A person to be agreed upon by all the parties shall be appointed as a single Arbitrator to adjudicate upon claims and matters referred to herein, hereinafter referred to as the "Arbitrator".
An Arbitrator who dies or is unable or unwilling to act for any reason whatsoever (a "former Arbitrator") shall be replaced by a successor Arbitrator (also hereinafter referred to as the "Arbitrator") in the following manner:
Each party shall submit the names, addresses and occupations of five individuals to the other parties any one of whom may be selected by the other. Any one of the individuals so submitted who is unanimously selected, shall be the successor Arbitrator. If more than one individual is selected unanimously then any one of them who is able and willing to act may be called upon to hear any of the matters in dispute in respect to any matter arising out of this Agreement;
If the parties do not unanimously agree as to the individual to be named the successor Arbitrator then the individual who receives the support of the majority of the parties, shall be appointed;
If no agreement can be reached by the parties then the Manitoba Court of Appeal shall appoint the successor Arbitrator.
In the event that a successor Arbitrator is appointed, any orders made by any former Arbitrator shall remain valid and binding and shall, if necessary, be implemented by the successor Arbitrator as if they were the orders of the successor Arbitrator.
The Arbitrator may be removed from his office if any three of Manitoba, Hydro, the Committee (or a single successor of the Committee) and Canada desire a change of Arbitrator for any reason whatsoever. In that event, the parties shall appoint a successor Arbitrator as provided in Article 24.2. Notwithstanding anything to the contrary contained in this Agreement, in the event that the Committee has ceased to represent the Bands, then the concurrence in writing of any three Chiefs of the Bands shall be substituted for the concurrence of the Committee.
Except where otherwise provided, "person" where used in this Article shall mean any person previously defined in Article 1.12 as well as any of the parties hereto.
It is the intention of the parties to this Agreement that the Arbitrator shall have broad authority and power to make awards capable of implementation and to fashion an appropriate and just remedy in respect of any and all adverse effects of the Project on any person and that such remedy shall at a minimum place that person in no worse position in that respect than he would have been in the absence of the adverse effect provided that any recommendation which involves a mitigatory and/or remedial measure to be implemented by any party shall be dealt with as provided in Article 24.25 and Article 24.26.
The Arbitrator shall have the power and authority to hear any claim or matter in dispute submitted by any person and he shall determine such claim or matter in dispute if the claim or matter in dispute arises directly or indirectly out of, or is attributable to the Project, or arises by reason of a failure to comply with or give effect to any provision contained in this Agreement.
Because mitigatory and/or remedial measures are more likely to have a lasting beneficial effect on the viability of a community and/or on individual residents than monetary compensation, such measures shall be preferred and only where mitigatory and/or remedial measures are not feasible or fail in effectiveness shall monetary compensation be ordered in lieu thereof in respect of any adverse effect.
The Arbitrator shall have the right to forthwith order interim compensation prior to the determination of any issue or matter in totality.
In dealing with claims or matters in dispute which are submitted to the Arbitrator and in particular in assessing compensation or recommending remedial action or the like, the Arbitrator shall deal with such matters on the basis that the liability to compensate any person adversely affected by the Project is the sole and exclusive responsibility of Hydro and any recommendation for remedial action or the like is the responsibility of Hydro, Manitoba or Canada or any one or more of them.
Hydro shall have the right to settle individual claims with any person. Hydro shall advise the Committee and the appropriate Band Council of all such settlements that have been made to date ("prior settlements") and shall thereafter advise the Committee and the appropriate Band Council on a quarterly basis of all such settlements that may hereafter be made. It is understood and agreed that all prior settlements shall be reviewable by the Arbitrator within four years of the date of this Agreement at the request of any person and any such settlement made subsequent to the date of this Agreement shall be reviewable within four years after the date of such settlement and in either eventuality the said Arbitrator shall have the power to award additional compensation, including interest. No review of such claims shall be made after the aforesaid times have expired and the settlement shall then be deemed to be final.
It is understood and agreed between the parties hereto that any specific issue for which compensation or redress or remedial measure or the like is claimed or requested must be submitted in writing to the Arbitrator within four years of the date of the alleged cause of claim becoming evident to the claimant or five years from the date of this Agreement, whichever is later, otherwise the right of claim shall expire.
