SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Specific Claims Resolution Act.

INTERPRETATION

Marginal note:Definitions

2. The following definitions apply in this Act.

“Centre”

« Centre »

“Centre” means the Canadian Centre for the Independent Resolution of First Nations Specific Claims established under section 4.

“claim limit”

« indemnité maximale »

“claim limit” means the maximum under paragraph 56(1)(a).

“claimant”

« revendicateur »

“claimant” means a first nation whose specific claim has been filed.

“Commission”

« Commission »

“Commission” means the Commission Division of the Centre described in Part 2.

“Crown”

« Sa Majesté »

“Crown” means Her Majesty in right of Canada.

“first nation”

« première nation »

“first nation” means

• (a) a band as defined in subsection 2(1) of the Indian Act;

• (b) 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

• (c) 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.

“interlocutory issue”

« question interlocutoire »

“interlocutory issue” means an issue in relation to which an application may be made to the Tribunal under section 47.

“land claims agreement”

« accord sur des revendications territoriales »

“land claims agreement” has the same meaning as in subsection 35(3) of the Constitution Act, 1982.

“Minister”

« ministre »

“Minister” means the Minister of Indian Affairs and Northern Development or such other member of the Queen’s Privy Council for Canada as may be designated by the Governor in Council as the Minister for the purposes of this Act.

“party”

« partie »

“party”, in respect of a specific claim, means any claimant and the Crown, and any province added as a party under section 37 or 60.

“specific claim”

« revendication particulière »

“specific claim” means a claim that is filed under section 26.

“Tribunal”

« Tribunal »

“Tribunal” means the Tribunal Division of the Centre described in Part 3.

PURPOSE

Marginal note:Purpose

3. The purpose of this Act is to establish the Centre, including the Commission to help first nations and the Crown resolve specific claims and the Tribunal to decide certain issues arising from those claims.

PART 1CANADIAN CENTRE FOR THE INDEPENDENT RESOLUTION OF FIRST NATIONS SPECIFIC CLAIMS

Establishment, Composition and Functions

Marginal note:Establishment

4. The Canadian Centre for the Independent Resolution of First Nations Specific Claims is hereby established.

Marginal note:Composition

5. The Centre consists of the Chief Executive Officer — to be appointed by the Governor in Council on the recommendation of the Minister — and the Commission and the Tribunal.

Marginal note:Functions

6. The Centre is responsible for

• (a) administering the affairs of the Commission and, with the exception of any matters assigned under this Act to the Tribunal or its Chief Adjudicator, those of the Tribunal;

• (b) providing, at its expense, appropriate translation and interpretation services in connection with the resolution of specific claims under this Act; and

• (c) obtaining, developing and distributing educational materials for public information in respect of specific claims and fostering public understanding of this Act, including an understanding of the role and activities of the Commission and the Tribunal.

Chief Executive Officer

Marginal note:Functions, powers and duties

7. The Chief Executive Officer has supervision over and direction of the work and staff of the Centre.

Marginal note:Term and tenure

• 8. (1) The Chief Executive Officer shall hold office during good behaviour for a term of not more than five years and may be removed for cause by the Governor in Council.

• Marginal note:Re-appointment

  (2) The Chief Executive Officer is eligible for re-appointment on the expiration of any term of office.

• Marginal note:Remuneration

  (3) The Chief Executive Officer shall be paid the remuneration that is fixed by the Governor in Council.

• Marginal note:Full-time

  (4) If the Chief Executive Officer is appointed full-time, he or she shall devote the whole of his or her time to the performance of the duties of the office and is entitled to be paid reasonable travel and living expenses incurred in the course of carrying out his or her duties under this Act while absent from his or her ordinary place of work, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Part-time

  (5) If the Chief Executive Officer is appointed part-time, he or she is entitled to be paid reasonable travel and living expenses incurred in the course of carrying out his or her duties under this Act while absent from his or her ordinary place of residence, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Conflicting responsibilities and activities prohibited

  (6) The Chief Executive Officer shall not accept or hold any office or employment or carry on any activity inconsistent with the duties and functions of that office, but, for greater certainty, the Chief Executive Officer may also hold the office of Chief Commissioner of the Commission.

• Marginal note:Compensation

  (7) The Chief Executive Officer is deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Marginal note:Deputy head

• 9. (1) The Chief Executive Officer has the rank and status of a deputy head for the purposes of the Financial Administration Act.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the Chief Executive Officer, or if the office of Chief Executive Officer is vacant, the Chief Commissioner of the Commission — or if the offices of Chief Executive Officer and Chief Commissioner are held by the same person, the Vice-Chief Commissioner of the Commission — has the powers and duties of the Chief Executive Officer.

