How are Disputes Resolved?
It’s inevitable that at some times the Crown and a modern treaty organization will disagree. If the disagreement is significant enough, it may be referred to a dispute resolution mechanism. These mechanisms, such as good faith negotiation, mediation and arbitration, vary significantly between treaties. If the dispute mechanisms don’t resolve the matter, the parties then may have to seek recourse in the courts. Here are some examples:
- James Bay and Northern Quebec Agreement (JBNQA): The original Agreement contained very little in terms of dispute resolution mechanisms. Many significant disputes regarding implementation issues arose in the early decades of the Agreement and led to substantial litigation by the Cree Nation against both Canada and Quebec. This litigation was settled through two major agreements, the Paix des Braves Agreement signed with the Government of Quebec in 2002, and the New Relationship Agreement signed with the Government of Canada in 2008, both of which contain dispute resolution mechanisms aimed at avoiding future litigation. For example, as a result of these two settlements, two standing committees (Cree-Canada and Cree-Quebec standing committees) have been established for dealing with future disputes. Disputes and potential disputes are brought to these committees for discussion and resolution.
- Inuvialuit Comprehensive Land Claim Agreement: When the Inuvialuit signed their Agreement in 1984, it contained an arbitration provision, which provided that in any case where there was a disagreement between the parties, either party could refer to arbitration. The Inuvialuit and federal Crown have been to arbitration on multiple occasions.
- Nunavut Agreement: Signed in 1993, the Nunavut Agreement did include arbitration provisions, but in every case when Nunavut Tunngavik Inc. tried to invoke arbitration, the federal Crown refused to allow it. Eventually NTI took the matter to court, and in 2015 an out of court settlement was reached which includes an amended arbitration process that first brings disagreements to an implementation panel, then to negotiation, next to mediation, and finally to arbitration.