The powers and procedures set forth in the Arbitration Act of Manitoba RSM 1970 Chapter A 120 shall govern in all references to arbitration except where the said powers and procedures are contrary to the provisions herein set forth in which case the powers and procedures herein set forth shall govern, or where the Arbitrator deems such procedures to be inappropriate or inconsistent with his duty to arrive at a just award or order, in which case the Arbitrator shall give written reasons for deciding to vary the procedure in connection with any case before him.
Any person may have a claim or matter or dispute dealt with under the terms of this Agreement provided however that no claim or matter or dispute on behalf of any person shall be made by one of the parties hereto unless the consent in writing of the person to the initiation of such proceeding is submitted to the Arbitrator by such party.
Any person who wishes to have a settlement reviewed or a claim or matter or dispute decided by the Arbitrator may do so in person or be represented by counsel or by counsel of any of the parties hereto.
The Arbitrator may establish his own rules of conduct and may rule upon the admissibility of evidence. It is agreed however that evidence may be presented by affidavit and the evidence of consultants or experts may be presented without the author being physically present and hearsay evidence may be received and in all such cases it shall be for the Arbitrator to determine the weight to be placed upon such evidence.
Proceedings to bring any claim or matter or dispute before the Arbitrator may be initiated before any actual damage or dislocation has occurred.
Individual occupiers or users are entitled to claim compensation notwithstanding compensation to communities for loss of reserve land.
The parties hereto may proceed to arbitration by way of a statement of agreed facts.
Hydro and Manitoba and Canada shall provide, for the use of the Arbitrator and the Committee, all studies and reports which they possess or can, by their best efforts obtain, or which come into their possession, which touch upon the subject of the effects of the Project or on the property or lifestyle of any residents of a Reserve. Where such information is available, and at the request of the Committee, the said parties shall use their best efforts to provide also the background technical data and working papers upon which such studies or reports are based.
The Arbitrator may retain the assistance of such professionals or consultants as he may require in order to advise him on matters, without limitation, of accounting, law, engineering, or of physical, social or economic impact consequences, as may in the sole discretion of the Arbitrator be necessary in order to properly consider the evidence presented. It is understood and agreed, however, that the parties to any claim or dispute brought before the Arbitrator for determination shall have the primary responsibility for presenting evidence to support their positions, and the power of the Arbitrator to retain assistance of professionals or consultants shall be exercised only where the Arbitrator believes further advice or information would be necessary or desirable to formulate and reach a sound and fair decision, and in the eventuality that the said Arbitrator exercises his prerogative to call professional or consultant evidence, the parties hereto shall have the right to cross-examine on such evidence.
In the event that the Arbitrator exercises any of the powers aforementioned for the purpose of obtaining assistance, the person or his authorized representatives shall have the right to cross-examine any individual from whom such information was obtained by the Arbitrator and shall have the right to peruse any documentary evidence received by him to cross-examine thereon.
The Arbitrator in making an order shall inter alia:
Determine whether there is a liability under this Agreement;
Designate the party liable and, if more than one, apportion the liability;
Determine the appropriate remedy; and
If the liability is not to be compensated in a monetary form forthwith, determine the time within which the other compensation in lieu thereof shall be completed by each party. Any unreasonable delay in the implementation of the order shall be dealt with as provided by Article 24.26.
Without restricting the plenary power of the Arbitrator to fashion an appropriate and just remedy as provided in Article 24.6, the Arbitrator may:
Direct that financial payments be made, including dislocation and/or relocation allowances where appropriate;
Recommend that mitigatory or remedial work be undertaken by Hydro and/or Manitoba and/or Canada to reduce or eliminate potential damages which otherwise would likely occur;
Recommend that Hydro, and/or Manitoba, and/or Canada, acquire and provide real or personal property and make it available to the claimants, as compensation in whole or in part, or in order to reduce or eliminate potential damage in whole or in part;
Recommend that Hydro, and/or Manitoba, and/or Canada provide employment opportunities where this is a feasible method of remedy or compensation;
Recommend that Hydro, and/or Manitoba, and/or Canada undertake certain programs and/or public works projects for the benefit of communities which are adversely affected;
Recommend that a development corporation be established by Manitoba and/or Canada and funded by Hydro and/or Manitoba and/or Canada to enable such corporation to attain its specified objects;
Recommend that Hydro and/or Manitoba, and/or Canada pay the whole or part of the costs of certain municipal services where such direction is a suitable method of compensating a community;
Recommend that Hydro, Manitoba and Canada severally and jointly implement a practical program to provide an effective opportunity for residents of the communities to be employed in both the construction and the operation of the Project and also in the implementation of any works and measures undertaken pursuant to this Agreement;
Direct that financial payments be made and/or make any, or any further order, as he may deem to be appropriate in respect of a failure to comply with or to give effect to any provisions of this Agreement or any matter arising out of this Agreement.
