The following electronic version is for informational purposes only.
The printed version remains the official version.
CHAPTER 22 – DISPUTE RESOLUTION
1. The Parties share the following objectives:
a. to cooperate with each other to develop harmonious working relationships;
b. to prevent or minimize Disagreements;
c. to identify Disagreements quickly and resolve them in the most expeditious and cost-effective manner; and
d. to resolve Disagreements in a non-adversarial, collaborative and informal atmosphere.
2. Except as otherwise provided, participating Parties may agree to vary a procedural requirement contained in this chapter, or in Appendix P, as it applies to a particular Disagreement.
3. Participating Parties may agree to, or the Supreme Court of British Columbia, on application, may order:
a. the abridgment of a time limit; or
b. the extension of a time limit, despite the expiration of that time limit in this chapter or in Appendix P.
4. In this chapter, and in Appendix P, a Party is deemed to be directly engaged in a Disagreement if another Party, acting reasonably, gives the first Party a written notice requiring it to participate in a process described in this chapter to resolve the Disagreement.
5. This chapter is not intended to apply to all conflicts or disputes between or among the Parties, but is limited to the conflicts or disputes described in clause 6.
6. This chapter only applies to:
a. a conflict or dispute in respect of:
i. the interpretation, application, or implementation of this Agreement, or
ii. a breach or anticipated breach of this Agreement;
b. a conflict or dispute, where provided for in this Agreement; or
c. negotiations required to be conducted under any provision of this Agreement that provides that the Parties, or any of them, "will negotiate and attempt to reach agreement".
7. This chapter does not apply to:
a. an agreement between or among the Parties other than this Agreement, unless the Parties have agreed that this chapter applies to that agreement;
b. the implementation plan; or
c. conflicts or disputes, where excluded from this chapter.
8. Nothing in this chapter limits the application of a dispute resolution process, under a Federal or Provincial Law, to a conflict or dispute involving a person if that conflict or dispute is not a Disagreement.
9. Nothing in a Federal Law or Provincial Law limits the right of a Party to refer a Disagreement to this chapter.
10. The Parties desire and expect that most Disagreements will be resolved by informal discussions between or among the Parties, without the necessity of invoking this chapter.
11. Subject to the provisions of this Agreement, Disagreements not resolved informally will progress, until resolved, through the following stages:
a. Stage One: formal, unassisted efforts to reach agreement between or among the Parties in collaborative negotiations under Appendix P-1;
b. Stage Two: structured efforts to reach agreement between or among the Parties with the assistance of a Neutral, who has no authority to resolve the dispute, in a facilitated process under Appendix P-2, P-3, P-4 or P-5 as applicable; and
c. Stage Three: final adjudication in arbitral proceedings under Appendix P-6, or in judicial proceedings.
12. Except as otherwise provided, no Party may refer a Disagreement to final adjudication in Stage Three without first proceeding through Stage One and a facilitated process in Stage Two as required in this chapter.
13. Nothing in this chapter prevents a Party from commencing arbitral or judicial proceedings at any time:
a. to prevent the loss of a right to commence proceedings due to the expiration of a limitation period; or
b. to obtain interlocutory or interim relief that is otherwise available pending resolution of the Disagreement under this chapter.
14. If a Disagreement is not resolved by informal discussion and a Party directly engaged in the Disagreement wishes to invoke this chapter, that Party will deliver a written notice, as required under Appendix P-1, as soon as practicable to the other Parties, requiring the commencement of collaborative negotiations.
15. Upon receiving the notice under clause 14, a Party directly engaged in the Disagreement will participate in the collaborative negotiations.
16. A Party not directly engaged in the Disagreement may participate in the collaborative negotiations by giving written notice to the other Parties, preferably before the collaborative negotiations commence.
17. If the Parties have commenced negotiations in the circumstances described in subclause 6.c then, for all purposes under this chapter, those negotiations will be deemed collaborative negotiations and the particular matter under negotiation will be considered a Disagreement.
18. Collaborative negotiations terminate in the circumstances set out in Appendix P-1.
19. Within 15 days of termination of collaborative negotiations that have not resolved the Disagreement, a Party directly engaged in a Disagreement by delivering a notice to the other Parties may require the commencement of a facilitated process.
20. A notice under clause 19:
a. will include the name of the Party or Parties directly engaged in the Disagreement and a summary of the particulars of the Disagreement; and
b. may propose the use of a particular facilitated process described in clause 23.
21. Upon receiving a notice under clause 19, a Party directly engaged in the Disagreement will participate in a facilitated process described in clause 23.
22. A Party not directly engaged in the Disagreement may participate in the facilitated process by giving written notice to the other Parties within 15 days of delivery of a notice under clause 19.
23. Within 30 days after delivery of a notice under clause 19, the Parties directly engaged in the Disagreement will attempt to agree to use one of the following processes:
a. mediation under Appendix P-2;
b. technical advisory panel under Appendix P-3;
c. neutral evaluation under Appendix P-4;
d. elders advisory council under Appendix P-5; or
e. any other non-binding dispute resolution process assisted by a Neutral
and if they fail to agree, they will be deemed to have selected mediation under Appendix P-2.
