Aboriginal Peoples Fight For All Canadians

We should join the First Nations in becoming "idle no more"
February 1, 2013

The day after Stephen Harper finally agreed (Jan. 4, 2013) to meet with First Nations leaders, alert readers of the National Post's on-line edition for Jan. 5 may have experienced a moment of cognitive dissonance. The headline stated: "Idle No More's Vague Demands Clashing with PM's Pragmatism," but the accompanying photo showed an Idle No More protestor carrying a sign that was anything but vague: "Harper: Stop Bill C-45."

In fact, First Nations activists and protestors have been attempting to alert Canadians to the dangers (to all of us) that are inherent in both Bill C-45 and the Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA). But you'd likely not know that from mainstream coverage, which has largely depicted the Idle No More movement as "vague" in its goals.

As Dr. Pamela Palmater, chair of indigenous governance at Ryerson University and spokeswoman for the Idle No More movement, has stated (Watershed Sentinel Jan.-Feb. 2013), "Many Canadians don't realize First Nations are the last best hope of protecting lands for food and clean water for the future – not just for our people, but for Canadians as well, because we have constitutionally protected Aboriginal and treaty rights that they don't have. They need to stand with us to protect what is essential."

Much effort and ink has been spent in preventing that solidarity from happening.

Bill C-45

The Harper government's second omnibus bill, introduced in October and passed on Dec. 14, changes some 60 pieces of legislation, including dismantling the Navigable Waters Protection Act (NWPA). As a result, in a country with millions of lakes and rivers, only 97 lakes and 62 rivers will continue to have federal protection.

In a piece for the Huffington Post (Dec. 26, 2012), Canadian journalist/photographer Robin Rowland wrote that the media's "most blatant" failure of 2012 was the lack of adequate coverage of the "gutting" of the NWPA. He pointed out that, of the many issues raised by Idle No More, the one "that has the greatest potential to expand across much of non-urban Canada, uniting Aboriginal and non-Aboriginal Canadians, and crossing the political spectrum from the green left to the small-c conservative right, is protecting Canada's lakes, streams, and rivers," now under threat by the passage of Bill C-45.

I agree, but I suspect that it was less a media failure than a decision by vested interests to keep the public in the dark – thereby preventing a larger groundswell of opposition.

Last November, for example, 18 environmental groups and First Nations organizations (including Idle No More) jointly issued an Open Letter to Harper and all Members of Parliament, expressing strong opposition to Bill C-45. "Simply put, lakes, rivers, and streams often stand in the path of large industrial development, particularly pipelines," said Devon Page, executive director of Ecojustice, in the press release. "This bill, combined with last spring's changes [Bill C-38], hands oil, gas, and other natural resource extraction industries a free pass to degrade Canada's rich natural legacy."

Their Open Letter was basically ignored by the media.

On Dec. 31 – in the midst of cross-country Idle No More protests and actions -- the Toronto Star ran a lengthy editorial entitled "2012: A Bleak Year for Environmental Policy," which actually managed to avoid mentioning either Bill C-45 or the gutting of the NWPA.

Canada-China FIPPA

The media were also largely silent during weeks of First Nations opposition to the Canada-China FIPPA, until January 4, 2013, when the Toronto Star reported that the Chiefs of Ontario (representing 133 First Nations in Ontario), the Union of B.C Indian Chiefs, and the Hupacasath First Nation have notified the Harper government that they are going to court to seek an injunction preventing ratification of the Canada-China FIPPA until consultation with First Nations on the foreign investment treaty has taken place.

Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs, has been speaking out against the FIPPA for months. In a Dec. 31Statement published in The Georgia Straight, he wrote: "As designed, many believe that [through] the ratification of this FIPPA, China's investors and state-owned enterprises will be granted protection and would thus greatly increase their investment in the development of the tar sands, expansion of pipelines, mining projects. and possibly future offshore drilling projects. We believe the agreement would enable Chinese investors to challenge the already weakened federal environment regulations, policies, and legislation."

As Scott Sinclair, the CCPA's senior trade policy researcher, wrote about the Canada-China FIPPA (Dec. 2012-Jan. 2013 CCPA Monitor), because of the treaty's investor-state dispute settlement mechanism, "If an established Chinese investor objects to stronger environmental regulation over the tar sands or shale gas fracking, it could be left up to an unaccountable arbitration tribunal – not to Canadian legislatures or the Canadian courts – to decide if these new measures are 'necessary' or applied in an 'arbitrary' or 'unjustifiable' manner."

He also wrote, "This powerful investor right continues to be abused under NAFTA" – likely a reference to Lone Pine Resources.

Lone Pine Resources

After months of massive protests against fracking in Quebec, the Liberal government of then-Premier Jean Charest in June 2011 issued a moratorium on fracking, cancelled exploration permits without compensation, banned drilling beneath the St. Lawrence River, and created a panel of experts to study environmental risks of fracking.

More than a year later (and following the election of the provincial Parti Quebecois government), Lone Pine Resources – which has its headquarters in Calgary but is incorporated in Delaware – on Nov. 8, 2012 filed a notice of intent to sue the Canadian government for a minimum $250 million under NAFTA's controversial Chapter 11 provisions, which allow U.S. and Mexican companies to sue Ottawa if they feel that they have been wronged by a government policy or action.

