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Hupacasath First Nation Council Member Brenda Sayers explains the legal challenge mounted against the Canada-China investment treaty in Hamilton, Ontario.

Judge Throws Out Hupacasath First Nation's Legal Challenge to Canada-China Investment Treaty

Wawmeesh Hamilton
August 30, 2013


A federal court justice has rejected the legal challenge of a Vancouver Island First Nation to stop the Canada-China free trade deal, saying that the group did not make a case for consultation.

Hupacasath First Nation did not establish that Canada should have consulted and accommodated them prior to ratifying the Foreign Investment Promotion and Protection Agreement with China, ruled Chief Justice Paul Crampton.

“The potential adverse impacts ... are nonappreciable and speculative in nature. I also find that HFN has not established the requisite causal link between those alleged potential adverse impacts and the CCFIPPA,” Chief Justice Paul Crampton noted in his ruling on August 26.

“The ratification of the CCFIPPA by the Government of Canada without engaging in consultations with HFN would not contravene the principle of the honor of the Crown or Canada’s duty to consult HFN before taking any action.”

It was a decision welcomed by the Canadian government and denounced by aboriginal leaders. The Government of Canada welcomes the decision.

“The decision supports Canada’s position that the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) respects its obligations and does not adversely impact the rights of Aboriginal peoples,” federal trade minister Rudy Husny noted in a statement.

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. The Hupacasath argued their case in June. 

Tribal officials will huddle with their lawyers to determine whether to appeal.

"We are not surprised, though we are deeply disappointed with the decision as we firmly believe the FIPA will have a profound impact on our inherent indigenous rights,” said Council Member Brenda Sayers, who organized to tribe's legal effort. "The agreement will come into force once both parties complete their domestic ratification processes."

The 300-member tribe from the West Coast of Vancouver Island has until the end of September to decide whether to appeal.

The Union of BC Indian Chiefs, which supported the Hupacasath challenge, swiftly condemned the decision, in particular the justice's assertion that there is no causal link between FIPA's impact on aboriginal rights.

“First Nations leadership across this country are facing a federal government who stated in court that they do not need to nor ever intend to ever consult any First Nation regarding any trade agreement,” Grand Chief Stewart Phillip said in a statement. “The Court responded [that] this total lack of consultation 'would not contravene the principle of the honor of the Crown or Canada's duty to consult'. That is absurd, unconscionable and incredibly offensive.”

The challenge wasn't a class action involving other tribes, therefore the ruling is confined to the Federal Government's duty to consult with the Hupacasath First Nation specifically.

“It would not be appropriate for this Court to address ... the issue of whether a duty to consult is owed to other First Nations, even if the formidable practical impediments to workable and meaningful consultations with the over 600 First Nations bands that exist across the country could be overcome,” Crampton noted.

Assembly of First Nations National Chief Shawn A-in-chut Atleo called the decision disappointing but said it did not change the fundamental obligation of the Canadian government to adhere to the principles of the United Nations Declaration on the Rights of Indigenous Peoples.

“Any domestic or international agreements that attempt to ignore or deny these rights and principles will be open to challenge and will create legal, political and economic uncertainty for all parties involved. First Nations have warned the federal government that it has a specific responsibility to consult and accommodate First Nations on the development of any international treaties and that all matters of Treaty and First Nations rights and responsibilities require our direct involvement,” Atleo said in a statement. “First Nations will use all available avenues to ensure these rights and commitments are upheld, respected and implemented.”