A court action launched by Hupacasath First Nation is the last remaining obstacle to the Canada-China Foreign Investment Protection Agreement.
In a vote that took place in the House of Commons on April 22, federal Conservatives, supported by the members of the Liberal Party, rejected an NDP motion to put off ratifying the bill, which was passed in the House last fall.
On Jan. 18, with support from organizations like the Council of Canadians, Leadnow, the Chiefs of Ontario and the Union of B.C. Indian Chiefs (UBCIC), Hupacasath filed a motion in federal court to stop the treaty, based on Ottawa’s failure to consult with First Nations as required under Section 35.2 of the Canadian Constitution.
Former Hupacasath councillor Brenda Sayers, who continues to spearhead the legal initiative, said the federal case has been fast-tracked.
“There’s been a lot going on behind the scenes,” Sayers said. “There will be a three-day court case some time in late May or early June.”
Hupacasath is represented by Mark Underhill of Underhill Boies Parker Law Corp. They don’t come cheap, but Sayers said Hupacasath would not bear the full cost of the case.
“From the beginning, I’ve had the idea that that the cost should be paid for by a national fundraising campaign. We’ve put together a video clip and we’ve been able to raise a lot of money. We’ve managed to raise $116,000 to date (April 24). Our goal is to raise $150,000. That should cover the cost of the entire court action.”
Watch the video: https://www.youtube.com/watch?feature=player_embedded&v=bi6IWGzeJTQ
Back in January, UBCIC President Stewart Phillip said there is a growing recognition in the non-aboriginal community that Canada’s indigenous people (the “Thin Red Line”) represent the last layer of protection against the destruction of our natural resources by multinational corporations. Following the defeat of the NDP motion on April 22, Green Party leader Elizabeth May said that is very much the case with FIPA.
“The only hope we have now is with the Hupacasath First Nations,” May told reporters after the session.
“We’ve had a wonderful response from the Canadian public,” Sayers said. “We recently had an Idle No More event organized by Comox First Nation where they raised $2,700. That $2,700 was matched by the Comox Chamber of Commerce.”
This week, Phillip said UBCIC was not directly involved with the NDP motion, which was brought forward by Vancouver-Kingsway MP Don Davies, but he reaffirmed his organization’s commitment to the fight.
“We are still supporting Hupacasath in their legal endeavor to halt the FIPA agreement,” he told Ha-Shilth-Sa. “We’re definitely not standing down. There is too much at stake here.”
While the case has yet to go before a federal judge, the main task of examining witnesses and taking testimony has already been accomplished, Sayers said. Both sides are now preparing their legal arguments.
“We have finished the cross-examination process that was done earlier this month. The lawyers will present all the material,” she said.
Canada has FIPAs with more than a dozen sovereign nations. The treaties are created to protect investors from unreasonable actions by the host government on each side, but opponents argue that, under the terms of the Canada-China agreement, China could swallow up Canadian resource companies and be subject to lesser environmental and regulatory controls.
Sayers said the length of the agreement makes it especially worrisome.
“It’s a 15-year agreement with one year’s [exit] notice. But whatever Chinese companies are already here will get a 15-year extension.”
By comparison, other FIPAs have a much shorter term. Even the North American Free Trade Agreement has a six-month exit clause.
“Then there’s the investor-state arbitration piece, which none of the others have, except NAFTA,” Sayers said.
Under this provision, the investor/state may sue the host country for financial losses incurred as the result of policies enacted by the government. Opponents fear this means Canada or its individual provinces could be sued for imposing any new regulations that threatened the profitability of Chinese companies operating on Canada soil.
Currently, the China Investment Corporation is seeking to purchase a 12.5 per cent stake in Island Timberlands. Hupacasath recently won a long-awaited accommodation stemming from the removal of privately-owned timber located in their traditional territory from Tree Farm License 44.
Sayers said the removal from TFL 44 gave Hupacasath less protection against loss of sacred sites and culturally-significant resources, and FIPA could give China-backed companies even further license to violate aboriginal rights and title.
That being said, however, the current legal action by Hupacasath does not flow from the Island Timberlands/TFL 44 case, she added.
“It’s the overall protection of our [future] treaty. Hupacasath does not have a treaty, but when the day comes, we would like to have resources to access to sustain our future generations.”
FIPA opponents have also noted that in the mid-1800s, in an era now remembered as the time of Unequal Treaties, China was saddled with trade agreements that gave colonial powers the right to operate under their own legal codes and practices.
Sayers said she only learned about the Unequal Treaties during the FIPA process. But the fear now, she explained, is that, with China soon to overtake the Unites States as the world’s largest economy, the roles will be reversed and Canadian resources will be at the mercy of an economic superpower.
As a small First Nation pitted against overwhelming forces, Sayers said Hupacasath has chosen its legal battleground carefully.
“Our fight isn’t against China. What we’re focused on is the federal government. The federal government failed to consult with us as required under the Constitution. We’re not against trade, but on treaties that affect our aboriginal rights and title, we believe strongly that we should be consulted.”