Protocols, Procedures and Rules of the CDRP

Schedule K – Commitment Dispute Resolution Process

1. Fixing Things Together: Commitment Dispute Resolution Process

1.1. General

1.1.1. This Schedule applies to disagreements that arise between Canada and Underserviced First Nations about whether Canada is meeting its Commitment under the Agreement and about proposed plans for meeting the Commitment (collectively, “Disagreements“).

1.1.2. Canada and the Class share the following objectives:

1.1.2.1. to cooperate with each other to ensure that the Commitment is always met;

1.1.2.2. to strive for consensus and harmony;

1.1.2.3. to agree on plans to meet the Commitment in a timely and expeditious fashion (“Remediation Plans“);

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

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

1.1.2.6. to resolve Disagreements in a manner which reflects and incorporates the legal traditions and protocols of the Underserviced First Nation;

1.1.2.7. to locate the process for resolving Disagreements within the communities of the Underserviced First Nations and conduct those processes in a way that is accessible to and respectful of those communities.

1.1.3. Except as otherwise provided, Canada and any Underserviced First Nation may agree to vary a procedural requirement contained in this Schedule, as it applies to a particular Disagreement.

1.1.4. Canada and the Class desire and expect that most Disagreements will be resolved by informal discussions without the necessity of invoking this Schedule.

1.1.5. Except as otherwise provided in this Agreement, Disagreements not resolved informally will progress, until resolved, through the following stages:

1.1.5.1. Stage One: formal, unassisted efforts to reach agreement on a Remediation Plan between Canada and the Underserviced First Nation, in collaborative negotiations in accordance with Appendix K-1;

1.1.5.2. Stage Two: structured efforts to reach agreement between or among the Canada and the Underserviced First Nation in a mediation in accordance with Appendix K-2; and

1.1.5.3. Stage Three: final adjudication in arbitral proceedings in accordance with Appendix K-3.

1.1.6. Except as otherwise provided in this Agreement, no one may refer a Disagreement to final adjudication in Stage Three without first proceeding through Stage One and Stage Two as required in this Schedule.

1.1.7. Nothing in this Schedule prevents Canada or an Underserviced First Nation from commencing arbitral proceedings on an urgent basis at any time:

1.1.7.1. to address an urgent loss of regular access to water; and/or

1.1.7.2. to obtain interlocutory or interim relief that is otherwise available pending resolution of the Disagreement under this Schedule, and the Arbitrator shall have the power to hear such hearings on an urgent basis and grant such interlocutory or interim relief.

1.2. Stage One: Collaborative Negotiations

1.2.1. If a Disagreement is not resolved by informal discussion and an Underserviced First Nation wishes to invoke this Schedule, that Underserviced First Nation will deliver a notice to Canada, requiring the commencement of collaborative negotiations.

1.2.2. Upon receiving the notice, Canada and the Underserviced First Nation shall participate in the collaborative negotiations.

1.2.3. Collaborative negotiations must be conducted in a manner which:

1.2.3.1. is in good faith;

1.2.3.2. creates a safe and respectful space for members of the Underserviced First Nation participating;

1.2.3.3. promotes mutual understanding and transparency about the issues in the Disagreement, by, among other things, Canada providing sufficient information and sufficiently explaining those issues in a way that is accessible to members of the Underserviced First Nation;

1.2.3.4. enables and promotes the use of Indigenous languages;

1.2.3.5. is located within the community of the Underserviced First Nation and is accessible to its members;

1.2.3.6. respects the legal traditions and protocols of the Underserviced First Nation, including:

1.2.3.6.1. seating arrangements;

1.2.3.6.2. order of speaking;

1.2.3.6.3. prayers, speeches and acknowledgments;

1.2.3.6.4. exchange of gifts;

1.2.3.6.5. the wisdom of elders;

1.2.3.6.6. the importance of traditional teachings;

1.2.3.6.7. the experience of the community;

1.2.3.6.8. the community’s understanding of the issues in the Disagreement; and

1.2.3.6.9. the community’s protocols for decision-making.

1.2.4. Collaborative negotiations terminate in the circumstances described in Appendix K-1.

1.3. Stage Two: Mediation

1.3.1. Within fifteen (15) days of termination of collaborative negotiations that have not resolved the Disagreement, an Underserviced First Nation may require the commencement of a facilitated process by delivering a notice describing the Disagreement and including any Remediation Plans from Canada and the Underserviced First Nation.

1.3.2. Within thirty (30) days after delivery of a notice, the Canada and the Underserviced First Nation engaged in the Disagreement (the “Participating Parties“) will use mediation to attempt to resolve the Disagreement.

