Federal Court

Aboriginal Peoples

Potential adverse impact on Aboriginal rights non-appreciable and speculative in nature

Ratification of Agreement between Government of Canada and Government of People’s Republic of China for Promotion and Reciprocal Protection of Investments (“CCFIPPA”) was pending. Applicant sought declaration that Canada was required to engage in process of consultation and accommodation with First Nations including applicant prior to ratification or taking other steps that would bind Canada under CCFIPPA. Application was dismissed. Potential adverse impact applicant claimed CCFIPPA might have on Aboriginal rights due to changes CCFIPPA might bring about to legal framework applicable to land and resource regulation in Canada were non-appreciable and speculative in nature. Applicant did not establish causal link between potential adverse impacts and CCFIPPA. Same was true with respect to potential adverse impacts applicant claimed CCFIPPA might have on scope of self government it could achieve. Ratification of CCFIPPA by Government of Canada without engaging in consultations with applicant would not contravene principle of honour of Crown or Canada’s duty to consult applicant before taking any action that might adversely impact on applicant’s asserted Aboriginal rights.

Hupacasath First Nation v. Canada (Minister of Foreign Affairs) (Aug. 26, 2013, F.C., Paul S. Crampton J., File No. T-153-13) 232 A.C.W.S. (3d) 283.

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