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 - February 2, 1992

1.0 DEFINITIONS

Inuvialuit

Means those people known as Inuvialuit who are beneficiaries under the Inuvialuit Final Agreement and, where the context requires, includes the Inuvialuit Regional Corporation, the Inuvialuit Development Corporation, the Inuvialuit Investment Corporation, the Inuvialuit community corporations and any other corporations or trusts controlled by the Inuvialuit that may be established by or pursuant to the Final Agreement and for the purposes of the Co-operation Agreement are represented by the Chairman of the Inuvialuit Regional Corporation (IRC).

Inuvialuit Settlement Region (ISR)

Means that portion of the Northwest Territories, Yukon Territory and adjacent offshore area shown in Annex A and described in Annex A-1 of the Inuvialuit Final Agreement.

2.0 GENERAL

2.1 Precedents

This Co-operation Agreement specifically relates to co-operation between DND, represented by DNWSO, and the Inuvialuit, represented by the IRC, for O&M of NWS and other NWS related activities, occurring within the ISR. The military establishments which are within the ISR are as follows:

This Agreement is not to be construed as a precedent for other federal government or military activities in the ISR; nor is it a precedent for such activities occurring outside the ISR.

Nothing in this Agreement is intended to restrict the Minister of National Defence from exercising his authority in relation to the defence of Canada pursuant to the National Defence Act or international agreements.

3.0 IMPLEMENTATION

3.1 Contractual Mechanism

For NWS O&M activities within the ISR, DSS, the NWS O&M Contractor, Contractors, and Subcontractors will comply with this Agreement by inserting appropriate conditions in all Request for Proposals, bid invitations and bid solicitations and in any resulting contracts where applicable.

All access to Inuvialuit lands for the purposes of Work in the ISR by DND, the O&M Contractor, and its subcontractors, and any other NWS contractor, will be subject to the IFA, and the Rules where they are not inconsistent with the IFA and enabling legislation. The IRC shall provide DND with six months notice of any change in the Rule which impacts on the NSW or this Agreement.

3.3 Arbitration

The Inuvialuit and DND shall attempt to resolve any differences without recourse to third parties. However, should circumstances require arbitration the following procedures will apply:

  1. If the Inuvialuit and DND cannot agree on any question of fact (as opposed to a question of law or mixed law and fact) related to the interpretation, implementation , or operation of this Agreement, either Party can submit the disagreement to a determination by arbitration, in accordance with the procedures set out below.
  2. The Arbitration proceedings shall be held in a location agreed upon by the Parties.
  3. Within ten (10) days of a written demand of either Party to refer a dispute to arbitration under the provisions of paragraph 3.3a above, each Party shall name an arbitrator. The arbitrators shall then choose a third arbitrator who shall chair the Board. If the two arbitrators fail within ten (10) days from the date the last arbitrator was appointed to agree upon and appoint the third arbitrator, then upon written application by either Party such third independent arbitrator shall be appointed by a Judge of the Supreme Court of the Northwest Territories.
  4. The Arbitration Board's procedures shall be determined by the Parties to the arbitration, subject to the following:
    1. Unless the Parties to the arbitration otherwise agree, the procedure shall assure a right to at least one oral hearing before the Board said hearing to be held within 60 days of the Board being fully constituted under the provisions of the paragraph 3.3d(1) above, as well as the opportunity to provide written submissions and rebuttal arguments.
    2. Unless the Parties to the arbitration otherwise agree, the Board shall have jurisdiction to decide whether any Interested Party shall be invited or allowed to participate in the arbitration and if so what the rights and obligations of any such Interested Party shall be with respect to the participation of said Interested Party in the arbitration process.
      3)
      4) Unless the Parties to the arbitration otherwise agree, the Board shall render a decision within thirty (30) days after the hearing or within such other period of time agreed to by the Parties to the arbitration. The Board's decision shall be based on the provision of the IFA and its implementing legislation as amended, this Agreement, all applicable Acts and Regulations, and on the arguments and submissions of the Parties. The decision shall be in writing and shall state the reasons on which it is based.
    3. Unless the Parties to the arbitration otherwise agree, the Board's decision shall be final and binding on all Parties to the arbitration. However, any error of law and/or excess of jurisdiction on the part of the Board shall be subject to judicial review.
    4. Unless the Parties to the arbitration otherwise agree, the proceedings as well as the report of the board shall be made public.
  5. Each party reserves the right to resort to the courts in the case of a dispute over law or mixed law and fact.
  6. Each party shall provide for remuneration and expenses of the arbitrator appointed by it. Each Party is responsible for their own costs in preparing for and including the costs of their witnesses and attending arbitration hearings. All other costs shall be equally shared by the Parties to this Agreement.

4.0 OPPORTUNITIES AND COMMITMENTS

In accordance with existing laws, regulations, and federal government procurement policies, the following reasonable measures to encourage Inuvialuit participation, with respect to contracts awarded for Work within the ISR, will be taken.

4.1 The reasonable measures set out in this clause shall include the inclusion of appropriate contract clauses in future O&M contracts for work in the ISR binding Contractors to also take reasonable measures to encourage Inuvialuit participation.

4.2 Business Opportunities and Procedures

For the purposes of this subsection, Inuvialuit are defined as per subsection 16.1 of the IFA.

