In February, we shared the story of Dr. Rosalin Miles and her experience as a new Band Administrator negotiating the MTSA process. She gave some great insights into what First Nation Band Administrators should know before reviewing their service agreements. This month, we take a different approach: thinking from your service provider’s perspective. We did some digging and found five things municipalities think about when considering service agreements. Knowing what your service partner’s needs and concerns are can help frame a more positive conversation about services, and clarify some common misunderstandings around service agreements.
- Long range planning is key to sharing services. Can a municipality provide services beyond their boundary? Most likely, it depends on whether or not they planned for it. Municipalities develop long-range planning documents called Official Community Plans (OCPs) which outline how land will be used and where growth will occur. Supporting the OCP are master plans for each of their main services. These documents can cover decades but are usually updated every five years or so. If a municipality has not anticipated providing services beyond its boundaries in the OCP or servicing master plans, it is unlikely that they have the capacity to add neighbouring communities to their system.
What does this mean for First Nation partners? If your First Nation is thinking about services and the needs of your community are changing, talk to your service partner or potential service partner! This is especially true if you know that your service partner is in the process of updating their OCP or servicing master plans. Starting these conversations early can ensure that the service provider can anticipate your Nation’s need as they plan their systems.
On the other side of things, if your First Nation is working on its own land use planning, make sure to think about what services will be needed to meet the needs of growth on reserve. Engaging your service partner during the land use planning process can help ensure that growth in your community is met with adequate services.
- Current versus future capacity. Sometimes it looks like a municipality has capacity in their system for additional users but new service agreements still require infrastructure upgrades. This is because that capacity may have been built to service growth within the municipal boundary. The community has invested in and built infrastructure to service development that may not come for years. Even though there may be capacity in the short-term, adding too many additional users while growth is expected can put the system at risk over the long term.
- Partnership is about more than just service agreements. You don’t need a service agreement to work with local government neighbours or benefit from knowledge sharing. Most municipalities have full-time staff with a ton of knowledge and expertise in operating infrastructure. If your First Nation needs support, there may be opportunities to collaborate on operations and maintenance even if service agreements are not in place. This could help provide valuable training and knowledge sharing between municipal and First Nation staff. It can also lay the groundwork for future collaboration and service agreements.
- Recovering costs is important to municipalities. Costs for providing utilities such as water and sewer are paid for through user fees and other cost recovery mechanisms. Prudent municipalities will aim to recover the full cost of the service through these fees, or through mechanisms for recovering costs from growth. For example, if a developer is building a new subdivision, there will be a need to build expensive infrastructure to provide services to new homes. Municipalities can use a type of fee called Development Cost Charges (DCCs) to fund the new infrastructure. However, in the case of extending services beyond the municipal boundary, a municipality cannot use these familiar tools for recovering costs. If infrastructure upgrades are required to extend services to a First Nation, the service partners will have to negotiate how these costs are paid for.
- First Nation control over land use. Service agreements can sometimes seem strict. Some First Nations may feel that their service partner is trying to control where and how fast they grow. However, the primary issue for municipalities is the need to have certainty over where services are being delivered. Connected to our first point, municipalities plan land use and services far in advance. They don’t like surprises! Unpredictable development and growth can make your service partner nervous because they have to ensure their infrastructure has the capacity to take on each new connection. These concerns show how necessary it is to have regular conversations about growth and development. If a new development may impact service infrastructure, share this information early on. If your First Nation is uncertain about growth, or finds it hard to plan or predict land uses, consider this uncertainty in your service agreement. Being upfront about these concerns can go a long way in coming to an agreement that works for both service partners.
MTSAs are complex and require significant collaboration between First Nation and municipal partners. In this blog post, we consider five things that municipalities are thinking about. Are there other things you’d like to know about your service partner’s perspective in MTSAs? Ask us through Facebook or Twitter!
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Over the past year, we’ve shared weekly stories of First Nations collaboration with local governments. While focused on MTSAs, these stories cover a broad range of topics related to work between First Nations and municipalities. Cooperation and partnerships can bring many rewards, but also come with challenges. We’ve rounded up four of our favourite stories of the past year.
- Westbank First Nation and West Kelowna
Service agreements can support strong partnerships. This is definitely true in the case of Westbank First Nation and West Kelowna. In 2016, the two governments renewed their fire agreement for another 15 years. Long-term agreements provide benefits to both parties, including peace-of-mind that a service will be provided over the long term, sharing costs, building trust, and offering mutual support.
Fires are unpredictable and can spread quickly. A strong fire agreement is about more than service delivery. As Mayor Findlater said, “West Kelowna’s fire protection is enhanced through planning, training, and coordination with WFN [Westbank First Nation], particularly on forest fires, which don’t recognize boundaries.”.
