This article originally appeared on the Dogwood Initiative blog.

With final arguments in the Kinder Morgan pipeline review underway in Burnaby, a top Chinese official is using the moment to offer Canadians a deal. During his visit to Ottawa last Friday, Han Jun, China’s Vice-Minister of Financial and Economic Affairs, said the world’s second-largest economy would be willing to sign a Free Trade Agreement with Canada — but only if we build a pipeline to the West Coast.

Signing an FTA, Han suggested, would give Canadian agriculture and energy producers greater access to China’s domestic market. In return, Beijing also wants restrictions lifted on takeovers of Canadian companies by Chinese state-owned enterprises (SOEs).

China has been working to gain access to Canadian oil reserves for more than a decade. As Enbridge’s first partner on Northern Gateway in 2005, state-owned PetroChina pledged to purchase up to half of the pipeline’s capacity, but became frustrated by delays and eventually pulled out of the project.

In the years following, China’s SOEs invested billions into the Canadian oil patch, culminating in the 2013 purchase of Nexen by the Chinese National Offshore Oil Corporation (CNOOC) for $15 billion. (In a tragic coincidence, hours after Han spoke in Ottawa, an explosion at Nexen’s Long Lake facility killed one worker and left another critically injured.)

After the Nexen takeover, which prompted concerns about China’s human rights record, labour practices and one-way approach to investment, Prime Minister Stephen Harper brought in restrictions on future purchases of Canadian firms by Chinese SOEs. Angered by the gesture, the Chinese administration shelved negotiations on a Canada-China trade deal.

Now Beijing is back, once again dangling the prospect of free trade. Right on cue, two friendly think tanks — the Canada-China Business Council and the Canadian Council of Chief Executives — released a report arguing that a trade deal with China would boost Canadian exports by $7.7-billion over the next fifteen years and create 25,000 additional jobs.

“During the term of Prime Minister Justin Trudeau there are rare, historical opportunities between China and Canada,” Han told the Globe and Mail. Here in Canada, influential members of the Liberal family are working hard to prove him right.

Having served as Jean Chretien’s former Deputy Prime Minister (as well as Minister of Finance, Foreign Affairs, and Industry), John Manley is perhaps the most visible former Liberal lobbying for closer economic ties to China. Manley is President and CEO of the Canadian Council of Chief Executives, which co-authored the Canada-China FTA report.

The CCCE’s Chairman is Paul Desmarais Jr., whose day job is Chairman and Co-CEO of Power Corporation of Canada. Having employed at different times Jean Chretien, Paul Martin, and Pierre Trudeau, the late Paul Desmarais Sr. was also the founding Chairman of the Canada-China Business Council, which is the other co-author of the above-cited FTA report.

The CCBC is stacked with Liberal heavyweights. Its current Chairman, Peter Kruyt, works for Desmarais at Power Corporation, while its Vice Chairman is former Liberal Justice Minister Martin Cauchon. The CCBC’s President is Peter Harder, a highly-respected former federal civil servant. When Justin Trudeau needed an experienced set of hands to oversee his transition into government, he called Harder.

None of this is to suggest that further trade with China is in itself a bad idea. But the terms on which we negotiate such a deal must be fair to Canadians, as well as uphold the country’s duties to First Nations. By cheerleading publicly for an FTA, old-guard Liberals like Manley and Desmarais increase the pressure on Trudeau to cut a quick deal on China’s terms.

Don’t forget, any new trade deal would take effect in addition to the Canada-China Foreign Investment Promotion and Protection Agreement ratified by the previous government. The FIPA, from which Canada cannot fully withdraw for the next 30 years, locked in more wide-ranging investment rights for Chinese companies than Canadian firms get in China. That’s why signing the FIPA before negotiating a Free Trade Agreement was a mistake by the federal government, according to one of the treaty’s most vocal critics.

“The sequencing works in China's favour,” says Osgoode Hall law professor Gus Van Harten. “China is the capital exporter in the relationship, so it has the greater interest in a FIPA that provides special rights and protections to each country's investors in the other country. I would say that, with the FIPA, the Harper government gave away one of Canada's bargaining chips to get a favourable trade deal. Now we should be going into trade negotiations with a view to repairing some of the flaws in the FIPA, which will not be straightforward or easy.”

Among the problems with the FIPA — at least for Canadians concerned about environmental laws or labour standards — is the right of Chinese corporations to sue Canada over decisions by courts or legislatures that are seen to interfere with their investments. These investor-state disputes are settled in secretive international tribunals overseen by for-profit arbitrators, and can force host countries to pay damages in the billions of dollars. (For more on the Canada-China FIPA, see Sold Down the Yangtze by Gus Van Harten).Add up the lopsided terms of the FIPA and the sudden pressure on Trudeau to conclude a Free Trade Agreement and the picture becomes clear. China intends to use this next round of trade talks to get what it has wanted for more than ten years: ownership of Canadian energy assets and secure access via pipelines and supertanker terminals on the West Coast.

