Specific Claims Tribunal Act (S.C. 2008, c. 22)

Marginal note:Powers of the Tribunal

• 13. (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may

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

  • (b) 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;

  • (c) take into consideration cultural diversity in developing and applying its rules of practice and procedure; and

  • (d) award costs in accordance with its rules of practice and procedure.

• Marginal note:Costs

  (2) The Tribunal shall deduct from any award of costs in favour of the claimant, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the Tribunal.

Specific Claims

Marginal note:Grounds of a specific claim

• 14. (1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds:

  • (a) a failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown;

  • (b) a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved for Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada;

  • (c) a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation;

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

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

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

• Extended meaning of “Crown” — obligations

  (2) For the purpose of applying paragraphs (1)(a) to (c) in respect of any legal obligation that was to be performed in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada.

• Extended meaning of “Crown” — illegal lease or disposition

  (3) For the purpose of applying paragraph (1)(d) in respect of an illegal lease or disposition of reserve land located in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that liability for the illegal lease or disposition became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada.

• Extended meaning of “Crown” — other

  (4) For the purpose of applying paragraphs (1)(e) and (f) in respect of reserve lands located in an area within Canada’s present boundaries, a reference to the Crown includes the Sovereign of Great Britain and its colonies for the period before that area became part of Canada.

Marginal note:Exceptions

• 15. (1) A First Nation may not file with the Tribunal a claim that

  • (a) is based on events that occurred within the 15 years immediately preceding the date on which the claim was filed with the Minister;

  • (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 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;

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

  • (g) is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.

• Marginal note:Limitation

  (2) Nothing in paragraph (1)(g) prevents a claim that is based on a treaty right to lands or to assets to be used for activities, such as ammunition to be used for hunting or plows to be used for cultivation, from being filed.

• 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 land or other assets and could result in a decision irreconcilable with that of the claim, or that are based on the same or substantially the same facts;

  • (b) the First Nation and the Crown are parties to those proceedings; and

  • (c) the proceedings have not been adjourned.

• Marginal note:Restrictions

  (4) A First Nation may not file a claim if

  • (a) it is not claiming any compensation;

  • (b) it is claiming any remedy other than monetary compensation; or

  • (c) the amount of its claim exceeds the claim limit.

Marginal note:Filing a specific claim

• 16. (1) A First Nation may file a claim with the Tribunal only if the claim has been previously filed with the Minister and

  • (a) the Minister has notified the First Nation in writing of his or her decision not to negotiate the claim, in whole or in part;

  • (b) three years have elapsed after the day on which the claim was filed with the Minister and the Minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim;

  • (c) in the course of negotiating the claim, the Minister consents in writing to the filing of the claim with the Tribunal; or

  • (d) three years have elapsed after the day on which the Minister has notified the First Nation in writing of the Minister’s decision to negotiate the claim, in whole or in part, and the claim has not been resolved by a final settlement agreement.

• Marginal note:Form and content of specific claim

  (2) For the purpose of subsection (1), the Minister shall

  • (a) establish a reasonable minimum standard to be followed in relation to the kind of information required for any claim to be filed with the Minister, as well as a reasonable form and manner for presenting the information;

  • (b) publish the standard on the Department of Indian Affairs and Northern Development’s Internet site; and

  • (c) notify the First Nation in writing of the date on which the claim was filed with the Minister.

• Marginal note:Meeting minimum standard

  (3) A claim is to be filed with the Minister only if the information in it meets the minimum standard referred to in paragraph (2)(a) and is presented in the form and manner established under that paragraph.

Hearings and Decisions

Marginal note:Application to strike

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

• (a) is, on its face, not admissible under sections 14 to 16;

• (b) has not been filed by a First Nation;

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

• (d) may not be continued under section 37.

Marginal note:Hearing and decision

18. After providing notice to the parties, the Tribunal shall hold a hearing, at the time and place that it considers most appropriate, into the issue before it and make a decision on that issue.

Marginal note:Limitation

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

Marginal note:Basis and limitations for decision on compensation

• 20. (1) The Tribunal, in making a decision on the issue of compensation for a specific claim,

  • (a) shall award monetary compensation only;

  • (b) shall not, despite any other provision in this subsection, award total compensation in excess of $150 million;

  • (c) shall, subject to this Act, award compensation for losses in relation to the claim that it considers just, based on the principles of compensation applied by the courts;

  • (d) shall not award any amount for

    • (i) punitive or exemplary damages, or

    • (ii) any harm or loss that is not pecuniary in nature, including loss of a cultural or spiritual nature;

  • (e) shall award compensation equal to the market value of a claimant’s reserve lands at the time they were taken brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes that those reserve lands were taken under legal authority, but that inadequate compensation was paid;

  • (f) shall award compensation equal to the value of the damage done to reserve lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes that certain of its reserve lands were damaged under legal authority, but that inadequate compensation was paid;

  • (g) shall award compensation equal to the current, unimproved market value of the lands that are the subject of the claim, if the claimant establishes that those lands were never lawfully surrendered, or otherwise taken under legal authority;

  • (h) shall award compensation equal to the value of the loss of use of a claimant’s lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes the loss of use of the lands referred to in paragraph (g); and

  • (i) shall, if it finds that a third party caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, award compensation against the Crown only to the extent that the Crown is at fault for the loss.

• Marginal note:For greater certainty

  (2) For greater certainty, in awarding the compensation referred to in subsection (1), the Tribunal may consider losses related to activities of an ongoing and variable nature, such as activities related to harvesting rights.

• Marginal note:Deduction of benefit

  (3) The Tribunal shall deduct from the amount of compensation calculated under subsection (1) the value of any benefit received by the claimant in relation to the subject-matter of the specific claim brought forward to its current value, in accordance with legal principles applied by the courts.

• Marginal note:One claim limit for related claims

  (4) Two or more specific claims shall, for the purpose of paragraph (1)(b), 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

  (5) If claims are treated as one claim under paragraph (4)(b), the Tribunal shall apportion equitably among the claimants the total compensation awarded.

• Marginal note:Compensation against province

  (6) If the Tribunal finds that a province that has been granted party status caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, it may award compensation against the province to the extent that the province was at fault in causing or contributing to the loss.