Hupacasath FIPA appeal exposes China-Canada trade agreement's flaws

In their fight for consultation on the China-Canada FIPA agreement, the Hupacasath First Nation have also managed to expose the mechanisms within the investor state agreement which could change the legislative climate across the country, regardless of where public opinion lies on issues such as the Northern Gateway.

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The concerns around FIPA’s impact on democracy and the environment become starkly clear when considering the scenario posed by the Northern Gateway. From oil sands developments to pipelines to shipping, Chinese investment in transforming B.C. into an ‘energy corridor’ to Asia exceeds $30 billion.

The FIPA is a move to lock-in those infrastructure investments which China is making in their efforts to bring oil and gas across the ocean. Under FIPA, Chinese companies could sue Canadians if legislation were passed to protect First Nations rights and title and, by extension, the public interest— leaving Canadian taxpayers on the hook for damages.

“If FIPA is ratified, all the hard work that has gone into fighting Northern Gateway is lost,” says Sayers. 

“Harper saw the pipeline resistance coming. FIPA was his end run: he wanted to make sure that no matter how much resistance to Enbridge that there was, the west would be moved. Resistance would be moot.”

A rush to ratify

The Hupacasath aren’t alone with their trepidations about FIPA. While Ed Fast has blamed government’s failure to ratify the CC-FIPA on the Hupacasath case, NDP MP Don Davies believes the FIPA has been stalled because the Harper government failed, in their haste to sign the deal, to catalogue the exemptions, or ‘non-conforming’ measures, that China had carved out for itself. 

“I believe there are many non-conforming measures. They may number in the hundreds, or the thousands,” says Davies, who brought a motion before Parliament last spring to reject FIPA.  “Canadian investors will be subject to far more barriers than Chinese investors in Canada. This leads to an unbalanced agreement.” 

Scott Harris agrees. “The benefits for Chinese investors, the protections they get in Canada, are far greater than the protections Canada would get in China. The agreement allows current discriminatory practices to be locked in, and China has far more discriminatory practices than we do.”

In fact, Davies thinks the Conservative reluctance stems from evidence being brought forward that shows the government rushed the deal without reading China’s fine print.  “While I have great respect for the First Nation lawsuit, I actually think that it’s the non-conforming measures that has caused the government not to ratify. When I asked DFAIT for the list of non-conforming measures that exist in China, they said they’d get back to us. They never have.”

Says Davies, “Can you imagine signing an agreement with a country as powerful economically as China, for a potential 31 years, that allows you to keep non-conforming measures in place, and you never bothered to find out what they were? That is sheer incompetence.”

Whatever the real reason behind the back-peddling on FIPA, the Hupacasath case has brought the FIPA to the public attention. 

Meanwhile, with investment from China proceeding apace, the FIPA holdup does not seem to be deterring speculators keen to see new fossil fuel corridors opened up to BC’s coast.  “There’s no agreement about whether FIPAs actually stimulate foreign direct investment. ,” says Harris.  “What we do know is that they lock in very powerful corporate rights.”

“Numerous countries around the world are starting to realize how problematic the Investor-State Dispute Settlement processes are,” Harris continues. “In Europe, the discussions around treaties involving ISDS have been shut down while the European Union conducts a three month consultation process.”

The Hupacasath are calling for exactly that sort of dialogue to take place here. In their fight for consultation, they have also managed to expose the mechanisms within FIPA which could change the legislative climate across the country, regardless of where public opinion lies on issues such as the Northern Gateway.

Sayers takes heart in the fact that the appeal was accepted. “I’m just amazed that we’ve made it this far,” she reflects. “Hupacasath has been speaking the truth and will continue to speak the truth.”

Grand Chief Phillip agrees. “We should have been shut down, if our arguments had no merit. It was clear from (June 10th’s) hearing that Canada didn’t feel totally confident,” Phillip said.  “Whatever the outcome we’ll continue to fight the good fight.”.

The Department of Justice lawyers recommended that the Hupacasath case be dismissed with costs payable. Yet, thanks to First Nations, Canadians have looked under the hood on FIPA, foiling Harpers attempt to drive through what experts agree is an ill-considered and lopsided treaty.  Win or lose—the Hupacasath have scored a victory for democracy.

This piece originally appeared in the Watershed Sentinel. 

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