Personnel Management

Marginal note:Separate employer

10. The Centre is a separate employer under the Public Service Staff Relations Act.

Marginal note:Personnel management

11. The Centre has exclusive authority in respect of personnel management and employer and employee relations, including the right to hire any staff it considers necessary for the proper conduct of the work of the Commission and of the Tribunal, to determine the terms and conditions of their employment and to terminate their employment, and may, in the exercise of that authority,

• (a) determine its requirements with respect to human resources and provide for the allocation and effective utilization of human resources;

• (b) implement an employment equity program;

• (c) determine requirements for the training and development of its personnel and fix the terms and conditions on which that training and development may be carried out;

• (d) provide for the classification of positions and employees;

• (e) determine and regulate its employees’ pay, hours of work, leave and any related matters;

• (f) provide for the awards that may be made to its employees for outstanding performance of their duties, for other meritorious achievement in relation to those duties and for inventions or practical suggestions for improvements;

• (g) establish standards of discipline for its employees and fix the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied, or be varied or rescinded in whole or in part;

• (h) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of its employees and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken, or be varied or rescinded in whole or in part;

• (i) determine and regulate the payments that may be made to its employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and

• (j) provide for any other matters that the Centre considers necessary for effective personnel management.

Marginal note:Group insurance and benefit programs

• 12. (1) The Centre may establish benefit programs, including group insurance programs, for its employees, may set any terms and conditions in respect of those programs, including those relating to contributions, premiums, expenditures to be made from those contributions and premiums, benefits and the management, control and audit of the programs, may make contributions and pay premiums in respect of those programs and may enter into contracts for those purposes.

• Marginal note:Financial Administration Act does not apply

  (2) The Financial Administration Act does not apply to any contributions made or premiums paid by the Centre or the members of any program established under subsection (1) in respect of the program or any benefits received by those members.

Marginal note:Mobility to departments

• 13. (1) For the purpose of deployments or appointments made, or closed competitions held, under the Public Service Employment Act, employees of the Centre shall be treated as if they were employees within the meaning of the Public Service Employment Act and had the rights of recourse provided by that Act.

• Marginal note:When deployments made subject to terms

  (2) The Public Service Commission may, in consultation with the Treasury Board and the Centre, set terms and conditions for the deployment of Centre employees to departments and agencies under the Public Service Employment Act if, in its opinion, the principles governing the Centre’s staffing program are incompatible with those governing staffing under that Act.

• Marginal note:Mobility to the Centre

  (3) When the Centre considers employees within the meaning of the Public Service Employment Act for employment within the Centre, it shall treat them as if they were employees of the Centre.

Marginal note:Public Service Commission reviews

14. The Public Service Commission may periodically review the compatibility of the principles governing the Centre’s staffing program with those governing staffing under the Public Service Employment Act and, in that case, shall report its findings to the Centre.

Marginal note:Political partisanship

15. Sections 32 to 34 of the Public Service Employment Act apply to the Chief Executive Officer, commissioners, adjudicators and employees of the Centre as if the Chief Executive Officer, commissioners and adjudicators were deputy heads, and the employees were employees, as defined in subsection 2(1) of that Act.

General Provisions

Marginal note:Offices

16. The offices of the Centre shall be in the National Capital Region as described in the schedule to the National Capital Act.

Marginal note:Audit

17. The accounts and financial transactions of the Centre shall be audited annually by the Auditor General of Canada, and a report of the audit shall be made to the Centre and to the Minister.

Marginal note:Annual report

• 18. (1) The Centre shall submit a report on the work of the Centre in a fiscal year to the Minister within six months after the end of that fiscal year, including the financial statements of the Centre and the report on them of the Auditor General of Canada.

• Marginal note:Tabling of report

  (2) The Minister shall cause a copy of the report to be laid before 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.

• Marginal note:Available to first nations and the public

  (3) The Centre shall make the report available for public scrutiny at its offices and shall provide a copy of the report to a first nation on request.

Marginal note:Quarterly report

19. Every three months, on the dates that the Minister specifies, the Centre shall report to the Minister

• (a) the total amount of compensation payable in respect of specific claims resolved other than by a decision of the Tribunal during that quarter; and

• (b) the total amount of compensation payable in respect of specific claims resolved by a decision of the Tribunal during that quarter.

PART 2COMMISSION

Composition and Role

Composition

Marginal note:Composition

• 20. (1) The Commission Division of the Centre consists of a Chief Commissioner, a Vice-Chief Commissioner and up to five other commissioners to be appointed by the Governor in Council on the recommendation of the Minister.

• Marginal note:Modification of number of commissioners

  (2) The Governor in Council may, on the recommendation of the Minister, at any time increase or reduce the number of commissioners.

