MUTUAL BENEFITS AGREEMENT WITH KINDER MORGAN CANADA Summary
EMPLOYMENT & TRAINING FINANCIAL COMPENSATION
BUSINESS OPPORTUNITIES
Over 20 years, Shxw’ōwhámel will receive funds for the Nation to allocate, as well as funding for things like scholarships, jobs training and emergency response.
Kinder Morgan and Shxw’ōwhámel will discuss contract opportunities for onsite medical personnel, construction, and land and tree removal services among other service areas.
IMPLEMENTATION COMMITTEE
A four person committee will be created with 2 Shxw’ōwhámel members to ensure that both Kinder Morgan and Shxw’ōwhámel comply with the Mutual Benefits Agreement.
Kinder Morgan and Shxw’ōwhámel have outlined clauses that will help minimize the footprint of the pipeline in the Traditional Territory.
SHXW’ŌWHÁMEL RIGHTS
PIPELINE CLOSURE
The potential agreement has clauses in place about who will be responsible for the pipeline should it close or be abandoned.
EMERGENCY RESPONSE PLAN / INSURANCE
ENVIRONMENTAL LAWS & MONITORING
Kinder Morgan will fund equipment and training for emergency response and community safety, as well as insurance to cover potential damage.
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To get members qualified, Kinder Morgan will provide funding to help members get the appropriate skills and training needed, as well as 5 years of education and scholarship funding.
The potential agreement states that Kinder Morgan respects and acknowledges that Shxw’ōwhámel exercises Aboriginal rights, including Aboriginal title.
ROUTING & TENURE / ROUTING & ACCESS Shxw’ōwhámel wants to make sure it is not restricted in its land use, including potential economic development, above the pipeline easement.
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The proposed Mutual Benefits Agreement (“MBA”) with Kinder Morgan Canada (“Kinder Morgan”) has been negotiated over the past year with Si:yam Council to address the expansion of the existing Trans Mountain Pipeline System (the “Expansion”). The MBA is divided into 18 Articles and includes a Traditional Territory appendix and a letter of support to be sent to the National Energy Board.
DEFINITIONS Article 1 Article 1 defines the various terms that are used throughout the MBA. Some of the more important terms within the MBA are: •
“ Commercially Reasonable Efforts” means efforts in accordance with reasonable commercial practice and without the incurrence of unreasonable expense (including payment of fees or other compensation to any Person) unless expressly provided for in an existing contractual commitment, other than a governmental entity.
•
“ Shxw’ōwhámel Rights” means all inherent rights including Aboriginal title, pursuant to section 35(1) of the Constitution Act, 1982 and any other constitutional rights held by Shxw’ōwhámel with respect to the Traditional Territory and Reserve.
•
“ Significant Sites” includes, but is not limited to, the following sites of cultural significance: burial or grave sites, sacred sites, spiritual sites, places of legends, historical villages, cabins, meeting places, trading places, trails, fishing sites/camps, forage gathering sites, preferred hunting sites, flint gathering sites, ochre sites, obsidian or blade sites, medicinal plant gathering, hot springs/therapeutic, healing sites, sacred plants/animal sites, archaeological sites, paleontological sites, important landmarks, battlegrounds and other significant sites as identified within the Traditional Land Use Study or as may be identified from time to time by Si:yam Council.
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Shxw’ōwhámel SUPPORT FOR EXPANSION Article 2 In Article 2 of the MBA, Shxw’ōwhámel First Nation (“Shxw’ōwhámel”)Shxw’ōwhámel expresses its support for the Expansion and agrees to allow Kinder Morgan to route the Expansion within the existing Right of Way through Shxw’ōwhámel Shxw’ōwhámel’s Reserve. Shxw’ōwhámel must also notify the National Energy Board of its support (by filing a letter attached to the MBA) and withdraw any objection to the Expansion. Shxw’ōwhámel also may not: •
Object to any activity that would impact the development or operation of the Expansion
•
Object to any approval needed for the Expansion
•
Use lack of Crown consultation to challenge the Expansion
•
upport any action by Shxw’ōwhámel Members to challenge the Expansion and will communicate S if necessary, that any opposition actions by Shxw’ōwhámel Members are not on behalf of Shxw’ōwhámel
Shxw’ōwhámel maintains the right to: •
econsider its support if Kinder Morgan’s application to the National Energy Board is greatly changed R in way that has negative effects on Shxw’ōwhámel rights
•
aise valid and reasonable environmental concerns and any concerns about effects on Shxw’ōwhámel R rights in any approval processes (including the National Energy Board) so long as it is consistent with Shxw’ōwhámel’s support for the Expansion
•
Enforce any condition that a governmental approval requires of Kinder Morgan
Article 2 also makes it clear that the MBA cannot be considered part of Crown consultation but Shxw’ōwhámel is required to participate in any Crown consultation in a timely manner.
