Hupacasath challenge Canada-China investment deal in court

Alberni's Hupacasath First Nation plans to challenge the Canada-China investor protection deal in court because of lack of consultation

Port Alberni’s Hupacasath First Nation is taking the federal government to court to try and derail Canada’s investment treaty with China until there is more consultation with First Nations.

Lawyers for Hupacasath, the Union of BC Indian Chiefs and the Chiefs of Ontario notified the Federal Privy Council Office they are seeking an injunction in mid-January; they’ll file sooner if the deal is ratified earlier.

On Dec. 18, tribal lawyers sent a letter to to the Privy Council warning that they would seek to “…restrain Canada from taking steps to ratify FIPA until such consultation has taken place,” the letter noted. No reply was received therefore the tribe was commencing legal action, a follow up letter noted on Dec. 19.

The government violated its own rules, Hupacasath Councillor Brenda Sayers said. “We want Prime Minister Stephen Harper to do what he is legally obligated to do and that is to first consult with us,” Sayers said. “Consultation is written into Section 35.2 of the Constitution and they are violating the Constitution by not doing so.”

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, a federal government website notes.

China is the world’s second largest economy, said federal international trade spokesperson Rudy Husny. The agreement provides stronger protection for Canadians investing in China and facilitates domestic job creation and economic growth, he added.

The Canada-China agreement isn’t an anomaly. Canada has FIPAs with 14 countries, and are actively negotiating them with 12 other nations, Husny said.

This is all well and good, Sayers said, but the devil is in the details of the agreement. The accord contains sections that interfere with governments’ policies around the environment and resource extraction, therefore it requires Ottawa to consult First Nations, Sayers said.

In Hupacasath, the impact could rear itself if the tribe didn’t want resources extracted from a sacred tribal site, or if nearby extraction compromised the site environmentally, she said. If China has an interest in a logging company that wants to log an area the tribe considers sacred the tribe would oppose it. But under terms of the agreement, China can then sue Canada for loss of revenue and the liability would rest with B.C. taxpayers.

This isn’t an unusual provision of an agreement but what is unusual is the amount of power China is being extended inside Canada’s border. “China would have more rights in Canada than any Canadian owned business,” Sayers said.

The Hupacasath is a 300-member tribe located in the Alberni Valley, in central Vancouver Island. The tribe disengaged from the BC Treaty Process four years ago. But Sayers said that by taking this course of action she’s thinking ahead if the tribe ever engages again. “If we’re not careful then there may be nothing left to negotiate over,” she said.

FIPA includes provisions found in other treaties that preserve sensitive sector and aboriginal rights policy flexibility, Husny said. “The Canada-China FIPA, like Canada’s other FIPAs, provides a policy carve-out for government measures concerning ‘rights or preferences provided to Aboriginal Peoples,” Husny said.

Sayers said she first saw the treaty in November. An administrator who handles multiple contracts, Sayers studied the agreement in detail and foresaw impacts to Hupacasath’s interests. Her council gave the go- ahead to commence legal proceedings shortly after, she said.

The tribe solicited the help of West Coast Environmental Law, Lead Now, and the Council or Canadians in its effort, Sayers said.

reporter@albernivalleynews.com

Twitter.com/AlberniNews

 

Edited to reflect terms of liability if tribe opposed logging of sacred site.

Just Posted

Rollin Art Centre open now

Make sure to renew your Community Arts Council membership

BCHL: Bulldogs take the ice after trade deadline

Alberni team picked up one loss, one win with new roster

Alberni’s Warren Lee earns second black belt

Lee is one of four Gracie Jiu-Jitsu black belts in Canada

Maa-nulth Nations sign historic agreement with B.C.

Deal puts nations on level playing field with province in post-treaty talks

City of Port Alberni rehires Ken Watson

Former city manager back for short term

WATCH: Rainy days in the Alberni Valley

Showers are expected to continue for the next week

Winter storm coming to B.C. this weekend

The bets are on as to how much snow the province will actually get in the coming days

B.C. civil rights group files complaint about RCMP arrest of man who later died

Dale Culver, a 35-year-old Indigenous man was arrested in Prince George last July

Lawyer says former B.C. government aide ‘barely guilty’ in ethnic vote scandal

Brian Bonney pleaded guilty to a breach of trust charge

Quite a few tears as homemade quilts distributed to residents of Ashcroft Reserve, Boston Flats affected by last summer’s fire

Quilters in B.C. and Alberta worked through the summer and fall to create more than 100 quilts.

Island Health: No need for alarm in wake of Victoria needle-prick incidents

Three incidents in a week prompts meeting between health authority, city service providers

B.C. coast loggers celebrate history, hope for improvement

Truck Loggers Association awaits B.C. NDP government’s new direction

Global Affairs aware of report of two Canadians kidnapped in Nigeria

The foreigners were heading south from Kafanchan to Abuja when they were ambushed around Kagarko

Whistler role in potential Calgary Olympic bid would be welcome: IOC

Calgary is mulling whether to vie for the 2026 Games, and could look to facilities in B.C.

Most Read