1.3.3. The Parties shall establish a Roster of Mediators available to facilitate negotiations who have knowledge of:

1.3.3.1. The conditions of life on First Nations reserves; and

1.3.3.2. First Nations languages, customs and legal traditions.

1.3.4. The mediator and the Participating Parties must conduct the facilitated process in a manner which:

1.3.4.1. creates a safe and respectful space for members of the Underserviced First Nation participating;

1.3.4.2. promotes mutual understanding and transparency about the issues in the Disagreement, by, among other things, Canada providing sufficient information and sufficiently explaining those issues in a way that is accessible to members of the Underserviced First Nation;

1.3.4.3. enables and promotes the use of Indigenous languages throughout the process;

1.3.4.4. is located within the community of the Underserviced First Nation and is accessible to its members;

1.3.4.5. respects the legal traditions and protocols of the Underserviced First Nation, including:

1.3.4.5.1. seating arrangements;

1.3.4.5.2. order of speaking;

1.3.4.5.3. prayers, speeches and acknowledgments;

1.3.4.5.4. exchange of gifts;

1.3.4.5.5. the wisdom of elders;

1.3.4.5.6. the importance of traditional teachings;

1.3.4.5.7. the experience of the community;

1.3.4.5.8. the community’s understanding of the issues in the Disagreement;

1.3.4.5.9. the community’s protocols for decision-making.

1.3.5. The Underserviced First Nation may designate a representative knowledge keeper or elder to provide guidance to the mediator on legal traditions and protocols.

1.3.6. The Underserviced First Nation may develop guidelines outlining its legal traditions and protocols for use by the mediator and the Parties.

1.3.7. The Participating Parties may or may not request a report from the mediator.

1.3.8. A mediation terminates in the circumstances described in Appendix K-2.

1.4. Stage Three: Adjudication – Arbitration

1.4.1. After the later of termination of collaborative negotiations, or of a required facilitated process, the Disagreement will, on the delivery of a notice to arbitrate in accordance with Appendix K-3, be referred to and finally resolved by arbitration in accordance with that Appendix.

1.4.2. Accompanying the notice to arbitrate shall be:

1.4.2.1. any Remediation Plans prepared by the Participating Parties;

1.4.2.2. any neutral evaluation report;

1.4.2.3. any mediator’s report that the Parties have agreed may be provided to the Arbitrator.

1.4.3. The Parties shall establish a Roster of Arbitrators available to hear arbitration of Disagreements.

1.4.4. Arbitrators on the Roster of Arbitrators shall have knowledge of:

1.4.4.1. The conditions of life on First Nations reserves; and

1.4.4.2. First Nations languages, customs and legal traditions.

1.4.5. The Arbitrator shall consider the Remediation Plans proposed and the reasonableness of Canada’s efforts to ensure regular access as defined in the Commitment. Relevant factors include:

1.4.5.1. the views of the Underserviced First Nation, including:

1.4.5.1.1. the physical, social and cultural importance of water;

1.4.5.1.2. the legal traditions of the Underserviced First Nation as they relate to water use, protection and access;

1.4.5.1.3. the historic and ongoing effects of lack of access to water within the Underserviced First Nation;

1.4.5.1.4. the history of Canada’s efforts with respect to ensuring regular access to water;

1.4.5.1.5. the urgency of the Underserviced First Nation’s water needs.

1.4.5.2. any federal requirements or provincial standards and protocols relating to water;

1.4.5.3. whether monitoring and testing are performed on the water system; and

1.4.5.4. the physical location of the home, including proximity to centralized water systems and remoteness.

1.4.6. The Arbitrator shall conduct the arbitration proceedings in a manner which:

1.4.6.1. creates a safe and respectful space for members of the Underserviced First Nation participating;

1.4.6.2. promotes mutual understanding and transparency about the issues in the Disagreement;

1.4.6.3. enables and promotes the use of Indigenous languages throughout the process;

1.4.6.4. is located within the community of the Underserviced First Nation and is accessible to its members;

1.4.6.5. respects the legal traditions and protocols of the Underserviced First Nation, including:

1.4.6.5.1. seating arrangements;

1.4.6.5.2. order of speaking;

1.4.6.5.3. prayers, speeches and acknowledgments;

1.4.6.5.4. exchange of gifts;

1.4.6.5.5. the admissibility and relevance of evidence, including:

1.4.6.5.5.1. the wisdom of elders;

1.4.6.5.5.2. traditional teachings;

1.4.6.5.5.3. the experience of the community;

1.4.6.5.5.4. the community’s understanding of the issues in the Disagreement; and

1.4.6.5.5.5. the community’s protocols for decision-making.

