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9.35. Modern Treaties

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9.35.1 General information on Modern Treaties (Comprehensive Land Claims Agreements)

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  1. Modern treaties, also known as Comprehensive Land Claim Agreements (CLCAs), are typically tripartite, including Indigenous organizations or nations, the Crown, and provincial/territorial governments as signatories. They provide clarity and predictability with respect to land and resource rights, ownership, and management.
  2. Modern treaties/CLCAs also seek to ensure fair treatment of Indigenous interests with respect to cultural, social, political and economic rights, including rights to lands, and to fish and hunt and practice their own cultures. The rights defined in them are constitutionally protected within section 35 of the Constitution Act, 1982.
  3. There are currently 25 modern treaties in effect and 22 contain economic measures with procurement obligations. These 25 modern Treaties are located in Yukon (11), Northwest Territories (4), Nunavut (1), Quebec (4), Newfoundland and Labrador (1) and British Columbia (4).
  4. No two modern treaties are exactly the same, and therefore each treaty has to be read and understood individually to determine the applicable contracting obligations.
  5. Most modern treaties/CLCAs include measures dealing with procurement, and although these measures are not always identical in the various agreements, they are all aimed at enhancing economic opportunities of the Indigenous group benefiting from the agreement (referred to as "Modern treaty/CLCA beneficiaries"), usually through increased possibilities of competing successfully for contracts in their settlement areas, or of participating in employment, training or subcontracting opportunities related to the procurement.
  6. Canada’s procurement obligations vary with each modern treaty/CLCA, but can include:
    1. Separating requirements into commodity or geographic groupings, whenever practical and consistent with sound procurement management, to permit smaller and more specialized firms to submit bids;
    2. Notification of the procurement to the land claimant groups and/or modern treaty/CLCA beneficiary firms;
    3. Use of modern treaty/CLCA business directories/lists (refer to 9.35.60 Business Directories/Lists);
    4. Use of bid evaluation criteria to benefit modern treaty/CLCA beneficiaries, and wherever practical and consistent with sound procurement management; and
    5. Right of first refusal for procurements related to certain topics, e.g. archaeology, heritage, parks, surveying (refer to 9.35.40 Right of First Refusal).
  7. During the procurement planning stage the contracting officer must determine whether any modern treaty/CLCA, and, if so, how they will affect the procurement strategy. The contracting officer must also ensure that the procurement file contains adequate documentation on the measures taken to address any modern treaty/CLCA procurement obligations, especially with regards to sections 9.35.25 Requirements Definition, 9.35.35 Notification of Procurement and 9.35.45 Evaluation Criteria.
  8. To determine if a requirement is subject to any Modern treaties/CLCAs, contracting officers must consult the Aboriginal and Treaty Rights Information System (ATRIS). ATRIS is a web-based system intended to provide up-to-date, site-specific information on potential or established Indigenous or treaty rights of Indigenous peoples across Canada.

    This system can also provide contact information for communities and leadership of Indigenous Peoples in a proposed project area which may assist in assessing local business and labour capacity.

    ATRIS can be accessed at the following website address: Aboriginal and Treaty Rights Information System (ATRIS).

    Step-by-Step Instructions:

    1. Go to the ATRIS search page
    2. On the "Search By:" drop-down list, select "Postal Code" or “Map Coordinates”
    3. Type the relevant information into next field, or select the appropriate item from each drop-down list as required
  9. For procurements that may be subject to modern treaties/CLCAs, contracting officers should first review section 9.35 Modern Treaties, and consider contacting the Indigenous Involvement in Procurement Division (IIPD), at tpsgc.rcndgaertgsaea-ncrabclcapsab.pwgsc@tpsgc-pwgsc.gc.ca for assistance.
    1. To expedite requests, when requesting assistance from IIPD, contracting officers should provide the following information about their procurements:
      1. a brief description of the requirement;
      2. final delivery location(s), e.g. postal code or map coordinates;
      3. applicable modern treaties/CLCAs;
      4. name of client department;
      5. applicable trade agreements, and/or reasons for exclusion from any trade agreements;
      6. type of procurement instrument, e.g. contract, standing offer, supply arrangement;
      7. solicitation method (competitive or sole source);
      8. method of advertising e.g. the Government Electronic Tendering Service (GETS), source list;
      9. estimated dollar value;
      10. anticipated date of issuance of solicitation.
    2. When requesting advice, contracting officers should do so as early as possible because (1) of the possible need for IIPD to consult with others (i.e. Legal Services, Crown Indigenous Relations and Northern Affairs Canada (CIRNAC) and/or Indigenous Services Canada (ISC), Treasury Board Secretariat) before responding to a request, but mainly because (2) modern treaties contain obligations that impact federal procurement activities.
    3. For PSPC contracting officers, the primary source of policy advice on modern treaties, as well as any other type of Indigenous benefits, is IIPD. If it is necessary to involve Legal Services or CIRNAC/ISC, IIPD will assist in this process in order to ensure a consistent departmental approach.
    4. An online course on Aboriginal Considerations in Procurement (#C223E) is available by visiting the Canada School of Public Service's Campusdirect website.
  10. When conducting contracting activities within modern treaty areas, departments are expected to keep adequate records to demonstrate that they have met Canada’s obligations set out in the Agreements. These Agreements form part of the treaty rights that are protected in Section 35 of the Constitution Act, 1982.
  11. It is the responsibility of the technical authority and the contracting authority to fulfill the obligations of all applicable modern treaties at all stages of the procurement process, and document the procurement file accordingly

9.35.5 Modern Treaties in Effect

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  1. At present, there are 25 modern treaties/CLCAs that have been given Royal Assent and are in effect. Modern treaties affecting federal government procurement exist for areas within the Yukon, the Northwest Territories, Nunavut, northern Quebec, northern Labrador and British Columbia. There are currently no modern treaties/CLCAs for areas within Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Newfoundland, Nova Scotia or Prince Edward Island.
  2. The modern treaties/CLCAs that are in effect are listed below along with their approximate settlement areas. Where available, a link has been provided to the associated Treasury Board Contracting Policy Notice, which includes an excerpt of the CLCA contracting provisions. Otherwise, a link has been provided to the full text of the comprehensive land claims agreement on the Aboriginal Affairs and Northern Development Canada website, along with references to the articles regarding contracting provisions.

9.35.5.1 Quebec

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  1. James Bay and Northern Quebec Agreement (JBNQA) (1975), amended to include the Northeastern Quebec Agreement (1978): from the shores of James Bay and Hudson Bay to Labrador, covering approximately 50 percent of Quebec's land mass, mainly the northern portion of the province. The JBNQA has three aboriginal signatories, representing the Cree, Inuit and Naskapi of Quebec. The JBNQA contains conditions that apply to both the Cree and Inuit, as well as conditions that apply solely to the Cree, conditions that apply solely to Inuit, and conditions that apply solely to the Naskapi. The Nations map shows which communities are inhabited by Cree, Inuit and Naskapi, and therefore which conditions would apply. For communities not detailed on this map, contracting officers should seek assistance in accordance with section 9.35.1 General Information on Modern Treaties (Comprehensive Land Claims Agreements), g.
    1. Inuit Provisions:
      1. James Bay and Northern Quebec Agreement (JBNQA), section 29.0 (Inuit Economic and Social Development);
      2. Agreement Respecting the Implementation of the JBNQA - Annex A, Part II (Inuit Employment and Contract Priority).
    2. Cree Provisions: James Bay and Northern Quebec Agreement, section 28.10 (Cree Participation in Employment and Contracts).
  2. Northeastern Quebec Agreement, Section 18 and paragraph 20.20.
  3. Nunavik Inuit Land Claims Agreement (2008) - see Article 13 – Government of Canada Employment and Contracts and, if applicable, Article 20 – Archaeology (Part 20.7): The settlement areas of the Eeyou Marine Region Land Claims Agreement (EMRLCA) and the Nunavik Inuit Land Claims Agreement (NILCA) overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.
  4. Eeyou Marine Region Land Claims Agreement (2011) - see Chapter 21 - Government Employment and Contracting and, if applicable, Chapter 26 – Archaeology (section 26.8 – Employment and Contracting): The settlement areas of the EMRLCA and the NILCA overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.

9.35.5.5 Newfoundland and Labrador

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Labrador Inuit Land Claims Agreement (2005) - Appendix A of TB CPN 2006-4: Part of Northeastern Quebec and part of Northern Labrador. Includes (but is not limited to) Hopedale, Makkovik, Nain, Postville and Rigolet.

9.35.5.10 Northwest Territories

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  1. The Inuvialuit Final Agreement (1984): the islands and part of mainland along the Beaufort Sea (northwest portion of the Northwest Territories, including western portion of Victoria Island, all of Banks Island, Prince Patrick Island in the northern portion, and the western portion of Melville Island) includes (but is not limited to) Aklavik, Holman, Inuvik, Mould Bay and Tuktoyaktuk. The Gwich'in Comprehensive Land Claims Agreement also covers Inuvik and Aklavik.
  2. Gwich'in Comprehensive Land Claims Agreement (1992): parts of northeastern Yukon and northwest portion of the Northwest Territories includes (but is not limited to) Aklavik, Fort McPherson, Inuvik and Tsiigetchic. The Inuvialuit Final Agreement also covers Inuvik and Aklavik. A Yukon Transboundary Agreement, for the Tetlit Gwich'in claimant group, exists as Appendix C under this final agreement. Notification of procurement opportunities for both the Gwich'in CLCA and the Yukon Transboundary Agreement must be sent to the Gwich'in Tribal Council.
  3. Sahtu Dene and Metis Comprehensive Land Claims Agreement (1994) - see Chapter 12 - Economic Measures: Northwestern part of the District of Mackenzie, including the communities of Colville Lake, Deline, Norman Wells, Fort Good Hope, and Tulit'a.
  4. Tlicho Land Claims Agreement (2005) - Appendix B of TB CPN 2006-4: Part of the Northwest Territories and part of Western Nunavut. Includes, but is not limited to, Yellowknife, Behchoko (Rae-Edzo), Gameti (Rae Lakes), Wha Ti and Wekweti.

