INUIT IMPACT AND BENEFIT AGREEMENTS
In this Article:
"capital costs" shall consist of expenditures for designing, procuring, constructing and installing all buildings, housing, machinery and equipment and infrastructure associated with a project, including any such costs incurred outside of the Nunavut Settlement Area in relation to the project; but shall not include financing costs;
"Crown corporation" means those Crown corporations that are not subject to Article 24;
"infrastructure" shall be considered as any transportation facilities directly in support of a project, such as a marine port, airport, road, railway, pipeline or power transmission line;
"Major Development Project" means any Crown corporation or private sector project that
is a water power generation or water exploitation project in the NunavutSettlement Area, or
is a project involving development or exploitation, but not exploration, of resources wholly or partly under Inuit Owned Lands,
and either entails, within the Nunavut Settlement Area during any five-year period, more than 200 person years of employment, or entails capital costs in excess of thirty-five million dollars ($35,000,000), in constant 1986 dollars, including, where Government is the proponent for a portion of a development project or directly- related infrastructure, the capital costs and employment projections for the government portion of the project;
""parties"" means parties to an IIBA or negotiations leading thereto.
OBLIGATION TO FINALIZE
Subject to Sections 26.11.1 to 26.11.3, no Major Development Project may commence until an IIBA is finalized in accordance with this Article.
PARAMETERS FOR NEGOTIATION AND ARBITRATION
An IIBA may include any matter connected with the Major Development Project that could have a detrimental impact on Inuit or that could reasonably confer a benefit on Inuit, on a Nunavut Settlement Area-wide, regional or local basis. Without limiting the generality of the foregoing, the matters identified in Schedule26-1 shall be considered appropriate for negotiation and inclusion within an IIBA.
An IIBA shall be consistent with the terms and conditions of project approval, including those terms and conditions established pursuant to any ecosystemic and socio-economic impact review.
Negotiation and arbitration of IIBAs shall be guided by the following principles:
benefits shall be consistent with and promote Inuit cultural goals;
benefits shall contribute to achieving and maintaining a standard of living among Inuit equal to that of persons other than Inuit living and working in the Nunavut Settlement Area, and to Canadians in general;
benefits shall be related to the nature, scale and cost of the project as well as its direct and indirect impacts on Inuit;
benefits shall not place an excessive burden on the proponent and undermine the viability of the project; and
benefit agreements shall not prejudice the ability of other residents of the Nunavut Settlement Area to obtain benefits from major projects in the Nunavut Settlement Area.
26.4.1 - Commencement
At least 180 days prior to the proposed start-up date of any Major Development Project, the DIO and the proponent, unless they otherwise agree, will commence negotiations, in good faith, for the purpose of concluding an IIBA.
26.4.2 - Written Contract
Where the proponent and the DIO agree on the contents of an IIBA, the agreement shall be written in the form of a contract. Once agreement has been reached, the parties shall send a copy to the Minister.
At any time during the negotiations, the DIO and the proponent may submit any or all questions relating to the content of an IIBA to an arbitrator, in those cases where they can agree on the scope of the questions to be submitted and the identity of the arbitrator.
Where the parties reach agreement through voluntary arbitration, the agreement shall be written in the form of a contract and a copy sent to the Minister.
26.6.1 - Application to Minister
Where full agreement has not been reached, within 60 days after negotiation has been commenced, and where the DIO and the proponent are not engaged in voluntary arbitration, either party may apply to the Minister for the appointment of an arbitrator. The scope of the arbitration shall include the full range of benefits possible in an IIBA, unless the parties agree the range should be restricted.
26.6.2 - Obligation to Negotiate in Good Faith
In the event that a proponent or the DIO consider that the other party is not negotiating in good faith during the initial 60 days negotiation period referred to in Section 26.6.1, that party may immediately apply to the Minister for the appointment of an arbitrator.The arbitrator shall, within seven days of appointment, determine the validity of the allegation of bad faith. If the arbitrator upholds the allegation, the arbitrator shall proceed immediately in accordance with Section 26.6.4.
26.6.3 - Appointment of Arbitrator
Within 15 days of an application to the Minister for the appointment of an arbitrator, an arbitrator shall be appointed with the approval of the parties negotiating the IIBA.If the parties cannot agree on the appointment of an arbitrator, the arbitrator shall be appointed by the Minister from a standing list of arbitrators which has been approved jointly by the DIO and by those industry organizations determined by Government to be relevant.
26.6.4 - Decision of Arbitrator
An arbitrator, within 60 days of his or her appointment, or within 60 days of upholding an allegation of bad faith, shall:
ascertain the views and proposals of both the DIO and the proponent;
submit a decision in the form of a contract to the parties; and
send a copy of the decision to the Minister.
