BC First Nations considering legal challenge against Canada-China investment agreement

Canada could face a legal challenge from First Nations over its looming investment agreement with China, says the head of a prominent British Columbia chief’s organization.

APTN National News
VANCOUVER–Canada could face a legal challenge from First Nations over its looming investment agreement with China, says the head of a prominent British Columbia chief’s organization.

Grand Chief Stewart Phillip, head of the Union of B.C. Indian Chiefs says Canada breached its fiduciary duty to consult before it embarked on negotiating its Foreign Investment Promotion and Protection Agreement (FIPA) with China which could have significant impacts on Aboriginal and Treaty rights. Phillip said the agreement has created widespread concern among First Nations leaders and taking the issue to court is an option currently on the table.

“(Legal action) can’t be ruled out,” he said. “There is enormous concern. There is a real sense of urgency given the way (Prime Minister Stephen Harper) is trying to sneak this through.”

Phillip said China’s investment profile has been growing in Canada and its involvement in the tar sands and the Enbridge Northern Gateway pipeline project is having an impact on First Nations’ territories.

“I think Indigenous peoples are beginning to wake up to the potential threat to the integrity of our title that this represents,” he said. “There is a duty to consult on the part of the government of Canada with respect those matters that may impact or infringe on our Aboriginal title and interest.”

The investment agreement–which would give Chinese investors the same rights as Canadian investors in Canada and vice versa–could come into force as early as Thursday. Cabinet needs to sign off on it for it to come into force. Canada has about 30 similar agreements with other countries.

In a letter to Prime Minister Stephen that has been made public, Phillip wrote that the agreement would allow Chinese investors to challenge the rights of First Nations over their territories.

“We believe the agreement would enable Chinese investors to challenge Canadian regulations, policies and…legislation designed to protect the environment as well as current reconciliation negotiations, accommodation measures and treaty negotiations,” wrote Phillip in the letter. “To recklessly disregard our Aboriginal title, rights and Treaty rights is an affront. Our rights are human rights.”

A spokesperson for International Trade Minister Ed Fast said the government always consults on trade agreements. Rudy Hunsy said the investment deal with China contains exemptions to protect the rights of First Nations in Canada.

“The (investment agreement) contains the exceptions found in our other treaties that preserve policy flexibility for certain sensitive sectors and activities, including rights or preferences provided to Aboriginal peoples,” said Hunsy in an emailed statement. “The (investment agreement)…provides a policy carve-out for government measures concerning ‘rights or preferences provided to Aboriginal peoples.'”