Union support, affidavits boost lawsuit’s efforts to halt Canada-China investment deal

Published in The Tyee | February 28, 2013 | Circulation: 340,000 unique monthly readers

Brenda Sayers, elected councillor of Hupacasath First Nation, talks about her band's injunction lawsuit against the China-Canada investment deal. Photo by David P. Ball

Brenda Sayers, elected councillor of Hupacasath First Nation, talks about her band’s injunction lawsuit against the China-Canada investment deal. Photo by David P. Ball

Unions, citizen groups, and environmentalists have joined a growing chorus alarmed about a secretive investment deal with China, voicing their support yesterday for a First Nation’s lawsuit seeking to halt the agreement.

The groups said they are concerned about the lack of public consultation and aboriginal consent, and provisions allowing companies to sue governments over legislation, contained within the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA).

The federal government, however, denies that corporations could overrule environmental or safety laws.

A councillor for the band that launched the injunction lawsuit — which this week saw several other First Nations submit affidavits supporting the effort — added that provincial policies are also at risk. She expressed her disappointment that leaders like Premier Christy Clark have not spoken out against the agreement.

“This deal would critically impact every provincial government’s ability to make autonomous decisions directly affecting the well-being of their citizens,” said Hupacasath First Nation councillor Brenda Sayers. “Our environmental laws have been gutted, so there’s very little environmental protection or process around how resources are removed… This is a very big deal for Canada. It is critical for Canadians, at this point in time, to pay attention to this.”

The lawsuit presents an opportunity to educate people about the “secretive and extreme” FIPA deal, said Jamie Biggar, executive director of Leadnow.ca. After the agreements came to light last autumn, the advocacy organization fundraised more than $30,000 among its 225,000 members to support Hupacasath’s injunction request.

It is, he said, “a chance to recognize what is being done to our democratic rights and the implications of that attack on our democratic rights for our communities, our jobs, our environment and our health.”

“These agreements should be openly negotiated, discussion, and passed through our provincial legislatures as well as our federal legislature,” Biggar said. “And they should only go forward with the consent of First Nations.

“The assertion of First Nations rights and title has now become — as the rights of all Canadians have been diminished — one of the most powerful mechanisms for the defence of all of our rights. We are deeply grateful for the role Hupacasath are playing today.”

A spokesperson for International Trade Minister Ed Fast told The Tyee that, despite an investor-state mechanism, there is no risk to health, safety or environmental legislation.

“This agreement does not impair Canada’s ability to regulate and legislate in areas such as the environment, culture, safety, health and conservation,” said Rudy Husny, the minister’s press secretary. “The FIPA preserves Canada’s current ability to review foreign investments under the Investment Canada Act to ensure they provide a net benefit to Canadians and that our national security is not compromised.

“Canada’s Foreign Investment Promotion and Protection Agreement with China — the world’s second largest economy — will provide stronger protection for Canadians investing in China, and facilitate the creation of jobs and economic growth here at home.”

Susan Lambert, president of the BC Teachers’ Federation, said FIPA, like prior free trade agreements, is part of Canada’s “history of colonialism” and rides roughshod over First Nations rights. Others echoed that sentiment, praising aboriginal leadership in the anti-FIPA effort.

“All of these agreements are leading to a further entrenchment of the colonial relationship that Canada has with Indigenous communities,” said Harjap Grewal, Pacific Regional Organizer with the Council of Canadians. “This may be one of the most important moments for the Council of Canadians — to be actually standing behind and with Indigenous communities that are taking leadership in raising issues of the relationship the Canadian government has to communities, both in terms of treaty obligations and unceded territories in B.C.”

Grewal added that the FIPAs’ investor-state dispute processes and 31-year lock-in period will basically make it “harder for communities to make decisions in their own best interests,” and that it’s no surprise why deals like this are negotiated in secret.

“The reason why these negotiated behind closed doors — the reason this is not going to Parliament and why it’s not being brought in front of the public — is because, for past trade agreements, the government has realized the public does not support [them],” Grewal said.

For Irene Lanzinger, Secretary-Treasurer of the BC Federation of Labour, the FIPA is essentially a corporate bill of rights.

“These free trade agreements give corporations power over governments, and limit a government’s ability to put regulations and laws in place to protect the rights of citizens, the land and natural resources of our country,” she said. “If corporations think that rules and regulations to protect our labour rights, human rights or our environment get in their way, they can sue our government.

“With no debate or consultation, the Harper government is prepared to undermine our rights — labour rights we have fought for as unions, human rights, democratic rights and the right to protect our environment, and most importantly, the rights of First Nations over lands and resources.”

With tensions rising in the province over Enbridge’s proposed Northern Gateway pipeline, and Kinder Morgan’s plans to expand its own pipeline from the Alberta oil sands, some have suggested the real intent of the FIPA may be to lock in oil exports to Asia.

“As an environmentalist, it’s hard to look at what’s going on right now with the FIPA and not see the names Kinder Morgan and Enbridge written all over it,” said Ben West, Tar Sands Campaigner with Forest Ethics Advocacy. “Here we are in a province that’s right in the middle of one of the most controversial environmental fights in the history of our country, based around this idea of being a ‘gateway’ to the Asia-Pacific for some of the most dangerous oil known to man.

“It’s hard to look at FIPA and all this negotiation going on behind closed doors and not think that this is very much about the export of oil. It’s very much about the protection of the Canadian oil industry’s interests.”

Sayers denied her band’s opposition to the deal is based in anti-development or anti-China sentiments.

“We are not against development,” she said. “In recognizing China, we recognize that they are an important trading partner. And we realize the people of China share the same concerns about their children’s future that we do.”

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