• Marginal note:Full-time and part-time

  (3) The Chief Commissioner and Vice-Chief Commissioner shall be appointed as full-time commissioners, and other commissioners may be appointed as full-time or part-time commissioners.

• Marginal note:Term and tenure

  (4) The Chief Commissioner and the Vice-Chief Commissioner shall hold office during good behaviour for a term of not more than five years and may be removed for cause by the Governor in Council.

• Marginal note:Term and tenure

  (5) The other commissioners shall hold office during good behaviour for a term of not more than three years and may be removed for cause by the Governor in Council.

• Marginal note:Re-appointment

  (6) A commissioner is eligible for re-appointment on the expiration of any term of office in the same or another capacity.

Remuneration

Marginal note:Full-time commissioners

• 21. (1) Full-time commissioners shall devote the whole of their time to the performance of the duties of their office and shall be paid the remuneration that is fixed by the Governor in Council. They are entitled to be paid reasonable travel and living expenses incurred by them in the course of carrying out their duties under this Act while absent from their ordinary place of work, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Part-time commissioners

  (2) Part-time commissioners shall be paid the remuneration that is fixed by the Governor in Council. They are entitled to be paid reasonable travel and living expenses incurred by them in the course of carrying out their duties under this Act while absent from their ordinary place of residence, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Conflicting responsibilities and activities prohibited

  (3) Commissioners shall not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions as commissioner.

• Marginal note:Compensation

  (4) Commissioners are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Management

Marginal note:Chief Commissioner

• 22. (1) The Chief Commissioner is responsible for the management of the business and affairs of the Commission.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the Chief Commissioner, or if the office of Chief Commissioner is vacant, the Vice-Chief Commissioner has the powers and duties of the Chief Commissioner.

Functions, Powers and Duties

Marginal note:Functions

23. The Commission is responsible for

• (a) administering funding for the research, preparation and conduct by first nations of specific claims;

• (b) assisting the parties in the effective use of appropriate dispute resolution processes at any time to facilitate the resolution of specific claims under this Act; and

• (c) referring to the Tribunal issues of validity or compensation.

Marginal note:Powers and duties

24. The Commission, in carrying out its functions, may

• (a) make rules of procedure for specific claims under this Act, except with respect to proceedings before the Tribunal;

• (b) establish, in accordance with any appropriation or allotment of funds to the Centre for these purposes, criteria for the provision of funding to first nations for research, preparation and conduct of specific claims, and allocate the funds in accordance with those criteria;

• (c) arrange for any research, or expert or technical studies, agreed to by the parties;

• (d) assist the parties to resolve any interlocutory issues; and

• (e) foster, at all times, the effective use of appropriate dispute resolution processes — including facilitated negotiation, mediation, non-binding arbitration and, with the consent of the parties, binding arbitration — for the resolution of specific claims.

Restriction

Marginal note:Participation in funding administration

25. No person who participates or has participated in the administration of funding for the research, preparation or conduct of a specific claim may, in respect of the claim, attend a preparatory meeting under section 28 or participate in any capacity in a dispute resolution process.

Process Relating to Specific Claims

Filing of Claims

Marginal note:Admissible claims

• 26. (1) Subject to subsections (2) and (3), a first nation may file with the Commission a claim based on any of the following grounds, for compensation for its losses arising from those grounds:

  • (a) breach of — or failure to fulfil — a legal obligation of the Crown, including a fiduciary obligation,

    • (i) that relates to the provision of lands or other assets and that arises from an agreement between the first nation and the Crown or from a treaty,

    • (ii) under any legislation — pertaining to Indians or lands reserved for the Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada, or

    • (iii) that arises out of the Crown’s administration of reserve lands, Indian moneys or other assets of the claimant;

  • (b) an illegal lease or disposition by the Crown of reserve lands;

  • (c) failure to provide compensation for reserve lands taken or damaged by the Crown or any of its agencies under legal authority; or

  • (d) fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands.

• Marginal note:Exceptions

  (2) A first nation may not file a claim that

  • (a) is based on events that occurred within the 15 years immediately preceding the filing of the claim;

  • (b) is based on a land claims agreement entered into after December 31, 1973, or any related agreement or Act of Parliament;

  • (c) 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;

  • (d) 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 public programs or services;

  • (e) 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; or

  • (f) is based on, or alleges, aboriginal rights or title.

• Marginal note:When other proceedings

  (3) A first nation may not file a claim if

  • (a) there are proceedings before a court or tribunal other than the Tribunal that relate to the same 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;

  • (b) the first nation and the Crown are parties to those proceedings; and

  • (c) the proceedings have not been adjourned.

