In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.

“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”

In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.

In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.

“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to limit the transport of diluted bitumen through the province in January.

“She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”

Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.

“But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.

Indigenous rights are not a footnote in the ongoing constitutional saga over the the Kinder Morgan Trans Mountain pipeline — they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.

Beyond Indigenous rights, landmark rulings such as the Tsilhqot’in decision have emphasized something called “co-operative federalism.”

“The modern trend of federalism is that nobody has the upper hand — and everyone has to work it out,” Woodward said.

Prime Minister Justin Trudeau’s statements on the Trans Mountain pipeline also seem ignorant of that reality.

“Look, we’re in a federation,” Trudeau has said. “We’re going to get that pipeline built.”

But Canada’s constitution governs by the principle that you err on the side of allowing two different laws to exist if at all possible, Woodward says.

“So it’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

United Conservative Party Jason Kenney may opine that the inability of a Texas-based company to build a pipeline means “Canada is broken,” but in reality, this is exactly the way federation was designed to work.

“It’s simply not credible that all aspects of provincial constitutional jurisdictions can be crushed by a federal pipeline law,” Woodward said. “Some of them must prevail.”

A law clearly directed at protecting the health and safety of the residents of Burnaby and Vancouver would be a strong law within provincial jurisdiction, Woodward said.

“Just because the federal government has jurisdiction over pipelines doesn’t mean that they can sterilize the provincial jurisdiction over health and safety.

“Similarly, protection of the land and marine environment, that’s pretty potent. The protection of habitat for fish, even preventing oil spills because of the devastating impact it would have on tourism — that’s valid provincial legislation.”

Woodward said instead of throwing the constitution around as if it’s a “political slogan,” everyone is better off to let the courts do their job.

“Horgan is right to have this calm and patient attitude because what’s the point of jumping up and down and screaming ‘I’m right, you’re wrong’? It’s going to be decided by a judge.”

On Thursday a summit between Notley, Trudeau and B.C. Premier John Horgan was announced for this Sunday. Horgan vowed not to back down on preparing a court reference.

“We are in a court of law, which is what civilized people do,” Horgan said. “I don’t feel there is any need for sabre-rattling or provocation or threats. I will defend to the end the rights of British Columbia to defend our coast.”

What about Notley and Trudeau, who don’t seem to want to wait for a court ruling?

“Short of going to court, politicians can get legal advice and their legal advice will be the same as what I’ve said to you, which is there’s no black and white here. This is a grey area. It’s a series of grey areas, where the different aspects of federal and provincial jurisdiction and aboriginal rights collide.”

It’s unreasonable to expect these conflicting rights to be resolved by the end of May.

“When I hear Kinder Morgan having a little hissy fit and saying they want a decision by the end of May, I just laugh,” Woodward said. “You can’t decide all of these things by May. This is an irreversible decision, so it should take some time.”

As for the oft-repeated belief that what B.C. is doing is illegal or unconstitutional, Woodward says “if that’s the prevailing wisdom, they’re all wrong. They’re not getting how the constitution works.”

“Everything in Canada is moderated. You don’t have absolute rights,” he added.

What’s more, Woodward said the federal government’s jurisdiction over interprovincial pipelines needs to be seen in the context of the times.

“When that power was given to the federal government, it was not contemplated that there would be such enormous environmental consequences. They didn’t even think about climate change, for example. They didn’t think about catastrophic oil spills and tanker traffic. They were just trying to clear up regulatory clutter, so that one jurisdiction could create a uniform regulatory system. It was never intended that the federal jurisdiction over interprovincial pipelines would utterly trounce the underlying provincial jurisdictions over health and safety and property rights and the environment.”

As for the notion that Canada is in a constitutional crisis, Woodward disagrees.

“We have one of the oldest written constitutions in the world. It has survived far worse crises than this and it will survive into the future. Our constitution has embedded into it flexibility, ability to change, a fundamental ability to grow with the times,” he said. “There’ve been far worse constitutional crises.”

Woodward pointed to the time in the 1930s when the entire banking legislation of Alberta was struck down by the Supreme Court of Canada as an example.

