the Treaty ... if the proprietary Treaty interests of our First Nations were to be properly implemented, it would have a significant impact on the market price for lumber taken in Ontario and that it would be more of an accurate reflection of the true value of the wood harvested from our territory.[31]

Second, and in the alternative, the Alliance brief proposes that Canada has an obligation to consult with Indigenous peoples arising from Canadian common law, the Constitution and Canada’s international obligations under Article 8(j) of the Convention on Biological Diversity.[32] For example, in Haida Nation v British Columbia,[33] Canadian courts have

put companies on notice that they have to consult with aboriginal peoples and accommodate their proprietary interests in a meaningful way before extracting resources in their traditional territories especially in the absence of government taking aboriginal title and rights into account.[34]

Clearly aware of the sensitivity and reluctance of multilateral institutions like the WTO to delve into domestic matters, the Interior Alliance asserted that:

We are not asking international trade tribunals to resolve land disputes but to take into account indigenous arguments when it comes to the interpretation and application of the SCM agreement. Indigenous interests have to be taken into account by international trade tribunals because of our special status as rights holders on the national and international level in as far as the violation of indigenous rights potentially leads to a violation of international trade law.[35]

The Panel accepted the submission from the Interior Alliance. It also made the ‘unprecedented move’ of distributing the brief to all parties – including third parties – for comments. This move was qualified, however, by the statement that the Panel would only take the brief into account if the issues were substantively engaged with by the parties or third parties.[36] In the end, while providing some comment on the submission, the Panel declined to engage substantively with the legal issues raised by the brief. The Panel report simply stated that:

As a preliminary matter we noted that in the course of these proceedings we decided to accept for consideration one unsolicited amicus curiae brief from a Canadian NGO, the Interior Alliance.[37]

During questioning before the WTO Panel, however, the United States did source the Interior Alliance brief to contradict the claims made by the provinces that they merely tax lumber producers when they are exercise a ‘pre-existing right’ in timber. The US quoted:

as noted in the amicus curiae submission of the Interior Alliance Indigenous Nations, Canada has always claimed exclusive jurisdiction and ownership over public lands including Crown forests. As the common law of Canada states: stumpage is the price a licensee must pay to the Crown for its timber.[38]

While the brief was never substantively engaged with during the dispute, the value of the acceptance of the first Indigenous amicus brief cannot be understated. It ostensibly provides a new mechanism by which Indigenous peoples can challenge states on the basis that their policies and laws continue to discriminate against the human rights of Indigenous peoples. More importantly, it has shifted the calculation of Indigenous disadvantage from intangible notions of loss – as embodied in the narrative of policies of removal, relocation and loss of culture and language – to a quantifiable and tangible notion of injustice relating to policies that, as in the case of the Interior Alliance, unfairly favour private corporations, deny Indigenous peoples constitutional rights and prevent authentic participation in, and benefit from, international markets.

IV Conclusion

The developments regarding Indigenous peoples at the WTO are important in the broader context of public international law.[39] While the novel arguments of the Interior Alliance were not substantively engaged with by the Panel nor Appellate Body, they are of significant interest to the global Indigenous movement who have traditionally viewed international trade law as inherently inimical to the underlying values of the global Indigenous movement. Whether Indigenous peoples could seek remedy for the loss of lands and exploitation of nature resources seems unlikely within restrictive trade dispute resolution mechanisms, however equally true is:

The fact that aboriginal groups are looking to the World Trade Organisation, underscores the failure of the International Labour Organisation or the United Nations collection of institutions to effectively deal with aboriginal issues.[40]

While it would be unwise to discount the importance of the United Nations human rights system and the achievements of the United Nations in improving the status of Indigenous issues in the context of human rights, Indigenous people must also begin to carefully explore the complex legal trade agreements that states ratify and implement, in order to analyse the rights afforded to them, the consequences of trade liberalisation upon Indigenous communities and to continue to test the WTO system. As Gabrielle Marceau remarked, ‘[t]he limited domain of the WTO does not mean that the WTO Agreement exists in an hermetically sealed system, closed off from general international law and human rights law’.[41]

Indigenous peoples can make a valuable contribution to the ongoing debate about the linkage between human rights and trade.[42] After all, it is not an uncommon observation by Indigenous peoples, perennially disappointed by the antagonism of states toward the decisions of human rights supervisory bodies, to note the hypocrisy of the state in its willingness to embrace trade liberalisation as facilitated by the WTO. And in the case of amicus curiae to the WTO, though the substantive Indigenous arguments weren’t engaged with by the Panel or Appellate Body the exercise may attract the same symbolic force within member states that United Nations human rights supervisory bodies presently provide.

