Contracting Policy Notice 1997-8

TO: Functional Heads,
Administration/Finance of
all Departments and Agencies

SUBJECT: Amendments and Additions to the Implementation of Contracting Obligations under Comprehensive Land Claims Agreements, National Park Agreements, and DND Co-operation Agreements.

SUMMARY

THIS CPN SUPERSEDES AND REPLACES CPN 1995-2 DATED MARCH 1, 1995. THE ATTACHED APPENDIX CONTAINS ADDITIONAL REQUIREMENTS THAT ARE IMPOSED ON GOVERNMENT CONTRACTING AUTHORITIES BY CANADIAN STATUTES AND RELATED FORMAL AGREEMENTS, EFFECTIVE SINCE IT WAS ORIGINALLY PUBLISHED ON MARCH 1, 1995.

BACKGROUND

Since the publication of Contracting Policy Notice 1995-2 on March 1, 1995, the Selkirk First Nation and the Little Salmon/Carmacks First Nation Land Claim Agreements have become effective, in addition to the Tuktut Nogait National Park Agreement, the Agreement to Establish a National Park on Banks Island, the Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region, and the Co-operation Agreement Concerning the Operation and Maintenance of the North Warning System.

1. The Government of Canada has entered into a number of Comprehensive Land Claims Agreements with various aboriginal peoples to resolve the rights over the territory traditionally used by the aboriginal people.

2. Most Comprehensive Land Claims Agreements deal with certain economic and social development benefits for aboriginal peoples. Contracting authorities should examine the applicable land claims agreements, Park Agreements and Co-operation Agreements for any aboriginal participation requirements for contracting activities that take place in a land claim settlement area.

3. Accordingly, where a contracting authority is engaged in a contract for the procurement of goods, services or construction in a settlement area or national park, these activities are subject to the contracting obligations that are found in the applicable agreement.

This policy is issued to make contracting authorities aware of the nature of these contracting obligations. Extracts of the applicable agreements are provided in the appendix to this Contracting Policy Notice, and in certain cases interpretation guidelines have been added to assist in achieving consistent application of the agreements' contracting requirements where possible. Where a contracting authority expects to conduct procurement activities in a comprehensive land claim area, it is encouraged to obtain and refer directly to the applicable agreement. All agreements except the James Bay and Northern Quebec Agreement can be obtained at the Publications and Public Enquiries Kiosk of the Department of Indian Affairs and Northern Development,
Les Terrasses de La Chaudière,
Room 1415,
10 Wellington Street,
Ottawa, Ontario K1A 0H4. Telephone
(819) 997-0380; facsimile (819) 953-3017.

Copies of the James Bay and Northern Quebec Agreement can be purchased from the "Editeur Officiel du Québec" by sending a request to facsimile 1-800-561-3479.

4. All contracting authorities should note that many of the land claims agreements contracting obligations require considerations that commence at the project planning stage. Adequate records must be made and retained that show how the contracting authority has fulfilled these requirements.

5. Departments are to update procedures or adjust existing procurement procedures to ensure that the procurement activities of the contracting authority are in conformity with any applicable land claims, National Parks or DND agreement obligations particularly with respect to project design, bid evaluation criteria, solicitation methods, notices and contract award.

POLICY

6. Where practicable and consistent with sound procurement management and the spirit and intent of the land claims agreements, contracting authorities should enhance the capacity of aboriginal suppliers from the land claims settlement areas to fulfil a larger numbers of government contract requirements. Procurement activities shall be carried out in a manner that responds to the developing nature of each settlement area economy and labour force. In particular, contracting authorities, shall take into account the current capacity and increased ability over time of aboriginal firms within settlement areas to compete for and successfully complete government contracts.

7. Where there is no direct conflict with the provisions of a land claim, Parks or DND Co-operation agreement, the mandatory provisions of the Procurement Strategy for Aboriginal Business shall apply.

8. Legal advice should be sought where a contracting authority is uncertain about how to interpret or satisfy the requirements of an agreement in any specific case. In amending their procurement system, contracting authorities are encouraged to seek legal advice to ensure that the government's legal obligations are fulfilled and that the risks of legal consequences to the contracting authority from a failure of the system are minimized.

INQUIRIES

9. For further information about or assistance in implementing the policy, please contact the Contract Policy Division, Deputy Comptroller General Branch, Treasury Board of Canada Secretariat at (613) 957-4188.

Le secrétaire adjoint et contrôleur général adjoint
Secteur de la gestion des finances, des marchés et des actifs,

R.J. Neville
Assistant Secretary and Assistant Comptroller General
Financial, Contract and Asset Management

TB06, TB07, T004, T005, T009, T010, T023, T024, T035, T036, T038, T040, T041, T161

The Policy requirements of this Appendix are mandatory. Guidelines in specific sections are included to provide interpretations and better application of the Agreements.

IMPLEMENTATION OF CONTRACTING OBLIGATIONS
UNDER COMPREHENSIVE LAND CLAIMS AGREEMENTS
POLICY

1.00 GENERAL

This appendix is issued to supplement the provisions of Section .4, Policy Requirements. It is intended to provide guidance to contracting authorities engaged in contracting activities for the provision of goods, services and construction in areas subject to Comprehensive Land Claims Agreements listed below. Where practicable and consistent with sound procurement management and the spirit and intent of the land claims agreements, contracting authorities should enhance the capacity of aboriginal suppliers from the land claims settlement areas to fulfil a larger amount of government contract requirements. Procurement activities shall be carried out in a manner that responds to the developing nature of each settlement area economy and labour force. In particular, contracting authorities shall take into account the current capacity and increased ability, over time, of aboriginal firms to compete for and to successfully complete government contracts. The contracting obligations articles in the specific sections extracted from Agreements are policy requirements. Contracting authorities should also note that bona fide set asides for aboriginal procurement established pursuant to comprehensive land claims meet the definition of minority and small businesses in the Schedules for Canada pursuant to the North American Free Trade Agreement and the World Trade Agreement. They are, therefore, exempt from the application of these trade agreements. Similarly, measures "adopted or maintained with respect to Aboriginal peoples" are also exempt from the Agreement on Internal Trade pursuant to article 18.0.2.

For specific land claims, National Park agreements and DND co-operation agreements contracting obligations refer to the appropriate section listed hereunder:

Section 1- James Bay and Northern Quebec Agreement
Section 2- Inuvialuit Final Agreement
Section 3- Gwich'in Comprehensive Land Claim Agreement
Section 4- Inuit of Nunavut Land Claim Agreement
Section 5- Umbrella Final Agreement, Council for Yukon Indians

Section 5.1- First Nation of Nacho Nyak Dun Final Agreement
Section 5.2- Champagne and Aishihik First Nations Final Agreement
Section 5.3- Teslin Tlingit Council Final Agreement
Section 5.4- Vuntut Gwitchin First Nation Final Agreement
Section 5.5- Selkirk First Nation Final Agreement
Section 5.6- Little Salmon/Carmacks First Nation Final Agreement

Section 6- Sahtu Dene and Metis Comprehensive Land Claim Agreement
Section 7- Agreement for the Establishment of a National Park on Banks Island
Section 8- Tuktut Nogait National Park Agreement
Section 9: Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Operation and Maintenance of the North Warning System.
Section 10- Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region