| 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.
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|
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|
General
|
|
| 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.
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|
| Effect of
failure to
notify
|
(2) Failure to provide notice does not
invalidate any resolution of a specific claim
under this Part.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
|
|
|
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|
|
|
|
|
|
|
|
|
Composition
|
|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| 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.
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|
| Re-appointme
nt
|
(7) An adjudicator is eligible for
re-appointment on the expiration of any term
of office in the same or another capacity.
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|
|
|
Remuneration
|
|
| 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.
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|
| 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.
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|
| Conflicting
responsibilitie
s 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.
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|
| 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.
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|
|
|
Management
|
|
| Chief
Adjudicator
|
43. (1) The Chief Adjudicator is responsible
for the management of the business and affairs
of the Tribunal, including the following
responsibilities:
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|
|
(a) to strike panels to conduct hearings and
decide issues before the Tribunal;
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|
|
(b) to lead the Tribunal in the exercise of its
power to make rules under subsection
45(1); and
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|
|
|
(c) to provide guidance and assistance to
panels.
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|
| 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.
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|
|
Functions, Powers and Duties
|
|
| Functions
|
44. The Tribunal is responsible to hold
hearings into and decide issues before it
relating to specific claims.
|
|
| Powers of the
Tribunal
|
45. (1) The Tribunal may make rules
governing the proceedings, practice and
procedures of panels, including rules
governing
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|
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|
(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;
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|
|
(c) summoning of witnesses;
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|
|
(d) production and service of documents;
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|
|
(e) discovery proceedings;
|
|
|
|
(f) taking and preservation of evidence
before the start of a hearing;
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|
|
|
(g) pre-hearing conferences;
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|
|
|
(h) introduction of evidence;
|
|
|
|
(i) imposition of time limits; and
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|
|
(j) costs, which rules shall accord with the
rules of the Federal Court, with any
modifications that may be required.
|
|
| 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.
|
|
| 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;
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|
|
|
(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);
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|
|
|
(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,
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|
|
|
(ii) to allow the parties to make further
efforts to resolve an issue,
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|
|
(iii) to permit further preparations by a
party, or
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|
|
(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;
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|
|
(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;
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|
|
|
(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
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|
|
|
(i) award costs in accordance with the
Tribunal's rules of practice and procedure.
|
|
|
|
|
|
| Applications
|
47. On application by a party to a specific
claim, the Tribunal may, at any time,
determine
|
|
|
|
(a) whether the claim and any other specific
claim should be heard together or
consecutively, or decided together; or
|
|
|
|
(b) 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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 seven 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).
|
|
| 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.
|
|
| Equitable
apportionmen
t
|
(3) If claims are treated as one claim under
paragraph (2)(b), the panel shall apportion
equitably among the claimants the total
amount awarded.
|
|
| 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.
|
|
| 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.
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|