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 process.  

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:

  • Consent orders;
  • Suspension of filing requirements;
  • First Nation dispute resolution processes;
  • Mediation and judicial dispute resolution outcomes;
  • Organizing facts, documents, evidence and identifying issues.

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.