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First Nations increasingly moving from accommodation to equity and shared ownership – Lexpert

On energy projects, courts are putting new spin on the duty to consult

Oct 05, 2022

Indigenous involvement in Canadian energy projects has evolved from consultation and accommodation to partnership, as Indigenous groups are increasingly taking equity stakes and steering projects as proponents. Courts also demand that governments consider First Nation’s economic interests when deciding whether to approve or deny projects in their territory.

“Indigenous consultation in the energy sector has been important for decades,” says Laura Estep, a partner in Dentons’ energy regulatory practice group in Calgary. “The mantra for project development is to engage early and often.”

There is clear direction from the courts going back more than 30 years, says Chris Roine, counsel in Borden Ladner Gervais LLP’s corporate commercial group in Vancouver. The Crown must consult for any major Crown-approved project that could adversely affect constitutionally protected Indigenous rights.

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