WHY FIRST NATIONS SHOULD BE CONCERNED ABOUT CANADA CHINA INVESTMENT TREATY

There has been much to do about the perils of the Canada China Investment Treaty and whether it is even constitutional. I have seen only one First Nations leader speaking out against it  and that in my opinion is a huge oversight. Admittedly, reading the treaty and understanding its implications is not a fun thing and there are so many issues affecting First Nations right now what the Harper government is doing.Harper is trying to keep us so busy reacting to changes to the Indian Act, the Financial Transparency Act, the Museum of Civilization changes, Ominbus Bill C-45 that we overlook this treaty.

In BC where Aboriginal rights and title are yet unresolved, the right to the resources belongs to the First Nations. Canada and the provinces may claim they have the right/ownership of the resources, so do First Nations and with good legal cause. Opening the doors to foreign companies while the resource/title issues are still being resolved is not in the spirit of reconciliation.

Some First Nations are working with companies in China and I am not in any way trying to take away from those relationships that have and are being built. There are viable opportunities that have been created with these companies with opportunity for more. But First Nations should know that the power base will change when this Free Trade Agreement with China comes into effect on Hallowe’en which may be an appropriate date as the footing will definitely change.

What will be different? Any Chinese company can come into Canada and operate on an equal basis as Canadian companies. They will not be subject to laws relating to foreign investment and ownership in the same way. We are all aware that China is in need of resources of all kinds which First Nations territories are rich with. We also are aware that there is financial ability with these Chinese companies that can come and do wide scale developments. So Chinese companies that may have needed First Nations to develop a resource before the treaty, will no longer need them in the same way to have local ownership and certainty to the resource base.

These companies can also bring in temporary executive, managerial and special labour to do work on their companies without the usual process to bring in workers? Will this take away opportunities for First Nations employment and capacity building? I am sure it will to some extent.

What will this mean? Development and extraction of the natural resources in First Nations territories will be accelerated at a rate that will probably be alarming. If a First Nation thinks they have to deal with a lot of referrals now for major projects, this will definitely increase. This treaty is in effect for 15 years and in 15 years, a lot of resource extractions can occur. Canada and the provinces will still have to consult and accommodate First Nations and that will not change with this treaty. The Chinese companies will also have to live up to whatever laws are in place, but as Harper has been setting the scene for this treaty, the environmental laws and standards and the Fisheries Act have all been watered down. Maybe Harper thinks this will put Canada into a positive economic place, but the question is, at what cost to First Nations and other Canadians?

Chinese investors shall be treated no less favourably than investors in Canada which means they have to be treated no less favourably in the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments.

The treaty allows Chinese companies to sue the government of Canada over decisions which “limit or reduce their expectations of profits”. These decisions can be made by any level of government. So if the provincial government in a few years lowers the Annual Allowable Cut in a tree farm license and a Chinese Company had counted on the full cut to make a profit, they can sue Canada for those losses. No First Nation or First Nation company has that right to sue the government of Canada for the ability to use their resources to the fullest and if government action affects that, then sue for losses? Something does not seem quite right here. First Nations in BC have been negotiating treaties in BC looking for fairness and equity and cannot negotiate these kinds of favourable terms.

The treaty goes on to say that if indeed the government does want to limit use of natural resources, then the reduction has to apply equally to Canadian companies and Chinese companies. No preference to Canadian companies. Everyone takes the burden, so if you are operating a forestry or energy company, you will have to cut back according to Government policy even though you have an aboriginal right to a resource and the Chinese company who has no rights in Canada to resources will still have the same access as you do. If First Nations in BC think there are little resources now to be allocated to them in treaty, there will be even less with this type of treaty in place.

There are many other complicated issues being analyzed by treaty experts as to whether the treaty can go beyond the authority of the Canadian legal system and Canadian courts and could be struck down on those basis but I will leave those issues for others.

There are also issues of provincial jurisdiction over natural resources, taxation, land and property rights and there is no ability for provincial carve outs for provincial measures regarding the treaty’s expropriation and fair and equitable treatment provisions. NAFTA has such provisions. Strangely enough, the provinces have not been too vocal about this treaty, so either they don’t understand it, don’t want to alienate the Harper Government, or think it is ok. Or maybe they haven’t read Article 2 Section 3 which states that “Each Contracting Party shall take all necessary measures in order to ensure observance of the provision of this Agreement by provincial Governments.” Sounds a little ominous to me. If it said that about First Nations, I know there would be a very strong immediate reaction.

If Mulroney is still being cursed for the NAFTA Agreement many years ago, can you imagine how Harper will be demonized in years to come over the opening up of natural resources coming from First Nations territories/Canada to foreign interests.

 

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