Hearings and Decisions

Marginal note:Application to strike

17. On application by a party to a specific claim, the Tribunal may, at any time, order that the claim be struck out in whole or in part, with or without leave to amend, on the ground that it

• (a) is, on its face, not admissible under sections 14 to 16;

• (b) has not been filed by a First Nation;

• (c) is frivolous, vexatious or premature; or

• (d) may not be continued under section 37.

Marginal note:Hearing and decision

18. After providing notice to the parties, the Tribunal shall hold a hearing, at the time and place that it considers most appropriate, into the issue before it and make a decision on that issue.

Marginal note:Limitation

19. In deciding the issue of the validity of a specific claim, the Tribunal shall not consider any rule or doctrine that would have the effect of limiting claims or prescribing rights against the Crown because of the passage of time or delay.

Marginal note:Basis and limitations for decision on compensation

• 20. (1) The Tribunal, in making a decision on the issue of compensation for a specific claim,

  • (a) shall award monetary compensation only;

  • (b) shall not, despite any other provision in this subsection, award total compensation in excess of $150 million;

  • (c) shall, subject to this Act, award compensation for losses in relation to the claim that it considers just, based on the principles of compensation applied by the courts;

  • (d) shall not award any amount for

    • (i) punitive or exemplary damages, or

    • (ii) any harm or loss that is not pecuniary in nature, including loss of a cultural or spiritual nature;

  • (e) shall award compensation equal to the market value of a claimant’s reserve lands at the time they were taken brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes that those reserve lands were taken under legal authority, but that inadequate compensation was paid;

  • (f) shall award compensation equal to the value of the damage done to reserve lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes that certain of its reserve lands were damaged under legal authority, but that inadequate compensation was paid;

  • (g) shall award compensation equal to the current, unimproved market value of the lands that are the subject of the claim, if the claimant establishes that those lands were never lawfully surrendered, or otherwise taken under legal authority;

  • (h) shall award compensation equal to the value of the loss of use of a claimant’s lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes the loss of use of the lands referred to in paragraph (g); and

  • (i) shall, if it finds that a third party caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, award compensation against the Crown only to the extent that the Crown is at fault for the loss.

• Marginal note:For greater certainty

  (2) For greater certainty, in awarding the compensation referred to in subsection (1), the Tribunal may consider losses related to activities of an ongoing and variable nature, such as activities related to harvesting rights.

• Marginal note:Deduction of benefit

  (3) The Tribunal shall deduct from the amount of compensation calculated under subsection (1) the value of any benefit received by the claimant in relation to the subject-matter of the specific claim brought forward to its current value, in accordance with legal principles applied by the courts.

• Marginal note:One claim limit for related claims

  (4) Two or more specific claims shall, for the purpose of paragraph (1)(b), be treated as one claim if they

  • (a) are made by the same claimant and are based on the same or substantially the same facts; or

  • (b) are made by different claimants, are based on the same or substantially the same facts and relate to the same assets.

• Marginal note:Equitable apportionment

  (5) If claims are treated as one claim under paragraph (4)(b), the Tribunal shall apportion equitably among the claimants the total compensation awarded.

• Marginal note:Compensation against province

  (6) If the Tribunal finds that a province that has been granted party status caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, it may award compensation against the province to the extent that the province was at fault in causing or contributing to the loss.

Marginal note:Unlawful disposition

• 21. (1) If compensation is awarded under this Act for an unlawful disposition of all of the interests or rights of a claimant in or to land and the interests or rights have never been restored to the claimant, then all of the claimant’s interests in and rights to the land are released, without prejudice to any right of the claimant to bring any proceeding related to that unlawful disposition against a province that is not a party to the specific claim.

• Marginal note:Unlawful disposition of partial interest

  (2) If compensation is awarded under this Act for the unlawful disposition of a partial interest or right of a claimant in or to reserve land, then the persons who, if the disposition had been lawful, would have had the partial interest or right in or to the land are deemed to have had that interest or right.

Marginal note:Notice to others

• 22. (1) If the Tribunal’s decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person, the Tribunal shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected.

• Marginal note:Effect of failure to notify

  (2) Failure to provide notice does not invalidate any decision of the Tribunal.

Marginal note:Restriction

• 23. (1) The Tribunal has jurisdiction with respect to a province only if the province is granted party status.

• Marginal note:Party status of a province — mandatory

  (2) If the Crown alleges that a province that has been notified under subsection 22(1) is wholly or partly at fault for the claimant’s losses, the Tribunal shall grant the province party status provided that the province certifies in writing that it has taken the steps necessary for it to be bound by decisions of the Tribunal.

