Dispute
Resolution

This chapter sets out the steps to resolve disputes between the Parties that arise under the Treaty. The section is based upon several objectives shared by the parties:

> To cooperate with each other to develop harmonious working relationships;

> To prevent or alternatively to minimize disputes;

> To identify disputes quickly and resolve them in the most expeditious and cost-effective manner possible;

> To resolve disagreement in a non-adversarial, collaborative and informal atmosphere.

What disputes must use this process?

All disputes involving interpretation, application or implementation of the Treaty or a breach of the Treaty must use these processes.

What happens if a question of the interpretation of the Treaty issue comes up in another judicial or administrative proceeding?

Before the question can be dealt with, all three Parties must be given notice of the question and the opportunity to participate in those proceedings.

What are the steps to resolve disputes?

The Parties agree to try to resolve most differences by informal discussions. If these are not successful, a Party may move the dispute into Stage One:

> Collaborative Negotiations. The disputing Parties will try to resolve the dispute through formal negotiations without the assistance of any independent third party.

If the dispute is not resolved in Stage One, a Party may move the dispute into Stage Two:

> Facilitated Process. The Parties to the dispute will select one of four specified processes to help them to resolve the dispute.

These processes use independent third parties to assist the Parties to overcome any obstacles to reaching agreement. The independent third parties do not have any authority to resolve the dispute but assist the Parties to reach their own agreement. If the Parties are unable to resolve their dispute under Stage Two, the dispute may be referred to a judge or an arbitrator for a final and binding decision.

What are the four processes in Stage Two?

The four processes are mediation, technical advisory panel, neutral evaluation and Elders Advisory Council.

How do the Stage Two processes work?

The detailed procedure for all of the processes in this section are contained in the Appendices to the Treaty.

A mediation is simply a confidential negotiation assisted by a neutral mediator. The function of the mediator is to assist the Parties to negotiate as effectively as possible to reach an agreement by helping them to establish the order of discussions, identify underlying interests, identify irrelevancies or unproductive discussions, identify the obstacles to reaching agreement, defuse anger or hostility, keep focussed on the issues, move from fixed positions, develop creative solutions, and encourage compromise where appropriate. The mediator does not resolve the disagreement by making a decision.

The Technical Advisory Panel provides the Parties with technical or scientific assistance to help to resolve disagreements. The members of the panel are not required to be independent or impartial of the Parties but they must be recognized as having skill and knowledge in their field of expertise. This assistance may take the form of written advice, determinations of disputed facts, conducting and reporting studies, making recommendations, etc. The panel's assistance is not binding on the parties.

The Elders Advisory Council is made up of elders appointed by the Parties to help with a particular dispute. The elders of the Council are expected to bring their wisdom and life experience to the Parties as they attempt to resolve a disagreement. This Council is expected to be very helpful indealing with sensitive cultural or political issues or to consider such things as the reasonableness of actions taken by the parties.

A neutral evaluation allows the Parties to submit the issues in a dispute to an independent person who is experienced in the subject matter of the dispute, for an opinion on the probable disposition of the disagreement if it were submitted to arbitration or litigation. The neutral evaluation will usually be based only on written submissions and documents provided by the parties. The opinion of the neutral evaluator is not binding on the parties.

The four processes offer the Parties quite different options for overcoming any issues which are preventing them from reaching an agreement. If the Parties cannot reach agreement on which process to use, the dispute will be referred to mediation.

If two Parties have a dispute and reach an agreement, is the third Party bound by that agreement?

No, the third Party is not bound by that agreement unless it also chooses to sign the agreement.

How does an arbitration work and when will it be used?

An arbitration is a quasi-judicial hearing before an arbitral tribunal consisting of one or three arbitrators appointed by the Parties to the dispute. The arbitrators are required to act impartially and independently. The arbitrators will hear the submissions and evidence led by the Parties and will make a decision called an arbitral award. This award is binding on the Parties as if it were a judgment of the court. It cannot be set aside or challenged except under specific circumstances.

The Treaty requires certain unresolved disputes to be finally settled by arbitration. This is intended to help secure a speedy resolution without having to go to the courts and to make it possible to select an arbitral tribunal that has expertise in the subject matter of the dispute. The Parties to a dispute can always agree to refer a matter to an arbitral tribunal rather than the courts — but agreement of all of the Parties to the dispute is necessary before this can happen.

If two Parties have a dispute that is finally decided by arbitration, is the third Party bound by that arbitral award?

Yes, unless that Party did not have proper notice of the arbitral proceedings or was denied the opportunity to participate in the proceedings by the arbitral tribunal. The third Party must be given the opportunity to participate in all three stages of the Chapter to resolve the dispute — including arbitration. If the third Party decides not to participate in the arbitration, it will still be bound by the arbitral award.

Can the arbitral award be appealed to the courts?

An arbitral award may be set aside by a court if the arbitration was conducted in an unfair manner or contrary to the procedural requirements of the Chapter. If a Party alleges that the arbitral tribunal made an error in law, the Party must obtain the permission of the Supreme Court of British Columbia before the appeal may be heard. No appeal may be taken on an arbitral award to the Supreme Court of Canada.

Who are the Parties to the processes under the Chapter?

The only possible Parties to the processes are the three Parties to the Treaty. Even if one of the Parties is not a Party to a particular dispute, that Party has the right to fully participate in the resolution of that dispute.

Who pays for the costs of these processes?

As a general rule, each of the Parties will pay the costs of its own participation in a process but the other costs will be shared by the Parties participating in the process. A Party participating in an arbitration may ask the arbitral tribunal to order another Party to pay the costs of the process. The arbitral tribunal will decide if it is appropriate to make such an order.