Keith B. Bergner

Keith B. Bergner

Partner

Expertise

  • Aboriginal Law
  • Administrative Law
  • Constitutional Law
  • Energy

WSG Practice Industries

Activity

Lawson Lundell LLP
British Columbia, Canada

Profile
Keith advises private sector, public sector and government clients on Aboriginal 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 Aboriginal 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 Aboriginal 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 Aboriginal law and administrative law:

*Represented successful Appellant (BC Hydro) in leading case regarding the Crown's duty to consult Aboriginal 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). Click here for summary.

*Represented Appellant (Government of Yukon) in a case establishing that the government had successfully fulfilled the Crown's duty to consult Aboriginal 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 Aboriginal 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). Click here for summary.

Keith is also a regular 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.

Bar Admissions

British Columbia (1997)
Northwest Territories (2000)
Nunavut (2000)
Yukon Territory (2010)

Education

McGill University (B.A. Honours, 1990)
McGill University (LL.B., 1996)
Areas of Practice

Aboriginal Law | Administrative Law | Constitutional Law | Energy | Environmental | Litigation | Mining | Native Peoples | Natural Resources | Oil & Gas | Project Law | Project Permitting | Public Law | Public Utility and Regulatory | Regulatory Compliance | Utilities

Professional Career

Significant Accomplishments

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

* Represented successful Appellant (BC Hydro) in leading case regarding the Crown's duty to consult Aboriginal 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). Click here for summary.
* Represented Appellant (Government of Yukon) in a case establishing that the government had successfully fulfilled the Crown's duty to consult Aboriginal 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 Aboriginal 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). Click here for summary.


Professional Associations

*Canadian Bar Association, Member of Aboriginal, Administrative and Civil Litigation Sections
*Law Society of the Northwest Territories, Member of Admissions and Discipline Committees

Recognition and Ranking
*Benchmark Canada: Aboriginal Law Litigator of the Year 2013 and 2014
*Benchmark Canada: The Guide to Canada's Leading Litigation Firms and Attorneys: recognized for Aboriginal and energy and natural resources litigation in British Columbia
*Best Lawyers in Canada: recognized for Aboriginal and natural resources law
*Chambers Global: recognized in the Aboriginal law (Canada) category
*Canadian Legal Lexpert Directory 2015: recognized as a Leading Practitioner for aboriginal law and energy law (oil & gas)
*Lexpert's Leading Canadian Energy Lawyers 2013 & 2014
*2011 Premier's Collaboration Award (NWT) for work on the Mackenzie Gas Project
*2010 Lexpert Zenith Award (Gold) for pro bono work - Civil Liberties category
*Tory Tory DesLauriers & Binnington award for writing and scholarship


Seminars

Keith is a regular speaker at conferences and seminars on Aboriginal and regulatory law, including the Rocky Mountain Mineral Law Foundation, the Council of Canadian Administrative Tribunals (International), Canadian Energy Law Forum, the BC Law Society's Continuing Legal Education and others. Keith has also been a guest lecturer at the law school of the University of British Columbia on Oil and Gas law and Aboriginal law.

"Implications of the Ruling From a Legal Perspective on BC First Nations Land Claims", The Tsilhqot'in Decision: The Supreme Court of Canada Confirms Aboriginal Title, Calgary (April 20, 2015), Speaker

2014 National Aboriginal Law Conference, Nation-Building under Land Claims Agreements, Treaties and Self-Government Agreements, Iqaluit, NU (June 19, 2014), Speaker

"Case Law Update", Aboriginal Law Conference, Continuing Legal Education Society of British Columbia, Vancouver, BC (October 16, 2013), Speaker

"The Latest Word from the Courts and the Aftermath of Court Judgments", Aboriginal Law: Current Issues Conference, Pacific Business & Law Institute, Vancouver, BC (March 6-7, 2012), Speaker

"First Nations and Project Approvals", 6th Edition Environmental Law in BC Conference, Insight Information, Vancouver, BC (January 25-26, 2012), Speaker

"Recent Decisions at the SCC and the Implications", Aboriginal Law Conference 2011, Continuing Legal Education Society of British Columbia, Vancouver, BC (June 3, 2011), Speaker

"Aboriginal Consultation for the CEPA Aboriginal Relations Working Group Members", Canadian Energy Pipeline Association's AGM, Whistler, BC (May 17, 2011), Speaker

"Cases Recently Issued by or Currently Awaiting Decision by the Supreme Court of Canada", Managing Aboriginal Land and Water Interests Sustainability and Best Practices On and Off Reserves Conference, Insight Information, Toronto, ON (March 28-29, 2011), Speaker

"The Crown's Duty to Consult Aboriginal Peoples", 5th International Conference of the Council of Canadian Administrative Tribunals, Montreal, QC (May 30 - June 1, 2010), Speaker

"The Duty to Consult and Accommodate and the Role of Administrative Tribunals", Aboriginal Law: Current Issues, Pacific Business & Law Institute, Vancouver, BC (March 2010), Speaker

