Counsel to Counsel - May 2008 - (Page Cover3)

FIrST NATION rIGHTS IN CANADA ENErGy PrOJECTS Energy infrastructure projects in Canada must accommodate new requirements for dealing with First Nation aboriginal bands (tribes). The Supreme Court of Canada’s 2004 Haida Nation and Taku River Tlingit decisions affirmed a federal and provincial government fiduciary duty toward First Nation people and bands. This includes the duty to “consult and accommodate” when infrastructure projects are built on First Nation reserve lands held in trust by the government, or on traditional lands involving hunting and fishing rights and unresolved treaty claims. Most energy projects will involve traditional land. Should government fail to fulfill its duty, the practical effect is the imposition of delays on the project developer. The scope of the “duty to consult” varies depending on the nature of the project as well as the nature of First Nation interests involved. However, certain proactive planning steps that build a foundation for project approval in Canada also define a common-sense approach applicable in other regions: • Do historical research to determine the First Nations that have claims on lands where generating facilities or power lines will be built. • Identify leadership contacts in First Nation bands and their tribal councils. • Initiate early consultation with the First Nations and ensure government involvement in those consultations. • Document all research and meetings conducted for the project. • Build working relationships with First Nations through personal contact. Understand that First Nations’ interests in a project may vary from better understanding the environmental impacts to employment to royalties or more active participation (equity interest). NATurAL DISASTEr LITIGATION The plaintiff’s bar increasingly targets energy companies for mass tort litigation alleging that industry activities caused natural disasters. Hurricane Katrina was the focal point of several publicized cases. A 2007 class action lawsuit in the Southern District of Mississippi, Ned Comer, et al. v. Murphy Oil USA Inc., et al., named numerous oil and coal companies as defendants, alleging that they significantly contributed to global warming and thereby to more frequent and intense hurricanes. The suit on behalf of Mississippi residents who sustained damages from Katrina was dismissed in August 2007, as the District Court held that the plaintiffs lacked legal standing. Plaintiff attorneys appealed the case to the Fifth Circuit and promise similar future litigation. West Virginia litigation shows another way this plaintiff theory can be applied to natural disasters of any kind. In re: Flood Litigation presents the allegations of 4,000 plaintiffs that landscape alterations from surface coal mining and timber operations caused 2001 flooding that damaged their homes and businesses. Such flooding has been common in the state and previously was considered an “Act of God,” but the plaintiffs seek to hold extractive energy companies directly liable. The trial court set aside a jury verdict for the plaintiffs, and the Supreme Court of Appeals of West Virginia will hear arguments on their appeal later in 2008. Plaintiff lawyers have already filed suit over other floods that occurred after 2001, using the same basic theory. Other energy companies can likely expect to be targeted as “deep pocket” defendants in similar cases. With energy prices at historically high levels, now may be the right time to reconsider how CHP may cut energy costs, generate tax credits and maybe even produce some income for your company by exporting excess energy to the grid. richard J. Bolen Partner, Litigation rbolen@huddlestonbolen.com Peer Review Rated Huddleston Bolen LLP ©iStockphoto.com/Olivier Blondeau richard J. King Partner, Energy and Environmental Law rking@ogilvyrenault.com Ogilvy renault LLP martindale.com/c2c For more information on these lawyers and their firms as well as energy industry analysis, please visit www.martindale.com and our Legal Articles database. May 2008 33 http://www.iStockphoto.com/Olivier http://www.martindale.com http://www.martindale.com/c2c

Table of Contents Feed for the Digital Edition of Counsel to Counsel - May 2008

Counsel to Counsel - May 2008 Contents Harassment Policies NEC Corporation of America and Duane Morris LLP Lost or Stolen Data: Minimizing Fallout On-Boarding the Board Drafting Fair, Efficient and Enforceable Arbitration Agreements Responding to Counterfeit Products Crafting an English-Only Workplace Policy Distressed Debt: New Players, Global Sophistication Make Restructuring More Complex IP Confidential: Plan Ahead, Act Fast to Protect Your Trade Secrets Adverse Changes: Think Ahead in a Strained M&A Market Optimizing Web 2.0 Technology: Expanding Your Professional Network Union Pacific Railroad Company and Patton Boggs LLP Warming Warning: Develop Your Climate Change Strategy Now Risk Sharing: Expect New Obstacles and Expenses in Syndicated Loans E-Discovery in Action Diversification at the Gate Energy

Counsel to Counsel - May 2008

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