Appendix M-5 Elders Advisory Council

DEFINITION

1. In this Appendix:
   
   

   1. "Chapter"

      means the Dispute Resolution Chapter;
      
      

   2. "council"

      means the elders advisory council appointed under this Appendix;
      
      

   3. "elder"

      means a member of a council;
      
      

   4. "party"

      means a participating Party to the reference under this Appendix;
      
      

   5. "reference"

      means a reference of a disagreement to the council; and
      
      

   6. "section"

      means a section in this Appendix.

GENERAL

2. A reference commences on the date the Parties directly engaged in the disagreement have agreed in writing to use an elders advisory council under paragraph 24 of the Chapter.

APPOINTMENT OF ELDERS

3. Within 30 days after a reference has commenced, each party will appoint at least one, but not more than three, elders to the council.
   
   
4. Preferably, the elders will be individuals who:
   
   
   1. are recognized in their respective communities as wise, tolerant, personable and articulate, and who:
      
      
      1. are often sought out for counsel or advice, or
         
         
      2. have a record of distinguished public service; and
         
         
   2. are available to devote the time and energy as required to provide the assistance described in this Appendix.

END OF APPOINTMENT

5. Unless an elder:
   
   
   1. has requested to be relieved of their appointment due to a conflict of interest or otherwise; or
      
      
   2. is not able to fulfill their duties, due to incapacity or otherwise
      
      
   the elder's appointment to the council may not be terminated until termination of the reference in which the elder is involved.
   
   
6. If an elder's appointment is terminated in the circumstances described in section 5(a) or (b) and that elder was the only elder of the council appointed by a party to the reference, that party must replace the elder within seven days.
   
   
7. If an elder's appointment is terminated in the circumstances described in section 5(a) or (b) and that elder was not the only elder of the council appointed by a party to the reference, that party may replace the elder but the replacement must be made within seven days.

CONDUCT OF REFERENCE

8. In a reference, the parties will cooperate fully with the council, and give prompt attention to, and respond, to all communications from the council.
   
   
9. Notwithstanding section 8, a party is not required to disclose to the council or provide it with any information that the party would not be required to disclose in any arbitral or judicial proceedings in respect of the disagreement.
   
   
10. The council is expected to conduct itself informally in order that the parties may take full advantage of the council's good offices to resolve the disagreement.
    
    
11. The council may establish its own process to suit the particular circumstances of a reference including meeting with the parties together or separately, conducting informal interviews or inquiries and facilitating settlement negotiations.
    
    
12. The council will give the parties its final advice or recommendations on a disagreement referred to it within 120 days after the commencement of the reference.
    
    
13. The council may, at its option, provide its advice to the parties:
    
    
    1. orally on the same occasion; or
       
       
    2. in writing.
       
       
14. The council may, by unanimous decision, extend the time for giving advice or recommendations under section 12, on one occasion only, to a maximum of 60 additional days.
    
    
15. The advice or recommendations of the council are not binding on the parties.
    
    
16. Subject to any limitations agreed to by the parties, the council may employ reasonable and necessary administrative or other support services.

RIGHT TO WITHDRAW

17. A party may not withdraw from a reference until its conclusion unless all the parties agree in writing.

CONFIDENTIALITY

18. In order to assist in the resolution of the disagreement, a reference will not be open to the public.
    
    
19. The parties, and all persons, will keep confidential:
    
    
    1. all oral and written information disclosed in the reference; and
       
       
    2. the fact that this information has been disclosed.
       
       
20. The parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the reference, any oral or written information disclosed in or arising from the reference, including:
    
    
    1. any documents of other parties produced in the course of the reference that are not otherwise produced or producible in that proceeding;
       
       
    2. any views expressed, or suggestions made, in respect of a possible settlement of the disagreement;
       
       
    3. any admissions made by any party in the course of the reference, unless otherwise stipulated by the admitting party;
       
       
    4. any advice or recommendations made by an elder or the council; and
       
       
    5. the fact that any party has indicated a willingness to make or accept any advice or recommendation for settlement.
       
       
21. Sections 19 and 20 do not apply:
    
    
    1. in any proceedings for the enforcement or setting aside of an agreement resolving the disagreement that was the subject of the reference;
       
       
    2. if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
       
       
    3. if the oral or written information referred to in those sections is in the public forum.
       
       
22. An elder, or anyone retained or employed by the council, is not compellable in any proceeding to give evidence about any oral and written information acquired or opinion formed by that person as a result of the reference and all parties will oppose any effort to have that person or that information subpoenaed.
    
    
23. An elder, or anyone retained or employed by the council, is disqualified as a consultant or expert in any proceeding relating to the disagreement, including any proceeding that involves persons not a party to the reference.

DECISION-MAKING

24. The council must make its best efforts to reach consensus among the elders before taking any action or giving any advice under the reference.
    
    
25. The council may not take any action under section 12 unless at least one elder appointed by each party expressly agrees with the action taken.

TERMINATION OF REFERENCE

26. A reference is terminated when any of the following occurs:
    
    
    1. the council gives the parties its advice under section 12;
       
       
    2. the expiration of the applicable time period in section 12 or 14; or
       
       
    3. the parties directly engaged in the disagreement sign a written agreement resolving the disagreement.