A/HRC/33/42 68. In their responses to questionnaires, a number of States pointed to the approach adopted by the European Union, which is to a degree reflected in chapter 8 of the Comprehensive Economic and Trade Agreement between Canada and the European Union, as a step towards reforming dispute resolution systems. Among its improved features is a revised model for appointing State party-nominated arbitrations, eliminating conflicts of interest arising from arbitrators who also act as council and expert, and gaining access to a full appellate review after awards have been rendered. The approach of Brazil in its recent bilateral investment treaties, which do not provide access to investor-State dispute settlements and instead rely on a combination of mediation and diplomatic approaches and State to State arbitration, is also noteworthy. 69. In addition to acknowledging the need to reform dispute resolution systems, States emphasized the need to guarantee the regulatory space necessary for the realization of indigenous peoples’ rights, including the requirement for prior consultation with the objective of free, prior and informed consent. The responses suggest that the intent and expectation of home and host States when entering into international investment agreements was not to place limitations on their ability to fulfil indigenous peoples’ rights, the presumption being that the State maintains the right to regulate without facing compensation demands and that, where necessary, protections afforded to investors must be balanced in a proportionate manner against the duty to protect indigenous peoples’ rights. The Special Rapporteur encourages more States to respond to her questionnaires, which are available in English, French and Spanish and will inform her final report on the issue. VI. Trans-Pacific Partnership 70. In 2015, the Trans-Pacific Partnership agreement was signed by 12 countries from three continents that, together, account for a large part of global trade. Of those countries, 11 have significant populations of indigenous peoples, a growing number of which are negatively affected by large-scale foreign investment projects in their territories. Those peoples have expressed their concerns in relation to the lack of protections for their rights vis-à-vis those of foreign investors, and the imbalance in remedies. They have also criticized the absence of consultation in the negotiation of the Partnership and the lack of any human rights impact assessments. As pointed out by the Waitangi Tribunal, the failure to adequately consult on the Partnership “harms the relationship [with indigenous peoples] and increases the probability of a low-trust and adversarial relationship going forward”. 21 In that regard, indigenous peoples are demanding good-faith consultations prior to ratification as they fear that, unless adequate protections are included, the Partnership will facilitate projects and activities that lead to further conflict and serious violation of rights to lands, territories and natural resources, including their rights to traditional knowledge. 71. The Trans-Pacific Partnership includes no reference to human rights. While it does refer to the right to regulate in relation to “environmental, health or other regulatory objectives”, it qualifies this by holding that measures have to be “consistent with” its investment chapter, effectively reducing the scope of this right to that determined by expansive interpretations of broad investment protections. 22 21 22 16 See Waitangi Tribunal report on the Trans-Pacific Partnership (pre-publication version), available from https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_104833137/ Report%20on%20the%20TPPA%20W.pdf. See Trans-Pacific Partnership, article 9.15, available from https://ustr.gov/sites/default/files/TPPFinal-Text-Investment.pdf.