Kyodo / Landov

First Nation frustrated by UN inaction on Canada-China pact

Investment agreement not on agenda of indigenous people’s conference despite lobbying by 300-person strong Hupacasath

A Canadian First Nation once at the fore of the Idle No More indigenous environmentalist movement has expressed frustration with the United Nations after failed attempts to engage the global body over a Canada-China investment agreement that they say contravenes indigenous rights guaranteed under the constitution. 

The Hupacasath, based in western British Columbia, made headlines last year when they filed a legal petition against Ottawa for moving ahead with the Foreign Investment Protection Agreement (FIPA) with Beijing without consulting with First Nations. The Hupacasath say the pact will essentially override indigenous Canadians' right to resources on their lands, and the ability to govern ecosystems on their territory.

Legal analysts have suggested that the agreement would allow Chinese businesses to sue Canadian local governments over any laws deemed prejudicial to Beijing's interests. 

But despite attempts by the First Nation to get the U.N. to intervene in the matter, the global body has remained silent. Moreover, the U.N. failed to include the dispute in the agenda of its first indigenous people’s conference, which took place this week in New York.

According to the FIPA, a tribunal of three regulators — one representing China, one representing Canada and one mutually greed upon by both parties — would review complaints by Chinese companies regarding any government decision that might result in undue financial legal damages. Canadian provincial governments would be responsible for repaying the sum assessed by the tribunal, analysts say. The Hupacasath say that the deal and resulting lawsuits could result in higher taxes and pressure on social services, a problem which affects not just First Nations but all Canadians. 

The administration of Canadian Prime Minister Stephen Harper ratified the document on Sept. 12. It is due to come into force on Oct. 1. 

Brenda Sayers, the Hupacasath member spearheading the campaign against the FIPA, said Harper pushed the agreement through late on a Friday as government offices were closing down specifically to prevent the Hupacasath from filing an injunction against the treaty. 

Harper's staff did not respond to interview requests at time of publication. 

“Now that it’s ratified, it will take a while to see how this agreement will unfold and how it will negatively impact Canada," Sayers said.

But experts have said that FIPA could impinge on Canada’s ability to block certain projects. Treaty law specialist Gus Van Harten told online news site The Vancouver Observer that the pact could, for example, allow Chinese investors in the controversial Enbridge Northern Gateway pipeline project — designed to carry tar sands oil to the country’s West Coast for export to Asia — to sue if British Columbia did not follow through on the project.

The Hupacasath have been hampered in their desire to have the U.N. intervene by the fact that they had no representation at the First World Conference on Indigenous Peoples, which took place Monday and Tuesday. Last October the Hupacasath requested to meet with the U.N.’s special rapporteur on indigenous affairs, James Anaya, on his tour of First Nations across Canada. But that request was denied.

Previously, Anaya’s team had told Sayers that his “schedule was full,” Sayers said in October. Fanny Langella, spokeswoman for the U.N. General Assembly President, told Al Jazeera that it was not unusual for the special rapporteur not to be able to accept all invites for meetings.

Nonetheless, the Hupacasath said trying to get the matter addressed had been a “frustrating battle.”

“If the U.N. has that power to help us, it should have been on the agenda,” said Sayers.

Langella said that although the agreement with China may not have been addressed at the conference, sessions did address more generally "Indigenous People's lands, territories and resources."

But Sayers maintains that the FIPA should be a chief concern at any discussion of global indigenous issues.

“This is extremely important. It should have been taken up,” she added, not only by the U.N. but by a number of other First Nations and Canadian elected leaders across the country.

Sayers says the Hupacasath have no current plans to continue their legal battle against the FIPA, but "there's always another way, an eloquent solution to every problem." 

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