“Now that’s a constitutional crisis much worse than this,” he said. “This pipeline already exists and we’re talking about expanding it. Alberta has taken a matter of degree and decided to characterize it as a fundamental point of principle or point of departure and they’re simply wrong about that. It’s not a constitutional crisis.”

The bottom line is that this pipeline punch-up will ultimately get resolved in typical Canadian fashion, according to Woodward.

“It’s all going to be worked out through the standard Canadian process of compromise.”

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First opposed, then endorsed. It’s now pledged, but called “unworkable.”

In Canada the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not ratified, nor from a legal perspective even really understood.

The history of Canada’s relationship with Indigenous rights has been a sordid one. But all that was supposed to change with the nation’s latecomer adoption of the declaration. After years of federal Conservative inaction on the file, Justin Trudeau took to the campaign trail with a promise to restore Canada’s relationship with Indigenous peoples.

The doctrine of ‘free, prior and informed consent‘ is a touchstone element of the declaration and one that will have a potentially massive impact on how megaprojects — like pipelines, the Alberta oilsands, and Site C dam — are proposed and approved in traditional Indigenous territory.

Yet onlookers say the declaration’s implementation is now hung on an NDP private member’s bill in the House of Commons and while there is broad support for its implementation, the actual meaning of UNDRIP for Canada is unclear and, as a technically non-binding document, may mean less than many think it should.

Interpretation of UNDRIP Strongly Contested

This past week the private member’s bill C-262 — first tabled by NDP MP Romeo Saganash back in April 2016 — was debated following its second reading in the House of Commons.

The bill requires the federal government to “take all measures necessary to ensure that the laws of Canada are consistent” with UNDRIP and develop a national action plan to do so in “consultation and cooperation” with Indigenous peoples.

The concise bill received full support from the federal Liberals only two weeks prior to the second reading. That catapulted it very much into the realm of possibility.

Yet the actual interpretation of UNDRIP is strongly contested.

The declaration itself is a document that lays out the basic rights Indigenous peoples that should be afforded around the world. It outlines specific obligations on the part of nations in how they relate to Indigenous peoples and their land, and contains some clauses that fly in the face of Canada’s historic treatment of First Nations, Métis, and Inuit.

The federal Liberals have seemingly contradicted themselves on multiple occasions about what UNDRIP means while some Indigenous scholars have an altogether different take on what the declaration truly means for Indigenous sovereignty and nationhood.

“When they say they’re going to support Bill C-262, I just view it as a PR stunt,” said Russ Diabo, a Kahnawake Mohawk policy advisor, in an interview with DeSmog Canada.

The federal government isn’t prepared to fully face the implications of UNDRIP, Diabo said, and how it could challenge Canada’s current legal frameworks.

“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.” https://t.co/rqeaRx2c8Q

— DeSmog Canada (@DeSmogCanada) December 12, 2017

UNDRIP: Opposed, Endorsed, Pledged, Unworkable, Supported

When UNDRIP was first adopted by the UN General Assembly in 2007, there were only four opposing votes to the 46-article declaration: the United States, Australia, New Zealand and — you guessed it — Canada.

In 2010, the Conservative government under Harper endorsed UNDRIP, describing it as an “aspirational document,” but remained a permanent objector of the declaration. Despite the endorsement, the principles of UNDRIP were never applied in Canada in any tangible way.

The Liberal Party pledged to change that. In its 2015 election platform, the party clearly stated that it would “enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.”

In May 2016, Minister Carolyn Bennett officially announced Canada’s removal of its permanent objector status to UNDRIP, committing to “fully adopting this and working to implement it within the laws of Canada, which is our charter.”

But only two months later, Minister of Justice Jody Wilson-Raybould described the adoption of UNDRIP as “unworkable” and “a political distraction.”

Near the end of 2016, when questioned about the recently approved Kinder Morgan Trans Mountain pipeline, Prime Minister Trudeau stated that Indigenous opponents “don’t have a veto,” directly contradiction previous promises that under his government ‘no would mean no’ for Indigenous peoples when it came to resource extraction and energy infrastructure projects.