1.4.7. The Underserviced First Nation may recommend a representative knowledge keeper or elder, who may, at the discretion of the Arbitrator, sit with the Arbitrator to provide guidance on legal traditions and protocols.

1.4.8. The Underserviced First Nation may develop guidelines outlining its legal traditions and protocols for use by the Arbitrator and the Parties.

1.4.9. After reviewing the Remediation Plans proposed and hearing from the Participating Parties, the Arbitrator shall make an arbitral award as follows:

1.4.9.1. ordering the Underserviced First Nation’s Remediation Plan if it is reasonable in all the circumstances;

1.4.9.2. ordering Canada’s Remediation Plan if it is reasonable and the Underserviced First Nation’s Remediation Plan is not reasonable; or

1.4.9.3. remitting the matter back to the Participating Parties with directions in the event that neither Remediation Plan is reasonable.

1.4.10. An Arbitral Award, as defined in Appendix K-3, is final and binding on all Participating Parties whether or not a Participating Party has participated in the arbitration.

1.4.11. The Parties shall maintain a public registry of arbitral decisions for use by Canada, Underserviced First Nations, and Arbitrators.

Dispute Resolution Procedures

GENERAL

1. If, in the circumstances set out in Section 9.07 of the Agreement, an Underserviced First Nation wishes to invoke the dispute resolution process set out in this Schedule in respect of an applicable dispute (each a “Disagreement“), the Underserviced First Nation may give Canada a Negotiation Notice, and the Parties shall resolve the Disagreement using the procedure set out in this Schedule.

2. The “Schedule” means this Schedule K: Dispute Resolution.

Appendix K-1: Collaborative Negotiations

Appendix K-2: Mediation

Appendix K-3: Arbitration

Appendix K-1

Collaborative Negotiations

GENERAL

3. Collaborative negotiations commence on the date of delivery of a written notice by an Underserviced First Nation requiring the commencement of collaborative negotiations (a “Negotiation Notice“).

NOTICE

4. A Negotiation Notice will include the following:

(a) the names of the Participating Parties

(b) a summary of the particulars of the Disagreement;

(d) the names of the individuals involved in those efforts; and

(e) any other information that will help the Participating Parties.

REPRESENTATION

5. A Participating Party may attend collaborative negotiations with or without legal counsel or other advisors.

6. At the commencement of the first negotiation meeting, each Participating Party will advise the other Participating Parties of any limitations on the authority of its representatives.

NEGOTIATION PROCESS

7. The Participating Parties will convene their first negotiation meeting in collaborative negotiations within twenty-one (21) days after the commencement of the collaborative negotiations.

8. Before the first scheduled negotiation meeting, the Participating Parties will attempt to agree on any procedural issues that will facilitate the collaborative negotiations.

9. The Participating Parties will make a serious attempt to resolve the Disagreement by:

(a) identifying underlying interests;

(b) isolating points of agreement and disagreement;

(d) considering compromises or accommodations; and

(e) taking any other measures that will assist in resolution of the Disagreement.

10. No transcript or recording will be kept of collaborative negotiations, but this does not prevent an individual from keeping notes of the negotiations.

CONFIDENTIALITY

11. In order to assist in the resolution of a Disagreement, collaborative negotiations will not be open to the public, but this paragraph does not prevent leadership of the Underserviced First Nation and their representatives from attending.

12. The Participating Parties, and all persons, will keep confidential:

(a) all oral and written information disclosed in the collaborative negotiations; and

(b) the fact that the information has been disclosed.

13. The collaborative negotiations will be without prejudice to the rights of the Participating Parties, and nothing disclosed in the collaborative negotiations may be used outside of the collaborative negotiations.

RIGHT TO WITHDRAW

14. A Participating Party may withdraw from collaborative negotiations at any time.

TERMINATION OF COLLABORATIVE NEGOTIATIONS

15. Collaborative negotiations are terminated when any of the following occurs:

(a) the expiration of sixty (60) days;

(b) a Participating Party withdraws from the collaborative negotiations under paragraph (14);

(d) the Participating Parties sign a written agreement resolving the Disagreement.

COSTS

16. Canada shall pay the reasonable costs of collaborative negotiations conducted under this Appendix in accordance with Section 9.08 of the Agreement.

APPENDIX K-2

Mediation

GENERAL

17. A mediation may commence at any time after the conclusion of collaborative negotiations, in accordance with Appendix K-1, when an Underserviced First Nation delivers written notice requiring the commencement of mediation (a “Mediation Notice“).

18. A mediation begins on the date the Participating Parties directly engaged in the Disagreement have agreed in writing to commence mediation in accordance with 1.3.2 of the Schedule.

