ARTICLE 38
DISPUTE RESOLUTION PROCESS
PART 1: DEFINITION
38.1.1 In this Article, "Parties to a dispute" means:
(a) two or more of the DIO, the Government of Canada, and the Territorial Government involved in, or whose interests are or may be affected by, a dispute between two or more of them about the interpretation, application or implementation of the Agreement; or
(b) in matters specifically designated in another Article for resolution under this Article, the Parties having standing in accordance with the other Article;
and "Party to a dispute" means any one of those Parties.
PART 2: RESOLUTION OF DISPUTES – GENERAL PRINCIPLES
38.2.1 The DIO, the Government of Canada and the Territorial Government shall endeavour to avoid recourse to litigation for the purposes of the interpretation, application and implementation of the Agreement and agree to resolve disputes through the processes set out below and engage in litigation only as a last resort.
38.2.2 The DIO, the Government of Canada and the Territorial Government shall endeavour in good faith to settle disputes informally through cooperation and discussions in order to arrive at a mutually satisfactory resolution.
38.2.3 Notwithstanding Section 38.2.1, nothing in this Article prevents any of the Parties to a dispute from commencing judicial proceedings at any time to avoid the expiration of a limitation period or from entering into an agreement to suspend a limitation period.
PART 3: IMPLEMENTATION PANEL
38.3.1 A dispute that cannot be resolved through informal processes shall be referred to the Implementation Panel.
38.3.2 The Parties to a dispute shall attempt to resolve disputes through negotiations at the Implementation Panel. If the Implementation Panel is not able to resolve the dispute within 60 days, a Party to a dispute may refer the dispute to mediation under Sections 38.4.1 to 38.4.12.
PART 4: MEDIATION
38.4.1 A Party to a dispute may initiate mediation 60 days after the date of the Implementation Panel meeting during which the dispute was first discussed.
38.4.2 The Parties to a dispute shall make reasonable efforts to appoint representatives for purposes of mediation of a dispute who have sufficient authority to come to an agreement or who have ready access to such authority.
38.4.3 A Party to a dispute shall initiate mediation in writing by sending a mediation notice to the other Party or Parties to a dispute, which shall include:
(a) the subject matter of the dispute;
(b) the issue or issues requiring resolution;
(c) a summary of the facts; and
(d) the name of its representative.
38.4.4 The Parties to a dispute agree to select individuals to act as mediators who are impartial, independent and free from conflict of interest relative to the matter at issue and have knowledge or experience to act in the appointed capacity. Where the Parties to a dispute do not agree upon a mediator, any of the Parties to a dispute may apply to the Nunavut Court of Justice for the appointment of a mediator.
38.4.5 Once the Parties to a dispute agree on the selection of a mediator or a mediator is appointed by the Court, as the case may be, the mediation shall commence within 30 days, unless the Parties to a dispute agree otherwise, and the Parties to a dispute shall Participate thereafter in good faith in the mediation process.
38.4.6 The mediation shall conclude when a resolution of the issue in dispute is reached or when a Party to a dispute or the mediator delivers a written statement that, in the opinion of that Party to the dispute or the mediator, no resolution is likely to be reached through mediation.
38.4.7 Any agreement reached through mediation shall be:
(a) recorded in writing;
(b) signed by the representatives of the Parties to a dispute;
(c) delivered to all Parties to a dispute in the mediation; and
(d) binding only on the Parties to a dispute who have signed the agreement.
38.4.8 The mediator shall not issue a report or make any written recommendations.
38.4.9 Unless the Parties to a dispute otherwise agree and subject to the Access to Information Act, R.S.C. 1985, c. A-1, the Privacy Act, R.S.C. 1985, c. P-21, the Library and Archives of Canada Act, S.C. 2004, c. 11, and any other legislation applicable to the disclosure of information, information disclosed in mediation and not otherwise publicly available shall be kept confidential by all Parties to a dispute and the mediator.
38.4.10 All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions and are not admissible as evidence in any arbitration or legal proceedings before a court, board, commission or other tribunal.
