Hupacasath First Nation v. Canada (Foreign Affairs)

Hupacasath First Nation v. Canada (Foreign Affairs)
Court (s) Database
Federal Court Decisions
Date
2013-08-26
Neutral citation
2013 FC 900
File numbers
T-153-13
Notes
Reported Decision
Decision Content
Date: 20130826
Docket: T-153-13
Citation: 2013 FC 900
Ottawa, Ontario, August 26, 2013
PRESENT: THE CHIEF JUSTICE
BETWEEN:
HUPACASATH FIRST NATION
Applicant
and
THE MINISTER OF FOREIGN AFFAIRS CANADA AND THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review regarding the pending ratification of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments [CCFIPPA].
[2] The Applicant, Hupacasath First Nation [HFN], seeks a declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying or taking other steps that will bind Canada under the CCFIPPA.
[3] For the reasons that follow, I have concluded that:
(i) The potential adverse impacts that HFN submits the CCFIPPA may have on its asserted Aboriginal rights, due to changes that the CCFIPPA may bring about to the legal framework applicable to land and resource regulation in Canada, are non-appreciable and speculative in nature. I also find that HFN has not established the requisite causal link between those alleged potential adverse impacts and the CCFIPPA.
(ii) The same is true with respect to the potential adverse impacts that HFN submits the CCFIPPA may have on the scope of self government which it can achieve.
(iii) Therefore, the ratification of the CCFIPPA by the Government of Canada [Canada] without engaging in consultations with HFN would not contravene the principle of the honour of the Crown or Canada’s duty to consult HFN before taking any action that may adversely impact upon its asserted Aboriginal rights.
[4] This application will therefore be dismissed.
I. The CCFIPPA
[5] The CCFIPPA was signed at Vladivostok, Russia, on September 9, 2012.
[6] Pursuant to Article 35, Canada and the Government of the People’s Republic of China [the “Contracting Parties”] are required to notify each other through diplomatic channels that they have completed the internal legal procedures for the entry into force of their agreement. The CCFIPPA will enter into force on the first day of the month following the month in which the second of the two notifications is received and shall remain in force for a period of at least 15 years.
[7] After the expiration of the initial 15-year period, either party may terminate the CCFIPPA. Such termination will be effective one year after its receipt by the other Contracting Party. However, the agreement will continue to be effective for an additional 15-year period with respect to investments made prior to its termination.
[8] It appears to be common ground between the parties to this proceeding [Parties] that the substantive provisions in the CCFIPPA are highly similar to those in the North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can TS 1994 No 2, 32 ILM 289 (entered into force 1 January 1994) [NAFTA] and closely resemble the provisions in Canada’s 2004 Model Foreign Investment Protection Agreement [2004 Model FIPA]. Indeed, HFN acknowledged that the provisions in the CCFIPPA that were the focus of this proceeding “are the same as those set out in NAFTA” (Reply of the Applicant [Reply] at para 33).
[9] According to the Explanatory Memorandum on the [CCFIPPA] [Explanatory Memorandum], the CCFIPPA:
[…] is a bilateral treaty designed to protect and promote investment between Canada and the People’s Republic of China (the “Parties”) by assigning legally binding rights and obligations to both Parties in foreign investment matters.
The Agreement provides Canadian investors operating in the People’s Republic of China with additional legal protection, setting out the manner in which Canadian investors should be treated and procedures through which they may pursue alleged breaches of the Agreement. Key provisions include: national treatment, most-favoured nation treatment, minimum standard of treatment, protection against expropriation, obligations for the free transfer of funds and an investor-State dispute settlement mechanism.
[…] est un traité bilatéral conçu pour protéger et promouvoir les investissements entre le Canada et la République populaire de Chine (les « Parties »), qui définit des droits et des obligations juridiquement contraignants pour les deux parties en matière d’investissements étrangers.