Let’s curtail any accusations of Sinophobia, right here and now. My family was the victim of the same ‘yellow peril’ discourse that has simmered below the surface of B.C. politics for more than a century. This is not about racism toward Chinese people. This is about protecting our sovereignty — Canadian sovereignty, B.C. sovereignty and Indigenous sovereignty — from a powerful international trading partner.

Prime Minister Trudeau’s job is to balance the pressure coming from the likes of Han Jun, John Manley and Paul Desmarais Jr. with the legal and political realities here in British Columbia. Just last Monday the B.C. government came out in opposition to Kinder Morgan because the company has no credible plan to clean up toxic, sinking bitumen. Municipalities and First Nations around the Salish Sea applauded the province’s move.

Then on Wednesday the B.C. Supreme Court delivered the game-changing Gitga’at ruling, concluding that B.C. erred in signing away its duties of consultation around Enbridge’s Northern Gateway proposal. That ruling has clear implications for theKinder Morgan review, which relies on the same “Equivalency Agreement” between B.C. and Ottawa. Pipelines, as it turns out, are not the exclusive domain of the federal government.

As Beijing ramps up its campaign for a West Coast pipeline approval, our job will be to support those Members of Parliament looking to do right by their constituents — and prevent another cave-in like what happened with the FIPA. Simply put, if the cost of a trade agreement involves dangerous bitumen-laden supertankers on our coast, then the people of B.C. aren’t going to accept the terms. We have just under two months to make that clear before Trudeau heads on his first trade mission to China.

Image: Prime Minister Photo Gallery

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This is a guest post by Gus Van Harten, professor at the Osgoode Hall Law School and author of Sold Down the Yangtze: Canada's Lopsided Investment Deal with China. This post originally appeared on the Globe and Mail.

For years, Prime Minister Stephen Harper’s government told Canadians that it could not act on climate change until China joined in. Yet, in 2014, the government quietly finalized a 31-year investment treaty that, in essence, gives Chinese oil companies an advance bailout against a range of steps that Canada may need to take on climate change.

Take, for example, the call by more than 100 scientists for limits on oilsands expansion until a serious Canadian plan on climate change is in place. What is a serious plan? The scientists said it would need “to rapidly reduce carbon pollution, safeguard biodiversity, protect human health and respect treaty rights.”

Now, consider Canada’s new Foreign Investment Promotion and Protection Agreement (FIPA) with China. 

The deal gives Chinese companies powerful rights to frustrate even modest steps that reduce the value of their oilsands holdings. That is, if governments in Canada put new limits on the oilsands, they face major liabilities under the FIPA’s system of foreign investor protection. Worse, Canadians cannot know reliably how the FIPA is being used – and whether it is affecting government decisions – because the agreement makes special allowances for confidential settlements with Chinese investors.

On a close study of the FIPA’s terms, a key purpose of the deal was to open Canadian resources to China and to preserve the value of Chinese assets in Canada. In the case of the oilsands, there are already billions of dollars in Chinese-owned assets and expected profits that would be affected by a tougher response on climate change. If China is not on board for how we decide to regulate in Canada, we will have a problem, owing to the FIPA.

Read DeSmog Canada's in-depth interview with Gus Van Harten on the Canada-China FIPA

China-Canada Investment "Straightjacket": FIPA Interview with Trade Investment Lawyer Gus Van Harten

Can we expect FIPA arbitrators to award billions of dollars in compensation to Chinese companies? The short answer is yes. In the past few years, there have been huge awards to oil companies under similar investment deals: $2-billion (U.S.) against Ecuador, $50-billion (U.S.) against Russia.

True, these cases differ from potential disputes about climate change in Canada’s resource sector. But it is not unrealistic to expect FIPA arbitrators to (1) issue compensation orders against Canada, since they’ve done so in various North American free-trade agreement cases already, and (2) order vast amounts to be paid by Canadians, since they’ve done so against other countries, and the amounts reflect the value of the foreign investor’s assets, not the Boy Scoutishness of the condemned country.

At the least, the FIPA has made it more difficult for governments in Canada to take action on climate change, assuming that governments are (usually) careful with billions of dollars in public money. Put differently, the challenging question of how to respond to climate change in the oilsands is a danger zone under the FIPA, because much of the oilsands are Chinese-owned and because the Chinese owners will not take kindly to government interference with their business plans.

