Schedule A - Economic Measures
Part I - Specific Economic Measures (continued)
11.0 First Right to Acquire Interests in the F.H. Collins Site
11.1
In 11.0, the following definitions apply.
"F.H. Collins Site" means the land shown as F.H. Collins Site on Map Sheet 105
D/11 - Riverdale Area, City of Whitehorse 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 F.H. Collins Site for nongovernmental
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 F.H. Collins Site, and "Interests" means
more than one Interest.
11.2
The parties acknowledge that it is the intention of the Yukon to reserve the F.H.
Collins Site for governmental purposes. If the Yukon, in its sole discretion,
decides to grant an Interest or Interests in respect of the F.H.Collins 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 11.3 to 11.9.
11.3
The Yukon shall provide written notice to the Kwanlin Dun First Nation specifying:
11.3.1
the number and nature of any Interest or Interests to be granted;
11.3.2
the location of the Interest or Interests; and
11.3.3
the terms and conditions upon which each of the Interests may be
acquired.
11.4
The Kwanlin Dun First Nation’s first right to acquire an Interest or Interests
pursuant to 11.2 shall be suspended once the Kwanlin Dun First Nation holds,
pursuant to 11.2, an Interest or Interests that apply to 25% or more of the area of
the F.H. Collins Site and shall be re-activated once the Kwanlin Dun First Nation
holds, pursuant to 11.2, an Interest or Interests that apply to less than 25% of the
area of the F.H. Collins Site.
11.5
For the purposes of 11.4, an Interest or Interests originally acquired by the
Kwanlin Dun First Nation pursuant to 11.2 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.
11.6
The Kwanlin Dun First Nation’s first right to acquire an Interest or Interests
pursuant to 11.2 shall not apply to the renewal or assignment of an Interest or
Interests acquired by other Persons pursuant to 11.8.
11.7
The Kwanlin Dun First Nation may exercise its first right to acquire an Interest or
Interests under 11.2 within 90 days following receipt of a notice under 11.3 by
advising the Minister in writing whether it intends to exercise that right and
identifying which of the Interests it elects to acquire.
11.8
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 11.7, 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.
11.9
If the offer to dispose of an Interest or Interests to any other Person under 11.8 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 11.3 to 11.8.
11.10
Nothing in 11.0 shall be construed to prevent the Kwanlin Dun First Nation from
acquiring an Interest or Interests in accordance with Laws of General Application.
12.0 Quarry Interests
12.1.
In 12.0, the following definitions shall apply.
"Alternate Quarry" means that portion of a Quarry developed by the Yukon at its
sole discretion after the Effective Date of this Agreement in the Whitehorse Area
which is not required for public purposes.
"Lease Area No. 2" means the area within the McLean Quarry designated as
Lease Area No. 2 on Inset Sketch 2 on Map Sheet 105 D/11 NE in Appendix B -
Maps, which forms a separate volume to this Agreement.
"Lease Area No. 5" means the area within the McLean Quarry designated as
Lease Area No. 5 on Inset Sketch 2 on Map Sheet 105 D/11 NE in Appendix B -
Maps, which forms a separate volume to this Agreement.
"Materials" means limestone, granite, slate, marble, gypsum, marl, gravel, loam,
sand, clay, volcanic ash or stone, found in its natural state.
"McLean Quarry" means the area shown as McLean Quarry on Inset Sketch 2 on
Map Sheet 105 D/11 NE in Appendix B - Maps, which forms a separate volume
to this Agreement.
"Offered Volume" means 1.18 million cubic metres of Materials.
"Quarry Operations" means the removal of Materials from a Quarry.
"Quarry Interest" means an exclusive right under a lease, license or other similar
instrument granted by the Yukon which entitles a Person to extract Materials
from an identified area within a Quarry and "Quarry Interests’ means more than
one Quarry Interest.
"Stevens Quarry" means the area shown as Stevens Quarry on Inset Sketch 1
on Map Sheet 105 D/14 SW in Appendix B - Maps, which forms a separate
volume to this Agreement.
"Whitehorse Area" means the area within a boundary line which is 15 kilometres
beyond the Community Boundary for the City of Whitehorse as at the Effective
Date of this Agreement, which for greater certainty includes the area within the
Community Boundary for the City of Whitehorse.
