The Canadian Federal Court of Appeal has struck down a B.C. First Nation’s bid to derail the Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA), a controversial treaty that First Nations say could compromise their indigenous rights.
The court released a 41-page judgment against Hupacasath First Nation on January 9 that upheld the federal court’s August 2013 decision.
“The Federal Court’s overall conclusions—that the appellant had not established a causal relationship between the effects of the foreign investment promotion and protection agreement upon the appellant and its asserted rights and interests and that any effects upon the appellant were ‘non-appreciable’ and ‘speculative’—were predominantly factual in nature and deserve deference. These conclusions were amply supported by the evidentiary record,” Justice Stratus noted in the reasons for judgment.“Accordingly, Canada did not have to consult with the appellant before entering into the foreign investment promotion and protection agreement. Therefore, I would dismiss the appeal with costs.”
The tribe’s legal bill is expected to be more than $100,000 but is covered by crowd funding raised through Leadnow.
The Hupacasath are a 300-member tribe located on the West Coast of Vancouver Island.Hupacasath tribe member Brenda Sayers, who has spearheaded the case, said she was not surprised at the decision.
“We are certainly disappointed,” Sayers said. “But given that Stephen Harper ratified FIPPA last September while this case was still before the courts, well something like this was to be expected.”
The recent Tsilhqot’in decision granted a declaration of aboriginal title to the Tsilhqot'in people in the B.C. Interior. It also asserted that governments cannot interfere with the Tsilhqot’in’s use of the lands and resources without their consent.
But the case had no bearing on the appeal decision.
“I conclude that Tsilhqot’in Nation has not changed the law concerning when Canada’s duty to consult is triggered,” Stratus noted.
The Hupacasath legal team will be poring over the decision for the next three weeks to determine if a Supreme Court challenge is in order. If the case proceeds, a new fundraising campaign will be undertaken, Sayers said.
The decision noted that the concerns raised by the Hupacasath about potential impacts of FIPPA on them were speculative, something Sayers adamantly disagrees with.
In Hupacasath territory, the fallout could arise if the tribe didn’t want resources extracted from a sacred tribal site, she said. If China had an interest in a logging company that wanted to log a tribal sacred site the tribe would oppose it. Under terms of the agreement China could then sue Canada for loss of revenue. Other levels of government could feel the impact as well, Sayers said.
“The same principle would apply to a municipality that wanted to protect its water source from such a Chinese company that intended to log too closely to it,” she said. “This provision will have a chill effect on government's crafting new or improved regulatory standards.”