You may ask, why would the federal government agree to a FIPA with China that puts an uncertain and uncontrollable price tag on Canada’s options to respond to climate change – and other important issues too? Why would the government move power over our future from Canada’s legislatures, governments, and courts to Chinese investors and FIPA arbitrators?

I think the straightest answer is that Mr. Harper seems to have wanted it that way. If one accepts climate change as a pressing concern, it is hard to imagine a more epic fail than the FIPA.

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When I asked the Canadian Security Intelligence Service (CSIS) whether it has files on me or DeSmog Canada, I got a response that's been used as a non-answer by government spokespeople and celebrity publicists for 40-plus years: We can "neither confirm nor deny" the records exist.

The intelligence body doesn't have to disclose such information because it's exempt from Canada’s Access to Information legislation since it relates to “the detecting, preventing or suppressing subversive or hostile activities.”

Hmph. Some part of me was expecting them to simply say "no." While non-denial denial responses like this are pretty par for the course when dealing with intelligence services — the phrase was first conjured up during a clandestine CIA submarine operation in the 1970s — it's disconcerting in light of the federal government’s proposed anti-terrorism bill C-51, which would increase the powers of CSIS and its role in government-sponsored spying.

As others have pointed out, bill C-51 will allow dangerously strong measures to be taken against even perceived terror threats or individuals that pose a threat to Canada’s critical infrastructure, such as pipelines, or the nation’s financial security.

The language in bill C-51 has been roundly criticized for being so broad that it endangers the democratic rights of Canadian citizens and their ability to engage in legitimate dissent. Under the new legislation, CSIS could foreseeably monitor the activities of ordinary Canadians participating in community organizing, climate activism, blockades, strikes or pipeline protests.

As a recently leaked RCMP intelligence report highlights, environmental and First Nation groups are already targeted for surveillance in Canada and are being characterized (some say hyperbolically) as “violent anti-petroleum extremists.”

As an editor at a news outlet that routinely reports on energy and environment issues directly related to "critical infrastructure," I thought it sensible to submit two requests to CSIS through the Access to Information and Privacy Act to see if any records came back.

For the record, I have no particular reason to think CSIS is monitoring either me or DeSmog Canada. To be sure, they have no legitimate reason to. But I find the inability to know whether we've been swept up in the spy agency's wide net concerning, as many other Canadians likely would.

Unfortunately, when it comes to CSIS, Canadians can expect very little transparency, a cause for additional concern when you recall Harper eliminated the position of the CSIS watchdog in 2012. The only overview of CSIS is handled by the Security Intelligence Review Committee (SIRC), a body comprised of part-time appointees with limited resources that assess CSIS operations after-the-fact.

DeSmog Canada's CSIS Privacy Request for Editor Carol Linnitt by DeSmog Canada

DeSmog Canada's CSIS Access to Information Request by DeSmog Canada

I reached out to Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association (FIPA), to see what he makes of these responses from CSIS.

"It certainly looks like the way the law is being interpreted there really aren't any 'citizens above suspicion,’” Gogolek said. “Or at least CSIS apparently won't confirm or deny” if such citizens exist.

Gogolek said it’s fair CSIS wouldn’t want to release information relevant to an ongoing investigation through the Access to Information process, but added, “likewise they shouldn't use this as a blanket excuse to refuse to release information."

Access to Information Act Gutted Under Harper 

Reg Whitaker, distinguished research professor emeritus at York University and adjunct professor of political science at the University of Victoria, is a national security expert who has written several books on the topic including The End of Privacy: How Total Surveillance is Becoming a Reality.

Whitaker said when it comes to transparency, the Harper government has successfully gutted the Access to Information and Privacy Act over the last several years.

“Their idea is: you let out as little as possible, you make it as difficult and you make it as expensive as you can to make it difficult to use the Act in the first place,” Whitaker said.

“That’s not necessarily related to CSIS or the RCMP or surveillance of ongoing movements,” he conceded. “There’s just a general tendency that they are trying to stop up the flow of information about what they’re doing generally across the board.”

But when it comes to CSIS, Whitaker said, “there’s this extra sensitivity, obviously.”

As the Harper government looks to expand the power of CSIS under the name of “counter-terrorism,” Whitaker said, “we know they are focusing on activist groups and certainly anti-pipeline groups, or more generally groups focused on resource issues and mega projects that have the highest priority in this government.”

“They will always claim that they’re only focusing on the potential for violence, therefore it falls into the category of terrorism. But there’s no way they can carry on the surveillance of potential violent activity of these groups without spying on these groups.”

“They are doing it and they’re very sensitive about trying to make sure there is as little information getting out there as possible,” he said.

But information still has a way of getting to the public, Whitaker added, such as the leaked RCMP intelligence report first published on DeSmog Canada.

