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LEGAL REPORT: ENERGY & ENVIRONMENT "My concern is the long term. Phase three is threatening the whole ecosystem at Winefred Lake. If they build there, within 10 years our fish aren't going to be very good." — CHIPEWYAN PRAIRIE CHIEF VERN JANVIER In British Columbia, dealings with First Nations happen quite differently, says John Olynyk, head of the aborigi- nal law group at Lawson Lundell LLP. There, the provincial Oil and Gas Com- mission carries out consultations for projects using application fees collected from the proponent. "Basically, it's a government-administered consulta- tion process for regulatory approvals," he says, adding that in some cases, the province has entered into economic ben- efits agreements with First Nations that share a portion of government royalties from a project with them. In exchange, they agree not to challenge regulatory approval of the development. For Mildon, a lawyer with Woodward & Co. in Victoria, the B.C. process tends to work better. "We have lots of frustra- tions, but they're 20 years ahead in time with respect to Alberta in that they are actually making efforts. There's actually some level of consultation that occurs. In Alberta, they simply delegated that through provincial policy to industry actors." But the degree to which governments, or companies, have a duty to engage First Nations is an issue the courts have been grappling with for years. Recently, Man- ning acted in the case of several Treaty 1 First Nations in Manitoba, notably the Brokenhead Ojibway Nation, that challenged the federal government, the National Energy Board, and Transcanada Law Specialistson Your Team! We help you help your clients. Call us. Get Our Environmental Environmental Specialists*on Your Team! Our team of environmental lawyers includes 5 Environmental Law Specialists* Keystone Pipeline GP Ltd. over approval of its project there. In that case, the aboriginal communities took the federal Governor in Council to task for giving the green light to Keystone without under- taking a separate consultation following the NEB's process. That line of reasoning has some echoes of the Alberta cases, but in this one, Federal Court Justice Robert Barnes ruled against the idea of separate consultations. "The Treaty 1 First Nations maintain that there must always be an overarch- ing consultation regardless of the validity of the mitigation measures that emerge from a relevant regulatory review," Barnes wrote in dismissing the Broken- head Ojibway claim in May. "This duty is www.willmsshier.com * Certified by the Law Society of Upper Canada Juli Abouchar 416 862 4836 Doug Petrie 416 862 4835 John Willms 416 862 4821 Donna Shier 416 862 4822 Marc McAree 416 862 4820 ENVIRONMENT, ENERGY & RESOURCES LAW www. C ANADIAN Law ye rmag.com SEPTEMBER 2009 49 Canadian Lawyer #MS07-25 – 7" x 4-7/8"