L’Accord prévoit une protection juridique additionnelle pour les investisseurs canadiens faisant des affaires en République populaire de Chine, établit la manière dont doivent être traités les investisseurs canadiens et énonce les procédures visant les mesures que peuvent prendre ces investisseurs relativement aux violations alléguées de l’Accord. Les principales dispositions de l’Accord comprennent : le traitement national, le traitement de la nation la plus favorisée, la norme minimale de traitement, la protection contre l’expropriation, les obligations relatives au libre transfert de fonds et un mécanisme de règlement des différends opposant un investisseur et un État.
[10] The CCFIPPA provides the same protections described above to investors of the People’s Republic of China [China].
[11] The Explanatory Memorandum also notes that “[c]onsultations on the [CCFIPPA] took place under the ongoing consultation process by the Department of Foreign Affairs and International Trade with stakeholders.”
[12] It is common ground between the Parties that such consultations did not include the HFN or other First Nations, notwithstanding that Canada released an initial Environmental Assessment of the CCFIPPA for public comment in February 2008.
[13] Shortly following the announcement of the signing of the CCFIPPA, HFN wrote to Prime Minister Harper to request that the ratification of the agreement be postponed “until there has been full and proper consultation between the Crown and the founding First Nations, including [HFN].” Representatives of other First Nations have made similar requests. To date, HFN’s request has not been granted. It appears that the same is true with respect to the requests that have been made on behalf of other First Nations.
[14] No legislative amendments are required to implement the CCFIPPA.
[15] The CCFIPPA is similar in many respects to 24 other foreign investment protection agreements [FIPAs] that Canada has entered into since 1989, particularly those entered into since 1995 (Affidavit of Vernon MacKay, [MacKay Affidavit], Respondent’s Record, Volume I, Tab 1, at paras 20 - 31 and 39 - 44).
II. The HFN
[16] The HFN, formerly known as the Opetchesaht Indian Band, is a “band” within the meaning of that term as defined in the Indian Act, RSC, 1985, c I-5 [Indian Act]. The Hupacasath Chief and Council represent approximately 285 band members, all of whom are Indians as defined in the Indian Act.
[17] According to an affidavit sworn by Carolyne Sayers [Sayers Affidavit], a Council member of the HFN, the HFN’s band members live on two reserves near Port Alberni on Vancouver Island. It appears that those reserves are located on the banks of the Alberni Inlet, and are approximately 53.4 and 2.6 hectares, respectively, in size. The HFN has three additional reserves in that territory which are not occupied, due to the lack of infrastructure. In total, the HFN asserts Aboriginal rights and title with respect to approximately 232,000 hectares of land in central Vancouver Island, as reflected on the map set forth in Appendix 1 to these reasons.
[18] In her affidavit, which was authorized by, and sworn on behalf of, the HFN’s Chief and Council, Ms. Sayers stated that she is concerned that if the CCFIPPA is ratified and implemented the HFN will be negatively affected in a number of ways, including:
a. HFN may be prevented from exercising its rights to conserve, manage and protect lands, resources and habitats in accordance with traditional Hupacasath laws, customs and practices, and in the best interest of its members;
b. HFN may be prevented from negotiating a treaty which protects its rights to exercise its authority in the best interest of the Hupacasath people, including to conserve, manage and protect lands, resources and habitats and to engage in other governance activities, in accordance with traditional Hupacasath law, customs and practices, and in the best interest of its members;
c. disputes over resource use between HFN and companies with Chinese investors will be resolved by the application of international trade and investment law, which Ms. Sayers believes does not provide the same protections for Aboriginal rights and title as Canadian constitutional law;
d. because measures aimed at protecting HFN’s rights and title may give rise to significant damage claims, the federal and provincial governments will be less likely to take steps to protect those rights, including engaging in adequate consultation and reasonable accommodation; and
e. the rights of Chinese investors, and the impact of any potential claim under the CCFIPPA on Canada may be taken into account by the government and courts in determining whether a specific measure HFN seeks to protect its rights and title would constitute reasonable accommodation.
