Schedule A - Economic Measures
Part I - Specific Economic Measures
1.0 Project Agreements
1.1
For the purposes of 1.0, "Project" and "YDAB" have the same meaning as in
Chapter 12 - Development Assessment.
1.2
Where the Yukon has the jurisdiction to issue a Decision Document for a Project
in the Traditional Territory of the Kwanlin Dun First Nation which is reviewed by a
panel of YDAB, the Yukon Minister may require in the Decision Document that
the Project proponent, the Kwanlin Dun First Nation and the Yukon negotiate a
Project agreement.
1.3
Project agreements referred to in 1.2 may include:
1.3.1
employment opportunities for Kwanlin Dun;
1.3.2
business opportunities for the Kwanlin Dun First Nation or for Kwanlin
Dun, including contracts and the provision of goods and services;
1.3.3
investment opportunities for the Kwanlin Dun First Nation, including equity
purchase; and
1.3.4
other measures to mitigate negative socio-economic effects of the Project
on the Kwanlin Dun First Nation or on Kwanlin Dun.
1.4
The provisions in 1.2 shall expire on January 1, 2027, unless the parties to this
Agreement agree to extend the period of the application of 1.2.
2.0 Strategic Investments
2.1
In 2.0, the following definitions shall apply.
"Equity Cost" means the cost of a Project, exclusive of debt financing.
"Kwanlin Dun First Nation's Share" means the share, expressed as a percentage,
which the Kwanlin Dun First Nation proposes to acquire in the Proponent's Share
in a Project, pursuant to the exercise of the option described in 2.2.
"Project" means a non-renewable resource or hydro-electric project in the
Traditional Territory of the Kwanlin Dun First Nation, construction of which
commences after the Effective Date of this Agreement, and which is not an
addition to or an improvement of a non-renewable resource or hydro-electric
project or infrastructure existing at the Effective Date of this Agreement.
"Proponent" means the Yukon, or the agency or corporation of the Yukon which
is a proponent of a Project.
"Proponent's Share" means the share, expressed as a percentage, of the
Proponent in a Project.
2.2
The Kwanlin Dun First Nation shall have the option to acquire up to 25 percent of
the interest of a Proponent in a Project.
2.3
Unless the Proponent and the Kwanlin Dun First Nation otherwise agree:
2.3.1
the Kwanlin Dun First Nation shall pay for the acquisition of its interest in a
Project by:
2.3.1.1
paying an amount equal to the Kwanlin Dun First Nation's Share
of the Proponent's Share of the Equity Cost of the Project; and
2.3.1.2
assuming liability for a share of the full recourse debt financing for
the Project equal to the Kwanlin Dun First Nation's share of the
Proponent's Share of the liability under such financing; and
2.3.2
the other terms and conditions of the acquisition of its interest in the
Project by the Kwanlin Dun First Nation shall be no less favourable than
the terms and conditions applying to all participants in the Project,
including the Proponent.
2.4
Subject to 2.5 and 2.6, and after notice has been given under 2.7.2, the
Proponent and the Kwanlin Dun First Nation, at the request of the Kwanlin Dun
First Nation, shall negotiate the terms and conditions of the Kwanlin Dun First
Nation acquiring its interest in a Project.
2.5
At any time at least 270 days after notice has been given under 2.7.2, the
Proponent may provide in writing to the Kwanlin Dun First Nation an offer setting
out all the proposed terms and conditions of the Kwanlin Dun First Nation
acquiring its interest pursuant to 2.2 in the Project.
2.6
The offer referred to in 2.5 shall be open for acceptance by the Kwanlin Dun First
Nation for 30 days, and, failing acceptance of the offer, the option described in
2.2 shall lapse, and the Proponent shall have no further obligation to the Kwanlin
Dun First Nation under 2.0 for that Project.
2.7
The Proponent shall, as soon as practicable:
2.7.1
give notice to the Kwanlin Dun First Nation of completion of all studies of
and investigations into the feasibility of a Project and make those studies
available to the Kwanlin Dun First Nation; and
2.7.2
give notice to the Kwanlin Dun First Nation of receipt of all regulatory
approvals required to start construction of a Project.
2.8
Nothing in 2.2 shall be construed to prevent the Kwanlin Dun First Nation from
entering into an agreement to acquire an additional interest in a Project.
2.9
Unless otherwise agreed by all the parties owning an interest in a Project, the
Kwanlin Dun First Nation, upon receipt of a bona fide offer to purchase all or a
portion of the interest it acquired in the Project pursuant to 2.2, which offer it is
ready and willing to accept, shall communicate, in writing, the terms of the offer
to the Proponent, which shall have the first right to purchase that interest or
portion thereof at the price and on the terms set out in the offer.
2.10
The Proponent may exercise the first right to purchase set out in 2.9 at any time
during 30 days from the date on which it receives notice of the said bona fide
offer, by advising the Kwanlin Dun First Nation in writing of its intention to
exercise the right and to complete the purchase of the said interest or portion
thereof within the following 100 days.
2.11
For greater certainty, nothing in 2.0 shall be construed to prevent the Kwanlin
Dun First Nation from exercising the option described in 2.2 through the agency
of a corporation which it owns or controls.
2.11.1
If the Kwanlin Dun First Nation chooses to exercise the option described in
2.2 through the agency of a corporation which it owns or controls, the
provisions of 2.0 shall apply to that corporation as if it was the Kwanlin
Dun First Nation.
2.11.2
If the Kwanlin Dun First Nation chooses to exercise the option described in
2.2 through the agency of a corporation which it owns or controls, it shall
advise the Proponent of that choice and of the legal name of the
corporation as soon as possible.
2.12
Nothing in 2.0 shall be construed to prevent the Kwanlin Dun First Nation and the
Yukon, its agencies and corporations from entering into an agreement whereby
the Kwanlin Dun First Nation acquires an interest in an addition to, or
improvement of, a non-renewable resource development or hydro-electric project
or infrastructure not existing at the Effective Date of this Agreement.
2.12.1
Unless the Kwanlin Dun First Nation and the Yukon, its agency or
corporation otherwise agree, the terms and conditions upon which the
Kwanlin Dun First Nation acquires an interest in an addition to, or
improvement of, a non-renewable resource development or hydro-electric
project or infrastructure not existing at the Effective Date of this
Agreement shall be no less favourable than the terms and conditions
applying to all parties, including the Proponent, acquiring any interest in
that addition to, or improvement of, a non-renewable resource
development or hydro-electric project or infrastructure.
3.0 Boards
3.1
The Boards referred to in 2.12.1 of Chapter 2 - General Provisions and the
Designated Office defined in 12.2.0 of Chapter 12 - Development Assessment
shall consider the inclusion of criteria for special aboriginal or local knowledge
when establishing specifications for contract opportunities and job descriptions
for any employment activities which a Board or a Designated Office may have.
3.2
Nothing in 3.1 shall be construed to mean that a criterion for employment of
Kwanlin Dun shall be the determining criterion in awarding any contract.
4.0 Government Employment
4.1
Government shall develop and implement a plan which will include measures
designed to attain the goals of:
4.1.1
a representative public service located in the Yukon, taking into account
the aboriginal/non-aboriginal and gender make-up of the population of the
Yukon; and
4.1.2
to the degree practical, a representative public service located within the
Traditional Territory of the Kwanlin Dun First Nation that reflects the
aboriginal/non-aboriginal make-up of the population of the Traditional
Territory of the Kwanlin Dun First Nation.
4.2
Government shall Consult with the Kwanlin Dun First Nation in developing the
plan.
4.3
The plan shall be prepared within two years of the Effective Date of this
Agreement.
4.4
Government may consolidate the plan, after Consultation with the Kwanlin Dun
First Nation, with any other similar plan required by another Yukon First Nation
Final Agreement, provided the consolidation does not adversely affect the
benefits of the Kwanlin Dun set out in the plan.
4.5
The plan shall provide for periodic review.
4.6
The plan shall address:
4.6.1
training;
4.6.2
public information;
4.6.3
counselling;
4.6.4
work place support;
4.6.5
targeted recruiting;
4.6.6
the designation of positions to be held by aboriginal people;
4.6.7
preferences in hiring;
4.6.8
measures to manage the effect of the Government plan on the ability of
the Kwanlin Dun First Nation to recruit and retain qualified employees;
4.6.9
an analysis, using available data, to determine the level or representation
of aboriginal people in public service positions in the Traditional Territory
of the Kwanlin Dun First Nation and to identify practical ways to achieve
the goals referred to in 4.1; and
4.6.10
such other measures as may reasonably contribute to achieving the goal
of a representative public service.