12.2
For a period of 10 years after the Effective Date of this Agreement, the Kwanlin
Dun First Nation shall have an option to accept the Yukon's offer of a Quarry
Interest in respect of Lease Area No. 2 and a Quarry Interest in respect of Lease
Area No. 5, or either of them.
12.3
If the Kwanlin Dun First Nation accepts the offer referred to in 12.2, the terms
and terms and conditions of any Quarry Interest shall be in accordance with
Yukon Legislation in respect of Quarry Interests applicable at the time that the
Kwanlin Dun First Nation accepts the offer.
12.4
If the Kwanlin Dun First Nation does not accept the Yukon's offer referred to in
12.2 within 10 years after the Effective Date of this Agreement, the Yukon may
offer a Quarry Interest in respect of Lease Area No. 2 and a Quarry Interest in
respect of Lease Area No. 5, or either of them, to any Person on the same terms
and conditions as offered to the Kwanlin Dun First Nation pursuant to 12.2 except
that the period for acceptance of the offer may be reduced.
12.5
If an offer referred to in 12.4 is not accepted by any other Person, the Yukon may
offer a Quarry Interest in respect of Lease Area No. 2 and a Quarry Interest in
respect of Lease Area No. 5, or either of them, on new terms and conditions
provided that the Yukon shall first offer any such Quarry Interest to the Kwanlin
Dun First Nation in writing and if the Kwanlin Dun First Nation does not accept
the Yukon’s offer within 30 days, the Yukon may offer any such Quarry Interest to
any Person on the same terms and conditions as offered to the Kwanlin Dun First
Nation.
12.6
In addition to the Quarry Interests offered in 12.2 and 12.5 the Yukon shall offer
Quarry Interests in the Whitehorse Area to the Kwanlin Dun First Nation as
follows:
12.6.1
if the Yukon, in its sole discretion, develops the Stevens Quarry for Quarry
Operations within 10 years following the Effective Date of this Agreement
it shall offer a Quarry Interest in the Stevens Quarry to the Kwanlin Dun
First Nation which is estimated to contain the Offered Volume of Materials;
12.6.2
subject to 12.7, if the Stevens Quarry is not developed by the Yukon within
10 years after the Effective Date of this Agreement, the Yukon shall offer
Quarry Interests estimated to contain the Offered Volume to the Kwanlin
Dun First Nation in Alternate Quarries as follows:
12.6.2.1
if an Alternate Quarry is developed which is estimated to contain a
volume of Materials estimated to exist in the Stevens Quarry, the
Kwanlin Dun First Nation shall be offered a Quarry Interest which is
estimated to contain the Offered Volume in that Alternate Quarry; or
12.6.2.2
if an Alternate Quarry or Quarries are developed which are estimated
to contain less than the volume of Materials estimated to exist in the
Stevens Quarry, the Yukon shall offer either a Quarry Interest or
Quarry Interests in such Alternate Quarries equivalent to 33% of the
volume of Materials estimated to exist within each such Alternate
Quarry or such other volume as may be agreed by the Kwanlin Dun
First Nation and the Yukon, until the Kwanlin Dun First Nation has
been offered the Offered Volume.
12.7
If after 10 years following the Effective Date, the Yukon develops the Stevens
Quarry for Quarry Operations, the Yukon shall notify the Kwanlin Dun First
Nation, and within 30 days of such notification, the Yukon shall, subject to 12.7.1,
offer a Quarry Interest equivalent to the Offered Volume in the Stevens Quarry.
12.7.1
A Quarry Interest offered pursuant to 12.7 is subject to a reduction
equivalent to the volume of Materials estimated to exist within any Quarry
Interest or Quarry Interests previously offered to the Kwanlin Dun First
Nation pursuant to 12.6.2.
12.8
The provisions of 12.6 and 12.7 shall terminate and the obligations of the Yukon
under 12.6 and 12.7 have been satisfied once the Kwanlin Dun First Nation has
been offered a Quarry Interest or Quarry Interests under 12.6 or 12.7, the volume
of which is estimated to contain the Offered Volume, regardless of whether the
Kwanlin Dun First Nation has accepted such offers or subsequently obtains
permits to conduct Quarry Operations pursuant to such a Quarry Interest or
Quarry Interests.
