International Trade Law and Aboriginal-Law (Part 2)

Free-Trade / Fair TradeFrom the 20th Century to 21st Century

Part II

Second Conference in International Inter-Tribal TradeThompson Rivers University - Faculty of LawKamloops, BC - November 12, 2016Michael Woods, Partner – Woods LaFortune LLP

Woods, LaFortune LLPWoods, LaFortune LLP is an innovative, flexible and proactively cost-effective boutique law firm that focuses on international trade and business, investment, customs, government procurement and government relations. We provide a wide range of services to our clients including advocacy before domestic and international courts and tribunals, strategic advice and analysis, business planning and analytical research.

Michael [email protected] 613.355.0382

www.wl-tradelaw.com

mailto:[email protected]

Free-Trade / Fair Trade“In our every deliberation, we must consider the impact of our decisions on the next seven generations.”

Iroquois Maxim

NAFTA Strategies“The Columbia River Treaty has had devastating effects on Aboriginal Title and Rights, including throughout the Arrow Lakes area which is vitally important to the Okanagan Nation Alliance.”

NAFTA Strategies“When all the trees have been cut down, when all the animals have been hunted, when all the waters are polluted, when all the air is unsafe to breathe, only then will you discover you cannot eat money.”

Cree Prophecy

Free-Trade / Fair Trade“Our land is more valuable than your money.It will last forever.It will not even perish by the flames of fire.As long as the sun shines and the waters flow, this land will be here to give life to men and animals.”

Chief Crowfoot, Siksika (circa 1825-1890)

Free-Trade / Fair Trade“We do not inherit the earth from our ancestors, we borrow it from our children.”

Haida Saying

NAFTA StrategiesNAFTA Options :•NAFTA Chapter 11 – an investment •Aboriginal Title •Aboriginal Rights •Aboriginal Title as Basis for Claim • First Nation Investor – Sovereignty/Dual Nationality

Free-Trade / Fair Trade• Free Trade and First Nations in Canada – new law, new options, new opportunities • Supreme Court of Canada - Aboriginal title land and Treaty Territory in Canada. • Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 - confirmed the Crown’s duty to consult with Aboriginal peoples in

• Tsilhqot’in Nation v. British Columbia (2014 SCC 44) • confirmed the Tsilhqot'in people’s exclusive Aboriginal title to BC Interior lands• outlined a legal test for other First Nations across• First Nations able to successfully establish Aboriginal land title holders the right to extensive possession in addition to ownership rights, including the right to decide the use of the land, the right to profit from economic development of the land, and the right to pro-actively use and manage the land.

• Will require new, creative and flexible approaches on all sides

http://scc-csc.lexum.com/scc-csc/scc-csc/en/2189/1/document.do

Free-Trade / Fair Trade• Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48.• Supreme Court of Canada made a major decision on Aboriginal Treaty territory.• The Crown has the authority to “take up” lands in question• Citing Tsilhqot’in decision, the Court also reinforced its language duty of the Crown to consult and accommodate the affected First Nations in a manner “consistent with the honour of the Crown.” • Crown infringement of treaty rights (such as the issuance of resource development and harvesting leases on treaty lands) will require the Crown to act in a manner consistent with its fiduciary relationship with Treaty rights holders.

Free-Trade / Fair TradeDaniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 :In this Supreme Court decision, the top court was asked to answer three questions: 1. Whether or not Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867;

2. Whether the federal Crown owes a fiduciary duty to Métis and non-status Indians; and

3. Whether the Métis and non-status Indians have the right to be consulted and negotiate with.

Free-Trade / Fair Trade• S. 35 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution.• Therefore, the terms “Indian” or “Indians have two meanings:• A broader meaning, used in s. 91(24) of The Law of 1867, including Métis, and Inuit – can b equated with the term “aboriginal people of Canada”, also used in s. 35; and• A narrower meaning that distinguished Indian bands from other Aboriginal peoples.

