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Maa-nulth First Nations Final Agreement Act

[SBC 2007] CHAPTER 43

Schedule

Maa-nulth First Nations Final Agreement

CHAPTER 25 — DISPUTE RESOLUTION

25.1.0  GENERAL

25.1.1 The Parties share the following objectives:

a. to cooperate with each other to develop harmonious working relationships;

b. to prevent, or, alternatively, to minimize Disagreements;

c. to identify Disagreements quickly and resolve them in the most expeditious and cost-effective manner possible; and

d. to resolve Disagreements in a non-adversarial, collaborative and informal atmosphere.

25.1.2 Subject to a determination as to which Parties are directly engaged in a Disagreement in accordance with 25.4.1 and Appendix Y-1, in this Chapter, and in Appendices Y-2 to Y-6, a Party is deemed to be directly engaged in a Disagreement if another Party, acting reasonably, provides that Party a notice requiring it to participate in a process described in this Chapter to resolve the Disagreement.

25.1.3 All Maa‑nulth First Nations who are Participating Parties to a Disagreement will act as one party to the Disagreement.

25.1.4 Except as contemplated by 25.10.1 and 25.10.2, any agreement or resolution reached under Stage One, Stage Two or Stage Three in this Chapter or under Appendix Y-1, is binding on each Maa‑nulth First Nation who is directly engaged in that Disagreement.

25.1.5 Except as otherwise provided, Participating Parties may agree to vary a procedural requirement contained in this Chapter, or in Appendix Y, as it applies to a particular Disagreement.

25.1.6 Participating Parties may agree to, and the Supreme Court of British Columbia, on application, may order:

a. the abridgement of a time limit in this Chapter or in Appendix Y; or

b. the extension of a time limit in this Chapter or in Appendix Y, despite the expiration of that time limit.

25.2.0  SCOPE: WHEN THIS CHAPTER APPLIES TO A DISAGREEMENT

25.2.1 This Chapter is not intended to apply to all conflicts or disputes between or among the Parties, but is limited to the conflicts or disputes described in 25.2.2.

25.2.2 This Chapter only applies to:

a. a conflict or dispute respecting:

i. the interpretation, application or implementation of this Agreement; or

ii. a breach or anticipated breach of this Agreement;

b. a conflict or dispute, where provided for in this Agreement; or

c. negotiations required to be conducted under any provision of this Agreement that provides that the Parties, or any of them, "will negotiate and attempt to reach agreement".

25.2.3 This Chapter does not apply to:

a. any agreement, plan, guideline or other document contemplated in this Agreement that is entered into, negotiated or prepared by the Parties unless the Parties have agreed that this Chapter applies to that agreement, plan, guideline or other document;

b. conflicts or disputes solely among Maa‑nulth First Nations; or

c. conflicts or disputes, where excluded from this Chapter.

25.2.4 Nothing in this Chapter limits the application of a dispute resolution process under any Federal Law or Provincial Law to a conflict or dispute involving a person if that conflict or dispute is not a Disagreement.

25.2.5 Nothing in any Federal Law or Provincial Law limits the ability of a Party to refer a Disagreement to a process under this Chapter.

25.3.0  DISAGREEMENTS TO GO THROUGH STAGES

25.3.1 The Parties desire and expect that most Disagreements will be resolved by informal discussions between or among the Parties without the necessity of invoking this Chapter.

25.3.2 Except as otherwise provided in this Agreement, Disagreements not resolved informally will progress, following initial identification of the Parties, until resolved, through the following stages:

a. Stage One: formal, unassisted efforts to reach agreement between or among the Participating Parties, in collaborative negotiations in accordance with Appendix Y-2;

b. Stage Two: structured efforts to reach agreement between or among the Participating Parties with the assistance of a Neutral, who has no authority to resolve the Disagreement, in a facilitated process in accordance with Appendix Y-3, Y-4, or Y-5 as applicable; and

c. Stage Three: final adjudication in arbitral proceedings in accordance with Appendix Y-6, or in judicial proceedings.

25.3.3 Except as otherwise provided in this Agreement, no Party may refer a Disagreement to final adjudication in Stage Three without first proceeding through Stage One and a facilitated process in Stage Two as required in this Chapter.

25.3.4 Nothing in this Chapter prevents a Party from commencing arbitral or judicial proceedings at any time:

a. to prevent the loss of a right to commence proceedings due to the expiration of a limitation period; or

b. to obtain interlocutory or interim relief that is otherwise available pending resolution of the Disagreement under this Chapter.

25.4.0  IDENTIFICATION OF THE PARTIES TO THE DISAGREEMENT

25.4.1 If there is a dispute between or among the Parties as to whether a Party is directly engaged in a Disagreement, the matter will be resolved by the process provided for in Appendix Y-1. During the time that the matter is being resolved in accordance with Appendix Y-1, any timeframes contemplated by this Chapter and the Appendices Y-2 to Y-6 are suspended. A Party can only dispute its involvement in a Disagreement once during the course of any Disagreement.

25.5.0  STAGE ONE: COLLABORATIVE NEGOTIATIONS

25.5.1 If a Disagreement is not resolved by informal discussion and a Party directly engaged in the Disagreement wishes to invoke this Chapter, that Party will deliver a notice, in accordance with Appendix Y-2, to the other Parties, requiring the commencement of collaborative negotiations.

25.5.2 Upon receiving the notice in accordance with 25.5.1, each Party directly engaged in the Disagreement will participate in the collaborative negotiations.

25.5.3 Subject to 25.1.3, a Party not directly engaged in the Disagreement may participate in the collaborative negotiations by giving notice to the other Parties, preferably before the collaborative negotiations commence.

25.5.4 If the Parties have commenced negotiations in the circumstances described in 25.2.2 c. then, for all purposes under this Chapter, those negotiations are deemed collaborative negotiations and, for greater certainty, the particular matter under negotiation is considered a Disagreement.

25.5.5 Collaborative negotiations terminate in the circumstances described in Appendix Y-2.

25.6.0  STAGE TWO: FACILITATED PROCESSES

25.6.1 Within 15 days of termination of collaborative negotiations that have not resolved the Disagreement, a Party directly engaged in a Disagreement, by delivering a notice to the other Parties, may require the commencement of a facilitated process.

25.6.2 A notice contemplated by 25.6.1:

a. will include the name of the Parties directly engaged in the Disagreement;

b. will set out a summary of the particulars of the Disagreement; and

c. may propose the use of a particular facilitated process described in 25.6.5.

25.6.3 Upon receiving a notice in accordance with 25.6.1, each Party directly engaged in the Disagreement will participate in a facilitated process described in 25.6.5.

25.6.4 A Party not directly engaged in the Disagreement may participate in the facilitated process by giving notice to the other Parties within 15 days of delivery of a notice in accordance with 25.6.1.

25.6.5 Within 30 days after delivery of a notice in accordance with 25.6.1, the Parties directly engaged in the Disagreement will attempt to agree to use one of the following processes:

a. mediation in accordance with Appendix Y-3;

b. technical advisory panel in accordance with Appendix Y-4;

c. neutral evaluation in accordance with Appendix Y-5; or

d. any other non-binding dispute resolution process assisted by a Neutral,

and if they do not agree, they are deemed to have selected mediation in accordance with Appendix Y-3.

25.6.6 A facilitated process terminates:

a. in the circumstances described in the applicable Appendix Y; or

b. as agreed by the Participating Parties, if Appendix Y does not apply.

25.7.0  NEGOTIATING CONDITIONS

25.7.1 In order to enhance the prospect of reaching agreement, the Participating Parties will:

a. at the request of a Participating Party, provide disclosure of sufficient information and documents to enable a full examination of the subject matter being negotiated;

b. make every reasonable effort to appoint negotiating representatives with sufficient authority to reach an agreement, or with ready access to such authority; and

c. negotiate in good faith.

25.8.0  SETTLEMENT AGREEMENT

25.8.1 Any agreement reached in a process in accordance with this Chapter:

a. will be:

i. recorded in writing;

ii. signed by authorized representatives of the Parties to the agreement; and

iii. delivered to all Parties; and

b. is binding only on the Parties who have signed the agreement. For greater certainty, the agreement is binding on all Maa‑nulth First Nations who are Participating Parties.

25.8.2 For greater certainty, any agreement reached in a facilitated process under this Chapter requires the agreement only of those Participating Parties who are directly engaged in the Disagreement.

25.9.0  STAGE THREE: ADJUDICATION — ARBITRATION

25.9.1 Except as otherwise provided in this Agreement, after the later of termination of collaborative negotiations, or of a required facilitated process, in respect of a Disagreement arising out of any provision of this Agreement that provides that a matter will be "finally determined by arbitration", the Disagreement will, on the delivery of a notice to arbitrate by a Party directly engaged in the Disagreement to all Parties in accordance with Appendix Y-6, be referred to and finally resolved by arbitration in accordance with that Appendix.

25.9.2 After the later of termination of collaborative negotiations, or a required facilitated process, in respect of any Disagreement, other than a Disagreement referred to in 25.9.1, and with the written agreement of all Parties directly engaged in the Disagreement, the Disagreement will be referred to, and finally resolved by, arbitration in accordance with Appendix Y-6.

25.9.3 If all Parties directly engaged in the Disagreement make a written agreement to arbitrate in accordance with 25.9.2, they will deliver a copy of the agreement to the other Parties.

25.9.4 Upon delivering a notice to the parties to the arbitration within 15 days after receiving a notice to arbitrate, in accordance with 25.9.1 or copy of a written agreement to arbitrate in accordance with 25.9.3, a Party not directly engaged in the Disagreement is entitled to be, and will be added as, a Participating Party to the arbitration of that Disagreement whether or not that Party has participated in collaborative negotiations or a required facilitated process.

25.9.5 Notwithstanding 25.9.4, an arbitral tribunal may make an order adding a Party as a Participating Party at any time, if the arbitral tribunal considers that:

a. the other Participating Parties will not be unduly prejudiced; or

b. the issues stated in the pleadings are materially different from those identified in the notice to arbitrate in accordance with 25.9.1 or the written agreement to arbitrate in accordance with 25.9.2,

and, in that event, the arbitral tribunal may make any order it considers appropriate or necessary in the circumstances respecting conditions, including the payment of costs, upon which the Party may be added.

25.10.0  EFFECT OF ARBITRAL AWARD

25.10.1 An arbitral award, as defined in Appendix Y-6, is final and binding on all Parties whether or not a Party has participated in the arbitration.

25.10.2 Notwithstanding 25.10.1, an arbitral award, as defined in Appendix Y-6, is not binding on a Party that has not participated in the arbitration if:

a. the Party did not receive copies of:

i. the notice of arbitration or agreement to arbitrate; or

ii. the pleadings and any amendments or supplements to the pleadings; or

b. the arbitral tribunal refused to add the Party as a Participating Party to the arbitration in accordance with 25.9.5.

25.11.0  APPLICATION OF LEGISLATION

25.11.1 No legislation of any Party respecting arbitration, except the Settlement Legislation, applies to an arbitration conducted under this Chapter.

25.11.2 A court may not intervene or offer assistance in an arbitration or review an arbitral award, as defined in Appendix Y-6, under this Chapter except as provided in Appendix Y-6.

25.12.0  STAGE THREE: ADJUDICATION — JUDICIAL PROCEEDINGS

25.12.1 Nothing in this Chapter creates a cause of action where none otherwise exists.

25.12.2 Subject to 25.12.3 at any time a Party may commence proceedings in the Supreme Court of British Columbia in respect of a Disagreement.

25.12.3 A Party may not commence judicial proceedings in respect of a Disagreement if the Disagreement:

a. is required to be referred to arbitration in accordance with 25.9.1 or has been agreed to be referred to arbitration in accordance with 25.9.2;

b. has not been referred to collaborative negotiations or a facilitated process as required under this Chapter; or

c. has been referred to collaborative negotiations or a facilitated process that has not yet been terminated.

25.12.4 Nothing in 25.12.3a. prevents an arbitral tribunal or the Participating Parties from requesting the Supreme Court of British Columbia to make a ruling respecting a question of law as permitted in Appendix Y-6.

25.13.0  NOTICE TO PARTIES

25.13.1 If, in any judicial or administrative proceeding, an issue arises in respect of:

a. the interpretation or validity of this Agreement; or

b. the validity or applicability of:

i. any Settlement Legislation; or

ii. any Maa‑nulth First Nation Law,

the issue will not be decided until the party raising the issue has properly served notice on the Attorney General of British Columbia, the Attorney General of Canada and the applicable Maa‑nulth First Nation.

25.13.2 In any judicial or administrative proceeding to which 25.13.1 applies, the Attorney General of British Columbia, the Attorney General of Canada and the applicable Maa‑nulth First Nation may appear and participate in the proceedings as parties with the same rights as any other party.

25.14.0  COSTS

25.14.1 Except as provided otherwise in Appendix Y, each Participating Party will bear the costs of its own participation, representation and appointments in collaborative negotiations, a facilitated process or an arbitration, conducted under this Chapter.

25.14.2 Subject to 25.14.1 and except as provided otherwise in Appendix Y, the Participating Parties will share equally all costs of collaborative negotiations, a facilitated process or an arbitration, conducted under this Chapter.

25.14.3 For purposes of 25.14.2, costs include:

a. fees of the Neutrals;

b. costs of hearing and meeting rooms;

c. actual and reasonable costs of communications, accommodation, meals and travel of the Neutrals;

d. costs of required secretarial and administrative support for the Neutrals, as permitted in Appendix Y; and

e. administration fees of a Neutral Appointing Authority.

25.14.4 For greater certainty, for the purpose of 25.14.2, all Maa‑nulth First Nations who are Participating Parties are one party for the purpose of determining the sharing of costs.

Contents  |  Sections 1 to 31  |  Schedule - Contents  |  Schedule - Preamble  |  Schedule - Chapter 1  |  Schedule - Chapter 2  |  Schedule - Chapter 3  |  Schedule - Chapter 4  |  Schedule - Chapter 5  |  Schedule - Chapter 6  |  Schedule - Chapter 7  |  Schedule - Chapter 8  |  Schedule - Chapter 9  |  Schedule - Chapter 10  |  Schedule - Chapter 11  |  Schedule - Chapter 12  |  Schedule - Chapter 13  |  Schedule - Chapter 14  |  Schedule - Chapter 15  |  Schedule - Chapter 16  |  Schedule - Chapter 17  |  Schedule - Chapter 18  |  Schedule - Chapter 19  |  Schedule - Chapter 20  |  Schedule - Chapter 21  |  Schedule - Chapter 22  |  Schedule - Chapter 23  |  Schedule - Chapter 24  |  Schedule - Chapter 25  |  Schedule - Chapter 26  |  Schedule - Chapter 27  |  Schedule - Chapter 28  |  Schedule - Chapter 29  |  Appendix - Contents  |  Appendix - Introduction  |  Appendix A  |  Appendix B  |  Appendix C  |  Appendix D  |  Appendix E  |  Appendix F  |  Appendix G  |  Appendix H  |  Appendix I  |  Appendix J  |  Appendix K  |  Appendix L  |  Appendix M  |  Appendix N  |  Appendix O  |  Appendix P  |  Appendix Q  |  Appendix R  |  Appendix S  |  Appendix T  |  Appendix U  |  Appendix V  |  Appendix W  |  Appendix X  |  Appendix Y