NOTICE

19. A Mediation Notice will include the following:

(a) the names of the Participating Parties

(b) a summary of the particulars of the Disagreement;

(d) the names of the individuals involved in those efforts; and

(e) any other information that will help the Participating Parties.

APPOINTMENT OF MEDIATOR

20. A mediation will be conducted by one mediator selected by the Underserved First Nation from the Roster of Mediators established in accordance with the Schedule.

21. Subject to any limitations agreed to by the Participating Parties, a mediator may employ reasonable and necessary administrative or other support services.

REQUIREMENT TO WITHDRAW

22. At any time a Participating Party may give the mediator and the other Participating Parties a written notice, with or without reasons, requiring the mediator to withdraw from the mediation on the grounds that the Participating Party has justifiable doubts as to the mediator’s independence or impartiality.

23. On receipt of a written notice in accordance with paragraph (22), the mediator will immediately withdraw from the mediation.

END OF APPOINTMENT

24. A mediator’s appointment terminates if:

(a) the mediator is required to withdraw in accordance with paragraph (23);

(b) the mediator withdraws from office for any reason; or

25. If a mediator’s appointment terminates, a replacement mediator will be appointed in accordance with paragraph (20).

REPRESENTATION

26. A Participating Party may attend a mediation with or without legal counsel or other advisor.

27. If a mediator is a lawyer, the mediator will not act as legal counsel for any Participating Party.

28. At the commencement of the first meeting of a mediation, each Participating Party will advise the mediator and the other Participating Parties of any limitations on the authority of its representatives.

CONDUCT OF MEDIATION

29. The Participating Parties will:

(a) make a serious attempt to resolve the Disagreement by:

(i) identifying underlying interests;

(ii) isolating points of agreement and disagreement;

(iii) exploring alternative solutions; and

(iv) considering compromises or accommodations; and

(b) cooperate fully with the mediator and give prompt attention to, and respond to, all communications from the mediator.

30. A mediator shall conduct a mediation with reference to Indigenous legal traditions and protocols, as set out in the Schedule, and may otherwise take any steps the mediator considers necessary and appropriate to assist the Participating Parties to resolve the Disagreement in a fair, efficient and cost-effective manner.

31. Within seven (7) days of appointment of a mediator, each Participating Party may deliver a written summary to the mediator of the relevant facts, the issues in the Disagreement, and its viewpoint in respect of them and the mediator will deliver copies of the summaries to each Participating Party at the end of the seven-day period.

32. A mediator may conduct a mediation in joint meetings or private caucus convened at locations the mediator designates after consulting the Participating Parties.

33. Disclosures made by any Participating Party to a mediator in private caucus will not be disclosed by the mediator to any other Participating Party without the consent of the disclosing Participating Party.

34. No transcript or recording will be kept of a mediation meeting but this does not prevent a person from keeping notes of the negotiations.

CONFIDENTIALITY

35. In order to assist in the resolution of a Disagreement, mediations will not be open to the public, but this paragraph does not prevent leadership of the Underserviced First Nation and their representatives from attending.

36. The Parties, and all persons, will keep confidential:

(a) all oral and written information disclosed in the mediation; and

(b) the fact that this information has been disclosed.

37. The Participating Parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the mediation, any oral or written information disclosed in or arising from the mediation, including:

(a) any documents of other Participating Parties produced in the course of the mediation that are not otherwise produced or producible in that proceeding;

(b) any views expressed, or suggestions, or proposals made in respect of a possible settlement of the Disagreement;

(c) any admissions made by any Participating Party in the course of the mediation, unless otherwise stipulated by the admitting Participating Party;

(d) any recommendations for settlement made by the mediator; and

(e) the fact that any Participating Party has indicated a willingness to make or accept a proposal or recommendation for settlement

38. A mediator, or anyone retained or employed by the mediator, is not compellable in any proceeding to give evidence about any oral and written information acquired or opinion formed by that person as a result of the mediation, and all Participating Parties will oppose any effort to have that person or that information subpoenaed.

39. A mediator, or anyone retained or employed by the mediator, is disqualified as a consultant or expert in any proceeding relating to the Disagreement, including any proceeding that involves persons not a Participating Party to the mediation.

REFERRAL OF ISSUES TO OTHER PROCESSES

40. During a mediation the Participating Parties may agree to refer particular issues in the Disagreement to independent fact-finders, expert panels or other processes for opinions or findings that may assist them in the resolution of the Disagreement, and in that event, the Participating Parties will specify:

(a) the terms of reference for the process;

(b) the time within which the process will be concluded; and

41. The time specified for concluding a mediation will be extended for fifteen (15) days following receipt of the findings or opinions rendered in a process described in paragraph (40).

