The following electronic version is for informational purposes only.
The printed version remains the official version.
APPENDIX Y
DISPUTE RESOLUTION PROCEDURES
Appendix Y-1
Identification of Parties Directly Engaged in a Disagreement
1. In this Appendix:
a) "Chapter" means Chapter 25 Dispute Resolution;
b) "Notice Issuer" means a Party that has given notice in accordance with 25.5.1, 25.6.1 or 25.9.1 of the Chapter; and
c) "Notice Recipient" means the Party providing the written reply in accordance with paragraph 2.
2. A Party who is identified in a notice under 25.5.1, 25.6.1 or 25.9.1 of the Chapter as being directly engaged in a Disagreement may dispute whether it is directly engaged in a Disagreement by providing the other Parties with a written reply to the notice in accordance with paragraph 3, failing which that Party is deemed to be directly engaged in the Disagreement in accordance with 25.1.2 of the Chapter.
3. The written reply contemplated by paragraph 2 will:
a) include the reasons why the Notice Recipient does not consider itself to be directly engaged in the Disagreement; and
b) be delivered to the other Parties within 10 days of the receipt of the notice.
4. Within 10 days of the receipt of a reply in accordance with paragraph 2, any Party may, by sending a notice of summary arbitration in accordance with paragraph 5, refer the question of whether the Notice Recipient is directly engaged in the Disagreement for summary determination by a single arbitrator.
5. If no Party sends a notice of summary arbitration in accordance with paragraph 4, the Notice Issuer is deemed not to be directly engaged in the Disagreement.
6. A notice of summary arbitration will be in writing and include the following:
a) a brief summary of the particulars of the dispute; and
b) the suggested name of an arbitrator.
7. Any Party other than the Notice Issuer and the Notice Recipient may participate in the summary arbitration process by giving written notice to the other Parties within 15 days of delivery of a notice of summary arbitration.
8. If the Participating Parties fail to agree on the arbitrator within 30 days after a notice of summary arbitration has been received, the appointment will be made by the Neutral Appointing Authority.
9. The Participating Parties will provide to the arbitrator, written submissions according to the following schedule:
a) Submission by the Notice Recipient – seven days following appointment of the arbitrator;
b) Submission by the Notice Issuer – 10 days following the filing of the Submission by the Notice Recipient;
c) Submission by the other Participating Parties – seven days following the Submission by the Notice Issuer;
d) Reply of the Notice Recipient – seven days following the Submission of the other Participating Parties.
10. All submissions will be provided to the other Participating Parties at the same time that they are submitted to the arbitrator.
11. The arbitrator will consider the material submitted by the Participating Parties, without convening an oral proceeding, and will decide the issue described in the notice of summary arbitration within seven days after either the submission of the last material or the expiration of the last date prescribed for the submission of material, whichever event occurs first.
12. The decision of the arbitrator contemplated by paragraph 11 will be in the form of a written document and will be final and binding on all Parties and will not be subject to any proceedings by way of appeal.
Appendix Y-2
Collaborative Negotiations
1. In this Appendix "Chapter" means Chapter 25 Dispute Resolution.
GENERAL
2. Collaborative negotiations commence:
a) on the date of delivery of a written notice requiring the commencement of collaborative negotiations; or
b) in the case of negotiations in the circumstances described in 25.2.2 c. of the Chapter, on the date of the first negotiation meeting.
3. A notice under 25.5.1 of the Chapter requiring the commencement of collaborative negotiations will include the following:
a) the names of the Parties directly engaged in the Disagreement;
b) a summary of the particulars of the Disagreement;
c) a description of the efforts made to date to resolve the Disagreement;
d) the names of the individuals involved in those efforts; and
e) any other information that will help the Participating Parties.
4. A Participating Party may attend collaborative negotiations with or without legal counsel or other advisors.
5. 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.
6. The Participating Parties will convene their first negotiation meeting in collaborative negotiations, other than those described in 25.2.2 c. of the Chapter, within 21 days after the commencement of the collaborative negotiations.
7. Before the first scheduled negotiation meeting, the Participating Parties will attempt to agree on any procedural issues that will facilitate the collaborative negotiations, including the requirements of 25.7.1 of the Chapter.
8. For purposes of 25.7.1 a. of the Chapter, "timely disclosure" means disclosure made within 15 days after a request for disclosure by a Participating Party.
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;
c) exploring alternative solutions;
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.
11. In order to assist in the resolution of a Disagreement, collaborative negotiations will not be open to the public.
12. The 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 Parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the collaborative negotiations, any oral or written information disclosed in or arising from the collaborative negotiations, including:
a) any documents of other Parties produced in the course of the collaborative negotiations that are not otherwise produced or producible in that proceeding;
b) any views expressed, or suggestions made, by any Party in respect of a possible settlement of the Disagreement;
c) any admissions made by any Party in the course of the collaborative negotiations, unless otherwise stipulated by the admitting Party; and
d) the fact that any Party has indicated a willingness to make or accept a proposal for settlement.
14. Paragraphs 12 and 13 do not apply:
a) in any proceeding for the enforcement or setting aside of an agreement resolving the Disagreement that was the subject of the collaborative negotiation;
b) if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
c) if the oral or written information referred to in paragraphs 12 and 13 is in the public forum.
15. For greater certainty, nothing in paragraph 13 precludes a Party from relying on or introducing as evidence in any proceeding any documents that:
a) are produced by that Party in the course of the collaborative negotiations; and
b) are otherwise producible.
16. A Participating Party may withdraw from collaborative negotiations at any time.
17. Collaborative negotiations are terminated when any of the following occurs:
a) the expiration of:
i) 30 days; or
ii) in the case of collaborative negotiations in the circumstances described in 25.2.2 c. of the Chapter, 120 days after the first scheduled negotiation meeting, or any longer period agreed to by the Participating Parties in writing;
b) a Participating Party directly engaged in the Disagreement withdraws from the collaborative negotiations under paragraph 16;
c) the Participating Parties agree in writing to terminate the collaborative negotiations; or
d) the Participating Parties directly engaged in the Disagreement sign a written agreement resolving the Disagreement.
1. In this Appendix "Chapter" means Chapter 25 Dispute Resolution.
2. A mediation commences on the date the Parties directly engaged in the Disagreement have agreed to use mediation, or are deemed to have agreed to use mediation, in accordance with 25.6.5 of the Chapter.
3. A mediation will be conducted by one mediator jointly appointed by the Participating Parties.
4. A mediator will be:
a) an experienced and skilled mediator, preferably with unique qualities or specialized knowledge that would be of assistance in the circumstances of the Disagreement; and
b) independent and impartial.
5. If the Participating Parties fail to agree on a mediator within 15 days after commencement of a mediation, the appointment will be made by the Neutral Appointing Authority on the written request of a Participating Party that is copied to the other Participating Parties.
6. Subject to any limitations agreed to by the Participating Parties, a mediator may employ reasonable and necessary administrative or other support services.
7. 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.
8. On receipt of a written notice in accordance with paragraph 7, the mediator will immediately withdraw from the mediation.
9. An individual who is Maa‑nulth‑aht or a Maa‑nulth First Nation Citizen, or related to Maa‑nulth‑aht or a Maa‑nulth First Nation Citizen, will not be required to withdraw in accordance with paragraph 7 solely on the grounds of that citizenship or relationship.
10. A mediator's appointment terminates if:
a) the mediator is required to withdraw in accordance with paragraph 8;
b) the mediator withdraws from office for any reason; or
c) the Participating Parties agree to the termination.
11. If a mediator's appointment terminates, a replacement mediator will be appointed in accordance with paragraphs 3 to 5 within the required time commencing from the date of the termination of the appointment.
12. A Participating Party may attend a mediation with or without legal counsel or other advisor.
13. If a mediator is a lawyer, the mediator will not act as legal counsel for any Participating Party.
14. 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.
15. 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.
16. A mediator may conduct a mediation in any manner the mediator considers necessary and appropriate to assist the Participating Parties to resolve the Disagreement in a fair, efficient and cost-effective manner.
17. Within seven days of appointment of a mediator, each Participating Party will 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.
18. A mediator may conduct a mediation in joint meetings or private caucus convened at locations the mediator designates after consulting the Participating Parties.
19. 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.
20. No transcript or recording will be kept of a mediation meeting but this does not prevent a person from keeping notes of the negotiations.
21. In order to assist in the resolution of a Disagreement, a mediation will not be open to the public.
22. 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.
23. The 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 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 Party in the course of the mediation, unless otherwise stipulated by the admitting Party;
d) any recommendations for settlement made by the mediator; and
e) the fact that any Party has indicated a willingness to make or accept a proposal or recommendation for settlement.
24. Paragraphs 22 and 23 do not apply:
a) in any proceeding for the enforcement or setting aside of an agreement resolving the Disagreement that was the subject of a mediation;
b) if the adjudicator in any proceeding determines that the interests of public or the administration of justice outweigh the need for confidentiality; or
c) if the oral or written information referred to in paragraphs 22 and 23 is in the public forum.
25. For greater certainty, nothing in paragraph 23 precludes a Party from relying on or introducing as evidence in any proceeding any documents that:
a) are produced by that Party in the course of mediation; and
b) are otherwise producible.
26. 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 Parties will oppose any effort to have that person or that information subpoenaed.
27. 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.
28. 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
c) how the costs of the process are to be allocated to the Participating Parties.
29. The time specified for concluding a mediation will be extended for 15 days following receipt of the findings or opinions rendered in a process described in paragraph 28.
30. A Participating Party may withdraw from a mediation at any time by giving written notice of its intent to the mediator.
31. Before a withdrawal is effective, the withdrawing Participating Party will:
a) speak with the mediator;
b) disclose its reasons for withdrawing; and
c) give the mediator the opportunity to discuss the consequences of withdrawal.
32. A mediation is terminated when any of the following occurs:
a) subject to paragraph 29, the expiration of 30 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 in writing;
b) the Participating Parties have agreed in writing to terminate the mediation or not to appoint a replacement mediator in accordance with paragraph 11;
c) a Participating Party directly engaged in the Disagreement withdraws from the mediation in accordance with paragraph 30; or
d) the Participating Parties directly engaged in the Disagreement sign a written agreement resolving the Disagreement.
33. If a mediation is terminated without the Parties who are directly engaged in the Disagreement reaching agreement, the Parties who are directly engaged in the Disagreement may agree to request the mediator to give a written non-binding recommendation for settlement, but the mediator may decline the request without reasons.
34. Within 15 days after delivery of a mediator's recommendation in accordance with paragraph 33, the Participating Parties will meet with the mediator to attempt to resolve the Disagreement.
35. A Participating Party withdrawing from a mediation in accordance with paragraph 30 is not responsible for any costs of the mediation that are incurred after the date that Participating Party's withdrawal takes effect.
Appendix Y-4
Technical Advisory Panel
1. In this Appendix:
a) "Chapter" means Chapter 25 Dispute Resolution;
b) "Member" means a member of the Panel;
c) "Panel" means a technical advisory panel appointed in accordance with this Appendix; and
d) "Reference" means a reference of a Disagreement to the Panel.
2. A question of law may not be referred to a Panel.
3. A Reference commences on the date the Parties directly engaged in the Disagreement have agreed in writing to use a Panel in accordance with 25.6.5 of the Chapter.
4. A Panel will have three Members unless the Participating Parties agree on a Panel of five Members.
5. A Member will be skilled and knowledgeable in the technical or scientific subject matter or issues of the Disagreement.
6. If there are two Participating Parties and the Panel will have:
a) three Members, each Participating Party will appoint one Member and the two appointed Members will jointly appoint the third Member; or
b) five Members, each Participating Party will appoint two Members and the four appointed Members will jointly appoint the fifth Member.
7. If there are three Participating Parties and the Panel will have:
a) three Members, each Participating Party will appoint one Member; or
b) five Members, each Participating Party will appoint one Member and the three appointed Members will jointly appoint the fourth and fifth Members.
8. In the appointment procedures contemplated by paragraphs 6 and 7, if:
a) a Participating Party fails to appoint the required number of Members within 30 days after commencement of the Reference; or
b) the appointing Members fail to appoint the required number of additional Members within 15 days after the last appointing Member was appointed,
the required appointments will be made by the Neutral Appointing Authority on the written request of a Participating Party that is copied to the other Participating Parties.
9. The appointment of a Member who is jointly appointed by the Participating Parties, by the appointing Members or by the Neutral Appointing Authority, terminates if:
a) the Member withdraws from office for any reason; or
b) the Participating Parties agree to the termination.
10. The appointment of a Member appointed by one Participating Party, or by the Neutral Appointing Authority in place of the Participating Party, terminates if:
a) the Member withdraws from, or is unable to perform the duties of, office for any reason; or
b) the appointing Participating Party terminates the appointment.
11. If the appointment of a Member jointly appointed by the Participating Parties, by the appointing Members, or by the Neutral Appointing Authority in place of the Participating Parties or Members, terminates, a replacement Member will be appointed in accordance with paragraph 6 or 7, as applicable, within the required time commencing from the termination of the former Member's appointment.
12. Subject to paragraph 13, if the appointment of a Member appointed by one Participating Party or by the Neutral Appointing Authority in place of the Participating Party terminates, a replacement Member will be appointed in accordance with paragraph 6 or 7, as applicable, within the required time commencing from the termination of the former Member's appointment.
13. A Participating Party may elect not to replace a Member it had appointed but the Participating Party may not withdraw from the Reference except as permitted in accordance with paragraphs 31 to 35.
14. Not more than 15 days after the appointment of the last Member of a Panel, the Participating Parties will provide the Panel with written terms of reference that set out at least the following:
a) the Participating Parties to the Disagreement;
b) the subject matter or issues of the Disagreement;
c) the kind of assistance that the Participating Parties request from the Panel, including giving advice, making determinations, finding facts, conducting, evaluating and reporting on studies and making recommendations;
d) the time period within which the Participating Parties request the assistance to be provided;
e) the time periods or stages of the Reference at the conclusion of which the Panel will provide the Participating Parties with written interim reports on the Panel's progress on the referral and on expenditures in the budget contemplated by paragraph 16 as they relate to that progress;
f) the time within which the Panel will provide the Parties with the budget contemplated by paragraph 16; and
g) any limitations on the application of paragraphs 36 to 42 to the Reference.
15. The Participating Parties may discuss the proposed terms of reference with the Panel before they are finally settled.
