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Hupacasath Back in Court for Canada/China FIPA Appeal

Brenda Sayers outside the Federal Court of Appeal on June 10.
Vancouver —

The appeal of the decision to dismiss Hupacasath First Nation’s demand for consultation on the Canada/China Foreign Investment Promotion and Protection Agreement (CC-FIPA) was heard June 10 in Vancouver.

Justices Stratas, Scott and Marc Nadon, who readers will remember as Prime Minister Stephen Harper’s recent controversial and ill-fated appointment to the Supreme Court of Canada, heard arguments from Hupacasath’s lawyers Mark Underhill and Cathie Boies-Parker and lawyers representing the Crown.

“I was really happy to see the courtroom was packed and that there were people sitting outside because there was no room left,” said Brenda Sayers, who is spearheading the challenge on behalf of Hupacasath. She said it was good for the three judges to see how much interest this case has generated.

In the gallery were Hupacasath Chief Councillor Steve Tatoosh, Nuu-chah-nulth Tribal Council President Debra Foxcroft, and President of the Union of British Columbia Indian Chiefs, Grand Chief Stewart Phillip.

This international treaty has caused considerable concern to Canadians, because this FIPA is different, said Sayers. The stakes are significant and worrying. There are decades of obligation, extra protections provided to China, and potential, daunting damages that could put taxpayers on the hook for millions.

“Everyone should be concerned, because their grandchildren and their great grandchildren are going to be living with the effects,” Sayers said.

Thousands of dollars have been donated to the Hupacasath challenge, and many have expressed their appreciation to the small nation for taking it on. “I just can’t emphasize enough how grateful Hupacasath is for the overwhelming support from across Canada,” said Sayers.

“I think it’s pretty incredible that this case has got to this point,” said Phillip. “It gives me hope. We must remember that it was all done behind closed doors… This case blew the door off the back room, so to speak. Everybody got to find out what the Harper government was up to. So it’s an incredible case. It’s an exciting case.”

Hupacasath’s submission in the Federal Court of Appeal was that the lower court erred when it dismissed Hupacasath’s call for consultation before the CC-FIPA is ratified. The lower court decided Hupacasath provided no causal link to indigenous peoples’ title and rights that would trigger the duty to consult and that any potential adverse impact to the first nation regarding CC-FIPA was “non-appreciable and speculative in nature.”

Underhill, however, worked to convince the court that the very forward-looking nature of the 31-year Canada/China deal triggered the duty to consult. CC-FIPA would bind the first nation and constrain the power of Canada to protect Aboriginal rights and title.

Underhill said Hupacasath is not asking the court to quash the CC-FIPA, only to allow the first nation the opportunity to talk to Canada about their concerns and for Canada to respond. There is a low bar set to trigger the duty to consult, he said, and the question for the court was not how much consultation was required, only that the duty exists.

Hupacasath is a first nation that asserts claim to about 232,000 hectares of territory around Port Alberni on Vancouver Island and is without a treaty. So far, there is no capital investment from China in Hupacasath territory.

CC-FIPA is a bilateral investment treaty that would pave the way for billions of dollars in capital investment from China in Canada and provides significant protections of those investments. If Canadian policy or legislation adversely affects the profits from those investments, China can sue Canada for damages.

Sayers told Ha-Shilth-Sa that if a China State corporation wanted to log Hupacasath traditional territory, for example, China could sue Canada if Hupacasath stands in the way. And what of a future treaty for Hupacasath? What negotiation restrictions would Canada bring to that table?

“We aren’t interested in accommodation,” said Sayers. “We want to protect the land. We want to protect the resources. Our interest is for future generations so that they have a way to sustain themselves, and that they have the same protected rights enshrined in section 35 of the Constitution and other rights as we have today. They have the same rights to clean air, clean water, and a healthy environment. This agreement will remove those from us.”

Canada, said its lawyers, would, of course, live up to its international obligations, pay whatever damages awarded to China, because Canada has an obligation to treat Aboriginal rights in an appropriate manner. Past experience, however, leaves Sayers, Foxcroft and Phillip skeptical about fair dealing from Canada, particularly a Harper government, said Phillip, and especially if the damages are in the hundreds of millions of dollars. Think Enbridge, said Sayers.