Other have suggested Trudeau’s position also contradicts the key provision in UNDRIP of the need for governments to obtain “free, prior and informed consent” from Indigenous peoples prior to development.

UNDRIP Technically Non-Binding, Up to Canada To Define

In the recent House of Commons debate about Bill C-262, MP Romeo Saganash thanked the federal Liberals for “finally accepting that this should be a framework for reconciliation in this country.”

But there are still great disagreements about what legal ramifications of implementing such a “framework” will be. In international law, declarations, such as UNDRIP, are non-binding.

Robert James, principal lawyer at JFK Law in British Columbia and expert on Aboriginal law, said the eventual implementation of UNDRIP in Canadian law could impact how federal statutes are interpreted and applied, and how some elements of common law, such as duty to consult, are applied.

“One of the side effects of this is it may take what’s primarily a political document used to advance moral and political positions and really put it in the hands of the Western court to say, ‘well actually, here’s what UNDRIP really says,’” James told DeSmog Canada in an interview.

“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.”

Tension over Indigenous Sovereignty

As to be expected, a main tension is about Indigenous sovereignty and self-determination.

James points out that Article 46 — the very last of the declaration — states that nothing in UNDRIP may be interpreted as authorizing or encouraging “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

Canada is one of those “sovereign and independent states.”

Critical components of the declaration could be interpreted as having the ability to “dismember or impair” Canada as a nation, meaning Article 46 could have significant consequence for how fully UNDRIP is implemented and embraced.

Disputes over access to land, natural resources and water, for example, lie at the heart of many recent clashes between Indigenous peoples and Ottawa. And as the Mi’kmaq blockade in New Brunswick demonstrated, Indigenous peoples are often criminalized for exercising sovereignty over traditional lands.

Patricia Doyle-Bedwell, a Mi’kmaq lawyer and professor at Dalhousie University said the power of UNDRIP lies in its ability to strengthen Indigenous rights to protect land and water.

“That’s what that is about. We’re not going to have anything if we don’t have our land,” she told DeSmog Canada.

“We have the right to our survival, our dignity, our way of being as Indigenous people.”

How Does UNDRIP Fit In With Constitutionally Protected Aboriginal Rights?

In 1982 Canada amended its constitution to — for the first time — enshrine the rights of Canada’s indigenous peoples.

The amendment, Section 35, states simply: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The creation of Section 35 represented a turning point in Canada’s history and a monumental victory Canada’s Indigenous peoples fought very hard for. Yet the wording of the section has been criticized for its vagueness which doesn’t define what those rights are.

So in May 2016, when Minister Bennett told the UN, “By adopting and implementing the declaration, we are excited that we are breathing life into Section 35 and recognizing it as a full box of rights for Indigenous Peoples in Canada,” concerns emerged that Canada might restrict UNDRIP under the confines of the constitution.

“Bennett is trying to contain international laws and principles and standards into Canadian domestic constitutional law and court cases,” Diabo, the Kahnawake Mohawk policy advisor, told DeSmog Canada. “That’s the problem that I have.”

Diabo said the original negotiations between Indigenous nations and Canada about the constitution weren’t a success, leaving plenty of “unfinished business.”

Former national chief of the Assembly of First Nations, Ovide Mercredi, recently called for the completion of those negotiations and the need for Canada to actually honour and fulfill its existing treaties with Indigenous peoples.

What Lies Ahead for UNDRIP?

Bill C-262 will be debated again in February 2018. A March will decide if the bill will move past second reading to committee. Given full support from the federal Liberals, it appears likely that will happen.

As that March vote approaches, the declaration will be put under increasing scrutiny. Past debate has been used to raise questions about the merits of the document and what uncertainties remain surrounding its legal implementation.

During the Dec. 5 debate in the House of Commons, Conservative MP and opposition critic for Indigenous and Northern Affairs, Cathy McLeod asked: “What is the difference between ‘free, prior, and informed consent’ and ‘consult and accommodate,’ which is what we have in law right now?”

She continued, “certainly there is no question that the declaration proposes that change in our law and we need to simply know what that is going to mean because it is important.”