16. Within the time referred to in paragraph 14 f), the Panel will provide the Participating Parties with a budget for the costs of conducting the Reference, including:
a) fees to be paid to the Members who have been jointly appointed by the Participating Parties, by appointing Members, or by the Neutral Appointing Authority;
b) costs of required travel, food and accommodation of Members who have been jointly appointed by the Participating Parties, by appointing Members or by the Neutral Appointing Authority;
c) costs of any required administrative assistance; and
d) costs of any studies.
17. The Participating Parties will consider the budget submitted by the Panel and approve that budget with any amendments agreed by the Participating Parties before the Panel undertakes any activities under the Reference.
18. The Participating Parties are not responsible for any costs incurred by the Panel that are in excess of those approved in accordance with paragraph 17, and the Panel is not authorized to incur any costs beyond that amount without obtaining prior written approval from all the Participating Parties.
19. The Participating Parties may amend the written terms of Reference or the budget from time to time as they consider necessary, or on recommendation of the Panel.
20. The Participating Parties will:
a) cooperate fully with the Panel;
b) comply with any requests made by the Panel as permitted or required in this Appendix; and
c) give prompt attention to and respond to all communications from the Panel.
21. Subject to any limitations or requirements in the terms of Reference given and the limits of the budget approved in accordance with paragraphs 17 to 19, the Panel may conduct its Reference using any procedure it considers necessary or appropriate, including holding a hearing.
22. If a hearing is held, the hearing will be conducted as efficiently as possible and in the manner the Panel specifies, after consultation with the Participating Parties.
23. If a hearing is held, the Panel will give the Parties reasonable written notice of the hearing date, which notice will, in any event, be not less than seven days.
24. No transcript or recording will be kept of a hearing, but this does not prevent an individual attending the hearing from keeping notes of the hearing.
25. The legal rules of evidence do not apply to a hearing before the Panel.
26. The Panel will give the Participating Parties the interim and final written reports specified in its terms of Reference within the required times.
27. A report of the Panel is not binding on the Participating Parties.
28. A Panel will appoint one of its Members to act as chair of the Panel.
29. The chair of a Panel is responsible for all communications between the Panel, the Participating Parties and any other person to whom the Panel wishes to communicate, but this does not preclude a Member from communicating informally with a Participating Party.
30. A Panel will make every reasonable effort to conduct its business, and fulfill its obligations in accordance with its terms of Reference, by consensus, but:
a) if consensus is not possible, by actions approved by a majority of its Members; or
b) if a majority is not possible, by actions approved by the chair of the Panel.
31. If one of two Participating Parties to a Reference, or two of three Participating Parties to a Reference, are not satisfied with the progress of the Reference:
a) after receipt of an interim report; or
b) as a result of the Panel's failure to submit an interim report within the required time,
the dissatisfied Participating Party or Participating Parties, as the case may be, may give written notice to the Panel and the other Participating Parties that the Participating Party or Participating Parties are withdrawing from the Reference and that the Reference is terminated.
32. If one of three Participating Parties to a Reference is not satisfied with the progress of the Reference:
a) after receipt of an interim report; or
b) as a result of the Panel's failure to submit an interim report within the required time,
the dissatisfied Participating Party may give written notice to the Panel and the other Participating Parties that it is withdrawing from the Reference.
33. Two Participating Parties who receive a notice in accordance with paragraph 32 will advise the Panel in writing that they have agreed:
a) to terminate the Reference; or
b) to continue the Reference.
34. If no Participating Party gives a notice in accordance with paragraphs 31 or 32 within 10 days after:
a) receipt of an interim report; or
b) the time required to submit an interim report,
all Participating Parties will be deemed to be satisfied with the progress of the Reference until submission of the next required interim report.
35. No Participating Party may withdraw from a Reference except as permitted in accordance with paragraph 31 to 34.
36. The Participating Parties may, by agreement recorded in the terms of reference of the Panel in paragraph 14, limit the application of all or any part of paragraphs 37 to 42 in a Reference.
37. In order to assist in the resolution of the Disagreement, a Reference will not be open to the public.
38. The Parties, and all persons, will keep confidential:
a) all oral and written information disclosed in the Reference; and
b) the fact that this information has been disclosed.
39. The Parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the Reference, any oral or written information disclosed in or arising from the Reference, including:
a) any documents of other Parties produced in the course of the Reference that are not otherwise produced or producible in that proceeding;
b) any views expressed, or suggestions made, in respect of a possible settlement of the Disagreement;
c) any admissions made by any Party in the course of the Reference, unless otherwise stipulated by the admitting Party;
d) the fact that any Party has indicated a willingness to make or accept a proposal or recommendation for settlement; and
e) any reports of the Panel.
40. Paragraphs 38 and 39 do not apply:
a) in any proceeding for the enforcement or setting aside of an agreement resolving the Disagreement that was the subject of the Reference;
b) if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
c) if the oral or written information referred to in those paragraphs is in the public forum.
41. For greater certainty, nothing in paragraph 39 precludes a Party from relying on or introducing as evidence in any proceeding any documents that:
a) are produced by that Party in the Reference; and
b) are otherwise producible.
42. A Member, or anyone retained or employed by the Member, is not compellable in any proceeding to give evidence about any oral or written information acquired or opinion formed by that person as a result of the Reference, and all Parties will oppose any effort to have that person or that information subpoenaed.
43. A Member, or anyone retained or employed by the Member, is disqualified as a consultant or expert in any proceeding relating to the Disagreement, including any proceeding that involves persons not a Party to the Reference.
44. Within 21 days after receipt of the final written report of a Panel, the Participating Parties will meet and make an effort to resolve the Disagreement taking into account the report of the Panel or any other considerations.
45. If the Participating Parties and the Panel agree, the Members of a Panel may attend the meeting contemplated by paragraph 44, and provide any necessary assistance to the Participating Parties.
46. A Reference is terminated when any of the following occurs:
a) the Reference has been terminated as permitted in accordance with paragraph 31 or 33;
b) the expiration of 30 days after receipt of the final report of the Panel, or any longer period agreed by the Participating Parties in writing; or
c) the Participating Parties directly engaged in the Disagreement sign a written agreement resolving the Disagreement.
47. A Participating Party is not responsible for sharing any costs of the Reference that were incurred after the date that Participating Party notified the other Participating Parties, in accordance with paragraph 32, of its withdrawal from the Reference.
Appendix Y-5
Neutral Evaluation
1. In this Appendix "Chapter" means Chapter 25 Dispute Resolution.
2. A neutral evaluation commences on the date that the Parties directly engaged in the Disagreement have agreed to use neutral evaluation in accordance with 25.6.5 of the Chapter.
3. A neutral evaluation will be conducted by one individual jointly appointed by the Participating Parties.
4. A neutral evaluator will be:
a) experienced or skilled in the subject matter or issues of the Disagreement; and
b) independent and impartial.
5. If the Participating Parties fail to agree on a neutral evaluator within 21 days after commencement of a neutral evaluation, the appointment will be made by the Neutral Appointing Authority on the written request of a Participating Party that is copied to the other Participating Parties.
6. Subject to any limitations agreed to by the Participating Parties, a neutral evaluator may employ reasonable and necessary administrative or other support services.
