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.
Issue link: https://digital.carswellmedia.com/i/1544329
16 www.lexpert.ca Feature to facilitate access and capital," Adkins says. "We've also seen … [government] agencies that provide financing to First Nations." He points to the Canada Infrastructure Bank, which "has a number of different programs and lending vehicles that are specific to providing capital to Indigenous groups." Christine Milliken, a corporate partner in Blake's energy group in Calgary, agrees that government initiatives have played a major role in spurring the uptick in Indigenous equity deals. For example, several provincial governments have issued requests for proposals over the past few years to add renewable energy to their power grids. "All of these RFPs, they have … encour- aged First Nations equity as part of the transactions," Milliken says. "So, when you're bidding a project into these RFPs, if you have a high degree of participa- tion, from an equity perspective, from a First Nations partner, those projects win more points within the procurement bid. Because of this, there's been a huge uptake in companies wanting to have an Indigenous partner in these projects that they're bidding into these RFPs." Macpherson meanwhile points to a series of landmark court decisions that clar- ified the parameters of Aboriginal title, and recognized that title to substantial pieces of land. ese include the SCC's 1997 deci- sion in Delgamuukw v. British Columbia and the 2014 Tsilhqot'in Nation v. British Columbia decision, as well as the BC Supreme Court's 2025 ruling in Cowichan Tribes v. Canada (Attorney General). Together, the expansion of govern- ment incentives, Indigenous access to capital, and case law recognizing what Macpherson calls the "co-ownership and co-jurisdiction of Indigenous territories and … resources" have given propo- nents compelling reasons to pursue deals involving Indigenous equity. Milliken says many proponents want to pursue such deals even in the absence of government incentives, because they believe that building a solid relationship with their Indigenous partners can help "weave your way through the regulatory process in Canada to get major projects approved faster." At the other end, Indigenous parties have become more proactive about proposing these deals themselves. Increasingly, Indigenous communities are thinking, "If non-Indigenous Canadians can develop resources, why can't we as First Nations?" says Macpherson. "Where it starts out of the gate now is … 51 percent ownership … and not waiting for others to come to the table to hand over those opportunities." But majority Indigenous ownership has become appealing for proponents, too. Milliken says many of the renewable power RFPs she's encountered, for example, do not necessarily require majority Indigenous ownership but reward such a structure. is effectively flips the power dynamic that was previously typical of such projects, where proponents with project expertise had majority decision-making authority. Fiy-one percent Indigenous ownership attempts to strike a balance between "a developer maintaining control over the day-to-day operations of a project to ensure that with their expertise a project can be built on time and on schedule and on budget," and also "a requirement to have true consultations and a true voice at the table by your First Nations partner," Milliken says. She adds that the balance also satis- fies many lenders that require project developers to maintain "a certain level of control over the day-to-day management of the project." Macpherson, too, refers to 51 percent as a "magic number." But he also warns that the number may not reflect how profits are actually shared; depending on how a deal is structured, Indigenous owners can end up making much less than a 51 percent ownership interest in the net proceeds. "e 51 percent – there's a nuance there," he says. "I would say that, especially on the larger [projects], it won't be long before the base minimum [for Indigenous equity] is 51 percent" Malcolm Macpherson, MACPHERSON LAW LLP "We're seeing, over the last five years or so, just an increased pace of Indigenous equity deals" Sam Adkins, BLAKE, CASSELS & GRAYDON LLP