Underhill says logic and common sense suggests CC-FIPA would change the balance set out in the Haida decision for consultation, that Canada would certainly consider its international obligation when negotiating with Hupacasath, and be constrained, its options limited, to avoid adversely impacting China investments.

Outside the courtroom, Sayers balked at Canada’s assertion that any infringement of Hupacasath’s rights is hypothetical. Canada successfully argued to the lower court CC-FIPA demonstrated no immediate threat to Hupacasath rights to trigger consultation. There was only layer upon layer of speculation from the nation.

“Canada knows that it will happen or has the opportunity that it will happen because they put the clause in the Maa-nulth agreement,” Sayers said. Underhill had pointed to language in the Maa-nulth Treaty that states those five first nations would be bound by any new international agreement with Canada. If a Maa-nulth Nation enacted a measure that precludes Canada from performing a legal obligation, the First Nation must remedy that measure.

“Canada is supposed to consult with them before entering into any international agreement,” said Sayers. Underhill said there was consultation with the provinces on CC-FIPA, but not with any First Nation, not even Tsawwassen and Dena Tha on whose territory there is already China investments. There has been no assessment of the impact of CC-FIPA on First Nations, Underhill told the court.

Justice Scott emphasized the word “new” in that language in Maa-nulth. Underhill argued that the CC-FIPA was new in that it is different than the FIPAs that have come before.

Justice Stratas asked whether consultation would be triggered down the road when “something happened” that would impact Hupacasath rights and title, but Underhill said ratification of the FIPA would lock in Canada and all “sub-nations”.

This is the last chance for Hupacasath, said Underhill. There is nothing to be done once Canada ratifies the agreement. Even if there are later opportunities for consultation, the FIPA will be unchallengeable. Consultation, Underhill reminded the court, must be done early.

Sayers said a decision is not expected on the appeal until late August or early September. She is pleased that the Hupacasath challenge has raised awareness on this complex topic and created some “space” to allow decision-makers time to review the agreement.

“We do know there is some dissension in Cabinet about the Canada/China FIPA,” said Sayers. “Well, they’ve had a year-and-a-half now.

“So what people should be doing is writing their MPs and saying ‘what is your stand on this important subject that’s going to affect our future for 30 years?” And that’s something that our lawyer Mark Underhill kept reiterating. This is a 30-year trade agreement.”

Sayers said when Hupacasath chief and council looked at the CC-FIPA, they didn’t want their children and grandchildren to say ‘why didn’t you do something about it when you could have.’

“’You were in a position where you could have altered or change the direction of it and now this is what we have to live with.’ And this is what we are asking people to do. Start speaking up for the future generations.”

NTC’s Debra Foxcroft said that’s why she came to court that day, to support Hupacasath and protect the future for the children.

But whatever the outcome, first nations will continue to fight the good fight, said UBCIC’s Stewart Phillip.

“We’ll never stand down until we achieve full recognition of our indigenous rights… If this is in our favor, than that’s another step forward. If it’s not, it’s simply another day at the office.”


Canada-China investment agreement back in court on June 10


It’s been 10 months since a federal court judge dismissed their application for a judicial review of the Canada-China Foreign Investment Protection Agreement (FIPA), but in a few weeks the Hupacasath First Nation will get one final chance to throw a wrench in the government’s ratification plans.

On June 10 in Vancouver, the federal court of appeal will hear from both sides before making a final ruling on whether the Conservatives are required to consult the Hupacasath before bringing the FIPA into force.

With that ruling expected to take between two and six months, the earliest the government could ratify would be well into the fall.

In the meantime, however, pressure has been mounting on the government to get on with it.

The most recent voices have been China’s departing ambassador — at the end of April — and former Quebec Premier Jean Charest, last week.

Both urged the Conservatives to build on recent developments in the bilateral commercial relationship and ratify the FIPA, but paid scant attention to the ongoing legal challenge.

Their focus, instead, was on the approaching two-year anniversary of the agreement’s signing.

