ARTICLE 38 Amended - P.C. 2017-383 April 13, 2017

DISPUTE RESOLUTION PROCESS A

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