Lone Pine Resources had held an oil and gas exploration permit covering 33,460 acres of land beneath the St. Lawrence River east of Trois-Rivieres.

The Financial Post (Nov. 24, 2012) reported that Lone Pine Resources "is claiming a minimum of $250 million in damages, representing the estimated economic value of the lost resource. Lone Pine is not contesting Quebec's right to restrict oil and gas activity, but the fact the province stripped exploration licence holders of their permits without compensation. Under NAFTA rules, governments are free to expropriate, but can only do so for public purpose, with due process and paying full and fair market value for the permit, said Milos Barutciski, a Toronto lawyer with [law firm] Bennett Jones, which is representing the company. Barutciski said the government's move, enacted by the former Liberal government of Jean Charest through Quebec's Bill 18, was made for 'political reasons,' without any basis in science."

Lone Pine Resources was spun off from Denver-based Forest Oil Corp. in 2010. Its board of directors includes Dale J. Hohm, Chief Financial Officer of MEG Energy Corp. – one of the 10 "secret" backers of Enbridge's Northern Gateway pipeline (who each provided Enbridge with $10 million in funding to go through the regulatory process). MEG Energy is 16.9% owned by China National Offshore Oil Corp. (CNOOC).

Another Lone Pine Resources director is Loyola G. Keough, a partner with Bennett Jones and chair of the law firm's regulatory department, who has been representing MEG Energy at the Joint Review Panel hearings on Northern Gateway.

According to The Asian Lawyer (Dec. 14, 2012), Bennett Jones's Calgary partners Donald Greenfield and Patrick Maquire are advising PetroChina Co. on a $2.2 billion joint venture between PetroChina and Encana Corp., involving a Duvernay shale gas reserve in Alberta.

Bennett Jones's senior advisor for Governmental Affairs and Public Policy is David A. Dodge, former Governor of the Bank of Canada (2001-2008), who is now a director of Canadian Utilities Ltd., the Bank of Nova Scotia, and the C.D. Howe Institute. Bennett Jones lawyer Eddie Goldenberg has been pushing for West-to-East tar sands pipelines (see CCPA Monitor Dec. 2012-Jan. 2013).

As well, Milos Barutciski and another Bennett Jones lawyer, Matthew Kronby, have been publicly advocating for the Canada-China FIPPA trade deal in op-eds in mainstream media.

Investment Arbitration

For example, in a pro-FIPPA piece for the Financial Post (Nov. 16, 2012), Barutciski and Kronby argue that the monetary damages for breaches of such foreign investment agreements haven't been costly to Canada: "The contention that the scale of these damage awards will be large ignores 18 years of Canadian experience with investor-state dispute settlement under the NAFTA. The very few claims against Canada that have been decided in favour of the investors have resulted in awards totalling about $8 million. Canada has also chosen to settle two other cases for a total of about $150 million, most of that sum relating to the expropriation of AbitibiBowater's assets by Newfoundland."

Such corporate spin neatly ignores the hundreds of millions of taxpayer dollars that Canada has had to pay out over the years to lawyers and arbitration judges to handle dozens of such investor arbitration disputes under NAFTA.

The Tyee (Nov. 30) called Bennett Jones LLP "a firm that proudly offers its investor-state arbitration services to corporate clients who want to sue governments... [I]nvestor arbitration has boomed [globally] in recent years, from 38 cases in 1996 to 450 known cases last year [2011]. A small group of élite firms with for-profit arbitrators and lawyers are getting rich from these deals."

A Nov. 2012 report called Profiting From Injustice blew the lid off the secrecy surrounding investor-state arbitration. Jointly published by Corporate Europe Observatory and the Transnational Institute, the report details how the proliferation of investor-state disputes under bilateral investment treaties has created "bonanza profits" for a small global coterie of 15 lawyers and arbitrators, including three Canadians: L. Yves Fortier – formerly with top investment arbitration firm Norton Rose (where Brian Mulroney resides); Marc Lalonde – a former federal minister of health, justice, energy and finance; and Henry Alvarez – member of global law firm Fasken Martineau.

The Sierra Club's Ilana Solomon recently stated (Nov. 16): "By the end of 2011, corporations such as Chevron, ExxonMobil, Dow Chemical, and Cargill had launched 450 investor-state cases against 89 governments," with "about 70%" of those cases based on "challenges to natural resource and environment policies... This case, however [Lone Pine Resources], is the first to directly threaten the obligation of governments to protect its people from the destructive effects of fracking."

So Bennett Jones LLP appears to be breaking new ground in the investor-state arbitration services industry just in time for the pending Canada-China FIPPA, which would allow Chinese multinationals like Sinopec, PetroChina, and CNOOC to enter the legal game.

Widespread support for First Nations' opposition to Bill C-45 and the Canada-China FIPPA could be a literal game-changer.

(Joyce Nelson is an award-winning freelance writer/researcher and the author of five books.)