WWW.LEXPERT.CA
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2016
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LEXPERT 11
Caught between Aboriginal aspira-
tions and government prevarication
are the prime movers of the Canadian
economy — companies whose huge
resource projects are stalled by court
challenges that can frequently take a
decade to resolve. Hundreds of bil-
lions of dollars worth of Québec and
Ontario mining and power projects,
Alberta oil sands developments, Brit-
ish Columbia liquefied natural gas
ventures and oil pipelines spanning
the nation are mired in a morass of
land claims and treaty rights.
Case law has provided "de facto
and piecemeal guidance" as to the
way forward but leaves "a large pol-
icy gap that only bold government
action can fill," says Radha Curpen
in the Vancouver office of Bennett
Jones LLP. Curpen adds that the
diverse and sometimes conflicting
interests of Aboriginal groups "have
oen been used as an excuse for gov-
ernment inaction.
"is inaction results in missed op-
portunities — projects being delayed,
investment windows being missed
and continued socio-economic in-
equality [between] some Aboriginal
groups and the wider Canadian so-
ciety," she says. In a written review
of the court's decision, Curpen and
colleagues conclude that constant
reference to the courts "diminishes
Canada's global competitiveness."
In the absence of government action, industry
has, for several decades, been forced to lead by
default. Project proponents were told by federal
and provincial governments to consult all affected
communities, native and non-native, document
concerns, propose mitigation measures and present
socially acceptable project applications to regula-
tory agencies. Regulators were empowered to hold
hearings, review all the issues in detail, impose de-
velopment conditions to mitigate outstanding con-
cerns and approve or, in very rare cases, deny proj-
ect applications. In the established order of things,
regulatory agencies were relied upon to fulfill the
obligations of the Crown to consult Aboriginal
groups and accommodate their concerns.
e logic of this scheme was straightforward:
proponents knew the most about their projects,
properly bore the considerable costs of consulta-
tion, and were the only ones who could modify
project plans to address public concerns. Quasi-
judicial regulatory agencies, meanwhile, had the
technical expertise and legally valid processes to
ensure thorough and fair hearings.
Craig, Gordon M. Lawson Lundell LLP
(604) 631-9155 gcraig@lawsonlundell.com
Mr. Craig's practice focuses on the energy sector in Western Canada.
He represents major electric utilities, and an active power marketer,
in connection with a range of commercial transactions.
Corley, Richard F.D. Goodmans LLP
(416) 597-4197 rcorley@goodmans.ca
Mr. Corley has more than 20 years of experience assisting clients to
successfully conclude complex M&A and commercial transactions in
renewables, cleantech and information technology. He is focused on the
intersection of law, business and technology with a particular focus on clean
energy, and was named a member of Canada's 2016 Clean50, a program
honouring leaders in the clean economy.
Corbett, Leland P. Stikeman Elliott LLP
(403) 266-9046 lcorbett@stikeman.com
Mr. Corbett is Managing Partner of Stikeman Elliott's Calgary office.
His practice focuses on corporate-commercial matters where he acts
in public and private capital markets transactions, including corporate
and investment banking, share and asset acquisitions and dispositions,
securities transactions and other M&A activity. He also acts in corporate
reorganizations, restructurings and spin-offs.
Clare, James Bennett Jones LLP
(416) 777-6245 clarej@bennettjones.com
Mr. Clare is a corporate and securities lawyer with a focus on the mining
sector, and an emphasis on domestic and cross-border corporate finance and
M&A. He also represents issuers and underwriters on general corporate
and securities law matters.
Christian, Jeff Lawson Lundell LLP
(604) 631-9115 jchristian@lawsonlundell.com
Mr. Christian is a litigation partner with a practice focused on energy and
regulated utilities. He regularly represents utilities and other participants in
proceedings before tribunals such as the BC Utilities Commission. He acts for
clients at all levels of court, in arbitrations and in mediations. He is called
to the Bars of British Columbia (1994), Northwest Territories (2001)
and Alberta (2014).
Chatwin, Keith R. Stikeman Elliott LLP
(403) 266-9088 kchatwin@stikeman.com
Mr. Chatwin is Head of the Corporate Practice Group in Stikeman Elliott's
Calgary office. His practice involves securities and corporate transactions,
ranging from public and private debt and equity financing to M&A, corporate
restructuring and shareholder activism and defence. He acts in respect
of contested and uncontested take-over situations and corporate
and inter-corporate arrangements.
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