As soon as possible or in any event, not later than one year after the Arbitrator makes a recommendation to Hydro, Manitoba or Canada, such party shall advise the Arbitrator:
Whether the recommendation will be implemented in whole or in part;
How the recommendation is to be implemented; and
The time within which such implementation will be completed.
Where such party advises that a recommendation will not be implemented, or will be implemented only in part, or where a dispute arises by virtue of the time contemplated for implementation of the recommendation, the issue may be remitted back to the Arbitrator by the party initiating arbitration procedures and the Arbitrator may fix damages in lieu of implementation or of full implementation or of implementation on a timely basis. A recommendation made to Canada can only be converted into monetary damages where the recommendation is with regard to Canada's obligations under this Agreement.
In fashioning a remedy in respect of any claim, the Arbitrator shall be entitled to take notice of any relevant statute and relevant regulations thereunder, and of any relevant government policies and programs established from time to time and he may refer to the preamble to give effect to the intention of the parties in determining the meaning or application of this Agreement.
Specific provisions for reference of certain matters to arbitration shall not be deemed to limit the power of the Arbitrator to hear and decide any claim in respect of any matter arising out of this Agreement.
The fact that a remedy may create discrimination or divisions within any settlement that might adversely affect the relationships between a community and other residents of a settlement shall not be taken into account by the Arbitrator in determining an appropriate and just settlement of any claim or order resulting from any claim.
In fashioning a remedy in respect of any claim, the Arbitrator shall be entitled to take notice of any Plan prepared pursuant to Article 16 hereof, and may hear evidence for the purpose of considering and deciding the degree to which any order may or should be coordinated with any other relevant consideration, and especially for the purpose of ensuring the maximum effectiveness of any order.
The Arbitrator may direct that Hydro or Manitoba or Canada shall, within their respective areas of responsibility, monitor, record or report such information respecting the adverse effects of the Project or the effectiveness of any measure undertaken pursuant to this Agreement by any of the said parties, as may, in the opinion of the Arbitrator, be necessary or desirable to assist him in formulating decisions or any decision.
Every award or order of the Arbitrator shall be in writing and shall set forth reasons.
Any party to a submission to arbitration may apply in writing to the Arbitrator, within thirty days after the receipt of an award or order, to amend or vary it in respect of anything that was raised before the Arbitrator or in the application or interpretation of the said award or order.
There shall be no appeal from the order or award of the Arbitrator, except as to an issue of law or jurisdiction, in which case the issue shall be presented as a stated case to the Manitoba Court of Appeal for determination, and there shall be no further appeal therefrom.
The Arbitrator shall have the discretion to make an order that counsel of the claimant's choice be made available at the expense of one or more of the parties to assist the claimant in preparing and advancing his claim, and to award other costs on any reference that is brought before him for determination, subject to the following provisions:
The Arbitrator may award costs in favour of any person as he deems may be fair and equitable in the circumstances;
Any award of costs may include legal fees or the cost of consultants or experts retained in order to deal with the dispute brought to arbitration to the extent such fees and costs are reasonable;
Any award of costs may include travelling allowance, and ancillary expenses for the parties to a dispute, their legal counsel, consultants or necessary witnesses.
The costs of arbitration, including the reasonable expenses incurred for secretarial assistance, cost of court reporters, travelling expenses and reasonable fees paid to consultants who have been specifically retained by the Arbitrator, shall be determined by the Arbitrator. The Arbitrator shall be paid a fee which fee shall be fixed by the parties on appointment.
The provisions respecting arbitration and the Arbitrator in this Agreement shall remain in force and be binding upon the parties hereto for as long as any party shall deem it necessary that an Arbitrator hear and determine any of the matters referred to herein.
Northern Flood Agreement
Office of the Arbitrator904-363 Broadway Avenue
tel: (204) 956-5089
fax: (204) 956-5091