RIGHT TO WITHDRAW

42. A Participating Party may withdraw from a mediation at any time by giving notice of its intent to the mediator.

43. Before a withdrawal is effective, the withdrawing Participating Party will:

(a) speak with the mediator;

(b) disclose its reasons for withdrawing; and

TERMINATION OF MEDIATION

44. A mediation is terminated when any of the following occurs:

(a) subject to paragraph (41), the expiration of sixty (60) days after the appointment of the last mediator appointed to assist the Parties in resolving the Disagreement, or any longer period agreed by the Participating Parties;

(b) the Participating Parties have agreed in writing to terminate the mediation or not to appoint a replacement mediator in accordance with paragraph (25);

(d) the Participating Parties sign a written agreement resolving the Disagreement.

MEDIATOR RECOMMENDATION

45. If a mediation is terminated without an agreement between the Participating Parties, they may jointly request that the mediator give a written non-binding recommendation for settlement, but the mediator may decline the request without reasons.

46. Within fifteen (15) days after delivery of a mediator’s recommendation in accordance with paragraph (45), the Participating Parties will meet with the mediator to attempt to resolve the Disagreement.

COSTS

47. Subject to paragraph (40), Canada shall pay for the reasonable costs of mediations conducted under this Appendix in accordance with Section 9.08 of the Agreement.

Appendix K-3

Arbitration

DEFINITIONS

48. In this Appendix:

(a) “Court” means the superior court of the province where the Reserve of the Underserviced First Nation underlying the Disagreement is located;

(b) “Applicant” means the Participating Party that delivered the notice of arbitration;

(c) “Arbitral Award” means any decision of the Arbitrator on the substance of the Disagreement submitted to it, and includes:

(i) an interim award; and

(ii) an award of interest;

(d) “Arbitral Agreement” includes

(e) the requirement to refer to arbitration Disagreements in accordance with this Schedule; and

(f) an agreement of the Participating Parties to arbitrate a Disagreement;

(g) “Arbitrator” means a single arbitrator appointed in accordance with this Appendix;

(h) “Respondent” means a Participating Party other than the Applicant;

49. A reference in this Appendix, other than in paragraph (96) or (118)(a), to a claim, applies to a counterclaim, and a reference in this Appendix to a defence, applies to a defence to a counterclaim.

50. Notwithstanding any other provision in the Schedule, the Participating Parties may not vary paragraphs (63) or (108) of this Appendix.

COMMUNICATIONS

51. Except in respect of administrative details, the Participating Parties will not communicate with the Arbitrator:

(a) orally, except in the presence of all other Participating Parties; or

(b) in writing, without immediately sending a copy of that communication to all other Participating Parties.

EXTENT OF JUDICIAL INTERVENTION

52. In matters governed by this Appendix:

(a) no court will intervene except as provided in this Appendix or the Schedule; and

(b) no arbitral proceeding of an Arbitrator, or an order, ruling or Arbitral Award made by an Arbitrator will be appealed, questioned, reviewed, or restrained by a proceeding under any law except to the extent provided in this Appendix.

(c) the Participating Parties, to the greatest extent permitted by law, waive any right to appeal, question, review, or restrain arbitral proceeding of an Arbitrator, or an order, ruling or Arbitral Award made by an Arbitrator.

COMMENCEMENT OF ARBITRAL PROCEEDINGS

53. The arbitral proceedings in respect of a Disagreement commences on delivery of the notice of arbitration by the Applicant to the Respondents (“Arbitration Notice“).

NOTICE OF ARBITRATION

54. An Arbitration Notice will be in writing and contain the following information:

(a) a statement of the subject matter or issues of the Disagreement;

(b) a requirement that the Disagreement be referred to arbitration;

(d) any preferred qualifications of the arbitrators.

55. An Arbitration Notice may contain the names of any proposed arbitrators, including the information specified in paragraph (58).

ARBITRATOR

56. In each arbitration, there will be one arbitrator.

APPOINTMENT OF ARBITRATORS

57. The Participating Parties will make good faith efforts to agree on the Arbitrator from the Roster of Arbitrators. If the Participating Parties fail to agree on the Arbitrator within fifteen (15) days after the commencement of the arbitration, the Participating Parties will ask the Courts or any one of them to appoint an arbitrator form the Roster of Arbitrators.

58. In appointing an Arbitrator, the Courts will have due regard to:

(a) any qualifications required of the Arbitrator as set out in the Arbitration Notice or as otherwise agreed in writing by the Participating Parties; and

(b) any other considerations that are likely to secure the appointment of an independent and impartial Arbitrator.