• Extended meaning of “Crown” — obligations

  (4) In the application of paragraph (1)(a) 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 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

  (5) In the application of paragraph (1)(b) 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 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

  (6) In the application of paragraphs (1)(c) and (d) 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 for the period before that area became part of Canada.

Marginal note:Copy to Minister on filing

27. On the filing of a specific claim, the Commission shall provide a copy of it and its supporting documentation to the Minister.

Preparatory Meetings

Marginal note:Initial meeting

• 28. (1) The Commission shall, on the filing of a specific claim, convene a preparatory meeting of the parties for the purpose of identifying and clarifying the basis of the claim and the matters of fact or law on which the claimant relies in support of the claim, any additional research required and any other issue relevant to the preparation of the claim for consideration by the Minister.

• Marginal note:Additional meetings

  (2) The Commission, on the request of a party, may convene additional preparatory meetings and, when appropriate, community meetings in order to permit the involvement of other interested persons including elders, members of the claimant and relevant public officials.

Marginal note:Amendments

29. At any time during or on the completion of the preparatory meetings, the claimant may make any amendments to its specific claim that it desires in order to fully and clearly set out the basis for its claim and the matters of fact or law on which it relies in support of the claim. The Commission shall provide a copy of any such amendments to the Minister.

Marginal note:Process suspended for Minister’s decision

• 30. (1) On the completion of the preparatory meetings relating to a specific claim and receipt of any amendments under section 29, the Commission shall suspend proceedings in relation to the claim until it receives in writing the Minister’s decision on whether the Minister will negotiate the claim.

• Marginal note:Delay not to be considered for validity

  (2) The Minister, in making a decision on whether to negotiate a claim, shall not consider any rule or doctrine that would have the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay.

• Marginal note:Report of Minister

  (3) The Minister shall, at least every six months after the completion of the preparatory meetings, report to the Commission on the status of the review, the expected date of the Minister’s decision and, if applicable, the reasons why more time is required than previously expected.

• Marginal note:No deemed decision

  (4) No passage of time in relation to the decision on whether to negotiate a claim may be considered as constituting a decision not to negotiate the claim.

Validity of Claims

Marginal note:After decision not to negotiate

31. On receipt of the Minister’s decision not to negotiate a specific claim, the Commission shall, on the request of the claimant, assist the parties to attempt to resolve the issue of validity using any appropriate dispute resolution process.

Marginal note:Referral to Tribunal

• 32. (1) On the request of the claimant, the Commission shall refer the issue of the validity of a specific claim to the Tribunal if it is satisfied that

  • (a) the basis for the claim and all matters of fact and law on which the claimant relies in support of the claim have been fully and clearly identified and adequately researched and have been considered by the Minister;

  • (b) all dispute resolution processes appropriate for resolving the issue have been exhausted without the issue having been resolved; and

  • (c) the claimant has, in prescribed form, waived any compensation for the claim that is in excess of the claim limit as it applies to the claim in accordance with section 56.

• Marginal note:Documents on referral

  (2) When it refers the issue of validity to the Tribunal, the Commission shall provide to the Tribunal a copy of all documents that it has provided to the Minister under sections 27 and 29.

• Marginal note:Issue of allocation of responsibility

  (3) On the request of a party, the Commission shall, together with the issue of validity, refer to the Tribunal the issue of the extent, if any, of each respondent party’s responsibility with regard to each claimant for the claim.

Compensation

Marginal note:After favourable decision on validity

33. After the Minister decides to negotiate a specific claim, or the Tribunal decides that a specific claim is valid, the Commission shall assist the parties to resolve the issue of compensation using any appropriate dispute resolution process.

Marginal note:Amendments re compensation

34. At any time after the decision of the Minister or Tribunal referred to in section 33, the claimant may make any amendments to its specific claim that it desires in order to fully and clearly set out its position with respect to compensation and the matters of fact or law on which it relies in support of that position. The Commission shall provide a copy of any such amendments to the Minister.

Marginal note:Referral to Tribunal

• 35. (1) On the request of the claimant, the Commission shall refer the issue of compensation for a specific claim to the Tribunal if it is satisfied that

  • (a) the claimant’s position with respect to compensation and all matters of fact or law on which the claimant relies in support of that position have been fully and clearly identified and adequately researched and have been considered by the Minister in the course of a dispute resolution process under section 33;

  • (b) all dispute resolution processes appropriate for resolving the issue have been exhausted without the issue having been resolved;

  • (c) no compensation other than monetary compensation is being claimed;

  • (d) the claimant has, in prescribed form, waived any compensation for the claim that is in excess of the claim limit as it applies to the claim in accordance with section 56; and

  • (e) the result of the following calculation is an amount not less than the claim limit:

    A - B - (C x D)

    where

    A

    is the maximum amount of compensation that may be awarded by the Tribunal in a fiscal year as published by the Minister from time to time in the Canada Gazette on the recommendation of the Minister of Indian Affairs and Northern Development and with the approval of the Treasury Board,

    B

    is the total amount of compensation awarded by the Tribunal in the current fiscal year,

    C

    is the claim limit, and

    D

    is the number of specific claims in respect of which the issue of compensation has been referred to the Tribunal but has not been decided.

