Bob Simpson: Director of Intergovernmental Relations, Inuvialuit Regional Corp.

Transcription

1 Bb Simpsn: Directr f Intergvernmental Relatins, Inuvialuit Reginal Crp. The Inuvialuit Arbitratin Prcess It is very unique the nly example f binding arbitratin in a land claim agreement; ther land claims require all parties t cnsent. Western Arctic Claim: Inuvialuit Final Agreement The Inuvialuit Final Agreement was fficially signed June 5 th, Chapter 18 cntains the prvisins f the Arbitratin Bard and Prcess: Structure f the bard Frmatin f arbitratin panels Hw disputes are initiated Prcedure and Evidence Award and Csts Review prvisin by the federal curt f appeal and the jurisdictin f the Bard Abve: The Inuvialuit Settlement Regin relative t the rest f Canada (Inuvialuit Jint Secretariat, 2004)

2 Abve: Map f the Inuvialuit Settlement Regin (ISR) There are six Cmmunities in the ISR: Aklavik, NT Inuvik, NT Paulatuk, NT Sachs Harbur, NT Tuktyaktuk, NT Ulukhaktk, NT Inuvialuit arbitratin chapter ARBITRATION BOARD The Arbitratin Bard shall have eleven (11) members, including a Chairman and a Vice-Chairman. 18.(4) Canada shall appint five (5) members f the Arbitratin Bard, amng whm shall be the Chairman and the Vice-Chairman. The Chairman and Vice-Chairman must, hwever, be acceptable t the Inuvialuit and Industry. Of the three (3) ther members appinted by Canada, each f the Gvernment f the Nrthwest Territries and the Gvernment f the Yukn Territry shall designate ne. Where the parties cannt agree n a Chairman r Vice-Chairman r bth, the Chief Justice f either f the Territries may appint a Chairman r Vice-Chairman r bth at the request f ne f the parties. 18.(5) Each f the Inuvialuit and Industry shall appint three (3) members f the Arbitratin Bard. 18.(6) Fr the purpses f subsectins (4) and (5), "Industry" means the five (5) largest cmmercial and industrial entities in the Inuvialuit Settlement Regin frm time t time with regard t assets in the regin, but nt mre than tw (2) f such entities shall be cntrlled by Inuvialuit. 18.(8) A register shall be kept f all decisins f the Arbitratin Bard. The data used by the Arbitratin Bard shall be retained and made available t the public n request. 18.(9) The Arbitratin Bard may establish and adpt by-laws and rules fr its internal management and its prcedures.

