Hupacasath Falls Short In Canada-China Treaty Court Appeal

The Hupacasath First Nation has lost its bid to derail the Canada-China foreign investment promotion and protection agreement (FIPA).The Canadian Federal Court of Appeal released a 41-page judgment against the Hupacasath First Nation on Jan. 9. The ruling upholds the federal court’s original decision on August 2013.“The Federal Court’s overall conclusions – that the appellant had not established a causal relationship between the effects of the foreign investment promotion and protection agreement upon the appellant and its asserted rights and interests and that any effects upon the appellant were “non-appreciable” and “speculative” – were predominantly factual in nature and deserve deference.


The Canadian Federal Appeal Court struck down the Hupacasath First Nation’s challenge of the Canada-China FIPPA treaty. A Supreme Court challenge could be in the offing, Hupacasath member Brenda Sayers said.


These conclusions were amply supported by the evidentiary record,” Justice Stratus noted in the reasons for judgment. “Accordingly, Canada did not have to consult with the appellant before entering into the foreign investment promotion and protection agreement. Therefore, I would dismiss the appeal with costs.”The tribe’s legal costs are expected to amount to more than $100,000 but it is covered by crowd funding raised through Leadnow.The Hupacasath are a 300-member tribe located on the West Coast of Vancouver Island.The decision isn’t surprising, said Hupacasath tribe member Brenda Sayers, who spearheaded the case.“Stephen Harper ratified FIPPA last September while this case was still before the courts…something like this was to be expected,” Sayers said.

Last year’s Tsilhqot’in decision granted a declaration of aboriginal title to the Tsilhqot’in people in the B.C. Interior. It also posed that governments can’t interfere with the Tsilhqot’in’s use of the lands and resources without their consentBut the case didn’t affect the appeal court’s decision. “I conclude that Tsilhqot’in Nation has not changed the law concerning when Canada’s duty to consult is triggered,” Stratus noted.According to the decision, Hupacasath concerns about potential impacts of FIPPA on their interests were speculative, a point Sayers disagrees with.

If China had an interest in a logging company that wanted to log a Hupacasath site the tribe would oppose it. Under terms of the agreement China could then sue Canada for loss of revenue.Municipal and provincial governments could also be impacted, Sayers said. “The same principle would apply to a municipality that wanted to protect its water source from such a Chinese company that intended to log too closely to it,” she said. “This provision will have a chill effect on government’s crafting new or improved regulatory standards.”Hupacasath lawyers will be analyzing the decision to determine if a Supreme Court challenge is in order.If the case advances, a new crowd funding initiative will be undertaken, Sayers said.