7. At any time a Participating Party may give a neutral evaluator and the other Participating Parties a written notice, with or without reasons, requiring the neutral evaluator to withdraw from the neutral evaluation on the grounds that the Participating Party has justifiable doubts as to the neutral evaluator's independence or impartiality.
8. On receipt of a written notice in accordance with paragraph 7, the neutral evaluator will immediately withdraw from the neutral evaluation.
9. An individual who is a Maa‑nulth‑aht or a Maa‑nulth First Nation Citizen, or related to a Maa‑nulth‑aht or Maa‑nulth First Nation Citizen, will not be required to withdraw in accordance with paragraph 7 solely on the grounds of that citizenship or relationship.
10. A neutral evaluator's appointment terminates if:
a) the neutral evaluator is required to withdraw in accordance with paragraph 8;
b) the neutral evaluator withdraws from, or is unable to perform the duties of, office for any reason; or
c) the Participating Parties agree to the termination.
11. If a neutral evaluator's appointment terminates, a replacement will be appointed in accordance with paragraph 5 within the required time commencing from the date of the termination of the appointment.
12. Except with respect to administrative details or a meeting in accordance with paragraph 31, the Participating Parties will not communicate with the neutral evaluator:
a) orally except in the presence of all Participating Parties; or
b) in writing without immediately sending a copy of that communication to all Participating Parties.
13. Paragraph 12 also applies to any communication by a neutral evaluator to the Participating Parties.
14. The Participating Parties will:
a) cooperate fully with the neutral evaluator;
b) comply with any requests made by the neutral evaluator as permitted or required by this Appendix; and
c) give prompt attention to and respond to all communications from the neutral evaluator.
15. A neutral evaluation will be conducted only on the basis of documents submitted by the Parties in accordance with paragraph 20 unless the Participating Parties agree to, or the neutral evaluator requires, additional submissions or other forms of evidence.
16. If a hearing is held, the hearing will be conducted as efficiently as possible and in the manner the neutral evaluator specifies, after consultation with the Participating Parties.
17. If a hearing is held, the neutral evaluator will give the Participating Parties reasonable written notice of the hearing date, which notice will, in any event, be not less than seven days.
18. No transcript or recording will be kept of a hearing, but this does not prevent an individual attending the hearing from keeping notes of the hearing.
19. The legal rules of evidence do not apply to a neutral evaluation.
20. Within 15 days after the appointment of a neutral evaluator, each Participating Party will deliver to the other Participating Parties and to the neutral evaluator a written submission respecting the Disagreement, including facts upon which the Participating Parties agree or disagree, and copies of any documents, affidavits and exhibits on which the Participating Party relies.
21. Within 21 days after the appointment of a neutral evaluator, a Participating Party may submit a reply to the submission of any other Participating Party and, in that event, will provide copies of the reply to the Participating Party and the neutral evaluator.
22. In order to assist in the resolution of the Disagreement, a neutral evaluation will not be open to the public.
23. The Parties, and all persons, will keep confidential:
a) all oral and written information disclosed in the neutral evaluation; and
b) the fact that this information has been disclosed.
24. The Parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the neutral evaluation, any oral or written information disclosed in or arising from the neutral evaluation, including:
a) any documents of other Parties produced in the course of the neutral evaluation which are not otherwise produced or producible in that proceeding;
b) any views expressed, or suggestions made, in respect of a possible settlement of the Disagreement;
c) any admissions made by any Party in the course of the neutral evaluation, unless otherwise stipulated by the admitting Party;
d) the fact that any Party has indicated a willingness to make or accept a proposal for settlement; and
e) subject to paragraph 28, the opinion of the neutral evaluator.
25. Paragraphs 23 and 24 do not apply:
a) in any proceedings for the enforcement or setting aside of an agreement resolving the Disagreement that was the subject of a neutral evaluation;
b) if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
c) if the oral or written information is in the public forum.
26. For greater certainty, nothing in paragraph 24 precludes a Party from relying on or introducing as evidence in any proceeding any documents that:
a) are produced by that Party in the course of the neutral evaluation; and
b) are otherwise producible.
27. A neutral evaluator, or anyone retained or employed by the neutral evaluator, is not compellable in any proceedings to give evidence about any oral and written information acquired or opinion formed by that person as a result of a neutral evaluation under this Appendix, and all Parties will oppose any effort to have that person or that information subpoenaed.
28. A neutral evaluator and anyone retained or employed by the neutral evaluator is disqualified as a consultant or expert in any proceeding relating to the Disagreement, including any proceeding that involves persons not a Party to the neutral evaluation.
29. Notwithstanding paragraphs 23 to 27, after an Arbitral Tribunal as defined in Appendix Y-6 has delivered its final Arbitral Award as defined in Appendix Y-6, or a court has referred its decision, in respect of a Disagreement, a Party, for the purpose only of making a submission on the allocation of costs of that arbitral or judicial proceeding, may give to the Arbitral Tribunal or the court a copy of:
a) the neutral evaluator's opinion respecting that Disagreement; or
b) the neutral evaluator's notice of termination in accordance with paragraph 7.
30. Within 21 days after the later of:
a) delivery of the last submission required or permitted in a neutral evaluation under this Appendix; or
b) completion of a hearing,
the neutral evaluator will deliver to the Participating Parties a written opinion with reasons in respect of the probable disposition of the Disagreement should it be submitted to arbitral or judicial proceedings, as the case may be, in accordance with the Chapter.
31. An opinion contemplated by paragraph 30 is not binding on the Parties.
32. Within 21 days after delivery of an opinion contemplated by paragraph 30, the Parties will meet and make an effort to resolve the Disagreement, taking into account the opinion of the neutral evaluator or any other considerations.
33. If the Parties and the neutral evaluator agree, the neutral evaluator may attend a meeting contemplated by paragraph 32, and provide any necessary assistance to the Parties.
34. If a Participating Party fails to participate in the neutral evaluation as contemplated in paragraphs 14 to 21, the neutral evaluator may:
a) provide an opinion based solely upon the information and submissions they have obtained; or
b) give a written notice of termination of the neutral evaluation
and, in either event, the neutral evaluator will record that Participating Party's failure.
35. A neutral evaluation is terminated when any of the following occurs:
a) the neutral evaluator gives a notice of termination in accordance with paragraph 34 b);
b) the expiration of 30 days after receipt of an opinion in accordance with paragraphs 30 or 34, as the case may be, or any longer period agreed by the Participating Parties;
c) all the Participating Parties directly engaged in the Disagreement agree in writing to terminate the evaluation; or
d) all the Participating Parties directly engaged in the Disagreement sign a written agreement resolving the Disagreement.
36. A Participating Party that has failed to participate in a neutral evaluation as contemplated in paragraphs 14 to 21 is responsible for its share of the costs of the neutral evaluation, despite its failure to participate.
37. Where the matters referred to the neutral evaluator is an objection to a proposed expropriation of an Interest in Maa‑nulth First Nation Lands under 2.12.0, the following abridgement of time limits applies to the neutral evaluation process set out in this Appendix, unless the Participating Parties otherwise agree in writing:
a. under paragraph 5, the Participating Parties must agree to a neutral evaluator within 7 days after the commencement of a neutral evaluation; and
b. under paragraph 16, if a hearing is held it must be held within 35 days of the commencement of a neutral evaluation.