  1. It is agreed that DND and the IRC shall use their best efforts to identify, and advise the Inuvialuit of, actual and potential business opportunities arising out of O&M activities in the ISR, and to facilitate Inuvialuit involvement in such activities in the ISR, and to facilitate Inuvialuit involvement in such activities by following the procedures set out in this subsection.
  2. The IRC shall prepare, maintain and provide to DND, at least once per year, a complete list of Inuvialuit businesses which could provide services to DND, the O&M Contractor or Subcontractors. Such list shall contain a brief description of the equipment or services provided by the business, the business experience, address and contact name.
  3. Where a substantial portion (i.e. more than 50 percent) of the work in a Contract is within the ISR NWS O&M Contractors and Subcontractors will first solicit bids from qualified businesses on the list of Inuvialuit firms provided by the IRC pursuant to paragraph 4.2b. This process shall not limit other qualified Inuvialuit firms from bidding as well. At the same time, solicitation documents shall also be provided to the IRC. DND, DSS, and its O&M Contractors shall be held blameless if qualified Inuvialuit businesses were not solicited because their name did not appear on the list provided by the IRC. Based on demonstrated performance, Inuvialuit businesses may be added or deleted form the list.
  4. Contracts will be executed with a business(es) that offers compliant and competitive bids within the time specified in the solicitation documents. Except in the cases of emergency or when the operation of the NWS site(s) could be interrupted, not less than ten days shall be provided for a bid response from the date solicitation documents are issued. The O&M Contractors shall determine whether a bid is compliant and competitive and this decision is not subject to arbitration procedures under section 3 of this Agreement. However, if the O&M Contractor repeatedly determines that Inuvialuit bids are non-compliant in a conscious effort to subvert the objectives of this Agreement, the IRC shall have recourse to the Review Committee and if necessary Section 3 of this Agreement.
  5. If a contract is not awarded pursuant to a solicitation within the ISR the Work shall be tendered in accordance with the NWS O&M Contractor's or Subcontractor's policy.
  6. For any bid, solicitation or invitation for Work outside the ISR, Inuvialuit businesses shall qualify for the current NWS O&M Contractor's northern preference policy as set out in the O&M contract of the NWS.
  7. If the above procedures have not been followed, or an Inuvialuit business' offer has not been accepted, the Inuvialuit business may request, and shall receive within 30 days, a written explanation setting out the reasons why the offer was not accepted. Subject to prior approval by the Inuvialuit business, a copy of the explanation shall be provided to the IRC.
  8. NWS O&M Contractor's compliance with this subsection is subject to Inuvialuit businesses meeting the requirements identified in the solicitation documents and competitive with respect to cost.

4.3 Specific Business Opportunities

The following specific business opportunities for the provision of services associated with Work within the ISR shall be provided through the NWS O&M Contractor or Subcontractors:

  1. Aklak Air will have the first opportunity to bid on all contracts for personnel and freight transportation services by fixed wing aircraft for flights originating and terminating in the ISR;

  2. NTCL shall have the first opportunity to bid on all contracts for marine transportation and barging services of equipment, materials and supplies.

    Except in cases of emergency or when the operation of NWS site(s) could be interrupted, these companies shall be provided with not less than ten days for a bid response from the date of issue of the solicitation documents. Contracts shall be issued if the bids are technically compliant and based on the lower of published tariffs or most favoured customer rates. As existing contracts expire, renewals or new contracts shall be concluded in accordance with this subsection.

  3. Pursuant to the IFA, the NWS O&M Contractor shall obtain gravel from the Inuvialuit for all sites on Inuvialuit Lands (i.e. Cape Parry, Nicholson Peninsula, Horton River, Liverpool Bay, and Keats Point). The specific gravel requirements shall be determined by the NWS O&M Contractor or Subcontractor. The Inuvialuit shall provide the required granular material from the nearest appropriate location or locations consistent with satisfying environmental and cost minimisation criteria. All other gravel contracts shall be tendered pursuant to section 4.2 of his agreement.

  4. Beginning in April 1985, or earlier if the opportunity arises, Stanton Distributing shall have the first opportunity to bid on all contracts for services relating to the supply of groceries, foodstuff, and catering with respect to temporary or permanent camp facilities in the ISR. Contracts will be issued provided that Stanton Distributing meets the requirements identified in the solicitation documents and its bid is competitive. Except in cases of emergency or when the operation of NWS site(s) could be interrupted, Stanton Distributing shall be provided with no less than ten days for a bid response from the date of issue of the solicitation documents.

6.0 MISCELLANEOUS

6.4 Notices

  1. Where any Party is obliged or entitled to give any notice, request, approval, demand, consent, direction or other communication (hereinafter collectively called "Notice") to the other Party, such Party shall first communicate the substance thereof personally or by telephone, as expeditiously as possible, but Notice shall not be sufficiently given until sent in writing to the addressees at the address below. Any Notice may be delivered personally or sent by registered mail, telegram, telecopier or telex and will be effective upon receipt by the addressee. If any disruption or impairment of postal service exists or is threatened, Notice shall be sent by telegram, telecopier or telex, or otherwise delivered in writing.
  2. Notices to DND shall be sent to:

    Director, North Warning System Office
    National Defence Headquarters
    101 Colonel By Drive
    Ottawa, Canada K1A 0K2

  3. Notices to the IRC shall be sent to:

    Chairman
    Inuvialuit Regional Corporation
    Bob 2120
    Inuvik NW X0E 0T0

 

Date modified: