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INDIGENOUS INVOLVEMENT in
Canadian energy projects has evolved from
consultation and accommodation to partner-
ship, as Indigenous groups are increasingly
taking equity stakes and steering projects as
proponents. Courts also demand that govern-
ments consider First Nation's economic inter-
ests when deciding whether to approve or deny
projects in their territory.
"Indigenous consultation in the energy
sector has been important for decades," says
Laura Estep, a partner in Dentons' energy
regulatory practice group in Calgary. "e
mantra for project development is to engage
early and oen."
ere is clear direction from the courts
going back more than 30 years, says Chris
Roine, counsel in Borden Ladner Gervais
FROM ACCOMMODATION
TO EQUITY AND SHARED
OWNERSHIP
Feature
FIRST NATIONS ARE INCREASINGLY TAKING OWNERSHIP
STAKES IN ENERGY PROJECTS, AND COURTS ARE PUTTING
A NEW SPIN ON THE DUTY TO CONSULT
LLP's corporate commercial group in
Vancouver. e Crown must consult for any
major Crown-approved project that could
adversely affect constitutionally protected
Indigenous rights.
"e scale of consultation is proportionate
to the strength of the claim and the degree
of the adverse effect," says Roine, who has a
practice focused on Indigenous law and is also
the former director general
for the western negotia-
tions branch of Crown-
Indigenous relations.
"At the low end of the
scale, it could be notice
and an opportunity to
raise concerns. At the
high end of the scale, it
requires deep engagement
– probably accommoda-
tion – to avoid, reduce, or
offset potential impacts of the Crown deci-
sion upon the Aboriginal rights."
In the last 20 years, he says that one method
of addressing accommodation has been nego-
tiating impact benefit agreements, which
could include compensation, a share of reve-
nues, and commitments around employment,
procurements, or contract opportunities.
"What's really expanded is the notion
"INDIGENOUS CONSULTATION IN THE
ENERGY SECTOR HAS BEEN IMPORTANT
FOR DECADES. THE MANTRA FOR
PROJECT DEVELOPMENT IS TO ENGAGE
EARLY AND OFTEN"
Laura Estep
DENTONS
