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Court dismisses First Nations challenge against Canada-China FIPA

A British Columbia First Nation's challenge against the Canada-China Foreign Investment Protection Agreement (FIPA) has been dismissed by the federal court.

The Hupacasath First Nation says the federal government failed to meet its constitutional duty to consult with the community before signing the trade agreement and that the FIPA is a violation of their rights to self government.

They argued to the federal court that the agreement would have potentially damaging effects on the environment and that if the Canadian government sought to improve environmental legislation, the agreement would enable Chinese companies to easily sue Canada.

This claim is in reference to NAFTA's Chapter 11, which allows corporations to sue the countries involved in the agreement if actions taken by those nations violate laws under that agreement.

But the federal court Tuesday did not find these claims to be justified. In the court ruling, Chief Justice Paul Crampton wrote that the potential adverse effects that the Hupacasath submitted "are non-appreciable and speculative in nature."

"I also find that HFN has not established the requisite causal link between those alleged potential adverse impacts and the CCFIPPA," Justice Crampton stated.

The agreement between Canada and China, without engaging in consultation with the Hupacasath, would not contravene Canada's duty to consult before taking action that could negatively impact a First Nations community, the decision added.

The federal government has maintained that the agreement between Canada and China does not violate its duty to consult with First Nations.

In a memorandum presented to the federal court in June, the government stated that Chinese companies do not have any investments in Hupacasath territory so any government breach of the FIPA, and if China were to sue Canada as a result, would not affect the First Nations community.

The court's final decision has been a long wait for involved parties and had been expected to come in the fall of this year. The wait has caused delays in the final ratification in the FIPA between Canada and China, which was first signed almost a year ago.

The Hupacasath First Nation, and organizations that supported their case including the Council of Canadians and Idle No More, tried to make use of those months in limbo.

Earlier this summer Brenda Sayers of the Hupacasath went on a tour of Ontario and Quebec cities to raise awareness and support of her community's case. Another purpose of the tour was to raise money for an appeal -- to either fight the federal government's appeal if the Hupacasath’s application was permitted or to lead their own if it was dismissed, as it was today.

However, Catherine Boies Parker, from the law firm representing the Hupacasath case, said a decision will be made about whether or not they will appeal once the lawyers and clients have had a chance to sit down and review the court's decision, likely next week.

Laura Beaulne-Stuebing covers aboriginal affairs and social issues for iPolitics, where this article first appeared.

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