9.35.5.15 Nunavut

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Nunavut Land Claims Agreement (1993): Northern Canada - includes districts of Franklin (central Nunavut), Keewatin (south-central Nunavut, northwest coast of Hudson's Bay area), Baffin Island (southeast portion of Nunavut) and Ellesmere Island (northern portion of Nunavut). Includes (but is not limited to) Arctic Bay, Arviat, Baker Lake, Bathurst Inlet, Cambridge Bay, Canadian Forces Station (CFS) Alert, Cape Dorset, Chesterfield Inlet, Clyde River, Eureka, Gjoa Haven, Grise Fiord, Hall Beach, Igloolik, Iqaluit, Kimmirut, Kugluktuk, Nanisivik, Pangnirtung, Pelly Bay, Pond Inlet, Qikiqtarjuaq, Rankin Inlet, Repulse Bay, Resolute, Sanikiluaq, Taloyoak, Umingmaktok and Whale Cove.

9.35.5.15.1 Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area

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To further support the Government of Canada in fulfilling its obligations under Article 24 (Government Contracts) in the Nunavut Agreement, the government issued the new Treasury Board Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area (the Directive), which can be accessed here: Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area

The Directive prescribes procurement measures designed to provide support and assistance to Inuit firms to compete for government contracts, including the supply of goods, services, construction services and real property leases. The Directive also requires bid evaluation criteria related to Inuit and Nunavut Benefits in certain circumstances.

A government-wide guide titled Guide on Government Contracts in the Nunavut Settlement Area (the Guide) has been developed to assist contracting authorities and technical authorities to fulfill the obligations of the Directive. The Guide can be accessed here: Guide on Government Contracts in the Nunavut Settlement Area.

Treasury Board guidelines for reporting on procurement contracts and related benefits in the Nunavut Settlement Area in accordance with the Directive have been developed to assist contracting authorities and technical authorities, and can be accessed here: Guidelines on Reporting of Procurement Contracts for the Treasury Board Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area.

For advice and guidance on how to apply the Directive, the Guide and the Standard Procurement Templates, email the Strategic Policy Sector’s Indigenous Involvement in Procurement Division at: PAContratsNunavut-APNunavutContracts@tpsgc-pwgsc.gc.ca

9.35.5.20 Yukon

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  1. Umbrella Final Agreement – Council for Yukon Indians (1993): This agreement provides a framework for the negotiation of agreements with Yukon First Nations and has so far resulted in the eleven CLCAs listed below.

    The general contracting obligations of each Yukon First Nation CLCA are contained in Chapter 22 – Economic Development Measures (section 22.5.0 - Contracting), and these obligations are fully addressed in the guidance provided within section 9.35 Comprehensive Land Claims Agreements (CLCAs) of the Supply Manual. Access provisions are contained in Chapter 6 – Access (section 6.4.0 - Government Access) of each Yukon First Nation CLCA. More specific contracting obligations which apply to only certain procurements relating to special management areas (e.g. wildlife areas, parks, historic sites), heritage resources, surveying of settlement land boundaries or areas, or forest resources may be contained in Chapter 10 – Special Management Areas, Chapter 13 – Heritage (section 13.12.0 – Economic Opportunities), Chapter 15 – Definition of Boundaries and Measurement of Areas of Settlement Land (section 15.7.0 – Employment and Economic Opportunities), and Chapter 17 – Forest Resources (section 17.14.0 - Economic Opportunities) of each Yukon First Nation CLCA. Contracting officers with these types of procurements are encouraged to seek assistance in accordance with section 9.35.1 - General Information on Modern Treaties (Comprehensive Land Claims Agreements), g.

  2. The Agreements that can be found under the Umbrella Final Agreement – Council for Yukon Indians (1993):
    1. First Nation of Nacho Nyak Dun Final Agreement (1995): Part of Yukon Territory covering Mayo and Stewart Crossing.
    2. Champagne and Aishihik First Nations Final Agreement (1995): Part of Yukon Territory covering Haines Junction, Canyon Creek and Champagne.
    3. Teslin Tlingit Council Final Agreement (1995): Part of Yukon Territory covering Teslin.
    4. Vuntut Gwitchin First Nation Final Agreement (1995): Part of Yukon Territory covering Old Crow.
    5. Selkirk First Nation Final Agreement (1997): Part of Yukon Territory covering Pelly crossing.
    6. Little Salmon/Carmacks First Nations Final Agreement (1997): Part of Yukon Territory covering Carmacks.
    7. Tr'ondëk Hwëch'in Final Agreement (1998): Part of Yukon Territory covering Dawson City.
    8. Ta'an Kwach'an Council Final Agreement (2002): Part of Yukon Territory covering Whitehorse.
    9. Kluane First Nation Final Agreement (2004): Part of Yukon Territory covering Burwash Landing.
    10. Kwanlin Dun First Nation Final Agreement (2005): Part of Yukon Territory covering Whitehorse.
    11. Carcross/Tagish First Nations Final Agreement (2005): Part of Yukon Territory covering Carcross and Tagish.

