A federal court justice has rejected the legal challenge of the Hupacasath First Nation to stop the Canada-China free trade deal.
The Hupacasath did not establish that Canada should have consulted and accommodated them prior to ratifying the Foreign Investment Promotion and Protection Agreement with China.
“The potential adverse impacts ..are nonappreciable and speculative in nature. I also find that HFN has not established the requisite causal link between those alleged potential adverse impacts and the CCFIPPA,” Chief Justice Paul Crampton noted in his ruling on Aug. 26.
“The ratification of the CCFIPPA by the Government of Canada without engaging in consultations with HFN would not contravene the principle of the honour of the Crown or Canada’s duty to consult HFN before taking any action.”
The Government of Canada welcomes the decision.
“The decision supports Canada’s position that the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) respect its obligations and does not adversely impact the rights of Aboriginal peoples,” federal trade minister Rudy Husny noted in a statement.
The decision was dismissed with costs, but the Hupacasath’s lawyer is set to argue that the case was in the public interest therefore costs should not apply, tribal court organizer Brenda Sayer said. “If we appeal then the cost issue will be put on hold,” she added.
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.
The tribe didn’t lose the case, but rather has been forced it to be more resourceful.
“There is no such word as “lose” in my vocabulary,” Sayers said.
Sayers said her interpretation of the setback is that another solution needs to be applied, or that there is another way to do things. “ A larger challenge has been placed in front of me,” she said.
Tribal officials will huddle-up with their lawyers to determine whether or not they will appeal the decision. “We are not surprised though we are deeply disappointed with the decision as we firmly believe the FIPA will have a profound impact on our inherent indigenous rights,” Sayers said. “The agreement will come into force once both parties complete their domestic ratification processes.”
The tribe has until the end of September to decide if it will appeal.
The challenge wasn’t a class action involving other tribes, therefore the ruling is confined to the Federal Government’s duty to consult with the Hupacasath First Nation specifically. “It would not be appropriate for this Court to address…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,” Crampton noted.
Edited to reflect costs being awarded.