Specific Claims Tribunal Act

An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts Preamble Recognizing that it is in the interests of all Canadians that the specific claims of First Nations be addressed; resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations; there is a need to establish an independent tribunal that can resolve specific claims and is designed to respond to the distinctive task of adjudicating such claims in accordance with law and in a just and timely manner; the right of First Nations to choose and have access to a specific claims tribunal will create conditions that are appropriate for resolving valid claims through negotiations; the Assembly of First Nations and the Government of Canada have worked together on a legislative proposal from the Government of Canada culminating in the introduction of this Act; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title This Act may be cited as the Specific Claims Tribunal Act. Definitions The following definitions apply in this Act. asset means tangible property. (élément d’actif) claimant means a First Nation whose specific claim has been filed with the Tribunal. (revendicateur) claim limit means the maximum amount under paragraph 20(1)(b). (indemnité maximale) Crown means Her Majesty in right of Canada. (Sa Majesté) First Nation means a band as defined in subsection 2(1) of the Indian Act; a group of persons that was, but is no longer, a band within the meaning of paragraph (a) and that has, under a land claims agreement, retained the right to bring a specific claim; and a group of persons that was a band within the meaning of paragraph (a), that is no longer a band by virtue of an Act or agreement mentioned in the schedule and that has not released its right to bring a specific claim. (première nation) land claims agreement has the same meaning as in subsection 35(3) of the Constitution Act, 1982. (accord sur des revendications territoriales) Minister means the Minister of Crown-Indigenous Relations. (ministre) party, in respect of a specific claim, means any claimant, the Crown or any province or First Nation added as a party under section 23 or 24. (partie) specific claim means a claim that is filed under section 14. (revendication particulière) Tribunal means the Specific Claims Tribunal established by subsection 6(1). (Tribunal) Purpose The purpose of this Act is to establish the Specific Claims Tribunal, the mandate of which is to decide issues of validity and compensation relating to specific claims of First Nations. Inconsistency or conflict In the event of any inconsistency or conflict between this Act and any other Act of Parliament, this Act prevails to the extent of the inconsistency or conflict. Application This Act affects the rights of a First Nation only if the First Nation chooses to file a specific claim with the Tribunal and only to the extent that this Act expressly provides. Tribunal A tribunal to be known as the Specific Claims Tribunal is established. Establishment of roster The Governor in Council shall establish a roster of 6 to 18 superior court judges to act as members of the Tribunal. Chairperson and other members The Chairperson and other members shall be appointed from the roster referred to in subsection (2) by the Governor in Council. Membership The Tribunal shall consist of no more than six full-time members; or any number of part-time members, or combination of full-time and part-time members, so long as the combined time devoted to their functions and duties does not exceed the combined time that would be devoted by six full-time members. Tenure Each member shall be appointed for a term not exceeding five years and holds office so long as he or she remains a superior court judge. Reappointment of members Each member, on the expiry of the first term of office, is eligible to be reappointed for one further term. Role of Chairperson The Chairperson has supervision over and direction of the work of the Tribunal, including the allocation of work among the members and the assignment of members to preside at hearings of the Tribunal; and the performance of the functions and duties of the Tribunal. Powers of Chairperson On application by a party, the Chairperson may order that specific claims be heard together or consecutively if they have issues of law or fact in common; a specific claim is, together with any other specific claim, subject to one claim limit under subsection 20(4); and specific claims be decided together if decisions with respect to the claims could be irreconcilable or if the claims are subject to one claim limit. Absence or incapacity If the office of Chairperson is vacant, or the Chairperson is absent or is for any reason unable to act, the powers of the Chairperson shall be exercised and the duties performed by the member who is the senior judge and is able and willing to act. Acting after termination of appointment Subject to subsection (2), a judge who has ceased to be a member, for any reason other than removal, may, with the authorization of the Chairperson, perform and complete any functions or duties that they would otherwise have had if they had not ceased to be a member and that are in connection with any matter in which that judge became engaged while holding office as a member, and a judge so authorized is, for that purpose, deemed to be a member of the Tribunal. Limitation period No judge who has ceased to be a member may, after the expiry of 120 days after ceasing to be a member, take part in the disposition of any matter under the authority granted by the Chairperson under subsection (1). [Repealed, 2014, c. 20, s. 469] Functions The Tribunal is responsible for holding hearings to decide the validity of specific claims and any compensation arising from those claims. Hearings A hearing before the Tribunal shall be held before a single member. Decision A decision of a member of the Tribunal is a decision of the Tribunal. Rules of the Tribunal A committee of no more than six Tribunal members, appointed by the Chairperson, may make general rules for carrying out the work of the Tribunal and the management of its internal affairs, as well as rules governing its practice and procedures, including rules governing the giving of notice; the presentation of the positions of the parties with respect to issues before the Tribunal and of matters of fact or law on which the parties rely in support of their positions; the