• Marginal note:Documents on referral

  (2) When it refers the issue of compensation to the Tribunal, the Commission shall provide to the Tribunal a copy of the documents that it has provided to the Minister under sections 27, 29 and 34.

• Marginal note:Issue of allocation of responsibility

  (3) On the request of a party, the Commission shall, together with the issue of compensation, refer to the Tribunal the issue of the extent, if any, of each respondent party’s responsibility with regard to each claimant for the claim.

General

Marginal note:Notice

• 36. (1) The Commission shall give notice of the filing of a specific claim to each province, first nation or person whose interests a party indicates in writing to the Commission might be significantly affected by the claim.

• Marginal note:Effect of failure to notify

  (2) Failure to provide notice does not invalidate any resolution of a specific claim under this Part.

Marginal note:Participation

37. On the request of the parties, the Commission shall allow a province, first nation or person to be consulted during a dispute resolution process under this Part, or a province or first nation to participate as a party.

Marginal note:No disclosure, production or testimony without consent — Chief Executive Officer, commissioner or employee

• 38. (1) Subject to section 75, the Chief Executive Officer, a commissioner or an employee of the Centre who obtains any document or information related to a specific claim in the course of their appointment or employment, unless the parties to the claim consent, may not be compelled to, and shall not, disclose, produce or give evidence about the document or information.

• Marginal note:No disclosure, production or testimony without consent — contractor

  (2) Subject to section 75, a person whose services are engaged by the Centre in respect of a specific claim and who obtains any document or information in the course of their engagement, unless the parties to the claim consent, may not be compelled to, and shall not, disclose, produce or give evidence about the document or information.

Marginal note:Prohibition on representing parties — Chief Executive Officer, commissioner or employee

• 39. (1) The Chief Executive Officer, a commissioner or an employee of the Centre may not represent a party at a Tribunal hearing.

• Marginal note:Prohibition on representing parties — contractor

  (2) A person whose services are engaged by the Centre in respect of a specific claim may not represent a party at a Tribunal hearing in respect of the claim or any other claim based on the same or substantially the same facts.

Marginal note:Evidence not admissible in other proceedings

40. Evidence of anything said, any position taken or any admission made by any person in the course of a dispute resolution process under this Part is not admissible, without the consent of all parties, before the Tribunal or in any other proceeding.

PART 3TRIBUNAL

Composition and Role

Composition

Marginal note:Composition

• 41. (1) The Tribunal Division of the Centre consists of a Chief Adjudicator, a Vice-Chief Adjudicator and up to five other adjudicators to be appointed by the Governor in Council on the recommendation of the Minister.

• Marginal note:Eligibility

  (2) The majority of the adjudicators, including one of the Chief Adjudicator or the Vice-Chief Adjudicator, must be members in good standing of the bar of a province or the Chambre des notaires du Québec.

• Marginal note:Modification of number of adjudicators

  (3) The Governor in Council may, on the recommendation of the Minister, at any time increase or reduce the number of adjudicators.

• Marginal note:Full-time and part-time

  (4) The Chief Adjudicator and Vice-Chief Adjudicator shall be appointed as full-time adjudicators, and other adjudicators may be appointed as full-time or part-time adjudicators.

• Marginal note:Term and tenure

  (5) The Chief Adjudicator and the Vice-Chief Adjudicator shall hold office during good behaviour for a term of not more than five years and may be removed for cause by the Governor in Council.

• Marginal note:Term and tenure

  (6) The other adjudicators shall hold office during good behaviour for a term of not more than three years and may be removed for cause by the Governor in Council.

• Marginal note:Re-appointment

  (7) An adjudicator is eligible for re-appointment on the expiration of any term of office in the same or another capacity.

Remuneration

Marginal note:Full-time adjudicators

• 42. (1) Full-time adjudicators shall devote the whole of their time to the performance of the duties of their office and shall be paid the remuneration that is fixed by the Governor in Council. They are entitled to be paid reasonable travel and living expenses incurred by them in the course of carrying out their duties under this Act while absent from their ordinary place of work, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Part-time adjudicators

  (2) Part-time adjudicators shall be paid the remuneration that is fixed by the Governor in Council. They are entitled to be paid reasonable travel and living expenses incurred by them in the course of carrying out their duties under this Act while absent from their ordinary place of residence, but the payment may not exceed the maximum limits for those expenses authorized by the Treasury Board for employees of the Government of Canada.

