Summary of contract

• Negotiation, representation, and other relevant context

  The parties to this agreement are the Lower Similkameen Indian Band and the Upper Similkameen Indian Band, each one represented by its Chief and Council (the communities), and the Queen in right of British Columbia represented by the Minister of Aboriginal Relations and Reconciliation (the government). The communities and the government have different views about the sovereignty, title, ownership and jurisdiction over the Similkameen watershed. The communities say it is a part of Smilqmix territory and the government says that it is government land, subject to certain private rights and interests. Despite these different viewpoints, the communities and the government are committed to working together in a collaborative and respectful way (Recitals F and G). The communities and the government have a shared commitment to developing an effective long-term working relationship that includes sharing mineral tax revenues from the project (Recital B). The purposes of this agreement are to: (a) confirm how the communities and the government will meet their respective consultation obligations, including the government’s obligations to accommodate the communities in relation to the project’s potential adverse impact on Aboriginal interests, (b) provide the communities with project payments to finance activities that enhance the well-being of the communities, (c) create a fair and equitable share in mining resources revenues (Art. 2.1(a)). The agreement uses terms in the Okanagan language that are defined in Article 1. The communities acknowledge that they obtained or had the opportunity to obtain, financial, legal, tax, and other advice with respect to the agreement (art. 13.1). The communities agree that the government has fulfilled its obligations to consult and accommodate them prior to this agreement; they community agrees not to bring or continue a proceeding against the government relating to these obligations. The communities also agree not to block the government or a mine operator from gaining access to the project (Art. 6). Appendices A, B and C contain maps of the communities’ territory and the mine.

• Governance, implementation, dispute resolution

  The government must consult with the communities in relation to any proposed government action, which may adversely impact community interests (Art. 5(a), Appendix D, Art. 4). The communities and the government must review the adequacy of the consultation process every year (Art 5(c)). The agreement includes a detailed consultation process and establishes timelines, procedures and levels of consultation depending on the impact of proposed government actions (Appendix D). If the government fails to make a project payment to the communities, and there is no dispute about the amount owing, the communities will have the right to terminate the agreement (Art. 11.2). If the communities disagree with the amount of a project payment, they can notify the government of the disagreement. Both parties must meet as soon as practicable to discuss the matter. Following the meeting, if the communities and the government continue to disagree, they can submit the dispute to an independent body or to an agreed-upon individual to provide an independent non-binding opinion. The government will then review the matter and take any action required to remedy the dispute (Art. 3.9). For all other disputes, a party must give written notice of the dispute to the other party (Art. 15.3). Within 10 working days of providing notice, the communities and the government must meet and attempt to resolve the dispute through unassisted collaborative negotiation and the communities and the government may use a traditional conflict resolution process called Enowkinwixw (Arts. 14.1, 15.5, Appendix E). The communities and the government must attempt confidential mediation before they can commence court proceedings in relation to a dispute (Art. 15.7). The communities and the government may agree to change the procedures for dispute resolution (Art. 15.6). If the communities and the government are unable to resolve a dispute through mediation, the communities and the government can agree to refer the dispute to arbitration for resolution (Art. 15.9). If they do not agree to arbitration, then either the communities or the government can seek to resolve the dispute in court (Art. 15.10). The communities and the government may provide written notice requesting a meeting to review and amend the agreement and will meet within 30 days (Art. 9).

• Fiscal obligations: content

  The communities will receive 35% of the net mineral tax revenue each year (Art. 3.1(a)). Net mineral tax revenue is the total amount of tax, penalty and interest paid by a mine operator under the Mineral Tax Act in respect of the project, less the total amount of tax, penalty and interest refunded and paid to the mine operator under the Mineral Tax Act, not including any reclamation tax credits paid or refunded to the mine operator (Art. 1). If: (i) the payment is positive, (ii) the communities have complied with their obligations relating to financial reporting, payment accounts and statements of community priorities, and (iii) the communities have not given notice that they will not accept a project payment, the government will pay the required amount to the communities within 150 days after the fiscal year has ended (Art. 3.2(b)). The government will deposit the payments in bank accounts of the communities used for the sole purpose of receiving payments under the agreement (Art. 3.5). If the communities accept a payment, the government is released from all causes of action and claims relating to the government’s obligation to consult and accommodate the communities or to demands for funding or other payments arising during the fiscal year to which the payment applies (Art. 7). The government may suspend the payments if the communities are in material breach of the agreement (Art. 12). The government will notify the communities if it makes any significant changes to the Mineral Tax Act. If the changes would significantly reduce the amount of the project payment the communities are entitled to receive under the agreement, the communities and the government will negotiate and attempt to reach an agreement about alternative mine revenue sharing opportunities. (Arts. 3.4(a) and (b)).

• Community development obligations: Infrastructure and social services

  The communities will use the project payments for community initiatives that the communities and the councils designate as priorities for socio-economic development, such as initiatives related to education, culture, housing, infrastructure, health, economic development and governance capacity. The communities are not required to use all of the payment in a given year and may use the outstanding balance for future initiatives (Art. 3.6). By 28/03/2014, the communities must prepare a statement identifying community priorities and outline goals and outcomes they intend to achieve over the next 3 years (Art. 4(a)). Within 90 days of the end of each tax year, each community must update this statement and include a section on how the funds have helped the communities achieve their priorities (Art. 4(b)). The communities will maintain financial records of the payments and will provide the government with an annual report of expenditures and audited financial statements (Art. 4).

• Environmental and social protection

  Nothing in the agreement affects the government’s responsibility to respond to any environmental emergencies caused by the project (Art. 17.6).

• Transparency or confidentiality

  The communities must keep confidential information marked “confidential” by the government, including payment statements and information relating to tax payments (Art 3.7(a)). However, they can disclose such confidential information to their advisors provided the advisors agree to keep the information confidential (Art. 3.7(b)). The communities have the right to disclose the amount of a project payment to their members each year (Art. 3.7(d)).