Free-Trade / Fair Trade• Hupacasath First Nation v Canada (Ministry of Foreign Affairs) 2015 FCA 4• Since SCC confirmed Crown’s duty to, courts have been tasked with determining precisely when the duty is triggered

• Hupacasath First Nation argued that the duty applied to the ratification of the Canada-China Foreign Investment Protection Agreement (“CC-FIPA”) as potential of arbitral awards creates incentive for the government to act in a manner that avoids breaching CC-FIPA and that this may cause the government to injure HFN rights and interests.

• Consequently, the HFN argued Canada was obligated to consult with it and, if necessary, accommodate its rights and interests.

• At the first instance, the Federal Court rejected the HFN’s argument. It found no conflict, “actual or potential,” between the provisions of the CC-FIPA and the HFN’s asserted rights and interests. The HFN appealed to the FCA.

http://www.canlii.org/en/ca/fca/doc/2015/2015fca4/2015fca4.pdf

Canada-China FIPA Challenge•Hupacasath First Nation v. Canada (Foreign Affairs

and International Trade Canada), 2015 FCA 4 • Background: • In September 2012, Canada signed a reciprocal foreign investment agreement with the People’s Republic of China.• The Agreement provides a minimum standard of treatment to foreign investors by providing a guarantee against discriminatory treatment and also provides a protection from expropriation without compensation.• Hupacasath First Nation, is a band under the Indian Act, with 285 members living on two reserves covering roughly 56 acres of land on Vancouver Island, British Columbia.

Hupacasath First Nation v. Canada • Federal Court: • Hupacasath alleged that the Agreement might affect Aboriginal rights and interests it has asserted over lands in British Columbia and therefore, the Minister of Foreign Affairs had an obligation to consult Hupacasath prior to entering into the Agreement. • Application dismissed, the Court found that the Agreement could not potentially cause harm to Hupacasath, and that the Hupacasath’s asserted rights and interests were “non-appreciable” and “speculative”.

Hupacasath First Nation v. Canada • Trial Judge found potential adverse effects “non-appreciable” and “entirely speculative” as a matter fact • Application was on behalf of a small 300-member nomadic tribe• Territory of about 230,000 hectares in Alberni Valley of Vancouver Island • Limited budget, resources, and few strategic allies & little media cover• Case heard before Tsilhqot’in, Grassy Narrows First Nation, and

Harry Daniels et al.

Hupacasath First Nation v. Canada • The issues before the Federal Court of Appeal: • Does the federal court have jurisdiction over decisions by the Government of Canada to enter into international agreements and treaties falling under the Crown’s prerogative power? and • Is the exercise of a Crown prerogative power justiciable? In other words, can the Hupacasath’s case be heard at all?

Hupacasath First Nation v. Canada Conclusion of the Federal Court of Appeal:• The Jurisdictional issue:

• Rejected the Crown’s position that “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown” • The Crown holds prerogative powers on the conduct of foreign affairs:

“An interpretation that the Federal Court has the power to review federal exercises of pure prerogative power is consistent with the Parliament’s aim to have the Federal Courts review all federal administrative decisions. The contrary interpretation would carve out from the Federal Courts a wide swath of administrative decisions that stem from federal prerogative, some of which can have large national impact”. (para 54)

Hupacasath First Nation v. Canada Conclusion of the Federal Court of Appeal:• The Issue of Justiciability: • The government of Canada’s position that exercises of pure prerogative are reviewable only when Charter rights are at issues was rejected, adding that non-justiciable issues are very rare and are limited to:

“Exercises of executive power [that] are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the court’s ken or capability, taking courts beyond the proper role within the separation of powers” (para 66)

Hupacasath First Nation v. Canada Duty to Consult:• The Federal Court of Appeal found that the duty to consult did not arise in these circumstances:• Adverse effects to Canada-China FIPA on the Hupacasath were speculative• Investment in Canada does not necessarily lead to a conclusion that Aboriginal rights will be affected