III. Issue
[19] In its Application, HFN sought:
a. A declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to taking steps that will bind Canada under the CCFIPPA;
b. An order restraining the Minister of Foreign Affaires or any other official or representative of Canada from sending a letter to the People’s Republic of China [China] stating that Canada has completed the internal legal procedures for the entry into force of the CCPIFFA, until the appropriate consultation and accommodation has been carried out; and
c. An interlocutory injunction restraining the Minister of Foreign Affairs or any other official or representative of Canada from sending a letter to China stating that Canada has completed the internal legal procedures for the entry into force of the CCFIPPA, until this application has been heard and determined by the Court.
[20] In their written submissions, the Respondents stated that if this Court finds that a duty to consult with HFN has been triggered and breached, it would not be necessary for the Court to go beyond making a declaration that a such a duty is owed to HFN, “as it can be assumed that the government will comply with the law as stated by the courts.”
[21] Based on that statement, HFN withdrew its request for the relief described in subparagraphs 19(b) and (c) above.
[22] The Respondents also submitted that any declaration that this Court may issue should be confined to addressing the asserted duty to consult with HFN, and should not address whether a duty to consult is owed to other First Nations. I agree.
[23] As the Respondents noted, HFN did not commence a class action or bring a representative action on behalf of other First Nations. It also did not serve notice on all First Nations so that they could be added as parties. No other First Nations sought to be added as a party to this proceeding.
[24] In these circumstances, I agree that it would not be appropriate for this Court to address, in any declaration that may be made in this proceeding, the issue of whether a duty to consult is owed to other First Nations, even if the formidable practical impediments to workable and meaningful consultations with the over 600 First Nations bands that exist across the country could be overcome. My conclusion in this regard is reinforced by the fact that Aboriginal rights are both band and fact-specific (R v Gladstone, [1996] 2 SCR 723, at para 65 and R v Van der Peet, [1996] 2 SCR 507, at para 69); and representatives of Aboriginal groups need to be authorized to speak or to bring claims on behalf of their groups (Sechelt Nation v Bell Pole, 2013 BCSC 892 (QL), at para 17). Moreover, with one exception, no evidence has been led on behalf of other First Nations regarding the potential impact of the CCFIPPA on their Aboriginal interests.
[25] In its initial written submissions, HFN raised a threshold issue of whether the act of ratifying the CCFIPPA is something that could be subject to judicial review. HFN maintains that ratification of the CCFIPPA is subject to review on the basis that Canada’s failure to consult HFN prior to ratification is a breach of its constitutional duty to consult with HFN in respect of a measure that may affect HFN’s Aboriginal rights. That said, during the hearing, HFN underscored that it was not suggesting that the Court can review either Canada’s prerogative to enter into the CCFIPPA or the content of the CCFIPPA. HFN acknowledges that these are matters of “high policy” that are not amenable to judicial review (Black v Canada (Prime Minister) (2001), 54 OR (3d) 215, at para 52). The Respondents have not contested this threshold issue. Indeed, it is clear that the exercise of the prerogative power of the Crown can be reviewed for constitutionality (Canada (Prime Minister) v Khadr, 2010 SCC 3, at paras 36-37; Black, above, at para 50).
[26] Accordingly, the only issue to be determined in this application is whether, prior to ratifying the CCFIPPA in accordance with Article 33 of the CCFIPPA, Canada has a duty to consult with HFN.
IV. Standard of Review
[27] The ratification the CCFIPPA is an exercise of a prerogative power. It is common ground between the Parties that the exercise of this power is subject to review on constitutional grounds. In this proceeding, HFN submits that Canada’s failure to consult with HFN prior to ratifying the CCFIPPA would constitute a breach of Canada’s constitutional obligation to engage in consultations with HFN before taking any action which may adversely affect HFN. It also asserts that such action would be contrary to Canada’s constitutional obligation to act honourably in all its dealings with Aboriginal peoples (Tzeachten First Nation v Canada (Attorney General) 2007 BCCA 133, at paras 47-49; Nlaka’pamux Nation Tribunal Council v British Columbia (Project Assessment Director, Environmental Assessment Office), 2011 BCCA 78, at para 68).
[28] Given the constitutional nature of this issue, it is subject to review on a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 58; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC 61, at para 30).
V. Preliminary Issues
[29] In their written submissions, the Respondents requested the Court to strike four affidavits sworn on behalf of the Applicant by individuals who are not members of HFN. In the alternative, the Respondents requested that portions of those affidavits be struck. The Respondents maintain that those affidavits or portions thereof, are clearly irrelevant.
[30] The affidavits in question were sworn by Grand Chief Stewart Phillip, Chief James Ahnassay, Chief Bryce Williams and Chief Isadore Day.
[31] The first three of those affidavits focus primarily upon consultations that were requested in respect of the CCFIPPA, and the affiants’ concerns regarding the potential implications of the CCFIPPA on (i) their bands’ Aboriginal interests, treaty rights and ability to protect the environment in their territories or (ii) First Nations more generally. Grand Chief Phillip’s affidavit also briefly discusses the history behind the establishment of the Union of British Columbia Indian Chiefs and that organization’s principal objectives.
[32] Chief Day’s affidavit, written on behalf of the Serpent River First Nation and the Chiefs of Ontario Organization [COO], also focuses upon the potential implications of the CCFIPPA on First Nations’ treaty and other rights. In addition, it provides an overview of the history of relations between First Nations and the Crown and a more detailed treatment of the concerns of First Nations than is provided in the other three affidavits mentioned immediately above.
[33] Notwithstanding that Grand Chief Phillip, Chief Ahnassay, Chief Williams and Chief Day are not authorized to represent HFN, and have focused on the potential impact of the CCFIPPA on their respective First Nations groups, or on First Nations in general, I have decided to exercise my discretion in favour of allowing their affidavits to remain on the Court record. My decision in this regard is based on my conclusion that those affidavits may potentially assist my understanding of the potential impact of the CCFIPPA on HFN. In the case of Chief Day’s affidavit, I consider the history that he provides to be helpful in assisting me to understand the important context in which the Crown’s legal duty to consult First Nations arose, particularly as that duty relates to the honour of the Crown and the objective of reconciliation.
VI. Experts
A. Mr. Gus Van Harten
[34] HFN’s expert evidence was provided by Mr. Gus Van Harten, in a letter dated February 13, 2013 [Van Harten Opinion] to HFN’s counsel.
[35] Mr. Van Harten is an Associate Professor at Osgoode Hall Law School, at York University. He obtained his PhD in 2006 and has since published a number of articles, primarily on investment treaty arbitration. He has also written a book on that topic.
[36] Mr. Van Harten was retained to provide his expert opinion with respect to various aspects of the CCFIPPA. These include the obligations that it imposes upon Canada, the manner in which it differs from other international treaties to which Canada is a party, how it will apply to federal and provincial government action and legislation, how it will apply to domestic judicial decisions which affect land and resources subject to Aboriginal or treaty rights claims, whether principles of domestic law will be taken into account by international arbitrators who are appointed to adjudicate under the CCFIPPA, and whether measures or actions taken by First Nations governments could potentially put Canada out of compliance with the CCFIPPA.
[37] The Respondents submitted that Mr. Van Harten’s evidence should be accorded reduced weight because he has been a vocal critic of the type of investor state arbitration provisions that are included in the CCFIPPA and because he has frequently and publicly voiced his opposition to ratification of the CCFIPPA.
[38] Given that HFN acknowledged and did not dispute these allegations, I am inclined to agree with the Respondents’ position, primarily on the basis that Mr. Van Harten’s ability “to assist the Court impartially,” as required by the Court’s Code of Conduct for Expert Witnesses, SOR/2010-176, would appear to be somewhat compromised.
B. Mr. J. Christopher Thomas, Q.C.
[39] The Respondents’ expert evidence was provided by Mr. Chris Thomas, Q.C. in a letter dated March 13, 2013 [Thomas Opinion] to counsel to the Respondents.
