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China Canada FIPA - Chiefs of Ontario Letter to China's Ambassador - Nov 5, 2012

China Canada FIPA - Chiefs of Ontario Letter to China's Ambassador - Nov 5, 2012

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Published by matthewcarroll
Letter from the Chiefs of Ontario to China's Ambassador to Canada advising that the Canada-China FIPA investment deal violates First Nation Treaty rights and international law, and requesting that China withdraw its support for the deal. (Posted with permission of the COO.)
Letter from the Chiefs of Ontario to China's Ambassador to Canada advising that the Canada-China FIPA investment deal violates First Nation Treaty rights and international law, and requesting that China withdraw its support for the deal. (Posted with permission of the COO.)

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Categories:Types, Legal forms
Published by: matthewcarroll on Nov 07, 2012
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08/24/2013

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POLITICAL OFFICE: ADMINISTRATION OFFICE:Fort William First Nation 111 Peter Street, Suite 804109 Mission Road Toronto, OntarioFort William First Nation M5V 2H1P7J 1K7 Tel (416) 597-1266(807) 626-9339 Tel Fax (416) 597-8365(807) 626-9404 Fax 1-877-517-6527Website:www.chiefs-of-ontario.org 
CHIEFS OF ONTARIO
Association of Iroquois and Allied Indians
First Nations of Treaty #3
Independent First Nations
Nishnawbe Aski Nation
Union of Ontario Indians
 
November 5, 2012His Excellency Zhang Junsai Ambassador Extraordinary and Plenipotentiary of the
People’s Republic of China to Canada
 515 St. Patrick StreetOttawa, ON K1N 5H3Dear Ambassador Zhang Junsai:
RE: Financial Investment Protection Agreement (FIPA) between Canada and China
 On behalf of the 133 First Nations of Ontario, I wish to extend my kindest regards to the people andgovernment of China. Many First Nation governments, entities, and individuals have direct andfruitful business and other relations with China. First Nations and China share a devastating historyof colonial intrusion by European and other foreign powers. The recent emergence of China as thesecond largest economy in the world is a matter of great respect and honour.Unfortunately, the matter at hand, i.e. the draft FIPA, has become a matter of extreme contention inCanada. The government of China is hereby respectfully urged to permanently withdraw its supportfor FIPA.With respect, some context on the general relationship between First Nations and Canada isrequired for you to understand the fundamental opposition of First Nations to FIPA. More elaborateand detailed information can be supplied on request.The relationship between Canada and First Nations in Ontario is defined by Treaties, including theWampum Treaties, the Robinson Treaties, the numbered Treaties, and all others between the Crownand First Nations. These bilateral Treaties are international in nature and they stand on their own asthe fundamental law of the land in Canada. Treaties are also protected by section 35 of theCanadian 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 theauthority 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 agreementslike FIPA are only possible if they do not affect First Nation rights or if First Nation consent has beenobtained in the appropriate manner.
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 The highest court in Canada, the Supreme Court of Canada, has held on numerous occasions inrecent years that the Crown government in Canada is subject to fundamental fiduciary obligations toFirst Nations. In particular, the Crown must always act with the utmost honour in its dealings withFirst Nations. Treaty and other First Nation rights must be respected at all times. When a proposedgovernment measure may affect First Nation rights and/or interests, the Canadian government isrequired as a matter of constitutional law to fully consult affected First Nations and to accommodatethem in a fair and reasonable way.In this context defined by the Treaties and the fiduciary relationship, First Nations have fundamentalobjections to the draft FIPA.The investment preferences and extra-judicial dispute resolution process of FIPA are a direct threatto First Nation control of their traditional territories, including the commercial development of landsand resources. Foreign investors will receive better treatment than the First Peoples, endowed bythe Creator as perpetual stewards of all the land and water. This is in violation of the Treatiesbetween First Nations and the Crown. First Nation Treaties are the supreme law of the land inCanada
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they are the condition precedent for the Canadian state. It is impossible for the Canadianstate to enter commercial agreements with third party states like China that are inconsistent with theFirst Nation Treaties.Contrary to its constitutional fiduciary obligations to First Nations, the Crown in right of Canada hasacted with great dishonour in the negotiation and roll-out of FIPA. First Nations were not consultedin a meaningful way in the negotiation of the agreement with China and, needless to say, there wasno attempt to accommodate First Nation rights and interests. The substantive text of the draftagreement either ignores First Nation rights or runs roughshod over them, in plain violation of theTreaties. Reading FIPA leaves the impression that First Nations and their rights do not exist. Thatmust be unacceptable to a respected international party such as China. Further, the Canadiangovernment is attempting to ratify FIPA through an expedited and un-democratic process, in spite of the opposition of First Nations and many Canadians.In addition to the context of the historical and legal relationship between Canada and First Nations,the norms of international law must be considered in the instance of FIPA. Both China and Canadahave adopted UNDRIP. FIPA is fatally flawed in terms of international law because it violatesUNDRIP on several clear counts. FIPA violates article 19 of UNDRIP, which provides that statemeasures that may affect First Nations cannot be adopted without the Free, Prior and InformedConsent (FPIC) of First Nations. FIPA violates article 32 of UNDRIP, which provides that FirstNations have the right to determine priorities and strategies for the use of their lands or territoriesand other resources. FIPA violates article 37 of UNDRIP, which obliges states like China andCanada to honour and respect First Nation Treaties. In summary, FIPA constitutes a massiveviolation of international law, as codified by UNDRIP, and must be stopped in its tracks. China mustbe concerned with the massive violation of a UN Declaration it so recently adopted in good faith.Understandably, China may have relied on assertions and inferences by Canada that it has thedomestic legal authority to ratify FIPA. This is to formally advise the government of China thatnothing could be further from the truth. The FIPA negotiation process and the draft text violate thefundamental legal obligations of Canada in relation to First Nation Treaties and the fiduciaryrelationship. As such, FIPA should be viewed as a dead letter and should be immediatelyabandoned by all concerned. The same conclusion is dictated by international law binding on bothCanada and China. A draft trade agreement so patently in contradiction of key guarantees inUNDRIP must be considered null and void from an international law perspective.
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