• Marginal note:Conflicting responsibilities and activities prohibited

  (3) Adjudicators shall not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions as adjudicator.

• Marginal note:Compensation

  (4) Adjudicators are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Management

Marginal note:Chief Adjudicator

• 43. (1) The Chief Adjudicator is responsible for the management of the business and affairs of the Tribunal, including the following responsibilities:

  • (a) to strike panels to conduct hearings and decide issues before the Tribunal;

  • (b) to lead the Tribunal in the exercise of its power to make rules under subsection 45(1); and

  • (c) to provide guidance and assistance to panels.

• Marginal note:Absence or incapacity

  (2) In the event of the absence or incapacity of the Chief Adjudicator or if the office of Chief Adjudicator is vacant, the Vice-Chief Adjudicator has the powers and duties of the Chief Adjudicator.

Functions, Powers and Duties

Marginal note:Functions

44. The Tribunal is responsible to hold hearings into and decide issues before it relating to specific claims.

Marginal note:Powers of the Tribunal

• 45. (1) The Tribunal may make rules governing the proceedings, practice and procedures of panels, including rules governing

  • (a) giving of notice;

  • (b) 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;

  • (c) summoning of witnesses;

  • (d) production and service of documents;

  • (e) discovery proceedings;

  • (f) taking and preservation of evidence before the start of a hearing;

  • (g) pre-hearing conferences;

  • (h) introduction of evidence;

  • (i) imposition of time limits; and

  • (j) costs, which rules shall accord with the rules of the Federal Court, with any modifications that may be required.

• Marginal note:Publication of rules

  (2) The Tribunal shall make its rules available to the public and, if possible, publish them in the First Nations Gazette or a similar publication.

Marginal note:Powers of a panel

46. A panel of the Tribunal may

• (a) determine any questions of law or fact in relation to any matter within its jurisdiction under this Act;

• (b) order that specific claims be heard together or consecutively if they have issues of law or fact in common;

• (c) order that specific claims be decided together if decisions of the claims could be irreconcilable or if they are subject to one claim limit under subsection 56(2);

• (d) delay or suspend a hearing or delay its decision of an issue

  • (i) to await any court decision that the panel reasonably expects will assist it in its hearing or decision,

  • (ii) to allow the parties to make further efforts to resolve an issue,

  • (iii) to permit further preparations by a party, or

  • (iv) for any other reason that the panel considers appropriate;

• (e) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce the documents and things that the panel considers necessary to a full hearing and consideration of the matter before it;

• (f) 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;

• (g) in applying the Tribunal’s rules of practice and procedure, take into consideration cultural diversity;

• (h) lengthen or shorten any time limit established by the Tribunal’s rules of practice and procedure; and

• (i) award costs in accordance with the Tribunal’s rules of practice and procedure.

Panels, Hearings and Decisions

Marginal note:Applications

47. On application by a party to a specific claim, the Tribunal may, at any time, determine

• (a) in relation to a specific claim that is before the Commission, to summon witnesses or to order production of documents;

• (b) whether the claim and any other specific claim should be heard together or consecutively, or decided together; or

• (c) any other issue that needs to be resolved for a dispute resolution process in relation to the specific claim to proceed, if all other parties consent.

Marginal note:Panel for interlocutory issue

48. On an application to determine an interlocutory issue, the Chief Adjudicator shall strike a panel of one adjudicator who must be a member in good standing of the bar of a province or the Chambre des notaires du Québec, or of three adjudicators, at least one of whom must be such a member, to decide the issue. If a panel of three adjudicators has been struck, the Chief Adjudicator shall designate one of them to chair the panel, but the Chief Adjudicator shall chair the panel if he or she is a member of it.

Marginal note:Hearing and decision

49. A panel shall, after providing notice to the parties, hold a hearing, at the time and place that the panel considers most appropriate, into the interlocutory issue in respect of which the panel was struck, and make a decision on it.

Marginal note:Application to strike

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

• (a) is, on its face, not admissible under section 26;

• (b) has not been filed by a first nation;

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

• (d) may not, under section 74, be continued.

Marginal note:Decision of issue

51. On application by a party to a specific claim, the Tribunal may, at any time, decide

• (a) whether the claim is, together with any other specific claim, subject to one claim limit under subsection 56(2); or

• (b) any other issue, if all other parties consent.

Marginal note:Panel for final decision

52. On an application under section 50 or 51, or the referral to the Tribunal of an issue of validity or compensation, the Chief Adjudicator shall strike a panel of three or five adjudicators, at least one of whom must be a member in good standing of the bar of a province or the Chambre des notaires du Québec. The Chief Adjudicator shall designate one of them to chair the panel, but the Chief Adjudicator shall chair the panel if he or she is a member of it.

