Canada: Does Canada Have An Obligation To Consult With Aboriginals Before Ratifying An Investment Agreement With China?

Facts

The Canadian and Chinese governments signed an investment agreement (CCFIPPA),1 which the Hupascasath First Nation (HFN) opposed because the federal government failed to consult the band before signing.

The HFN asserts aboriginal rights and title with respect to approximately 232,000 hectares of land in central Vancouver Island. The HFN claims that if the CCFIPPA is ratified and implemented, it will negatively affect the band in a number of ways, including (i) its right to conserve, manage and protect lands, resources and habitats in accordance with traditional ways and in the best interest of its members, (ii) it will prevent the band from negotiating a treaty that protects these rights, (iii) disputes over resources between the HFN and Chinese investors will be resolved by international trade and investment law to the preclusion of the Canadian constitutional legal protections afforded to the HFN, (iv) the federal and provincial governments will be less likely to take steps to protect HFN rights, and (v) it is not known if specific measures can protect HFN rights and title by reasonable accommodation

The issue

The issue before the Federal Court was: does Canada have a duty to consult the HFN prior to ratifying CCFIPPA?

The decision

The Federal Court2 found that the Government of Canada did not have a duty to consult the HFN prior to ratifying the CCFIPPA because the potential adverse impacts asserted were non-appreciable and speculative in nature. Thus, the agreement did not contravene the established principle of the Crown's honour or Canada's duty to consult First Nations, including the HFN, before taking any action that may adversely affect their asserted aboriginal rights.

The court also found that the HFN was unable to establish the requisite causal link between the alleged potential adverse impacts and the CCFIPPA. The same was held true for the potential adverse impact the CCFIPPA may have on the HFN's scope of self-government.

In its analysis of the HFN's claim, the court determined that given the nature of the duty to consult First Nations, it was a "constitutional imperative" that was triggered when all three conditions of Rio Tinto3were met. The test elaborated by Rio Tinto established that the duty was triggered when: (i) the Crown had knowledge, actual or constructive, of a potential aboriginal claim or right; (ii) the contemplated Crown conduct; and (iii) the potential that the contemplated conduct may adversely affect an aboriginal claim or right.4

The first two elements were acknowledged by both parties. In fact, both recognized that the Crown had knowledge of the HFN's claims and rights. Furthermore, the parties both established the Crown's contemplated conduct was to ratify the CCFIPPA.

The potential adverse effects of the ratification were at the heart of the debate. The court established that while the approach to determining the potential effects should be generous and purposive, in order to satisfy this element of the test, mere speculative impacts would not suffice. Moreover, a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending aboriginal claims or rights must be proven.

The court analyzed the HFN's three principal claims: the minimum standard of treatment afforded under the treaty, investor protection against direct and indirect expropriation, and the exceptions afforded by the treaty. In all three cases, the possibility of the scenarios brought forward by the HFN affecting aboriginal rights was speculative and non-appreciable. Moreover, some of the arguments and comparisons based on NAFTA jurisprudence demonstrated that aboriginal claims or rights were not shown to be interfered with or incompatible.

The court concluded its analysis of the HFN's claims by evaluating the potential effects that the CCFIPPA would have on the legal framework applicable to land and resource regulation in Canada. Once again, it found the HFN's submissions were ultimately reduced to assertions that were nothing more than speculative and remote.

Following this analysis, the court found that Canada's ratification of the CCFIPPA without consulting the HFN did not breach either (i) Canada's constitutional obligation to act honourably with the HFN in all of its dealings, particularly in respect of the HFN's asserted aboriginal rights, or (ii) Canada's duty to consult with HFN before taking any action that may adversely affect those rights.

In passing and by way of contrast, the court also noted that there were instances where Canada had entered into a number of final agreements with First Nations that required it to consult prior to consenting to be bound by a new international treaty that might adversely affect First Nations rights.

Commentary

This is an important case in further evaluating the "speculative or non-appreciable impact" on aboriginal rights, as jurisprudence in this area is not well developed. The court develops a thorough analysis of the subject through the evaluation of the HFN's claim.

Although the court decided that the potential adverse impacts of the CCFIPPA's ratification on the HFN's claims are non-appreciable and entirely speculative, foreign investors must still pay great attention to the demands and rights of aboriginal peoples. In fact, such rights create federal and provincial government constitutional obligations towards aboriginals when governments authorize natural resource development projects.

Footnotes

  1. Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments. This agreement's substantive provisions are very similar to those of NAFTA , Canada's Model Foreign Investment Protection Agreement and 24 other foreign investment protection agreements that Canada has entered into since 1989, particularly those entered into since 1995.
  2. Hupacasath First Nation v The Minister of Foreign Affairs Canada and the Attorney General of Canada, 2013 FC 900. Rendered on August 26, 2013, by Chief Justice Paul S. Crampton.
  3. Rio Tinto Alcan Inc. v Carrier Sekani Tribual Council, 201 SCC 43.
  4. Ibid at para 31.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions