Finding a Duty to Consult Aboriginal Peoples During the Negotiation of Free Trade Agreements (FTAs) and Foreign Investment Promotion and Protection Agreements (FIPAs)

Abstract

This article explores whether there is a legal duty to consult with Indigenous groups prior to the ratification of international trade and investment agreements. It considers both the content of the duty to consult and the circumstances under which such a duty is triggered. In doing so, this paper analyzes the arguments of Hupacasth First Nation v Canada, the only case that has been brought to the courts on this issue. Although the Federal Court of Appeal dismissed the Hupacasath First Nation’s claim that the duty to consult extends to negotiations that the federal government enters into with other State governments for Foreign Investment Protection Agreements (FIPAs), the analysis was confined to the particulars of the case. It remains to be seen whether the circumstances may yet exist in which the duty to consult will be found to apply to the negotiation of international trade agreements. To conclude, this paper investigates other potential sources of the duty to consult in law, including First Nations treaties, exemption clauses in Free Trade Agreements and FIPAs, and international obligations to indigenous peoples