Marginal note:Hearing and decision

53. A panel shall, after providing notice to the parties, hold a hearing, at the time and place that the panel considers most appropriate, into the issue in respect of which the panel was struck, and make a decision on it.

Marginal note:Limitation

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

Marginal note:Decision on extent of responsibility

55. For greater certainty, a panel, in making a decision on the extent of responsibility of each respondent party to a specific claim, may determine that any respondent is, or all the respondents together are, not responsible or not wholly responsible for the claim.

Marginal note:Basis and limitations for decision on compensation

• 56. (1) A panel, in making a decision on an issue of compensation for a specific claim,

  • (a) shall calculate the pecuniary losses in relation to the claim, to the prescribed maximum, or, if none is prescribed, to a maximum of ten million dollars, based on principles of compensation applied by courts;

  • (b) may not include any amount for

    • (i) punitive or exemplary damages, or

    • (ii) any harm or loss that is not pecuniary in nature; and

  • (c) shall award compensation against each respondent party proportional to the party’s responsibility for the losses calculated under paragraph (a).

• Marginal note:One claim limit for related claims

  (2) Two or more specific claims shall, for the purposes of the application of the claim limit under paragraph (1)(a), 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

  (3) If claims are treated as one claim under paragraph (2)(b), the panel shall apportion equitably among the claimants the total amount awarded.

Marginal note:Unlawful disposition

• 57. (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, despite section 39 of the Indian Act, all the claimant’s interests in, and rights to, the land are extinguished, 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 lease

  (2) Despite section 39 of the Indian Act, if compensation is awarded under this Act in relation to the unexpired period of a lease of land entered into by the Crown in contravention of the rights of the claimant, then, for the duration of that period, the persons who, if the lease had been lawful, would have had any interest in, or right to enjoy, the land are deemed to have that interest or right.

Marginal note:Acting after termination of appointment

• 58. (1) A person who has ceased to be an adjudicator of the Tribunal may, with the authorization of the Chief Adjudicator and for the period that the Chief Adjudicator fixes, take part in the disposition of any matter in which the person became engaged while holding office as an adjudicator, and a person so authorized is, for that purpose, deemed to be an adjudicator.

• Marginal note:If adjudicator unable to act

  (2) If an adjudicator who participates in a panel charged with deciding an issue is, for any reason, unable to take part in the decision, the Chief Adjudicator may, taking into account sections 48 and 52, authorize the remaining adjudicators of the panel to make the decision.

Marginal note:Notice to others

• 59. (1) If a panel’s decision of an issue in relation to a specific claim might, in the opinion of the panel, significantly affect the interests of a province, first nation or person that has not previously been notified of the claim under subsection 36(1), the Tribunal shall so notify them. The parties may make submissions to the panel 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 panel.

Marginal note:Party status

60. The Tribunal shall grant status as a party in a specific claim to a province that has agreed to submit to the jurisdiction of the Tribunal for that claim.

Marginal note:Conduct of hearings

• 61. (1) Subject to this Act, a panel shall conduct its hearings in any manner that it considers fit.

• Marginal note:Limitation

  (2) In deciding how to conduct a hearing, a panel 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

• 62. (1) Subject to subsection (2), panel hearings shall be public.

• Marginal note:Confidential hearings

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

Marginal note:Right to cross-examine

63. 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 panel, in any other case.

Marginal note:Defences of Crown

64. Subject to section 54, section 24 of the Crown Liability and Proceedings Act applies in respect of a specific claim as if it were a proceeding.

Marginal note:Claims to be decided together

65. If a panel determines that specific claims are subject to one claim limit under subsection 56(2) or that they present common issues of law or fact that create a risk that decisions on the claims will be irreconcilable, it shall, unless the parties otherwise agree, decide the claims together.

Marginal note:Suspension

66. If a panel, in considering a specific claim, determines that a first nation has a specific claim or a potential specific claim based on the same or substantially the same facts and relating to the same assets as the specific claim, or that there is any other specific claim or potential specific claim by a first nation that must be before the Tribunal to enable a full resolution of the specific claim, it shall suspend proceedings with respect to the specific claim until, in the case of another specific claim, it is before the Tribunal or, in the case of a potential specific claim, it has been filed under this Act and is before the Tribunal.

Marginal note:Withdrawal

• 67. (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 panel shall not render a decision on it.

• Marginal note:Costs

  (2) A panel 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

68. Subject to subsection 71(1), evidence of anything said, any position taken or any admission made by a person in the course of a panel hearing is not admissible in any other proceeding.

