Wednesday, September 17, 2014
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Canada-China FIPA Challenge By Hupacasath First Nation Rejected

By Dene Moore, The Canadian Press

VANCOUVER - A federal court judge has dismissed an application from a small British Columbia aboriginal band trying to stop the Canada-China free trade deal.

The judge found that the Hupacasath did not establish that the Foreign Investment Promotion and Protection Agreement with China will have adverse impacts on their aboriginal or self-government rights, and they will not get the judicial review they were seeking.

"On the contrary, I am satisfied that the adverse impacts which (the band) has identified are speculative, remote and nonappreciable," Chief Justice Paul S. Crampton wrote in the ruling posted on the court website Tuesday.

Ratification of the treaty does not contravene the Crown's duty to consult, he wrote.

Signed almost a year ago, the deal has provisions similar to 24 other foreign investment pacts Canada has signed since 1989, including the North American Free Trade Agreement with the United States and Mexico.

The Hupacasath First Nation, a community of about 300 people near Port Alberni on Vancouver Island, launched the court action saying the federal government failed to consult the band on a deal that could affect their rights and title.

The Hupacasath were seeking a declaration from the court that the federal government is required to consult with them before signing the agreement.

International Trade Minister Ed Fast welcomed the ruling.

"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," Rudy Husny, Fast's spokesman, said in an email response to a request for comment.

"The agreement will come into force once both parties complete their domestic ratification processes."

Once the deal is ratified and the legislative framework in place, it will be in force for at least 15 years.

Brenda Sayers, organizer of the Hupacasath campaign, said the decision was disappointing and band officials will meet with their lawyer next week to discuss an appeal.

"It's not something that's going to just affect Hupacasath, but all First Nations and all Canadians," Sayers said.

Critics fear the deal will give foreign corporations leverage over Canadian regulatory and resource decisions, allowing Chinese corporations to seek arbitration or even sue Canada for decisions that negatively affect their access to Canadian resources.

They warned that even provinces could lose their decision-making ability on resource development once the agreement is in place.

An initial federal environmental assessment of the deal prior to the final agreement signed last year found it "will not have an impact on Canada's ability to develop and implement environmental policies and regulations."

The Hupacasath crowd-sourced more than $160,000 to pay the legal bill, with donations from 3,000 people to an online campaign organized by the non-profit activist group LeadNow.

The band had the support of groups such as the Chiefs of Ontario, the Union of B.C. Indian Chiefs, the Council of Canadians, the Canadian Auto Workers and ForestEthics.

But the Federal Court judge noted the ruling in this case does not address any other First Nations' claims regarding the treaty.

"In these circumstances, I agree that it would not be appropriate for this court to address, in any declaration that may be made in this proceeding, 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," he wrote.

Sayers said other bands may well pursue their own court cases because the Hupacasath application did raise awareness.

"Where people paid little to no attention to trade agreements... I think more people are gaining interest in it," she said.

Stuart Trew, of the Council of Canadians, said the band will have continued support if they choose to pursue an appeal, including financial support.

"We're extremely disappointed with the decision," Trew said.

"We think there are a lot of areas where the justice, I think, underestimated the potential of these treaties to have an effect on First Nations rights and public policy."

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