- Tla’amin First Nation and City of Powell River
In 2016, Tla’amin First Nation became a self-governing nation. The provisions of the new treaty included a larger land base, funding, and a number of economic development opportunities. The First Nation’s long-term goals are closely tied to its collaboration with its closest neighbour, the City of Powell River.
Tla’amin First Nation and the City of Powell River have a strong working relationship, but it wasn’t always this way. More than 15 years ago, a dispute arose after the City work on a sea walk damaged Tla’amin heritage sites. However, rather than pushing the two apart, this conflict prompted the two governments to starting talking and begin working together as partners in developing the sea walk. In 2003, Tla’amin First Nation and the City of Powell River signed a community accord. They have been working together every since.
- Urban Reserves
Urban reserves have been in the news frequently over the past year. Stories of First Nations working towards developing urban reserves popped up all over Canada, including Rolling River First Nation in Headingley, Manitoba and Kawacatoose First Nation in Moose Jaw, Saskatchewan. In Western Canada, Enoch First Nation recently reached a milestone, signing an agreement with the City of Edmonton to work together over the long term. The agreement is a commitment of leadership within Enoch First Nation and the City of Edmonton to meet at least once a year and collaborate on a joint working group. This brings the First Nation closer to achieving its goal of purchasing City land for to develop an urban reserve.
- Local Governments Working Towards Reconciliation
2017 has been declared a year of reconciliation. Municipalities across the country are making efforts to build bridges with their neighbouring First Nations. Recently, the City of Markham signed a partnership accord with Eabametoong First Nation. The agreement promotes social, cultural, and economic collaboration between the First Nation and local government.
Collaboration between First Nations and local governments takes many forms. The stories highlighted in this blog show just a glimpse into the many ways that communities can work together.
Do you have a story of First Nation-local government collaboration? Please share it with us through Facebook or Twitter!
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Developing and reviewing municipal type service agreements can be an overwhelming experience and the process can raise many important questions, such as:
- How are services delivered?
- What are my community’s obligations?
- What are the obligations of our partner municipality?
- Are the rates we pay fair?
- What is the service area?
Just to name a few! The goal of Pathways to Service Delivery is to make the process of developing and reviewing municipal type service agreements more manageable and effective. As part of this goal, we are always looking for stories from communities across BC and Canada about MTSAs and the process of developing them.
Dr. Rosalin Miles
Recently, we had the opportunity to chat with Dr. Rosalin Miles who jumped into the role of First Nation Administrator for Lytton First Nation in 2016. Shortly after starting her new role, Rosalin initiated a review of her community’s MTSAs. As part of our conversation, she shared some of her insights into the process and provided a few words of advice to new (and long-standing) First Nation Administrators undergoing the process of reviewing or developing MTSAs.
First of all, we wanted to know, what motivated Rosalin to review Lytton First Nation’s service agreements with their neighbour, the Village of Lytton? Every community has a unique set of circumstances and Lytton First Nation is no different. Rosalin reported that several interconnected events prompted Lytton First Nation to consider reviewing their existing service agreements:
- Potential capital investment: The Village of Lytton is planning on building a new water treatment centre and Lytton First Nation is considering providing a capital contribution. This opened the door to reviewing the existing water service agreement in light of possible investment by the First Nation.
- Expiring agreements: Lytton First Nation’s previous MTSAs used relatively short terms. This meant that the First Nation and Village had to renegotiate every year or two to ensure that the agreements were up to date.
- New First Nation Administrator: Stepping into the role in 2016, Rosalin wanted to learn as much as she could about service delivery to the First Nation’s reserves. Reviewing the service agreements gave her the opportunity to delve deeply and ensure she knew the ins and outs of how things were done.
As part of the process, Rosalin and the Urban Systems team used the MTSA Assessment Tool to review each service agreement. We wanted to know if the tool was helpful and how she used it during the review process.
Rosalin told us she loved having a step-by-step framework to evaluate her community’s service agreements. The tool helped identify what kind of information needed to be collected to help with the negotiation and decision-making process. It also helped her set service levels based on community needs rather than just repeating past service agreements.
Going into the process, Rosalin worried that there was a “right” and “wrong” answer to each part of a service agreement. Instead, the Tool helped her understand that each component of a service agreement was unique to the First Nation and municipal partner, based on the needs and resources of the two communities. The Assessment Tool offered examples for a range of goals that were helpful in establishing priorities in the new service agreements. Two examples were really important for Lytton First Nation:
- Previous service agreements didn’t include a termination clause. Using the Tool prompted questions about what the First Nation would do if service level targets weren’t met, what they would do if they wanted a change in the way services were delivered, and how long they would need to find a new service provider if an agreement was cancelled.
- Service areas were identified but clear expectations were undefined in previous agreements. The Tool provided suggestions for how an agreement could be structured to achieve the desired level of service in a well-defined service area.
