Legal news and trends for Canadian in-house counsel and c-suite executives
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"The reasons are apparent: the need to reduce carbon emissions, the need to reduce the use of fossil fuels. Certainly we have in Canada, across the country, very strong renewable resources and the time is right to try and develop, and I think that's why we are seeing more of that." Because projects often take many years from the inception to completion, a lot of patience is needed on all sides to stick to the process. "It's important right experience to work on these proj- ects is very important, but sometimes difficult. "We need some people with experience working with the industry and First Nations. That's the sore spot of all this work that's going on. There are a lot of people who have the capa- bility, but that's just one of those things where we are working at a deficit." He adds in the past First Nations have had mixed experiences, but law- yers are often able to step in and help. If your business brings you regularly in contact with First Nations issues, it's a legal skill and understanding that you develop in-house that you might not have otherwise. PATRICIA BOOD, Brookfi eld Renewable Power Inc. to take the time to establish a positive relationship. It's one of the key features with dealing with First Nations that you need to get community engagement. It can be a more involved process than simply negotiating with a commercial organization. Patience is sometimes what it takes," says Stuber, who advises companies on how to properly negoti- ate agreements involving First Nations and renewable energy projects. "It's obviously important to recognize the particular circumstances and needs of the situation of the project and respect those of First Nations on whose tradi- tional territory the project is located." William Big Bull, one of the key play- ers behind Weather Dancer 1, served on the Piikani council and led the efforts on that project. He now consults First Nations and companies across Canada on renewable energy projects. He says these projects have huge potential with many involving First Nations because they are on reserve lands or traditional territories. "There is a lot of potential because it is an emerging industry," says Big Bull, adding that as new opportuni- ties arise, getting people who have the "We have had some very experienced lawyers who had a background work- ing with the federal government," he says. They might not have been able to speed up the process, but "they helped to streamline and keep the focus on the issues." The importance of having proper training for lawyers working in projects involving First Nations has not been lost in Patricia Bood, vice president of legal services and general counsel at Brook- field Renewable Power Inc., a company involved in energy project partnerships with First Nations. "It's important to have proper training for new lawyers on how to approach a partnership with First Nations, and on the issues that are most concerning to them. They need to know how we have worked with First Nations, what approaches have worked, what haven't, and why." With a growing number of in-house counsel and other advisers becoming integral to the process, Bood describes the relationship between corporate counsel and First Nations as having "an appreciation for the unique issues and concerns that are more relevant to the First Nations," adding the consul- tation process exists not only for the special legal issues, their land rights, and cultural sites, but "we also respect the First Nations' decision-making and consensus-building within their com- munity." Consensus can be harder to achieve on some projects than others, as things can get complicated when trying to develop new projects, says Big Bull, who as president and CEO of Big Bull's Energy Consulting and a director at the Ontario Sustainable Energy Asso- ciation has seen many of these frustra- tions in action. One of the issues he has seen over and over has been political interference both from inside the First Nations and from external forces with getting projects forward. "It puts [band] councils in awkward positions because they rely on in-house advice and a lot of time their own counsel take a back seat, and it becomes a battle between the legal issues as opposed to dealing with some of the fundamentals that need to drive the project," he says. The solution is being flexible, knowledgeable, and innovative, he adds. "When you are dealing with First Nations, [these projects] have become a very sensitive issue, simply because it hasn't always worked in our favour, and there is a lot of bad experiences out there." Trying to avoid such pitfalls, when Brookfield first started looking into building the Pehonan Hydroelectric Project on the Saskatchewan River, project leaders knew they had to do something different. Like others look- ing to invest in renewable energy, Brookfield faced several choices on how to approach the project that would be located either on reserve land or other lands to which the area's Cree nations have a traditional claim. While many investors come up with payment schemes to fund the local communities, Brookfield took a different approach it believes led to a win-win situation for all parties. So when the project is INHOUSE AUGUST 2010 • 27