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Consultation Under Fire as First Nation Fights Canada-China Treaty in Court

[node:summary]Hupacasath First Nation is filing an appeal in the fight to block the Canada-China Foreign Investment Promotion and Protection Act.

A small Vancouver Island First Nation is contesting a Canadian Federal Court decision involving a treaty between Canada and China that they say endangers their right to be consulted on resource projects and other matters.

Lawyers for the Hupacasath First Nation have filed an appeal with the Canadian Federal Court of Appeals to get another hearing for their case against the deal, the Canada-China Foreign Investment Promotion and Protection Act (FIPPA), which the First Nation says could threaten indigenous sovereignty. The Canadian federal government is expected to file later this month.

“This is an important case for First Nations because no court has ever ruled on when and how the Canadian government should be required to consult with First Nations on international treaties,” said Brenda Sayers, a Hupacasath tribe member and organizer.

The 300-member Vancouver Island First Nation is located on the West Coast of Vancouver Island in British Columbia. The tribe is underwriting the appeal with $228,000 it raised through the online advocacy group Leadnow, as well as the Council of Canadians.

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The Canada-China investor protection deal was finalized in September 2012. The agreement between Canada and the People’s Republic of China protects and promotes Canadian investment abroad and promotes foreign investment in Canada. In June 2013 the First Nation argued its case in court, and in August, Chief Justice Paul Crampton ruled that Hupacasath legal arguments didn’t establish that Canada should have consulted and accommodated them before ratifying the Foreign Investment Promotion and Protection Agreement with China.

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The tribe’s reasons for appealing the decision are twofold, Sayers said. First, that Crampton didn’t understand the impact FIPPA would have on Hupacasath's right to self-government; and two, that the court didn’t apply the correct legal test in determining when the Canadian government’s duty to consult with First Nations is triggered.

The initial decision was not class-action and didn’t impact any other First Nation. But First Nations should be concerned about the potential impacts of FIPPA after it’s signed, Sayers said.

Sayers used the example of a logging company that China had an interest in. If Hupacasath stopped logging in an area it determined to be sacred, then under terms of FIPPA China could sue Canada for loss of revenue, regardless of any First Nations’ rights and title in the area to be developed.

“First Nations have to understand that Canada’s obligation to First Nations rights and title are not recognized under international law so they can’t be used as a defense,” Sayers said.

The case has mushroomed since it first started last year, Hupacasath Chief Councilor Steven Tatoosh said.

“We thought it was important to protect the rights and resources in our territory, but we didn’t realize how big this would get,” Tatoosh told Indian Country Today Media Network. “We don’t want to see a situation where Chinese companies to have more rights than Hupacasath members in our own territory.”