Amendments to the Sahtu Dene and Metis Comprehensive Land Claim Agreement

6.1 General

6.1.1 In this chapter:

1. "parties" means the Sahtu Tribal Council, Canada, and the Government of Northwest Territories; and
2. "disputants" means:
   1. any two or more of the parties, as defined in 6.1.1(a), to a dispute being referred to this chapter, or
   2. a person identified in this agreement as a person who can refer a matter to this chapter for resolution.

6.1.2 Where a person referred to in 6.1.1(b)(ii) refers a matter to this chapter for resolution, that person becomes a disputant for only that particular matter.

6.1.3 This dispute resolution process is intended to assist the parties in resolving disputes which arise among the parties regarding the interpretation, application, or implementation of this agreement.

6.1.4 Where a participant has a right of action in relation to this agreement, the Sahtu Tribal Council may bring that action on behalf of that participant with the consent of that participant.

6.1.5 Negotiations, mediation sessions and arbitration hearings shall be held in the Northwest Territories, unless the disputants otherwise agree.

6.1.6 In the event of an arbitration, a party who is not a disputant is entitled to copies of all correspondence concerning the dispute between the disputants where the arbitration involves the interpretation, application, or implementation of this agreement.

6.1.7 The disputants may agree to abridge or extend the time frames set out in this chapter.

6.1.8 Prior to invoking the dispute resolution process set out in this chapter, the parties shall negotiate in good faith, and attempt to resolve a dispute arising out of the interpretation, application or implementation of this agreement.

6.1.9 The negotiations referred to in 6.1.8 shall be held among the parties' representatives on the implementation committee, at a time to be determined by the implementation committee.

6.1.10 If the parties are unable to resolve the dispute referred to in 6.1.8, they shall use the dispute resolution process set out in this chapter, unless the parties otherwise agree.

6.1.11 Subject to the provisions of this chapter, the Supreme Court of the Northwest Territories has jurisdiction in respect of any action arising out of this agreement, including any application for judicial review in respect of any board established pursuant to this agreement.

6.2 Notice

6.2.1 Any notice required pursuant to this chapter shall be delivered personally or transmitted by facsimile or other means of electronic transmission.

6.3 Commencing legal proceedings

6.3.1 No party shall commence legal proceedings in respect of a dispute arising out of the interpretation, application, or implementation of this agreement without first complying with the negotiation and mediation processes set out in this chapter.

6.3.2 Prior to commencing legal proceedings referred to in 6.3.1, a party shall provide thirty days written notice to the other parties.

6.3.3 Notwithstanding 6.3.1 and 6.3.2, a party may commence legal proceedings to:

1. prevent the loss of a right to commence proceedings due to the expiration of a limitation period; or
2. obtain interlocutory or interim relief that is otherwise available.

6.4 Invoking the process

6.4.1 A party may invoke this dispute resolution process with written notice to the other parties which shall:

• identify the parties to the dispute; and
• include a brief statement of the nature of the dispute.

6.4.2 The party invoking the dispute resolution process and the party or parties identified in 6.4.1(a) thereupon become disputants and shall, within thirty days of the receipt of the notice referred to in 6.4.1, identify to the other disputants the name of its representative.

6.4.3 A party that is not identified in 6.4.1(a) may become a disputant by giving written notice forthwith to the other parties and is thereafter entitled to receive copies of all correspondence concerning the dispute.

6.5 Mediation

6.5.1 Within sixty days of receipt of notice referred to in 6.4.1, the disputants shall attempt to agree on a mediator.

6.5.2 Where the disputants agree upon a mediator, they shall jointly appoint the mediator and the mediation shall commence within forty days of the appointment of the mediator.

6.5.3 Where the disputants have not agreed on a mediator within the sixty day period referred to in 6.5.1, the disputants shall apply for a mediator to be appointed by the Supreme Court of the Northwest Territories no later than ninety days after receipt of the notice referred to in 6.4.1.

6.5.4 Where a dispute is referred to mediation, the disputants shall:

1. participate in good faith in the mediation process;
2. each name representatives who shall have the authority, or direct access to a person with the authority, to settle the dispute;
3. meet with the mediator at a time and place set by the mediator;
4. bear their own costs of the mediation and, unless otherwise agreed, share equally all other costs of the mediation; and
5. attend the mediation for at least four hours.

6.5.5 Unless the disputants otherwise agree, the mediation shall conclude within thirty days from the initial meeting of the disputants with the mediator.

6.5.6 The mediator shall issue a report to the disputants and any party who is not a disputant within thirty days of the conclusion of the mediation which states whether the dispute was settled or not.

6.5.7 Subject to 6.5.9, if the dispute is not settled, the disputants may, with the written consent of each of the disputants, refer the issues in dispute to arbitration as set out in 6.6. If there is no consent, any disputant may commence legal proceedings with notice in accordance with 6.3.2.

