Court strikes down Hupacasath FN challenge over FIPA

The Federal Court of Appeal has dismissed a legal challenge by Hupacasath First Nation to FIPA.

The Federal Court of Appeal has dismissed a legal challenge by Hupacasath First Nation to the Canada-China Foreign Investment Promotion and Protection Agreement.

The court delivered its reasons for judgment on Jan. 9, upholding the August 2013 federal court decision by Justice Paul S. Crampton.

With fundraising support from Leadnow, a social justice organization, Hupacasath challenged FIPA based on Canada’s failure to consult with First Nations whose constitutionally-protected rights and title may be affected by the agreement.

The judgment concluded that the federal court was correct in ruling that the appellant had failed to establish any “causal relationship” between the effects of FIPA on Hupacasath rights and interests, and that any effects on Hupacasath were “non-appreciable” and “speculative.”

Former Hupacasath councillor Brenda Sayers has handled the FIPA challenge from the beginning. She told Ha-Shilth-Sa that, after wading through the legal language, both courts focused on one oversimplified issue.

Under FIPA, foreign investors in either country would have legal recourse in the event changes to existing laws caused financial burden. Sayers noted that under a similar agreement (the North American Free Trade Agreement), a private company, Lone Pine Resources, is currently suing the Province of Quebec for losses incurred after the province imposed a moratorium on fracking.

“But because China does not have any investment in Hupacasath traditional territory, the court ruled that it would be ‘speculative’ to consider consequences of the agreement,” she said.

“We had hoped the court would find that Ottawa had failed to consult with First Nations, and we had hoped there would be a requirement to incorporate aboriginal rights and title within the body of FIPA.”

The Hupacasath chief and council must now decide whether to proceed to the next level, the Supreme Court of Canada. The legal team will decide whether it is worth it to pursue. That will require a new round of fundraising to cover the cost.

 

Reprinted with permission from Ha-Shilth-Sa.