Developments such as the examination by Indigenous peoples of the world trading system are delivering what Foreign Policy assets as newly acquired political clout to Indigenous peoples globally.[43] According to Foreign Policy, the international law system of trade and human rights, and more directly globalization, has benefited Indigenous peoples because it has:

transformed intolerance for human rights violations, for ecological abuses and for discrimination of any kind into increasingly universal standards among governments, multilateral bodies, NGOs, and the international media.

However, it is important to note that not all Indigenous groups are recognised as aboriginal title holders, a necessary condition for engagement in international trade cases, and further, that those Indigenous peoples that enjoy such rights are a definite exception to the rule.

* This commentary is based on a paper given to the Australian New Zealand Society of International Law (‘ANZSIL’) Annual Conference in Canberra, Australia, 18-20 June 2004.

** Megan Davis BA, LLB (UQ) GDLP LLM (International Law) (ANU) is a Research Fellow and Acting Director of the Research Unit at Jumbunna Indigenous House of Learning, University of Technology Sydney. She is Principal Researcher with the Jumbunna research project: ‘Indigenous Peoples and International Trade Law’. She is also a Visiting Fellow, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. She was a United Nations Indigenous Fellow at the High Commission for Human Rights in Geneva with the Indigenous Project Team in 1999.

[1] The Estey Centre for Law and Economics in International Trade, Shadows of a Talking Circle: Aboriginal Advocacy Before International Institutions and Tribunals (2002), 5.

[2] That is, a brief filed by someone who is not a party to the case, in their capacity as a ‘friend of the court’.

[3] See, eg, Petros Mavroidis, Amicus Curiae Briefs Before The WTO: Much Ado About Nothing (2001), available online at <http://ideas.repec.org/p/erp/jeanmo/p0013.html> at 30 June 2005; Padideh Ala’i, ‘Judicial Lobbying at the WTO: The Debate over the use of Amicus Curiae briefs and the US Experience’ (2000) 24 Fordham International Law Journal 62; Richard Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’ (2004) 98 The American Journal of International Law 247; Duncan Hollis, ‘Private Actors in Public International Law: Amicus Curiae and the Case for the Retention of State Sovereignty’ (2002) 23 Boston College International and Comparative Law Review 235.

[4] For Aboriginal and Torres Strait Islander peoples in Australia, this approach is reflected in the reaction of the Australian Federal Government to the United Nations Committee on Elimination of Racial Discrimination report in 2000. See United Nations Committee on the Elimination of Racial Discrimination, Concluding Observations, UN Doc CERD/C/304/Add 101 (2000); Australian Broadcasting Commission, ‘Government Calls for UN Overhaul’, 7.30 Report, 29 August 2000; Minister for Foreign Affairs, ‘Australian Initiative to Improve the Effectiveness of the UN Treaty Committees’ (Press Release, 5 April 2001), available online at <http://www.dfat.gov.au/media/releases/foreign/2001/fa043a_01.html> at 30 June 2005. See generally Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Journal 423 (for an interesting perspective on Australia’s ‘Janus faced approach’ to human rights); Devika Hovell, ‘The Sovereignty Stratagem – Australia’s Response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative Law Review 297 (for an important analysis of Australia’s sovereignty rhetoric: ‘[i]t is a natural reflex to bridle at criticism from the outside – particularly when that criticism charges Australia with violating human rights. However, in Australia’s response to decisions by United Nations human rights treaty bodies, this defensive reflex has become more a concentrated campaign of defiance’).

[5] UN General Assembly Resolution 48/163, 21 December 1993. See also, UN General Assembly Resolution 50/157, 21 December 1995, Annex: Programme of activities for the International Decade of the World’s Indigenous People.

