The Modern Day David vs. Goliath a.k.a Hupacasath v. Canada










The time is finally here, the hearing of the court case Hupacasath v. Canada will commence on June 5, 2013 in the Federal Court of Canada in Vancouver, and the hearing will be for 3 days. Hupacasath is a First Nation that is small in population, with a territory of 232,000 hectares of land located on the west coast of Vancouver Island that is rich in forest, minerals, water and many other resources. It is one small nation that is being referred to as David going up against the large titan-Canada. It took one young man with a sling-shot and a stone to bring down the mighty Goliath. Many who have been following this court case are hoping that this will be a mighty victory for Hupacasath as well. The weapons of choice will be aboriginal rights and the duty to consult. In this battle, Hupacasath has had allies to support them with affidavits, the Union of BC Indian Chiefs (UBCIC)  and the Chiefs of Ontario and in particular Serpent River First Nation.

If you recall, PM Harper concluded a deal which he signed with China on September 8th, 2012, a deal he kept secret until he quietly tabled it in the House of Commons on September 28th, 2012. It was done without Consultation with First Nations. It was done without any input from the Parliament of Canada, it was done without press release or technical briefing. One has to ask why something that was so significant should be done in such secrecy. If it was such a good thing for Canada, wouldn’t the PM be trumpeting it from the rooftops?

The Canada China Foreign Investment Protection and Promotion Agreement (FIPA) would still need to be ratified and Harper intended to ratify it without going through Parliament and would have it done it in October. But Harper had not counted on opposition from the Brenda Sayers for the Hupacasath and Elizabeth May, MP for the green party. To date, that treaty has not been ratified and will need to wait until the results of this court case. It is that momentous! I applaud the work of Elizabeth May and Brenda Sayers in their tireless efforts in trying to bring attention to this FIPA. It was an undemocratic process to not bring it to the people of Canada and for First Nations it was a violation of their constitutional rights to be consulted. The Honour of the Crown was not upheld. For the many people and organizations who have spoken out against the way this treaty was negotiated without any input from public, parliament and in particular First Nations, I also commend you for your efforts.

Elizabeth May was the first person to sound the alarms on the Canada China FIPA. Her message found its way to Brenda Sayers, Council member for Hupacasath First Nation. She started adding her voice to Elizabeth May’s, two women’s voices being raised in a vast wilderness where not too many people were listening at first. It was certainly not being heard by the people who should have been listening-the MP’s of all parties, the Premiers of the provinces and other decision makers. These two women did everything they could to educate the people of Canada on the issues regarding the FIPA with China and people did start getting involved and adding their voices.

Constitutional expert Gus Van Harten voiced his concerns in the media and an open letter to Harper and his Government. He has provided an affidavit in this court case and a few of his major concerns are (in summary form):

1. Treaty will last a minimum of 31 years with appropriate notices given.

2. First treaty that incorporates an investor-state arbitration mechanism that would apply to tens of billions of dollars of foreign-owned assets in Canada.

3. Canada-China FIPA creates new fiscal liabilities and effective legal constraints for governments to an extent that other FIPAs do not.

4. FIPA may prohibit First Nations Governments and other governments in Canada where First Nations Rights or interests are affected-from changing laws, regulations or rules that apply to Chinese investors under threat of a substantial retrospective damages award against Canada. FIPA could actually modify First Nations rights or interests under any land claims agreement that are subject to Canada’s international legal obligations (eg. Tsawwassen and Maa-nulth).

5. Awards given to Chinese companies under FIPA would not be subject to override in Canadian courts-Canadian Law/constitution. The award will be against Canada, but the federal government may look to the First Nation to cover all or part of the costs of the awards where First Nations decisions were the cause of the FIPA award. They could withhold funds from First Nations until they paid the award. If an award against Canada under FIPA was not paid, the enforcement sought by a Chinese investor against assets of Canada abroad. Assets of Canada may include provincial, territorial, municipal or First Nations assets abroad.

Hard to believe that more people, provinces, municipalities, have not been speaking out against this. Canada China FIPA also includes provisions that say that the Federal government must ensure that the provinces are in line with FIPA. How can the provinces be ok with this? There are many other substantial issues with FIPA that I will not be getting into here, but just wanted a flavor of why Hupacasath, UBCIC and the Union of Ontario Chiefs are concerned with this FIPA. It is the terms of this FIPA and the lack of consultation that are at issue-not that this FIPA is with China.

On April 22, 2013, the NDP brought a motion to stop the ratification of the FIPA-they wanted to support the Hupacasath in their cause and represent Canadians. Conservatives and Liberals voted against the motion and the motion was defeated.  I was never so disappointed in the Liberals than I was on that date. Did they not take the time to study the implications of this FIPA? None of their voiced rationalizations that they didn’t like the wording of the motion was sufficient for me to think they had the best interests of First Nations and Canadians at heart. From the son of the man who brought forward the White Paper, the apple doesn’t fall from the tree. Justin Trudeau is not the leader we were hoping for.

Brenda Sayers on behalf of her Nation, with the full support of the Chief and Council commenced the litigation to stop the ratification of the treaty until such time as First Nations are consulted and their interests are accommodated. For most First Nations in Canada, development in their territories is happening rapidly. The cumulative effects of such development is changing the way of life of First Nations peoples, and more importantly destroying the ecosystems and environments that support the rights of First Nations that are constitutionally protected. What is the use of having rights protected in the constitution if they cannot be sustained on the land due to such wide scale development? China will be able to come into Canada and be like a Canadian company and access resources from First Nations territories at a greater rate than we are witnessing now. We know Chinese companies have the financial ability and the need to access our resources and demands for development will increase at an even more rapid rate. First Nations need to have a say in how that FIPA will work and define what can be protected and how, and what role they play in processes. This could have been done already if the Canadian Government took seriously their legal duties.

The Supreme Court of Canada has said in many cases stated that Consultation is a good faith, reasonable information disclosure between First Nations and Government. Consultation has the purpose of substantially addressing the First Nation interest at stake. This duty arises before legislation is enacted or measure taken. Harper did not do this as he kept this initiative secret. But this has been his way as we saw with Bills C-38 and C-45 which are also being challenged in court by FIrst Nations due to lack of consultation. These cases will definitely further define the Federal governments role in consultation with First Nations when enacting legislation. You will recall that Idle No More was not only about the imposition of Bills C-38 and 45, but the suite of legislation some of which has already been passed like the First Nations Financial Transparency Act, Families Homes on Reserve and Matrimonial Interests or Rights Act, First Nations Elections Act and the First Nations Safe Drinking Water Act. As you can see the issue of the Federal Government consulting and consulting properly is critical for First Nations to have commenced these litigations.

As a member of the Hupacasath, I personally thank all of you who have supported the Hupacasath in this court case.  I must mention Lead Now, the Council of Canadians, who helped in the fund raising to make this possible.  Whether your support was vocal, financial, attending events and being informed on the issues, I say Klecko, Klecko!!  For all those who supported Brenda Sayers in anyway while she promoted and prepared this case on behalf of the Hupacasath, I am grateful to you as well.  So many people have been involved.

On Wednesday, a flotilla of First Nations will arrive by canoe in Vancouver Harbour and March to the court house. At 12:30, in the square by the Federal Court there will be a rally to support the Hupacasath. Get out and support them! This battle of the small First Nation and the titan is not over yet. Visit for more details.

(In the interests of full disclosure, Brenda Sayers is my sister and Hupacasath is my First Nation. When I was Chief for 14 years, I always said Hupacasath was small but mighty, that continues to this day.)


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