On January 9, 2014, the Federal Court of Appeal gave its judgment in the Hupacasath v. Minister of Foreign Affairs case. The Court determined that Hupacasath did not need to be consulted before the Canada China Foreign Investment Promotion and Protection Agreement (CC FIPPA) was ratified by Canada.
The Federal Government on September 12, 2014 ratified the deal without waiting for a court decision. The case had been argued on June 10, 2014 and Canada had not given notice to Hupacasath they had ratified the deal. They had the Crown prerogative to do so, but the Honour of the Crown was sullied.
The Court of Appeal gave its decision knowing the agreement had been ratified and stated that the ratification had no effect on its analysis. The court made no comment on Canada’s actions which I think was a glaring oversight on their part. Regardless, it did affect the case and Hupacasath’s ability to obtain the most obvious remedy for violation of their constitutional rights that was to allow time for consultation before ratification had the decision been made in their favour.
Hupacasath had been seeking a declaration to invalidate the decision of Canada to ratify the CC FIPPA without consulting Hupacasath. They also sought to restrain Canada from taking steps to bring the CC-FIPPA into affect.
During arguments in the Court of Appeal, an argument that the Federal Court had no jurisdiction to hear a case that involved the exercise of prerogative power. This had not been raised at the lower court. The court took 23 pages to explore its jurisdiction and concluded that the court does have jurisdiction over this matter. 16 pages reviewed the important issues regarding Hupacasath’s rights. Interesting contrast as to what is important.
The court determined that the only question they had to answer was whether there was a duty to consult.
The decision really brings out nothing new. In fact, they spend a lot of time repeating what the Federal Court said. The court reviewed the existing law under Rio Tinto, Haida and Mikisew and applied it as far as the duty to consult and what triggers the duty to consult.The court concludes that Tsilhqot’in does not change the duty to consult.
The court relied fully on the findings of fact of the Federal Court and emphatically reiterated they would not interfere in those findings. In my mind they were trying to avoid an appeal to the Supreme Court of Canada. This meant they relied on the expert provided by Canada that determined there would be no impacts on rights by the CC FIPPA and ignored the expert Hupacasath produced.
The court explored the test for a trigger on the duty to consult of whether there was a causal connection between the ratifying of CC FIPPA and potential adverse affects on Hupacasath rights. There conclusions were that the affects raised by Hupacasath were “non appreciable and speculative”.
The court said they realized there would be more Chinese investment in Canada because of CC FIPPA but did not know if that would be in Hupacasath territory or if it would affect their rights. They said that the 30 year term of the agreement added nothing to the analysis. They did not understand that cumulative impacts of increased development in Hupacasath territory over 30 years could be devastating to the continuation of our rights.
They said that there are other trade agreements and there have been no adverse affects on First Nations rights. They concluded there would be no impact on self government now, or in any treaties negotiated by Hupacasath and that Hupacasath would be able to exercise their rights without harm from the agreement, the government or arbitral panels. There was evidence before the court on how much Chinese investment there is already in Canada and in Hupacasath territory and that FIPPA applies to those investments now which the court failed to appreciate.
The court also says that if there are any affects, it will be at the development permit stage and Hupacasath will be able to be consulted and if there are concerns they can go to go to the administrative decision makers or courts. They said the same thing with respect to self governance, go to court if there is adverse effects while assuring there should not be any under the agreement. Time consuming and expensive remedies.
Hupacasath had raised the concern about the “chilling effect” of the agreement. That Canada would make decisions that would prioritize avoiding penalties over protecting and preserving Hupacasath rights. They said this was speculative and in any case if it happens, Hupacasath could go to court and with evidence prove that Canada was doing this.
The court also explored Hupacasath definition of speculative which is “there is no reasonable basis to conclude that impacts might occur". The court expanded the definition to include the idea of assumption, conjecture or guesswork and says there has to be a chain of reasoning, all of whose link are proven facts and inferences joined together by logic. The court says this does not occur in the Hupacasath evidence.
The court concluded there was no causal connection between Canada ratifying the agreement and its potential for adverse impact on Hupacasath rights or claims.
Hupacasath is deciding whether this decision should be appealed to the Supreme Court of Canada. The fact that the agreement is in effect and the remedies Hupacasath was looking for no longer exist are major factors in this decision.
ADVICE TO FIRST NATIONS NEGOTIATING TREATIES
There are some very serious implications to this case for First Nations. Further action is required and I would suggest that any First Nation that is negotiating a treaty or self government agreement add in clauses that address the conclusions of this court case.
The wording in the Tsawwassen and Maa-nulth FInal Agreements says that if there is an international obligation that Canada undertakes that could impact their rights they must be consulted. Canada did not consult even when requested by Tsawwassen. Canada decreed there would be no impacts. Future agreements should say that Canada must notify the First Nation that they are negotiating international agreements and the First Nation should determine if there are potential adverse affects, Canada must be compelled to consult with them. It cannot be left up to the Crown to decide what impacts there will be or the commitment is meaningless as it now is in the modern day treaties.
Further, there must be a provision in the treaty stating that any international obligations Canada undertakes will not affect the treaty/final agreement. Such a provision should specify that Canada cannot ask or require the First Nation to change any of their laws for reason of conflicting with Canada’s international obligations to avoid a penalty under the FIPPA.
FURTHER POLITICAL LOBBY
For other First Nations, it would be good to put in place a political lobby to set up consultations with the government on a model FIPPA. What First Nations need and want in an international obligation that will protect their rights and title and not see their resources being taken by foreign investors. This is what Hupacasath wanted from the beginning, to sit with the federal government and come up with provision in FIPPA that would protect their rights, not to stop the trade agreement and development. It is not too late to do this as Canada continues to enter into trade agreements all around the world.
MORE WORK IS NEEDED ON TRADE AGREEMENTS
The work on international trade agreements is far from over. CC FIPPA brought attention to these. There are a number of FIPPA’s in place that First Nations were not aware of. Most of these FIPPA’s are with countries that have little investment in Canada and were put in place so Canadian businesses could go take advantage of those countries in order to do business. They are not a threat as China is who has a great need for resources, has the money needed for larger investment and who wants the opportunity to exploit First Nations resources.
The work on Canada China FIPPA has brought attention to the Investor State arbitration that takes any violations of the agreement out of Canadian laws and courts and tribunals. It has shown that these awards will not be made public. There are many concerns that the sovereignty of Canada is being jeopardized by these agreements.
The Canada China FIPPA has also shown the public in Canada how Harper keeps important things secret and how the democratic systems can be avoided and in particular for not all of parliament to debate these free trade deals. Instead Harper uses the Crown prerogative that is only the cabinet, a handful of people making decisions for millions. New processes must be established to make this a more public dialogue and to allow every agreement to be debated in parliament and other mechanisms that can be determined for protecting Canadian interests.
HEROES IN THE BATTLE AGAINST CC FIPPA
There have been heroes through this fight against CC FIPPA. Brenda Sayers from the Hupacasath First Nation who helped engineer this court cases through the system. Who spent time and energy on educating First Nations and the public on issues that arose out of CC FIPPA by using social media and personal appearances. She tirelessly worked on getting political support for a cause she believed in.
For Elizabeth May who has been a tireless advocate against the secrecy of CC FIPPA and brought it to people’s attention. For Gus Van Harten who used his expertise to help First Nations and Canadians to understand a very complex legal document and to warn people of its affects on the sovereignty of Canada. These three people need to be thanked and acknowledged for their dedication, and ability to speak out against these issues. The contributions will not be forgotten.
Mention must also be made of the First Nations who provided affidavits to support the Hupacasath. Union of BC Indian Chiefs, Union of Ontario Indians, Serpent River First Nation and Tsawwassen. Your input was invaluable to this case.
In acknowledging people, those that supported Hupacasath through donations for the court case, helped raised the profile of the issue, who attended rallies and raised their voices, also need to be thanked. “We Stand Together” was the theme of the Hupacasath and it truly reflected how people came together to try and stop an agreement that in the future Canada will regret and know then that this was a dreadful agreement with incredible negative effects on our lands and resources. By then, our lands and resources will be controlled by Chinese investments.
I have summarized the court decision above but have included more detail below for those who appreciate the more legal analysis.
The court’s main conclusions are as follows:
- The court of appeal fully agreed with the findings of fact of the federal court. In fact they said they would have made the same findings. They clearly said they could not substitute their findings for the federal court and not second-guess them. Only if there is a palpable and overriding error can they vitiate such findings.
- Then the court explored whether the duty to consult was triggered and really repeated the law as was set out in Haida, Rio Tinto and Mikisew Cree. They said the Tsilhqot’in case had not changed the law concerning when the duty to consult was triggered.
- The trigger the court of appeal focused on was whether there was a causal relationship between the crown conduct of ratifying CC FIPPA and the potential adverse affects on aboriginal claims or rights. That is what effect is caused by the crown conduct on the exercise of rights. Possible effects can qualify but not be merely speculative. The court said there was no causal connection.
- Court of appeal said there was no evidence that other trade agreements are causing or might cause Canada to make decisions that are contrary to law or make decisions that do not respect aboriginal rights.
- CC FIPPA does not contravene or contradict any domestic law and any future treaty Hupacasath may negotiate and will not change the way in which they exercises its rights. Nor can any arbitral tribunal invalidate any measure that Hupacasath or Canada may adopt to protect HFN’s aboriginal rights. This is the court’s assurance that CC FIPPA cannot change Hupacasath rights.
- Hupacasath feared the “Chilling effect” that Canada would make decisions about development that would impact their rights to avoid a penalty under the agreement. (Hupacasath has seen decisions made by the Crown that impacts their rights for the “greater public interest and knows this is a reality.) The court said that the “chilling effect” argument is speculation. Hupacasath argues that this is logic and common sense but the court says it is guess work and they cannot assume it. All the court can do is imagine decisions or impacts from them that might or might not happen as a result of the agreement. The duty to consult is not triggered by imagining but by tangibilities. (new term-always potential adverse effects-the mere possibility of harm is enough)
- Court said they just don’t know if Chinese investment will find its way into resource development companies and that those companies will eye resources on aboriginal lands for development. Maybe or may not. They just don’t know. (Hupacasath knows the rich resources in their territory and knows the kinds of resources China is looking for)
- If there is development, they will need permits and approvals from governments and their agencies. Aboriginal people will have access to administrative decision makers and the court for protection. At that time, WITH EVIDENCE, the First Nation may allege that Canada is improperly prioritizing the risk of a monetary award under the agreement over aboriginal rights and interest. This will then be non speculative effects on their legal rights. (these kinds of effects could have been prevented if FIPPA was done properly to protect aboriginal rights)
- So the courts say it is the status quo. First Nations can appeal to administrative decision makers and go to court. Always going to court again and again. Not a lot of comfort there for First Nations to stop destruction in whole or in part of their lands and resources by going to court during or after a development.
- No need to impose a duty at the CC FIPPA stage as it is not necessary to preserve the future use of the resources claimed by aboriginal people. Any adverse affects can be addressed later when they rise beyond the speculative and trigger the duty to consult. Said Hupacasath failed to show any harm by the agreement before it is caused, if it ever is caused.
- The fact that the agreement is for 30 years adds nothing to the analysis. Until there is a non speculative impact on rights a duty to consult does not arise. (Hupacasath argued this is a long time to be impacted by the agreement with adverse effects)
- There is no evidence to suggest that CC FIPPA will have any impact on rights to self government. If there is, First Nations can go to court. (again)
- Court says it is speculative that there may be Chinese investment in the future, but fails to see that there is Chinese investment in Hupacasath territory already (provided in evidence) and that CC FIPPA applies to these companies now. That is not speculative but fact.
- The court gets a bit ridiculous by saying if Hupacasath definition of speculative was accepted, then things like the house of commons adopting a budget that affects investment and development would require consultation with First Nations. This is extreme and totally exaggerating what Hupacasath argued. (shows how Hupacasath argument was not understood)
- End result, anything Hupacasath said was non appreciable and speculative as to the effect of CC FIPPA on Hupacasath rights and title.