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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