Keith B. Bergner, Energy Attorney in the United States

Keith advises private sector, public sector and government clients on Indigenous law and regulatory matters. He has appeared as counsel before numerous regulatory tribunals and all levels of Superior and Appellate Courts (both Federal and Provincial), including the Supreme Court of Canada. He has acted for clients in a number of natural resource industries including hydro-electric generation and transmission, oil and gas, mining, aquaculture, forestry, transportation and independent power projects. His practice extends throughout Western Canada and the North (Northwest Territories, Nunavut and Yukon).

In the area of Indigenous law, Keith advises governments, Crown corporations and private sector clients on the extent of the duty to consult and, if necessary, accommodate, in respect of potential adverse effects to Indigenous rights or title by major industrial projects. He advises on the development of consultation programs and has negotiated several dozen impact-benefit agreements with First Nations. Keith acts as hearing counsel for proponents seeking regulatory permits and approvals. He also represents project proponents and governments in appeals and judicial reviews challenging project approvals.

In the area of regulatory/energy law, Keith acts as counsel for proponents and users of energy, mining and other natural resource projects. He appears regularly before administrative tribunals, including the National Energy Board and the British Columbia Utilities Commission. He also appears as counsel on appeals or applications seeking judicial review of decisions by administrative boards and tribunals.

Recently, Keith has been involved in three separate matters before the Supreme Court of Canada—all of which involved the interplay of Indigenous law and administrative law:

• Represented successful Appellant (BC Hydro) in leading case regarding the Crown’s duty to consult Indigenous people in respect of alleged past infringements (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43; on appeal from the British Columbia Court of Appeal).
• Represented Appellant (Government of Yukon) in a case establishing that the government had successfully fulfilled the Crown’s duty to consult Indigenous people in the context of a modern treaty (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53; on appeal from the Yukon Court of Appeal). In January 2012, this case was recognized as one of Lexpert's Top 10 Business Decisions of 2011.
• Represented successful Respondent (Canadian Association of Petroleum Producers) resisting a leave to appeal application in a case regarding the Crown’s duty to consult Indigenous people in the context of a number of major pipeline projects in Western Canada (Standing Buffalo Dakota First Nation et al. v. Enbridge Pipelines Inc. et al., 2010 CanLII 70737; on appeal from the Federal Court of Appeal).

Keith is also a contributor to the Project Law Blog, a resource that updates proponents on developments in the law and policy that applies to the development of major projects in Canada. Keith is the Leader of the Indigenous Law Group at Lawson Lundell.