6th Annual B.C. Power Summit, Insight, Vancouver, BC (March 2009), Co-chaired by Jeff Christian

Project Approval North of 60 -- the Crown's Duty to Consult Aboriginal Groups, Calgary, Alberta (April 2008)

CLEBC conference on Aboriginal Law: Tsilhqot'in v. BC, Vancouver, BC (January 2008)

Aboriginal Land and Resource Management, Vancouver, BC (October 2007), Chair

53rd Annual Rocky Mountain Mineral Law Institute conference, Vancouver, BC (July 2007)

Aboriginal Consultation for Industry, Canadian Institute, Vancouver, BC (June 2007), Chair

3rd Annual Western Canada Aboriginal Law Forum, Insight, Vancouver, BC (May 2007)

Land and Water Regulation North of the 60th Parallel, Edmonton, AB (April 2007)

4th Annual B.C. Power Summit, Insight, Vancouver, BC (March 2007), Co-chaired by Jeff Christian

"Deconstructing the "Duty to Consult": What Does It Really Mean for Industry, Government and Aboriginal Stakeholders?", Aboriginal Law & Consultation - Best Practices and Leading Edge Strategies for Aboriginal Consultation Conference, Canadian Institute, Toronto, ON (February 13-14, 2007), Speaker

Oil and Gas Summit, Canadian Institute, Calgary, AB (January 2007)

Best Practices in Aboriginal Consultation and Accommodation, Canadian Institute, Vancouver, BC (December 2006)

Advanced Administrative Law and Practice, Canadian Institute, Ottawa, Ontario (October 2006)

Aboriginal Consultation, Canadian Institute, Vancouver, BC (June 1, 2006)

2nd Annual Western Canada Aboriginal Law Forum, Insight, Vancouver, BC (May 2006)

Aboriginal Oil and Gas, Insight, Edmonton, Alberta (April 2006)

Advanced Administrative Law and Practice, Canadian Institute, Ottawa, Ontario (October 2005)
Blogs

Commercial Litigation and Dispute Resolution Blog
Lawson Lundell LLP 

Lawson Lundell's Commercial Litigation and Dispute Resolution Blog follows new and interesting issues emerging in the legal and business communities. Our goal is to provide a source of valuable information and insight on a wide variety of matters for our readers.

Privacy & Data Management Blog
Lawson Lundell LLP 

This blog is authored by members of the Privacy & Data Management Department. We follow new and interesting issues emerging in the legal and business communities. We follow emerging issues, legal developments, and new technology as they impact privacy and data management. We will focus on how...

Project Law Blog
Lawson Lundell LLP 

The Lawson Lundell Project Law Blog focuses on updating proponents on new and interesting issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters...

Real Estate Law Blog
Lawson Lundell LLP 

Our Real Estate Law Blog provides brief commentary on current legal trends and developments affecting your business. The topics addressed in Lawson Lundell’s Real Estate Law Blog are of interest to commercial real estate developers, real estate and strata agents, investors, landlords and tenants,...

The Business Law Blog
Lawson Lundell LLP 

This blog is authored by members of the Litigation and Dispute Resolution Department. We intend to follow new and interesting issues emerging in the legal and business communities. The wide range of experience among the members of our litigation group will provide a diverse and insightful...

Articles

Government of Canada Introduces Bill to Implement United Nations Declaration on the Rights of Indigenous People
Lawson Lundell LLP, December 2020

Today, the federal government introduced in Parliament Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act. This blog provides some background on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the new federal bill. The United Nations Declaration on the Rights of Indigenous Peoples UNDRIP was passed by the UN General Assembly in 2007...

Additional Articles

Keith Bergner quoted in the Daily Oil Bulletin (April 21, 2015)

Keith Bergner quoted in the Calgary Herald discussing impact-benefit agreements between industry and Aboriginal groups. (April 20, 2015)

Federal Government Passes Disclosure Law for Oil, Gas and Mining Companies, The Negotiator (March 2015), Co-Author

Ripples on the land, Listed Magazine (February 27, 2015), Interview

"The Peel watershed decision's broader implications,", The Northern Miner (January 22, 2015), Co-author

After Tsilhqot'in - Aboriginal Issues for Project Proponents North of 60, The Northern Miner (November 4, 2014)

Lexpert Special Edition on Leading Canadian Lawyers in Global Mining publishes Lawson Lundell article on "Engagement with Aboriginal Groups as a Threshold Issue in Mining Development" (Fall 2014)

Keith Bergner quoted in Canadian Lawyer story on land claims: "A new era of title claims" (September 2014)

Keith Bergner quoted in the National Post discussing two recent Supreme Court of Canada Aboriginal law decisions (July 30, 2014)

Keith Bergner speaks to the National Post, Edmonton Journal and others about the Grassy Narrows Decision. (July 11, 2014)

Keith Bergner quoted in "Tsilhqot'in case is not a template for resolving all First Nations land disputes", Business in Vancouver (July 8, 2014)

