Beausoleil First Nation

Transcription

1 Beausoleil First Nation Lands Dispute Resolution Policy & Procedure Manual DRAFT Version: November 23, 2010 Revised: March 26, 2012 : PENDING

2 SECTION I DEFINITIONS Administration Fee means a non-refundable fee of twenty-five dollars ($25.00), used to defer the cost of processing applications. Arbitration - means resolution of a dispute by a neutral arbitrator, where the parties agree to be bound by the decision of the arbitrator. Associational means fellowship or participation in the same group, organisation, or institution. Beausoleil First Nation Member means a person whose name appears on the Band List. Boundary Authority: A Beausoleil First Nation employee authorized to locate the lot markers and establish the boundaries for any lot involved in a dispute at a set fee payable to the Beausoleil First Nation by the person(s) requesting the service. Fee means a standard payment, which is subject to change upon approval by Chief and Council. Good Faith - means bona fide or honest intention Immediate Family means a person s parent, spouse, child, brother, sister, half-brother or half-sister. Keepers of Our Sacred Lands (KOOSL) means the community-based committee established to review all land issues and to make recommendations to Chief and Council. Lands Dispute Panel - means the body called on to mediate or arbitrate a dispute regarding land and related issues on Beausoleil First Nation. Legitimate Complaint - means a written account of a problem between two or more parties regarding land or related uses, which are not frivolous, or vexatious. Litigation means resolution of a dispute by a civil lawsuit in the courts. Mediation - means resolution of a dispute by an impartial mediator(s), where the parties optimise their needs through a discussion guided by the mediator. Monetary means a business investor, owner, employee, or competitor. Negotiation - means resolution of a dispute by face to face discussion between the parties and/or their negotiators. Parties people, business, or institution that have a dispute with another Qualified Individual a person or persons who are fit to hear disputes over land by virtue of their temperament and/or experience, and/or have received training and/or are certified in the techniques of mediation and/or arbitration. November 23, 2010 Page 2 of 16

3 Representative means a family member, friend, or professional hired by a party who acts as an advocate for them. SECTION II INTRODUCTION The Keepers of our Sacred Lands Committee (KOOSL) have developed this policy and procedure manual for the use and benefit for Beausoleil First Nation and its membership. A. PURPOSE To provide equitable procedures for Beausoleil First Nation and its members, businesses owned by a Beausoleil First Nation Member and Beausoleil First Nation to settle disputes regarding land and related issues. B. STEPS 1. First, any party to a dispute over land must notify the Land Management Program staff of the complaint. Following notification, the Lands Management Program staff will discuss and provide the parties with the Lands Dispute Resolution Policy. 2. Second, all parties to a dispute over land must engage in good faith negotiations to resolve the dispute independently with one another. 3. Third, if the good faith negotiations between the parties and consultation with the Lands Program Management staff do not resolve the dispute, than any party may make an application to the KOOSL committee who may refer the matter to the Lands Dispute Panel for mediation. 4. Fourth, if the matter cannot be resolved through mediation, the matter shall be referred to Arbitration with the Lands Dispute Panel which shall be comprised of alternative panel members not party to the mediation process. 5. Fifth, any party to a dispute over Lands and related issues following the attempted resolution through independent discussions amongst the parties, mediation by the Lands Dispute Panel and Arbitration by the secondary Lands Dispute Panel may litigate the matter. C. ROLES AND RESPONSIBILITIES 1. Lands Dispute Panel i) The Lands Dispute panel: a) Shall be constituted by six qualified individuals selected by the KOOSL Committee. The panel members appointed to hear a November 23, 2010 Page 3 of 16

4 matter will be appointed by KOOSL on a case by case basis to avoid any conflict of interest. b) Shall have the authority to hear disputes regarding Beausoleil First Nation Lands; c) Shall meet when required to resolve disputes referred to them by KOOSL. d) Shall act impartially and without bias; e) Shall address disputes no later than 60 days from the date of the receipt of the application; f) Shall provide direction to the Lands Management Program staff regarding the implementation of the resolution of mediated or arbitrated matters. 2. The Keepers of Our Sacred Lands (KOOSL) Committee a) Shall maintain a roster, of not less than eight (8) names, of qualified individuals of the Land Dispute Panel. For each case, three (3) panel members will be selected for mediation hearings. Three (3) alternative members for arbitration hearings will be selected as required. The Land Dispute Panel members will be appointed on a case by case basis to avoid any conflict of interest issues; b) Shall interview potential candidates for the roster, and select individuals according to Section VI Lands Dispute Panel Terms of Reference; c) Shall meet as required to review applications and refer cases to the Lands Dispute Panel. KOOSL will then select three (3) members from the roster of Lands Dispute Panel to mediate and/or arbitrate a resolution to the matter. 3. Lands Management Program Staff i) The Lands Management Program staff: a) Shall meet and consult with all parties to a dispute to ensure that all parties clearly understand the dispute resolution process. b) Shall complete all related departmental administrative documentation in accordance with procedure. November 23, 2010 Page 4 of 16

5 c) Shall receive direction from Lands Dispute Panel regarding the implementation of the resolution of mediated or arbitrated matters. D. REVIEW AND AMENDMENT 1. At least once every five (5) years, KOOSL with the assistance of the Lands Management Program staff, shall review the Dispute Resolution Policy to ensure that it is accommodating the needs of Beausoleil First Nation and its members. 2. As part of the review, Beausoleil First Nation members will be invited to attend workshops and meetings for their input regarding any issues or suggestions for improvement to this policy. 3. At least one meeting with Chief and Council will occur to report on the results of the review. 4. Final amendments will be reviewed and ratified in a community meeting by the Beausoleil First Nation membership. November 23, 2010 Page 5 of 16

6 SECTION III NEGOTIATION A. GENERAL A Beausoleil First Nation member, a business owned by a member, or the First Nation must negotiate to resolve a dispute regarding land and land related issues on Beausoleil First Nation prior to bringing any dispute forward to the Beausoleil First Nation Dispute Resolution process. B. POLICY 1. A party negotiating a dispute must have attained the age of eighteen (18) years old. 2. A party may choose to have a representative negotiate for them. 3. The parties will comply with all applicable laws, by-laws, policies, and regulations of Beausoleil First Nation. 4. Any violation of Beausoleil First Nation Policies, laws and bylaws will be ineligible for negotiations. 5. Parties to a dispute over land must engage in good faith negotiations and demonstrate such efforts to resolve the dispute independently with one another as the first step towards resolution. 6. If negotiation cannot resolve a dispute than the parties may enter into mediation to resolve the dispute. 7. If the mediation process does not resolve the dispute, the parties may move to arbitration in accordance with the procedures established in accordance with this policy. 8. When the location of boundary lines is the point of contention, the ( Boundary Authority will locate the lot markers and establish the boundaries for any lot involved in a dispute at a set fee payable to the Beausoleil First Nation by the person(s) requesting the service C. PROCEDURE 1. Parties b) The parties must discuss the dispute between them, and are encouraged to record the following: i) Description of the disputed issue; ii) Map of the properties involved; iii) Written report of negotiation efforts. November 23, 2010 Page 6 of 16

7 2. Keepers Of Our Sacred Lands (KOOSL) Committee a) KOOSL reviews initial applications and makes recommendations as required to the Lands Dispute Panel for mediation hearings, organizes the undertaking of both the mediation and arbitration hearings, including maintaining the roster of panel members. For greater certainty, KOOSL plays no role in the negotiations or the decision making at the applicable hearing. 3. Land Dispute Panel a) The panel plays no role in the negotiations. 4. Lands Management Program Staff a) The Lands Management Program Staff may advise parties of their rights and responsibilities under the Land Dispute Policy. November 23, 2010 Page 7 of 16

8 SECTION IV MEDIATION A. GENERAL After a good faith effort to negotiate a resolution, a Beausoleil First Nation Member, a business owned by a member, or the Beausoleil First Nation may make an application to KOOSL requesting a hearing before the Land Dispute Panel to resolve a dispute regarding land and land related issues on Beausoleil First Nation. B. POLICY 1. A party requesting a hearing before the Land Dispute Panel must have attained the age of eighteen (18) years old. 2. A party is required to complete and application and prepare a written complaint and submit it to KOOSL. KOOSL will review the complaint and may recommend it to the Lands Dispute Panel for mediation. 3. A party has the right to attend all public portions of hearings where their complaint is being considered. 4. A party may choose to have a representative present and represent them at the mediation. 5. The parties will comply with all applicable laws, by-laws, policies, and regulations of the Beausoleil First Nation. a. Parties to a dispute over land must engage in good faith negotiations and demonstrate such efforts to resolve the dispute independently with one another as the first step towards resolution. 6. Parties to a dispute over land must engage in good faith negotiations and demonstrate such efforts to resolve the dispute independent with one another as the first step towards resolution, unless the dispute involves an infraction of BFN policy/law for which there is a penalty. a) If negotiations do not resolve the dispute than the parties may make an application to have the matter mediated by the Lands Dispute Panel. b) If mediation does not resolve a land dispute, the parties may proceed to the Land Dispute Panel for arbitration. 7. In the event that mediation or arbitration does not resolve the dispute, the parties may pursue other remedies such as litigation. a) All other remedies are at the expense of the aggrieved party. a. When the location of boundary lines is the point of contention, the Boundary Authority will locate the lot markers and establish the November 23, 2010 Page 8 of 16

9 boundaries for any lot involved in a dispute at a set fee payable to the Beausoleil First Nation by the person(s) requesting the service C. PROCEDURE 1. Parties a) The parties must submit, to the secretary of KOOSL, an application with a written complaint, which includes the following: i) Description of the disputed issue; ii) Map of the properties involved; iii) List of the attempts at negotiation. b) The applicant shall be required to pay the applicable administration fee. c) If the applicant chooses to appoint a representative, they must inform KOOSL in writing. d) A party has the right to attend all public portions of hearing where their complaint is being considered. 2. Keepers Of Our Sacred Lands (KOOSL) Committee a) The secretary (selected by committee) will accept the application with the written complaint on behalf of the committee. Should the secretary of KOOSL be unavailable, the staff of the Beausoleil First Nation Land Management Department will accept the complaint on behalf of the committee. b) The secretary will create a file and issue a file number for the complaint and related documents. c) The secretary will accept the administration fee and issue a receipt to the party(s). d) If the administration fee does not accompany the complaint, the complaint will be returned to the party(s). e) The parties may resubmit the complaint upon payment of the administration fee. f) KOOSL will within thirty (30) days, review the complaint together with all supporting documentation for legitimacy. Legitimate complaints will be referred for mediation to the Land Dispute Panel. In the event that any deficiencies to the complaint are noted, the complaint will be returned to the party(s) to remedy the deficiencies. g) KOOSL will select three (3) people, at random, in rotation, from a roster of qualified individuals to sit on the Land Dispute Panel. November 23, 2010 Page 9 of 16