[6] See generally, SM Osman Rahman and Stephen Devadoss, ‘Economics of the US–Canada Softwood Lumber Dispute: A Historical Perspective’ (2002) 2 The Estey Centre Journal of International Law and Trade Policy (for a detailed historical overview of the dispute); Stephen Devadoss and Angel Aguiar Roman, ‘Recent Developments in the US – Canadian Softwood Lumber Disputes’ (2004) 5(2) The Estey Centre Journal of International Law and Trade Policy, available online at <http://www.esteycentre.ca/journal/j_pdfs/devadossroman5-2.pdf> at 30 June 2005.

[7] United States: Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (WT/DS/274).

[8] See Annex 1A: Multilateral Agreements on Trade in Goods, Agreement on Subsidies and Countervailing Measures, Marrakesh Agreement Establishing the World Trade Organization and Final Act, Legal Instruments – Results of the Uruguay Round 1(33) ILM 1144 (1994) (WTO Agreement).

[9] See WTO Appellate Body Report: Brazil—Export Financing Programme for Aircraft, AB-1999-1, WT/DS46/AB/R (99-3216), adopted by Dispute Settlement Body, 20 August 1999. In this case the Appellate Body held that a subsidy has two elements, a financial contribution and secondly it confers a benefit.

[10] WTO Appellate Body Report: United States-Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, 19 January 2004.

[11] Amicus Curiae on Behalf of the Indigenous Network on Economies and Trade (‘INET’), Certain Softwood Lumber Products From Canada: Final Affirmative Countervailing Determination and Final Negative Critical Circumstances Determination, USA-CDA-2002-1904-03 (November 12, 2002).

[12] Third Party Submission of the Interior Alliance Indigenous Nations, United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada WT/DS236 (filed April 15, 2002); Memo by Clarisse Morgan to all Parties and third parties on acceptance of Interior Alliance Amicus curiae submission, requesting comments by 8 May 2002, dated 26 April 2002; WTO (2002) United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada Report of the Panel, WT/DS236/R adopted November 1 2002 at paragraph 7.2 (Amicus referenced in final report).

[13] For background on the amicus brief, see generally The Grand Council of Treaty #3, ‘Native Leaders Join Together to Pursue Softwood Lumber Issue’ (Press Release, June 10 2002); ‘Canada to review ITC Ruling and Indigenous Brief in Lumber Dispute’ (2002) International Centre for Trade and Sustainable Development Weekly Trade News Digest, available online at <http://www.ictsd.org/weekly/02-05-07/story2.htm> at 30 June 2005.

[14] INET, Comments regarding US and Canadian Tribal Interests submitted by INET on the Proposed policies regarding the conduct of changed circumstances reviews under the Countervailing duty order on softwood lumber from Canada (C 122 839) 2.

[15] Ibid 3.

[16] 67 France 15545, April 2, 2002, Department of Commerce, International Trade Administration, [CRP 1-122-839], Notice of Final Affirmative Countervailing Duty Determination and Final Negative Critical Circumstances Determination: Certain Softwood Lumber Products from Canada.

[17] See, eg, Georg Umbricht, ‘An Amicus Curiae Brief on Amicus Curiae briefs at the WTO’ (2001) Journal of International Economic Law 778; Gabrielle Marceau and Matthew Stilwell, ‘Practical suggestions for amicus curiae briefs before WTO adjudicating bodies’ (2001) 4 Journal of International Economic Law 155; see generally Bryan Mercurio, ‘Improving Dispute Settlement in the World Trade Organisation: The Dispute Settlement Understanding Review – Making It Work?’ (2004) 38 Journal of World Trade 795–854 (for analysis of amicus curiae in the context of overall DSU Review in the WTO).

[18] Umbricht, above n 17, 1.

[19] US Import Prohibition of Certain Shrimp & Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998; for survey of facts of case and analysis of decision, see generally Joel Trachtman, ‘Decisions of the Appellate Body of the World Trade Organization Current Survey United States – Import Prohibition of Certain Shrimp and Shrimp Products’ (1999) European Journal of International Law.

[20] WTO Annex 2 Understanding on Rules and Procedures Governing the Settlement of Disputes

[21] Appellate Body Report on US-Shrimp [108]–[110].

[22] United States Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, report of the Panel, 23 December 1999, WT/DS138/R; Report of the Appellate Body (AB-2000-1), 10 May 2000 WT/DSD138/AB/R.

