Hupacasath First Nation Heads to Court Over Canada-China Treaty, Holds June 5 Day of Action
A small Vancouver Island First Nation is taking the federal government to court in an effort to stall Canada's investment treaty with China because of an alleged lack of consultation with First Nations.
The Canada-China Foreign Investment Promotion and Protection Agreement, known as FIPA, was finalized in September 2012.
The agreement is between Canada and the People’s Republic of China and would run for 31 years. It protects and promotes foreign Canadian investment via legal measures and promotes foreign investment in Canada, a federal government website notes.
Lawyers for The Hupacasath First Nation of western Vancouver Island and Canada will deliver their legal argument on June 5, 6 and 7 in Federal Court in Vancouver.
The 300-member tribe enlisted the help of West Coast Environmental Law, Lead Now and the Council of Canadians in an effort to raise funds to fight the case. To date, $150,00 has been raised, said Hupacasath Council Member Brenda Sayers. The tribe raised funds through donations and events such as a community barbecue on May 26, which brought in $1,200. The tribe has also received support from groups including the B.C. Federation of Labour and the Council of Canadians.
The government violated its own rules by not consulting First Nations about the agreement, Sayers told Indian Country Today Media Network.
“Consultation is written into Section 35.2 of the Constitution and they are violating the Constitution by not doing so,” she said. “We want Prime Minister Stephen Harper to do what he is legally obligated to do.”
Sayers first saw the treaty last November. She handled multiple agreements during her time as a school administrator, band councilor and business owner. Sayers studied the agreement in detail and foresaw negative impacts to her tribe's interests. Her council gave the go-ahead to commence legal proceedings shortly afterward, she said.
Last December the Hupacasath First Nation, joined by the Chiefs of Ontario and the Union of B.C. Indian Chiefs, notified the federal government that they would seek an injunction to stop the government from signing the treaty.
According to Sayer, the accord contains sections that interfere with governments' policies related to the environment and resource extraction that require Ottawa to consult First Nations whose territories are affected. In Hupacasath, the effect could be felt 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 were to have an interest in a logging company that wants to log an area the tribe considers sacred, the tribe would oppose it. But under the terms of the agreement, China could then sue Canada for loss of revenue, and the liability would rest with B.C. taxpayers.
This provision is common in such trade agreements, but what is unusual is the amount of power that China is being afforded inside Canada's border.
“China would have more rights in Canada than any Canadian-owned business,” Sayers said.
The agreement provides better protection for Canadian investment in China and stimulates domestic job creation and economic growth, said federal international trade spokesperson Rudy Husny.
“Creating a secure, predictable environment for Canadian investors is why, since 2006, our government has concluded or brought into force with 14 countries, and are actively negotiating with twelve others,” Husny said.
"FIPA considers First Nations' interests by including measures that preserve policy flexibility for certain sectors and activities, including rights or preferences provided to aboriginal peoples,” Husny said, adding that it and similar agreements provide “a policy carve-out for government measures concerning 'rights or preferences provided to aboriginal peoples.' ”
The Hupacasath withdrew from the B.C. Treaty Process four years ago, Sayers said. Enforcing consultation with First Nations protects Hupacasath interests if they ever resume negotiations.
“We're not against trade with China,” she said. “But if we're not careful, there may be no resources left to negotiate over.”
A National Day of Action is being held Wednesday June 5 across Canada. The video below has more details on that.
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