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Canada Approves China Investment Treaty While First Nations Consent Issue Still in Court

Officials from a Vancouver Island First Nation say that they are shocked and disappointed that Canada ratified its foreign investment deal with China even though a Canadian court has yet to rule whether or the tribe should have been consulted first.

Canadian federal minister of international trade Ed Fast announced the ratification in a short press release on Friday morning September 12. The 31-year agreement is slated to come into effect on October 1.

“The Canada-China FIPA will help ensure that Canadian companies doing business in China are treated fairly and benefit from a more predictable and transparent business environment,” Fast said. “It will give Canadian investors in China the same types of protections that foreign investors have long had in Canada.”

The Canada-China investor protection deal was finalized in 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 agreement isn't unique. Canada has FIPAs with 14 countries and is actively negotiating them with 12 other nations.

The suddenness of the development caught the Hupacasath First Nation, a 300-member tribe on the West Coast of Vancouver Island that spearheaded a court action aimed at stopping the ratification, off-guard.

“I’m shocked that the government would do this. We weren’t expecting this at all,” tribal spokesperson Brenda Sayers said. “Stephen Harper took it upon himself to make this decision instead of leaving it for the court to decide. This decision is an injustice and shows no respect for the judicial process.”

The tribe initiated and lost a federal court challenge against the agreement last year. Its appeal was heard in June and a decision is expected at the end of September or in early October.

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“We’ve been respecting due process but Stephen Harper hasn’t. We’ve been dealing in good faith and didn’t get it in return,” Sayers said. “I can’t understand why he couldn’t wait for the court decision because it is expected so soon.”

According to Sayers, the agreement contains provisions that interfere with governments' policies around the environment and resource extraction therefore it requires Ottawa to consult First Nations.

Sayers said the tribe would be affected if it didn't want resources extracted from a sacred site, or if nearby extraction would have an impact on the site. If China were to have, say, an interest in a logging company that wanted to log an area the tribe considered sacred, the tribe would oppose it. But under the agreement, China could then sue Canada for loss of revenue, Sayers said.

Even so, aboriginal people should be more concerned about the broader context of the agreement, Sayers said.

“We’re already seeing First Nations protesting resource extraction,” she told ICTMN. “But this agreement makes it more challenging for their interests to be considered. And Canada has already said it will fulfill its obligations under this agreement.”

Tribal officials are waiting for the federal court decision of its appeal. A Supreme Court of Canada appeal is possible.

“But there’s no guarantee they’ll hear it,” Sayers said.