Richard J. King, Martha Martindale
May 31, 2022
The degree of risk a First Nation is willing to take on in a joint venture depends on whether it has the lead role. This was a key observation made during a joint venture trends discussion as part of Osler’s monthly Indigenous Law Insights webinar series, hosted by Richard King, partner, Regulatory, Environmental, Indigenous and Land Group, and Martha Martindale, partner, Financial Services.
When the First Nation is leading the joint venture, it is willing to take on some level of risk in connection with the financial viability of the project. The First Nation is willing to invest its own capital and may allocate revenue streams from other sources to service debt related to the project. When the public or private sector leads the joint venture, the project is typically 100% financed and there is very little, if any, risk to the First Nation.
The webinar also discussed the Southwind v. Canada case involving a civil claim for flooding damages from a hydro dam brought by Lac Seul First Nation. The Ontario Trial Court found breach of fiduciary responsibility with the remedy being equitable compensation based on general expropriation law, but the Supreme Court of Canada on appeal ruled that Lac Seul was entitled to compensation based on the value of the land to the hydro project.
The recent Attawapiskat v. Ontario case was also presented which involved a Divisional Court ruling that the provincial government fell short of carrying out its duty to consult with the Attawapiskat First Nation in granting permits to a junior mining exploration company operating in the Ring of Fire.
View the full May 2022 webinar