4.7
Government shall review job descriptions and other requirements for public
service positions to ensure that:
4.7.1
implicit or explicit cultural bias is eliminated in the hiring and promotional
process; and
4.7.2
employment requirements are reasonable relative to the work, and free of
standards and requirements that unfairly reduce the opportunities for
residents of the Traditional Territory of the Kwanlin Dun First Nation to
obtain employment and to receive promotions.
5.0 Economic Development Agreements
5.1
Government may enter into economic development agreements with the Kwanlin
Dun First Nation which provide:
5.1.1
technical and financial assistance for economic development purposes to
residents of the Traditional Territory of the Kwanlin Dun First Nation and to
organizations, businesses and corporations owned by those residents,
Kwanlin Dun or the Kwanlin Dun First Nation;
5.1.2
for the participation of the Kwanlin Dun First Nation in the planning,
management, administration and decision making of those programs and
services; and
5.1.3
for measures to implement recommendations of the Traditional Territory
economic development plan.
5.2
Government and the Kwanlin Dun First Nation shall take into consideration the
economic development plan developed pursuant to 6.0, if completed, when
negotiating an economic development agreement referred to in 5.1.
5.3
Economic development agreements referred to in 5.1:
5.3.1
shall describe the purposes for which technical and financial assistance
may be used;
5.3.2
may provide for a financial contribution by the Kwanlin Dun First Nation
consistent with the ability of the Kwanlin Dun First Nation to contribute;
and
5.3.3
may provide for a financial contribution by Government, for the purposes
of the agreements.
5.4
The Kwanlin Dun First Nation shall nominate no less than one third of the
members of any joint planning, management, advisory or decision making body
established pursuant to an economic development agreement referred to in 5.1.
6.0 Traditional Territory Economic Development Plan
6.1
The Kwanlin Dun First Nation may request Government to jointly undertake with
the Kwanlin Dun First Nation, the preparation of an economic development plan
for the Traditional Territory of the Kwanlin Dun First Nation.
6.2
Government and the Kwanlin Dun First Nation shall provide the opportunity to
involve the City of Whitehorse, existing commercial and industrial interests within
the Traditional Territory of the Kwanlin Dun First Nation, and other residents of
the Traditional Territory of the Kwanlin Dun First Nation in the preparation of any
such economic development plan.
6.3
In the event an economic development plan is prepared in accordance with this
section, it shall:
6.3.1
examine the state of the economy in the Traditional Territory of the
Kwanlin Dun First Nation;
6.3.2
recommend measures to integrate the Kwanlin Dun First Nation economic
development opportunities plan required pursuant to 22.3.1 with the
economic development plan for the Traditional Territory of the Kwanlin
Dun First Nation;
6.3.3
recommend priorities for economic development in the Traditional
Territory of the Kwanlin Dun First Nation;
6.3.4
recommend appropriate types of economic development activities which
are consistent with the principles of Sustainable Development;
6.3.5
recommend measures to integrate the economic development plan with
other relevant economic plans and strategies including any economic
plans and strategies prepared by or on behalf of Government;
6.3.6
recommend actions which Government and the Kwanlin Dun First Nation
should take in order to implement the economic development plan;
6.3.7
provide for periodic review and evaluation of the economic development
plan;
6.3.8
recommend a process of amendment for the economic development plan;
and
6.3.9
recommend whether limits or other restrictions are required for
commercial activities within the scope of 2.0, 3.0 or 4.0 of Part II of this
schedule, and, if limits or other restrictions are required, recommend what
those limits or restrictions should be.
6.4
Nothing in 6.1, 6.2 and 6.3 shall be construed to impose on Government or the
Kwanlin Dun First Nation an obligation to implement the recommendations of any
economic development plan which may be prepared for the Traditional Territory
of the Kwanlin Dun First Nation.
6.5
Nothing in this Agreement or in any economic development plan prepared shall
be construed to:
6.5.1
prevent the Kwanlin Dun First Nation from accessing or making use of an
economic development program of general application available to a
Yukon resident or a Canadian citizen; or
6.5.2
restrict opportunities for or access by Kwanlin Dun to any other
employment or training position available outside the Traditional Territory
of the Kwanlin Dun First Nation.
7.0 Sale of Assets
7.1
In 7.0, the following definition shall apply.
"Original Registered Cost" in relation to an asset means the cost to the owner of
that asset at the time the asset is acquired.
7.2
The Yukon and the Kwanlin Dun First Nation shall meet on a yearly basis to
identify, to the extent practicable, surplus assets in the Traditional Territory of the
Kwanlin Dun First Nation that each owns and is considering disposing of.
7.3
Where the Yukon intends to dispose of a surplus asset with an Original
Registered Cost of $100,000 or more located in the Traditional Territory of the
Kwanlin Dun First Nation and seeks public participation in such disposal, it shall
give written notice of that fact to the Kwanlin Dun First Nation and the Kwanlin
Dun First Nation shall be offered an opportunity to participate in the disposal of
those assets on the same terms and conditions as apply to others.
7.4
Failure to meet pursuant to 7.2 or to provide written notice pursuant to 7.3 shall
not affect any agreements entered into for the disposal of the assets referred to
in 7.2 or 7.3.
7.5
For the purposes of 7.0, surplus assets of the Yukon include the surplus assets
of each board, commission, foundation, corporation, or other similar agency
established or incorporated as an agent of the Yukon, but does not include the
surplus assets of any entity which is an agent of the Yukon solely by reason of a
contract.
8.0 Strategic Economic Development Investment Fund
8.1
In 8.0, "Council", "General Assembly" and "Kwanlin Dun Citizens" each has the
same meaning as in the Kwanlin Dun First Nation Constitution.
8.2
Canada shall pay $5,670,145.00 on or as soon as practicable after the Effective
Date of this Agreement to the Kwanlin Dun First Nation to be the Kwanlin Dun
First Nation Strategic Economic Development Investment Fund (the "Fund").
8.3
The Fund shall be kept segregated from other Kwanlin Dun First Nation monies
provided that the Kwanlin Dun First Nation may deposit other monies into the
Fund.
8.4
Subject to 8.5 and 8.6, monies in the Fund may be invested in any kind of
property, real, personal or mixed, but in so doing, the Kwanlin Dun First Nation
shall exercise the judgement and care that a person of prudence, discretion and
intelligence would exercise as a trustee of the property of others, and pending
such investment, shall be held on deposit with a Canadian chartered bank.
8.5
Subject to 8.6, monies in the Fund may be used only for purposes of:
8.5.1
economic development of Kwanlin Dun and the Kwanlin Dun First Nation;
8.5.2
training and education of Kwanlin Dun; and
8.5.3
costs of administering the Fund, including the audits and reports required
by 8.0,
in accordance with terms of reference for the Fund (the "Terms of Reference")
prepared and approved by the Kwanlin Dun First Nation.
8.6
The Kwanlin Dun First Nation may reimburse itself from the Fund for the costs of
preparation, approval and amendment of the Terms of Reference.
8.7
The Kwanlin Dun First Nation shall provide the Terms of Reference and any
amendments to Canada.
8.8
The Kwanlin Dun First Nation shall cause the Fund to be audited annually by an
independent auditor who is a member in good standing of the Canadian Institute
of Chartered Accountants and the audit shall be presented each year to the
annual General Assembly of Kwanlin Dun Citizens held in accordance with the
Kwanlin Dun First Nation Constitution.
8.9
The Kwanlin Dun First Nation shall prepare an annual report comparing the
activities of the Fund with the Terms of Reference in the manner and with the
content set out in the implementation plan for this Agreement, and the report
shall be presented each year to the meeting referred to in 8.8.
8.10 The Kwanlin Dun First Nation shall provide to Canada a copy of the audit and
report prepared pursuant to 8.8 and 8.9, respectively.
8.11
At any time after the amount of the Fund used for the purposes provided for in
8.5 equals the amount which was paid into the Fund by Canada pursuant to 8.2,
the Kwanlin Dun First Nation may terminate the Fund by a resolution of the
Council made in accordance with the Kwanlin Dun First Nation Constitution, and
any monies remaining in the Fund at that time shall be dealt with in accordance
with that resolution and the Kwanlin Dun First Nation Constitution.
8.12
The Kwanlin Dun First Nation shall prepare an audit and a report for the period of
time between the last annual audit and report and the termination of the Fund
and shall present the audit and report to the next annual General Assembly of
Kwanlin Dun Citizens held in accordance with the Kwanlin Dun First Nation
Constitution.
8.13
The Kwanlin Dun First Nation shall provide a copy of the audit and report referred
to in 8.12 to Canada together with a certified copy of the resolution referred to in
8.11.
8.14
For greater certainty, nothing in 8.0 creates an individual interest in the Fund.