Shxw’ōwhámel First Nation must also notify the National Energy Board of its support and withdraw any objection to the expansion Shxw’ōwhámel First Nation maintains the right to raise valid and reasonable environmental concerns
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FINANCIAL COMPENSATION Article 3 If the Expansion moves forward, Shxw’ōwhámel will receive funds initially (25% of total funds) and in payments throughout the 20-year contract (the remaining 75%). Shxw’ōwhámel council, with consultation from Shxw’ōwhámel members, will determine how to spend initial funds if there is a yes vote. Payments over the 20-year period will cover: •
5 years of scholarship funding
•
5 years of education funding
•
Funding to prepare a cumulative effects assessment and implementing the assessment
•
Employment and training support
•
years of funding during the construction of the Expansion for Shxw’ōwhámel members to take 3 advantage of employment opportunities
•
Funding for Shxw’ōwhámel to review archaeological reports to protect the pit house site
•
Funding for Shxw’ōwhámel emergency response feasibility study and capacity building
•
Funding for emergency response training
ROUTING AND TENURE Article 4 In order to route the Expansion through Shxw’ōwhámel’s Reserve, Kinder Morgan and Trans Mountain Pipeline (together referred to as KMC) will require tenure from Shxw’ōwhámel and Canada. This Article sets out the requirement for Shxw’ōwhámel to cooperate in KMC obtaining this tenure and to also allow for temporary workspace on the Reserve during the construction of the Expansion. This Article was a topic of debate because Shxw’ōwhámel wanted to make sure it was not restricted in its land use, including potential economic development, above the pipeline easement. The other core concernShxw’ōwhámel has is further destruction and disturbance of the pit houses site The original Trans Mountain pipeline destroyed a number of pit houses and the expansion of the pipeline may cause further permanent damage.
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SPECIFIC ROUTING AND ACCESS Article 5 This Article addresses the key sensitivity on three identified sites: 1.
Pit houses
2.
Hunter Creek caves
3.
Bridal Falls cultural sites
KMC has agreed to specifically perform a “lidar” survey of the pit house site and provide funding for a Shxw’ōwhámel conducted archaeological review of the site before attempting an underground “trenchless” pipe under the existing pipeline. Whether or not the pit house site can be adequately protected has been a key issue throughout the MBA negotiations. This Article identifies a procedure to be followed for any significant site found. KMC will stop all work, notify Shxw’ōwhámel; keep the site location confidential and then consult Shxw’ōwhámel. Another important sectionrelates to access. KMC has the right to deny Shxw’ōwhámel Members access to our own Territory even for our own traditional pursuits. The easement provides KMC with substantive land rights in our Territory.
5 years of scholarship funding and 5 years of education funding. The original Trans Mountain pipeline destroyed a number of pit houses and the expansion of the pipeline may cause further permanent damage.
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BUSINESS OPPORTUNITIES Article 6 This Article speaks to the economic heart of opportunities. The title summarizes it all. There are many business “opportunities” identified but only two guaranteed direct awards. KMC would also not agree to set out the scope or value of the two direct award contracts so this will be an item to be negotiated after the MBA is concluded. The key section of the Article sets out that Shxw’ōwhámel and KMC will discuss contracts in the following areas: •
On-site emergency medical services
•
Sand and gravel supply and hauling services
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Land and tree clearing and removal services
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Waste removal services
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Site security services
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Facility construction services
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Hydraulic excavation services (hydrovac)
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Road construction services
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Reclamation and environmental remediation services
If Shxw’ōwhámel contractors qualify, there will be direct awards negotiated between Shxw’ōwhámel and KMC. If Shxw’ōwhámel contractors cannot qualify for any of the above or other contract areas, then Shxw’ōwhámel contractors will receive no contracts. There are two processes to successfully be awarded contracts: (1) direct awards and (2) select tenders. In both processes, Shxw’ōwhámel contractors must meet KMC’s established criteria. Such criteria includes: (a) Works Compensation registration; (b) health and safety performance reports; (c) contractor experience and qualifications record; (d) previous work reports; and (e) list of Aboriginal employees and hiring practices.
EMPLOYMENTS AND TRAINING Article 7 KMC has agreed to make “Commercially Reasonable Efforts” to employ a minimum of 35 members as long as they are qualified. To get members qualified, KMC will provide funding to help members get the appropriate skills and training needed, as well as 5 years of education and scholarship funding.
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EMERGENCY RESPONSE PLAN Article 8 KMC commits to consult, but not jointly develop, an emergency response plan for Shxw’ōwhámel Territory. KMC will fund equipment for emergency response and community safety. KMC will also fund development training for six Shxw’ōwhámel representatives in emergency response.
INSURANCE Article 9 KMC agrees it will have an insurance policy that will provide insurance coverage for: a.
oss of income during periods of active construction, major maintenance, accidental release or L equipment malfunctions or events other than normal operations;
b.