Whitaker acknowledges there is no way to know if myself or DeSmog Canada is being monitored by CSIS.

“I don’t know if in your case that what’s happened with your request signifies you’re a target,” he said. “It could well be that you’re not. But they’re going to give you the same answer whether you had been a target that sought their files, or someone who wasn’t but thought they might be.”

RCMP and CSIS Risk Losing Social Licence

And that’s a problem, Whitaker said, arguing the outcome of a surveillance campaign like this will be growing social mistrust.

“The implications are not going to be good for social licence,” he said. “It’s a pretty fuzzy concept, but it’s a phrase that is used a lot these days.”

Whitaker said it is clear pipeline proponents Enbridge and Kinder Morgan have lost their social licence with individuals worried about the environment, First Nations and “generally the population of British Columbia feeling they’re having these juggernauts rammed down their throats.”

In much the same way, the RCMP and CSIS risk the social licence they require to adequately address real security threats.

“With CSIS and the RCMP in fighting terrorism, it’s very important, I think, that they — and in their more lucid moments they’d agree, I’m sure — that they have social licence.”

But with the looming implications of Bill C-51 both CSIS and the RCMP put their social licence at risk.

“What they’re in danger of doing now as bill C-51 goes through and their powers get greatly expanded and the definition of what they’re looking at is being expanded so broadly, well beyond terrorism in fact…they are going to seriously lose that social licence with a much larger proportion of the Canadian population.”

The loss of public support is something “they ought to be very worried about,” Whitaker said, adding it’s unclear “how much they are being pushed by the present government to focus on the quote-unquote anti-petroleum movement, etc. and how much is coming from within CSIS and the RCMP.”

“But certainly pressure has been coming from government.”

Image Credit: Emory Allen via Flickr

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The Harper Government ratified the controversial Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) Friday after secretly signing the deal with China in Vladivostok, Russia in September 2012.

The Canadian public has been offered no opportunity to clarify the details of the agreement or discuss its economic or environmental implications even though FIPA is the most significant trade and investment deal in Canada’s history since NAFTA.

The Canada-China FIPA is a bilateral trade agreement intended to protect and promote international trade and foreign investment between nations through legally binding agreements.

Canada has 24 similar trade agreements with other nations including Russia, Argentina and the Czech Republic. The Canada-China FIPA has been widely criticized as lopsided, given China’s significant investment in Canada's economy and natural resources.

Critics expressed concern over FIPA after Prime Minister Stephen Harper approved the $15.1 billion acquisition of Canadian-owned Nexen Inc. by the Chinese National Offshore Oil Company (CNOOC), a state-owned enterprise.

The presence of massive Chinese state-owned investments in Canada have led some to worry over the legal significance of FIPA.

Ed Fast, Minister of International Trade, said trade agreements like FIPA, "provide the protection and confidence Canadian investors need to expand, grow and succeed abroad," in a press statement released today.

“We remain committed to opening new markets around the world for Canadian companies, including in the fast-growing Asia-Pacific region. This FIPA will create jobs and economic opportunities for Canadians in every region of the country.”

Kai Nagata, energy and democracy director for the Dogwood Initiative, a democracy advocacy organization, said this treaty “takes decision-making power away from Canadian citizens, and puts the future of our economy in the hands of China's state-owned corporate behemoths."

“This has serious implications for our democracy, and that's why so many true conservatives are worried,” he said.

In 2012 Dogwood asked 7,000 Conservative donors to share their thoughts on the investment deal. According to Nagata 72 per cent said they would consider withdrawing financial support from the Harper Conservatives if the deal was ratified.

“Today marks a turning point,” Nagata said. “Harper has turned his back on Canadians, including the grassroots members of his own party, simply to save face with the regime in Beijing."

International investment lawyer and trade agreement expert Gus Van Harten told DeSmog Canada in 2012 the Canada-China FIPA essentially threatens Canadian sovereignty.

“What’s really different about the China-Canada investment deal,” he said, “is that it allows disputes about how laws and regulations or even court decisions have been made, to be decided outside of the Canadian courts.”

Under FIPA, disputes that have the potential to affect Chinese investment – whether they concern resource development, environmental law or the rights of Canadians citizens – will be resolved through international arbitration, without the knowledge or input of the Canadian public.

“The China-Canada investment deal and many of these other investment treaties…gives the power, and quite immense power, to the investor to challenge any decision that Canada would make, whether by the Canadian Parliament, or a provincial legislature, by the Supreme Court of Canada or a lower court, or by Cabinet or some low-level government official,” Van Harten said.

“Anything can be challenged by skipping Canadian courts and going straight to these international arbitrators.”

Because of this new legal obligation to protect Chinese investments, critics are worried the concerns of Chinese investors will take precedence over the rights of First Nations in local land and resource disputes, especially considering the presence of Chinese investment in Enbridge’s Northern Gateway pipeline.