[40] Mr. Thomas is a Senior Principal Research Fellow at the National University of Singapore’s Center for International Law. He has also practiced in the field of international economic law for over 25 years, taught at two Canadian universities, and worked for the Federal Minister for International Trade during the launch of the Uruguay Round of Multilateral Trade Negotiations and the Canada-United States Free Trade Agreement negotiations. In addition, he acted for the Government of Mexico in relation to the negotiation of the NAFTA and two related agreements on Labour and Environmental Co-operation. He has also practised as an international trade dispute panellist and an international arbitrator.
[41] Mr. Thomas was retained to provide his views on the Van Harten Opinion, including its criticism of international investor-state arbitration; the extent to which the CCFIPPA differs from Canada’s past agreements on investment protection; the extent to which the CCFIPPA may prevent a government from determining an appropriate level of environmental protection, from managing its international resources, or from making changes to its laws; the interaction between the CCFIPPA and Canadian domestic law; remedies that may be granted by an arbitral panel constituted under the CCFIPPA; the extent to which Canada can be held internationally responsible under the CCFIPPA for legislative or judicial decisions with respect to HFN; and the scope of the Aboriginal affairs’ exception in the CCFIPPA.
C. General Observations
[42] Given Mr. Van Harten’s acknowledged partiality, and given that I generally found Mr. Thomas to be more neutral, factually rigorous and persuasive, I generally accepted his evidence over Mr. Van Harten’s when they did not agree. In any event, I found that Mr. Van Harten’s evidence did not materially assist HFN to demonstrate that the potential impact of the CCFIPPA on its Aboriginal interests is appreciable and non-speculative, as required to trigger a duty to consult. To a large extent, this was due to the fact that his assertions on key issues were baldly stated and unsubstantiated.
VII. Analysis
A. Duty to Consult – General Principles
[43] The Government of Canada’s duty to consult with Aboriginal peoples, including HFN, and to accommodate their interests in certain circumstances is grounded in the honour of the Crown (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, at paras 16 and 20 [Haida]). In brief, “in all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.” This is necessary to achieve the important goal of “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” In turn, to achieve that goal, the principle of the honour of the Crown must be viewed generously (Haida, above, at para 17). Likewise, the duty to consult must be approached in a “generous” and “purposive” manner (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, at para 43 [Rio Tinto].
[44] The honour of the Crown gives rise to different duties in different circumstances. Where, as in the present circumstances with HFN, a treaty with a particular Aboriginal group remains to be concluded, the honour of the Crown implies a duty to consult when the conditions described below are met. Moreover, when those conditions are met, the honour of the Crown further requires that the Aboriginal group’s relevant interests be reasonably accommodated, if appropriate (Haida, above, at paras 18, 20, 27 and 33).
[45] The Aboriginal interests that are relevant for this purpose are those interests that are protected by s. 35(1) of the Constitution Act, 1982, which recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” (Hiawatha First Nation v Ontario (Minister of Environment), [2007] OJ No 406, at para 50). For greater certainty, subsection 35(3) clarifies that, for this purpose, “treaty rights” includes “rights that now exist by way of land claims agreements or may be so acquired.”
[46] Given the constitutional dimension of the honour of the Crown, the duty to consult is a “constitutional imperative” (Nlaka’pamux Nation Tribal Council v British Columbia (Project Assessment Director, Environmental Assessment Office), 2011 BCCA 78, at para 68). It seeks to provide protection to Aboriginal and treaty rights while furthering the goals of reconciliation between Aboriginal peoples and the Crown (Rio Tinto, above, at para 34; Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14, at para 66).
[47] Once triggered, the content of the duty to consult and accommodate varies with the circumstances. The jurisprudence in this area continues to evolve. However, in general terms “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and the seriousness of the potentially adverse effect upon the right or title claimed” (Haida, above, at para 39).
