FIPA a threat to First Nations control of lands: Beardy

Letter to PM Harper from Ontario Regional Chief Stan Beardy November 5 2012 

RE: Financial Investment Protection Agreement (FIPA) between Canada and China

The draft FIPA violates First Nation Treaty rights and international law. Therefore, FIPA should bepostponed indefinitely, pending nation-to-nation discussions between Canada and First Nations. I would like to take this opportunity to endorse the October 31, 2012 letter of Serpent River FirstNation Chief Isadore Day, Wiindawtegowinini, which expresses a similar position.

FIPA grants China sweeping investment preferences in Canada, including guarantees of “most-favoured-nation treatment” (article 5) and “national treatment” (article 6), and protection from expropriation (article 10). Disputes can be taken by China to secret international arbitration boardsthat will be immune from the Canadian courts (articles 15 and 20).

Effectively, Canada is accepting the subservient role of a “banana republic” in order to facilitate the influx of Chinese capital. The trade preferences and the extra-judicial dispute resolution process are a direct threat to First Nation control of their traditional territories, including the commercial development of lands and resources. Foreign investors will receive better treatment than the First Peoples, endowed by the Creator as perpetual stewards of all the land and water.

The relationship between Canada and First Nations in Ontario is defined by Treaties, including the Wampum Treaties, the Robinson Treaties, the numbered Treaties, and all others. Treaties stand ontheir own as the fundamental law of the land. Treaties are also protected by section 35 of the Canadian Constitution Act, 1982 and article 37 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

As a colonial settler government, Canada does not have the authority to undermine First Nation Treaties through the negotiation of international trade and other agreements with third party states like China. The First Nation Treaties are based on thesovereignty of First Nation peoples and governments, and Treaty rights are immune from change,except with the Free, Prior and informed Consent (FPIC) of First Nations. International agreements like FIPA are only possible if they do not affect First Nation rights or if First Nation consent has beenobtained in the appropriate manner.Both China and Canada have adopted UNDRIP. FIPA violates UNDRIP on several clear countsand is therefore impermissible under international law. FIPA violates article 19 of UNDRIP, whichprovides that state measures that may affect First Nations cannot be adopted without the Free, Prior and Informed Consent (FPIC) of First Nations. FIPA violates article 32 of UNDRIP, which providesthat First Nations have the right to determine priorities and strategies for the use of their lands or territories and other resources. FIPA violates article 37 of UNDRIP, which obliges states like Chinaand Canada to honour and respect First Nation Treaties.

In summary, FIPA constitutes a massive violation of international law, as codified by UNDRIP, and should be stopped in its tracks.Contrary to its constitutional fiduciary obligations to First Nations, as defined on numerous occasions by the Supreme Court of Canada, the federal Crown has acted with dishonour in the negotiation and roll-out of FIPA. First Nations were not consulted in a meaningful way in the negotiation of the agreement with China. The substantive text either ignores First Nation rights or runs roughshod over them, in plain violation of the sovereign Treaties. Finally, the Canadian government is attempting to ratify FIPA through an expedited and un-democratic process, in spite of the opposition of First Nations and many Canadians. Given the fundamental violation of First Nation rights and international law, all ratification measures connected with FIPA should be postponed indefinitely.

First Nation Treaties are the supreme law of the land, they are the condition precedent for the Canadian state, such as it is. It is impossible for the Canadian state to enter commercial agreements with third party states like China that are inconsistent with First Nation Treaties.Canada must immediately withdraw its support for FIPA and so inform China. The only way forwardis to establish a nation-to-nation dialogue with First Nations to determine if some form of Chinesecommercial arrangement that respects First Nation rights is feasible.Sincerely,

CHIEFS OF ONTARIO

Stan Beardy, Regional Chief