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Hupacasath First Nation vs. Canada-China FIPA agreement | June 12, 2014

Hupacasath First Nation vs. Canada-China FIPA agreement

By Andrea Palframan

On a glorious day in Vancouver, an overflow crowd milled around in the lobby of the federal courthouse, passing around a bag of summer strawberries.

"I came because this issue really affects Canadian sovereignty," says Jan Slakov, who travelled over from Salt Spring Island to show her support for the Hupacasath First Nation as they bring their case against Canada. "This particular struggle offers an amazing opportunity to connect with First Nations, human rights activists concerned about rights in China and environmentalists. It felt very important to come."

At stake is the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA), an investment treaty that was signed 18 months ago but sits in limbo. The deail is waiting for an Order in Council to be ratified into law. The Hupacasath, a small nation from Port Alberni on Vancouver Island, charge that provisions within FIPA — namely jurisdiction over resource use in their traditional territories — should have triggered the government’s duty to consult with them under Section 35 of the Constitution.

June 10 was the second attempt by the Hupacasath and their allies to claim those Section 35 rights.

Mark Hume, writing in the The Globe and Mail, scoffed that the upshot of a Hupacasath victory in court would force Canada into an unwieldy consultation process with all 600 of Canada’s First Nations. Grand Chief Stewart Phillips, who submitted an affidavit on behalf of the Union of BC Indian Chiefs, coolly dismisses the notion that any entity, be it China or Chevron, should sidestep their duties to consult with First Nations on matters that affect their traditional territories. "Canada and B.C. …can’t simply bypass their legal obligations when it comes to consultation. Canada has no right to negotiate with Chinese investors over land it does not own."

It is an exhausting reality for First Nations —many of them impoverished and fatigued from interminable treaty negotiations. In the face of eroding democracy and encroaching oil and gas projects, their Constitutional rights must be constantly — and expensively — defended in court. "Hearings like this are just another day at the office," says Chief Phillips wryly.

Reconciliation in action

Though the powers that be may not ’get it’ when it comes to realizing reconciliation with First Nations, some ordinary citizens do. According to Hupacasath member Brenda Sayers — who is a driving force behind this challenge — people have shown extraordinary support for the court actions. Through crowdfunding promoted by Lead Now, the Council of Canadians and the Green Party of Canada, thousands of Canadians gave $20 and $30 donations to raise almost $300,000 for the court challenge.

Sayers, a former Hupacasath councilor, travelled across the country to raise awareness and funds for the appeal. "One of the things this Hupacasath case has done is to create space for MPs, MLAs, City Councils, Chief and Councils, Tribal Councils and provincial leaders to obtain legal advice on FIPA and take a stand," she said.

Supporters have collected signatures on petitions and held town halls to bring the complex and problematic elements of the FIPA to light. "It’s an issue that affects people all across Canada. The FIPA presents us with an opportunity to connect," comments Sayers.

"I’ve had more mail and emails on FIPA from my constituents than on any other issue," says Vancouver MP Don Davies. Hupacasath supporters include the Canada Postal Union, the BCTF, the Union of BC Indian Chiefs and Idle No More.

"It blew the door off the back room"

Signed in Vladivostok, Russia, back in September 2012, the agreement would allow unelected officials to adjudicate trade disputes between Canada and China in offshore tribunals. Unlike other FIPAs we’ve signed with Columbia, Peru and South Korea, this one allows either China or Canada to refuse to make a hearing public — practices which, according to Davies, "violate fundamental rule of law precepts."

While Harper tried to sneak the FIPA though the back door, Canadians have the Hupacasath to thank for sounding the alarm.

"It blew the door off the back room," says Grand Chief Stewart Phillips of the UBCIC.

"Everybody got to find out what the Harper government was up to."

"So it’s an incredible case. It’s an exciting case."

FIPA: A gateway to Enbridge?

The FIPA appeal comes during the same week as British Columbians anxiously wait for Harper to declare his decision on the Northern Gateway pipeline, expected any day now.