10 Three (3) alternates will also be chosen in case of a Conflict of Interest or extenuating circumstances that may prevent a selected individual from sitting on the panel. h) KOOSL will set a date for a hearing of the land dispute by the Land Dispute Panel within sixty (60) days of the written submission by the party(s). 3. Lands Dispute Panel The Lands Dispute Panel will ensure that: a) The first order of business, aside from any formal opening ceremony, act of welcome, or invocation, will be to determine any conflict of interest. b) In circumstances where a conflict of interest occurs, Section VII IV- Conflict of Interest will apply. c) Based on the merits of the complaint, the Land Dispute Panel will consider the matter. d) Reasons for the decision will be included in a written report. e) The Lands Dispute Panel will inform the lands department regarding the outcome of the dispute, including any direction for implementation of the resolution of the dispute. 4. Lands Management Program Staff a) Once KOOSL has referred a dispute to the Land Dispute Panel, KOOSL will inform the Lands Program Staff and will set the hearing date and begin selecting Lands Dispute Panel members and the alternates for such hearing date. b) Upon receiving the written Dispute Resolution Report from the Lands Dispute Panel, the Lands Management Program Staff will notify the parties that a decision has been made and provide the written decision of the Lands Decision Panel and ensure all parties acknowledge receipt of the record of decision. c) The Lands Program Management Staff will make copies of the Dispute Resolution Report available, upon request, to community members. d) KOOSL and the Lands Management Program Staff will carry out an annual review in consultation with members and report its findings to Chief and Council. November 23, 2010 Page 10 of 16

11 SECTION V ARBITRATION A. GENERAL After attempting to resolve a dispute through the mediation process, a member, businesses owned by Beausoleil First Nation member and Beausoleil First Nation may request a hearing before the Lands Dispute Panel to resolve disputes regarding land and land related issues on Beausoleil First Nation. B. POLICY 1. A party requesting a hearing before the Land Dispute Panel must have attained the age of eighteen (18) years old. 2. Following a mediated effort, should a party not agree with the mediation decision, a party may prepare a written appeal of the decision and submit it to KOOSL for arbitration by the Lands Dispute Panel. 3. A party has the right to attend all public portions of hearings where their appeal is considered. 4. A party may choose to have a representative present. 5. The parties will comply with all applicable laws, by-laws, policies, and regulations of the Beausoleil First Nation. 6. The Land Dispute Panel will, in all cases, use arbitration as the final step towards resolution, unless the dispute involves an infraction of BFN policy/law for which there is a penalty. a) For greater certainty, an arbitrated decision will not be made without prior request from all parties. 7. If the dispute resolution should fail to resolve the matter to the one or both parties satisfaction, a party or the parties may pursue other remedies such as litigation. a) All other remedies are at the expense of the aggrieved party. 8. When the location of boundary lines is the point of contention, the Boundary Authority will locate the lot markers and establish the boundaries for any lot involved in a dispute at a set fee payable to the Beausoleil First Nation by the person(s) requesting the service November 23, 2010 Page 11 of 16

12 C. PROCEDURE 1. Parties a) The party must have submitted, to the secretary of KOOSL, a written appeal of the mediation decision b) The parties must have paid the applicable administration fee. c) All parties must unanimously request an arbitration of their dispute over land or land related matter. d) If a party chooses to appoint a representative, they must inform KOOSL in writing. e) A party has the right to attend all public portions of hearings where their complaint is being considered. 2. Keepers Of Our Sacred Lands (KOOSL) Committee a) The secretary must have accepted the written appeal on behalf of the committee, created a file, and issued a file number for the complaint and related documents. b) The secretary must have accepted the administration fee and issue a receipt to the party(s). 3. Land Dispute Panel a) Based on the merits of the complaint, the Land Dispute Panel will: i) Arbitrate it, or ii) Defer it for further consideration. b) Reasons for the decision will be included in the Dispute Resolution Report. c) The Land Dispute Panel will direct the Lands Management Program Staff to prepare the appropriate documentation, including reasons for the decisions. d) In circumstances where a conflict of interest occurs, Section IV- Conflict of Interest will apply. November 23, 2010 Page 12 of 16

13 4. Lands Management Program Staff a) Upon resolution of the party s dispute, the Lands Management Program Staff will notify the parties, in writing, within seven (7) days of receipt of the Dispute Resolution Report. b) The Lands Program Management Staff will ensure that the Dispute Resolution Report is signed by the parties. c) The Lands Program Management Staff will make copies of the Dispute Resolution Report available, upon request, to community members. d) The Lands Management Program Staff with KOOSL will carry out an annual review in consultation with members and report its findings to Chief and Council. November 23, 2010 Page 13 of 16

