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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