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BC First Nation challenges Canada-China trade deal

A three-day hearing for a B.C. First Nations legal challenge of the Canada-China Foreign Investment Promotion and Protection Agreement, or FIPA, kicked off in Vancouver today.

The Port Alberni-based Hupacasath First Nation launched the challenge because it says elements of the trade agreement infringe on aboriginal title and rights. It also argues that First Nations weren't adequately consulted about the deal.

The band launched the court challenge under Section 35 of the Constitution, which recognizes and affirms aboriginal rights. The First Nation argues that the treaty could potentially violate the Constitution, since aboriginal claims would take second place to those made by Chinese investors under FIPA.

"If there was a project on First Nations' territory that was polluting the environment, and we were to say it's a breach of our rights and we want it to cease, the government could just say 'Sorry, we can't because of FIPA and we said we wouldn't interfere'," said Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs.

Some supporters of the challenge consider it to be the last chance to stop the ratification of the Canada-China FIPA, which would last for 31 years. The FIPA was signed by Prime Minister Stephen Harper in fall 2012.

Last year, the Tyee reported on the implications of the FIPA. According to Gus Van Harten, a Toronto-based legal authority on investment trade deals, the agreement would give China control over the pace and scale of resource development in Canada, and encroach on provincial powers by giving Chinese investors the right to contest them. He called the agreement "a 31-year ball and chain on Canada."

Environment is also part of the issue, as the Harper government removed the protection of fish habitat from the Fisheries Act and changed the Navigable Waters Act in order to speed up and enhance pipeline and mining project approvals for mostly Chinese investors, according to a Tyee report by Andrew Nikiforuk.

Last year, 74,000 people sent messages to the government asking specifically for a rejection of FIPA. They received a response from Alberta Conservative MP Blake Richards. The Tyee published Van Harten's response to the 11 points Richards made.

Ontario's regional chief, Stan Beardy, offered his support for the Hupacasath First Nation in a press release today. The challenge is also supported by legal affidavits from the Union of BC Indian Chiefs and the Chiefs of Ontario, as well as Serpent River First Nation and the Tsawwassen First Nation.

Groups such as (a site through which individuals have donated more than two-thirds of the funding for legal costs of the challenge), the Council of Canadians, the BC Federation of Labour, the BC Teachers' Federation, Canadian Auto Workers, Communications Energy and Paperworkers Union and ForestEthics have also expressed their support.

Aurora Tejeida is completing a practicum at The Tyee.

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