6.5.8 Notwithstanding 6.5.7, any matter which this agreement stipulates is to be determined by arbitration does not require the written consent of the disputants.

6.5.9 Arbitration is not available for disputes relating to:

1. an agreement between or among the parties that is ancillary, subsequent or supplemental to this agreement, unless otherwise agreed to by the parties;
2. funding levels; or
3. matters respecting taxation.

6.6 Arbitration

6.6.1 Within sixty days of the referral to arbitration pursuant to 6.5.7, the disputants shall attempt to agree on an arbitrator.

6.6.2 Where the disputants agree upon an arbitrator, they shall jointly appoint the arbitrator and the arbitration shall commence within sixty days of the appointment of the arbitrator.

6.6.3 Where the disputants have not agreed on an arbitrator within the sixty day period referred to in 6.6.1, the disputants shall apply for an arbitrator to be appointed by the Supreme Court of the Northwest Territories no later than ninety days after referral to arbitration pursuant to 6.5.7.

6.6.4 The disputants may agree to ask the mediator selected or appointed under 6.5 to act as the arbitrator.

6.6.5 Unless the disputants otherwise agree, the proceedings before the arbitrator shall be held in private.

6.6.6 An arbitrator may not question the validity of, amend or delete any provision of this agreement.

6.6.7 The dispute shall be resolved by a single arbitrator who, unless the disputants otherwise agree:

1. shall decide the process and procedures for the arbitration;
2. shall decide the issues submitted to arbitration;
3. shall determine questions of law or jurisdiction or may refer such questions to the Supreme Court of the Northwest Territories;
4. shall determine all questions of fact and of procedure, including the method of giving evidence;
5. may provide interim relief;
6. may provide for the payment of interest and costs;
7. may subpoena witnesses and order production of documents;
8. shall administer oaths or affirmations to witnesses; and
9. shall correct clerical errors in orders and arbitration awards.

6.6.8 The arbitrator shall make a written decision, including reasons and a recital of the facts upon which the decision is based, within sixty days of the termination of the arbitration hearings, unless the disputants agree to an extension of time.

6.6.9 The arbitrator shall provide a copy of the written decision to disputants and to any party who is not a disputant.

6.6.10 Each party shall make the arbitrator's written decision available to the public on request.

6.6.11 The decision of the arbitrator is final and binding on the disputants and shall not be challenged by appeal or review in any court except on the ground that the arbitrator erred in law or exceeded his or her jurisdiction.

6.6.12 The Supreme Court of the Northwest Territories shall have exclusive jurisdiction to hear an appeal or an application for a review of the arbitrator's decision on the grounds set out in 6.6.11.

6.6.13 Unless otherwise agreed by the disputants or ordered by the arbitrator, each disputant shall bear its own costs of the arbitration and an equal share of the other costs of the arbitration.

6.6.14 A disputant may, after the expiration of fourteen days from the date of the release of an arbitration decision, award or order, or from the date set by the arbitrator for compliance, whichever is the later, file in the Registry of the Supreme Court of the Northwest Territories a copy of the decision, award or order and it shall be entered as if it were a decision or order of that Court and on being entered shall be deemed, for all purposes except an appeal from the decision, award or order, to be an order of the Supreme Court of the Northwest Territories and enforceable as such.

6.6.15 The record of an arbitration process is admissible as evidence in court.

6.7 Intervenors

6.7.1 An arbitrator may allow any person who is not a disputant, on application and on such terms as the arbitrator may order, to participate as an intervenor in an arbitration if the interests of that person may be directly affected by the dispute.

6.7.2 An intervenor added pursuant to 6.7.1 shall bear its own costs of participation and shall be bound by the provisions regarding costs and confidentiality set out in this chapter.

6.8 Settlement of dispute

6.8.1 At any time after the commencement of arbitration, but before an award is issued by an arbitrator, the disputants may settle their dispute in which case the process is concluded.

6.8.2 Where a matter is settled pursuant to 6.8.1 and in the absence of an agreement on costs among the disputants and intervenors, the issue of the costs may be referred to the dispute resolution process.

6.9 Confidentiality of information

6.9.1 Unless the disputants otherwise agree, information disclosed in negotiation or mediation and information disclosed pursuant to 6.1.6 shall be kept confidential by:

1. the disputants;
2. the mediator; and
3. the parties.

6.9.2 The disclosure of information by a disputant in negotiation or mediation is not a waiver of any privilege by that disputant for purposes of any arbitration or legal proceedings.

6.9.3 All negotiation and mediation efforts are conducted on a without prejudice basis.

6.9.4 All documents prepared for negotiation or mediation are privileged for the purposes of any arbitration or legal proceedings.

6.9.5 The personal notes or records of a mediator or an arbitrator are not admissible as evidence in any legal proceedings.

6.9.6 A mediator or an arbitrator:

1. shall not be called to give evidence in any legal proceeding; and
2. is not a compellable witness.