Loss or damage to communal and personal property;
c.
Nuisance caused by the Trans Mountain Pipeline System and the Expansion, or either of them;
d.
Any negative effects to potable water supply and quality;
e.
Any negative effects to fish habitat and other food;
f.
Any clean-up and reclamation costs; and
g.
Costs associated with any necessary relocation of Shxw’ōwhámel Members.
“KMC will fund equipment for emergency response and community safety.” “KMC will fund development training for six Shxw’ōwhámel representatives in emergency response.”
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ENVIRONMENTAL LAWS AND MONITORING Article 10 KMC agrees to comply with all applicable Canadian Environmental laws, but did not agree to comply with Shxw’ōwhámel laws. KMC has agreed to use Commercially Reasonable Efforts (see definition section) to: a.
Minimize the footprint of the pipeline in the Traditional Territory;
b.
void any negative impact on the use and enjoyment of the Traditional Territory by Shxw’ōwhámel or A Shxw’ōwhámel Members;
c.
se mechanical means for vegetation management on the Expansion right of way within the U Traditional Territory;
d.
onsult and notify Shxw’ōwhámel prior to using pesticides or herbicides for vegetation control on C the Expansion right of way within the Traditional Territory; and
e.
evelop and enforce rules that preclude hunting and fishing by KMC staff and contractors while D engaging in the construction or operations and maintenance of the Expansion or the Trans Mountain Pipeline System in the Traditional Territory.
KMC will pay Shxw’ōwhámel over 3 years (from 2016 to 2018) to be used in the development and implementation of a Cumulative Effects Assessment and/or Environmental Monitoring and Management Framework.
KMC agrees to use Commercially Reasonable Efforts to minimize the footprint of the pipeline in the Traditional Territory. KMC agrees to comply with all applicable Canadian Environmental laws, but did not agree to comply with Shxw’ōwhámel laws.
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PIPELINE CLOSURE, DECOMMISSIONING AND ABANDONMENT Article 11 Si:yam Council identified removal of an inactive pipeline as a key issue. Shxw’ōwhámel has had previous experience with highly restricted activity that is allowed above the existing Trans Mountain pipeline. The potential agreement states that KMC will follow existing law and that if Shxw’ōwhámel wants to apply to the National Energy Board for the abandonment/removal of the pipeline it is their right. However, under existing law, there is no requirement for KMC to remove the pipeline, even if it is inactive and KMC currently opts to leave the pipeline in the ground after abandonment. Shxw’ōwhámel attempted to negotiate a requirement to remove the pipeline after 5 years of inactivity, but KMC would not agree.
IMPLEMENTATION COMMITTEE Article 12 This may be one of the most important Articles as it creates a four person Committee (2 Shxw’ōwhámel members/ 2 KMC representatives) to ensure that both KMC and Shxw’ōwhámel comply with the MBA. If there are any issues that are not meeting the “spirit and intent” of Shxw’ōwhámel in the implementation of the MBA, Shxw’ōwhámel may bring any issue to this Committee. Issues that may give rise to disputes might include: lack of business or employment opportunities; inadequate training funds; insufficient environmental enforcement and other issues arising from the construction or operation of the pipeline. A Shxw’ōwhámel Member will be hired as Shxw’ōwhámel Liaison to assist the Implementation Committee.
SHXW’ŌWHÁMEL RIGHTS Article 13 This Article sets out that “KMC respects and acknowledges that Shxw’ōwhámel exercises Aboriginal rights, including Aboriginal title, to the Traditional Territory and Reserve, a portion of which the Expansion will be constructed on, under or upon”. The Article also sets out non-derogation of Shxw’ōwhámel language as follows: “no provision of this Agreement… shall prejudice, limit, abrogate, deny, define or derogate from: a.
ny Shxw’ōwhámel Rights, including any claims or interests of Shxw’ōwhámel or any Shxw’ōwhámel A Members against the Crown, or party other than KMC;
b.
ny rights to, or benefits of, notice, consultation, accommodation, compensation, negotiation or A discussion with any party, particularly the Crown; or
c.
uture participation in any Aboriginal land claims or self-government negotiations, claims, assertions F or agreements affecting or relating in any way to Shxw’ōwhámel, or Shxw’ōwhámel Members…”
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TERM AND TERMINATION Article 16 This Article states that the term of the MBA will be for 20 years from the date that the Expansion becomes operational. Either Shxw’ōwhámel or KMC may terminate the MBA if the other party fails to fulfill its obligations under the MCA.
If there are any issues that are not meeting the “spirit and intent” of SFN in the implementation of the MBA, SFN may bring any issue to this Committee. KMC respects and acknowledges that Shxw’ōwhámel exercises Aboriginal rights, including Aboriginal title, to the Traditional Territory and Reserve.
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