The Specific Claims Tribunal Act of 2008 established the Indian Specific Claims Tribunal as a neutral body that can issue binding decisions on specific claims rejected for negotiation and determine compensation when in dispute. It was created in an effort to increase the speed at which specific claims are resolved, providing justice for First Nations claimants while providing certainty for other parties including the government, industry and the citizens who must abide by the results. Hearings before the Tribunal are not subject to Statutes of Limitation or the Doctrine of Laches or other defences usually applicable in regular court proceedings.
The Makeup of the Indian Specific Claims Tribunal
The tribunal is an independent body composed of up to six full time superior court judges and any number of part time members appointed by the federal government, in consultation with AFN, from provincial superior courts across the country. The Registrar and Tribunal offices are headquartered in Ottawa. Hearings before the Tribunal are by a single member whose decision is the Tribunals. The Tribunal is empowered to makes its own rules governing management of its affairs and conduct of hearings. It has the power and rights of a superior court.
Filing a Claim
In June, 2011 the Tribunal issued the Specific Claims Tribunal Rules of Practice and Procedure. It was issued to secure "the just, timely and cost-effective resolution of specific claims" while taking into account cultural diversity and the distinctive character of specific claims.
- The filing of a claim is by a First Nation or group of First Nations whose claim was rejected or it was not settled, not assessed or unresolved within the three year time period, unless the parties agree that it be brought forward sooner.
- A claim begins by the filing of "declaration of claim" with the Registrar that sets out the identity of the First Nation; provides the name, address etc. of the First Nation; complies with the conditions precedent for filing the claim; identifies the grounds for the claim; provides a brief summary of the facts that form the basis of the claim; and provides a statement that the First Nation doesn't seek compensation in excess of $150 million.
- As a general rule, First Nations require legal representation unless another representative is approved by the Tribunal.
- The Crown has 30 days to respond or can make an application challenging aspects of the declaration.
- Parties can be added or they can intervene upon application to or notification from the Tribunal.
- Before any hearing before the Tribunal, a case management conference is scheduled to consider, in part, the parties positions,; preparation for the hearing; compliance with the Rules, evidence and procedural matters; oral and expert testimony; identification of issues; and whether the dispute can be resolved through mediation.
- Before the pending hearing itself, there is another pre-hearing conference to consider all matters that will facilitate the hearing.
- At the hearing the Tribunal member can render a binding decision on validation and compensation or on just validation or compensation or adjourn the hearing to enable the parties to negotiate a settlement or participate in mediation.
- The First Nation can withdraw their claim at any time but might face costs.
The Rules of Practice and Procedure also cover issues such a service, notification, disclosure, method of filing, examinations, evidence, hearing procedure, summoning witnesses, offers to settle and costs.
The costs of proceeding before the Tribunal are covered by Canada through AANDC funding services through their "Guidelines for Funding Claims at the Specific Claims Tribunal of Canada" at the link http://www.aadnc-aandc.gc.ca/eng/1100100030306.
For more information see www.sct-trp.ca/hom/index_e.htm and www.aadnc-aandc.gc.ca/eng/1100100030516.
To learn more, contact Knoll & Co. Law Corporation.