Based on recommendations from the Aboriginal Law Bar Liaison
Committee the Federal Court recently initiated a pilot project for
judicial review applications dealing with First Nations governance
disputes. The pilot project is intended to facilitate more
expeditious, cost effective and satisfactory resolutions of
governance disputes involving First Nations. Parties to the
pilot project are encouraged to draw upon the previously released
practice guidelines for Aboriginal litigation.
The Federal Court provides a number of options for Parties to an
application which include alternative means of resolving an issue
including mediation away from the Court in addition to judicially
assisted dispute resolution. The options provided by the Court
are detailed and reasoned and should provide an excellent template
for future Parties to deal with unyielding governance disputes in a
more expedient and cost effective manner.
Parties wishing to resolve a First Nations governance dispute
may now implement the Federal Courts pilot project in order to
obtain a more expedient and cost effective resolution. Parties
filing a Notice of Application are encouraged to consider the
Practice Guidelines previously published by the Federal Court
dealing with legal disputes with Aboriginal Parties.
Parties may include a letter when filing a Notice of Application
requesting the application be specially managed under the pilot
project. The pilot project begins with an assessment of the
originating notice of application by a judge. Upon review a judge
may request an informal meeting with the Parties in person or by
conference call. A core group of judges and prothonotaries
will be made available to assist in the dispute resolution
Upon completing the initial assessment a judge will identify the
approach that has the greatest potential to resolve the dispute in
the most cost effective and satisfactory manner. Options
available to the Parties may include the following:
Suspension of filing requirements;
First Nation dispute resolution processes;
Mediation and judicial dispute resolution outcomes;
Organizing facts, documents, evidence and identifying
If the Parties are unsuccessful or choose not to pursue the
dispute resolution process set out by a judge the Application will
then be transferred to a judge or prothonotary who has not been
previously been involved in the matter unless the Parties consent
to continue with the presiding judge or prothonotary. Once
transferred the Application will proceed under the Rules set out by
the Federal Court for Applications.
Courts are reminding Parties that due to the significant
differences among First Nation groups from across Canada a certain
degree of flexibility will be provided by the Court in implementing
the proposed dispute resolution process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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