14 SECTION III SQUATTER S RIGHTS The Beausoleil First Nation Chief and Council does not recognize Squatter s Rights. Unauthorized use of band land will not be tolerated. Any and all improvements will be removed at the offender s expense. SECTION IV CONFLICT OF INTEREST A. GENERAL From time to time, a member of the Land Dispute Panel may find themselves in a direct relationship with a party to a dispute over land. In circumstances where this relationship creates a conflict of interest, whether it is real or perceived, it shall be necessary that the member of the Land Dispute Panel remove themselves from the dispute resolution process. B. POLICY 1. A conflict of interest can only arise if a member of the Land Dispute Panel is in a position to resolve a dispute. 2. A conflict of interest may arise if a member of the Land Dispute Panel has a direct relationship with a party to a dispute, that is: a) Existing, or b) Will exist in the foreseeable future. 3. A conflict of interest exists when the relationship between the member of the Land Dispute Panel and the party is: a) Immediate family and/or; b) Monetary and/or; c) Associational. 4. When a member of the Land Dispute Panel finds themselves in a conflict of interest, they will: a) Declare the nature of the conflict for record in the minutes; b) Physically remove themselves from any discussion of the dispute; c) Refuse to receive or work on any files, notes, etc. regarding the dispute; d) Not participate in any decision regarding the dispute. C. PROCEDURE November 23, 2010 Page 14 of 16

15 1. Parties a) When asked in a hearing, a party to a dispute will declare if they have a relationship with a member of the Land Dispute Panel that may place the member in a Conflict of Interest. 2. Keepers Of Our Sacred Lands (KOOSL) Committee a) If a member of the Land Dispute Panel is found to be in a Conflict of Interest they will select an alternate from their roster of qualified individuals capable of sitting as Land Dispute Panel members. 3. Land Dispute Panel a) Each member of the Land Dispute Panel will declare, for the record, whether or not they have a relationship with any party to a dispute that may constitute a Conflict of Interest, as defined in this policy. b) Each member of the Land Dispute Panel will ask all parties to a dispute to state, for the record, whether or not they have a relationship with that member of the Land Dispute Panel that may constitute a Conflict of Interest for that member, as defined in this policy. c) If a Conflict of Interest is so found, the member of the Land Dispute Panel will excuse themselves from the proceedings. 4. Lands Management Program Staff a) The Lands Management Program Staff will record all absences and occurrences of Conflicts of Interest. 5. Conflict of Interest a) In the event of a conflict of interest, KOOSL will appoint an alternate Lands Dispute Panel member to sit on the arbitration panel. November 23, 2010 Page 15 of 16

16 SECTION V KOOSL TERMS OF REFERENCE A. MISSION STATEMENT The Keepers of Our Sacred Lands (KOOSL) are committed to developing an equitable procedure for those who are a party a dispute over land, and in doing so will maintain the respect and dignity that each First Nation member so rightly deserves, for this generation and future generations. B. POLICY 1. The KOOSL Committee shall meet as required to review complaints and to send legitimate complaints to the Land Dispute Panel. 2. The KOOSL Committee is not a dispute resolution body, and will only submit recommendations to Land Dispute Panel for mediation and/or arbitration. SECTION VI LANDS DISPUTE PANEL TERMS OF REFERENCE A. MISSION STATEMENT The Lands Dispute Panel is committed to resolving disputes over land, and in doing so will maintain the respect and dignity that each First Nation member so rightly deserves, for this generation and future generations. B. POLICY 1. The Land Dispute Panel shall meet, as requested by the KOOSL, to mediate or arbitrate a matter referred to it. 2. The Land Dispute Panel is a dispute resolution body, and will hear complaints referred to it by KOOSL. 3. The Land Dispute Panel will consist of individuals qualified to mediate and/or arbitrate disputes by their: a. Temperament b. Experience c. Training d. Certification November 23, 2010 Page 16 of 16