9.35.5.25 British Columbia

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  1. Nisga’a Final Agreement (2000) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 6. Nisga’a settlement area is located in the Nass River valley of northwestern British Columbia.
  2. Tsawwassen First Nation Final Agreement (2009) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 7. Tsawwassen settlement area is located south of Vancouver.
  3. Maa-Nulth First Nations Final Agreement (2011) – See Section 23.10.5 regarding the Pacific Rim National Park Reserve. While the final agreement does not include any direct measures related to procurement obligations, it references the side agreement Agreement Concerning Cooperation in the Planning and Management of Pacific Rim National Park Reserve. This side agreement contains procurement obligations, found in Section 12, for contracts related to development and operation of Pacific Rim. The Pacific Rim National park is on the Western Coast of Vancouver Island.
  4. Tla’amin Nation Final Agreement (2016) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 5. Tla’amin settlement area is located on British Columbia’s Sunshine Coast, just north of Powell River, and includes Harwood Island.

9.35.10 National Park Agreements and Department of National Defence Co-operation Agreements

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  1. Contracting officers should also be aware that a number of National Park Agreements and DND Co-operation Agreements have been signed between individual departments and certain aboriginal groups. These agreements, which are listed below can be found in sections 7 to 10 of TBS Contracting Policy Notice 1997-8:
    1. Section 7: Agreement for the Establishment of a National Park on Banks Island
    2. Section 8: Tuktut Nogait National Park Agreement
    3. 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
    4. 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
  2. When advised by the client department, PWGSC will consider these co-operation agreements in the procurement process.

9.35.15 Comprehensive Land Claims Agreements under Negotiation

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There are currently several Comprehensive Land Claims Agreements (CLCAs) under negotiation. The Policy, Advice and Aboriginal Considerations Division will advise contracting officers when new CLCAs come into effect.

9.35.20 Applicability of Comprehensive Land Claims Agreement Contracting Obligations

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  1. If a procurement, or a portion thereof, includes the final delivery of goods, services, and/or construction, for any department, agency or Crown corporation of the federal government, to locations covered by CLCAs, then the contracting obligations of each applicable CLCA will apply to each associated portion of the procurement. The final delivery point(s), which are not necessarily the destination addresses detailed in the requisition, determine the applicability of a CLCA, not the origin of the requisition (i.e. ordering office).
  2. There are additional cases where the CLCA procurement obligations may apply, for example:
    1. where a procurement is in support of government activities within a CLCA area; and
    2. where a procurement involves the performance of services or associated travel by the resulting contractor within a CLCA area.
    In such cases, contracting officers should seek assistance on whether CLCAs apply in accordance with subsection g. of section 9.35.1.
  3. Dollar Thresholds: A CLCA applies to any applicable procurement, regardless of dollar value.
  4. Overlaps: Some CLCAs have settlement areas that overlap with the settlement areas of other CLCAs. In these cases, the obligations of both CLCAs will apply. For example, Inuvik, Northwest Territories (NWT) is situated within the settlement areas of both the Inuvialuit Final Agreement and the Gwich'in CLCA, and so the contracting obligations of both CLCAs will apply to the portion of the procurement with deliveries to Inuvik, NWT.
  5. Urgent requirements must continue to be dealt with on a case-by-case basis, in a manner that is consistent with the provisions of the applicable CLCA. For procurements that are for pressing emergencies as defined in accordance with Treasury Board Secretariat Contracting Policy Notice 2007-4 on Non-Competitive Contracting, contracting officers should seek assistance in accordance with subsection g. of section 9.35.1.
  6. CORCAN: Procurements that are sourced through CORCAN as stores transfer orders are not subject to CLCAs
  7. Here are some examples of requirements where CLCAs would apply to the procurement:
    1. Generators for delivery to Yellowknife, Northwest Territories.
    2. Food for delivery by the contractor to a non-CLCA area, for furtherance by the client department to a CLCA area.
    3. Snowmobiles for delivery by the contractor to a non-CLCA area, where the client department would install decals to the snowmobiles and then ship them to Kuujjuaq, Quebec.
    4. An on-line map selection solution that would allow prospectors to acquire mineral claims on Crown lands in Nunavut, where the service would be made available to interested companies via the internet, and the technical infrastructure and hosting environment would be located in a non-CLCA area.
    5. An aeromagnetic survey to be performed on a CLCA area, with the only tangible deliverable being a final report to be sent to the client in a non-CLCA area.

