Nunavut Land Claims Agreement

ARTICLE 38

ARBITRATION

PART 1
ESTABLISHMENT OF ARBITRATION BOARD

38.1.1
An Arbitration Board (the "Board") shall be established.

38.1.2
The Board shall have nine members. The chairperson and the vice-chairperson shall be selected by and from the members of the Board.

38.1.3
The Government of Canada, the Territorial Government and the DIO will consult and attempt to reach agreement as to the persons to be initially appointed by them jointly to the Board.

38.1.4
If agreement is not reached within six months of the date of ratification of the Agreement for any or all of the nine appointments under Section 38.1.3, the remainder of appointments, upon request of the Government of Canada, the Territorial Government or the DIO, shall be made by a judge of the superior court having jurisdiction in the Nunavut Settlement Area.

38.1.5
Re-appointments or new appointments to the Board shall be made in accordance with Section 38.1.3 and 38.1.4, except that a judge may be requested to make any such appointment if agreement is not reached within six months of the vacancy occurring.

38.1.6
The term of appointment of a member of the Board shall be for five years and a member shall be eligible to be re-appointed.

38.1.7
Any staff of the Board shall be provided by Government and any office of the Board shall be in the Nunavut Settlement Area. The Board shall prepare an annual budget, subject to review and approval by Government. The approved expenses of the Board shall be borne by Government.

PART 2
JURISDICTION OF ARBITRATION PANEL

38.2.1
An arbitration panel shall have jurisdiction to arbitrate in respect of:

(a)
any matter concerning the interpretation, application or implementation of the Agreement where the DIO and Government agree to be bound by the decision; and

(b)
matters specifically designated in other Articles for resolution by arbitration under this Article.

38.2.2
An arbitration panel is prohibited from making a decision that alters, amends, deletes, or substitutes any Article of the Agreement in any manner.

PART 3
RULES AND PROCEDURES

38.3.1
The Board may establish rules and procedures for the conduct of references under this Article.

38.3.2
It is intended that the process of arbitration will resolve disputes submitted to it in an informal and expeditious manner.

38.3.3
A reference shall be heard and determined by an arbitration panel selected from among members of the Board, consisting of:

(a)
one arbitrator, if agreed to by the parties to the arbitration; or

(b)
three arbitrators, where one is selected by each of the parties to the arbitration, and a chairperson appointed in accordance with Section 38.3.6.

38.3.4
An arbitration shall be initiated by a reference to arbitration filed with the Board by any party to a dispute. The reference shall name the other party to the dispute, set out the nature of the dispute, a summary of the facts, describe the issue to be arbitrated, name an arbitrator from the Board and describe the relief sought.

38.3.5
Within 30 days of being notified by the Board of a reference to arbitration, the other party to the dispute shall file a reply responding to the reference, agreeing to the arbitrator named in the reference or naming its arbitrator from the Board and describing any relief sought.

38.3.6
The chairperson shall be a person agreed upon by the two arbitrators named under Sections 38.3.4 and 38.3.5, except that, failing agreement, the chairperson shall be appointed by a judge pursuant to the territorial Arbitration Act, and in such case the judge may appoint any person as a chairperson as the judge thinks fit, whether the person is a member of the Board or not.

38.3.7
The arbitration panel may, on application, allow any person to participate in an arbitration as an intervenor, if in the arbitration panel's opinion the interest of that person may be affected by the arbitration, and on such terms as the arbitration panel in its discretion may order.

38.3.8
The arbitration panel shall have jurisdiction to determine all questions of fact, and to make an award, including interim relief, payment of interest, and costs; but no costs shall be awarded against the DIO in any arbitration within Section 38.2.1 where the arbitration panel upholds the decision of the DIO.

38.3.9
If an arbitration panel makes no decision as to costs, each party to an arbitration shall bear its own costs and its proportionate share of the other costs of the arbitration, including the remuneration and expenses of the arbitration panel.

38.3.10
Notwithstanding Section 38.3.9, the parties to an arbitration shall not bear the costs of the arbitration panel in any expropriation proceeding where such costs are normally paid by Government.

38.3.11
In the absence of a majority decision, the decision of the chairperson shall prevail.

38.3.12
The decision of the arbitration panel is final and binding and is not subject to appeal, but the decision may be reviewed by the superior court having jurisdiction in the Nunavut Settlement Area for a failure to observe the principles of natural justice or otherwise acting beyond or refusing to exercise its jurisdiction.

38.3.13
The territorial Arbitration Act, shall apply to any arbitration to the extent that it is not inconsistent with these provisions.

38.3.14
The Board shall maintain a public record of the arbitration decisions of the arbitration panels.

38.3.15
Where a party to an arbitration has failed to comply with any of the terms of the decision of an arbitration panel, any party to the arbitration may file in the office of the Registrar of the superior court having jurisdiction in the Nunavut Settlement Area, a copy of the decision, exclusive of the reason therefore, in the prescribed form, whereupon the decision shall be entered in the same way as a judgement or order of that court and is enforceable as such.

38.3.16
A party to an arbitration may request from a court, either before or during arbitral proceedings, an interim measure of protection and a court may grant such a measure.

38.3.17
Unless otherwise specified in a decision of the arbitration panel, the effective date of the decision of the arbitration panel is the date on which the decision is released.

38.3.18
Except in respect of disputes arbitrated under these provisions, nothing in these provisions affects the jurisdiction of any court.

PART 4
TRANSITIONAL

38.4.1
Until the Board is established, the territorial Arbitration Act, applies to any arbitration described in Section 38.2.1.