“The problem with the appellant’s submission is that notwithstanding the existence of other agreements, there is no evidence deserving of sufficient weight that these agreements are causing or might cause Canada to make decisions that are contrary to law. In particular, there is no evidence that those agreements are causing Canada to make decisions that do not respect Aboriginal rights (para 91)”

Hupacasath First Nation v. Canada What can we retain from the decision?• Although the Hupacasath First Nation was unsuccessful in its claim, this decision is significant as it states the authority of the Federal Court of Appeal with respect of the Federal Court’s jurisdiction vis-à-vis Crown prerogative and the review of executive authority that will be considered non-justiciable.

What is next for the First Nations?

• Hupacasath First Nation v Canada (Ministry of Foreign Affairs) 2015 FCA 4 • Would finding of fact differ in context of broader application?

• Canada’s Aboriginal Population – 1.4 Million (4% of Canada)

• 634 recognized First Nations governments or bands

• Reserves cover 28, 000 sq.km. comprehensive and special claims have brought 1.6 M sq. km. under Aboriginal control

• New political awareness, important resources, recognition and strategic allies

• Post Tsilhqot’in and Grassy Narrows First Nation

http://www.canlii.org/en/ca/fca/doc/2015/2015fca4/2015fca4.pdf


The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to Aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. Justice Binnie’s unanimous Supreme Court decision Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Grand River Enterprises Six Nations, NAFTA Chapter 11

A NAFTA Chapter 11 challenge:• Grand River Enterprises Six Nations, Ltd., et al. v. United States of

America• Claim on behalf of a corporation owned by Six Nations of the Iroquois Confederation and to members of the Six Nations • Issue was treatment of “non-participating manufacturers” under the terms of a settlement agreement between 46 U.S. states and the major tobacco companies to recoup public monies spent to treat smoking-related illnesses.


Grand River Enterprises Six Nations, Ltd., et al. v. United States of America’s NAFTA Chapter 11 challenge (continued) :• Claim based on Articles 1102, 1103, 1104, 1105, 1110• Aspect of the claim was time barred (3 years limitation period)• Tribunal found that Grand River and two individual claimants did not have an investment in the United States• One individual claimants was found to have an investment but failed to established a violation of the relevant articles with respect off reservation sales of cigarettes


Grand River Enterprises Six Nations, Ltd., et al. v. United States of America’s NAFTA Chapter 11 challenge (continued) :• Article 1105 case involved a review of arguments on violation of the Jay Treaty and the UN declaration of the Rights of Indigenous People and the principles of customary international law• Nation Chief of the assembly of First Nations endorsed the claim • Issue of what constitute an investment in context investment was reviewed


Jay Treaty - Article 3 “It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other …

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians … no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately re-embarked, and carried to some other Place or Places … “


Grand River Enterprises Six Nations, Ltd., et al. v. United States of America’s NAFTA Chapter 11 challenge (continued) :• On issues of (enterprises) tribunal found that the claimant assertion were too general and lacked specific evidence with respect to Seneca, law and customs• With respect to reasonable expectation (Art 1105), claimants argued that Iroquois Confederation was covered 3 of the Jay Treaty• “The Tribunal believes that both Parties advanced positions regarding the state of U.S. federal Indian law that were unjustifiably categorical.” … “It is clear … that the domestic law is far from conclusive ….” (para 137-138)


Grand River Enterprises Six Nations, Ltd., et al. v. United States of America’s NAFTA Chapter 11 challenge (continued) :• “The evidence before the Tribunal has shown mane of the actual or potential effects of the MSA and related measures on reservation tobacco sales and distribution to reservations retailers. The United States federal government admits to the need for consultations with indigenous communities on legislative and administrative measures affecting them, as a matter of federal policy if not as a matter of international law.” (para 212)• Tribunal found that the individual claimant had failed to meet the burden of proof in the circumstances and that the economic loss was insufficient to amount to expropriation


Grand River Enterprises Six Nations, Ltd., et al. v. United States of America’s NAFTA Chapter 11 challenge (continued) :• However as with the Hupacasath case, it is arguable that a broader based case with a stronger argument as to what constitute an establishment under First Nation law, may lead to different result.