The Hupacasath First Nation launched a legal battle against the agreement last June with the support of the Tsawwassen First Nation, the Union of British Columbia Indian Chiefs, the Serpent River First Nation in Ontario and the Chiefs of Ontario.

The Canadian federal court rejected the challenge in August 2013, saying the First Nation had not demonstrated the agreement would have adverse impacts on Aboriginal rights. Brenda Sayers, from the Hupacasath, told the CBC the federal government agreed to “hold off on the ratification until due process took place in court.”

Jamie Biggar, executive director with Leadnow, an independent advocacy organization that promotes participatory decision-making and democracy, told DeSmog Canada the agreement should not be permitted to threaten First Nations’ constitutional rights.

“Today Prime Minister Harper is showing his disrespect for the legal process by ratifying this agreement before the courts have finished reviewing the case,” Biggar said.

"A massive citizen response and the Hupacasath First Nation's legal challenge has delayed ratification of this secretive and extreme investor deal for two years longer than anyone thought possible,” he said.

“Tomorrow there will be a new wave of people working to hold this government accountable at the ballot box in 2015, and undo the damage that it's done."

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After three days of arguments in the federal court of appeal in the Hupacasath First Nation’ challenge against the Foreign Investment Protection and Promotion Agreement (FIPPA, also known as the Canada-China Investment Treaty) – all that’s left is the waiting.      Beginning Wednesday morning, lawyers for the Hupacasath spent the first day and a half working to establish the threshold at which the Crown’s duty to consult would be triggered.

Lawyer Mark Underhill approached the case from two directions. The first line of argument was what he called the treaty line, which stated that since Aboriginal peoples are granted the right of self-government, the duty to consult is triggered in any instance in which that right is affected, whether the individual nations are part of a treaty with the Canadian government or not.

Like the vast majority of First Nations in British Columbia, the Hupacasath have never signed a treaty with the Canadian government. Regardless, the nation falls into the category of sub-national government, which means that it’s bound by any legal agreement that binds the federal government.

Underhill’s argument hinged upon the fact that the international agreement has an impact on the Canadian government and all of its sub-national governments, which includes First Nations’ governments. The case is not a constitutional challenge to FIPPA itself. Underhill was clear about repeating this point during his closing statements on Friday.

“The argument is, as I hope you now appreciate, that the day after the [Canada-China] FIPPA is ratified, it will amount to a restraint on Aboriginal governance whether exercised through Aboriginal right of self-government or codified in a treaty such that it’s a treaty right of self-government.” There would be a shift in regime, he said, and therefore the duty to consult should have been triggered.

The second strain of the Hupacasath’s argument dealt with the impact ratifying the Canada-China FIPPA would have on the Canadian government’s ability to fulfill its constitutional obligation to protect and accommodate First Nations’ rights and title.      Crown attorneys representing Canada’s Foreign Affairs Minister told the court that this new treaty would in no way impact domestic law, meaning Aboriginal peoples' constitutional rights would in no way be affected. “The treaty does not represent a fetter on the Crown to deal honourably with Aboriginal people,” the Crown attorney told the court.

The Crown argued three main points. The first is the status of FIPPA as an international agreement requiring no change in domestic law. Crown attorney said the links between the FIPPA and domestic law weren’t strong enough to “attract the application of the constitution.”

The second point was that, although the FIPPA doesn’t trigger the Crown’s duty to consult, the international agreement doesn’t absolve the Canadian government from managing land and resources according to its constitutional obligations to First Nations.

The third and crucial point focused on what it called the speculative nature of the application, arguing that there is no direct correlation between ratifying the FIPPA and adverse affects on the Hupacasath.

Chief Justice Paul S. Crampton is expected to make his decision in about a month.

Brenda Sayers of the Hupacasath First Nation says that, win or lose, she’ll continue to spread the word about FIPPA and other legislation that affects all Canadians. “My plan is to make it even bigger,” she said. “My idea from the beginning was to approach the unions because unions have the ability to reach millions of Canadians in a very short period of time.”

She cited what Grand Chief Phil Stewart of the Union of British Columbia Indian Chiefs calls the thin red line, referring to the small number of First Nations people fighting national battles to protect the environment for all Canadians.

“We’re trying to create a new path, a new way of bringing people together and exercising our constitutional right to participate in the formation of Canada, and how can you do that if you have a government that’s not listening to the people of Canada? In fact outright ignoring the people of Canada?”

Image Credit: Photo by Erin Flegg

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After public outcry was ignored and the NDP’s motion to reject the agreement dismissed, the Hupacasath First Nation is the only thing standing between the Harper government and the ratification of its Foreign Investment Protection and Promotion Act (FIPA) treaty with China.

