Duty to consult: Hupacasath First Nation v. Canada (Minister of Foreign Affairs)

In relation to Canada agreeing to enter an investment promotion agreement with the People’s Republic of China, the Federal Court of Appeal has clarified that potential impacts that are merely speculative, or which are not causally linked to Crown action, do not give rise to a duty to consult.

The court decided that it did have jurisdiction to review exercises of federal Crown prerogative power, which in this case involved Canada deciding to enter into an international agreement. [7 and 64] Furthermore, the issue of whether HFN had an enforceable legal right to be consulted before any decision of Canada to bring an agreement into effect is a justiciable issue. [70] However, the court deferred to and upheld the findings of the Federal Court [89] that HFN failed to prove Canada deciding to enter the agreement had any causal relationship with potential adverse effects, and that such effects were also “non-appreciable” and “speculative”.

The Agreement at issue was similar to twenty-four other agreements signed by Canada, with Canada agreeing not to discriminate against investors from China and, not to expropriate their interests without compensation. [13] This means no treatment less favourable than how Canada treats investors or investments from other countries, and according to customary minimum treatment of aliens under international law. Violations of the agreement can lead to arbitration proceedings and monetary penalties, but the agreement does not require that Canada discontinue any measures for complying with its obligations to Aboriginal peoples that breach the agreement. [15 and 92]

Hupacasath First Nation v. Canada (Minister of Foreign Affairs), 2015 FCA 4, 379 D.L.R. (4th) 737 (F.C.A.)

Lisa C. Fong and Michael Ng