• Marginal note:Party status of a province — discretionary

  (3) If the Crown does not allege that a province that has been notified under subsection 22(1) is wholly or partly at fault for the claimant’s losses, the Tribunal may, on application by the province, grant the province party status if the Tribunal considers it a necessary or proper party and provided that the province certifies in writing that it has taken the steps necessary for it to be bound by decisions of the Tribunal.

Marginal note:Party status of a First Nation

24. The Tribunal may, on application by a First Nation to whom notice under subsection 22(1) is provided, grant the First Nation party status if the Tribunal considers it a necessary or proper party.

Marginal note:Intervention by persons affected

• 25. (1) A First Nation or person to whom notice under subsection 22(1) is provided may, with leave of the Tribunal, intervene before it, to make representations relevant to the proceedings in respect of any matter that affects the First Nation or person.

• Marginal note:Factors

  (2) In exercising its discretion under subsection (1), the Tribunal shall consider all relevant factors, including the effect that granting intervenor status would have on the cost and length of the hearing.

Marginal note:Conduct of hearings

• 26. (1) Subject to this Act, the Tribunal shall conduct its hearings in any manner that it considers fit.

• Marginal note:Limitation

  (2) In deciding how to conduct a hearing, the Tribunal shall have regard to any submissions that a party has made regarding the manner in which the hearing is to be conducted and to the importance of achieving an expeditious resolution.

Marginal note:Public hearings

• 27. (1) Subject to subsection (2), Tribunal hearings shall be public.

• Marginal note:Confidential hearings

  (2) The Tribunal may, on application by a party, take any measures and make any order that it considers necessary to ensure the confidentiality of a hearing if it is satisfied that the reasons for confidentiality outweigh the societal interest that the hearing be public.

Marginal note:Right to cross-examine

28. A party may cross-examine a witness

• (a) as of right, if the witness is called by a party adverse in interest; and

• (b) with leave of the Tribunal, in any other case.

Marginal note:Defences of Crown

29. Subject to section 19, section 24 of the Crown Liability and Proceedings Act applies in respect of a specific claim as if it were a proceeding.

Marginal note:Withdrawal

• 30. (1) A party may withdraw an issue from the Tribunal at any time before the Tribunal gives its decision on it and, in such a case, the Tribunal shall not render a decision on it.

• Marginal note:Costs

  (2) The Tribunal may award costs on the withdrawal of an issue from the Tribunal.

• Marginal note:Not a bar

  (3) Withdrawal of an issue does not bar any subsequent consideration of the issue by the Tribunal.

Marginal note:Evidence not admissible in other proceedings

31. Subject to subsection 34(1), evidence given by any person in the course of a Tribunal hearing, including anything said, any position taken or any admission made, is not admissible in any other proceeding.

Marginal note:Advance notice of decision on compensation

32. The Tribunal shall, not later than 14 days before it renders its decision on the issue of compensation, give notice to the parties and to the Chairperson that the decision will be rendered.

Marginal note:Written reasons and publication

33. The Tribunal shall give written reasons for its decisions and shall cause the reasons and the decisions to be published in the manner that it considers fit.

Marginal note:Judicial review

• 34. (1) A decision of the Tribunal is subject to judicial review under section 28 of the Federal Courts Act.

• Marginal note:Final and conclusive

  (2) Subject to subsection (1), the Tribunal’s decisions are final and conclusive between the parties in all proceedings in any court or tribunal arising out of the same or substantially the same facts and are not subject to review.

Marginal note:Release and indemnity

35. If the Tribunal decides that a specific claim is invalid or awards compensation for a specific claim,

• (a) each respondent is released from any cause of action, claim or liability to the claimant and any of its members of any kind, direct or indirect, arising out of the same or substantially the same facts on which the claim is based; and

• (b) the claimant shall indemnify each respondent against any amount that the respondent becomes liable to pay as a result of a claim, action or other proceeding for damages brought by the claimant or any of its members against any other person arising out of the same or substantially the same facts.

Marginal note:Payment of award

• 36. (1) An award of compensation against the Crown may, at the discretion of the Crown, be paid by instalments, but the award must be fully paid within five years after the day on which the Tribunal makes its decision.

• Marginal note:Interest

  (2) The unpaid balance of the award bears simple interest from the date of the award, at a rate equal to the Bank of Canada’s overnight rate on that day plus 2.5%, which shall be paid together with each instalment.

Marginal note:Abandoned specific claim

37. A specific claim is discontinued if the claimant

• (a) commences, before another tribunal or a court, a proceeding against the Crown that is based on the same or substantially the same facts as the claim, or that relates to the same land or other assets as the claim and could result in a decision irreconcilable with that of the claim, unless the claimant immediately has the proceeding adjourned; or

• (b) takes a new step in, or does not continue to adjourn, a proceeding mentioned in paragraph (a) or in subsection 15(3).

Marginal note:Public documents

• 38. (1) Subject to subsection (2), documents filed with the Tribunal are public documents.

• Marginal note:Confidential documents

  (2) The Tribunal, on the application of a party, may take any measures that it considers necessary to ensure the confidentiality of a document if it is satisfied that the interest of a party or a person that the document not be disclosed outweighs the societal interest that it be public.

GENERAL

Regulations

Marginal note:Regulations

39. The Governor in Council may make regulations adding to Part 2 of the schedule the name of any agreement related to aboriginal self-government.

Annual Report

Marginal note:Annual report

• 40. (1) The Chairperson shall submit an annual report on the work of the Tribunal in a fiscal year and its projected activities for the following fiscal year to the Minister within six months after the end of that fiscal year, including the financial statements of the Tribunal and any report on them of the Auditor General of Canada.

• Marginal note:Resources

  (2) The annual report may include a statement on whether the Tribunal had sufficient resources, including a sufficient number of members, to address its case load in the past fiscal year and whether it will have sufficient resources for the following fiscal year.

• Marginal note:Tabling of report

  (3) The Minister shall submit a copy of the report to each House of Parliament on any of the first 30 days on which that House is sitting after the report is submitted to the Minister.

Review and Report

Marginal note:Review

• 41. (1) Within one year after the fifth anniversary of the coming into force of this Act, the Minister shall undertake a review of the mandate and structure of the Tribunal, of its efficiency and effectiveness of operation and of any other matters related to this Act that the Minister considers appropriate. In carrying out the review, the Minister shall give First Nations an opportunity to make representations.

• Marginal note:Report

  (2) Within one year after a review is undertaken, the Minister shall cause to be prepared and sign a report that sets out a statement of any changes to this Act, including any changes to the Tribunal’s functions, powers or duties, that the Minister recommends and the representations which have been made by First Nations.

• Marginal note:Tabling and referral of report

  (3) The Minister shall submit to each House of Parliament a copy of the report on any of the first 90 days on which that House is sitting after the Minister signs the report, and each House shall refer the report to the appropriate committee of that House.

TRANSITIONAL PROVISIONS

Marginal note:Existing claims

• 42. (1) If a First Nation has submitted a claim based on any one or more of the grounds referred to in subsection 14(1) to the Minister before the day on which this Act comes into force containing the kind of information that would meet the minimum standard established under subsection 16(2), or if the claim is being negotiated on the day on which this Act comes into force, the claim is deemed to have been filed with the Minister in accordance with section 16, or the Minister is deemed to have decided to negotiate the claim and to have notified the First Nation in writing of that decision, as the case may be, on the day on which this Act comes into force.

• Marginal note:Examination by Minister

  (2) Within six months after the day on which this Act comes into force, the Minister shall examine all claims — except those that the Minister has notified the First Nation in writing of the Minister’s decision not to negotiate, in whole or in part — that are based on any one or more of the grounds referred to in subsection 14(1) submitted by First Nations to the Minister before the day on which this Act comes into force, and

  • (a) if a claim contains the kind of information that would meet the minimum stand- ard established under subsection 16(2), the Minister shall notify the First Nation in writing that its claim is deemed to have been filed with the Minister in accordance with section 16 on the day on which this Act comes into force;

  • (b) if a claim does not contain that kind of information, the Minister shall request in writing that the First Nation provide the Minister with the missing information; or

  • (c) if a claim is being negotiated, in whole or in part, the Minister shall notify the First Nation in writing that for the purpose of section 16 the date of the Minister’s decision to negotiate the claim is deemed to be the day on which this Act comes into force.

• Marginal note:Amended claim — deemed filing date

  (3) If a First Nation provides the Minister with the information requested under paragraph (2)(b)

  • (a) within six months after the date of the Minister’s request, its claim is deemed to have been filed with the Minister in accordance with section 16 on the day on which this Act comes into force; or

  • (b) later than six months after the date of the Minister’s request, its claim will be filed with the Minister in accordance with section 16 on the date the requested information is received by the Minister.

• Marginal note:Notice of filing date

  (4) On receiving the information referred to in paragraph (2)(b), the Minister shall notify the First Nation in writing of the date on which its claim was filed with the Minister.