As of right now, there aren’t any clear answers to that question.

For many Indigenous experts, the potential success of Bill C-262 and UNDRIP itself depends on the federal government’s perspective on Indigenous sovereignty and self-determination.

“To implement UNDRIP…we have to go back to nation-to-nation relationships,” Doyle-Bedwell said. “This idea that we have to fit it into these boxes will not advance our reconciliation.”

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Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge’s Northern Gateway pipeline since at least 2009.

The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn’t fulfilling its duty to consult Aboriginal peoples as required under Section 35 of the Canadian Constitution.

An Environment Canada e-mail included in the documents contained a list of concerns regarding the consultation process, stating, “it is not clear that [the process] would meet the honour of the Crown duty.”

The e-mail also acknowledged “First Nations were not involved in the design of the consultation process” and that there was a “lack of clarity” concerning First Nations’ rights and title.

Haisla Nation Chief Councillor Ellis Ross said he received the trove of documents with “mixed emotions.”

“We’re very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title,” Ross said. “But it’s disappointing this information is in our hands now when we can’t do anything with it legally or politically.”

“But it does confirm what we’ve been saying all along about the process when it comes to rights and title is very inadequate. It doesn’t even follow case law.” 

Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a 'duty to consult' First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights. 

The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.

“Now we can see that Canada’s own environment ministry agreed with us,” Chief Fred Sam of Nak’azdli said.

“For years Nak’azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed,” he said.

Eight First Nations including the Haisla, the Nak’azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.

Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.

“At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues,” Tollefson told DeSmog Canada.

“The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged.”

When it comes to Section 35 of the Constitution, “the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory,” he said.

Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations — including BC Nature which he represents — against the Northern Gateway pipeline's approval in Vancouver this October.

Ellis Ross. Photo: Philip Chin

An additional Transport Canada e-mail released to the Haisla, dated August 31, 2009, also expressed doubt in the adequacy of the government’s approach saying “the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information.”

Both the Environment Canada and Transport Canada e-mails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.

Despite these doubts the federal government “charged ahead” with its consultation process, Chief Sam said.

“Now, many First Nations have been forced to go to court to challenge Canada’s Enbridge decision,” he said.

Gitxaala Nation Chief Clarence Innis said he’s “shocked” that, despite the apparent level of uncertainty about consultation, “Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations.”

“This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia’s Northwest Coast,” Innis said.

For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.

“We’re trying to follow the rules, and case law principles — the Haisla isn’t blocking roads or anything — we’re trying to follow the courts,” he said.

“But with Canada, it’s like the rules are there to be bent or broken.”

Environment Canada Sep 1 2009 Email Re Consultation Approach

Transport Canada Aug 31 2009 Email Re Consultation Approach

Image Credit: Ellis Ross by Philip Chin

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The federal government has failed to fulfill its legal duty to consult First Nations in Ontario and Quebec about Enbridge’s Line 9 project that would see oilsands bitumen shipped through a 37-year old oil pipeline.

“This is not an issue of inadequate or improper consultation with First Nations. No consultation by the federal government has taken place whatsoever,” says Scott Smith, the lawyer who represented Aamjiwnaang and Deshkon Ziibi* (Chippewas of the Thames) – two Anishinaabe* First Nations of southwestern Ontario – during the Line 9 hearings. The hearings concluded on October 25th.

Failing to consult with the fourteen Anishinaabe (Ojibwe), Haudenosaunee* (Iroquois), and Lenape (Delaware)* First Nations communities living along or near the Line 9 pipeline could land the federal government and the Line 9 project in court.

“Transporting dilbit (diluted bitumen) through Line 9 is going to have a big impact on us, our drinking water and our traditional practices. It will increase the risk of a rupture,” Myeengun Henry, a band councilor from Deshkon Ziibi told DeSmog Canada.

An international pipeline safety expert revealed to DeSmog Canada in an interview in October that if Line 9 is approved to ship bitumen (technically “dilbit” when transported through pipelines) the probability of the pipeline rupturing is “over 90%.” Line 9 has never transported heavy crudes such as bitumen before.