38. Where the matter referred to the neutral evaluator is an objection to a proposed expropriation of an Interest in Maa‑nulth First Nation Lands under 2.12.0, paragraphs 32, 33, 34 b) and 35 a) of this Appendix do not apply to the neutral evaluation.
39. For greater certainty, a neutral evaluation concerning an objection by the Maa‑nulth First Nation to a proposed expropriation by a Federal Expropriating Authority of an Interest in Maa‑nulth First Nation Lands commences for the purposes of paragraph 2 of this Appendix on the day that notice in writing is received by the Federal Expropriating Authority.
1. In this Appendix:
a) "Applicant" means:
i) in an arbitration commenced in accordance with 25.9.1of the Chapter, the Party that delivered the notice of arbitration, and
ii) in an arbitration commenced in accordance with 25.9.2 of the Chapter, the Party that the Participating Parties have agreed will be the Applicant in the agreement to arbitrate;
b) "Arbitral Award" means any decision of the Arbitral Tribunal on the substance of the Disagreement submitted to it, and includes:
i) an interim award, including an interim award made for the preservation of property; and
ii) an award of interest or costs;
c) "Arbitral Tribunal" means a single arbitrator or a panel of arbitrators appointed in accordance with this Appendix;
d) "Arbitral Agreement" includes
i) the requirement to refer to arbitration Disagreements described in 25.9.1 of the Chapter; and
ii) an agreement to arbitrate a Disagreement as described in 25.9.2 of the Chapter;
e) "Chapter" means Chapter 25 Dispute Resolution;
f) "Respondent" means a Participating Party other than the Applicant;
g) "Supreme Court" means the Supreme Court of British Columbia.
2. A reference in this Appendix, other than in paragraph 88 or 117 a), to a claim, applies to a counterclaim, and a reference in this Appendix to a defence, applies to a defence to a counterclaim.
3. Despite 25.1.4 of the Chapter, the Participating Parties may not vary paragraph 55 or 99.
4. Except in respect of administrative details, the Participating Parties will not communicate with the Arbitral Tribunal:
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.
5. Paragraph 4 also applies to any communication by the Arbitral Tribunal to the Participating Parties.
6. A Participating Party that knows that:
a) any provision of this Appendix; or
b) any requirement under the Agreement or Arbitral Agreement,
has not been complied with, and yet proceeds with the arbitration without stating its objection to non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, will be deemed to have waived its right to object.
7. In paragraph 6 a) "any provision of this Appendix" means any provision of this Appendix in respect of which the Participating Parties may otherwise agree.
8. In matters governed by this Appendix:
a) no court will intervene except as provided in this Appendix; and
b) no arbitral proceeding of an Arbitral Tribunal, or an order, ruling or Arbitral Award made by an Arbitral Tribunal will be questioned, reviewed or restrained by a proceeding under any Provincial Law or Federal Law that permits judicial review except to the extent provided in this Appendix.
9. In construing a provision of this Appendix, a court or Arbitral Tribunal may refer to the documents of the United Nations Commission on International Trade Law and its working group respecting the preparation of the UNCITRAL Model Arbitration Law and will give those documents the weight that is appropriate in the circumstances.
10. If a Participating Party commences legal proceedings in a court against another Participating Party in respect of a Disagreement required or agreed to be submitted to arbitration in accordance with 25.9.1 or 25.9.2 of the Chapter, a Participating Party to the legal proceedings may, before or after entering an appearance, and before delivery of any pleadings or taking any other step in the proceedings, apply to that court to stay the proceedings.
11. In an application contemplated by paragraph 10, the court will make an order staying the legal proceedings unless it determines that:
a) the Arbitral Agreement is null and void, inoperative or incapable of being performed; or
b) the legal proceedings are in accordance with the Chapter.
12. An arbitration may be commenced or continued, and an Arbitral Award made, even if an application has been brought in accordance with paragraph 10, and the issue is pending before the court.
13. It is not incompatible with an Arbitral Agreement for a Participating Party to request from a court, before or during arbitral proceedings, an interim measure of protection as provided in 25.3.4 of the Chapter, and for a court to grant that measure.
14. The arbitral proceedings in respect of a Disagreement:
a) required to be arbitrated in accordance with 25.9.1 of the Chapter, commences on delivery of the notice of arbitration to the Participating Parties; or
b) agreed to be arbitrated in accordance with 25.9.2 of the Chapter, commences on the date of the Arbitral Agreement.
15. A notice of arbitration contemplated by 25.9.1 of the Chapter 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;
c) the remedy sought;
d) the suggested number of arbitrators; and
e) any preferred qualifications of the arbitrators.
16. A notice of arbitration contemplated by paragraph 15 may contain the names of any proposed arbitrators, including the information specified in paragraph 18.
17. In an arbitration:
a) required to be arbitrated in accordance with 25.9.1 of the Chapter, there will be three arbitrators; and
b) agreed to be arbitrated in accordance with 25.9.2 of the Chapter, there will be one arbitrator.
18. A person eligible for appointment as:
a) a single arbitrator or as chair of an Arbitral Tribunal will be an experienced arbitrator or arbitration counsel or have had training in arbitral procedure; and
b) a single arbitrator or as a member of an arbitral panel:
i) will be independent and impartial; and
ii) preferably, will have knowledge of, or experience in, the subject matter or issues of the Disagreement.
19. A Participating Party proposing the name of an arbitrator to another Participating Party in accordance with paragraph 16 will also submit a copy of that individual's résumé and the statement that individual is required to make in accordance with paragraph 27.
20. In an arbitration with a single arbitrator, if the Participating Parties fail to agree on the arbitrator within 30 days after the commencement of the arbitration, the appointment will be made by the Neutral Appointing Authority, on the written request of a Participating Party that is copied to the other Participating Parties.
21. In an arbitration with three arbitrators and two Participating Parties, each Participating Party will appoint one arbitrator, and the two appointed arbitrators will appoint the third arbitrator.
22. In the appointment procedure contemplated by paragraph 21, if:
a) a Participating Party fails to appoint an arbitrator within 30 days after the commencement of the arbitration; or
b) the two appointed arbitrators fail to agree on the third arbitrator within 30 days after the last of them was appointed,
the appointment will be made by the Neutral Appointing Authority, on the written request of a Participating Party that is copied to the other Participating Parties.
23. In an arbitration with three arbitrators and three Participating Parties, the three Participating Parties will jointly appoint the three arbitrators.
24. In the arbitration procedure contemplated by paragraph 23, if the three Participating Parties fail to agree on the three arbitrators within 60 days after the commencement of the arbitration, the appointments will be made by the Neutral Appointing Authority, on the written request of a Participating Party copied to the other Participating Parties.
25. In an arbitration procedure contemplated by paragraphs 21 or 23, the three arbitrators will select a chair of the Arbitral Tribunal. In the event that the three arbitrators are unable to agree on the selection of a chair before the pre-hearing meeting, they will so advise the Neutral Appointing Authority in writing and the Neutral Appointing Authority will select a chair.
26. The Neutral Appointing Authority, in appointing an arbitrator, will have due regard to:
a) any qualifications required of the arbitrator as set out in paragraph 18 or as otherwise agreed in writing by the Participating Parties; and
b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator or chair.
27. When an individual is approached in connection with possible appointment as an arbitrator, that individual will provide a written statement:
a) disclosing any circumstances likely to give rise to justifiable doubts as to his or her independence or impartiality; or
b) advising that the individual is not aware of any circumstances of that nature and committing to disclose them if they arise or become known at a later date.
28. An arbitrator, from the time of appointment and throughout the arbitral proceedings, will, without delay, disclose to the Participating Parties any circumstances referred to in paragraph 27 unless the Participating Parties have already been informed of them.
29. An arbitrator may be challenged only if:
a) circumstances exist that give rise to justifiable doubts as to the arbitrator's independence or impartiality; or
b) the arbitrator does not possess the qualifications set out in this Appendix or as otherwise agreed in writing by the Participating Parties.
30. A Participating Party may only challenge an arbitrator appointed by that Participating Party, or in whose appointment that Participating Party has participated, for reasons of which that Participating Party becomes aware after the appointment has been made.
31. A person who is Maa‑nulth‑aht or a Maa‑nulth First Nation Citizen, or related to Maa‑nulth‑aht or a Maa‑nulth First Nation Citizen, may not be challenged in accordance with paragraph 29 solely on the grounds of that citizenship or relationship.
32. A Participating Party who intends to challenge an arbitrator will send to the Arbitral Tribunal a written statement of the reasons for the challenge within 15 days after becoming aware of the constitution of the Arbitral Tribunal, or after becoming aware of any circumstances referred to in paragraph 29.
33. Unless the arbitrator challenged in accordance with paragraph 32 withdraws from office, or the other Participating Parties agree to the challenge, the Arbitral Tribunal will decide on the challenge.
34. If a challenge in accordance with any procedure agreed upon by the Participating Parties or in accordance with the procedure contemplated by paragraph 32 is not successful, the challenging Participating Party, within 30 days after having received notice of the decision rejecting the challenge, may request the Neutral Appointing Authority to decide on the challenge.
35. The decision of the Neutral Appointing Authority contemplated by paragraph 34 is final and is not subject to appeal.
36. While a request contemplated by paragraph 34 is pending, the Arbitral Tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an Arbitral Award unless:
a) the costs occasioned by proceeding before the decision of the Neutral Appointing Authority is made would unduly prejudice the Participating Parties; or
b) the Participating Parties agree otherwise.
37. The mandate of an arbitrator terminates if the arbitrator becomes unable at law, or as a practical matter, to perform the arbitrator's functions, or for other reasons fails to act without undue delay.
38. If a controversy remains concerning any of the grounds referred to in paragraph 37, a Participating Party may request the Neutral Appointing Authority to decide on the termination of the mandate.
39. In addition to the circumstances contemplated by paragraphs 32 to 34, and 37, 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.
40. If the mandate of an arbitrator terminates, a replacement arbitrator will be appointed in accordance with paragraphs 19 to 26, as applicable.
41. If a single or chairing arbitrator is replaced, any hearings previously held will be repeated.
42. If an arbitrator other than a single or chairing arbitrator is replaced, any hearings previously held may be repeated at the discretion of the Arbitral Tribunal.
43. An order or ruling of the Arbitral Tribunal made before the replacement of an arbitrator in accordance with paragraph 40 is not invalid solely because there has been a change in the composition of the tribunal.
44. An Arbitral Tribunal may rule on its own jurisdiction.
45. A plea that an Arbitral Tribunal does not have jurisdiction will be raised not later than the submission of the statement of defence. A Participating Party is not precluded from raising that plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.
46. A plea that an Arbitral Tribunal is exceeding the scope of its jurisdiction will be made as soon as the matter alleged to be beyond the scope of its jurisdiction is raised during the arbitral proceedings.
47. An Arbitral Tribunal may, in either of the cases referred to in paragraph 45 or 46, admit a later plea if it considers the delay justified.
48. An Arbitral Tribunal may rule on a plea referred to in paragraph 45 or 46 either as a preliminary question or in the Arbitral Award.
49. If an Arbitral Tribunal rules as a preliminary question that it has jurisdiction, any Participating Party, within 15 days after having received notice of that ruling, may request the Supreme Court to decide the matter.
50. A decision of the Supreme Court contemplated by paragraph 49 is final and is not subject to appeal.
51. While a request contemplated by paragraph 49 is pending, an Arbitral Tribunal may continue the arbitral proceedings and make an Arbitral Award unless:
a) the costs occasioned by proceeding before the decision of the Supreme Court is made would unduly prejudice the Participating Parties; or
b) the Participating Parties agree otherwise.
52. Unless otherwise agreed by the Participating Parties, the Arbitral Tribunal may, at the request of a Participating Party, order a Participating Party to take any interim measure of protection as the Arbitral Tribunal may consider necessary in respect of the subject matter of the Disagreement.
53. The Arbitral Tribunal may require a Participating Party to provide appropriate security in connection with a measure ordered in accordance with paragraph 52.
54. The Participating Parties will be treated with equality and each Participating Party will be given a full opportunity to present its case.
55. Subject to this Appendix, the Participating Parties may agree on the procedure to be followed by the Arbitral Tribunal in conducting the proceedings.
56. Failing any agreement in accordance with paragraph 55, the Arbitral Tribunal, subject to this Appendix, may conduct the arbitration in the manner it considers appropriate.
57. The Arbitral Tribunal is not required to apply the legal rules of evidence, and may determine the admissibility, relevance, materiality and weight of any evidence.
58. The Arbitral Tribunal 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.
59. The Arbitral Tribunal may extend or abridge a period of time:
a) set in this Appendix, except the period specified in paragraph 107; or
b) established by the tribunal.
60. Within 10 days after the Arbitral Tribunal is constituted, the tribunal 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) selection of the Arbitral Tribunal's chair;
c) the procedure to be followed in the arbitration;
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.
61. The Arbitral Tribunal will prepare and distribute promptly to the Parties a written record of all the business transacted, and decisions and orders made, at the pre-hearing meeting.
62. The pre-hearing meeting may be conducted by conference call.
63. The arbitration will take place in the Province of British Columbia.
64. Despite paragraph 63, an Arbitral Tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the Participating Parties, or for inspection of documents, goods or other personal property, or for viewing physical locations.
65. If the Arbitral Tribunal determines that it was necessary or reasonable for a Participating Party to incur the costs of translation of documents and oral presentations in the circumstances of a particular Disagreement, the Arbitral Tribunal, on application of a Participating Party, may order that any of the costs of that translation are costs of the arbitration contemplated by 25.14.2 of the Chapter.
66. Within 21 days after the Arbitral Tribunal is constituted, the Applicant will deliver a written statement to all the Participating Parties stating the facts supporting its claim or position, the points at issue and the relief or remedy sought.
67. Within 15 days after receipt of the Applicant's statement, each Respondent will deliver a written statement to all the Participating Parties stating its defence or position in respect of those particulars.
68. 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.
69. The Participating Parties may amend or supplement their statements, including the list of documents, and deliver counter-claims and defences to counter-claims during the course of the arbitral proceedings, unless the Arbitral Tribunal 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.
70. The Participating Parties will deliver copies of all amended, supplemented or new documents delivered in accordance with paragraph 69 to all the Participating Parties.
71. The Arbitral Tribunal may order a Participating Party to produce, within a specified time, any documents that:
a) have not been listed in accordance with paragraph 68;
b) the Participating Party has in its care, custody or control; and
c) the Arbitral Tribunal considers to be relevant.
