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This Act is current to February 27, 2024
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Tla'amin Final Agreement Act

[SBC 2013] CHAPTER 2

CHAPTER 26 — DISPUTE RESOLUTION

GENERAL

1. In this Chapter, and in Appendices X-1 to X-6, a Party is deemed to be directly engaged in a Disagreement where another Party, acting reasonably, gives the first Party written notice requiring it to participate in a process described in this Chapter to resolve the Disagreement.

2. 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 possible; and

d. to resolve Disagreements in a non-adversarial, collaborative and informal atmosphere.

3. Except as otherwise provided, participating Parties may agree in writing to vary a procedural requirement contained in this Chapter, or in Appendices X-1 to X-6, as it applies to a particular Disagreement.

4. 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 Appendices X-1 to X-6.

SCOPE: WHEN THIS CHAPTER APPLIES

5. This Chapter does not apply to all disputes between or among the Parties, but is limited to the disputes described in paragraph 6.

6. This Chapter applies to:

a. a dispute respecting:

i. the interpretation, application or implementation of this Agreement; or

ii. a breach or anticipated breach of this Agreement;

b. a 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 two of them, "will negotiate and attempt to reach agreement".

7. This Chapter does not apply to:

a. an agreement between or among the Parties that is ancillary, subsequent, or supplemental to this Agreement unless the Parties have agreed that this Chapter applies to that agreement;

b. the Implementation Plan; or

c. disputes, where excluded from this Chapter.

8. Nothing in this Chapter limits the application of a dispute resolution process, under any law, to a dispute involving a person if that dispute is not a Disagreement.

9. Nothing in Federal or Provincial Law limits the right of a Party to refer a Disagreement to a process under this Chapter.

DISAGREEMENTS TO GO THROUGH STAGES

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 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 X-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 X-2, X-3, X-4 or X-5, as applicable; and

c. Stage Three: final adjudication in arbitral proceedings under Appendix X-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.

STAGE ONE: COLLABORATIVE NEGOTIATIONS

14. Where 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 written notice under Appendix X-1 to the other Parties, requiring the commencement of collaborative negotiations.

15. Upon receiving notice under paragraph 14, each 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 described in subparagraph 6.c, then, for all purposes under this Chapter, those negotiations will be deemed collaborative negotiations.

18. Collaborative negotiations terminate in the circumstances set out in Appendix X-1.

STAGE TWO: FACILITATED PROCESSES

19. Within 15 days of termination of collaborative negotiations that have not resolved a Disagreement, a Party directly engaged in the Disagreement may require the commencement of a facilitated process by delivering notice to the other Parties.

20. Notice under paragraph 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 paragraph 23.

21. Upon receiving notice under paragraph 19, a Party directly engaged in the Disagreement will participate in a facilitated process described in paragraph 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 notice under paragraph 19.

23. Within 30 days after delivery of notice under paragraph 19, the Parties directly engaged in the Disagreement will attempt to agree to use one of the following processes:

a. mediation under Appendix X-2;

b. technical advisory panel under Appendix X-3;

c. neutral evaluation under Appendix X-4;

d. community advisory council under Appendix X-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 X-2.

24. A facilitated process terminates:

a. in the circumstances set out in the applicable Appendix; or

b. as agreed in writing by the participating Parties, if an Appendix does not apply.

NEGOTIATING CONDITIONS

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 with sufficient authority to reach an agreement, or with ready access to such authority; and

c. negotiate in good faith.

SETTLEMENT AGREEMENT

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.

STAGE THREE: ADJUDICATION — ARBITRATION

27. Where a Disagreement arises out of any provision of this Agreement that provides that a dispute will be "finally determined by arbitration", the Disagreement will, where a Party directly engaged in the Disagreement has delivered a notice of arbitration to all Parties as required under Appendix X-6, be referred to and finally resolved by arbitration in accordance with that Appendix.

28. A Disagreement, other than a Disagreement referred to in paragraph 27, with the written agreement of all Parties directly engaged in the Disagreement, will be referred to and finally resolved by arbitration in accordance with Appendix X-6.

29. Where two Parties make a written agreement under paragraph 28, they will deliver a copy of the agreement to the other Party that is not directly engaged in the Disagreement.

