Canada-China (FIPA) In Depth

On September 9, 2012, Canada signed a Foreign Investment Promotion and Protection Agreement (FIPA) with China. FIPAs are Canada’s name for bilateral investment treaties, which are used by corporations globally to challenge public policies or community decisions that interfere with their profits. Canada’s first FIPA took the form of a single chapter (Chapter 11) in the North American Free Trade Agreement. Because of extreme investment protections in NAFTA, Canada has paid out $160 million to U.S. corporations who challenged public decisions, including environmental policy. Canadian mining companies are using FIPAs with developing countries to claim damages from community opposition to unwanted mega-projects.

If the FIPA with China is ratified, Chinese corporations will be able to challenge local, provincial and federal policies or laws that interfere with their “right” to make a profit from, for example, proposed tarsands or fracking projects, pipelines, or mines. Canadian firms will have the same “right” in China, which will impact human rights and environmental protections there. We believe the FIPA fundamentally undermines democracy. It will give Chinese firms in Canada and Canadian firms in China 31 years of “protection” – from environmental, human rights or resource conservation measures they don’t like while companies and private investors gain the right to sue Canada or China in controversial and unaccountable private tribunals outside the court system.

Tens of thousands of people have sent letters to the government demanding that the investment treaty be torn up, and written hundreds of letters in newspapers across the country. Public opposition to the corporate rights pact is resonating with Members of Parliament who are demanding a public debate the government does not want to have. Opposition to the China FIPA is also spilling over into Canada’s other investment protection treaties with Latin American, African and Asian countries. Now the Hupacasath First Nation of British Columbia has taken the FIPA to court, directly confronting the Harper government’s anti-democratic corporate rights deals. The fight against the FIPA is far from over. And we still have a role to play in deciding the fate of the deal.

Hupacasath First Nation of British Columbia

On January 18, 2013, the Hupacasath First Nation of British Columbia took the first steps toward challenging the Harper government’s new corporate rights pact with China – the Foreign Investment Protection and Promotion Agreement (FIPA). That’s the day the Hupacasath filed an application in court to stop the ratification of the FIPA until the government has fulfilled its obligation to consult with First Nations about the impacts the treaty will have on their rights and their lands.

No trade or investment deal in recent memory has attracted so much opposition in Canada – and for good reason. No investment treaty since NAFTA poses a greater threat to the environment, public health, First Nations and basic notions of democracy. If the FIPA is ratified, China-based corporations will be able to directly challenge local, provincial and federal policies that interfere with their “right” to make a profit from energy, mining or other controversial projects. Canadian firms will have the same “right” in China, which will have a direct impact on human rights and environmental protections in that country also.

The Hupacasath's legal challenge is our last and best chance to stop this terrible deal from being signed.

Brenda Sayers, Hupacasath First Nation, expressed “We are deeply concerned about the Investor State Arbitration (ISA) clause in the Canada China FIPPA that will allow a foreign state owned corporations to sue Canada for anything which interfere with their ability to make profit, including First Nations rights and title. These claims can range into the billions depending on the project. Currently there are several proposed projects that FIPPA may negatively impact First Nations who are in dispute with the government. The ISA provisions of the FIPPA will undermine First Nation’s rights to protect their lands and resources or make decisions that benefit or protect their people. As well, the ISA will prohibit provincial and municipal governments from protecting their citizens. Everyone’s constitutional rights will be at the mercy of corporate gain.”

Grand Chief Stewart Phillip exclaimed “The Government of Canada's main argument is during the negotiation and ratification process of FIPPA was there was no 'causal link' to Indigenous Peoples’ Title, Rights and Treaty Rights. Rights which would trigger the fiduciary duty to consult. If this is a fact why do many members of the Conservative Caucus cite this case as a primary obstacle the Harper Government has not ratified FIPPA?” said Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs.

Hupacasath Chief Councillor Steven Tatoosh stated “Appealing the Federal Court decision is very important to Hupacasath because the Canada China will have a minimum negative impact of 31 years. Our children and grand children and many generations to come must have the same rights we enjoy today. Challenging the terms of FIPPA is the only way we can guarantee our future rights. Hupacasath would like to extend our heartfelt thanks to all our supporters across Canada for helping us get to the Court of Appeal”

Chief Bill Erasmus, Dene National Chief remarked “The proposed FIPPA cannot be approved without prior approval of First Nations. Dene Treaties #8 & 11 with the British Crown in Right of Canada are legitimate International instruments that have legal standing. We the Dene already proved in Canada’s courts that we are the prima facie land owners and have an interest in 450,000 sq. miles of land. This land mark decision by Justice William Morrow in 1973 established at law that the federal government has a legal constitutional obligation to uphold. Dene title does exist and proposed projects like the Keystone XL and Northern Gateway violates the relationship that has been established and recognized in Canada’s Constitution Act, 1982. We ask the courts to instruct Canada in this regard”

“This challenge is about far more than the impacts this unbalanced deal will have on one First Nation,” says Maude Barlow, national chairperson of the Council of Canadians, one of the organizations supporting Hupacasath. “It is about preserving the right at all levels of government to implement policies to protect our environment, our health and our people without the threat of a challenge under FIPPA from Chinese corporations. For taking this courageous stand the Hupacasath deserve both our support and our sincere thanks.”