The ‘honour of the Crown’ Demands the Federal Government Must Consult

When the federal government is contemplating a decision that has the potential to adversely impact indigenous peoples in Canada (First Nations, Inuit, Métis) the government is legally required to consult with the affected indigenous parties to ensure their best interests are met and their rights protected.

This ‘duty-to-consult’ flows from a legal concept called the ‘honour of the Crown.’ The federal government is required to act “honourably” or in the best interests of indigenous peoples in regards to their rights. The legal precedent for the duty to consult comes from the Supreme Court’s ruling in Haida First Nation v. British Columbia in 2004:

“The honour of the Crown requires that these (indigenous) rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.”

“Failing to consult with First Nations about Line 9 is a slap in the face to Canada’s own law,” says Henry from Deshkon Ziibi. Deshkon Ziibi is near London, Ontario.

Aamjiwnaang and Deshkon Ziibi also sent a joint letter to the Prime Minister Stephen Harper, Minister of Natural Resources Joe Oliver and Minister of Aboriginal Affairs Bernard Valcourt dated September 27th inviting the federal government to initiate consultations with them on Line 9. They have yet to receive a reply.

Proposal to Ship Bitumen ‘Triggered’ the Duty-to-Consult

Scott Smith, the lawyer acting on behalf of Aamjiwnaang and Deshkon Ziibi argued during the Line 9 hearings the federal government cannot avoid consultations with his clients simply because Line 9 is an existing pipeline:

“Enbridge’s proposal to fundamentally repurpose Line 9 to make it commercially viable again has the potential to cause new and additional impacts on the Rights (of Aamjiwnaang and Deshkon Ziibi),” stated Smith in an oral submission.

The Anishinaabe, Haudenosaunee, and Lenape have recognized rights under Section 35 of the Canadian constitution to hunt, fish and harvest on their traditional lands. A ‘dilbit disaster’ on the scale of the Kalamazoo spill in Michigan or the Mayflower spill in Arkansas would severely impede their ability to practice these rights.

Free, Prior, and Informed Consent is the New Standard for Indigenous Peoples

“The duty to consult and accommodate is the minimum standard here,” says a letter about Line 9 from the Chiefs of Ontario sent to the National Energy Board (NEB) on August 6th. The NEB oversees the approval or denial of proposed pipeline projects such as Line 9.

“First Nations now assert a right to Free, Prior and Informed Consent in the case of proposed projects that are likely to affect their rights,” the letter explains. The Chiefs of Ontario is an organization representing 133 First Nations in the province.

The concept of ‘free prior and informed consent’ or FPIC is found in the UN Declaration on the Rights of Indigenous Peoples. FPIC goes a step further than the duty to consult by requiring national governments “to obtain (indigenous peoples’) free, prior and informed consent” before making a decision that may affect indigenous peoples.

“There has been no attempt to conform to the Free, Prior and Informed Consent (FPIC) standard of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Our position is that rubber stamping of the Enbridge proposal will harm the environment and will violate First Nations rights,” concluded the Chiefs of Ontario.

The Canadian government rather reluctantly signed on to the declaration in 2010. The declaration is not legally binding and the Canadian government has been accused of interpreting “consent” as consultation.

Enbridge proposes to reverse Line 9 to flow west-to-east, increase the capacity of the pipeline from 240,000 to 300,000 and transport heavy crudes such as oilsands bitumen through the pipeline.

Critics of the Line 9 project say the pipeline should not be approved to ship bitumen because of the likelihood of a rupture and the adverse impacts further expansion of the tar sands will have on climate change and the people and environment of northern Alberta.  

The NEB – Canada’s independent energy regulator – will most likely make their recommendation on Line 9 in January 2014. The federal government can override any decision made by the NEB.

*Anishinaabe, Haudenosaunee, and Lenape are the names for the “Ojibwe”, “Six Nations”, and “Delaware” in their respective languages. Deshkon Ziibi is the Anishinaabe name for “Chippewas of the Thames”. 

Image Credit: Environmental Defence, Enbridge

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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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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

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