CONTRIBUTION · 31st October 2012
ALERT: THE CANADA - CHINA FOREIGN INVESTMENT PROMOTION AND PROTECTION AGREEMENT (FIPA) THREATENS INDIGENOUS RIGHTS
Canada has negotiated a Foreign Investment Promotion and Protection Agreement (FIPA) with China, which was finalized in September 2012. It has the Government of Canada and the Government of the People's Republic of China as parties and states as its purpose the "Promotion and Reciprocal Protection of Investments".
The agreement applies to all measures adopted by the Government of Canada relating to investments, and all entities that exercise any regulatory, administrative or other governmental authority delegated to it. It accords most-favoured nation treatment and national treatment to Chinese investors; and prohibits expropriation of Chinese investments in Canada, which are defined very broadly. Most-favored nation treatment mean Canada cannot treat China and its investors less favourably than those from other countries, while national treatment means Canada cannot treat its own investors, including the economic ventures of Indigenous Peoples, more favourably than those of China. The agreement includes Part C - on settlement of investment disputes which allows investors from China to bring a claim for breach of an obligation under the agreement against Canada. The claim will be dealt with by way of arbitration, which can result in large settlement awards, and serve as a disincentive to impose regulations and negotiate honourably with First Nations.
Prime Minister Harper has already signed off on the FIPA with China, which is now in the ratification process. It has been submitted to parliament, where it has to be tabled for 21-sitting days, before steps can be taken to bring it into force, a time period that will expire by the end of October 2012. The FIPA will enter into force after the exchange of diplomatic notes between Canada and China; it cannot be terminated for 15 years and even if Canada gets out at that time, after termination FIPA’s rules would continue to apply to existing Chinese investments for another 15 years.
VIOLATION OF INDIGENOUS RIGHTS
FIPA does not directly reference Aboriginal and Treaty Rights, borrowing instead the limited provisions from the Canada-Peru Free Trade Agreement in which Canada "reserves the right to adopt or maintain any measure denying investors from the other party, service providers and their investments, any rights or preferences provided to Aboriginal Peoples." These reservations do not protect against claims of expropriation under the FIPA protections, which investment panels have interpreted very broadly. The language in the FIPA clearly aims to provide increased free access to indigenous lands and resources for Chinese investors (which is in effect a
subsidy to them, an argument Indigenous Peoples from British Columbia have been the first to make before international trade tribunals).
The Supreme Court of Canada has set out tests to ensure that Aboriginal Title and Rights are not violated and unjustifiably infringed. In response to Canada's business as usual approach it has developed requirements for consultation and accommodation of Indigenous Peoples in regard to developments and decisions that could negatively impact Aboriginal Title and Rights. Yet the government of Canada did not even engage in any consultation with Indigenous Peoples in Canada regarding the proposed FIPA with China.
Furthermore, international legal standards and principles foresee that Indigenous Peoples have to provide their prior informed consent to: developments proposed to take place on or impact their traditional territories; and to access to their resources. Article 19 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) sets out that: “States shall consult and cooperate in good faith with the indigenous peoples concerned…in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
China voted in favour of UNDRIP on September 13, 2007, during the vote in the UN General Assembly, Canada has since also endorsed UNDRIP. Rather than taking steps to implement UNDRIP and the constitutional protection for Aboriginal and Treaty Rights, Canada continued its policies that undermine indigenous rights, when entering into the FIPA with China.
The FIPA provides greater protection for Chinese investors than for Indigenous Peoples; it applies to all measures adopted by the Government of Canada relating to investments, and all entities that exercise any regulatory, administrative or other governmental authority delegated to it. It could enable Chinese investors to challenge regulations, including to protect the environment and indigenous rights.
The Canada-China FIPA could have devastating effects on Indigenous Peoples and Territories. It stated intent is to open the territories up for foreign investment and development. Indigenous Peoples have long been pushing for more sustainable development and priority resource allocation to Indigenous Peoples, which is also recognized by the Supreme Court of Canada, but could potentially be challenged under the Canada-China FIPA.
IMMEDIATE ACTION REQUIRED
This time before the Canada China FIPA comes into force is a critical time to raise awareness among Indigenous Peoples about its potential consequences on Aboriginal and Treaty Rights and to exercise pressure to ensure it is not brought into force. Indigenous Peoples as holders of constitutionally protected rights have standing to challenge the Canada China FIPA. A first potential avenue would be to seek injunctive relief to stop its ratification, due to the potential violation of Aboriginal and Treaty Rights. Another avenue could be a judicial review of the government decision to enter into the FIPA absent consultation with Indigenous Peoples and the potential impacts on Aboriginal Title and Rights. Now is also the time to let Prime Minister Harper know that Canada has not yet dealt with its legal obligations to First Nations regarding the FIPA with China and thus cannot give notice to China that it has done so; nor should Canada proceed with steps to finalize ratification until it has addressed its legal obligations to First Nations.
Comment by old man 62 on 15th January 2013
Why does Harper HATE Canandians so much? I wonder what dark cloud guides him.