Marginal note:Advance notice of decision on compensation

69. Not later than 14 days before a panel renders its decision on an issue of compensation, the Tribunal shall give notice to the parties and to the Chief Executive Officer that the decision will be rendered.

Marginal note:Written reasons and publication

70. A panel shall give written reasons for its decisions. The Tribunal shall cause the reasons and the decisions to be published in the manner that the Tribunal decides.

Marginal note:Judicial review

• 71. (1) A decision of a panel is subject to judicial review under the Federal Court Act.

• Marginal note:Final and conclusive

  (2) Subject to subsection (1), a panel’s decisions are not subject to appeal or review and, except for decisions with respect to interlocutory issues, 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.

• Marginal note:Exception re decision of validity

  (3) Despite subsection (2), a decision of a panel that a specific claim is valid is conclusive only under this Act and, except for the purposes of judicial review under subsection (1), any evidence of the decision is inadmissible before any other court or tribunal.

Marginal note:Release and indemnity

72. If a panel makes an order that a specific claim is invalid or awards compensation for a specific claim,

• (a) each respondent party 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 party against any amount that the respondent party 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

• 73. (1) An award of compensation against the Crown may be paid by instalments, but the award must be fully paid within five years after the date of the Tribunal’s 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 lowest rate of interest quoted by banks to the most credit-worthy borrowers for prime business loans, as determined and published by the Bank of Canada for the month in which the award was made, which shall be paid together with each instalment.

PART 4GENERAL

Marginal note:Abandonment

74. A specific claim may not be continued 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 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 26(3).

Marginal note:Public documents

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

• Marginal note:Confidential documents

  (2) The Commission, on the request of a party, or a panel of 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.

Marginal note:Review

• 76. (1) Not earlier than three years and not later than five years after the coming into force of this section, the Minister shall undertake and complete a review of the mandate and structure of the Centre, 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 to first nations an opportunity to make representations.

• Marginal note:Report

  (2) On completion of the review, 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 functions, powers or duties of the Centre or either of its divisions, that the Minister recommends.

• 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.

Marginal note:Opportunity to make representations regarding appointments

76.1 The Minister shall, before making a recommendation under section 5 or subsection 20(1) or 41(1), notify claimants — which notification may be by ordinary mail sent to their latest known addresses — that they may, during a period that the Minister specifies of not less than 30 days after the date of the notice, make representations in respect of appointments to the office or offices in question.

Marginal note:Avoiding of conflicting conduct

• 76.2 (1) At no time shall a person who was appointed under section 5 or subsection 20(1) or 41(1) act for any party in connection with any specific claim in relation to which they performed any work or concerning which they obtained significant information during their term in office.

• Marginal note:One-year non-employment period

  (2) Persons who were appointed under section 5 or subsection 20(1) or 41(1) shall not, within a period of one year after the end of their term in office, accept any employment with or enter into a contract for services with the Department of Indian Affairs and Northern Development or a first nation that had a pending specific claim — before the Commission or the Tribunal, in the case of the Chief Executive Officer, or, in the case of a commissioner or adjudicator, before the Division of the Centre to which the person was appointed — at any time during their term in office.

Marginal note:Regulations

77. The Governor in Council may make regulations

• (a) adding to Part 2 of the schedule the name of any agreement related to aboriginal self-government; and

• (b) prescribing anything that may, under this Act, be prescribed.

PART 5TRANSITIONAL PROVISION, CONSEQUENTIAL AMENDMENTS, COORDINATING AMENDMENT AND COMING INTO FORCE

Transitional Provision

Marginal note:Meaning of “claimant”

77.1 During the period of one year after the coming into force of section 76.1, the reference in that section to “claimants” shall be read as a reference to “claimants under this Act or under the Specific Claims Policy of the Government of Canada”.

Consequential Amendments

R.S., c. A-1Access to Information Act

78. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:

79. Schedule II to the Act is amended by adding, in alphabetical order, a reference to

and a corresponding reference to “section 38 and subsections 62(2) and 75(2)”.

R.S., c. F-11Financial Administration Act

80. Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:

and a corresponding reference in column II to the “Minister of Indian Affairs and Northern Development”.

R.S., c. P-21Privacy Act

81. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:

R.S., c. P-35Public Service Staff Relations Act

82. Part II of Schedule I to the Public Service Staff Relations Act is amended by adding the following in alphabetical order:

R.S., c. P-36Public Service Superannuation Act

83. Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order:

Coordinating Amendment

84. On the later of the coming into force of section 14 of the Courts Administration Service Act, chapter 8 of the Statutes of Canada, 2002, and subsection 71(1) of this Act, subsection 71(1) of this Act is replaced by the following:

Coming into Force

Marginal note:Coming into force

85. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.