Mr. Speaker, I want to thank the member for Burnaby—New Westminster for sharing his time with me.
I am rising to speak on the NDP motion calling on the government not to ratify the Canada-China foreign investment promotion and protection agreement. I know the member for Vancouver Kingsway has very ably covered a number of areas of concern. I am going to focus on one particular area.
One of the big challenges with this agreement is that it does not acknowledge the Crown's constitutional obligations to first nations. This is outlined in section 35 of the Constitution, which states that the government has a legal obligation to consult aboriginal peoples before undertaking measures that impact on their rights. Of course, this right has been reaffirmed in any number of court decisions.
I only have 10 minutes, so I am going to try to focus on a couple of key arguments. The Assembly of First Nations has conducted a very preliminary analysis on the impacts of this agreement. It is a draft and much more work needs to be done, but part of its analysis includes the statement that the government has a duty to consult on FIPA and, to its knowledge, has not consulted with first nations. It went on to point out that the Hupacasath First Nation is currently challenging FIPA in court, mainly on this basis. I want to turn for a moment to this challenge.
Hupacasath filed a notice of application against Canada in early January. One of the councillors, Brenda Sayers, stated, “This deal will pave the way for a massive natural resource buyout and allow foreign corporations to sue the Canadian government in secret tribunals, restricting Canadians from making democratic decisions about our economy, environment and energy.”
Steven Tatoosh, the chief councillor, says, “We will argue that the Government of Canada breached its fiduciary duty to consult First Nations on our respective constitutionally enshrined and judicially recognized aboriginal title, rights and treaty rights.”
There are many organizations that are supporting this initiative. I have a quote from Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, who said, “To recklessly disregard our title, rights and treaty rights is an outrage. Our inherent rights are our fundamental human rights. Canada repeatedly violates our human rights when our inherent rights are totally ignored in agreements such as the Canada-China FIPA.”
Councillor Brenda Sayers went on to say that the court action is intended to put the brakes on the FIPA process until all Canadians have had a chance to study the far-reaching and potentially devastating implications of the agreement.
One of the glaring threats in this agreement is around environmental protection. Sayers pointed out that under a FIPA, the foreign investor is subject to all the environmental regulations of the host country, but only as those regulations were in place at the effective date of the agreement.
Ms. Sayers further stated, “This is not just a First Nations battle. This is a battle for the rights of aboriginal and non-aboriginal Canadians. Both of our constitutional rights are being violated. There are a lot of common threads behind our two communities: the protection of our water, the protection of natural resources and our environment, the protection of our future. Canadians need to realize this is a fight for Canadians as a whole.”
Because I have limited time, I cannot read all of the letters I have received into the record. I have a letter from the Union of B.C. Indian Chiefs, a presentation from the Assembly of Manitoba Chiefs, a detailed brief from the First Nations Summit, a brief from The Council of Canadians with regard to how this agreement threatens indigenous rights, and a brief from the Coastal First Nations Great Bear initiative. There are many more. Those are the ones I was able to grab as I left my office.
I want to return to the Assembly of First Nations' preliminary analysis. It has identified the following:
Several modern treaties contain an express obligation to consult prior to the adoption of new International Legal Obligations (ILOs) which could affect rights under the treaties. We believe that the government is very likely under a duty to consult even those First Nations who do not hold modern treaties, based on the unilateral nature of the conduct of foreign relations and the potential for new [international legal obligations] to impact the exercise of existing or claimed [first nation] rights.
There are numerous in this draft analysis, and I think it would be incumbent upon the government to take a look at the concerns being raised that impact not only first nations, both treaty, non-treaty and self-governing, but also non-indigenous Canadians.
Further on in the brief, it says:
The potential for FN rights claims to be dealt with in investor state arbitrations is especially problematic for modern treaty holders. FNs would have, at best, intervenor status in such arbitrations. Past practice of international investor-state tribunals suggests that the ability to raise FN rights issues or human rights issues would be substantially impaired in such forums. The problem arises because some modern treaties contain language which suggests the exercise of some rights under the Agreements would need to be modified if those exercises conflicted with an ILO (hence, the reason for the consultation clauses). If an investor-state tribunal holds that a particular treaty right is effectively an expropriation, and hence contrary to the ILO of Canada in the FIPA to prevent such expropriations, then it means that future exercises of that right may need to be modified. This could arise with respect to self-government exercises of authority which are deemed expropriatory, and likely harvesting activities.
Further on it cites a claim under NAFTA, and it says:
To give you an idea of the kinds of cases which attract investor state claims, consider the Glamis case under NAFTA. There, a Canadian mining company was subjected to a mining reclamation regulation enacted, in part, to preserve a sacred site of the Quechan Nation. Glamis claimed this environmental regulation (enacted to preserve the Quechan Nation's connection and access to its sacred sites) was expropriatory.
When we are dealing with first nations sacred sites, cultural sites or traditional sites, mechanisms need to be in place in order to protect them and in order to consult appropriately with first nations.
Later on, the brief states:
Quechan intervened, but was unable to participate meaningfully in the case. Indeed, it had to rely on the US DOJ to defend the measures (which, incidentally were promulgated by the state of California). This should concern FNs because unlike the US DOJ, which occasionally acts on behalf of tribal rights as part of its trust responsibility, DOJ Canada typically is adversarial to FN interests.
We have seen that in any number of cases. We see the number of times that first nations have been forced to the courts to defend their rights, with the Department of Justice intervening on behalf of the government to prevent first nations from moving forward. It is very worrisome that we do not have these kinds of protections in Canada.
I want to turn briefly to the UN Declaration on the Rights of Indigenous Peoples, because this should be a fundamental underpinning for any kind of action that the government is going to take in the context of infringing on first nations rights. Article 19 indicates:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
It is clear from the very brief overview I was able to present that there are grave concerns around the great potential this agreement has to infringe on inherent rights.
One of the things that often comes up in the context of talking about consultation is not only the duty to consult but the duty to accommodate. There is certainly no mention in this agreement either around the duty to consult or the duty to accommodate, so it is important that the Conservative government pull back from this agreement and undertake its constitutional responsibilities under section 35 to conduct those consultations to ensure that first nations treaty rights and inherent rights will not be abrogated in this context.
I am hopeful, given the very reasoned and rational presentations that are being made in the House of Commons, that the Conservatives will reconsider their position on this matter.
I did not have time to talk about the hundreds of emails and letters I am getting in my own riding expressing grave concerns about this agreement. People are very concerned about how it is going to impact on the environment and on our waters. People really want an opportunity to have their say on this agreement.
In the absence of the government undertaking any meaningful consultation with indigenous and non-indigenous Canadians, I encourage people to write directly to the Prime Minister to ask him to back down on this agreement.