TERMINATION OF MANDATE AND SUBSTITUTION OF ARBITRATOR

59. The mandate of an Arbitrator terminates:

(a) if the Arbitrator withdraws from office for any reason; or

(b) by, or pursuant to, agreement of the Participating Parties.

60. If the mandate of an Arbitrator terminates, a replacement arbitrator will be appointed in accordance with paragraph (57).

INTERIM MEASURES ORDERED BY ARBITRAL TRIBUNAL

61. Unless otherwise agreed by the Participating Parties, the Arbitrator may, at the request of a Participating Party, order a Participating Party to take any interim measure of protection as the Arbitrator may consider necessary in respect of the subject matter of the Disagreement.

EQUAL TREATMENT OF PARTIES

62. The Participating Parties will be treated with equality and each Participating Party will be given a full opportunity to present its case.

DETERMINATION OF RULES OF PROCEDURE

63. Subject to the Schedule and this Appendix, the Participating Parties may agree on the procedure to be followed by the Arbitrator in conducting the proceedings.

64. Failing any agreement in accordance with paragraph (63), the Arbitrator, subject to the Schedule and this Appendix, may conduct the arbitration in the manner they consider appropriate with due regard to the Indigenous legal traditions and protocols of the Underserviced First Nation.

65. The Arbitrator is not required to apply the legal rules of evidence, and may determine the admissibility, relevance, materiality and weight of any evidence. In accordance with the Schedule, the Arbitrator shall have due regard to the Indigenous legal traditions and protocols of the Underserviced First Nation in determining the presentation and admission of evidence.

66. Subject only to the Schedule and the Indigenous laws and protocols of the Underserviced First Nation, the Arbitrator will make all reasonable efforts to conduct the arbitral proceedings in the most efficient, expeditious and cost effective manner as is appropriate in all the circumstances of the case.

67. The Arbitrator may extend or abridge a period of time:

(a) set in this Appendix, except the period specified in paragraph (109); or

(b) established by the Arbitrator.

PRE-HEARING MEETING

68. Within ten (10) days after the Arbitrator is appointed, the Arbitrator will convene a pre-hearing meeting of the Participating Parties to reach agreement and to make any necessary orders on

(a) any procedural issues arising in accordance with this Appendix;

(b) the procedure and community protocols to be followed in the arbitration;

(c) any elders or knowledge keepers who will sit with and advise the Arbitrator on community protocol and Indigenous law;

(d) the time periods for taking steps in the arbitration;

(e) the scheduling of hearings or meetings, if any;

(f) any preliminary applications or objections; and

(g) any other matter which will assist the arbitration to proceed in an efficient and expeditious manner.

69. The Arbitrator will prepare and distribute promptly to the Participating Parties a written record of all the business transacted, and decisions and orders made, at the pre-hearing meeting.

70. The pre-hearing meeting may be conducted by conference or video conference call.

PLACE OF ARBITRATION

71. As far as practicable the place of the arbitration shall be on or near the reserve of the Underserviced First Nation.

72. An Arbitrator may

(a) with the consent of the Participating Parties, may meet at any other place it considers, for hearing witnesses, experts or the Participating Parties; and

(b) attend any place for inspection of documents, goods or other personal property, or for viewing physical locations.

LANGUAGE

73. As far as practicable the conduct of the arbitration will promote the use of the Indigenous language of the Underserviced First Nation.

74. Canada shall bear the costs of translation of oral presentations and proceedings, and of such documents as the Arbitrator may direct in the circumstances of a particular Disagreement.

STATEMENTS OF CLAIM AND DEFENCE

75. Within twenty-one (21) days after the Arbitrator is appointed, the Underserviced First Nation, as Applicant, will deliver its Remediation Plan and a written statement to Canada, the Respondent, stating the facts supporting its claim or position, the points at issue and the relief or remedy sought.

76. Within fifteen (15) days after receipt of the Applicant’s statement, the Respondent will deliver a written statement to all the Participating Parties stating its defence or position in respect of those particulars.

77. Each Participating Party will attach to its statement a list of documents:

(a) upon which the Participating Party intends to rely; and

(b) which describes each document by kind, date, author, addressee and subject matter.

78. The Participating Parties may amend or supplement their statements, including the list of documents, unless the Arbitrator considers it inappropriate to allow the amendment, supplement or additional pleadings having regard to:

(a) the delay in making it; and

(b) any prejudice suffered by the other Participating Parties.

79. The Participating Parties will deliver copies of all amended, supplemented or new documents delivered in accordance with paragraph (78) to all the Participating Parties.

