Hupacasath challenge Canada-China investment deal in court
Port Alberni's Hupacasath First Nation is taking the federal government to court to try and derail Canada's investment treaty with China until there is more consultation with First Nations.
Lawyers for Hupacasath, the Union of BC Indian Chiefs and the Chiefs of Ontario notified the Federal Privy Council Office they are seeking an injunction in mid-January; they'll file sooner if the deal is ratified earlier.
On Dec. 18, tribal lawyers sent a letter to to the Privy Council warning that they would seek to “...restrain Canada from taking steps to ratify FIPA until such consultation has taken place,” the letter noted. No reply was received therefore the tribe was commencing legal action, a follow up letter noted on Dec. 19.
The government violated its own rules, Hupacasath Councillor Brenda Sayers said. “We want Prime Minister Stephen Harper to do what he is legally obligated to do and that is to first consult with us,” Sayers said. “Consultation is written into Section 35.2 of the Constitution and they are violating the Constitution by not doing so.”
The Canada-China investor protection deal was finalized in September 2012.
The agreement is between Canada and the People’s Republic of China. It protects and promotes Canadian investment abroad through legally binding provisions as well as to promote foreign investment in Canada, a federal government website notes.
China is the world's second largest economy, said federal international trade spokesperson Rudy Husny. The agreement provides stronger protection for Canadians investing in China and facilitates domestic job creation and economic growth, he added.
The Canada-China agreement isn't an anomaly. Canada has FIPAs with 14 countries, and are actively negotiating them with 12 other nations, Husny said.
This is all well and good, Sayers said, but the devil is in the details of the agreement. The accord contains sections that interfere with governments' policies around the environment and resource extraction, therefore it requires Ottawa to consult First Nations, Sayers said.
In Hupacasath, the impact could rear itself if the tribe didn't want resources extracted from a sacred tribal site, or if nearby extraction compromised the site environmentally, she said. If China has an interest in a logging company that wants to log an area the tribe considers sacred the tribe would oppose it. But under terms of the agreement, China can then sue Canada for loss of revenue and the liability would rest with B.C. taxpayers.
This isn't an unusual provision of an agreement but what is unusual is the amount of power China is being extended inside Canada's border. “China would have more rights in Canada than any Canadian owned business,” Sayers said.
The Hupacasath is a 300-member tribe located in the Alberni Valley, in central Vancouver Island. The tribe disengaged from the BC Treaty Process four years ago. But Sayers said that by taking this course of action she's thinking ahead if the tribe ever engages again. “If we're not careful then there may be nothing left to negotiate over,” she said.
FIPA includes provisions found in other treaties that preserve sensitive sector and aboriginal rights policy flexibility, Husny said. “The Canada-China FIPA, like Canada's other FIPAs, provides a policy carve-out for government measures concerning ‘rights or preferences provided to Aboriginal Peoples,” Husny said.
Sayers said she first saw the treaty in November. An administrator who handles multiple contracts, Sayers studied the agreement in detail and foresaw impacts to Hupacasath's interests. Her council gave the go- ahead to commence legal proceedings shortly after, she said.
The tribe solicited the help of West Coast Environmental Law, Lead Now, and the Council or Canadians in its effort, Sayers said.
Edited to reflect terms of liability if tribe opposed logging of sacred site.