Beginning with this post, a few further observations on the hearings, as I review my notes on the plane home. One of the mantras repeated by the complainants is that the indigenous exception is discriminatory because it crates a closed list of countries that can benefit from the exception. The "closed list" concept derives from a certain strand of MFN jurisprudence. In Belgium-Family Allowances, there was an MFN violation where a product receieved more favorable treatment if it originated from a state that had certain particular public policies. This was clearly national-origin based discrimination as the criterion in question was unrelated to the product, including how it was produced. All that mattered was the policies of the country where it was produced. Now let's fast-forward to Canada- Autos in that case there was a closed list of manufacturers who could receive the benefit in question. On its face the list was concern with who produced the product, not its country of origin. But the AB found de facto discrimination because each of the manufacturers was associated with production facilities in a limited defined set of countries. In each instance, either directly or indirectly the regulating Member was picking a choosing between countries. In neither instance was the distinction connected to the product or how it was produced. These were true "closed list" cases. But let's take a different example. Let's say for safety reasons a country requires that only uranium of a certain grade be used in nuclear reactors. Only a subset of uranium mining countries have the geological conditions that yield ore that can be processed into the grade of uranium required. In this instance the measure does not base itself on any selectivity of countries, it is based on the product and features of it that matter in terms of a non-discriminatory policy objective. But given this non-discriminatory objective the conditions imposed on the product are such that fixed, exogenous constraints lead to the result that a only sub-set of producing countries will meet them. Here it seems unreasonable that the regulating Member would be engaged in discrimination when it is willing to accept the product from any producing country that meets its legitimate safety concerns related to the product. We don't have to worry about de facto or hidden discrimination because as long as establish that the policy is legitimate and related exclusively considerations about the product and production method necessary to achieve they objective, the constraints on what countries the product can originate from are fixed in stone and cannot be manipulated or selected in any way by the regulating member. They are, in sum, fully determined exogenously. The aboriginal exception clearly functioned along the lines of this last example: it requires that the product be produced as part of the traditional way of life on an indigenous community; thus contrary to Canada's misrepresentation of the exception in its first written brief, the exception does not apply simply because the producer is of indigenous ethnic origin: it applies to products produced and to a large extent consumed as part of a traditional indigenous way of life. It is thus a product-related PPM, and not national-origin-based but product-based. The exception operates entirely indifferently to what countries products come from if they meet these PPM conditions. Thus there is no closed list, even though there are fixed exogenous constraints (the historical patterns of settlement and ways of life of indigenous peoples) on the geographical origin of the products. Here there should be no MFN violation. My analysis here is supported by the analysis of the meaning "unconditionally" in Art. I:1 not only by the Canada-Autos panel but by adopted findings in two more recent panels, Columbia-Ports and US-Poultry (China). All of these reports stand for the proposition that I:1 ought to be read so as to permit conditions that are based on policy considerations unrelated to the country of origin of the country. Any disparate impact in such situations should be explicable by the inevitable operation of these national-origin neutral policy considerations. But let's assume, for the sake of argument, that an MFN violation could be found based on the closed list theory. Obviously, the violation in question would be a violation in relation to some WTO Member excluded from the "list." As the EU has stated many times indigenous seal products from Canada produced as part of those communities traditional way of life are eligible for the exception. So there would be no denial of MFN treatment to Canada based on a "closed" list. As for Norway it incontrovertible that seal hunting has been part of the traditional way of life of the Sami people, and that they are an indigenous people settled in Norway from ancient times. Thus, if there is a closed list, Norway is on it. Hence it is impossible in principle for Canada or Norway to complain of an MFN violation based on the closed list theory. It would certainly be stretching the text of the DSU beyond the limit to allow Canada or Norway to make a violation claim on behalf of some hypothetical third country not on the supposed closed list. Also recall my comments about Canada's fanciful MFN claim on behalf of Greenland, which faces the additional non-trivial difficulty that Greenland is not a WTO Member (unlike Hong Kong-China for instance) and therefore no MFN obligation could be owed to it.