DISCLOSURE

80. The Arbitrator may order a Participating Party to produce, within a specified time, any documents that:

(a) have not been listed in accordance with paragraph (77);

(b) the Participating Party has in its care, custody or control; and

81. Each Participating Party will allow the other Participating Parties the necessary access at reasonable times to inspect and take copies of all documents that the Participating Party has listed in accordance with paragraph (77), or that the Arbitrator has ordered to be produced in accordance with paragraph (80).

82. The Participating Parties will prepare and send to the Arbitrator an agreed statement of facts within the time specified by the Arbitrator, failing which the Parties will identify their differences and ask the arbitrator to decide the facts.

83. Not later than twenty-one (21) days before a hearing commences, each Participating Party will give the other Participating Party:

(a) the name and address of any witness and a written summary or statement of the witness’s evidence; and

(b) in the case of an expert witness, a written statement or report prepared by the expert witness.

84. Not later than fifteen (15) days before a hearing commences, each Participating Party will give to the other Participating Party and the Arbitrator an assembly of all documents to be introduced at the hearing.

HEARINGS AND WRITTEN PROCEEDINGS

85. Unless the Participating Parties have agreed that no hearings will be held, the Arbitrator will convene a hearing if so requested by a Participating Party.

86. The Arbitrator will give the Participating Parties sufficient advance notice of any hearing and of any meeting of the Arbitrator for the purpose of inspection of documents, goods or other property or viewing any physical location.

87. All statements, documents or other information supplied to, or applications made to, the Arbitrator by one Participating Party will be communicated to the other Participating Parties, and any expert report, evidentiary document or case law on which the Arbitrator may rely in making its decision will be communicated to the Participating Parties.

88. Unless ordered by the Arbitrator, all hearings and meetings in arbitral proceedings, other than the Arbitrator’s meetings, are open to the public.

89. The Arbitrator will schedule hearings to be held on consecutive days until completion.

90. All oral evidence will be taken in the presence of the Arbitrator and all the Participating Parties unless a Participating Party is absent by default or has waived the right to be present.

91. The Arbitrator may order any individual to be examined by the Arbitrator under oath or on affirmation in relation to the Disagreement and to produce before the Arbitrator all relevant documents within the individual’s care, custody or control.

92. The document assemblies delivered in accordance with paragraph (84) will be deemed to have been entered into evidence at the hearing without further proof and without being read out at the hearing, but a Participating Party may challenge the admissibility of any document so introduced.

93. If the Arbitrator considers it just and reasonable to do so, the Arbitrator may permit a document that was not previously listed in accordance with paragraph (77), or produced in accordance with paragraph (80) or (84), to be introduced at the hearing.

94. If the Arbitrator permits the evidence of a witness to be presented as a written statement, the other Participating Party may require that witness to be made available for cross examination at the hearing.

95. The Arbitrator may order a witness to appear and give evidence, and, in that event, the Participating Parties may cross examine that witness and call evidence in rebuttal.

DEFAULT OF A PARTY

96. If, without explanation, the Applicant fails to communicate its statement of claim in accordance with paragraph (75), the Arbitrator may terminate the proceedings. If, without explanation, a Respondent fails to communicate its statement of defence in accordance with paragraph (76), the Arbitrator will continue the proceedings without treating that failure in itself as an admission of the Applicant’s allegations.

97. If, without showing sufficient cause, a Participating Party fails to appear at the hearing or to produce documentary evidence, the Arbitrator may continue the proceedings and make the Arbitral Award on the evidence before it.

98. Before terminating the proceedings contemplated by paragraph (96), the Arbitrator will give all Parties written notice providing an opportunity to provide an explanation and to file a statement of claim in respect of the Disagreement within a specified period of time.

99. For greater clarity, termination under paragraph (96) is without prejudice to the Applicant’s ability to initiate new arbitration proceedings, without first returning to Stage 1 and 2 processes.

EXPERT APPOINTED BY ARBITRAL TRIBUNAL

100. After consulting the Participating Parties, the Arbitrator may:

(a) appoint one or more experts to report to it on specific issues to be determined by the Arbitrator; and

(b) for that purpose, require a Participating Party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other personal property or land for inspection or viewing.

101. The Arbitrator will give a copy of the expert’s report to the Participating Parties who will have an opportunity to reply to it.

102. If a Participating Party so requests, or if the Arbitrator considers it necessary, the expert will, after delivery of a written or oral report, participate in a hearing where the Participating Parties will have the opportunity to cross-examine the expert and to call any evidence in rebuttal.

103. The expert will, on the request of a Participating Party:

(a) make available to that Participating Party for examination all documents, goods or other property in the expert’s possession, and provided to the expert in order to prepare a report; and

(b) provide that Participating Party with a list of all documents, goods or other personal property or land not in the expert’s possession but which were provided to or given access to the expert, and a description of the location of those documents, goods or other personal property or lands.