3 18.(10) Canada shall prvide the Arbitratin Bard with the staff required t enable it t fulfill its functins. FORMATION OF PANELS 18.(12) Any issue fr arbitratin invlving the Inuvialuit and Industry r the Inuvialuit and Canada shall be referred t a panel f five (5) members f the Arbitratin Bard, tw (2) f whm shall be designated by each f the interested parties, and the Chairman r Vice-Chairman, as designated by the Chairman. If ne f the interested parties is Canada, ne f its panel members shall be designated by the Territrial Gvernment in whse jurisdictin the matter arse. INITIATION OF ARBITRATION 18.(15) Except as therwise prvided by this Agreement, Canada, the Inuvialuit r Industry may initiate arbitratin by giving ntice t the ther party t the dispute and a cpy t the Chairman f the Arbitratin Bard fr circulatin t all members f the Bard. Where a matter fr arbitratin is within the jurisdictin f the Gvernment f the Nrthwest Territries r Yukn Territry, Canada agrees t initiate arbitratin n request by the Territrial Gvernment. 18.(16) Any party may intervene t participate in an arbitratin after giving written ntice t the Chairman, if it satisfies the Chairman that its interests are affected. 18.(17) Within fifteen (15) days after receipt by the Chairman f a cpy f the ntice referred t in subsectin (15), the Chairman shall: (a) name the interested parties t the dispute and by written ntice require each f them t designate panel members; and (b) name any ther participants in the arbitratin prcess and define their status. 18.(18) Where any interested party fails t nminate its members within fifteen (15) days after receipt f the ntice f the Chairman referred t in subsectin (17), the arbitratin may cmmence and prceed withut thse members and the panel has the like pwer t act and t make an award as if it were fully cnstituted. 18.(19) The hearing f the Arbitratin Bard shall cmmence within thirty (30) days after receipt by the Chairman f the ntice referred t in subsectin (15). PROCEDURE AND EVIDENCE 18.(21) The hearing f the Arbitratin Bard shall cmmence with the party initiating the arbitratin presenting its case summarized in writing and supprted by witnesses available fr crss- examinatin. The ther party r parties shall similarly present their cases fllwed by any intervener. The claimant shall have a final right f rebuttal after which argument shall be made by the parties in the same rder, cnsisting f a summary f the facts alleged and an explanatin f any legal prpsitins advanced. 18.(22) Where a member f the Arbitratin Bard refuses t act r is incapable f acting, the party by whm the member was appinted shall appint a member in his stead. Where the Chairman f Vice- Chairman refuses t act r is incapable f acting, Canada shall prmptly appint a replacement. AWARD AND COSTS 18.(27) The panel shall make its award in writing within three (3) mnths after the hearing r at any ther date t which all the parties t the arbitratin agree in writing. 18.(28) Ntice f the award shall be delivered t all parties t the arbitratin and shall be enfrced in the same manner as a judgment r an rder f a Curt. 18.(29) Subject t subsectin (31), the award f the Arbitratin Bard is final and binding n all parties and n any persns claiming under the parties. 18.(30) The csts f the arbitratin are at the discretin f the Arbitratin Bard and the Bard may direct by whm and in what manner the csts r any part theref shall be paid.

4 REVIEW 18.(31) The award f the Arbitratin Bard is subject t review by the Federal Curt f Appeal under sectin 28 f the Federal Curt Act. JURISDICTION OF BOARD 18.(32) The Arbitratin Bard shall have jurisdictin t arbitrate any difference between the Inuvialuit and Industry r Canada as t the meaning, interpretatin, applicatin r implementatin f this Agreement. 18.(33) It is agreed that this arbitratin prcess shall nt apply t the rights f any ther native grup cnfirmed by any ther settlement legislatin withut their cnsent. It is further agreed that the arbitratin prcess is withut prejudice t the right f ther native peples t determine, in their land claims settlements, the apprpriate mechanism fr reslving disputes invlving their rights. Inuvialuit arbitratin There have been fur Arbitratin Bard decisins rendered t date. Three ther matters have been referred t arbitratin but have settled befre ging t hearing. There are n arbitratins currently utstanding. Arbitratin bard decisins and settlements 1. Inuvialuit Reginal Crpratin and the Inuvialuit Land Crpratin v. Her Majesty in Right f Canada as represented by the Minister f Natinal Defense and the Minister f Indian Affairs and Nrthern Develpment, Award N. 001/94 (s. 18 and the NWT): This arbitratin dealt with tw distinct disputes; namely: a) the DEW-Line Request fr Prpsal Canada required t meet IFA Ecnmic Measures b) the Hrtn River clean-up Canada required t meet IFA Ecnmic Measures a) Award N. 001/94: Des the RFP prperly cme within the ambit f s.16(8)(b) r s.16(8)(c) f the IFA? What is the nature f Canada s bligatins set ut in s.16(8) f the IFA? What was the effect f Canada s failure t ntify the Inuvialuit abut the RFP? Decisin Canada rdered t pay IRC nminal damages fr the Gvernment s failure t prvide IRC with prper ntice f the RFP and the Subsequent Cntract, as per their s.16(8)(c) bligatins. b) Award N. 001/94: What is the prper meaning f the term remve, as used in the Settlement Agreement; D the bligatins cntained in the Settlement Agreement extend beynd the reservatin area; and Wuld the bligatins impsed by the Settlement Agreement apply in the event that the clean-up were cmpleted by anther federal agency? Decisin The panel declared that: Canada was in breach f the terms f the Settlement Agreement fr nt having cmpleted the clean-up within a reasnable perid f time;