24. A facilitated process terminates:
a. in the circumstances set out in the applicable Appendix; or
b. as agreed by the participating Parties, if an Appendix does not apply.
25. In order to enhance the prospect of reaching agreement, the Parties participating in collaborative negotiations or a negotiation component of a facilitated process will:
a. at the request of a participating Party, provide timely disclosure of sufficient information and documents to enable a full examination of the subject matter being negotiated;
b. make every reasonable effort to appoint negotiating representatives who have sufficient authority to reach an agreement, or who have ready access to such authority; and
c. negotiate in good faith.
26. Any agreement reached in a process under this chapter
a. will be:
i. recorded in writing;
ii. signed by authorized representatives of the Parties to the agreement; and
iii. delivered to all Parties; and
b. is binding only on the Parties who have signed the agreement.
27. After the later of termination of collaborative negotiations, or of a required facilitated process, in respect of a Disagreement arising out of any provision of this Agreement that provides that a matter will be "finally determined by arbitration", the Disagreement will, on the delivery of a notice by a Party directly engaged in the Disagreement, to all Parties as required under Appendix P-6, be referred to and finally resolved by arbitration in accordance with that Appendix.
28. After the later of termination of collaborative negotiations, or a required facilitated process, in respect of any Disagreement, other than a Disagreement referred to in clause 27, and with the written agreement of all the Parties directly engaged in the Disagreement, the Disagreement will be referred to, and finally resolved by, arbitration in accordance with Appendix P-6.
29. Where two Parties make a written agreement under clause 28, they will deliver a copy of the agreement as soon as practicable to the Party that is not directly engaged in the Disagreement.
30. Upon delivering a written notice to the participating Parties to the arbitration within 15 days after receiving a notice under clause 27 or copy of a written agreement under clause 28, a Party not directly engaged in the Disagreement is entitled to be, and will be added as, a party to the arbitration of that Disagreement whether or not that Party has participated in collaborative negotiations or a required facilitated process.
31. Despite clause 30, an arbitral tribunal may make an order adding a Party as a participating Party at any time, if the arbitral tribunal considers that:
a. the participating Parties will not be unduly prejudiced; or
b. the issues stated in the pleadings are materially different from those identified in the notice to arbitrate under clause 27 or the written agreement to arbitrate under clause 28,
and, in that event, the arbitral tribunal may make any order it considers appropriate or necessary in the circumstances in respect of conditions, including the payment of costs, upon which the Party may be added.
32. An arbitral award is final and binding on all Parties whether or not a Party has participated in the arbitration.
33. Despite clause 32, an arbitral award is not binding on a Party that has not participated in the arbitration if:
a. the Party did not receive copies of:
i. the notice of arbitration or agreement to arbitrate; or
ii. the pleadings and any amendments or supplements to the pleadings; or
b. the arbitral tribunal refused to add the Party as a participating Party to the arbitration under clause 31.
34. No legislation of any Party in respect of arbitration, except the Settlement Legislation, applies to an arbitration conducted under this chapter.
35. A court must not intervene or offer assistance in an arbitration or review an arbitral award under this chapter except as provided in Appendix P-6.
36. Nothing in this chapter creates a cause of action where none otherwise exists.
37. Subject to clause 38, at any time a Party may commence proceedings in the Supreme Court of British Columbia in respect of a Disagreement.
38. A Party may not commence judicial proceedings in respect of a Disagreement if the Disagreement:
a. is required to be referred to arbitration under clause 27 or has been agreed to be referred to arbitration under clause 28;
b. has not been referred to collaborative negotiations or a facilitated process as required under this chapter; or
c. has been referred to collaborative negotiations or a facilitated process that has not yet been terminated.
39. Nothing in subclause 38.a prevents an arbitral tribunal or the participating Parties from requesting the Supreme Court of British Columbia to make a ruling respecting a question of law as permitted in Appendix P-6.
40. If, in any judicial or administrative proceeding, an issue arises in respect of:
a. the interpretation or validity of this Agreement; or
b. the validity, or applicability of:
i. any Settlement Legislation; or
ii. any Tsawwassen Law,
the issue will not be decided until the party raising the issue has properly served notice on the Attorney General of British Columbia, the Attorney General of Canada, and Tsawwassen First Nation.
41. In any judicial or administrative proceeding to which clause 40 applies, the Attorney General of British Columbia, the Attorney General of Canada, and Tsawwassen First Nation may appear and participate in the proceedings as parties with the same rights as any other party.
42. Except as provided otherwise in the Appendices, each participating Party will bear the costs of its own participation, representation, and appointments in collaborative negotiations, a facilitated process, or an arbitration, conducted under this chapter.
43. Subject to clause 42 and except as provided otherwise in the Appendices, the participating Parties will share equally all costs of collaborative negotiations, a facilitated process, or an arbitration, conducted under this chapter.
44. For purposes of clause 43, "costs" include:
a. fees of the Neutrals;
b. costs of hearing and meeting rooms;
c. actual and reasonable costs of communications, accommodation;
d. meals, and travel of the neutrals;
e. costs of required secretarial and administrative support for the Neutrals, as permitted in the Appendices; and
f. administration fees of a Neutral Appointing Authority.