The appeal of the decision to dismiss Hupacasath First Nation’s demand for consultation on the Canada/China Foreign Investment Promotion and Protection Agreement (CC-FIPA) was heard June 10 in Vancouver.
Justices Stratas, Scott and Marc Nadon, who readers will remember as Prime Minister Stephen Harper’s recent controversial and ill-fated appointment to the Supreme Court of Canada, heard arguments from Hupacasath’s lawyers Mark Underhill and Cathie Boies-Parker and lawyers representing the Crown.
“I was really happy to see the courtroom was packed and that there were people sitting outside because there was no room left,” said Brenda Sayers, who is spearheading the challenge on behalf of Hupacasath. She said it was good for the three judges to see how much interest this case has generated.
In the gallery were Hupacasath Chief Councillor Steve Tatoosh, Nuu-chah-nulth Tribal Council President Debra Foxcroft, and President of the Union of British Columbia Indian Chiefs, Grand Chief Stewart Phillip.
This international treaty has caused considerable concern to Canadians, because this FIPA is different, said Sayers. The stakes are significant and worrying. There are decades of obligation, extra protections provided to China, and potential, daunting damages that could put taxpayers on the hook for millions.
“Everyone should be concerned, because their grandchildren and their great grandchildren are going to be living with the effects,” Sayers said.
Thousands of dollars have been donated to the Hupacasath challenge, and many have expressed their appreciation to the small nation for taking it on. “I just can’t emphasize enough how grateful Hupacasath is for the overwhelming support from across Canada,” said Sayers.
“I think it’s pretty incredible that this case has got to this point,” said Phillip. “It gives me hope. We must remember that it was all done behind closed doors… This case blew the door off the back room, so to speak. Everybody got to find out what the Harper government was up to. So it’s an incredible case. It’s an exciting case.”
Hupacasath’s submission in the Federal Court of Appeal was that the lower court erred when it dismissed Hupacasath’s call for consultation before the CC-FIPA is ratified. The lower court decided Hupacasath provided no causal link to indigenous peoples’ title and rights that would trigger the duty to consult and that any potential adverse impact to the first nation regarding CC-FIPA was “non-appreciable and speculative in nature.”
Underhill, however, worked to convince the court that the very forward-looking nature of the 31-year Canada/China deal triggered the duty to consult. CC-FIPA would bind the first nation and constrain the power of Canada to protect Aboriginal rights and title.
Underhill said Hupacasath is not asking the court to quash the CC-FIPA, only to allow the first nation the opportunity to talk to Canada about their concerns and for Canada to respond. There is a low bar set to trigger the duty to consult, he said, and the question for the court was not how much consultation was required, only that the duty exists.
Hupacasath is a first nation that asserts claim to about 232,000 hectares of territory around Port Alberni on Vancouver Island and is without a treaty. So far, there is no capital investment from China in Hupacasath territory.
CC-FIPA is a bilateral investment treaty that would pave the way for billions of dollars in capital investment from China in Canada and provides significant protections of those investments. If Canadian policy or legislation adversely affects the profits from those investments, China can sue Canada for damages.
Sayers told Ha-Shilth-Sa that if a China State corporation wanted to log Hupacasath traditional territory, for example, China could sue Canada if Hupacasath stands in the way. And what of a future treaty for Hupacasath? What negotiation restrictions would Canada bring to that table?
“We aren’t interested in accommodation,” said Sayers. “We want to protect the land. We want to protect the resources. Our interest is for future generations so that they have a way to sustain themselves, and that they have the same protected rights enshrined in section 35 of the Constitution and other rights as we have today. They have the same rights to clean air, clean water, and a healthy environment. This agreement will remove those from us.”
Canada, said its lawyers, would, of course, live up to its international obligations, pay whatever damages awarded to China, because Canada has an obligation to treat Aboriginal rights in an appropriate manner. Past experience, however, leaves Sayers, Foxcroft and Phillip skeptical about fair dealing from Canada, particularly a Harper government, said Phillip, and especially if the damages are in the hundreds of millions of dollars. Think Enbridge, said Sayers.
Underhill says logic and common sense suggests CC-FIPA would change the balance set out in the Haida decision for consultation, that Canada would certainly consider its international obligation when negotiating with Hupacasath, and be constrained, its options limited, to avoid adversely impacting China investments.
Outside the courtroom, Sayers balked at Canada’s assertion that any infringement of Hupacasath’s rights is hypothetical. Canada successfully argued to the lower court CC-FIPA demonstrated no immediate threat to Hupacasath rights to trigger consultation. There was only layer upon layer of speculation from the nation.
“Canada knows that it will happen or has the opportunity that it will happen because they put the clause in the Maa-nulth agreement,” Sayers said. Underhill had pointed to language in the Maa-nulth Treaty that states those five first nations would be bound by any new international agreement with Canada. If a Maa-nulth Nation enacted a measure that precludes Canada from performing a legal obligation, the First Nation must remedy that measure.
“Canada is supposed to consult with them before entering into any international agreement,” said Sayers. Underhill said there was consultation with the provinces on CC-FIPA, but not with any First Nation, not even Tsawwassen and Dena Tha on whose territory there is already China investments. There has been no assessment of the impact of CC-FIPA on First Nations, Underhill told the court.
Justice Scott emphasized the word “new” in that language in Maa-nulth. Underhill argued that the CC-FIPA was new in that it is different than the FIPAs that have come before.
Justice Stratas asked whether consultation would be triggered down the road when “something happened” that would impact Hupacasath rights and title, but Underhill said ratification of the FIPA would lock in Canada and all “sub-nations”.
This is the last chance for Hupacasath, said Underhill. There is nothing to be done once Canada ratifies the agreement. Even if there are later opportunities for consultation, the FIPA will be unchallengeable. Consultation, Underhill reminded the court, must be done early.
Sayers said a decision is not expected on the appeal until late August or early September. She is pleased that the Hupacasath challenge has raised awareness on this complex topic and created some “space” to allow decision-makers time to review the agreement.
“We do know there is some dissension in Cabinet about the Canada/China FIPA,” said Sayers. “Well, they’ve had a year-and-a-half now.
“So what people should be doing is writing their MPs and saying ‘what is your stand on this important subject that’s going to affect our future for 30 years?” And that’s something that our lawyer Mark Underhill kept reiterating. This is a 30-year trade agreement.”
Sayers said when Hupacasath chief and council looked at the CC-FIPA, they didn’t want their children and grandchildren to say ‘why didn’t you do something about it when you could have.’
“’You were in a position where you could have altered or change the direction of it and now this is what we have to live with.’ And this is what we are asking people to do. Start speaking up for the future generations.”
NTC’s Debra Foxcroft said that’s why she came to court that day, to support Hupacasath and protect the future for the children.
But whatever the outcome, first nations will continue to fight the good fight, said UBCIC’s Stewart Phillip.
“We’ll never stand down until we achieve full recognition of our indigenous rights… If this is in our favor, than that’s another step forward. If it’s not, it’s simply another day at the office.”