[23] EC – Sugar Subsidies (Panel) [amicus not accepted]; US – Lumber ITC Investigation (Panel) [amicus not accepted]; US – Lumber CVDs Final (Appellate Body) [the Appellate Body didn’t take into account two amicus received]; US – Lumber CVDs Final (Panel) [would consider any arguments raised by amici curiae only to the extent that those arguments were taken up in the written submissions and/or oral statements of any party or third party]; US – Steel Safeguards (Appellate Body) [amicus not accepted]; US – CVDs on EC Products (Appellate Body) [amicus not accepted]; US – Lumber CVDs Prelim (Panel) [one amicus accepted and three rejected]; EC – Sardines (Appellate Body)[amicus not accepted]; US – Shrimp, Article 21.5 (Appellate Body)[one amicus accepted and one amicus not accepted]; US – Shrimp, Article 21.5 (Panel) [one amicus accepted and one amicus not accepted]; Thailand – Steel (Appellate Body) [amicus not accepted]; EC – Asbestos (Appellate Body) [amicus not accepted; procedures established for acceptance of amicus]; EC – Asbestos (Panel) [two amicus accepted and two not accepted]; EC – Bed Linen (Panel) [amicus not accepted]; US – Copyright (Panel) [amicus not accepted]; US – Lead Bars (Appellate Body) [amicus not accepted]; US – Lead Bars (Panel) [amicus not accepted]; Australia – Salmon, Article 21.5 (Panel) [amicus accepted]; US – Shrimp (Appellate Body) [amicus accepted]; US – Shrimp (Panel) [amicus not accepted].

[24] See Australia – Measures Affecting Importation of Salmon – Request for the Establishment of a Panel by Canada, WT/DS18/2 (10 March 1997).

[25] Susan Esserman and Robert Howse, ‘The WTO in Trial’(2003) January–February Foreign Affairs.

[26] Gabrielle Marceau and Matthew Stilwell, ‘Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies’ (2001) Journal of International Economic Law 155, 156.

[27] Further Contribution of the United States to the Improvement of the Dispute Settlement Understanding of the WTO Related to Transparency: Communication from the United States, TN/DS/W/46, 11 February 2003.

[28] The Future of the WTO: Addressing Institutional Challenges in the New Millennium, Report by the Consultative Board to the Director General (2004), available online at <http://www.wto.org/english/thewto_e/10anniv_e/future_wto_e.pdf> at 30 June 2005.

[29] The Grand Council of Treaty #3, ‘Native Leaders Join Together to Pursue Softwood Lumber Issue’ (Press Release, June 10 2002).

[30] Delgamuukw v British Columbia (1997) 3 SCR, 1010, 111.

[31] The Grand Council of Treaty #3, ‘Native Leaders Join Together to Pursue Softwood Lumber Issue’ (Press Release, June 10 2002).

[32] The full text of the Convention is available online at <http://www.biodiv.org/convention/articles.asp> at 30 June 2005.

[33] 2004 SCC 73.

[34] Nicole Schabus, ‘Indigenous Autonomy: to fit the status quo or challenge it?’ (2004) 30, available online at <http://www.latautonomy.org/EstudioPolitico_NSchabus.pdf> at 30 June 2005.

[35] WTO Memo (26 April 2002), Clarisse Morgan to all Parties and third parties on acceptance of Interior Alliance Amicus curiae submission, requesting comments by 8 May 2002 (copy on file with author) 9.

[36] Ibid; Correspondence by Clarisse Morgan to parties and amici curiae, 24 January 2003, WTO DS 257 (copy on file with author).

[37] United States Preliminary Determinations with Respect to Certain Softwood Lumber from Canada Report of the Panel, WT/DS236/R, 27 September 2002, 7.2.

[38] Answers of the USA to the Panel’s Questions, 26 April 2002.

[39] See generally Megan Davis ‘New Developments in International Advocacy: Amicus Curiae and the World Trade Organisation’ (2003) 3 Indigenous Law Bulletin 4.

[40] Ibid 5.

[41] Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753–814.

[42] See generally, Ernst Ulrich Petersmann, ‘Time for a Global Compact for Integrating Human Rights into the Law of Worldwide Organizations: Lessons for European Integration’ (2002) 13 European Journal of International Law 621; Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 American Journal of International Law 535.

[43] Moises Naim, ‘An Indigenous World’ (2003) Foreign Policy, available online at <http://www.foreignpolicy.com/story/files/story181.php> at 30 June 2005.