Keith B. Bergner

Keith’s experience includes:

Supreme Court of Canada

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).
• 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).

In addition, Keith represented a successful Intervener (BC Civil Liberties Association) before the Supreme Court of Canada in an appeal considering Charter and administrative law issues around the powers of a School Board to restrict the use of certain children’s books in public schools. (Chamberlain v. Surrey School District No. 36, 2002 SCC 86.)

Federal Court of Appeal

• Represented Respondent (Canadian Association of Petroleum Producers) in successfully defending a series of four appeals brought by First Nations challenging three separate decisions from the National Energy Board that issued Certificates of Public Convenience and Necessity for the construction of three major pipeline projects in Western Canada (the Keystone Pipeline Project, the Southern Lights Pipeline Project and the Alberta Clipper Pipeline Expansion Project). (Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308; leave to appeal to Supreme Court of Canada denied.)
• Represented Respondent (Government of the Northwest Territories) in an appeal from a decision of the National Energy Board regarding the NEB’s jurisdiction over the Mackenzie Gathering System—part of the $16.6 billion proposed Mackenzie Gas Project. (Anadarko Canada Corporation v. National Energy Board, 2008 FCA 146.) The issue was ultimately resolved following an amendment to federal legislation - the Canada Oil and Gas Operations Act.

British Columbia Court of Appeal

• Represented Respondent (Grieg Seafood BC Ltd., an aquaculture company) in defending against judicial review proceedings seeking to challenge aquaculture licences, tenures and other authorizations Ehattesaht First Nation v. British Columbia (Agriculture and Lands) and Grieg Seafood BC Ltd., 2011 BCSC 658, leave to appeal denied 2011 BCCA 325.)
• Represented Respondent (BC Hydro) in an appeal arising from a decision of the BC Utilities Commission which examined the role of the Commission in assessing the Crown’s duty to consult Aboriginal peoples. (Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 (successfully appealed to Supreme Court of Canada Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43.)
• Represented Respondent (BC Hydro) in an appeal arising from a decision of the BC Utilities Commission which examined the role of the Commission in assessing the Crown’s duty to consult Aboriginal peoples. (Kwikwetlem First Nation v. British Columbia Utilities Commission, 2008 BCCA 208; and 2009 BCCA 68.)
• Represented Intervener (BC Civil Liberties Association) in an appeal considering Charter and administrative law issues around the powers of a School Board to restrict the use certain of children’s books in public schools. (Chamberlain v. Surrey School District No. 36, 2000 BCCA 519, successfully appealed to Supreme Court of Canada 2002 SCC 86.)
• Represented Appellant (Alcan Aluminum Limited) in an appeal considering issues of alleged trespass to an Indian Reserve and the applicability of various limitation statutes. (Stoney Creek Indian Band et al. v. Alcan Aluminum Limited, 1999 BCCA 139, 1999 BCCA 293 and 1999 BCCA 527.)

Regulatory Tribunals

In addition to the above experience as appellate counsel, Keith’s experience includes numerous appearances before regulatory and administrative tribunals, including the National Energy Board and the British Columbia Utilities Commission. Recent hearings include:

• Mackenzie Gas Project – a $16.6 billion proposed natural gas pipeline from the Mackenzie Delta, across the Northwest Territories to the existing pipeline system in Alberta.

- Represented the Government of the Northwest Territories in regulatory hearings before the National Energy Board, which lasted over five years and involved hearing sessions on 47 days in 15 communities in the Northwest Territories. The Board issued a Certificate of Public Convenience and Necessity in December 2010, and the federal Cabinet gave its approval in March 2011.

• The Interior to Lower Mainland Project – a $700 million proposed electrical 500 kv (high voltage) transmission line running from the interior of British Columbia to the Lower Mainland. The ILM Project is the largest electrical transmission project in British Columbia in the last thirty years and involves consultation with 60 First Nations and 7 Tribal Councils.

- Represented BC Hydro in regulatory hearings before the British Columbia Utilities Commission, which lasted over a year and a half and involved a three-week oral hearing. The proceeding was focused on the question the adequacy of consultation and accommodation with First Nations and involved numerous interveners representing over twenty-five First Nations. The Commission accepted the submissions of BC Hydro on the vast majority of the numerous legal and factual issues contested during the hearing. The Commission’s decision was released in February 2011.

• The Alaska Pipeline Project – a proposed natural gas pipeline from the north slope of Alaska, which would cross the Yukon and northeast B.C. before connecting with the existing pipeline system in Alberta

- Appeared as an expert witness called by the State of Alaska Senate Judiciary Committee before a Special Joint Session of the Alaska House Special Subcommittee and Senate Special Committee on Energy (July 2008). Presentation was focused on the Crown duty to consult First Nations in Canada with respect to major industrial projects.

• The TransMountain Pipeline – an oil pipeline running from Edmonton to Burnaby, British Columbia with connections to Washington State.