The Crown’s Duty to Consult and the Role of the Energy Regulator, Energy Regulation Quarterly (May 6, 2014)

Eight Lawson Lundell lawyers recognized in Lexpert’s “Canada’s Leading Energy Lawyers” publication (November 21, 2013)

Keith Bergner quoted in The Prince George Citizen article, "Petroleum producers defend pipeline plan" (June 18, 2013)

Keith Bergner quoted in the CFTK-TV article, "CAPP, Haida Nation Present Final Arguments JRP" (June 18, 2013)

Keith Bergner quoted in Canadian Press article, "Northern Gateway needed to deliver excess oil supply, hearing told" (June 18, 2013)

Keith Bergner quoted in the Financial Post article, "Canadian oil producers plead for Northern Gateway approval" (June 18, 2013)

"Supreme Court of Canada Provides Further Commentary on the Crown’s Duty to Consult Aboriginal People", Project Law Blog (May 16, 2013), Co-author with Mélanie Power

Chris Sanderson and Keith Bergner quoted in The Daily Oil Bulletin article, "NEB Receives Final Arguments in Chevron Priority Destination Bid" (April 24, 2013)

Keith Bergner featured in Canadian Lawyer Magazine article, "Aboriginal law rising" (April 4, 2013), Interview

Lawson Lundell Recognized in Chambers Global 2013 (March 22, 2013)

Lawson Lundell Recognized at the Benchmark Litigation Canada Awards (February 6, 2013)

Keith Bergner quoted by Canadian Press, "Need for Gateway clear, hearing told" (September 26, 2012)

Keith Bergner quoted in Canadian Lawyer 4Students, "UBC making aboriginal law course mandatory" (September 3, 2012), Interview

"The Crown's Duty to Consult Aboriginal Peoples: Towards an understanding of the source, purpose and limits of the duty", Alberta Law Review, Volume 49, No 4 (May 2012), Co-author with Chris W. Sanderson, Q.C. and Michelle S. Jones

Keith Bergner quoted in The Daily Oil Bulletin article, "Gaining Native Buy-in On Projects A Challenge, CERI Conference Told" (April 26, 2012)

Keith Bergner quoted in The Financial Post article on the duty to consult with First Nations and the legal consequences for mining companies (March 6, 2012), Interview

"Supreme Court of Yukon Considers Duty to Consult and “Free Entry” Mining System" (December 9, 2011), Co-author

Keith Bergner quoted in The Vancouver Sun article, "Certainty still a question in land rights and resource development" (November 12, 2011)

Keith Bergner quoted in Daily Oil Bulletin article, "Trans Mountain Westridge Dock Firm Service Now Up To NEB" (August 31, 2011)

Keith Bergner quoted in Lexpert Magazine article, "Gold Rush, No Rush" (June 17, 2011), Interview

Chris Sanderson and Keith Bergner Receive the Premier's Collaboration Award (NWT) (May 18, 2011)

Keith Bergner interviewed by Business in Vancouver on Aboriginal consultation (March 8, 2011)

Keith Bergner appears on CBC Radio's BC Almanac to discuss Aboriginal commercial fishing rights (February 17, 2011), Interview

Keith Bergner interviewed by The Vancouver Sun on Aboriginal commercial fishing rights case (February 17, 2011), Interview

"Supreme Court of Canada and Federal Court of Appeal Decisions in Standing Buffalo Dakota First Nations v. Enbridge Pipelines Inc., 2009 FCA 308" (December 6, 2010), Co-Author

Keith Bergner interviewed by CBC North to discuss the North Arrow Minerals decision (November 16, 2010)

"Supreme Court of Canada Clarifies (some of) the Limits of the Duty to Consult" (October 29, 2010), Author

Lawson Lundell wins Lexpert Zenith Award for Pro Bono Contributions (October 5, 2010)

Lawson Lundell represents BC Hydro in the $825 million purchase of a 1/3 interest in the 493 megawatt Waneta Dam from Teck Metals Ltd. (March 22, 2010)

"The Duty to Consult: What Does it Really Mean for Industry?", Obtaining Project Approvals North of 60° Conference, Insight Information (April 16, 2008), Author

"A Regulatory Roadmap: Successfully Navigating Oil and Gas Licensing Regimes in the North" (January 23, 2007), Co-Author

"The Crown's Duty to Consult and Accommodate", The Canadian Institute’s 2nd Annual Conference on Aboriginal Consultation: Best Practices and Leading Edge Strategies for Managing Aboriginal Consultations (June 30, 2006), Author

"Implications of the Recent Supreme Court of Canada Decision in: R. v. Marshall; R. v. Bernard" (May 19, 2006), Author

"Consultation Requirements in the Post-Treaty Context" (May 14, 2006), Author

"Consultation Requirements in the Post-Treaty Context" (November 1, 2005), Co-Author

"The Crown's Duty to Consult and Accommodate" (October 21, 2005), Author

"Update on Land Claims and Devolution in the Yukon and the Northwest Territories" (October 1, 2002), Co-Author