Costs of the arbitrator and the parties shall be borne equally by the parties, unless otherwise determined by the arbitrator. Costs of the DIO incurred in arbitration dealing with compensation pursuant to Section 26.11.4 shall be borne by the proponent of the Major Development Project, unless otherwise determined by the arbitrator.
EXTENSIONS OF TIME
The parties negotiating an IIBA may agree to waive any of the time periods referred to in Parts 4 and 6, and the arbitrator may apply to the Minister for an extension of the time provided for in Section 26.6.4.
COMING INTO EFFECT
An IIBA shall take effect 30 days after its receipt by the Minister unless the Minister has determined within that time that the IIBA does not conform to the provisions of Section 26.3.2 or the principles of Subsections 26.3.3(a) to (e), or that, with respect to an IIBA pursuant to Parts 5 or 6, an arbitrator has exceeded the arbitrator's jurisdiction.
If the Minister makes a determination pursuant to Section 26.8.1, the Minister shall provide written reasons and may provide direction for achieving conformity or remedying the excess of jurisdiction.
The parties with respect to a negotiated agreement, and the arbitrator with respect to an arbitrated agreement, shall take into account the Minister's reasons and revise the IIBA implementing any direction by the Minister to achieve conformity or to remedy the excess of jurisdiction.
The parties with respect to a negotiated agreement, and the arbitrator with respect to an arbitrated decision, shall submit the revised IIBA to the Minister and the parties within seven days of receipt of the Minister's written reasons.
The revised IIBA shall take effect seven days after its receipt by the Minister.
An IIBA may be enforced by either party in accordance with the common law of contract. The parties may negotiate liquidated damages clauses for the eventuality of default and such a clause, however phrased, shall not be construed as constituting a penalty.In any deliberation as to the remedy of specific performance, due regard shall be given at all times to the desirability of protecting Inuit lifestyle and culture and providing Inuit with opportunities for economic advancement.
The negotiation and conclusion of an IIBA shall be without prejudice to the participation by the DIO, any other Inuit organization, and any Inuit in any hearings or other proceedings of NIRB, the National Energy Board, or any other administrative agency, or to the enforcement or contesting of any decision or order of such agency.
Except where otherwise agreed by the proponent and the DIO, an IIBA shall provide for its renegotiation.
26.11.1 - Agreement Not Required
The DIO and the proponent of a Major Development Project may agree that anIIBA is not required.
26.11.2 - Military or National Emergency
In cases of military or national emergency, the Minister may allow commencement of a Major Development Project prior to the conclusion of an IIBA.
26.11.3 - Early Project Start-up
If, once negotiations have begun on an IIBA, the proponent finds it necessary for the project to start sooner than the projected start-up date, the Minister may, if the project has received approval from the appropriate agencies, authorize the project to commence:
if the parties agree; or
if the delay would jeopardize the project.
Where the Minister proposes to exercise this authority, the Minister shall consult with the parties and, where one has been appointed, the arbitrator.
If, pursuant to Section 26.11.2 or 26.11.3, a Major Development Project commences prior to an IIBA being concluded, the arbitrator shall ensure that benefits received by Inuit shall include compensation, which may be in the form of replacement benefits, for the benefits lost through the early commencement of the Major Development Project.
26.11.5 - Other Government Requirements
Where an IIBA has been concluded which is at least equal to government requirements respecting the mitigation of impacts or provision of benefits for aboriginal peoples, Government may accept the IIBA as sufficient to satisfy those requirements.
MATTERS CONSIDERED APPROPRIATE FOR INUIT BENEFITS
Inuit training at all levels.
Inuit preferential hiring.
Employment rotation reflecting Inuit needs and preferences.
Business opportunities for Inuit including:
(a) provision of seed capital;
(b) provision of expert advice;
(c) notification of business opportunities;
(d) preferential contracting practices.
Housing, accommodation and recreation.
Safety, health and hygiene.
Language of workplace.
Identification, protection and conservation of archaeological sites and specimens.
Research and development.
Inuit access to facilities constructed for the project such as airfields and roads.
Particularly important Inuit environmental concerns and disruption of wildlife, including wildlife disruption compensation schemes.
Information flow and interpretation, including liaison between Inuit and proponent regarding project management and Inuit participation and concerns.
Relationship to prior and subsequent agreements.
Co-ordination with other developments.
Arbitration and amendment provisions.
Implementation and enforceability, including performance bonds and liquidated damages clauses.
Obligations of subcontractors.
Any other matters that the Parties consider to be relevant to the needs of the project and Inuit.