12.9
Nothing in 12.0 shall be construed to prevent the Kwanlin Dun First Nation from
acquiring additional Quarry Interests in the Stevens Quarry, McLean Quarry, or in
any Alternate Quarry through any offer to the public.
12.10
Nothing in 12.0 shall be construed to eliminate or otherwise affect the payment of
fees, royalties or other requirements that otherwise apply pursuant to Yukon
Legislation in relation to Quarry Operations.
13.0 Yukon Asset Construction Agreements
In 13.0, the following definitions shall apply.
"Asset" means property, plant and equipment.
"Capital Cost" means the planned expenditures for planning, designing,
procuring, constructing and installing all buildings, housing, machinery and
equipment and infrastructure associated with an Asset, including any such costs
incurred outside the Traditional Territory of the Kwanlin Dun First Nation in
relation to the Asset, but shall not include financing costs.
"Yukon Asset Construction Agreement" means an agreement providing benefits
for the Kwanlin Dun First Nation, Kwanlin Dun or Kwanlin Dun Firms concluded in
accordance with 13.1 to 13.21.
"Yukon" includes each board, commission, foundation, corporation or other
similar agency expressly established or incorporated as an agent of the Yukon
and their wholly owned subsidiaries, but does not include any entity which is an
agent of the Yukon solely by reason of a contract.
13.1
Subject to 13.2, where the Yukon intends to construct an Asset in the Traditional
Territory of the Kwanlin Dun First Nation that has a Capital Cost of $3 million or
more, the Yukon and the Kwanlin Dun First Nation shall conclude a Yukon Asset
Construction Agreement in accordance with 13.3 to 13.11 unless the Yukon
waives the requirement for a Yukon Asset Construction Agreement in
accordance with 13.12 to 13.17.
13.1.1
For greater certainty, 13.1 shall only apply in circumstances where the
Yukon is the sole proponent of the Asset construction and the sole owner
of the Asset.
13.2
The provisions of 13.1 do not apply to an Asset the construction of which is
undertaken in response to a temporary emergency in circumstances such that
the construction must be carried out without delay in the interest of protecting
property or the environment or in the interest of public health or safety.
13.3
Where the requirement for a Yukon Asset Construction Agreement under 13.1 is
not waived, the Yukon and the Kwanlin Dun First Nation shall enter into
negotiations with a view to concluding a Yukon Asset Construction Agreement.
13.4
If negotiations under 13.3 fail to result in the conclusion of a Yukon Asset
Construction Agreement within 30 days or such further period of time that in the
Yukon’s opinion is reasonable in the circumstances, the Yukon may ask the
Kwanlin Dun First Nation to provide its proposal respecting provisions to be
included in a Yukon Asset Construction Agreement.
13.5
The Kwanlin Dun First Nation shall respond in writing to the Yukon within 15 days
of receipt of a request under 13.4.
13.6
If negotiations under 13.3 fail to result in the conclusion of a Yukon Asset
Construction Agreement within 30 days or such further period of time that in the
Kwanlin Dun First Nation’s opinion is reasonable in the circumstances, the
Kwanlin Dun First Nation may notify the Yukon of its proposal respecting
provisions to be included in the Yukon Asset Construction Agreement.
13.7
Following receipt of the response pursuant to 13.5 or the expiry of the time period
referred to in 13.5, whichever is earlier, or following receipt of a notice provided
pursuant to 13.6, the Yukon, at its discretion, shall either:
13.7.1
refer to mediation under 26.4.0 any outstanding matters regarding the
provisions to be included in the Yukon Asset Construction Agreement; or
13.7.2
make the final determination respecting the provisions to be included in
the Yukon Asset Construction Agreement.
13.8
If the Yukon refers outstanding matters to mediation under 13.7.1 and following
mediation no agreement results, the Yukon shall make the final determination
respecting the provisions to be included in the Yukon Asset Construction
Agreement.
13.9
Where the Yukon makes the final determination respecting the provisions to be
included in the Yukon Asset Construction Agreement pursuant to 13.7.2 or 13.8,
such Yukon Asset Construction Agreement shall be deemed to be concluded for
the purposes of 13.1 and 13.3.
13.10
Yukon Asset Construction Agreements may address:
13.10.1
provisions to be included in any contracts entered into by the Yukon
associated with the construction of the Asset including:
13.10.1.1
employment opportunities for Kwanlin Dun;
13.10.1.2
business opportunities for the Kwanlin Dun First Nation, Kwanlin
Dun Firms and Kwanlin Dun; and
13.10.1.3
training opportunities for Kwanlin Dun;
13.10.2
training or employment opportunities for Kwanlin Dun with the Yukon that
are directly associated with the construction of the Asset; and
13.10.3
other benefits for the Kwanlin Dun First Nation, Kwanlin Dun or Kwanlin
Dun Firms determined by the Yukon pursuant to 13.7.2 or 13.8 or agreed
to by the Yukon and the Kwanlin Dun First Nation.
13.11
Yukon Asset Construction Agreements shall:
13.11.1
provide benefits commensurate with the nature, scale, duration and cost
of the construction of the Asset; and
13.11.2
not place an excessive burden on the Yukon or on the agent of the Yukon
constructing the Asset or adversely affect the viability of the construction
of the Asset.
13.12
The Yukon may waive the requirement for a Yukon Asset Construction
Agreement under 13.1 where:
13.12.1
a Yukon Asset Construction Agreement or the requirement for a Yukon
Asset Construction Agreement would breach an interprovincial or
international agreement or would interfere with intergovernmental
relations;
13.12.2
economic benefits or opportunities for the Kwanlin Dun First Nation,
Kwanlin Dun or Kwanlin Dun Firms in respect of the construction of the
Asset, or the negotiation of an agreement regarding such benefits or
opportunities in respect of the construction of the Asset are expressly
provided for in a law applicable to the construction of the Asset;
13.12.3
an agreement with the Kwanlin Dun First Nation regarding economic
benefits or opportunities for the Kwanlin Dun First Nation, Kwanlin Dun or
Kwanlin Dun Firms applicable to the construction of that Asset is already
in place; or
13.12.4
other such public interest circumstances exist.
13.13
Where the Yukon intends to waive the requirement for a Yukon Asset
Construction Agreement under 13.12.1, 13.12.3 or 13.12.4, the Yukon shall so
notify the Kwanlin Dun First Nation in writing with reasons.
13.14
Within 30 days of receipt of the notice under 13.13, the Kwanlin Dun First Nation
shall provide the Yukon with its views in writing of the intended waiver.
13.15
In the 30 days following the receipt by the Yukon of the Kwanlin Dun First
Nations’s response under 13.14, the Kwanlin Dun First Nation and the Yukon
shall make reasonable efforts to reach consensus regarding the intended waiver.
13.16
If the Yukon and the Kwanlin Dun First Nation fail to reach consensus under
13.15 or if the Kwanlin Dun First Nation fails to provide its views of the intended
waiver within the time period specified in 13.14, the Yukon may proceed to waive
the requirement for a Yukon Asset Construction Agreement.
13.17
Where the Yukon waives the requirement for a Yukon Asset Construction
Agreement pursuant to 13.12.2, it shall so notify the Kwanlin Dun First Nation in
writing.
13.18
Negotiations under 13.3 shall include negotiation of employment, business,
investment or other opportunities for other residents of the Traditional Territory of
the Kwanlin Dun First Nation if provided for in or pursuant to Yukon Legislation.
13.19
For greater certainty, any benefits which may be included for other residents of
the Traditional Territory of the Kwanlin Dun First Nation in a Yukon Asset
Construction Agreement are not included pursuant to this Agreement.
13.20
Except in respect of 13.21, the Yukon may extend any time period provided for in
13.0.
13.21
The provisions of 13.0 expire on the twelfth anniversary of the Effective Date of
this Agreement.
14.0 Strategic Investments in Alternative Energy Projects
14.1
In 14.0, the following definitions shall apply.
"Alternative Energy Project" means a project for generating electricity:
- which is not a hydro-electric project;
- which is 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 infrastructure for
generating electricity existing at the Effective Date of this
Agreement.
"Equity Cost" means the cost of an Alternative Energy 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 an Alternative Energy Project, pursuant to the exercise of the option described
in 14.2.
"Other Proponent" means a Person other than a Proponent, who proposes to
undertake an Alternative Energy Project.
"Proponent" means the Yukon, or agency or corporation of the Yukon which is
the proponent of an Alternative Energy Project.