5 The term remve, as used in the Settlement Agreement, means t physically transprt materials ut f the area; Canada s bligatins under the Settlement Agreement extended t sme areas utside f the reservatin area; and Any clean up f the Hrtn River site is subject t the DND-IRC Cperatin Agreement and Settlement Agreement. 2. Inuvialuit Reginal Crpratin and the Inuvialuit Land Crpratin v. Her Majesty in Right f Canada as represented by the Minister f Natinal Defense and the Minister f Indian Affairs and Nrthern Develpment, Award N. 002/94 (s. 18 and Yukn): With the exceptin f the members appinted by the territries, the panel fr arbitral award N. 002/94 was cmprised f the same members as that fr Award N.001/94. The tw arbitratins dealt with much f the same evidence, and decided many f the same pints f law. The issues brught frth by this dispute included: Decisin Has Canada breached its bligatin t use its best effrts t add Kmakuk Beach t Ivvavik Natinal Park? Has Canada breached its bligatin t clean-up the Kmakuk DEW-line site? Canada had breached its bligatins in regards t the Kmakuk Beach DEW-line clean-up, and adding Kmakuk t Ivvavik Natinal Park. 3. Inuvialuit Reginal Crpratin and the Inuvialuit Land Crpratin v. Her Majesty in Right f Canada as Represented by the Minister f Indian and Nrthern Affairs, Award N. 1 f 2004 regarding: gas ryalties frm Explratin Agreement N.224 ( the Ikhil Land ): The majr issues raised thrugh this dispute were: Whether the IFA creates a guarantee with regards t the ryalties frm s.7(93) lands; and Whether mney is t be remitted by Canada fllwing receipt f ryalty payments frm the Interest hlders r nce prductin cmmenced by regardless f any mney actually received by the Respndent. There was als a subsidiary issue as per whether Canada s bligatins in this regard were terminated when IPC acquired 100% f SDL N. 29. Decisin Canada rdered t remit all ryalties btained frm the Ikhil lands, calculated at the 1983 COGA rate, t the Inuvialuit as these are received frm interest hlders. 4. Regarding GNWT Prcurement Practices: In April 2005, IRC Issued a Ntice f Arbitratin under the Inuvialuit Final Agreement ( IFA ) respecting the implementatin f prcurement plicies by the Gvernment f the Nrthwest Territries ( GNWT ) in the Inuvialuit Settlement Regin ( ISR ). Issue The GNWT did nt cnsult with the Inuvialuit befre entering int the MOU, Did nt negtiate with the Inuvialuit regarding implementatin f the MOU in Aklavik and Inuvik, and Did nt ffer t enter a similar MOU with the Inuvialuit. Decisin The substance f the decisin was as fllws:

6 Sectin 16(6)(c) f the IFA impses bligatins n GNWT with respect t gvernment cntracting. The GNWT needs t cnsult with IRC befre it takes steps in the ISR that might affect the Inuvialuit. GNWT is bligated t enter int a similar MOU with the Inuvialuit. Arbitratin disputes that were settled befre frmal arbitratin: 1. Canada v. Inuvialuit Reginal Crpratin, Inuvialuit Land Administratin and Inuvialuit Land Crpratin (Airprt Lands). 2. Inuvialuit Reginal Crpratin v. Gvernment f the Nrthwest Territries (Kudlak Lake). 3. POJE v. Inuvialuit Reginal Crpratin (Enrlment). Observatins The IFA has ther prvisins that prvide directin and guidance when required. Disputes settled by arbitratin r between the parties utside f arbitratin prvide clarity fr IFA implementatin. Parties are mre willing t seek reslutin f implementatin issues and seek remedies that meet each ther s interests. The wrking relatinship between the parties has imprved. Smetimes when yu get int interpretatin peple read what they want t read, but the IFA has been helpful, the language seems t be clear. What is fiduciary? What relatinship has been built ver the years? Agreements als establish fiduciary relatinships. Is fiduciary paternalistic? N, this is abut living up t bligatins, achieving clarity, and a clear prcess t wrk things ut.

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