Since all that remains for the government to bring the agreement into force is an order-in-council — essentially cabinet approval — that seems to have created the impression that the government is dithering.

That’s only been bolstered by reports of ministers James Moore and Jason Kenney expressing their disapproval of the FIPA at the cabinet table.

But even if their opposition has been exaggerated, there’s not much the government can do until the appeal is settled.

What is being appealed?

Last August, Federal court Justice Paul Crampton dismissed the Hupacasath’s duty to consult claim on the grounds that any of the FIPA’s potentially adverse effects were “speculative” and “non-appreciable”.

That is, they couldn’t be estimated.

Represented in their legal challenge by Mark Underhill and Catherine Boies Parker from the B.C. boutique law firm Underhill, Boies Parker, the Hupacasath argue in their appellant’s memorandum of fact and law that Crampton made three principal errors in dismissing that initial claim.

1) He failed to consider a key piece of evidence

The Liberals introduced a model FIPA in 2004 to address some of the troubling early decisions that resulted from NAFTA’s Chapter 11, on which Canada’s FIPAs are based.

Some of those decisions dealt with environmental regulation and created what opponents call a regulatory chill, discouraging any government moves that could result in an investor bringing a costly challenge.

Crampton — the memorandum argues — erred in basing his judgement on the more restrictive 2004 template the Canada-China agreement follows.

Since the Canada-China FIPA contains a Most-Favoured Nation provision that requires Chinese investors to be treated no worse than foreign investors under earlier agreements, they maintain, those more concerning investor-friendly pre-2004 provisions could still be applied.

And that, they say, undermines the judge’s finding that the Hupacasath claim was “too speculative”, since the same problems essentially remain.

2) The judge failed to address the effect the FIPA’s ratification will have on the Hupacasath’s right to self-government

If Canada ratifies the FIPA, Underhill and Boies Parker argue in the memorandum, it will generally “commit both itself and any other government in Canada ‘not to conduct itself in a particular way.’”

For that reason, the federal government engaged the provinces throughout the negotiations.

They didn’t, however, meet with First Nations.

According to Crampton, they didn’t have to, since there’s no evidence of Chinese investment in Hupacasath territory— ergo no need to consult.

But that led to Underhill and Boies Parker’s third principal error:

3) The judge erred in applying the legal test that triggers the duty to consult

The 2010 Supreme Court decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, Underhill and Boies Parker point out, established that the possibility of Crown conduct affecting an Aboriginal claim was sufficient to trigger a duty to consult.

“Mere speculative impacts”, however, were not, which is why the judge emphasized the lack of Chinese investment on Hupacasath land.

But “mere speculative impacts”, Underhill and Boies countered, didn’t mean those which are “imminent, inevitable, certain or even probable to occur”.

“Where the test is whether the adverse effects might occur,” they added, “it is sufficient to rely on logic and common sense to infer that there may be an adverse effect.”

Should the federal court of appeal find any of this sufficient to overturn the initial decision, the government will be required to consult and possibly accommodate the Hupacasath before ratifying the FIPA.

That likely won’t stop the government from bringing it into force, but it would add delays that will please neither Jean Charest nor the Chinese.

Perhaps the Most Important Court Case in Canadian History


Federal Court of Appeal Sets Date for Canada-China Foreign Investment Promotion and Protection Agreement

(Hupacasath Territory — May 14, 2014) The Federal Court of Appeal will hear arguments regarding the Hupacasath First Nation v. The Minister of Foreign Affairs Canada and the Attorney General of Canada, with respect to the pending ratification of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (FIPPA). The Federal Court of Appeal will hear arguments in Vancouver on June 10, 2014.

Brenda Sayers, a representative of the Hupacasath Nation stated “Hupacasath remains steadfast in our commitment to defend the people, the land and our constitutional rights for present as well as for future generations. We firmly believe the FIPPA will have a deep and profound impact on our inherent Indigenous rights and for all Canadians who cherish the environmental heritage we inherited from our grandparents.”

