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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www.lexpert.ca 15 "ere's a sort of moral alignment," he says. "ey're able to go back to their members and say, you know what, we're majority owners of this project in our terri- tory, and we now have a pay and a say over what is happening over the extraction of the natural resources in our territory." To understand how we got here, Al Hudec, who serves as senior counsel at Farris LLP and advises on commercial deals involving Indigenous parties, suggests looking at history. Before the 1970s, he says, proponents rarely considered how their projects would impact Indigenous territo- ries or consulted Indigenous communities about resource development. at began to change over the next two decades. First, in the 1970s, the federal government established a process to review the environmental impact of development projects; later, the Constitution Act, 1982, went into effect. e act requires the federal government to consult Indigenous groups before engaging in conduct that could infringe on Aboriginal or treaty rights (s. 35). In the decades that followed, courts across the country, including the Supreme Court of Canada, issued numerous deci- sions that both affirmed the government's duty to consult and clarified what that consultation process should look like. Within this landscape, many proponents became more proactive about reaching out to Indigenous groups to offset potential pushback against their projects. "Early on in the 80s, the consultation and involvement of First Nations was mostly through the environmental review process, which gave them a voice in what was going on," Hudec says. "But the bigger project proponents decided to offer bene- fits agreements with First Nations, rather than take the risk and delay of an environ- mental process that had a concentrated right for the First Nations." ese benefits agreements were "funda- mentally different" than the equity arrange- ments that have become common over the last few years, Hudec says. While benefits agreements gave Indigenous parties a contractual right to certain information about a project, equity agreements give those parties the right to actively partici- pate in the decision-making process and to receive greater financial rewards. Still, benefits agreements were standard up until several years ago. Adkins says Indigenous ownership of projects is not a new concept; in Canada, there have been several examples of this ownership struc- ture. What's changed is their frequency. "We're seeing, over the last five years or so, just an increased pace of Indigenous equity deals," Adkins says. "And there's quite a number of reasons for it." Adkins says these include the federal government's recent commitment to addressing s. 35 rights and complying with the United Nations' 2021 Declaration on the Rights of Indigenous Peoples (UNDRIP), which outlines a framework for reconciliation. Such commitments, combined with a desire to push through major infrastructure and resource projects such as pipelines, have prompted federal and provincial governments to introduce mechanisms to help First Nations and other Indigenous groups access capital to invest in projects. "Almost every province has some type of program now that allows Indigenous groups to effectively borrow money on more favourable terms, because there's a government backstop available to be able