summoning of witnesses; the production and service of documents; applications; discovery proceedings; the taking and preservation of evidence before the start of a hearing; case management, including pre-hearing conferences and the use of mediation; the introduction of evidence; the imposition of time limits; and costs. Advisory committee The committee referred to in subsection (1) may establish an advisory committee of interested parties to advise it in the development of the Tribunal’s rules of practice and procedure, including efficiencies. Rules respecting costs The Tribunal’s rules respecting costs shall accord with the rules of the Federal Court, with any modifications that the Tribunal considers appropriate. Publication of rules The Tribunal shall make its rules available to the public and, if possible, publish them in the First Nations Gazette. Effect of failure to publish Failure to publish the rules in the First Nations Gazette does not affect the validity of the rules. Powers of the Tribunal The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may determine any questions of law or fact in relation to any matter within its jurisdiction under this Act; receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence; take into consideration cultural diversity in developing and applying its rules of practice and procedure; and award costs in accordance with its rules of practice and procedure. Costs The Tribunal shall deduct from any award of costs in favour of the claimant, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the Tribunal. Grounds of a specific claim Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds: a failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown; a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved for Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada; a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation; an illegal lease or disposition by the Crown of reserve lands; a failure to provide adequate compensation for reserve lands taken or damaged by the Crown or any of its agencies under legal authority; or fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands. Extended meaning of Crown — obligations For the purpose of applying paragraphs (1)(a) to (c) in respect of any legal obligation that was to be performed in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada. Extended meaning of Crown — illegal lease or disposition For the purpose of applying paragraph (1)(d) in respect of an illegal lease or disposition of reserve land located in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that liability for the illegal lease or disposition became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada. Extended meaning of Crown — other For the purpose of applying paragraphs (1)(e) and (f) in respect of reserve lands located in an area within Canada’s present boundaries, a reference to the Crown includes the Sovereign of Great Britain and its colonies for the period before that area became part of Canada. Exceptions A First Nation may not file with the Tribunal a claim that is based on events that occurred within the 15 years immediately preceding the date on which the claim was filed with the Minister; is based on a land claims agreement entered into after December 31, 1973, or any related agreement or Act of Parliament; is based on an Act of Parliament or agreement that is mentioned in the schedule, or an Act of Parliament or agreement for the implementation of such an Act or agreement; concerns the delivery or funding of programs or services related to policing, regulatory enforcement, corrections, education, health, child protection or social assistance, or of any similar programs or services; is based on any agreement between the First Nation and the Crown that provides for another mechanism for the resolution of disputes arising from the agreement; is based on, or alleges, aboriginal rights or title; or is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights. Limitation Nothing in paragraph (1)(g) prevents a claim that is based on a treaty right to lands or to assets to be used for activities, such as ammunition to be used for hunting or plows to be used for cultivation, from being filed. When other proceedings A First Nation may not file a claim if there are proceedings before a court or tribunal other than the Tribunal that relate to the same land or other assets and could result in a decision irreconcilable with that of the claim, or that are based on the same or substantially the same facts; the First Nation and the Crown are parties to those proceedings; and the proceedings have not been adjourned. Restrictions it is not claiming any compensation; it is claiming any remedy other than monetary compensation; or the amount of its claim exceeds the claim limit. Filing a specific claim A First Nation may file a claim with the Tribunal only if the claim has been previously filed with the Minister and the Minister has notified the First Nation in writing of his or her decision not to negotiate the claim, in whole or in part; three years have elapsed after the day on which the claim was filed with the Minister and the Minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim; in the course of negotiating the claim, the Minister consents in writing to the filing of the claim with the Tribunal; or three years have elapsed after the day on which the Minister has notified the First Nation in writing of the Minister’s decision to negotiate the claim, in whole or in part, and the claim has not been resolved by a final settlement agreement. Form and content of specific claim For the purpose of subsection (1), the Minister shall establish a reasonable minimum standard to be followed in relation to the kind of information required for any claim to be filed with the Minister, as well as a reasonable form and manner for presenting the information; publish the standard on the Department of Crown-Indigenous Relations and Northern Affairs’ Internet site; and notify the First Nation in writing of the date on which the claim was filed with the Minister. Meeting minimum standard A claim is to be filed with the Minister only if the information in it meets the minimum standard referred to in paragraph (2)(a) and is presented in the form and manner established under that paragraph. Application to strike 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 is, on its face, not admissible under sections 14 to 16; has not been filed by a First Nation; is frivolous, vexatious or premature; or may not be continued under section 37. Hearing and decision 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. 