• Horizon Issues: Energy -- First Nation Rights in Canada Energy Projects
  • May 2, 2008 | Author: Richard J. King
  • Law Firm: Ogilvy Renault LLP - Toronto Office
  • The energy industry is at the center of legal, regulatory and social upheaval. Lawsuits blame entire industry sectors for natural disasters, and legislation increasingly holds companies accountable for safety breaches, while renewable energy and clean technologies offer challenges as well as hope. Corporate counsel will play key roles as these concerns and opportunities evolve.


    First Nation Rights in Canada Energy Projects


    Energy infrastructure projects in Canada must accommodate new requirements for dealing with First Nation aboriginal bands (tribes). The Supreme Court of Canada’s 2004 Haida Nation and Taku River Tlingit decisions affirmed a federal and provincial government fiduciary duty toward First Nation people and bands. This includes the duty to “consult and accommodate” when infrastructure projects are built on First Nation reserve lands held in trust by the government, or on traditional lands involving hunting and fishing rights and unresolved treaty claims. Most energy projects will involve traditional land.  Should government fail to fulfill its duty, the practical effect is the imposition of delays on the project developer.  The scope of the “duty to consult” varies depending on the nature of the project as well as the nature of First Nation interests involved. However, certain proactive planning steps that build a foundation for project approval in Canada also define a common-sense approach applicable in other regions:


    ·          Do historical research to determine the First Nations that have claims on lands where generating facilities or power lines will be built.

    ·          Identify leadership contacts in First Nation bands and their tribal councils.

    ·          Initiate early consultation with the First Nations and ensure government involvement in those consultations.

    ·          Document all research and meetings conducted for the project.

    ·          Build working relationships with First Nations through personal contact.


    Understand that First Nations’ interests in a project may vary from better understanding the environmental impacts to employment to royalties or more active participation (equity interest).