Crude oil tankers SFL Sabine, left, and Tarbet Spirit are seen docked at the Trans Mountain Westridge Marine Terminal, where crude oil from the expanded Trans Mountain Pipeline is loaded onto tankers, in Burnaby, B.C., on June 10.DARRYL DYCK/The Canadian Press
Relationships are evolving quickly between Indigenous communities and Canadian businesses seeking to develop energy and natural-resource projects on their territories – and that’s boosting demand for specialized legal know-how.
In past decades, oil, mining and pipeline companies often sought to push their developments through by designing them in-house, then seeking support and access agreements from First Nations, Métis and Inuit communities. If they got pushback, some offered financial incentives or ownership stakes, and the results were hit or miss. Some of the misses were extremely costly.
Developers have come to realize that, to be successful, they must determine at the outset how their interests align with those of Indigenous communities that seek economic opportunities but want partners to understand their cultural needs. That requires going beyond the constitutional duty to consult and sketching out plans together and, increasingly, discussing joint ownership.
It’s sparked a raft of legal and regulatory questions that project proponents, First Nations and governments must wrestle with.
“Certainly it’s a sea-change shift in the way that Canada is approaching its relationship with Indigenous communities around infrastructure projects, as an example. We see it in the trends in equity investments right across the country and how Canada is lining up,” said JP Gladu, founder of Mokwateh, a consultancy, and director of such companies as Suncor Energy Inc. and Broden Mining Ltd.
“But at the beginning of anything there’s going to be a lot of questions, there’s going to be some hesitancy. People are looking for clarity.”
Mr. Gladu, a member of the Sand Point First Nation in Ontario, wrote the foreword for a new book by lawyers Thomas Isaac and Jeremy Barretto that deals with the numerous legal aspects of the evolution in relationships between Indigenous peoples and broader Canadian society.
Titled The Law of Indigenous Ownership and Projects, it is a practical guide to Aboriginal law, land considerations, agreements between industry and Indigenous communities, along with tax and regulatory factors. The authors are partners with the Cassels Brock & Blackwell LLP law firm with years of experience in Indigenous legal and regulatory cases.
The Supreme Court of Canada has written hundreds of pages on Indigenous rights and title, and the duty to consult communities, “yet we still have some uncertainty that is manifested when natural resource projects are proposed, and we oftentimes have conflict and opposition between industry, governments and Indigenous communities,” Mr. Barretto said.
“This book will hopefully be helpful to create more opportunity, where otherwise there may be conflict, to maximize opportunities and prosperity for both Indigenous communities and Canadian society at large.”
He was legal counsel for the McLeod Lake Indian Band, which is proposing the $7-billion Tse’khene energy transition hub north of Prince George, B.C. The First Nation is planning to build a hydrogen-production facility as part of the venture.
That is one example of Indigenous people championing major projects for their territories, then seeking partners from the corporate world that share their philosophy for development and environmental protection, Mr. Barretto said.
“The nations themselves are starting to express their vision for what economic partnerships could look like and inviting industry to partner with them, and I think that’s an exciting development that will hopefully lead to more prosperity for everyone.”
There are numerous developments under way that involve significant participation or ownership among First Nations, Métis and Inuit communities.
At least two groups have launched proposals to bid for the Crown-owned Trans Mountain oil pipeline, which started up last spring. The project was affected by billions of dollars of cost overruns, as well as years of delay partly because of opposition from First Nations and a court ruling that consultation by the government was inadequate.
In July, TC Energy Corp. agreed to sell a minority stake in its massive Nova Gas Transmission Ltd. and Foothills natural gas pipeline systems in Alberta for $1-billion to a consortium of dozens of Indigenous communities.
Last year, Métis Nation-Saskatchewan signed an impact benefit agreement with NexGen Energy Ltd. for development of a uranium mine and mill project. The deal gives the Métis Nation support for the project, commitments to collaborate on environmental and social concerns, and the sharing of benefits. Mr. Isaac acted for the Métis Nation in that negotiation.
Ottawa has served notice that it wants to see more such projects. In April, it launched a program to provide up to $5-billion in loan guarantees for developments that include significant Indigenous participation. Advocates said the financing would help critical minerals infrastructure get built more quickly and facilitate increased direct First Nations ownership in resource projects.
The Law of Indigenous Ownership and Projects has been published at a time when the relationship is maturing in Canada amid calls for economic reconciliation, said Mr. Isaac, who earlier in his career was chief treaty negotiator for the B.C. government and assistant deputy minister responsible for establishing Nunavut for the Government of the Northwest Territories.
“It’s reached that state where we now need to start codifying and gathering what we’ve learned, and that in and of itself, I think, is a positive statement,” he said.
