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.