9.35.25 Requirements Definition

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  1. Under several CLCAs, the requirements definition for a procurement must, whenever it is practical and consistent with sound procurement management:
    1. avoid artificially inflated employment skills requirements (this is consistent with PWGSC's procurement principles);
    2. give consideration to separating requirements into commodity or geographic groupings to permit smaller and more specialized firms to submit a bid/offer/arrangement.
  2. For instance, the Nunavut Land Claims Agreement states the following:

    "24.4.2 In inviting bids on government contracts in the Nunavut Settlement Area, the Government of Canada and the Territorial Government shall provide all reasonable opportunities to Inuit firms to submit competitive bids, and, in doing so, shall take, where practicable and consistent with sound procurement management, the following measures:

    1. set the date, location, and terms and conditions for bidding so that Inuit firms may readily bid;
    2. invite bids by commodity groupings to permit smaller and more specialized firms to bid;
    3. permit bids for goods and services for a specified portion of a larger contract package to permit smaller and more specialized firms to bid;
    4. design construction contracts in a way so as to increase the opportunity for smaller and more specialized firms to bid; and
    5. avoid artificially inflated employment skills requirements not essential to the fulfillment of the contract."
  3. The following CLCAs also contain similar wording:
    1. James Bay and Northern Quebec Agreement (Inuit portion);
    2. Sahtu Dene and Metis Comprehensive Land Claim Agreement (Implementation Plan);
    3. Labrador Inuit Land Claims Agreement;
    4. Nunavik Inuit Land Claims Agreement; and
    5. Eeyou Marine Region Land Claims Agreement.
  4. Contracting officers must also ensure that the procurement file contains adequate documentation on the measures taken to address any CLCA procurement obligations related to requirements definition.

9.35.30 Access to Aboriginal-owned Lands

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Comprehensive Land Claims Agreements (CLCAs) make provisions for access to aboriginal-owned lands. Contracting officers should encourage clients to liaise with the appropriate directorate(s) within Aboriginal Affairs and Northern Development Canada's Implementation Branch to determine whether the location of the contracting activity is subject to access provisions under the CLCA, and, if so, whether any access permits are required.

9.35.35 Notification of Procurement

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  1. The most common obligation is the notification of the procurement to the land claimant group(s). The following information details the Public Works and Government Services (PWGSC) Acquisitions Program procedures for Comprehensive Land Claims Agreements (CLCAs) notification.
  2. Contracting officers must fax or e-mail a copy of a notice describing the procurement to the land claimant group(s) listed for each of the CLCAs that apply to the procurement, as detailed in Annex 9.2 Notification of Procurement to CLCA Claimant Groups, and in accordance with the following paragraphs:
    1. Any notice that will be posted on the Government Electronic Tendering Service (GETS) must be sent to the applicable land claimant group(s) on the date of posting and must indicate that CLCAs apply. This procedure applies to all types of notices, for example:
      1. Notices of Proposed Procurement (NPPs);
      2. Advance Contract Award Notices (ACANs);
      3. Letters of Interest (LOIs);
      4. Price and Availability (P&A) enquiries.
    2. For procurements that will not be posted on GETS, contracting officers must send the applicable land claimant group(s) a notice about the procurement, containing the same information that an NPP, ACAN, LOI, or a P&A enquiry would have contained. In such cases, contracting officers should allow the land claimant group(s) at least 15 calendar days to submit any enquiries before awarding a contract, although the CLCAs do not specify any waiting period.
    3. Contracting officers must notify the applicable land claimant group(s) for all types of solicitation documents, including, but not limited to, the following:
      1. Request for Quotations (RFQs);
      2. Requests for Proposals (RFPs);
      3. Requests for Standing Offers (RFSOs);
      4. Requests for Supply Arrangements (RFSAs);
      5. Solicitations under Supply Arrangements; and
      6. Calls for Proposals.
    4. Notification of the procurement to the land claimant group(s) is not required for individual call-ups against a standing offer. Notification at the RFSO stage is sufficient.

9.35.40 Right of First Refusal

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  1. Dependent upon the requirement, competition for a procurement may be restricted to businesses of the applicable CLCA.
  2. For example, for the Inuit portion of the James Bay and Northern Quebec Agreement, the Agreement Respecting the Implementation of the JBNQA, Annex A (Inuit Employment and Contract Priority), Part II states:
    "8.1 Wherever practicable and consistent with sound procurement management, Canada will first solicit bids from within the Territory."
    WHERE
    "3.11 "Territory" means the area in the province of Quebec north of the 55 th parallel of latitude, as delineated in the JBNQA."
  3. Furthermore, certain agreements contain a "right of first refusal" for the provision of certain commodities, i.e., business opportunities and ventures that are contracted out with respect to Parks and the right of first refusal to any new licenses to carry on economic activities related to wildlife and tourism.
  4. Other agreements make provisions for giving CLCA beneficiaries "first consideration or first priority" in sourcing certain requirements, i.e., silviculture services, management of designated heritage sites, and first consideration in providing technical and support services for contracts related to surveying the land claims settlement area.
  5. Contracting officers with CLCA procurements related to archaeology, forestry, heritage, parks, and/or surveying should seek assistance in accordance with subsection g. of 9.35.1 General Information on Comprehensive Land Claims Agreements.