LAW APPLICABLE TO SUBSTANCE OF DISPUTE

104. An Arbitrator will decide the Disagreement in accordance with the law, including Indigenous law, and the Schedule.

105. If the Participating Parties have expressly authorized it to do so, an Arbitrator may decide the Disagreement based upon equitable considerations.

106. In all cases, an Arbitrator will make its decisions in accordance with the spirit and intent of the Agreement.

SETTLEMENT

107. If, during arbitral proceedings, the Participating Parties settle the Disagreement, the Arbitrator will terminate the proceedings and, if requested by those Participating Parties, will record the settlement in the form of an Arbitral Award on agreed terms.

108. An Arbitral Award on agreed terms:

(a) will be made in accordance with paragraphs (110) to (112);

(b) will state that it is an Arbitral Award; and

FORM AND CONTENT OF ARBITRAL AWARD

109. An Arbitrator will make its final Arbitral Award as soon as possible and, in any event, not later than sixty (60) days after:

(a) the hearings have been closed; or

(b) the final submission has been made, whichever is the later date.

110. An Arbitral Award will be made in writing, and be signed by the Arbitrator.

111. An Arbitral Award will state the reasons upon which it is based, unless:

(a) the Participating Parties have agreed that no reasons are to be given; or

(b) the award is an Arbitral Award on agreed terms contemplated by paragraphs (107) and(108).

112. A signed copy of an Arbitral Award will be delivered to all the Participating Parties and the Joint Committee by the Arbitrator.

113. At any time during the arbitral proceedings, an Arbitrator may make an interim Arbitral Award on any matter with respect to which it may make a final Arbitral Award.

114. An Arbitrator may award interest.

115. Unless an Arbitrator orders otherwise, Canada shall pay for the costs of an arbitration under this Appendix in accordance with Section 9.08 of the Agreement.

TERMINATION OF PROCEEDINGS

116. An Arbitrator will close any hearings if:

(a) the Participating Parties advise they have no further evidence to give or submissions to make; or

(b) the Arbitrator considers further hearings to be unnecessary or inappropriate.

117. A final Arbitral Award, or an order of the Arbitrator in accordance with paragraph (118), terminates arbitral proceedings.

118. An Arbitrator will issue an order for the termination of the arbitral proceedings if:

(a) the Applicant withdraws its claim, unless the Respondent objects to the order and the Arbitrator recognizes a legitimate interest in obtaining a final settlement of the Disagreement;

(b) the Participating Parties agree on the termination of the proceedings; or

(c) the Arbitrator finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

119. Subject to paragraphs (120) to (125), the mandate of an Arbitrator terminates with the termination of the arbitral proceedings.

CORRECTION AND INTERPRETATION OF AWARD; ADDITIONAL AWARD

120. Within thirty (30) days after receipt of an Arbitral Award:

(a) a Participating Party may request the Arbitrator to correct in the Arbitral Award any computation errors, any clerical or typographical errors or any other errors of a similar nature; and

(b) a Participating Party may, if agreed by all the Participating Parties, request the Arbitrator to give an interpretation of a specific point or part of the Arbitral Award.

121. If an Arbitrator considers a request made in accordance with paragraph (120) to be justified, it will make the correction or give the interpretation within thirty (30) days after receipt of the request and the interpretation will form part of the Arbitral Award.

122. An Arbitrator, on its own initiative, may correct any error of the type referred to in sub-paragraph (120)(a) within thirty (30) days after the date of the Arbitral Award.

123. A Participating Party may request, within thirty (30) days after receipt of an Arbitral Award, the Arbitrator to make an additional Arbitral Award respecting claims presented in the arbitral proceedings but omitted from the Arbitral Award.

124. If the Arbitrator considers a request made in accordance with paragraph (123) to be justified, it will make an additional Arbitral Award within thirty (30) days.

125. Paragraphs (110) to (112), and paragraphs (114) to (115), apply to a correction or interpretation of an Arbitral Award made in accordance with paragraph (121) or(122), or to an additional Arbitral Award made in accordance with paragraph (124).

NO APPEAL

126. An Arbitral Award shall be final and binding on the Participating Parties and not subject to any appeal or review.

RECOGNITION AND ENFORCEMENT

127. An Arbitral Award will be recognized as binding and, upon application to the Court, will be recognized and enforced.

128. Unless the Court orders otherwise, the Participating Party relying on an Arbitral Award or applying for its enforcement will supply the duly authenticated original Arbitral Award or a duly certified copy of it.