72. 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 former Participating Party has listed in accordance with paragraph 68, or that the Arbitral Tribunal has ordered to be produced in accordance with paragraph 71.
73. The Participating Parties will prepare and send to the Arbitral Tribunal an agreed statement of facts within the time specified by the Arbitral Tribunal.
74. Not later than 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.
75. Not later than 15 days before a hearing commences, each Participating Party will give to the other Participating Party and the Arbitral Tribunal an assembly of all documents to be introduced at the hearing.
76. The Arbitral Tribunal will decide whether to hold hearings for the presentation of evidence or for oral argument, or whether the proceedings will be conducted on the basis of documents and other materials.
77. Unless the Participating Parties have agreed that no hearings will be held, the Arbitral Tribunal will hold hearings at an appropriate stage of the proceedings, if so requested by a Participating Party.
78. The Arbitral Tribunal will give the Participating Parties sufficient advance notice of any hearing and of any meeting of the Arbitral Tribunal for the purpose of inspection of documents, goods or other property or viewing any physical location.
79. All statements, documents or other information supplied to, or applications made to, the Arbitral Tribunal by one Participating Party will be communicated to the other Participating Parties, and any expert report, evidentiary document or case law on which the Arbitral Tribunal may rely in making its decision will be communicated to the Participating Parties.
80. Unless ordered by the Arbitral Tribunal, all hearings and meetings in arbitral proceedings, other than meetings of the Arbitral Tribunal, are open to the public.
81. The Arbitral Tribunal will schedule hearings to be held on consecutive days until completion.
82. All oral evidence will be taken in the presence of the Arbitral Tribunal and all the Participating Parties unless a Participating Party is absent by default or has waived the right to be present.
83. The Arbitral Tribunal may order any individual to be examined by the Arbitral Tribunal under oath or on affirmation in relation to the Disagreement and to produce before the Arbitral Tribunal all relevant documents within the individual's care, custody or control.
84. The document assemblies delivered in accordance with paragraph 75 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.
85. If the Arbitral Tribunal considers it just and reasonable to do so, the Arbitral Tribunal may permit a document that was not previously listed in accordance with paragraph 68, or produced in accordance with paragraph 71 or 75, to be introduced at the hearing, but the Arbitral Tribunal may take that failure into account when fixing the costs to be awarded in the arbitration.
86. If the Arbitral Tribunal 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.
87. The Arbitral Tribunal 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.
88. If, without showing sufficient cause, the Applicant fails to communicate its statement of claim in accordance with paragraph 66, the Arbitral Tribunal may terminate the proceedings.
89. If, without showing sufficient cause, a Respondent fails to communicate its statement of defence in accordance with paragraph 67, the Arbitral Tribunal will continue the proceedings without treating that failure in itself as an admission of the Applicant's allegations.
90. If, without showing sufficient cause, a Participating Party fails to appear at the hearing or to produce documentary evidence, the Arbitral Tribunal may continue the proceedings and make the Arbitral Award on the evidence before it.
91. Before terminating the proceedings contemplated by paragraph 88, the Arbitral Tribunal will give all Respondents written notice providing an opportunity to file a statement of claim in respect of the Disagreement within a specified period of time.
92. After consulting the Participating Parties, the Arbitral Tribunal may:
a) appoint one or more experts to report to it on specific issues to be determined by the Arbitral Tribunal; 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.
93. The Arbitral Tribunal will give a copy of the expert's report to the Participating Parties who will have an opportunity to reply to it.
94. If a Participating Party so requests, or if the Arbitral Tribunal 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.
95. 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.
96. An Arbitral Tribunal will decide the Disagreement in accordance with the law.
97. If the Participating Parties have expressly authorized it to do so, an Arbitral Tribunal may decide the Disagreement based upon equitable considerations.
98. In all cases, an Arbitral Tribunal will make its decisions in accordance with the spirit and intent of the Agreement.
99. Before a final Arbitral Award is made, an Arbitral Tribunal or a Participating Party, with the agreement of the other Participating Parties, may refer a question of law to the Supreme Court for a ruling.
100. A Participating Party may appeal a decision in the Supreme Court contemplated by paragraph 99 to the British Columbia Court of Appeal with leave of the British Columbia Court of Appeal. If the British Columbia Court of Appeal:
a) refuses to grant leave to a Participating Party to appeal a ruling of the Supreme Court contemplated by paragraph 99; or
b) hears an appeal from a ruling of the Supreme Court contemplated by paragraph 99,
the decision of the British Columbia Court of Appeal may not be appealed to the Supreme Court of Canada.
101. While a referral contemplated by paragraph 99 is pending, the Arbitral Tribunal may continue the arbitral proceedings and make an Arbitral Award unless:
a) the costs occasioned by proceeding before the ruling of the Supreme Court is made would unduly prejudice the Participating Parties; or
b) the Participating Parties agree otherwise.
102. In arbitral proceedings with more than one arbitrator, any decision of the Arbitral Tribunal will be made by a majority of all its members.
103. If there is no majority decision on a matter to be decided, the decision of the chair of the tribunal is the decision of the tribunal.
104. Notwithstanding paragraph 102, if authorized by the Participating Parties or all the members of the Arbitral Tribunal, questions of procedure may be decided by the chair of the tribunal.
105. If, during arbitral proceedings, those Participating Parties who are directly engaged in the Disagreement agree to settle the Disagreement, the Arbitral Tribunal 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.
106. An Arbitral Award on agreed terms:
a) will be made in accordance with paragraphs 108 to 110;
b) will state that it is an Arbitral Award; and
c) has the same status and effect as any other Arbitral Award on the substance of the Disagreement.
107. An Arbitral Tribunal will make its final Arbitral Award as soon as possible and, in any event, not later than 60 days after:
a) the hearings have been closed; or
b) the final submission has been made,
whichever is the later date.
108. An Arbitral Award will be made in writing, and be signed by the members of the Arbitral Tribunal.
109. 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 105 and 106.
110. A signed copy of an Arbitral Award will be delivered to all the Parties by the Arbitral Tribunal.
111. At any time during the arbitral proceedings, an Arbitral Tribunal may make an interim Arbitral Award on any matter with respect to which it may make a final Arbitral Award.
112. An Arbitral Tribunal may award interest.
113. The costs of an arbitration are in the discretion of the Arbitral Tribunal which, in making an order for costs, may:
a) include as costs:
i) the fees and expenses of the arbitrators and expert witnesses;
ii) legal fees and expenses of the Participating Parties;
iii) any administration fees of a Neutral Appointing Authority; or
iv) any other expenses incurred in connection with the arbitral proceedings; and
b) specify:
i) the Participating Party entitled to costs;
ii) the Participating Party who will pay the costs;
iii) subject to paragraph 112, the amount of costs or method of determining that amount; and
iv) the manner in which the costs will be paid.
For greater certainty, for the purpose of this paragraph, all Maa‑nulth First Nations who are Participating Parties are one party for the purpose of determining the sharing of costs.
114. For purposes of paragraph 113, an Arbitral Tribunal may award up to 50% of the reasonable and necessary legal fees and expenses that were actually incurred by a Participating Party, and if the legal services were provided by an employee or employees of that Participating Party, the Arbitral Tribunal may fix an amount or determine an hourly rate to be used in the calculation of the cost of those employee legal fees.