Discussing the process of reviewing service agreements, Rosalin had some insights into what First Nation Administrators should think about when starting their own reviews:
Get ready for some prep work:
- Before starting the process, take time to gather all the relevant service agreements.
- Review your partner municipality’s bylaws that lay out relevant information such as user rates, service levels, and regulations.
- Communicate to your partner municipality that your community would like to review service agreements. From the start, let them know that this is a learning experience and that the goal is collaboration, not criticism.
- First Nations have unique capacity challenges. To make the most of the agreements, get to know what your partner municipality is able to offer and the level of service received by off-reserve households.
- Know that rates are negotiable. Be prepared to review and compare the rate charged to the level of service provided and the rate paid by non-reserve households.
- Be prepared for each community to have expectations, whether around costs, level of investment, or service levels.
- Expectations on both the First Nation and municipal side must be managed.
Think about the future:
- Ultimately, the First Nation and municipality are partners in a larger community. Consider how agreements support the sustainability of both communities.
- Recognize that the First Nation is its own government—benefits and resources should be distributed equally between members of both communities.
- Think about what you want your relationship to be in the future and lay the groundwork.
- Connect service agreements with goals in your Comprehensive Community Plan for long-term community development.
- Identify ways that your First Nation can help your partner municipality—for example, through capital cost contributions.
Thanks Rosalin for your insights!
You’ve decided to enter into a contract with a neighbouring municipality for the provision of services to your community. You know what services you need, you know where they are needed, you know who to engage to make it happen, and you know how to get what you need – by entering into a service agreement. The one remaining question is when – how long does this agreement need to be in place?
There is no fixed time a service agreement must be in place for, therefore it is open to you to decide whether the duration of your agreement is effective for a short, medium, or longer term. You also have a say in how the agreement is suspended or terminated, and the process to be followed. The term of the agreement is in place to provide stability to both partners for continuation of service, and the suspension and termination terms are written to ensure the contract is not broken without due cause or following a fair process, so take the time to think about what you would like to see in these terms.
If it’s your first service agreement, you may think that keeping the contract valid for a short (1-5 years) period of time is your best bet. Agreements on this term can provide greater flexibility for you and your service provider, as it reduces the amount of time that you are locked into the agreement. For non-critical services (i.e. not an immediate risk to public health and safety), such as garbage collection, a short term is a reasonable choice as your options for providers is likely varied, and you may not need to make infrastructure investments to enable the service, which allows for more flexibility in changing how your service is provided.
A short term contract is not always the best choice, however. If your community has needs for critical services that protect the health and safety of the community (e.g. water or fire protection), an agreement with such a short term could endanger the stability of the supplied service to your community. In instances where your option for service providers is limited, or an investment in new or upgraded infrastructure is required, it’s preferable to ensure your agreement is for a long-term.
The process of negotiating or re-negotiating a service also takes time and effort – not only does a short agreement term result in frequent negotiations, but it leaves your community at risk of losing the service if the negotiation process takes longer than expected.
Termination and Suspension
Parties usually enter into agreements with good intentions. Trust, and an attitude of good faith are some of the most important things to take into a service agreement partnership that will provide benefit to both parties. It’s common for parties to continue to build their relationship, and trust, and good faith throughout the service agreement. But in rare circumstances, things can change, and one or both of the parties may wish to terminate the agreement.
Reasons for termination may not always be about the relationship or a breach of contract by one of the parties. Agreements may also be terminated because needs for services, ability to deliver services, and priorities change. Including termination or suspension terms in your agreement is beneficial to both communities.
Suspension is an intermediate step between provision and termination, allowing the party in breach of contract to correct the offending issue to preserve the agreement. Suspension of service terms are more appropriate to include in service agreements for non-critical services, such as garbage collection or animal control; than for critical services like water and sewer, or fire protection. The suspension may only apply to specific services within the service agreement. For example, in a water service agreement that includes operation and maintenance services, the suspension term may only refer to the operations and maintenance portion of the services. This ensures that the part of the service that is critical to health and safety (water supply) is not affected. Your agreement should outline the conditions and process for suspension, and the process for resuming services after the issue has been resolved.
Termination is the discontinuation of the agreement. An agreement can be discontinued with or without cause. Your agreement should clarify the specific acceptable reasons for termination so there are no surprises. Give yourself time to react by detailing what kind of advanced notice is required for suspension or termination. Typical notification periods for non-critical services with more service delivery options are 60 days or 120 days. For services that require infrastructure investment or longer lead periods to make alternate service delivery arrangements, such as water and sewer, the notification period should be longer (i.e. up to a few years).
You should decide who has the authority to suspend or terminate the contract. In case of termination, clarify if capital contributions or rates paid in advance will be reimbursed and on what basis.
With careful thought to your community’s service needs and timelines, you should be able to identify the best term for your agreement, and a suitable process for suspension or termination. This will help to ensure long term stability for your community and to ensure smooth renegotiations when required.