9.35.45 Evaluation Criteria

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  1. Several Comprehensive Land Claims Agreements (CLCAs) contain provisions requiring the inclusion of socio-economic evaluation criteria in the solicitation document, subject to Canada's international trade agreements (see 9.35.70 International Trade Agreements), and whenever it is practical and consistent with sound procurement management. The purpose of including socio-economic evaluation criteria is to increase the opportunities for CLCA beneficiaries to experience benefits from the procurement such as:
    1. Subcontracting to Land Claim Beneficiary Businesses
    2. Employment opportunities for Land Claim Beneficiaries
    3. Training/skills development for Land Claim Beneficiaries
    4. Existence/establishment of a supplier office location within the CLCA area
  2. The document excerpts in Annex 9.3: Comprehensive Land Claims Agreements Evaluation Criteria specifically detail that consideration of socio-economic evaluation criteria is required for the following CLCAs:
    1. James Bay and Northern Quebec Agreement - Inuit Portion
    2. Inuvialuit Final Agreement
    3. Nunavut Land Claims Agreement
    4. Sahtu Dene and Métis Comprehensive Land Claims Agreement
    5. Tlicho Land Claims Agreement
    6. Nunavik Inuit Land Claims Agreement
    7. Labrador Inuit Land Claims Agreement
    8. Eeyou Marine Region Land Claims Agreement
    In addition, solicitations subject to the Gwich'in Comprehensive Land Claims Agreement should include socio-economic evaluation criteria for the Gwich'in, whenever it is practical and consistent with sound procurement management, and subject to Canada's international trade agreements.
  3. These evaluation criteria can be used as part of the assessment along with price, best value, delivery etc. Proof of efforts and/or commitments made by suppliers should include, but not be limited to, the names of persons or companies contacted and the nature of the undertakings at the time of the submission and as applicable.
  4. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria in a solicitation document, the contracting officer must document the supporting factors leading to this decision on the procurement file, preferably in the Contract Planning and Advance Approval (CPAA) document or procurement plan.
  5. The CLCA evaluation criteria should also be considered in sole source negotiations in order to maximize socio-economic opportunities for CLCA beneficiaries.

9.35.50 Methods of Solicitation

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Contracting officers must use the appropriate method of solicitation, i.e., the Government Electronic Tendering Service (GETS), telephone-buys, source lists, facsimile distribution, newspapers, or a combination of methods. Increased consideration should be given to advertising the procurement opportunity in local newspapers and/or other public venues due to the remoteness of some of the areas.

9.35.55 Solicitation Period

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A longer bidding period should be considered depending on the remoteness of some of the areas.

9.35.60 Business directories or lists

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  1. Under several modern treaties/CLCAs, the land claimant groups have to prepare and maintain lists of modern treaty/CLCA beneficiary firms. The business directories/lists identify the types of the goods and services the firms can furnish.
  2. For procurements posted on GETS, contracting officers should notify the modern treaty/CLCA beneficiary firms listed for the applicable commodities, in accordance with 4.75.35 Contacting Suppliers Directly During the Solicitation Period. For procurements not posted on GETS, contracting officers should use the firm lists to invite modern treaty/CLCA beneficiaries firms to submit a bid/offer/arrangement; this must not restrict the ability of any business, not on the list, to submit a bid/ offer/arrangement.
  3. For a list of Inuit businesses for the James Bay and Northern Quebec Agreement and for the Nunavik Inuit Land Claims Agreement, consult the Makivik Business website.
  4. For a list of Cree businesses for the James Bay and Northern Quebec Agreement, consult the Grand Council of the Crees business directory.
  5. For a list of Naskapi businesses in the Northeastern Quebec Settlement Area, consult the Naskapi Business Directory
  6. For a list of Inuvialuit businesses in the Inuvialuit Settlement Region, consult the Inuvialuit Business List.
  7. For a list of Gwich'in businesses in the Gwich'in Settlement Area, consult the Gwich'in Business Directory.
  8. For a list of Inuit businesses in the Nunavut Settlement Area, consult the Inuit Firm Registry.
  9. For more information on Tlicho businesses, visit the Tlicho Business website.
  10. For a list of Inuit businesses in the Labrador Inuit Settlement Area, consult the Nunatsiavut Government's Business Directory page.
  11. For a list of Kwanlin Dun First Nation businesses, consult the Kwanlin Dun Business Listings website.
  12. For a list of Na-Cho Nyak Dun businesses, consult the Na-Cho Nyak Dun Development Corporation Businesses and Partnerships website.
  13. For a list of Tsawwassen First Nations businesses, consult the Tsawwassen Business Directory website.
  14. For a list of Maa-Nulth First Nations businesses, consult the following Maa-Nulth First Nations business websites:
    1. Huu-ay-aht First Nations
    2. Ka:’yu:’k’t’h’/Che:k’tles7et’h First Nations
    3. Toquaht Nation

9.35.65 Comprehensive Land Claims Agreements and Procurement Strategy for Aboriginal Business

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  1. Comprehensive Land Claims Agreements (CLCAs) must not be confused with the Procurement Strategy for Aboriginal Business (PSAB). For more information on PSAB, see section 9.40 Procurement Strategy for Aboriginal Business.
  2. In certain cases, a procurement subject to CLCA contracting obligations may also be set-aside under PSAB. The procedures for both CLCAs and PSAB set-asides can be applied to the extent that the application of a PSAB set aside does not interfere with CLCA contracting obligations. However, when the two are in conflict, the CLCA contracting obligations take precedence, as further explained below.
  3. If a procurement is subject to a CLCA and that CLCA does not include a right of first refusal, the procurement can be reserved for aboriginal businesses across Canada under PSAB while still addressing the CLCA contracting obligations, including any CLCA evaluation criteria.
  4. The act of setting aside a procurement under PSAB does not, by itself, address the CLCA procurement obligations. The various procurement obligations of the applicable CLCA will still have to be considered.
  5. A solicitation subject to a PSAB set-aside that addresses CLCA evaluation criteria must clearly define what constitutes a CLCA beneficiary to avoid confusion with the definition of "aboriginal business" under PSAB.
  6. If a procurement is reserved for CLCA beneficiaries because of a right of first refusal under that CLCA, the procurement cannot also be set-aside under PSAB. For these situations, the PSAB clauses cannot be used or modified to implement the CLCA right of first refusal. Instead, seek assistance in accordance with paragraph g.i. of section 9.35.1 General Information on Comprehensive Land Claims Agreements.
  7. To help identify sourcing capacity under a PSAB set-aside, refer to 9.40.35 Sourcing of Requirements under Procurement Strategy for Aboriginal Business (PSAB) Set-asides. As with all procurements, every reasonable effort must be made to satisfy operational requirements while obtaining best value and taking into account the principles of prudence, probity and sound contracting management.

9.35.70 International trade agreements

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  1. Canada's free trade agreements pose no impediment to the inclusion of measures for the benefit of Indigenous Peoples and/or businesses in a procurement. This applies to procurement obligations pursuant to Modern Treaties (Comprehensive Land Claims Agreements). For more information on trade agreements, see 1.25.1 International and national trade agreements, 1.25.2 General principles of trade agreements, and 1.25.3 Determining coverage under a trade agreement.
  2. If a set-aside or an exception is made use of or relied upon (e.g. any measure adopted or maintained with respect to Aboriginal peoples, set-aside for minority businesses, etc.), some or all aspects of the procurement may not be subject to certain trade agreement obligations. In such cases, in order to reduce risk, contracting officers should continue to follow the obligations of the trade agreements to the greatest extent possible, deviating only where necessary to serve the purpose(s) for which the exception is being used or the set-aside is being applied.

9.35.75 Canadian Free Trade Agreement

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Under Article 800: Aboriginal Peoples of the Canadian Free Trade Agreement (CFTA), the CFTA does not apply to any measure adopted or maintained with respect to Aboriginal peoples. There are two ways in which the CLCAs and CFTA interact:

  1. If a procurement is reserved for CLCA beneficiaries because of a right of first refusal under that CLCA, then the contracting authority must indicate in the solicitation document and any tender notice that the procurement is set aside from the CFTA. In this case, the entire procurement process is not subject to the CFTA, and the procurement no longer falls under the jurisdiction of the Canadian International Trade Tribunal (CITT). This situation does not eliminate the requirement to comply with the Government Contracts Regulations; and
  2. For a procurement that is subject to the CFTA, but not to any international trade agreements, any measure for Aboriginals, including CLCA evaluation criteria, is not subject to CITT review, although the rest of the procurement process must be conducted in compliance with the CFTA provisions and is reviewable by CITT.

9.35.80 Notices on the Government Electronic Tendering Services

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  1. For procurements subject to CLCAs, contracting officers must insert a statement in the notice on the Government Electronic Tendering Service (GETS), indicating the applicable CLCAs.
    For example, a notice for a procurement that is subject to the Inuvialuit Final Agreement should include the following wording:
    This procurement is subject to the Inuvialuit Final Agreement.
  2. If a CLCA provides its beneficiaries with a right of first refusal for the procurement, and therefore the procurement is reserved for those CLCA beneficiaries, then the contracting officer must insert the following information in the GETS notice:
    "This procurement is reserved for beneficiaries of the following Comprehensive Land Claims Agreement (CLCA): _____(insert the applicable CLCA)) under _____(insert the applicable CLCA chapter, article and paragraph numbers)."
    Instruction to contracting officers: Insert the following sentence, if applicable:
    "This procurement is set aside from all the trade agreements under the provision each has that permits the procurement to be set aside for Aboriginal business."

9.35.85 Solicitations

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  1. Clauses W0001T to W0003D in Subsection 5.W of the Standard Acquisition Clauses and Conditions (SACC) Manual, have been developed for solicitations, contracts and standing offers that involve unspecified final delivery locations within land claims settlement areas.
  2. If a CLCA provides its beneficiaries with a right of first refusal for the procurement, and therefore the procurement is reserved for those CLCA beneficiaries, then the contracting officer must insert clause W0005T at the beginning of the solicitation.
  3. Although additional CLCA clauses are available in Subsection 5.W of the SACC Manual, contracting officers should seek assistance with these clauses in accordance with subsection g. of 9.35.1 General information on Comprehensive Land Claims Agreements.

9.35.90 Standing Offers, Supply Arrangements and As-and-When-Requested Contracts

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  1. Methods of supply such as standing offers (SOs), supply arrangements (SAs), and as-and-when-requested contracts are also affected by Comprehensive Land Claims Agreements (CLCAs) if any of the resulting contracts or tasks may be subject to CLCAs. Therefore, during the procurement planning stage, contracting officers must determine, in consultation with client departments, whether such a method of supply will need to provide for CLCAs. Examining past, present and future needs will help determine a solution that is of mutual benefit to Public Works and Government Services Canada supply divisions and their client departments.
  2. When such a method of supply will need to provide for CLCAs, various options exist:
    1. an instrument that provides for both CLCA areas and non-CLCA areas;
    2. two streams of instruments - one for CLCA areas and one for non-CLCAs; or
    3. multiple streams for various geographic or CLCA areas.
  3. If an instrument will provide for CLCAs, the applicable CLCA procurement obligations must be addressed at the RFSO/RFSA/RFP stage of the instrument. For supply arrangements, the CLCA procurement obligations also have to be addressed when issuing any bid solicitation under the SA that may be subject to CLCAs.
  4. During the planning stage of the method of supply, if it is determined that either no or few resulting contracts or tasks will be subject to CLCAs, then it may be more appropriate to issue an instrument that does not provide for CLCAs. In this case, the contracting officer must include a clear statement in the instrument detailing that deliveries cannot be made and services cannot be performed within CLCA settlement areas under any resulting contract or task authorization. If later on, the client has a specific requirement that is subject to CLCAs, and no instrument exists which addressed the obligations of the applicable CLCAs, that requirement will have to be handled as a new procurement, outside any existing instrument.
  5. Mandatory SOs/SAs: if a client's requirement is subject to CLCA contracting obligations, and no mandatory SO/SA exists which addressed the obligations of the applicable CLCA(s), the client department is exempted from having to use the mandatory SO/SA.
  6. Furthermore, with respect to PSAB, refer to 9.40.35 c.

9.35.91 SELECT

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  1. SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade contractors identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property services procurements up to certain thresholds. SELECT provides a systematic rotation functionality that matches the specifics of the requirement with suppliers having the required expertise that are within a geographic range. Depending on the requirement, a supplier may be given the opportunity to accept or decline the work, or multiple suppliers may be given the opportunity to compete the requirement.
  2. As the procurement obligations of Comprehensive Land Claims Agreements (CLCAs) are not addressed at the pre-approval stage within SELECT, they must be addressed at the solicitation stage. Therefore when it is determined that a requirement is subject to CLCAs, and the commodity is subject to the use of SELECT, contracting officers must choose from the following options:
    1. Not use SELECT and proceed with the requirement following the process explained in section 9.35 Comprehensive Land Claims Agreements (CLCAs). The procurement file should be documented to state that SELECT was not used as it does not address the CLCA procurement obligations at the pre-approval stage.
      or
    2. Use SELECT, refer to section 9.35 Comprehensive Land Claims Agreements (CLCAs), and follow the more tailored process described below:
      1. Requirements Definition: follow the procedures detailed in section 9.35.25 Requirements Definition.
      2. Access to Aboriginal-Owned Lands: follow the procedures detailed in section 9.35.30 Access to Aboriginal-owned Lands.
      3. Inviting Suppliers to Bid: Invite bids from the list of firms generated by SELECT and the CLCA beneficiary firm(s) listed for the applicable commodities. See section 9.35.60 Business Directories/Lists for CLCA beneficiary firm lists and for additional instructions.
      4. Notification of Procurement: In accordance with section 9.35.35 Notification of Procurement, provide notification to the claimant group(s) on the same day that the solicitation is issued. The following information should also be included in the notification to the claimant group(s):
        "This procurement is subject to the ______________________ {indicate the applicable CLCAs}.
        The source list for this solicitation, which is a list of pre-approved suppliers, was generated using SELECT. Suppliers that are beneficiaries of the ______________________ {indicate the applicable CLCAs} are also encouraged to bid.
        A copy of the solicitation can be obtained by contacting ______________________ {indicate the contracting officer’s name} at ______________________ {indicate telephone and e-mail address}.
        SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade suppliers identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property contracting opportunities.
        Firms can register at anytime by contacting the PWGSC support team at BASA-ASSD@tpsgc-pwgsc.gc.ca or calling at 1-800-811-1148. In addition, firms can register through the SELECT registration website."
      5. Bid Evaluation Criteria: Follow the procedures described in section 9.35.45 Evaluation Criteria. Whenever practical and consistent with sound procurement management, include the CLCA evaluation criteria in the solicitation document. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria, the contracting officer must document the supporting factors leading to this decision on the procurement file.
      6. Clause: The contracting officer must include the following clause in the solicitation document and resulting contract.
        "This procurement is subject to the following Comprehensive Land Claims Agreement(s) ______________________ {indicate the applicable CLCAs}."
      7. Procurement Reporting: Follow the procedures described in section 9.35.95 Procurement Reporting for Comprehensive Land Claims Agreements to ensure that reporting on contracts subject to CLCAs is done accurately.

9.35.95 Procurement Reporting for Comprehensive Land Claims Agreements

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Contracting officers must ensure that reporting on procurements subject to Comprehensive Land Claims Agreements is done accurately, in accordance with section 7.30.15 Comprehensive Land Claims Agreements Reporting.