On August 26, in Hupacasath First Nation v. Minister of Foreign Affairs, the Federal Court held that the Government of Canada has no constitutional duty to consult the applicant First Nation prior to ratification of the Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA). The Court found that any potential adverse impacts on the applicant’s aboriginal rights are speculative, remote, non-appreciable and not causally connected to the FIPPA, and therefore do not trigger the duty to consult.
As a formal matter, the judgment is confined to the applicant and does not foreclose similar “duty to consult” challenges by other First Nations, either to the Canada-China FIPPA or to other Canadian trade or investment treaties. However, the Court’s findings are likely to be generally applicable to Canada’s pending FIPPAs and free trade agreements, and in most cases at least, to other First Nations.
The result in Hupacasath will therefore disappoint opponents of Canada’s trade and investment treaty program (who backed the Hupacasath challenge and for whom the Hupacasath served as something of a proxy) but it comes as no surprise to those familiar with both the adverse impact requirement for a duty to consult and with the nature and extent of the obligations in a FIPPA. The particular challenge for the Government of Canada as respondent was to ensure that the Court adequately understood the latter. For the most part, it succeeded.