First Nations FIPA Challenge a ‘David and Goliath Story,’ Says Lawyer

June 6, 2013 Updated: June 6, 2013

OTTAWA—A tiny First Nation of some 280 members could be the biggest challenge the government will face over its investment deal with the Chinese communist regime. 

The Hupacasath First Nation began three days of hearings before the federal court in Vancouver Wednesday in a move to block the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) on the grounds that the feds didn’t honour their constitutional obligation to consult the First Nation whose territorial claims could be impacted by resource projects covered by the deal. 

Brenda Sayers, a representative of the Hupacasath Nation, says they are fighting on behalf of all Canadians concerned about the environmental impact of the deal.

The legal challenge has garnered support from many quarters with money coming in through various channels, including

Civil liberties lawyer Brian Seaman has been doing fundraisers and organizing support from Calgary. 
He says one need only look to China itself to see how the regime’s state-owned enterprises (SOEs) regard environmental protection.

“Everyone who returns from China has stories about the thick, dense smog,” he said, noting that 18 of the world’s 20 most polluted cities are in China.

Canada is open to business, but that business should be on Canadian terms, he said, “not the terms of a dictatorial country that doesn’t care about the health of its own citizens, and certainly doesn’t care about the health of Canadians.”

First Nations are a particularly vulnerable group in Canada, he added, making the possible impacts of the treaty more dangerous.

With the Conservative government’s broad weakening of environmental legislation, aboriginal and environmental groups are worried that Chinese SOEs could have a more detrimental effect in Canada.

The Hupacasath will have to martial resources to take on a government that has been laser-focused on removing obstacles to resource development and promoting the economic spin-offs it can create. 

While the Hupacasath have put together a war chest to fight the case, the federal government has unlimited resources.

“It’s a real David and Goliath story,” said Seaman. “All I can say is thank God they did, because if they didn’t, who else would?”

Strong Case

The Hupacasath do have legal precedence on their side, notes Seaman, including Supreme Court decisions that clearly demand the Federal government consult First Nations over legislation that affects claimed territory. That includes treaties with third parties like the Chinese regime.

“The federal government is in trouble and they know it,” said Seaman.

The duty to consult may be stronger in the Hupacasath’s case, which never signed a treaty with the British Crown in colonial days, or with the Canadian government that came after it, further strengthening their claim to sovereignty.

Green Party leader Elizabeth May echoed that point, saying there’s a “mountain of Supreme Court decisions” backing up the Hupacasath case.

May, one of the earliest opponents of the Canada-China FIPA, called several provincial premiers asking them to intervene. She got little response, with one premier not even familiar with the deal at all.

She suggests that some of the legislative changes meant to accelerate resource development could have been made at the request of the Chinese regime, including changing the National Energy Board Act to say that Cabinet could overrule its decisions.

“There is no reason to have passed that unless the People’s Republic of China asked for it,” she said.

“China had actually complained about the Canadian Environmental Assessment Act, so [Canada] repealed it. The new act that we have is a joke, so China has a lot of clout already.”

May said ratifying the deal would increase that clout. 

While the NDP have opposed the agreement, the party did not raise it for debate during the 21 days it sat in the House of Commons in September 2012. The Conservatives could have ratified the deal any time since then, though they have yet to do so. May says there are several Tory MPs also opposed to it.

Lambs to the Slaughter

Like many others, May objects to the FIPA for several reasons. 

First, it gives Chinese companies the right to challenge the Canadian government over regulations meant to protect Canadian health, safety, and environment. She also objects to how the Chinese regime, which remains an authoritarian entity opposed to fundamental human rights, treats the Chinese people. Arbitrary arrest, secret jails, and the execution of political prisoners are still common in China.

She doubts the treaty will be as effective as Canadian business hopes because of the relative influence the Chinese regime has. While Canadian investment to China has increased, it is dwarfed by Chinese investment in Canada, which reached $23 billion last year, making Canada the top destination for Chinese foreign investment. 

May says that investment translates into influence, and the Chinese regime could use it as leverage against the Canadian government.

That is especially the case given that investment pours in through Chinese SOEs, companies directly controlled by the Chinese Communist Party. Such companies dominate the Chinese economy.

“We are like little Canadian lambs to the slaughter. Come on guys, stop being so gullible,” she said.

The Conservatives and business groups support the treaty on the grounds that it will increase trade with China and protect Canadian businesses there. Due to widespread corruption and the absence of an independent judiciary, Canadian investors have often had a rough go in China, with many losing part or all of their investment. 

The FIPA aims to address that by taking the decision out of Chinese courts and putting it before an independent tribunal. May and other critics of the deal say such tribunals favour the larger party and make decisions that are good for business but often bad for citizens.