The Hupacasath will be in court June 5-7 when the judge will hear final arguments from both sides. This is the last step in a nine-month long process to stop the Government of Canada from signing a treaty that would give Chinese companies the power to exploit First Nations’ territory without consulting First Nations people. A decision is expected no earlier than a month from the closing arguments.

With support from the Tsawwassen First Nation, the Union of British Columbia Indian Chiefs, the Serpent River First Nation in Ontario and the Chiefs of Ontario, Hupacasath spokesperson Brenda Sayers believes the case is strong.

“I’m feeling very positive that things will fall in our favour. We have a strong argument that we’ve put forth under section 35 of the constitution.”

The tiny nation from the Alberni Valley in BC, caught on to the agreement, signed in secret last September with the intention of ratifying it in November, and filed the court challenge that stalled the process. Last month, NDP MP Don Davies’ motion to refuse to ratify the agreement was voted down in House of Commons. The Hupacasath are now the last line of defence.

“This will affect our natural resources in our traditional territory to a great extent,” Sayers said. “China is the second largest economic power in the world, moving up to number one, and they have the power and the means to come in and buy Canadian companies and extract the resources from our traditional territory.” The terms of FIPA would mean that any attempt on the part of First Nations to protect their land could be seen as interfering with China’s right to profit, thereby triggering legal action against Canada.

The Hupacasath have also reached their goal of making the challenge publicly funded, raising more than $150,000 through a fundraising campaign supported by Leadnow and the Council of Canadians.

“The way that we’ve looked at this from the start is that it’s everybody’s court challenge. It’s everybody’s responsibility to support the work that’s been undertaken by the First Nations,” she said, adding that she’s disappointed that the provincial government still hasn’t stepped in to support its people.

One of the biggest challenges throughout the process has been getting the word out to Canadians and First Nations across the country. With little coverage from major media outlets, she said it has been difficult for the small nation—of less than 300—to reach a national audience.

“I said it from the beginning and I’ll continue saying it: we need the support. We can’t do it alone,” she said. “We need the support of Canada in a large way to end this thing. We need people to show that they’re not in favour of the Canada-China FIPA.”

The Hupacasath are calling for a Unity Gathering, a peaceful gathering of supporters outside the Vancouver Federal Courthouse on June 5, 6 and 7.

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Yesterday hundreds of indigenous and non-indigenous Canadians stood on Parliament Hill in Ottawa to greet the Nishiyuu walkers – a group of First Nations marchers who have gathered along the 1500 kilometre route between Whapmagoostui in Quebec's James Bay Treaty area and the nation's capital.

The youngest walker to speak on behalf of the group was an 11-year old girl who said she was marching on behalf of missing and murdered Aboriginal women in Canada.

Prime Minister Stephen Harper chose to dismiss the event, traveling instead to Toronto's Pearson Airport where he, along with his wife, Toronto Mayor Rob Ford and a high-school band, welcomed two panda bears on loan to Canadian zoos from China.

If the absurdity of the scene seems all too familiar, you may be recalling Rick Mercer's "Pandas and Pipelines" spoof video ad. Pandas and pipelines might be as confusing as hell, but look! A panda!

On the tarmac at the Pearson Airport Harper spoke of the bears as "symbols of peace and friendship with all Canadians." The cuddly creatures have been used to signify friendship between nations for centuries.

“Over the coming years these pandas will help us learn more about one another while serving as a reminder of our deepening relationship, a relationship based on mutual respect and growing collaboration … It is truly an honour to be entrusted with their care,” Harper said. Canada's growing relationship with China, especially in light of the Canada-China Foreign Investment Promotion and Protection Act (FIPPA), has been seen as a direct threat to First Nations constitutionally-protected rights.

This weekend Postmedia's Mike De Souza wrote about the Stephen Harper government's reluctance to disclose information regarding the pandas after an access to information request was filed on the issue. The Office of Information Commissioner Suzanne Legault conducted an investigation into the request after access to certain sections was denied by Environment Canada.

Legault found the request was "inappropriately responded to," according to De Souza. The government redacted the word 'loan' from an internal memo's title, as well as additional references to a 'loan' in the document. These redactions were reversed after Legault's investigation.

Harper's panda diplomacy might be as confusing as hell, but look! A panda!

Image Credit: PMO Image Gallery.