The Hupacasath First Nation presented arguments to the Federal Court of Canada in June 2013 stating the FIPPA was an infringement on inherent Aboriginal Title and Rights. The Hupacasath felt compelled to launch a legal challenge citing their title and rights as affirmed by Section 35 of the Canadian Constitution.

“The Union of BC Indian Chiefs refutes the main thrust of the Government of Canada’s argument that there is no ‘causal link’ on our constitutionally-enshrined and judicially-recognized Indigenous Title, Rights and Treaty Rights during the ratification process of FIPPA. If that is a fact why is Harper citing this case as a primary reason his government has not ratified FIPPA?” said Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs.

“We’ve heard from thousands of people across Canada who are deeply concerned that the Canada-China FIPPA would give China’s state-owned oil companies the ability to undermine democratic decisions about our environment, health and economy,” said Jamie Biggar, Executive Director of “We’ve seen thousands crowd-fund the Hupacasath legal challenge because we stand together for our democracy and a renewed relationship between nations.”

Steven Tatoosh, Hupacasath Chief Councillor said “Hupacasath has heard the call from many Canadians of all walks of life expressing their concerns about FIPPA. It is an honour to answer the call. We graciously thank all of our supporters for trusting in Hupacasath to champion this important work”

The Hupacasath First Nation was supported at the Federal Court of Canada with legal affidavits from Serpent River First Nation and the Tsawwassen First Nation along with the Union of BC Indian Chiefs and the Chiefs of Ontario. As well,, the Council of Canadians, Avaaz, BC Federation of Labour, BC Teachers Federation, Canadian Auto Workers, Communications Energy and Paperworkers Union, KAIROS and ForestEthics fully supported the Hupacasath First Nation legal action.

For further information contact: Brenda Sayers, Hupacasath First Nation: (250) 731-4147 Grand Chief Stewart Phillip, President, Union of BC Indian Chiefs: (250) 490-5314 Jamie Biggar, 778-847-8205

Hupacasath First Nation won’t back down in the fight against Canada China FIPPA


Hupacasath First Nation has moved its legal challenge to the Canada China FIPPA on to the Federal Court of Appeal.

Brenda Sayers speaks on Parliament Hill

What if provincial governments were as brave as Hupacasath First Nation?


If you missed reading this article by Murray Dobbin, it is well worth the read.

Canada is truly “on the brink.”

An Important Message from Hupacasath First Nation

These are historic times for First Nations and the people of Canada because Hupacasath Chief and Council made perhaps their biggest decision on record:

To continue the pursuit of justice for themselves, First Nations across the country, and all the people of Canada.

Chief and Council are prepared to move forward with an appeal of the Chief Justice’s decision with one important stipulation:

The amount of $300,000 needs to be raised by September 26th, 2013.

As you are well aware, the Chief Justice awarded significant costs against Hupacasath First Nation as part of his decision, and if an appeal is not successful, further costs may be awarded against Hupacasath. This is a burden that Hupacasath simply cannot bear alone.

The $300,000 will cover Hupacasath’s own legal fees plus current and any future awards of court costs.

While Hupacasath is fighting to have the federal government consult First Nations before ratifying FIPPA, this trade agreement will have a profound affect on ALL Canadians from coast to coast to coast. Our small nation of 300 members simply cannot absorb the costs and penalties associated with this fight for justice.

Various commentators have weighed in and concur that First Nations should be consulted when it comes to ratifying international trade agreements. Without a doubt, these trade agreements will affect First Nations’ rights and title interests for a very long time.

Hupacasath, with the support of all people of Canada, is forging new legal ground in this precedent setting case.

Is this worth the fight?   Yes, it is! 

Is it worth taking a chance for the sake of Canada?  Yes, it is!

So, let’s join together and tackle this seemingly big task of raising $300,000 before September 26th.

When “We Stand Together,” all things are possible!  We can do it.


Brenda Sayers

Hupacasath Continues to Fight for Justice


the courageous First Nations community 300 members strong,

WILL APPEAL the decision handed down by the Federal Court 

IF funds can be quickly raised to pay legal costs.


Is Canada worth the fight?

Is it worth taking a risk for the sake of Canada?


When “WE STAND TOGETHER,” all things are possible!  We can do it.