The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.
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WWW.LEXPERT.CA | 2018/19 | LEXPERT 19 esced to or benefited from industrial development was "novel": "One of the Province's core arguments in this litigation is that Blueberry River First Nations has acquiesced in or benefited from the industrial devel- opments that it says are infringing the exercise of its treaty rights. is is a novel legal argument in the context of a treaty infringement claim that raises novel legal issues, particularly with respect to the cumulative impacts of industrial development on the exercise of treaty rights." e Province also argues that these documents are pertinent to its pleading that Treaty 8 foreshadowed change and that the Province has managed that change honourably. On this reasoning, the Court ordered that Blueberry River produce "…agreements, arrangements, joint ventures, etc. between or involving Blueberry River First Na- tions and Industrial Development Proponents, currently or in the past ten years." However, the Court did not order the production of documents that relate to projects that Blueberry River opposed, as the Court held that there could be no argument about Blueberry River having acquiesced to those projects, and therefore the agree- ments were not relevant. e Court also refused to order the production of agreements be- tween members of Blueberry River and industrial proponents, on the grounds that there is no authority for the proposition that economic activities of individual Indigenous people can derogate from the group's collectively held Aboriginal or treaty rights. Finally, the Court refused to order the production of capacity funding agreements be- tween Blueberry River and industrial proponents, because in the Court's view the agreements were not relevant to the case as pleaded by Blueberry River. In the Yahey decision, Blueberry River was ordered to produce "…agreements, arrange- ments, joint ventures, term-sheets, payments, donations, and programs between or involving Blueberry River First Nations and Industrial Development Proponents, currently or in the past, except: (i) documents that relate to indus- trial developments where Blueberry River First Nation has objected to a project which pro- ceeded despite the objection; and (ii) requests for and receipt of capacity funding from Indus- trial Proponents, including capacity funding agreements." It should be noted that the issue of confi- dentiality of IBAs was not a consideration in the decision. It is not clear whether Blueberry River raised confidentiality as an argument against disclosure; in any event, the issue is not mentioned in the decision. Implications is decision should be of interest to industri- al developers who have entered into or are con- sidering entering into IBAs with Indigenous groups. If Indigenous groups sue governments for infringement of their Aboriginal or treaty rights, this decision shows that governments can take the position that those IBAs are rel- evant and seek disclosure on those grounds. In such cases, the fact that an IBA may have confidentiality obligations as between the Indigenous group and the proponent may not necessarily shield the IBA from disclosure. Governments are increasingly interested in greater transparency regarding the financial aspects of agreements between industrial proponents and Indigenous groups. Disclosure laws like the federal Extractive Sector Transparency Measures Act (ESTMA) and First Nations Financial Transparency Act and the now-repealed Alberta Aboriginal Consultation Levy Act show that governments are part of a trend towards greater disclosure of (at least the financial aspects of) private commercial arrangements between Indigenous groups and industrial proponents. e production of full agreements, in the context of litigation, could also result in broader disclosure of non- financial aspects of these agreements, including contracting and em- ployment opportunities. e potential for agreements to be disclosed in litigation, along with the impact of disclosure laws like those identified above, should be taken into account by industrial proponents when considering whether to enter into IBAs and the terms that they will contain. is decision also reinforces the importance of taking care that IBAs and other agreements are carefully prepared (including carefully craed confidentiality provisions) to contemplate possible disclosure require- ments. IBAs have proven to be a useful tool for industrial proponents to manage risk and for Indigenous communities to obtain benefits. Care needs to be taken in the preparation of these agreements to en- sure that the tool is not used in a manner that was not contemplated by the parties to such agreements. John Olynyk Lawson Lundell LLP (403) 781-9472 jolynyk@lawsonlundell.com Mr. Olynyk is a member of the firm's Indigenous, Environmental, and Project Development practice groups. His practice includes advising private sector and government clients throughout Canada on Indigenous, environmental, regulatory and natural resources matters. He advises mining companies, oil sands developers, conventional oil & gas companies, railways, utilities and other resource developers on environmental regulatory matters and on Indigenous law matters, including Indigenous consultation issues and negotiation of cooperation protocols and impact benefit agreements related to natural resource project development. Keith Bergner Lawson Lundell LLP (604) 631-9119 kbergner@lawsonlundell.com Mr. Bergner practises in the areas of Indigenous, regulatory and energy. He advises private sector, public sector and government clients on Indigenous law and regulatory matters. He has appeared as counsel before numerous regulatory tribunals and all levels of Superior and Appellate Courts (both Federal and Provincial), including the Supreme Court of Canada. He has acted for clients in a number of natural resource industries, including mining, hydro-electric generation and transmission, oil & gas, aquaculture, forestry, transportation and independent power projects. Lana Shipley Lawson Lundell LLP (604) 631-6756 lshipley@lawsonlundell.com Ms. Shipley practises corporate and commercial law with a particular emphasis on energy, Indigenous and environmental law. She works with public and private companies in a wide range of industries, including mining, energy, and natural resources. Her Indigenous and environmental law practice involves assisting clients with the negotiation of impact benefit and other agreements with First Nations in relation to proposed developments in the energy and mining industries and other sectors.