Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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10 www.lexpert.ca Feature "What's really expanded is the notion 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" Chris Roine BORDEN LADNER GERVAIS LLP The "big advantage" to First Nations taking an equity interest is that it changes the relationship with developers to a "regular business relationship" Robert Freedman GOWLING WLG consult Ermineskin, and gave no consider- ation to the economic benefits the Nation would lose if the project did not proceed, says Estep. "e court found that the Crown had failed to fulfill its duty to consult in this case. And in doing so, the court really adopted a broader and more progressive approach to consul- tation," she says. "e case clarifies that the Crown must consult with Indigenous groups that will benefit from the project before it makes a decision to deny a project. Usually, the duty to consult is triggered by an adverse impact to an Indigenous right – for example, hunting, fishing, or trapping, says Deirdre Sheehan, head of the energy regula- tory practice and co-head of the Aboriginal Law Practice at Bennett Jones LLP. Here the basis upon which the court found the Crown had a duty to consult was impact on the First Nation's agreement with the developer. "e other side of the coin," she says, "which makes it an interesting decision, but also highlights the importance of the economic benefits to the ongoing recon- ciliation and consultation obligations with Indigenous communities." "e case also demonstrates the value of creating alignment between project devel- opers' interests and Aboriginal rights by building relationships and reaching agree- ments," says Estep. "And it challenges old assumptions about these interests necessarily being in conflict." Indigenous groups' economic inter- ests in energ y projects were also the focus of the Alberta Court of Appeal's decision in AltaLink Management Ltd v. Alberta (Utilities Commission). e Alberta Utilities Commission (formerly the Alberta Energ y and Utilities Board) approved an electrical transmission system expansion in 2005. AltaLink's chosen transmission line route from Pincher Creek to North Lethbridge crossed through the Piikani Nation's and Blood Tribe's reserves. In 2007 and 2008, the chief and council of both groups passed resolutions approving the route. Later, they approved the trans- mission permit and consented to its issu- ance by the then Minister of Indian Affairs and Northern Development. In 2009, the Alberta Utilities Commission approved the transmission line's construction and operation. e Piikani Nation and the Blood Tribe agreed to the construction in exchange for the right to purchase a 51-percent interest in the project. But transferring the transmission assets to the Piikani Nation and the Blood Tribe would entail an additional $60,000 per year for external auditing and hearing costs. e commission applied its no-harm test to determine whether the transaction was in the public interest. e test weighed the transaction's impact on ratepayers to ensure the change served as a benefit or le them no worse off. e commission approved the transaction with the condition that the part- nership could not pass along the additional costs to ratepayers. e Alberta Court of Appeal allowed the appeal, finding the commission erred in its exclusively forward-looking approach to assessing the project's benefits. e court said a broader view of the no-harm test and the public interest was appropriate. e court says that projects that increase the likelihood of economic activity on reserves are in the public interest and should be encouraged. ey will provide residents with potential employment opportunities, likely leading them to pursue education on and off reserve. "In concurring reasons, Justice [Kevin] Feehan went even further," says Estep. "He found that administrative tribunals with a broad public interest mandate must address reconciliation as a social concept of rebuilding the relationship between Indigenous peoples and the Crown. is specifically includes Indigenous interests in participating freely in the economy and having sufficient resources to self-govern effectively." "I've been a proponent of this idea of economic reconciliation for quite a while," says Bernie Roth, a partner in Dentons' energy regulatory practice group in Calgary. "It appears to be coming to fruition." Since 1982, when s. 35 was put into the Constitution to protect Indigenous rights,