38.4.11 Evidence that is independently admissible or discoverable in any legal proceedings before any court, board, commission or other tribunal, shall not be rendered inadmissible or non- discoverable by virtue of its use during the mediation.
38.4.12 Each Party to a dispute shall bear its own costs of the mediation and its proportionate share of the other costs of the mediation, including remuneration and expenses of the mediator.
PART 5: ARBITRATION
38.5.1 A Party to a dispute may refer a matter to arbitration pursuant to Sections 38.5.2 to 38.5.15 by serving the notice referred to in Section 38.6.4:
(a) in matters designated in Sections 5.7.19, 21.7.15, 21.9.8, and 33.7.5 for resolution under this Article, directly without first referring the matter to the Implementation Panel or to mediation; or
(b) in any other matter, following conclusion of the mediation process, if mediation does not resolve the dispute.
38.5.2 An arbitrator shall have jurisdiction to arbitrate in respect of:
(a) subject to Section 38.5.3, any matter concerning the interpretation, application or implementation of the Agreement; and
(b) matters specifically designated in other Articles for resolution under this Article.
38.5.3 In deciding a dispute between the Parties to a dispute under this Article an arbitrator shall not:
(a) prescribe funding levels required to fulfill obligations of Government for implementation of the Agreement;
(b) prescribe Inuit employment levels required to be achieved by Government pursuant to Article 23;
(c) render decisions declaring invalid individual procurement contracts entered into between Government and third Parties, or render decisions on the provisions of such procurement contracts with respect to the obligations between the Parties to the procurement contract; or
(d) make determinations on questions of law which are not strictly related to the issue that is the subject of the arbitration.
38.5.4 For greater certainty, Sub-sections 38.5.3(a) and 38.5.3(b) do not prevent an arbitrator from making a monetary award of damages for breach of the Agreement.
38.5.5 Notwithstanding Sub-Section 38.5.3(c), an arbitrator may arbitrate an issue referred to it by a Party to a dispute which relates to obligations of Government or the DIO under Article 24.
38.5.6 An arbitrator is prohibited from making a decision that alters, amends, deletes or substitutes any provision of the Agreement in any manner.
38.5.7 At any point after the service of a notice of reference to arbitration, and prior to the rendering of a decision by an arbitrator, any Party to a dispute may refer a question of law arising from the arbitration to a judge of the Nunavut Court of Justice for determination.
38.5.8 At any point after the service of a notice of reference to arbitration, and prior to the rendering of a decision by an arbitrator, any Party to a dispute may give written notice that it seeks a direct meeting between elected representatives of the Parties to a dispute to explore, on a without prejudice basis, the possibility of a resolution of the dispute on a mutually satisfactory basis. Where such notice is given, the Parties to a dispute shall meet within 60 days, and the arbitration process shall be suspended for up to 60 days to allow such a meeting to take place.
38.5.9 Following the hearing of an arbitration, an arbitrator shall issue an initial decision. The initial decision shall not include any remedial order other than a declaration or declarations concerning the interpretation of the Agreement and the rights and obligations of the DIO or Government under the Agreement.
38.5.10 Following the release of an initial decision, a Party to a dispute has 30 days to present a proposed remedy to the other Party or Parties to a dispute. The terms of a proposed remedy are confidential and without prejudice. The Parties to a dispute agree to discuss any proposed remedy presented by a Party to a dispute and to seek agreement on the terms of a remedy.
38.5.11 If the Parties to a dispute agree on a remedy, it may be presented to the arbitrator and included on consent in a final award.
38.5.12 If within 60 days from the delivery of a proposed remedy the Parties to a dispute have not reached agreement on the terms of a remedy, a Party to a dispute may require the arbitration to reconvene for the purpose of determining an appropriate remedy and the arbitrator's determination shall be set out in a final award. In addition to any other remedy, a final award may provide for the payment of interest and costs, provided that no costs shall be awarded against the DIO when the arbitrator makes an award in favour of the
DIO.
