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Procedural Order No. 3

PROCEDURAL BACKGROUND

1.
On December 3, 2021, the Government of Canada informed the Tribunal that it intended to make a short written submission at the latest by January 30, 2022. The Government of Canada explained that its submission would be concentrated on questions of interpretation as provided in the Treaty and further stated that "as a Party to the Treaty, Canada's interpretation of the Treaty obligations can shed some light on the provisions at issue and be of assistance to the Tribunal."
2.
By communication of December 16, 2021, the Respondent requested the Tribunal to amend the procedural calendar and set new deadlines in light of the Tribunal's letter dated September 27, 2021 confirming that the rescheduled Hearing will be held from June 20 to 24, 2022. In its communication, the Respondent proposed that the witness notification be 59 days prior to the Hearing and noted its availability for the pre-hearing organizational meeting on any day of the week of May 30, 2022.
3.
On the same date, the Tribunal informed the Parties that it would be available for the pre-hearing organizational meeting on June 2, 2022. In its letter, the Tribunal invited the Claimant to comment on the Respondent's proposals, including the available date for the pre-hearing organizational meeting. The Tribunal, while suggesting that the Parties' comments to Canada's submission be submitted within a 15-day period after such submission, invited the Parties to confer and agree on a schedule to submit simultaneous comments to Canada's non-disputing party submission.
4.
On December 23, 2021, the Claimant responded that it did not agree to extend the previously agreed date for witness notification from 45 to 59 days before the Hearing as proposed by the Respondent. The Claimant argued that there was no reason for the extended period and that the uncertainty over the current health situation weighed against moving such date. The Claimant confirmed its availability to hold the pre-hearing organizational meeting on June 2, 2022.
5.
On January 4, 2022, the Tribunal confirmed the date of the pre-hearing organizational meeting for June 2, 2022, and granted the Parties, at their request, a short extension to confer and agree on a deadline for the Parties' comments on Canada's non-disputing party submission. The Tribunal also informed the Parties that if they failed to reach an agreement, the Tribunal would set the period of comments for 15 calendar days as initially suggested in its letter of December 16, 2021.
6.
By letter dated January 10, 2022, the Claimant's counsel informed the Parties' agreement to set the deadline for comments to Canada's non-disputing party submission and on the same date the Respondent confirmed the Parties' agreement. The agreed deadline was February 29, 2022.
7.
On January 12, 2022, the Tribunal requested a clarification on the deadline as the agreed date will not occur this year. On the same date, the Claimant's counsel, confirmed by the Respondent, informed the Tribunal that the Parties inadvertently agreed on February 29, 2022 and indicated the correct date to be March 1, 2022. The Tribunal then confirmed the Parties' agreement.

ORDER

8.
The Tribunal appreciates the Parties' effort to reach an agreement with respect to the submission of comments on Canada's non-disputing party submission and the date for the pre-hearing organizational meeting.
9.
On the deadline for the witness notification, the Tribunal is of the view that in light of the failure to agree on the extension or extraordinary circumstances, the period previously agreed for notification of witnesses 45 prior to the Hearing (as provided in Procedural Order No. 1) shall apply.
10.
The Tribunal hereby decides that the procedural calendar for the remainder procedural steps will be as follows:

Date / Period of Time Party / Tribunal Description
Tuesday, March 1, 2022 Parties Parties' comments to Canada's NDP Submission
45 days before the Hearing Friday, May 6, 2022 Parties Witness notification
June 2, 2022, starting at 10 am (EST) All Pre-Hearing Organizational Meeting
Monday, June 20 to 24, 2022 All Hearing on Jurisdiction and Liability
+120 days from Hearing on Jurisdiction and Liability Tribunal Decision on Jurisdiction and Liability

Date: January 12, 2022

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