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Last week Foreign Affairs and International Trade Canada announced Canada had "officially joined the latest round of Trans-Pacific Partnership (TPP) trade negotiations" after more than two and a half years of talks by previously engaged nations. The 15th round of talks, involving Australia, Brunei, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the U.S. and Vietnam, wrapped up yesterday in Auckland.  The TPP has already been the cause of significant concern in the U.S. where citizen groups and elected leaders have argued the agreement is shrouded in secrecy, leaving the American public to speculate about its consequences. This summer, after members of Congress complained corporate access to the trade documents superseded their own, leaked portions of the agreement began to circulate online.    At the time Lori Wallach, director of Public Citizen's Global Trade Watch, said, "the outrageous stuff in this leaked text may well be why U.S. trade officials have been so extremely secretive about these past two years of [trade] negotiations."   During those two years, while Canada was vying for a seat at the TPP table, America made arguments that seemed to anticipate the furor Canadians would soon feel after the announcement of the Canada-China Foreign Investment Protection and Promotion Agreement, or FIPA.    Much like FIPA, the TPP grants unprecedented power to corporate entities with access to international tribunals that have the authority to overrule Canadian decisions regarding domestic policies that may apply to environmental regulation or reform, finance and labour policies and First Nations rights.   International investment lawyer and trade agreement expert, Gus Van Harten told DeSmog that Canada is currently on track to become "the most locked in developed country in the world in investor-state arbitration." He added, Canada is "proceeding recklessly" into this enfeebling agreement which will give "almost all foreign corporations in the country exceptional leverage to pressure governments behind closed doors."   The Harper government is selling out Canada's long term sovereignty and prosperity in what appears as a thoughtless gamble, without so much as a financial risk assessment. As Van Harten puts it below, "We do not intend to slip on the sidewalk in winter, but we still check for ice."   I asked Professor Van Harten 5 questions about the TPP and its relation to the politically-contentious FIPA. 

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The Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) may be ratified as soon as tomorrow, November 1. This despite a massive demonstration of Canadian opposition to the investment trade deal that will lock the federal government into a dangerously undemocratic agreement with China and Chinese investors for 31 years.

The proposed agreement, signed by Stephen Harper in Russia on September 9 and kept secret until September 26, is being strong-armed through the house of commons after the required 21-day session in Parliament.

Political action and environmental groups, opposition party leaders and experts in the field of international trade law are urging the Harper government to reconsider the agreement’s immediate ratification, demanding an open parliamentary debate before the trade deal’s future is decided.

So far all requests to throw out the deal, host a national debate, investigate the deal in emergency Parliamentary discussions, or indefinitely delay the deal’s ratification, have gone unheeded by the Harper government.

Under FIPA the federal government is obliged to protect investor rights and profits, even to compensate for lost profits. That means when it comes to disputes involving Chinese investors, like the one over the future of Enbridge’s Northern Gateway Pipeline, the Canadian government will have a duty to protect investor profits and not necessarily the jurisdictional rights of the British Columbian government, people or First Nations.

But as West Coast Environmental Law (WCEL) pointed out yesterday, First Nations people in Canada have a unique constitutional standing in the country, a standing that restricts the federal government from making decisions — without prior consultation — that affect First Nations’ constitutionally-protected Aboriginal Rights.

It appears the Stephen Harper government has not fully considered the fact that, as WCEL puts it, “by giving new rights to Chinese investors, the treaty risks undermining Canada’s obligations to deal in good faith with First Nations.”

When it comes to the China-Canada Investment Deal, not only has the Harper government failed to deal in ‘good faith’ with First Nations, but has failed to deal with First Nations at all. For this reason, the details of the treaty may be inconsistent with Canadian law.

According to WCEL Canada is hoping to ratify the trade deal through an “Order of Council,” which will see the deal implemented via Cabinet without any legislation. However, Canada is only meant to implement international treaties this way “once the treaty is consistent with Canadian law.”

Treaty implementation occurs in Canada this way because we’ve got what is called a dualist model: “a treaty that has been signed and ratified by the executive still requires incorporation through domestic law to be enforceable at the national level…Canada cannot ratify an international treaty until measures are in place to ensure that the terms of the treaty are enforceable in Canadian law.”

(This is different than America’s monist system where Congress has the power to ratify treaties, making them, in principle, U.S. law, adds WCEL).

So, are the terms of FIPA ‘enforceable’ in Canada?

Well, no. Not according to Section 35 of the Canadian Constitution which states that the Crown must make decisions “leading to a just settlement of Aboriginal claims.” The Crown also has a duty to consult and accommodate First Nations before adversely impacting Aboriginal Title and Rights.

Aboriginal Title and Rights include the right to exercise sovereignty over territorial lands, to fish and hunt traditional foods and to partake in ceremonial practices. What is immediately obvious to BC First Nations is that Canada’s duty to protect and ensure these rights runs into conflict with Canada’s proposed duty and obligation to promote and protect the rights of Chinese investors eager to make a profit of the country’s production and export of tar sands oil.