8.15
For greater certainty, the economic development purposes referred to in 8.5
include development of the renewable resource and traditional economies.
9.0 Agreements
9.1
The parties to this Agreement may enter into agreements to give effect to
recommendations in plans described in this chapter or to otherwise achieve the
objectives of 22.1.0.
9.2
An agreement referred to in 9.1 shall state whether, and if so to what extent, the
agreement is binding on the parties to the agreement.
9.3
Nothing in this Agreement shall be construed to limit the ability of the Kwanlin
Dun First Nation and the Yukon to make recommendations to, and enter into
agreements with, each other respecting the establishment of measures, policies,
and programs with the objective of furthering the economic development of
resources within the Traditional Territory of the Kwanlin Dun First Nation, in a
manner which is consistent with the culture, values and identity of the Kwanlin
Dun First Nation.
10.0 First Right to Acquire Interests in the Grader Station Site
10.1
In 10.0, the following definitions shall apply.
"Grader Station Site" means the area shown as Grader Station Site on Inset
Sketch 1 on Map Sheet 105 D/11 NE in Appendix B - Maps, which forms a
separate volume to this Agreement, or any portion thereof.
"Interest" means a:
- fee simple interest;
- leasehold interest; or
- licence or authorization to use or occupy the Grader Station Site for
non-governmental or commercial purposes, but not including a licence
or authorization for commercial purposes associated with a
governmental project or program,
granted by the Yukon in respect of the Grader Station Site, and "Interests"
means more than one Interest.
10.2
The parties acknowledge that it is the intention of the Yukon to reserve the
Grader Station Site for governmental purposes. If the Yukon, in its sole
discretion, decides to grant an Interest or Interests in respect of the Grader
Station Site to any Person at any time after the Effective Date of this Agreement,
the Kwanlin Dun First Nation shall have a first right to acquire such Interest or
Interests in accordance with 10.3 to 10.9.
10.3
The Yukon shall provide written notice to the Kwanlin Dun First Nation specifying:
10.3.1
the number and nature of any Interest or Interests to be granted;
10.3.2
the location of the Interest or Interests; and
10.3.3
the terms and conditions upon which each of the Interests may be
acquired.
10.4
The Kwanlin Dun First Nation’s first right to acquire an Interest or Interests
pursuant to 10.2 shall be suspended once the Kwanlin Dun First Nation holds,
pursuant to 10.2, an Interest or Interests that apply to 25% or more of the area of
the Grader Station Site and shall be re-activated once the Kwanlin Dun First
Nation holds, pursuant to 10.2, an Interest or Interests that apply to less than
25% of the area of the Grader Station Site.
10.5
For the purposes of 10.4, an Interest or Interests originally acquired by the
Kwanlin Dun First Nation pursuant to 10.2 which are subsequently assigned,
transferred or otherwise disposed of by the Kwanlin Dun First Nation to a Person
shall, for as long as that Interest or Interests or any subsequent renewals or
replacements thereof are in effect, be considered an Interest or Interests held by
the Kwanlin Dun First Nation.
10.6
The Kwanlin Dun First Nation’s first right to acquire an Interest or Interests
pursuant to 10.2 shall not apply to the renewal or assignment of an Interest or
Interests acquired by other Persons pursuant to 10.8.
10.7
The Kwanlin Dun First Nation may exercise its first right to acquire an Interest or
Interests under 10.2 within 90 days following receipt of a notice under 10.3 by
advising the Minister in writing whether it intends to exercise that right and
identifying which of the Interests it elects to acquire.
10.8
If the Kwanlin Dun First Nation fails to exercise its first right to acquire an Interest
or Interests within the time and in the manner set out in 10.7, the Minister may
offer to dispose of the Interest or Interests identified in the notice provided to the
Kwanlin Dun First Nation to any other Person upon the same terms and
conditions as specified in the notice, and if the offer is accepted by any other
Person the first right to acquire that Interest or Interests by the Kwanlin Dun First
Nation is terminated.
10.9
If the offer to dispose of an Interest or Interests to any other Person under 10.8 is
not accepted by any other Person, the Minister may dispose of the Interest or
Interests on new terms and conditions in accordance with the procedure set out
in 10.3 to 10.8.
10.10
Nothing in 10.0 shall be construed to prevent the Kwanlin Dun First Nation from
acquiring an Interest or Interests in accordance with Laws of General Application.
continued....
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