[48] The present case solely concerns whether the preconditions that must be met to trigger a duty to consult were met. It does not concern the content of that duty, if the duty exists in respect of the ratification of the CCFIPPA.
[49] In Haida, above, at paragraph 34, the Supreme Court stated that the duty to consult “arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”
[50] In Rio Tinto, above, at para 31, the Court elaborated on this test as follows:
[31] … This test can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.
[51] I will address each of these three elements of the test separately below. Although HFN also briefly stated in its Application that Canada’s duty to consult also arises from the Crown’s fiduciary obligations towards First Nations Peoples and the United Nations Declaration on the Rights of Indigenous Peoples, Resolution 61/295, 13 September 2007, I agree with the Respondents that the question of whether the alleged duty to consult is owed to HFN must be determined solely by application of the test set forth immediately above. I would add in passing that HFN did not pursue these assertions in either written or oral argument, and that, in a press release issued by Aboriginal Affairs and Northern Development Canada, entitled Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples, that Declaration is described as “an aspirational document” and as “a non-legally binding document that does not reflect customary international law nor change Canadian laws.” HFN did not make submissions or lead evidence to the contrary.
B. The Crown’s Knowledge of HFN’s Claims or Rights
[52] It is common ground between the Parties that this element of the test is satisfied.
[53] In her affidavit, Ms. Sayers characterized HFN’s asserted Aboriginal rights as including the following:
a. The right to harvest, manage, protect and use fish, wildlife, and other resources in HFN’s traditional territory in priority to all other users, subject only to conservation;
b. Rights to the commercial sale of fish, wildlife and other resources to earn a livelihood;
c. The right to have access to exclusive and preferred areas to harvest or use fish, wildlife and other resources in their traditional territory;
d. The right to protect the habitats that sustain fish, wildlife and other resources which the Hupacasath have a right to harvest;
e. The right to harvest, use and conserve fish, wildlife and other resources and to protect and manage the habitat of fish, wildlife and other resources in accordance with traditional Hupacasath laws, customs, and practices both in their traditional and their modern form; and
f. The right to build, maintain and occupy structures incidental to harvesting, using, managing or conserving fish, wildlife and other resources in HFN’s territory.
[54] The Respondents confirmed that they are aware that the foregoing Aboriginal rights have been advanced by HFN, both in treaty negotiations and in litigation. As is immediately apparent, those rights essentially relate to the use, management and conservation of land and resources within HFN’s claimed territory. The Respondents acknowledge that those rights are rooted in section 35 of the Constitution. It is those rights, and those rights alone, that are relevant for the analysis below.
C. The Contemplated Crown Conduct
[55] It is common ground between the parties that the contemplated Crown conduct in question is the ratification of the CCFIPPA.
D. The Potential That The Contemplated Conduct May Adversely Affect HFN’s Asserted Aboriginal Rights
[56] In assessing whether this third element of the duty to consult test is met, it is critical to determine “the degree to which the conduct contemplated by the Crown would adversely affect” the asserted Aboriginal rights (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, at para 34 [Mikisew]). While a generous and purposive approach to this element is required, “[m]ere speculative impacts” will not suffice. There must be “an appreciable adverse effect on the First Nations’ ability to exercise their aboriginal right” (Rio Tinto, above, at para 46). Moreover, the claimant “must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights” (Rio Tinto, above, at para 45).
[57] In this regard, adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right. This includes high-level management decisions or structural changes to the management of a resource that may adversely affect Aboriginal claims or rights, even if such decisions have no immediate impact on the resource or the land upon which it is situated (Rio Tinto, above, at para 47), and even if later opportunities for consultations exist in respect of specific actions that may be taken pursuant to such high level decisions or structural changes (Dene Tha’ First Nation v British Columbia (Minister of Energy and Mines), 2013 BCSC 977, at para 114).