"Proponent's Share" means the share, expressed as a percentage, of the
Proponent in an Alternative Energy Project.
"Public" means any Person other than an Other Proponent.
14.2
The Kwanlin Dun First Nation shall have the option to acquire up to 25 percent of
the interest of the Proponent in an Alternative Energy Project where the
Proponent seeks investment from the Public in an Alternative Energy Project.
14.3
The provisions of 14.2 do not apply:
14.3.1
when a Proponent seeks to divest itself of all of its ownership in an
Alternative Energy Project;
14.3.2
when a Proponent seeks to obtain debt financing for an Alternative Energy
Project; or
14.3.3
when a Proponent seeks public investment not specifically related to an
Alternative Energy Project.
14.4
Unless the Proponent and the Kwanlin Dun First Nation otherwise agree:
14.4.1
the Kwanlin Dun First Nation shall pay for the acquisition of its interest in
an Alternative Energy Project by:
14.4.1.1
paying an amount equal to the Kwanlin Dun First Nation's Share of the
Proponent's Share of the Equity Cost of the Alternative Energy Project;
and
14.4.1.2
assuming liability for a share of the full recourse debt financing for the
Alternative Energy Project equal to the Kwanlin Dun First Nation's
Share of the Proponent's Share of the liability under such financing;
and
14.4.2
the other terms and conditions of an acquisition of an interest in the
Alternative Energy Project by the Kwanlin Dun First Nation shall be no less
favourable than the terms and conditions applying to all participants in the
Alternative Energy Project, including the Proponent.
14.5
The Proponent shall give notice in writing to the Kwanlin Dun First Nation when it
seeks investment from the Public or the participation of Other Proponents in an
Alternative Energy Project. This notice shall also:
14.5.1
give notice to the Kwanlin Dun First Nation of completion of all studies and
investigations into the feasibility of the Alternative Energy Project and
make those studies available to the Kwanlin Dun First Nation; and
14.5.2
give notice to the Kwanlin Dun First Nation of receipt of all regulatory
approvals required to start the construction of the Alternative Energy
Project
14.6
Subject to 14.7 and 14.8 and after notice has been given in accordance with
14.5, the Proponent and the Kwanlin Dun First Nation, shall negotiate the terms
and conditions of the Kwanlin Dun First Nation acquiring its interest pursuant to
14.2 in an Alternative Energy Project.
14.7
Unless otherwise agreed by the Proponent and the Kwanlin Dun First Nation, at
any time at least 270 days after notice has been given under 14.5, 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 14.2.
14.8
The offer referred to in 14.7 shall be open for acceptance by the Kwanlin Dun
First Nation for 30 days, and failing acceptance of the offer, the option described
in 14.2 shall lapse and the Proponent shall have no further obligation to the
Kwanlin Dun First Nation under 14.0 for that Alternative Energy Project.
14.9
Nothing in 14.2 shall be construed to prevent the Kwanlin Dun First Nation from
entering into an agreement to acquire an additional interest in an Alternative
Energy Project.
14.10
Unless otherwise agreed by all the parties owning an interest in an Alternative
Energy 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 Alternative Energy
Project pursuant to 14.2, which offer it is ready and willing to accept, shall
communicate 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.
14.11
The Proponent may exercise the first right to purchase set out in 14.10 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.
14.12
For greater certainty, nothing in 14.0 shall be construed to prevent the Kwanlin
Dun First Nation from exercising the option described in 14.2 through the agency
of a corporation which it owns or controls.
14.12.1
If the Kwanlin Dun First Nation chooses to exercise the option described in
14.2 through the agency of a corporation which it owns or controls, the
provisions of 14.0 shall apply to that corporation as if it were the Kwanlin
Dun First Nation.
14.12.2
If the Kwanlin Dun First Nation chooses to exercise the option described in
14.2 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.
14.13
Nothing in 14.0 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 infrastructure for generating electricity, other than a hydro
electric project, existing at the Effective Date of this Agreement in the Traditional
Territory of the Kwanlin Dun First Nation.
14.13.1
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 infrastructure for generating electricity, other than a hydro
electric project, existing at the Effective Date of this Agreement shall be no
less favourable than the terms and conditions applying to any Person
acquiring such an interest.
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