NAFTA - Chapter 11NAFTA - Art 1139 […] investment means:(a) an enterprise; (b) an equity security of an enterprise; (c) (c) a debt security of an enterprise

(i) where the enterprise is an affiliate of the investor, or (ii) where the original maturity of the debt security is at least three years,but does not include a debt security, regardless of original maturity, of a state enterprise;

(d) a loan to an enterprise (i) where the enterprise is an affiliate of the investor, or (ii) where the original maturity of the loan is at least three years, but does not include a loan, regardless of original maturity, to a state enterprise;

NAFTA - Chapter 11[…] investment means (continued):(e) an interest in an enterprise that entitles the owner to share in income or profits of the enterprise;

(f) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution, other than a debt security or a loan excluded from subparagraph (c) or (d);

(g) real estate or other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit or other business purposes; and

(h) interests arising from the commitment of capital or other resources in the territory of a Party to economic activity in such territory, such as under

(i) contracts involving the presence of an investor's property in the territory of the Party, including turnkey or construction contracts, or concessions, or (ii) contracts where remuneration depends substantially on the production, revenues or profits of an enterprise;

NAFTA - Chapter 11but investment does not mean,

(i) claims to money that arise solely from (i) commercial contracts for the sale of goods or services by a national or enterprise

in the territory of a Party to an enterprise in the territory of another Party, or (ii) the extension of credit in connection with a commercial transaction, such as trade

financing, other than a loan covered by subparagraph (d); or (j) any other claims to money, that do not involve the kinds of interests set out in subparagraphs (a) through (h);

investment of an investor of a Party means an investment owned or controlled directly or indirectly by an investor of such Party;

NAFTA - Chapter 11but investment does not mean (continued):investor of a Party means a Party or state enterprise thereof, or a national or an enterprise of such Party, that seeks to make, is making or has made an investment;investor of a non-Party means an investor other than an investor of a Party, that seeks to make, is making or has made an investment;New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958;Secretary-General means the Secretary-General of ICSID;transfers means transfers and international payments;Tribunal means an arbitration tribunal established under Article 1120 or 1126; andUNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on December 15, 1976

NAFTA - Chapter 11NAFTA Article 1139 • investment of an investor of a Party means an investment owned or controlled directly or indirectly by an investor of such Party; • investor of a Party means a Party or state enterprise thereof, or a

national or an enterprise of such Party, that seeks to make, is making or has made an investment;

Free-Trade / Fair Trade“Prime Minister Justin Trudeau appeared to back away Wednesday from an election pledge that First Nations would have a veto over natural resource projects on their territories. During a joint press conference whether he would still stick to his pledge that a First Nation’s no meant “no” on TransCanada’s proposed cross-country Energy East pipeline project and Kinder Morgan’s Trans Mountain pipeline project in British Columbia. The prime minister responded saying that he was committed to a “renewed relationship” with First Nations that “respect inherent and treaty rights.” He said the federal Liberal government looked to “First Nations and Indigenous peoples as partners in all that happens in this land.”

[http://aptn.ca/news/2016/02/04/trudeau-election-pledge-on-first-nation/]

Free-Trade / Fair Trade“We owe the Aboriginal peoples a debt that is four centuries old. It is their turn to become full partners in developing an even greater Canada. And the reconciliation required may be less a matter of legal texts than of attitudes of the heart.”

Former Governor General Romeo LeBlanc

Free-Trade / Fair TradeBroader Options:“He who would do great things should not attempt them all alone.” Seneca proverb

Government? “It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation." PM Justin Trudeau

International Trade Law and Aboriginal-Law (Part 2)

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Transcript of International Trade Law and Aboriginal-Law (Part 2)