Yesterday the Union of BC Indian Chiefs addressed Stephen Harper directly on this issue.

As they outlined in an open letter, BC’s First Nations are concerned Canada’s ability to honour negotiations with aboriginal peoples will be limited while the legal threat of international arbitration hangs over the government’s head. This is especially pertinent to the development of the tar sands and the construction of bitumen pipelines — both of which pose a significant threat to First Nations’ territorial sovereignty and traditional, land-based ways of life.

“On behalf the Union of BC Indian Chiefs, we are writing to firmly express, advise and direct the Government of Canada to reject the Foreign Investment Promotion and Protection Agreement with China as the Government of Canada has breached its fiduciary duty to consult First Nations on our respective constitutionally-enshrined and judicially-recognized Aboriginal Title, Rights and Treaty Rights.

Furthermore, as both Canada and China have adopted the United Nations Declaration on the Rights of Indigenous Peoples, both countries are bound by Article 19 which states: “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.”

As designed, we believe that through the ratification of this agreement, China will be granted protection and would thus greatly increase their investment in the development of the Alberta tarsands, pipelines, mining projects and possibly future offshore drilling projects, all at a great cost to our Aboriginal Title, Rights and Treaty Rights.”

Source: Globe and Mail

As this map illustrates, the pipeline traverses the territories of numerous First Nations in both Alberta and British Columbia and will supply Asia-bound supertankers with tar sands bitumen to ship through territorial waters.

When it comes to deciding whose rights ought to be protected, WCEL suggests FIPA could lead the government to favour foreign investors over First Nations:

“FIPA itself may violate the constitutionally-protected process of negotiations between the Crown and First Nations. There is a reasonable probability that the threat of multi-million dollar investor-state suits under FIPA will create a disincentive for the Crown to negotiate honourably with First Nations (for example, regarding environmental and cultural protection measures in treaties or other legal agreements). The question is whether this effect is so significant that it can be said that FIPA therefore ‘substantially interferes’ not just with First Nations preferred outcomes, but the very process of negotiation. If so, then on the basis of Charter jurisprudence in Canada, a court could hold any legal action taken by Canada to ratify or implement FIPA to be unconstitutional, and it is possible that a First Nation could seek an interim injunction preventing its ratification until they have their day in court.”

WCEL adds “given the lack of consultation with First Nations on FIPA it is very difficult to see how Canada could justify its infringement of First Nations constitutional rights.”

What can you do?

The countdown is running low, with the deal’s potential ratification expected as early as tomorrow.

If you haven’t already signed a petition, or you are looking to sign another, be sure to check out these options:

Leadnow.ca and SumofUs.org’s Stop the Sellout: Canada is Not for Sale

David Suzuki’s Stop the China-Canada Trade Deal

Change.org’s Prime Minister Harper: Stop FIPPA Deal with China NOW and allow debate in House of Commons

The Council of Canadians Open Letter to Stephen Harper

Sustainable Living and Urban Gardening Anti-FIPA Petition

You can also email these pivotal members of the Standing Committee on International Trade:

Rob Merrifield rob.merrifield@parl.gc.ca

Ron Cannan ron.cannan@parl.gc.ca

Russ Hiebert russ.hiebert@parl.gc.ca

Ed Holder ed.holder@parl.gc.ca

Gerald Keddy gerald.keddy@parl.gc.ca

Bev Shipley bev.shipley@parl.gc.ca

Devinder Shory devinder.shory@parl.gc.ca

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

hat's the scariest thing happening just after Halloween? Is it the stomachaches our children will have from eating too many sweet treats? No, it’s the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA), which will automatically come into force on November 2nd, binding Canada for 31 years to come.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This is the third and final post in the series China-Canada Investment "Straitjacket:" Exclusive Interview with Gus Van Harten. You can access Part 1 here and Part 2 here. Canada has already begun the short countdown to the day the China-Canada Investment Deal becomes ratified in the House of Commons, although the nation has been granted no opportunity to clarify or discuss the full economic or environmental significance of the agreement – the most significant in Canada's history since NAFTA.   Prime Minister Harper, who signed the agreement in Vladivostok in September, is forcing this deal through with such force and brevity it makes the undemocratic Omnibus budget bill C-38 look like a dress rehearsal.    International investment lawyer and trade agreement expert Gus Van Harten has landed center-stage in the controversy as one of the only figures willing and qualified to speak up against the investment agreement. He told DeSmog that Canada's rush to enter into an investment deal of this sort endangers Canadian democracy, threatens Canadian sovereignty and could fracture the government's loyalty to its people.    In this post, the final segment of our interview with Van Harten, he discusses in more detail just how bad this deal is for Canada economically and how much it threatens to corrupt our way of doing business. 

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The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.