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.