WWW.LEXPERT.CA
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2016
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LEXPERT 15
Friend, QC, Anthony L. Bennett Jones LLP
(403) 298-3182 frienda@bennettjones.com
Mr. Friend practises in the areas of corporate, securities, and energy industry
litigation, arbitration and mediation. He has acted in over 90 corporate
arrangements and restructurings.
Freitag, Shane Borden Ladner Gervais LLP
(416) 367-6137 sfreitag@blg.com
Mr. Freitag is the Toronto co-chair of BLG's Electricity Markets Group. His
practice focuses on corporate, commercial and regulatory matters arising
from the resource and infrastructure sectors including electricity, gas and
water. He assists clients in the procurement and development of electricity
and infrastructure projects including key underlying agreements
and regulatory approvals.
Franceschi, Fausto Dentons Canada LLP
(780) 423-7348 fausto.franceschi@dentons.com
Mr. Franceschi represents and advises clients on labour and employment
matters including litigation, employment standards, wrongful dismissal,
drafting and enforcement of restrictive covenants, discipline and dismissal
issues, corporate reorganizations and acquisitions, workplace contracts
and policies, labour arbitration, collective bargaining, union certification
campaigns and human rights.
Fowler, Bruce E. Borden Ladner Gervais LLP
(416) 367-6194 bfowler@blg.com
Mr. Fowler focuses on lending and project finance. He provides project
financing advice and services to clients engaged in the development,
financing and acquisition of power, infrastructure, and alternative financing
and procurement projects. His practice includes acting for project
developers, sponsors, proponents and lenders on major power projects
across Canada.
Fortin, Myriam Stikeman Elliott LLP
(514) 397-3270 mfortin@stikeman.com
Ms. Fortin advises clients on environmental, energy and natural resources
law matters. This includes all environmental aspects of business operations,
as well as regulatory, contractual and transactional matters associated
with energy generation, supply and transmission and natural resources
exploration, exploitation and trade, including the wind, hydro, solar, forestry
and mining sectors.
Ferrier, Janet Davies Ward Phillips & Vineberg LLP
(514) 841-6511 jferrier@dwpv.com
Ms. Ferrier is a partner in the Mergers & Acquisitions, Corporate/Commercial,
Energy and Technology and Private Equity practices. Her energy practice
focuses on domestic and international M&A, joint ventures, investment
and related commercial matters.
LEXPERT-RANKED LAWYERS
agreement to erode, so companies need to think in
terms of a constant process of building and maintaining
the support of Aboriginal partners.
Curpen says companies must continue to take the
lead in negotiations with Aboriginal groups and ensure
that all consultations are properly planned, implement-
ed and, vitally, documented.
"We oen find that the Crown is not able to prop-
erly document consultation," she says, and it may fall to
the company to fill this and other gaps. "What actually
happens is, the company has to make sure the Crown is
doing its duty. If they don't … projects are at risk. [e
government has] to be at the table but [industry has] to
insist that they be adequately at the table."
In Gitxaala, the court points out that the federal
government of the day amended the National Energy
Board (NEB) Act in the middle of the Northern Gate-
way hearing process, making cabinet the final decision
maker on projects before the NEB, and that cabinet
then failed to honour the specified five-phase consulta-
tion process for Gateway. "In this scheme, no one but
the Governor-in-Council [cabinet] decides anything,"
the court writes.
"[Under] this legislative scheme the Governor-in-
Council [cabinet], when considering a project under
the National Energy Board Act, must consider whether
Canada has fulfilled its duty to consult," the court says.
"At the end of Phase IV of the consultation process is
the Governor-in-Council. … [e] ultimate responsi-
bility for considering whether the duty to consult has
been fulfilled … rests with the Governor-in-Council
and no one else."
Curpen says this should not be taken to mean that
the entirety of cabinet or key ministers must some-
how be dragged into final consultations with Aborigi-
nal groups in order to ensure the validity of a proj-
ect approval under the NEB Act. Nor does it mean
that appointed Crown representatives must read the
minds of cabinet.
"I think the court's point was that … Canada's officials
needed to be empowered to dialogue on all subjects of
genuine interest to affected First Nations, to exchange
information freely and candidly, to provide explana-
tions and to complete their task to the level of reason-
able fulfillment," Curpen says. It will now, presumably,
fall to each project proponent to somehow ensure that
Crown negotiators are sufficiently empowered to fulfill
their duties.
ere's also the looming issue raised by Tsilhqot'in,
which makes clear the immense disparity between the
economic prospects of First Nations who've maintained
land claims, as compared with those who accepted mea-
gre treaty benefits up to 100 years ago. Treaties cover es-
sentially all of Canada except BC, and federal and pro-
vincial governments insist they're valid. But they may
not have the last word.
"Ontario First Nations are constantly thinking of
challenging these treaties as contrary to the honour of
the Crown," Hudec observes.
