Under the Settlement the Commitment Dispute Resolution Process (the “CDRP”) is available to an “Underserviced First Nation”, which may invoke the dispute resolution process” (9.07).

An “Underserviced First Nation” is “a First Nation [which] determines that the Commitment is not met or ceases to be met on its Reserve or Reserves” (9.06(1)).

The Commitment made by Canada under the Settlement Agreement is to “make all reasonable efforts to ensure that Individual Class Members living on Reserves have regular access to drinking water in their homes… that meets the stricter of the federal requirements or provincial standards governing residential water quality” and to pay the actual costs of providing that access.

So if you are a First Nation Reserve with Individual Class Members who ordinarily resided on your Reserve for at least one year between November 20, 1995 and June 20, 2021 while your Reserve was subject to a Long-Term Drinking Water Advisory you are eligible to use the CDRP if you determine that Canada is not meeting its Commitment.

Section 9.06 of the Settlement sets out how use the CDRP.

9.06 Agreement on Required Measures

(1) If a First Nation determines that the Commitment is not met or ceases to be met… it shall give written notice to Canada…(e.g. Michelle Kovacevic, Philippe Thompson, the RDG & Sheila Read).
(2) Canada shall promptly consult with… [the] First Nation, with a view to meeting the Commitment as soon as possible.
(3) Canada shall pay the reasonable cost of [the] First Nation obtaining technical advice to determine what steps are required to meet the Commitment….
(4) Canada shall make all reasonable efforts to reach an agreement with the…First Nation detailing the steps that are required to meet the Commitment (a “Remediation Plan”).

The “Suggested Cover Letter to Accompany any Funding Request” which can be found on the “How to Submit a Water and Wastewater Infrastructure Funding Request” page is intended to serve as the written notice under Section 9.06. The actual funding request that accompanies the covering letter is intended to serve as the Remediation Plan referenced in that section.

Canada and the First Nation shall strive to engage in the process of resolving these disagreements within the First Nation community and to conduct the process in a way that is accessible to and respectful of the First Nation.

There is an expectation that most disagreements will be resolved by this informal discussion.

The CDRP begins when a disagreement cannot be resolved.

If a First Nation and Canada cannot agree on what needs to be done within 3 months (90 days) of the First Nation serving the Notice and Remediation Plan under Section 9.06 or if at any point Canada does not follow the Remediation Plan, the CDRP can begin.

Sections 9.07 and 9.08, and Schedule K of the Settlement set out the unique manner in which disputes are to be resolved if Canada fails to meet its Commitment.

Under Section 9.07 a First Nation may trigger the CDRP if:

a) Canada fails to agree on a Remediation Plan within three months; or
b) Canada does not comply with a Remediation Plan.

The CDRP is comprised of three stages – Collaborative Negotiations, Mediation and Arbitration (see “Protocols, Procedures and Rules of the CDRP”).

Each stage is governed by strict timelines that allow either party to proceed expeditiously and on schedule regardless of any non-compliance by the other party.

Canada must pay (a) 100% of the costs of conducting each stage, and (b) 50% of the costs and disbursements incurred by an Underserved First Nation that is also a First Nation Class Member. (9.08)

Collaborative Negotiations and Mediations MUST take place within the community of the First Nation in a manner which:

(a) respects the legal traditions and protocols of the First Nation; and
(b) enables and promotes the use of Indigenous languages and is accessible to the members of the First Nation community.

In the case of Arbitration, as far as practicable:

a) the place of the arbitration shall be on or near the reserve of the First Nation; and,
b) the conduct of the Arbitration will promote the use of the Indigenous language of the First Nation.

The dispute in the Arbitration shall be decided in accordance with the law, including Indigenous law.

Timelines for Collaborative Negotiations

A Collaborative Negotiation Notice can be served by either party three months after a 9.06 Notice has been given relating to the initial disagreement. These negotiations will take the form of formal efforts to reach agreement on a Remediation Plan and must commence within 21 days of the Notice being delivered.

Collaborative Negotiations terminate:

a) if either party withdraws from the negotiations; or
b) automatically after 60 days.

Timelines for Mediation

A Mediation Notice can be served at any time after Collaborative Negotiations have been terminated. Mediation must commence within 30 days thereafter.

Canada and the First Nation will establish a roster of mediators to choose from and the mediation will be facilitated by that mediator.

The Mediation will terminate:

a) if either party withdraws from the Mediation; or
b) automatically 60 days after a mediator has been appointed.

Timelines for Arbitration

An Arbitration Notice can be served by either party at any time after a Mediation has been terminated. The Arbitration process must start within 15 days of the Notice being delivered and is governed by strict timelines.

Canada and the First Nation will establish a roster of arbitrators to choose from and the arbitration will be conducted by that arbitrator.

The Arbitration will terminate if:

a) the applicant withdraws its claim;
b) the arbitrator deems it necessary to do so; or,
c) a final Arbitral Award is issued by the arbitrator.

An Arbitral Award:

a) is final and binding on all parties whether or not a party has participated in the Arbitration;
b) will be recognized as binding by the court; and
c) will be enforced by the court.

The Protocols, Procedures and Rules of the CDRP can be found here.

A copy of the CDRP Submission Form which is to be used by an eligible First Nation to Give Notice of a Dispute to the Deputy Minister of Indigenous Services Canada can be found here.