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Law Times • may 2, 2016 Page 9 www.lawtimesnews.com First Nations communities will have to be consulted Northern Ontario energy project involves legal issues BY YAMRI TADDESE Law Times T he Ontario govern- ment's plan to replace diesel generators with electricity grids in First Nations communities will in- volve legal issues, an environ- mental lawyer says. "A lot of lawyers go, 'Oh, yeah, it's an engineering thing,' but it's actually pretty complicated [legally]," says environmental lawyer David McRobert. "Building these huge infra- structure projects, you invari- ably are going across land, huge areas of land. Those lands may be under land claim. There are going to be issues around pot- entially affecting the trap lines, the hunting areas for First Na- tions," McRobert adds. "There are issues around how to do it. Is it something that's totally con- trolled and imposed by a central authority?" Without looking at a map and the design of the project, it's hard to say whether the power grids will go through lands that are under claim, says Julie A. Abouchar, who practises en- vironmental, aboriginal, and energy law at Willms & Shier Environmental Lawyers LLP. But if the grid lines do go through aboriginal territory, that means First Nations com- munities will have to be con- sulted, Abouchar says, and the impact to the communities' ab- original and treaty rights would have to be assessed. "They'll have to look at the impact on those rights and de- termine ways to mitigate the im- pact," she says. Last year, the On- tario government announced an agreement between Watayni- kaneyap Power, a partnership of 20 Ontario First Nations com- munities, and Fortis-RES, an electricity transmitter. "Ontario is committed to helping remote communities re- duce their reliance on high-cost diesel fuel, lowering costs over time and yielding tremendous socio-economic benefits. I am pleased to continue to provide support to enhance opportu- nities to benefit from planned transmission expansion in Northwestern Ontario," said Minister of Energy Bob Chi- arelli. Replacing diesel fuels with electricity grids will reduce harmful emissions and boost lo- cal economies, the Ontario gov- ernment says. McRobert says, in fact, many in-house counsel are likely watching closely as the project goes forward because once the grid lines are built, companies will consider work- ing in those regions. Oliver MacLaren, partner at Olthuis Kleer Townshend LLP, says that, to him, the biggest is- sue in this initiative is the avail- ability of financing that allows First Nations communities to purchase an interest in the proj- ect. The Aboriginal Loan Guar- antee Program, which facilitates the ability of First Nations to purchase an interest in projects in their traditional territory, is often only available for large projects, MacLaren says. "The difficulty is that projects that are community-based tend to be a little bit smaller," he says. "If they're smaller and First Na- tions wouldn't be able to access the Aboriginal Loan Guaran- tee Program, they'd need some alternative to allow them to be able to purchase interest in these projects," he says. First Nations involvement with these projects is "neces- sary," MacLaren continues, add- ing access to such financing op- tions for small and big projects is "the pillar of any energy strategy moving forward." The grid initiative could also change how consumers in northwestern Ontario pay for electricity. According to McRobert, the Ministry of En- ergy has proposed amendments to ensure the Rural or Remote Electricity Rate Protection will continue to apply to consumers who become connected to the grid in the coming years. The RRRP, which is administered by the Ontario Energy Board, provides electricity rate protec- tion for eligible consumers in rural and remote communities. The goal of the RRRP program is to ensure electricity rates for consumers in these rural and remote areas are similar to those of other regions of the province. McRobert says the sooner the government rolls out a coherent and sustainable electricity sys- tem for the region, the easier it will be to undertake economic development in Northwestern Ontario and provide vital social, educational, and community services in remote First Nations communities. While the grid project will have economic benefits, McRob- ert says the initiative would be much more effective, and cheaper, if it were combined with renew- able and solar energy projects. "You're talking about billions of dollars of infrastructure," he says. "You can do so much more with microgrids. You can set up renewable, wind energy, [and] solar in these communities and you can reduce [the costs]," Mc- Robert says, adding these tech- nologies will also make com- munities more independent and self-sustaining. "First Nations communities want to be active players in the renewable energy projects that are being developed on their tra- ditional lands. They no longer are willing, nor should they be, to just sit back and accept royalties from outside corporations and agencies," he says. "They want to help design projects, steer them, and then maintain them, and ensure that some of the related jobs and economic benefits find their way back to the people and communities. LT FOCUS Oliver MacLaren says availability of financ- ing where First Nations communities can purchase an interest is 'the pillar of any energy strategy moving forward.' This is more than a phone book. It is your instant connection to Canada's legal network. 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They want to help design projects, steer them, and then maintain them, and ensure that some of the related jobs and economic benefits find their way back to the people and communities. David McRobert Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes