POLITICAL OFFICE: Fort William First Nation 109 Mission Road Fort William First Nation P7J 1K7

1266 (807) 626-9339 Tel (807) 626-9404 Fax

ADMINISTRATION OFFICE: 111 Peter Street, Suite 804 Toronto, Ontario M5V 2H1 Tel (416) 597Fax (416) 597-8365 1-877-517-6527 Website: www.chiefs-of-ontario.org

November 5, 2012

His Excellency Zhang Junsai Ambassador Extraordinary and Plenipotentiary of the People’s Republic of China to Canada 515 St. Patrick Street Ottawa, ON K1N 5H3 Dear 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 and government of China. Many First Nation governments, entities, and individuals have direct and fruitful business and other relations with China. First Nations and China share a devastating history of colonial intrusion by European and other foreign powers. The recent emergence of China as the second 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 in Canada. The government of China is hereby respectfully urged to permanently withdraw its support for FIPA. With respect, some context on the general relationship between First Nations and Canada is required for you to understand the fundamental opposition of First Nations to FIPA. More elaborate and detailed information can be supplied on request. 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 between the Crown and First Nations. These bilateral Treaties are international in nature and they stand on their own as the fundamental law of the land in Canada. 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 the sovereignty 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 been obtained in the appropriate manner. …/2
 Association of Iroquois and Allied Indians  First Nations of Treaty #3  Independent First Nations  Nishnawbe Aski Nation  Union of Ontario Indians 

The highest court in Canada, the Supreme Court of Canada, has held on numerous occasions in recent years that the Crown government in Canada is subject to fundamental fiduciary obligations to First Nations. In particular, the Crown must always act with the utmost honour in its dealings with First Nations. Treaty and other First Nation rights must be respected at all times. When a proposed government measure may affect First Nation rights and/or interests, the Canadian government is required as a matter of constitutional law to fully consult affected First Nations and to accommodate them in a fair and reasonable way. In this context defined by the Treaties and the fiduciary relationship, First Nations have fundamental objections to the draft FIPA. The investment preferences and extra-judicial dispute resolution process of FIPA 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. This is in violation of the Treaties between First Nations and the Crown. First Nation Treaties are the supreme law of the land in Canada – they are the condition precedent for the Canadian state. It is impossible for the Canadian state to enter commercial agreements with third party states like China that are inconsistent with the First Nation Treaties. Contrary to its constitutional fiduciary obligations to First Nations, the Crown in right of Canada has acted with great 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 and, needless to say, there was no attempt to accommodate First Nation rights and interests. The substantive text of the draft agreement either ignores First Nation rights or runs roughshod over them, in plain violation of the Treaties. Reading FIPA leaves the impression that First Nations and their rights do not exist. That must be unacceptable to a respected international party such as China. Further, 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. 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 Canada have adopted UNDRIP. FIPA is fatally flawed in terms of international law because it violates UNDRIP on several clear counts. FIPA violates article 19 of UNDRIP, which provides 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 provides that 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 China and Canada to honour and respect First Nation Treaties. In summary, FIPA constitutes a massive violation of international law, as codified by UNDRIP, and must be stopped in its tracks. China must be 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 the domestic legal authority to ratify FIPA. This is to formally advise the government of China that nothing could be further from the truth. The FIPA negotiation process and the draft text violate the fundamental legal obligations of Canada in relation to First Nation Treaties and the fiduciary relationship. As such, FIPA should be viewed as a dead letter and should be immediately abandoned by all concerned. The same conclusion is dictated by international law binding on both Canada and China. A draft trade agreement so patently in contradiction of key guarantees in UNDRIP must be considered null and void from an international law perspective. …/3

Therefore, China is respectfully urged to withdraw its support for FIPA. This is the course of wisdom if China wants to continue to invest in natural and other resources in Canada, all of which are found in First Nation territories and are controlled by First Nations pursuant to the Treaties and other fundamental rights. First Nations are open to a nation-to-nation dialogue with Canada and China on a new form of investment protocol that complies with First Nation Treaty and other rights. Sincerely, CHIEFS OF ONTARIO

Stan Beardy, Regional Chief.
c.c. Right Honourable Stephen Harper, Prime Minister of Canada Chiefs of Ontario Political Confederacy, First Nations in Ontario Shawn A-in-chut Atleo, National Chief, Assembly of First Nations Executive Committee, Assembly of First Nations Governor General of Canada Members of Parliament of Canada Members of the Legislative Assembly of Ontario Council of Canadians Ed John, Chair, United Nations Permanent Forum on Indigenous Issues Editor, The Epoch Times

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