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. Basis and limitations for decision on compensation The Tribunal, in making a decision on the issue of compensation for a specific claim, shall award monetary compensation only; shall not, despite any other provision in this subsection, award total compensation in excess of $150 million; 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; shall not award any amount for punitive or exemplary damages, or any harm or loss that is not pecuniary in nature, including loss of a cultural or spiritual nature; 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; 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; 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; 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 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. For greater certainty 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. Deduction of benefit 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. One claim limit for related claims Two or more specific claims shall, for the purpose of paragraph (1)(b), be treated as one claim if they are made by the same claimant and are based on the same or substantially the same facts; or are made by different claimants, are based on the same or substantially the same facts and relate to the same assets. Equitable apportionment If claims are treated as one claim under paragraph (4)(b), the Tribunal shall apportion equitably among the claimants the total compensation awarded. Compensation against province 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. Unlawful disposition 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. Unlawful disposition of partial interest 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. Notice to others 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. Effect of failure to notify Failure to provide notice does not invalidate any decision of the Tribunal. Restriction The Tribunal has jurisdiction with respect to a province only if the province is granted party status. Party status of a province — mandatory 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. Party status of a province — discretionary 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. Party status of a First Nation 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. Intervention by persons affected 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. Factors 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. Conduct of hearings Subject to this Act, the Tribunal shall conduct its hearings in any manner that it considers fit. 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. Public hearings Subject to subsection (2), Tribunal hearings shall be public. Confidential hearings 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. Right to cross-examine A party may cross-examine a witness as of right, if the witness is called by a party adverse in interest; and with leave of the Tribunal, in any other case. Defences of Crown 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. Withdrawal 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. The Tribunal may award costs on the withdrawal of an issue from the Tribunal. Not a bar Withdrawal of an issue does not bar any subsequent consideration of the issue by the Tribunal. Evidence not admissible in other proceedings 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. Advance notice of decision on compensation 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. Written reasons and publication 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. Judicial review A decision of the Tribunal is subject to judicial review under section 28 of the Federal Courts Act. Final and conclusive 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. Release and indemnity If the Tribunal decides that a specific claim is invalid or awards compensation for a specific claim, 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 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. Payment of award 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. Interest 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. Abandoned specific claim A specific claim is discontinued if the claimant 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 takes a new step in, or does not continue to adjourn, a proceeding mentioned in paragraph (a) or in subsection 15(3). Public documents Subject to subsection (2), documents filed with the Tribunal are public documents. Confidential documents 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. Regulations 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 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. Resources 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. Tabling of report 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 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. Report 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. Tabling and referral of report 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. Existing claims 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. Examination by Minister 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 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; 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 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. Amended claim — deemed filing date If a First Nation provides the Minister with the information requested under paragraph (2)(b) 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 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. Notice of filing date 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. Previous decision not to negotiate For greater certainty, if, before the coming into force of this Act, a First Nation has been notified by the Minister of his or her decision not to negotiate a claim, the First Nation may not file that claim with the Tribunal on the basis of that decision but nothing prevents the First Nation from filing the claim with the Minister after the coming into force of this Act. [Amendment] [Repeal] Coming into force This Act comes into force 120 days after the day on which it receives royal assent. [Note: Act in force October 16, 2008.]