115. An Arbitral Tribunal will close any hearings if:
a) the Participating Parties advise they have no further evidence to give or submissions to make; or
b) the tribunal considers further hearings to be unnecessary or inappropriate.
116. A final Arbitral Award, or an order of the Arbitral Tribunal in accordance with paragraph 117, terminates arbitral proceedings.
117. An Arbitral Tribunal 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 Arbitral Tribunal 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 Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
118. Subject to paragraphs 119 to 124 and paragraph 128, the mandate of an Arbitral Tribunal terminates with the termination of the arbitral proceedings.
119. Within 30 days after receipt of an Arbitral Award:
a) a Participating Party may request the Arbitral Tribunal to correct in the tribunal 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 Arbitral Tribunal to give an interpretation of a specific point or part of the Arbitral Award.
120. If an Arbitral Tribunal considers a request made in accordance with paragraph 119 to be justified, it will make the correction or give the interpretation within 30 days after receipt of the request and the interpretation will form part of the Arbitral Award.
121. An Arbitral Tribunal, on its own initiative, may correct any error of the type referred to in sub-paragraph 119a) within 30 days after the date of the Arbitral Award.
122. A Participating Party may request, within 30 days after receipt of an Arbitral Award, the Arbitral Tribunal to make an additional Arbitral Award respecting claims presented in the arbitral proceedings but omitted from the Arbitral Award.
123. If the Arbitral Tribunal considers a request made in accordance with paragraph 122 to be justified, it will make an additional Arbitral Award within 60 days.
124. Paragraphs 108 to 110, and paragraphs 112 to 114 apply to a correction or interpretation of an Arbitral Award made in accordance with paragraph 120 or 121, or to an additional Arbitral Award made in accordance with paragraph 123.
125. Subject to paragraphs 130 and 132, an Arbitral Award may be set aside by the Supreme Court, and no other court, only if a Participating Party making the application establishes that:
a) the Participating Party making the application:
i) was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings; or
ii) was otherwise unable to present its case or respond to the other Participating Party's case;
b) the Arbitral Award:
i) deals with a Disagreement not contemplated by or not falling within the terms of the submission to arbitration; or
ii) contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the Arbitral Award that contains decisions on matters not submitted to arbitration may be set aside;
c) the composition of the Arbitral Tribunal or the arbitral procedure was not in accordance with the agreement of the Participating Parties, unless that agreement was in conflict with a provision of this Appendix from which the Participating Parties cannot derogate, or, failing any agreement, was not in accordance with this Appendix;
d) the Arbitral Tribunal or a member of it has committed a corrupt or fraudulent act; or
e) the award was obtained by fraud.
126. An application for setting aside may not be made more than three months:
a) after the date on which the Participating Party making that application received the Arbitral Award; or
b) if a request had been made in accordance with paragraph 119 or 122, after the date on which that request was disposed of by the Arbitral Tribunal.
127. An application to set aside an award on the ground that the Arbitral Tribunal or a Member of it has committed a corrupt or fraudulent act or that the award was obtained by fraud will be commenced:
a) within the period referred to in paragraph 126; or
b) within 30 days after the Applicant discovers or ought to have discovered the fraud or corrupt or fraudulent act
whichever is the longer period.
128. When asked to set aside an Arbitral Award, the Supreme Court may, where it is appropriate and it is requested by a Participating Party, adjourn the proceedings to set aside the Arbitral Award for a period of time determined by it in order to give the Arbitral Tribunal an opportunity:
a) to resume the arbitral proceedings; or
b) to take any other action that, in the Arbitral Tribunal's opinion, will eliminate the grounds for setting aside the Arbitral Award.
129. A Party that was not a Participating Party in an arbitration will be given notice of an application in accordance with paragraph 125, and is entitled to be a party to, and make representation on, the application.
130. A Participating Party may appeal an Arbitral Award to the Supreme Court, with leave, on a question of law, which the Supreme Court will grant only if it is satisfied that:
a) the importance of the result of the arbitration to the Participating Parties justifies the intervention of the court, and the determination of the point of law may prevent a miscarriage of justice; or
b) the point of law is of general or public importance.
131. An application for leave may not be made more than three months:
a) after the date on which the Participating Party making the application received the Arbitral Award; or
b) if a request had been made in accordance with paragraph 119 or 122, after the date on which that request was disposed of by the Arbitral Tribunal.
132. The Supreme Court may confirm, vary or set aside the Arbitral Award or may remit the award to the Arbitral Tribunal with directions, including the court's opinion on the question of law.
133. When asked to set aside an Arbitral Award the Supreme Court may, where it is appropriate and it is requested by a Participating Party, adjourn the proceedings to set aside the Arbitral Award for a period of time determined by it in order to give the Arbitral Tribunal an opportunity:
a) to resume the arbitral proceedings; or
b) to take any other action that, in the Arbitral Tribunal's opinion, will eliminate the grounds for setting aside the Arbitral Award.
134. A Participating Party that was not a Participating Party in an arbitration will be given notice of an application in accordance with paragraph 130 and is entitled to be a Participating Party to, and make representation on the application.
135. A Participating Party may appeal a decision of the Supreme Court contemplated by paragraph 132 to the British Columbia Court of Appeal with leave of the British Columbia Court of Appeal.
136. If the British Columbia Court of Appeal:
a) refuses to grant leave to a Party to appeal a ruling of the Supreme Court in accordance with paragraph 132; or
b) hears an appeal from a ruling of the Supreme Court contemplated by paragraph 132,
the decision of the British Columbia Court of Appeal may not be appealed to the Supreme Court of Canada.
137. No application may be made in accordance with paragraph 130 in respect of:
a) an Arbitral Award based upon equitable considerations as permitted in paragraph 97; or
b) an Arbitral Award made in an arbitration commenced in accordance with paragraph 32 of the Chapter.
138. No application for leave may be brought in accordance with paragraph 130 in respect of a ruling made by the Supreme Court in accordance with paragraph 99 if the time for appealing that ruling has already expired.
139. An Arbitral Award will be recognized as binding and, upon application to the Supreme Court, will be enforced subject to 13.36.0.
140. Unless the Supreme Court orders otherwise, the 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.
141. Subject to paragraphs 129 and 134, a Party that was not a Participating Party in an arbitration will not bring an application in accordance with paragraph 125 or 130 to set the award aside but may resist enforcement of the award against it by bringing an application in accordance with paragraph 142.
142. On the application of a Party that was not a Participating Party in an arbitration, the Supreme Court may make an order refusing to enforce against that Party an Arbitral Award made in accordance with this Appendix if that Party establishes that:
a) it was not given copies of:
i) the notice of arbitration or agreement to arbitrate; or
ii) the pleadings or all amendments and supplements to the pleadings;
b) the Arbitral Tribunal refused to add the Party as a Participating Party to the arbitration in accordance with paragraph 35 of the Chapter;
c) the Arbitral Award;
i) deals with a Disagreement not contemplated by or not falling within the terms of the submission to arbitration, or
ii) contains decisions on matters beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the Arbitral Award which contains decisions on matters submitted to arbitration may be recognized and enforced;
d) the Arbitral Award has not yet become binding on the Parties or has been set aside or suspended by a court;
e) the Arbitral Tribunal or a Member of it has committed a corrupt or fraudulent act; or
f) the award was obtained by fraud.
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