www.lexpert.ca 9
that Indigenous groups may also have equity
and shared ownership. To take it a level
further, you're then seeing more cases where
Indigenous groups are coming into energy
projects as proponents – where they found
a partner in the industry and the Indigenous
group has, in some cases, even a majority
ownership stake in the energy project."
According to Sam Adkins, a corporate
lawyer at Blake Cassels & Graydon LLP with
clients in the resource sector, project devel-
opers are moving from a consultation to a
consensus-seeking approach. Increasingly,
developers are seeking consent as a starting
point. is approach helps companies achieve
ESG goals, a growing focus among investors.
He says that Indigenous ownership can also
help address some inevitable regulatory issues.
e "big advantage" to First Nations taking
an equity interest is that it changes the rela-
tionship with developers to a "regular busi-
ness relationship," says Robert Freedman, a
partner in Gowling WLG's Vancouver office.
In exchange for assuming some risk, they are
more likely to gain employment, contracting,
and other economic benefits, and, he says,
"usually more money [is] on the table."
As First Nations take a partnership role
on more projects in their territories, two
recent court rulings have highlighted the
The court found
• the benefit of economic activity in
Indigenous communities should be
considered
• reconciliation includes free partici-
pation in the economy by Indigenous
groups and sufficient resources to
govern effectively
Ermineskin Cree Nation v. Canada
(Environment and Climate Change)
The court found the Crown must consult
with Indigenous groups who stand
to benefit when deciding whether to
approve or deny a project.
AltaLink Management Ltd v. Alberta
(Utilities Commission)
COURTS REQUIRING
CONSIDERATION OF INDIGENOUS
ECONOMIC INTERESTS
government's duty to consider and promote
Indigenous economic interests when deciding
whether to approve projects.
In Ermineskin Cree Nation v. Canada, the
Alberta First Nation, located between Red
Deer and Edmonton, had executed impact
benefit agreements with Coalspur Mines
on two of its coal projects. e federal
Minister of Environment and Climate
Change initially opted not to designate
the mines for review under the Impact
Assessment Act but later changed his mind
following requests from other Indigenous
and environmental groups. In designating
the mines for review, the minister failed to