[58] HFN submits that the ratification of the CCFIPPA is such a high-level management decision or structural change and has a non-speculative potential to adversely affect its asserted Aboriginal rights in an appreciable way, even if it will have no immediate impact on its lands or the resources situated thereon. In this regard, HFN adds that Canada’s agreement to be bound by the CCFIPPA “may set the stage for further decisions that will have a direct adverse impact on land and resources” (Rio Tinto, above, at para 47), by granting Chinese investors enforceable rights which must be taken into account when any level of government in Canada makes any kind of resource management decision.
[59] For the reasons set forth below, I respectfully disagree. In my view, the evidence adduced during this proceeding does not demonstrate that any adverse impacts that the CCFIPPA may have upon HFN’s asserted Aboriginal interests will be appreciable and non-speculative. On the contrary, I am satisfied that the adverse impacts which HFN has identified are speculative, remote and non-appreciable. In addition, HFN has not demonstrated the required causal link between the CCFIPPA and those claimed potential adverse impacts.
[60] HFN submitted that the ratification of the CCFIPPA is likely to give rise to the following two general categories of adverse effects:
a. The CCFIPPA will result in a significant change in the legal framework applicable to land and resource regulation in Canada, and that various potential adverse effects on its Aboriginal rights will flow from that change.
b. The rights granted to Chinese investors under the CCFIPPA will directly and adversely impact the scope of self-government which HFN can achieve, either through the exercise of its Aboriginal rights, through the treaty making process, or through the exercise of delegated authority from Canada or the Government of British Columbia.
[61] I will address these two broad categories of claimed adverse effects separately below. However, I will first address a threshold issue raised by the Respondents.
(i) Can it be said that the CCFIPPA cannot, as a matter of law, trigger a duty to consult?
[62] The Respondents submit that the ratification of the CCFIPPA cannot, as a matter of law, trigger a duty to consult with HFN. This position is based primarily on its assertions that (i) the ratification of the CCFIPPA will not alter Canadian domestic law or require existing laws or regulations to be changed, and (ii) the authority of arbitral tribunals established under the CCFIPPA will not extend into the domestic sphere. In this latter regard, the Respondents note that the remedial powers of such tribunals will be restricted by the CCFIPPA to awarding monetary damages or restitution of property, solely against Canada and China. As a result, in the event a measure passed by HFN were found by an arbitral tribunal to be in breach of Canada’s obligations under the CCFIPPA, the tribunal would have no power to enjoin the measure and it would be Canada, not HFN, that would be responsible for paying damages or providing restitution. Put differently, any awards issued by arbitral panels under the CCFIPPA will have no binding effect upon HFN.
[63] In support of their position, the Respondents rely upon Council of Canadians v Canada (Attorney General) [2005] OJ No 3422 [Council of Canadians – OSCJ]; aff’d [2006] OJ No 4751 [Council of Canadians – ONCA]. There, the Ontario Court of Appeal upheld a finding of first instance that the fact that the arbitral tribunals set up under Chapter 11 of the NAFTA have not been incorporated into Canada’s domestic law negated one possible basis for applying section 96 of the Constitution to those tribunals (Council of Canadians – ONCA, above, at para 25). However, the Court then declined to address the broader question of whether a tribunal established pursuant to an international treaty is per se exempt from section 96, because it was satisfied that the NAFTA tribunals do not violate section 96.
[64] Section 96 of the Constitution states:
The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
Le gouverneur-général nommera les juges des cours supérieures, de district et de comté dans chaque province, sauf ceux des cours de vérification dans la Nouvelle-Écosse et le Nouveau-Brunswick.
[65] In the course of its reasons, the Court of Appeal observed that although this provision is “framed as an appointing power accorded to the federal government, it is now well established that section 96 was designed to ensure the independence of the judiciary and to provide some uniformity to the judicial system throughout the country” (Council of Canadians – ONCA, above, at para 31).
