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Wind energy developers, investors and lenders are increasingly recognizing that the rights, claims and concerns of Aboriginal communities are critical considerations in the siting, development and operation of wind projects. Indeed, consultation with tribal nations should be an integral part of developers’ due-diligence processes.

Canada has a significant body of law relating to the rights of Aboriginal peoples. In fact, Aboriginal considerations often affect development – including the siting, construction and operation of wind projects – on land and natural resources across Canada. Having a well-considered strategy for working with Aboriginal communities is vital to the success of wind farm development and execution.

There are more than 600 Canadian First Nation communities representing more than 50 nations or cultural groups. Over 1 million Canadian residents – or approximately 4% of the country’s population – identify themselves as Aboriginal, according to the 2006 National Census. Of that group, 53% are registered Indians, 30% are Métis, 11% are “non-status Indians” and 4% are Inuit. More than half of the Aboriginal population lives in urban areas.

Territory-related claims of Aboriginal peoples include both comprehensive and specific claims made to government, as well as assertions of Aboriginal rights (including Aboriginal title) raised in negotiations with government and in legal proceedings. Treaty rights of Aboriginal peoples include those related to both historic and modern-day treaties among Aboriginal groups, Canada and the relevant province or territory. These are known as Aboriginal land claims agreements.

Twenty-two modern land claims agreements, covering approximately 40% of Canada’s land mass, have been ratified and brought into effect since the announcement of Canada’s comprehensive claims policy in 1973. The existing Aboriginal and treaty rights are constitutionally protected under Section 35 of the Constitution Act, 1982.

In Canada, the Crown has a legal duty to consult with Aboriginal communities when it has either real or constructive knowledge of established or asserted Aboriginal or treaty rights (e.g., hunting, fishing, trapping and plant-harvesting rights; interests in culturally relevant archaeological sites) and it contemplates conduct that has the potential to harm these rights or claims.

This duty to consult (DTC) is not dependent on Aboriginal communities obtaining a court declaration of their Aboriginal rights and title; knowledge of their potential existence may be sufficient to trigger the duty.

 

Duty to consult

The DTC arises from a current or proposed Crown action – such as an approval, license, permit or other authorization relating to the construction and operation of a wind farm and its infrastructure – that has a reasonable potential to adversely affect existing or asserted Aboriginal or treaty rights. Purely speculative impacts are not sufficient to trigger the DTC.

The scope or content of the DTC is proportionate to a preliminary assessment of the following:

The Supreme Court of Canada has considered the scope and content of the DTC in terms of a spectrum. At the low end of the spectrum lie cases in which the claim to title is weak, the Aboriginal right limited or the potential for infringement minor. In such cases, the only duties of the Crown may be to give notice, disclose information and discuss any issues raised in response to the notice.

At the high end of the spectrum lie cases in which a strong prima facie case for the claim is established, the right and potential infringement are of high significance to the Aboriginal communities and the risk of non-compensable damage is high. In such cases, the Supreme Court states that “deep consultation” may be required. For example, this may entail the opportunity for Aboriginal peoples to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.

 

Over 1 million Canadian residents – or approximately 4% of the country’s population – identify themselves as Aboriginal.

 

In principle, it is government, not private proponents, that has the duty to consult and accommodate Aboriginal communities in relation to development projects such as wind farms. However, in practice, private proponents may suffer the repercussions of a failure by the Crown to discharge its constitutional duty to consult with Aboriginal communities.

Although the common-law legal DTC rests solely with the Crown, project proponents are well advised to ensure that appropriate consultation and accommodation have been conducted. A failure of the Crown to do so could delay projects and, in turn, increase the associated project costs, or even result in legal proceedings.

Although a private-sector proponent does not have a common-law duty to consult with or accommodate Aboriginal communities, in certain provinces, it may have a statutory duty to do so (e.g., in Ontario, as required by the renewable energy approval processes enacted under the Environmental Protection Act). The Crown may also purport to delegate procedural elements of consultation to a project proponent.

In addition to delegating such procedural aspects of consultation, the Crown often supervises these activities, with the stated purpose of ensuring that the proposed project’s impacts on established or asserted Aboriginal or treaty rights are appropriately understood, addressed, mitigated and/or accommodated.

 

Legal proceedings

The purported delegation of certain elements of the DTC to private parties has been the subject of recent legal contestation in Ontario.

In First Nation v. the Queen, junior mining exploration company Solid Gold began drilling on land without consulting Wahgoshig First Nation, despite requests by the Ontario government and the First Nation to do so. In turn, Wahgoshig First Nation, which asserted that the land was its traditional territory, initiated a legal challenge against Solid Gold.

The court ordered Solid Gold to put any further exploration activity on hold and to engage Wahgoshig First Nation in meaningful consultation and, if necessary, accommodation. The court held that if the consultation process were not productive, it would order a further extension of the 120-day interlocutory injunction halting development activities.

This case serves as an example of why private proponents should consider and carefully assess Aboriginal and treaty rights early in the project development cycle, such as in the siting process. The case also suggests that when Aboriginal considerations come into play, private proponents would be well served by consulting with both First Nation communities and the Crown.

If an Aboriginal community contends that it was not adequately consulted or that it did not obtain the appropriate accommodation measures, it may seek to have the court declare a failure to consult or a lack of adequate accommodation measures, and to obtain various remedies.

In certain cases, after having exhausted relevant regulatory appeals processes, an Aboriginal community may initiate extraordinary legal proceedings for judicial review or injunction with respect to a project authorization. Remedies could include quashing or delaying a project authorization in order to allow further consultation between the Crown and the affected Aboriginal community, or ordering accommodation measures that should have been taken in application of the Crown’s duty of honor toward the Aboriginal community.

The social acceptability of a wind project is a key consideration for a project proponent. In Canada, Aboriginal communities represent an important and distinct part of the national social context, so these communities’ acceptance of a project is particularly significant. Therefore, project proponents are well advised to engage potentially affected Aboriginal communities early on in the development process.

A meaningful consultation with an Aboriginal community may entail funding or supporting its participation in the consultation process. It may also involve identifying and addressing areas of specific concern and interest to relevant Aboriginal communities, such as siting considerations. Ultimately, working closely with Aboriginal communities early on in the development process will contribute to the social acceptability of a wind project. w

 

Matthew Sherrard is an associate at Montreal-based Gowlings Lafleur Henderson LLP. He can be reached at (514) 392-9428 or matthew.sherrard@gowlings.com.

Industry At Large: Siting

Aboriginal Involvement Key To Wind Project Acceptance

By Matthew Sherrard

Developers are well advised to engage potentially affected Aboriginal communities early on in the project development process.

 

 

 

 

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