The concerns around FIPA’s impact on democracy and the environment become starkly clear when considering the scenario posed by the Northern Gateway. From tar sands developments to pipelines to shipping, Chinese investment in transforming B.C. into an ’energy corridor’ to Asia exceeds $30 billion.

The FIPA is a move to lock-in those infrastructure investments which China is making to bring oil and gas across the ocean. Under FIPA, Chinese companies could sue Canadians if legislation were passed to protect First Nations rights and title and, by extension, the public interest — leaving Canadian taxpayers on the hook for damages.

"If FIPA is ratified, all the hard work that has gone into fighting Northern Gateway is lost," says Sayers.

"Harper saw the pipeline resistance coming. FIPA was his end run: he wanted to make sure that no matter how much resistance to Enbridge that there was, the west would be moved. Resistance would be moot."

In a rush to ratify, feds derilect in duty

The Hupacasath aren’t alone in their trepidations about FIPA. While Ed Fast has blamed government’s failure to ratify the Canada-China FIPA on the Hupacasath case, NDP MP Don Davies believes the FIPA has been stalled because the Harper government failed, in their haste to sign the deal, to catalogue the exemptions, or ’non-conforming’ measures, China had carved out for itself.

"I believe there are many non-conforming measures. They may number in the hundreds, or the thousands," says Davies, who brought a motion before Parliament last spring to reject FIPA. "Canadian investors will be subject to far more barriers than Chinese investors in Canada. This leads to an unbalanced agreement."

Scott Harris agrees. "The benefits for Chinese investors, the protections they get in Canada, are far greater than the protections Canada would get in China. The agreement allows current discriminatory practices to be locked in, and China has far more discriminatory practices than we do."

In fact, Davies thinks the Conservative reluctance stems from evidence being brought forward that shows the government rushed the deal without reading China’s fine print. "While I have great respect for the First Nation lawsuit, I actually think that it’s the non-conforming measures that has caused the government not to ratify. When I asked DFAIT for the list of non-conforming measures that exist in China, they said they’d get back to us. They never have.”

Says Davies, "Can you imagine signing an agreement with a country as powerful economically as China, for a potential 31 years, that allows you to keep non-conforming measures in place, and you never bothered to find out what they were? That is sheer incompetence."

Win or lose, the game is up

Whatever the real reason behind the back-peddling on FIPA, the Hupacasath case has brought the Canada-China FIPA to the public attention.

Meanwhile, with investment from China proceeding apace, the FIPA holdup does not seem to be deterring speculators keen to see new fossil fuel corridors opened up to B.C.’s coast. "There’s no agreement about whether FIPAs actually stimulate foreign direct investment," says Harris. "What we do know is that they lock in very powerful corporate rights."

"Numerous countries around the world are starting to realize how problematic the Investor-State Dispute Settlement processes are," says Harris. "In Europe, the discussions around ISDS have been shut down while the European Union conducts a three month consultation process."

The Hupacasath are calling for exactly that sort of dialogue to take place here. In their fight for consultation, they have also managed to expose the mechanisms within FIPA which could change the legislative climate across the country, regardless of where public opinion lies on issues such as the Northern Gateway.

Sayers takes heart in the fact that the appeal was accepted. "I’m just amazed that we’ve made it this far," she reflects. "Hupacasath has been speaking the truth and will continue to speak the truth."

Phillips agrees. "We should have been shut down, if our arguments had no merit. It was clear from [June 10’s] hearing that Canada didn’t feel totally confident: whatever the outcome we’ll continue to fight the good fight," said Chief Phillips.

At Tuesday’s hearing, the Department of Justice recommended that the Hupacasath appeal be dismissed with costs payable. Yet, thanks to their case, Canadians have looked under the hood on FIPA, foiling Harper’s attempt to drive through what experts agree is an ill-considered and lopsided treaty. Win or lose — the Hupacasath have scored a victory for democracy.