38.5.13 Sections 38.5.8 to 38.5.12 do not apply to an arbitration regarding a matter referred to in Sub-Section 38.5.1(a), and following the hearing of such an arbitration, the arbitrator shall determine the appropriate remedy and the arbitrator's determination shall be set out in a final award. In addition to any other remedy, a final award may provide for the payment of interest and costs, provided that no costs shall be awarded against the DIO when the arbitrator makes an award in favour of the DIO.
38.5.14 Subject to Section 38.5.3, an arbitrator has the power to determine all questions of fact or law necessary for the determination of a dispute.
38.5.15 A Party to a dispute may appeal a final award of an arbitrator to the Nunavut Court of Justice.
PART 6: ARBITRATION PROCEDURES
38.6.1 It is intended that the process of arbitration will resolve disputes submitted to it in an informal and expeditious manner.
38.6.2 An arbitrator may establish further rules and procedures, consistent with this Article, to assist in the conduct of a specific reference.
38.6.3 A reference shall be heard and determined by a single arbitrator.
38.6.4 An arbitration shall be initiated by way of notice of reference to arbitration served by any Party to a dispute. The notice shall name the other Party or Parties to the dispute, set out the nature of the dispute, provide a summary of facts, describe the issue or issues to be arbitrated, propose an arbitrator, and describe the relief sought.
38.6.5 Within 30 days of being served notice of a reference to arbitration, the other Party or Parties to the dispute shall file a reply responding to the reference, agreeing to the arbitrator named in the reference or naming an alternative arbitrator, and describing any relief sought.
38.6.6 In the event that the Parties to a dispute do not agree on an arbitrator, the arbitrator shall be named by a judge pursuant to the Nunavut Arbitration Act, R.S.N.W.T. (Nu) 1988, c.A-5, and, in such case, the judge may appoint any person as an arbitrator as the judge thinks fit.
38.6.7 An arbitrator may, on application, allow any person to Participate in an arbitration as an intervenor, if in the arbitrator's opinion, the interest of that person may be affected by the arbitration, and on such terms as the arbitrator in its discretion may order.
38.6.8 If an arbitrator makes no decision as to costs, each Party to a dispute shall bear its own costs and its proportionate share of the other costs of the arbitration, including the remuneration and expenses of the arbitrator.
38.6.9 Notwithstanding Section 38.6.8, the Parties to a dispute shall not bear the costs of the arbitrator in any expropriation proceeding where the costs are normally paid by Government.
38.6.10 The Nunavut Arbitration Act, R.S.N.W.T.(Nu) 1988, c.A-5, shall apply to an arbitration under this Article to the extent that it is not inconsistent with these provisions.
38.6.11 The Implementation Panel shall maintain a public record of the arbitration decisions under this Article.
PART 7: STATUS OF ARBITRATION AWARDS
38.7.1 Where a Party to a dispute has failed to comply with any of the terms of the decision of the arbitrator, any Party to a dispute may file in the Nunavut Court of Justice, a copy of the decision, exclusive of the reason therefor, in the prescribed form, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such.
38.7.2 A Party to a dispute may request from the arbitrator, either before or during arbitral proceedings, interim relief and the arbitrator may grant such relief.
38.7.3 Unless otherwise specified in a decision of the arbitrator, the effective date of the arbitration decision is the date on which the decision is released.
38.7.4 Except in respect of disputes arbitrated under these provisions, nothing in these provisions affects the jurisdiction of any court.
PART 8: TRANSITIONAL
38.8.1 Sections 38.5.1 to 38.7.3 come into force on May 31, 2017.
38.8.2 With respect to matters designated for resolution under this Article in Sections 5.7.19, 14.10.1, 19.6.2, 19.6.3, 19.9.3, 21.5.5, 21.5.9, 21.7.15, 21.9.5, 21.9.8 and 33.7.5, this Article as it read immediately prior to the coming into force of this Section continues to apply until May 30, 2017.