30. A Party not directly engaged in a Disagreement 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, upon that Party delivering written notice to the participating Parties to the arbitration within 15 days after receiving notice under paragraph 27 or copy of a written agreement under paragraph 28.

31. Notwithstanding paragraph 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 paragraph 27 or the written agreement to arbitrate in paragraph 28,

and, in that event, the arbitral tribunal may make any order it considers appropriate or necessary in the circumstances respecting conditions, including the payment of costs, upon which the Party may be added.

EFFECT OF ARBITRAL AWARD

32. An arbitral award is final and binding on all Parties whether or not a Party has participated in the arbitration.

33. Notwithstanding paragraph 32, an arbitral award is not binding on a Party that has not participated in the arbitration where:

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 paragraph 31.

APPLICATION OF LEGISLATION

34. No legislation of any Party respecting arbitration, except the Federal Settlement Legislation and Provincial Settlement Legislation, applies to an arbitration conducted under this Chapter.

35. A court will not intervene or offer assistance in an arbitration or review an arbitral award under this Chapter except as provided in Appendix X-6.

STAGE THREE: ADJUDICATION — JUDICIAL PROCEEDINGS

36. Nothing in this Chapter creates a cause of action where none otherwise exists.

37. Subject to paragraph 38, at any time a Party may commence proceedings in the Supreme Court of British Columbia with respect to a Disagreement.

38. Subject to paragraph 13, a Party may not commence judicial proceedings where the Disagreement:

a. is referred to arbitration under paragraph 27 or 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 subparagraph 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 X-6.

NOTICE TO PARTIES

40. Where, 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. the Federal Settlement Legislation or the Provincial Settlement Legislation; or

ii. any Tla'amin 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 the Tla'amin Nation.

41. In any judicial or administrative proceeding to which paragraph 40 applies, the Attorney General of British Columbia, the Attorney General of Canada and the Tla'amin Nation may appear and participate in the proceedings as parties with the same rights as any other party.

COSTS

42. Except as provided otherwise in Appendices X-1 to X-6, 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 paragraph 42 and except as provided otherwise in Appendices X-1 to X-6, the participating Parties will share equally all costs of collaborative negotiations, a facilitated process or an arbitration, conducted under this Chapter.

44. For the purpose of paragraph 43, "costs" include:

a. fees of the Neutrals;

b. costs of hearing and meeting rooms;

c. actual and reasonable costs of communications, accommodation, meals and travel of the Neutrals;

d. costs of required secretarial and administrative support for the Neutrals, as permitted in Appendices X-1 to X-6; and

e. administration fees of a Neutral Appointing Authority.

Contents | Sections 1 to 28 | Schedule - Contents | Schedule - Preamble | Schedule - Chapter 1 | Schedule - Chapter 2 | Schedule - Chapter 3 | Schedule - Chapter 4 | Schedule - Chapter 5 | Schedule - Chapter 6 | Schedule - Chapter 7 | Schedule - Chapter 8 | Schedule - Chapter 9 | Schedule - Chapter 10 | Schedule - Chapter 11 | Schedule - Chapter 12 | Schedule - Chapter 13 | Schedule - Chapter 14 | Schedule - Chapter 15 | Schedule - Chapter 16 | Schedule - Chapter 17 | Schedule - Chapter 18 | Schedule - Chapter 19 | Schedule - Chapter 20 | Schedule - Chapter 21 | Schedule - Chapter 22 | Schedule - Chapter 23 | Schedule - Chapter 24 | Schedule - Chapter 25 | Schedule - Chapter 26 | Appendix - Contents | Appendix - Introduction | Appendix - Appendix A | Appendix - Appendix B | Appendix - Appendix C | Appendix - Appendix D | Appendix - Appendix E | Appendix - Appendix F | Appendix - Appendix G | Appendix - Appendix H | Appendix - Appendix I | Appendix - Appendix J | Appendix - Appendix K | Appendix - Appendix L | Appendix - Appendix M | Appendix - Appendix N | Appendix - Appendix O | Appendix - Appendix P | Appendix - Appendix Q | Appendix - Appendix R | Appendix - Appendix S | Appendix - Appendix T | Appendix - Appendix U | Appendix - Appendix V | Appendix - Appendix W | Appendix - Appendix X