Modern Treaties

Modern treaties are agreements negotiated between Indigenous peoples and the Crown. In federal procurement, the term means Comprehensive Land Claims Agreements (CLCAs) and self-government agreements. Some of these agreements contain chapters that affect federal procurement, including legal obligations on economic and social-development benefits in specified geographic areas.

CanadaBuys describes modern treaties as generally tripartite agreements involving Indigenous organizations or nations, the Crown, and provincial or territorial governments. It also states that they are known as Comprehensive Land Claims Agreements. Read the CanadaBuys guidance on Comprehensive Land Claims Agreements for the government's own description.

Which agreements count and how many carry procurement obligations

Canada reports 25 modern treaties and CLCAs with Royal Assent. Of these, 22 include economic measures with procurement obligations, according to the CanadaBuys CLCA page. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) negotiates and implements modern treaties and self-government agreements.

Treaty obligations differ from one agreement to the next. Federal guidance states that no two modern treaties are exactly the same, so each applicable treaty has to be reviewed on its own terms.

Modern treaties and trade agreements are separate regimes

Modern treaties are related to, but distinct from, trade agreements. The Treasury Board Directive on the Management of Procurement states that both trade agreements and modern treaties may apply to the same procurement. It also states that trade agreements do not apply to measures for Indigenous peoples and businesses, including Indigenous-business set-asides.

A single solicitation can therefore be subject to trade-agreement rules and to treaty obligations at once. The two sets of rules are applied separately.

Who is responsible inside the federal government

Federal procurement guidance states that all federal departments and agencies are subject to modern treaties. Depending on the agreement, the obligations can reach purchases of goods, services and construction, and the leasing of real property. This is set out in the PSPC briefing material on purchasing goods and services.

The Directive on the Management of Procurement assigns contracting authorities responsibility for developing and maintaining an understanding of applicable modern-treaty contracting requirements. It also requires compliance with specific legal obligations on economic and social-development benefits in areas covered by certain treaties. CanadaBuys adds that buyers and technical authorities must fulfil applicable treaty obligations throughout the procurement process and document the procurement file. Public Services and Procurement Canada (PSPC) provides procurement support and policy advice, including through its Indigenous Procurement Policy Directorate.

Where suppliers encounter modern treaties in solicitations

• Solicitation and qualification documents that state the procurement is subject to obligations under applicable Modern Treaties or CLCAs. A Natural Resources Canada qualification document for an Energy Performance Contract qualified bidders list includes a Modern Treaties/CLCAs section.
• Procurements that require notification to modern-treaty claimant groups. CanadaBuys publishes a contact page for notifying claimant groups of procurements.
• Procurements that consider contracting opportunities for beneficiary businesses of a treaty.
• Contracts limited under the Procurement Strategy for Indigenous Businesses. Federal material states that a business bidding on such a contract must be listed in the Indigenous Business Directory or on a modern-treaty business list, as recorded in a federal Question Period note.

What it means for a supplier bidding on Canadian public contracts

The federal guidance places the main compliance duties on the technical authority and the contracting authority. It does not describe one universal supplier form or certification for modern treaties. The exact supplier obligations depend on the applicable treaty and the solicitation.

Bid teams should do four things:

• Read the solicitation for treaty-specific eligibility, notification, subcontracting, beneficiary-business or reporting requirements.
• Follow any instructions about modern-treaty claimant groups or beneficiary business lists.
• If bidding on a procurement limited to Indigenous businesses, meet the listing and Indigenous-content requirements stated in the solicitation.
• Perform any treaty-related obligations written into the resulting contract.