Published in Watershed Sentinel, June 20, 2013

by Andrea Palframan

A remarkable resistance movement is gaining momentum in this country.

A  few weeks ago, the federal court in Vancouver heard the case of Hupacasath vs. Canada. At issue was the China-Canada Federal Investment Promotion and Protection Agreement (CC-FIPPA), which has been signed but not yet ratified. FIPPA is of concern to the Hupacasath in light of its likely impacts on their territory, encompassing watersheds and forests across 230,000

hectares from Port Alberni to Sproat Lake.

With fewer than 400 members, the Hupacasath First Nation

is punching above its weight with this court challenge. They have achieved what opposition parties were unable to do within the parliamentary system: open up a dialogue about a secretive treaty which has broad implications for all Canadians. Before a federal judge, they pressed the federal government to deal with their concerns before ratifying this deal that would give unprecedented powers to foreign investors.

So far, the Canadian government’s position has been that international treaties like CC-FIPPA will spur investment and protect Canadian business interests in China.

First Nations Stand-Up for Canada

MP Elizabeth May was first to sound the alarm about FIPPA, pointing to its “grave and sweeping implications for Canada’s sovereignty, security, and democracy”  and warning that the process by which the treaty was tabled without Parliamentary study or debate was “corrosive to our democracy.”

Hupacasath band councillors heard May’s warning and got on the phone. Over the past 9 months, they have built broad coalition of labour unions, First Nations and ordinary citizens in support of her people’s court challenge. After an NDP motion to scrap the treaty was defeated back in April, the Hupacasath became the last voice calling for meaningful consultation on FIPPA. With help from LeadNow, Avaaz, and the Council of Canadians, $160,000 in crowd sourced funding was raised to cover legal costs. The trial kicked off last Wednesday, June 5th, with a Unity Gathering outside the courthouse that brought hundreds of people together under the banner “We Stand Together”.

Thanks to the Hupacasath, there has been more discussion about the Canada-China FIPPA this past week than there has been in the House of Commons, in committees, or in the media since Stephen Harper quietly signed the treaty back in September 2012.

Speaking at a rally outside the courthouse on behalf of the Union of BC Indian Chiefs, who filed an affidavit in support of the Hupacasath claim, Grand Chief Stewart Phillip remarked upon the solidarity that these proceedings have engendered. “I’ve never witnessed the coming together of such a diverse group of people focussed on a common cause.”

Powerful words. And powerful moments: at the rally, Hupacasath youth joined elders in traditional regalia. Their dance, and the drumming of members of three different First Nations bands, brought vital spirit to the downtown streets.

Inside the Courthouse

Inside the courthouse, lawyers for the Hupacasath attempted to establish the government’s duty to consult First Nations over FIPPA. They argue that the treaty triggers this obligation under Section 35 of the constitution which protects aboriginal rights. According to the Hupacasath, the scope and duration of this particular FIPPA will impact the Canadian government and all of its sub-national governments—including those of First Nations.

The similarity between CC-FIPPA and NAFTA became a pivot for discussions. One notable difference between the two trade deals involves the duration: while NAFTA allows either party to extricate themselves by giving 6 months’ notice, this FIPPA locks any future government in for what amounts to 31 years. As the Hupacasath argued, this arrangement fails, on many levels, to take into account changes in domestic policy which will inevitably take place over the course of three decades.

Canada’s legal counsel attempted to keep to the very narrow argument that the Hupacasath had not been impacted by NAFTA, and therefore Canada bore them no obligations to consult them regarding FIPPA. Chief Justice Paul S. Crampton made it clear he wanted to explore the Hupacasath’s concerns about possible future impacts of a trade deal. Canada, somewhat dubiously, claimed that ‘international treaties do not impact on domestic policy’. Though they were unable to show specific precedents of adverse NAFTA-related effects, the Hupacasath set out to prove just how they anticipate FIPPA might impede their ability to make policy decisions and to protect the ecosystem they steward.

The discussions were informed by the current Lone Pine case being brought under Article 11 of NAFTA. Lone Pine is suing Canada for $250 million, claiming their right to frack is being impinged by Quebec’s moratorium on shale gas exploration and drilling. Under CC-FIPPA, were a provincial government, municipality or any First Nation to place such a hold on development, Chinese corporations would be allowed to sue Canada for lost profits; investor-state disputes are arbitrated not in our domestic court system but through offshore tribunals. The Hupacasath urged the judge to use common sense in evaluating FIPPA in light of the Lone Pine experience: to have to pay—to not frack, to not build pipelines, or to not log —could deter future governments from implementing measures to protect the environment and the public good.

Hupacasath’s lawyer Mark Underhill demonstrated how such a scenario could play out in British Columbia, citing Christy Clark’s proposed liquid natural gas projects in the northeastern part of the province.  Should any future government or First Nations seek to limit resource exploitation, Underhill argued, the prospect of possible multi-million or even billion-dollar fines being levied as a result could cast a chill over policymaking. Given that corporate lobbyists and governments tend to discuss such matters behind closed doors, demonstrating state ‘sins of omission’ would be much more difficult than pointing to sins of commission.

Or, according to Gus Van Harten, a trade and investment expert who stood witness in earlier pre-trial hearings, “it is very difficult to prove a causal link between the spectre of potential lawsuits and the failure of governments to enact measures or pass laws.” The Hupacasath case rests on a combination of such uncertainties, which they claim are of sufficient importance to trigger a duty of the Crown to consult with First Nations before entering into CC-FIPPA.

The judge’s ruling is expected by August.  Regardless of the outcome, the Hupacasath intend to build on the momentum of this case. They are reaching across the country to bring together those opposed to what the Council of Canadians calls a “corporate rights” agenda. To learn more, visit www.westandtogether.ca

 

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