[66] In reaching the conclusion that Chapter 11 of the NAFTA had not been incorporated into Canada’s domestic law, the applications judge observed that international law, which governs NAFTA tribunals, and domestic law, operate in different spheres (Council of Canadians – OSCJ, above, at para 41). She then proceeded to conclude that the establishment of tribunals under NAFTA cannot breach the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], because (i) those tribunals have no authority to change Canada’s domestic laws or practices, (ii) their jurisdiction is limited to the international law issues before them and the remedies are also circumscribed, (iii) nothing in the NAFTA compels Canada to amend its laws and practices, and (iv) the arbitration of claims that Canada has failed to honour its treaty obligations does not affect or determine the rights of Canadians (Council of Canadians – OSCJ, above, at para 65).
[67] The Respondents rely on the foregoing reasoning to assert that the CCFIPPA cannot, as a matter of law, trigger the constitutional duty to consult.
[68] In my view, the fact that the arbitration provisions in the NAFTA, or similar provisions in other FIPAs, may not attract section 96 of the Constitution or breach the Charter does not preclude the possibility that the ratification of such agreements may trigger the application of the constitutional principle of the honour of the Crown and a duty to consult with First Nations prior to such ratification. One reason why this is so is that the duty to consult is triggered where there is simply a non-speculative possibility of appreciable impacts on asserted Aboriginal rights, whereas Charter rights are only triggered when there is a more serious risk that the alleged violation will occur (Phillips v Nova Scotia (Westray Mine Inquiry), [1995] 2 SCR 97, at para 108; Council of Canadians – OSCJ, above, at para 62). Absent other legal considerations that have not been addressed in this proceeding, the question may need to be determined on the basis of the facts and evidence in each case, namely, whether they establish the three elements required to trigger the duty to consult. In any event, given the conclusions that I have reached below regarding the facts and evidence in this case, it is not necessary to make a definitive determination on the Respondents’ position that the CCFIPPA cannot, as a matter of law, trigger the duty to consult.
[69] However, I will note in passing that the Respondents’ position on this point is inconsistent with provisions that are included in a number of final agreements that Canada has entered into with First Nations, which require it to consult with those First Nations prior to consenting to be bound by a new international treaty which would give rise to new international legal obligations that may adversely affect a right of the First Nations. (See for example Maa-nulth First Nations Final Agreement, December 9, 2006, at para 1.7.1; Lheidli Final Agreement, October 29, 2006, at para 11; Tla’amin Final Agreement, at para 24; Yale First Nation Final Agreement, at para 2.8.1; and Tsawwassen Final Agreement, clauses 30 and 31 in Chapter 2; see also Land Claims and Self Government Agreement Among The Tlicho and The Government of the Northwest Territories and The Government of Canada, at para 7.13.2).
(ii) Effects flowing from a change in the legal framework applicable to land and resource regulation
[70] HFN submits that the ratification of the CCFIPPA triggers the duty to consult because it grants Chinese investors new, substantive, and enforceable rights with respect to any investments they may hold, or maintain, in areas over which HFN asserts Aboriginal or treaty rights. HFN maintains that this constitutes a significant change in the legal landscape pertaining to its lands and resources because, among other things, those rights necessarily involve a restriction of the options open to the Crown to address HFN’s asserted Aboriginal and treaty claims, and to protect the resources which are the subject of those claims.
[71] It is common ground between the Parties that there does not appear to have been a previous case in which the Courts in Canada have been called upon to assess whether a duty to consult exists in respect of any other investment treaty or similar international agreement.
a. Duty to consult jurisprudence relied upon by HFN
[72] In support of its assertion that ratification of the CCFIPPA would constitute a high-level management decision or structural change that has an appreciable and non-speculative potential to adversely affect its asserted Aboriginal rights, HFN relies on a line of cases in which a duty to consult was found to exist in respect of conduct that was found to meet this test.
[73] I agree with the Respondents that those cases are all distinguishable on the basis that the high-level decisions or structural changes in each of those cases all directly related to land or resources in respect of which Aboriginal peoples have asserted or established Aboriginal rights. By contrast, the CCFIPPA is a broad, national framework investment treaty that does not directly relate to any particular lands or resources. Rather than being directly or even broadly related to land or resources, it is designed to protect and promote investment between Canada an