English and Wabigoon River Systems Mercury Contamination Settlement Agreement Act, 1986

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Sections48

• [s0]Preamble

  WHEREAS the Government of Canada, the Government of Ontario, Reed Inc., Great Lakes Forest Products Ltd., The Islington Indian Band and The Grassy Narrows Indian Band have entered into a settlement of all claims and causes of action, past, present and future, arising out of the discharge by Reed Inc. and its predecessors of mercury and other pollutants into the English and Wabigoon and related river systems and the continuing presence of any such pollutants, including the continuing but now diminishing presence of methylmercury, in the related ecosystems since its initial identification in 1969; AND WHEREAS the discharge of such pollutants and governmental actions taken in consequence thereof may have had and may continue to have effects in respect of the social and economic circumstances and the health of the present and future members of the Bands; AND WHEREAS the Government of Canada …

• 1Definitions

  1 In this Act, “administrator” means a person authorized under this Act to administer the Fund in accordance with a plan document; (“administrateur”) “applicant” means any member or past member of a Band who makes an application or on whose behalf an application is made and lodged with the administrator, and shall be deemed to include, as if a member of a Band, a registered Indian customarily resident on a reserve before the 1st day of October, 1985; (“demandeur”) “application” means a written application, in prescribed form, of an applicant and includes a medical report in prescribed form from an authorized physician; (“demande”) “authorized physician” means a physician entitled to practice medicine in any jurisdiction in Canada or the United States of America and designated as an authorized physician by the Board; (“médecin autorisé”) “award” means a decision of the Board to make avail…

• 2Purpose of Act

  2 The purpose of this Act is to implement, to the extent that the legislative authority of the Legislature extends thereto, the terms of a settlement, subject to certain exceptions contained therein, of all claims, whether past, present or future, arising out of the contamination by mercury and other pollutants of the English and Wabigoon and related river systems, the terms of which settlement are embodied in a Memorandum of Agreement signed by the parties thereto in the month of November, 1985, made between Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development, Her Majesty the Queen in Right of the Province of Ontario, Reed Inc., Great Lakes Forest Products Ltd., The Islington Indian Band and The Grassy Narrows Indian Band.

• 3Board established

  3 (1) A board to be known as “The Grassy Narrows and Islington Bands Mercury Disability Board” is hereby established. Composition of Board (2) The Board shall consist of seven members, composed of a chairman and, (a) two members, one of whom is a representative of one Band and one of whom is a representative of the other Band; (b) two members, each of whom is a duly qualified physician; and (c) two members who are not representatives or members of either Band or duly qualified physicians.

• 4Appointment of Board members

  4 (1) The chairman and other members of the Board shall be appointed by a search committee, constituted in accordance with the terms of the settlement, on such terms and conditions as the search committee agrees upon with each Board member. Appointments or replacements to be unanimous (2) The chairman and other members of the Board may be replaced from time to time by the search committee, and every appointment or replacement must be the unanimous decision of the search committee and shall be certified in writing by each member of the committee. Costs of the board (3) Pursuant to the settlement, Canada, Ontario, The Islington Indian Band and The Grassy Narrows Indian Band shall each pay 25 per cent of the costs of the Board. Level of disbursement (4) Disbursements of the Board or of members of the Board, as the case may be, shall generally be in accordance with the levels from time to ti…

• 5Panel for decision of Board

  5 The chairman, the two Band representatives and two other members, designated for the purpose by the chairman, constitute a panel of the Board and are sufficient for the exercise of all the jurisdiction and powers of the Board in connection with the making of a decision by the Board.

• 6Powers of Board

  6 (1) The Board may, (a) consult with and obtain the assistance of any official of the Government of Canada or of Ontario who is able to provide information, advice or assistance to the Board in respect of public health, public health education or any government programs that the Board considers may touch upon the matter of mercury poisoning; (b) consult with such professionally qualified persons as the Board considers necessary; (c) make such recommendations as the Board considers appropriate to the Bands or to any minister of the Government of Canada or Ontario; (d) amend the plan document in accordance with subsection 22 (1); (e) amend, or with the consent of the Attorney General of Ontario, terminate an agreement with an administrator and enter into an agreement with another administrator; (f) have regard to the terms of the settlement for the purpose of interpreting and giving effec…

• [s7]

  and shall, (g) supervise the administration of the Fund and make awards or supervise the making of awards by the administrator in accordance with this Act; and (h) designate from time to time as authorized physicians two or more physicians that the Board considers, (i) have expert knowledge in respect of conditions consistent with methylmercury poisoning, and (ii) will be available and may be required for the purpose of providing medical reports in respect of applicants. Idem (2) The Board may, (a) prescribe the form of an application; (b) prescribe the contents of an affidavit that is to accompany an application; (c) prescribe the matters that are to be included in a certificate; (d) prescribe the form of medical report to be submitted with an application; (e) prescribe any other matter or thing that by this Act is to be or may be prescribed. Retroactive application of award (3) The Boa…

• 7Where conduct of applicant to be considered by Board

  7 Where the Board considers that, after the date of the settlement, (a) the conduct of an applicant has contributed and is contributing to the continuation or exacerbation of a disability; (b) the applicant at the time of the conduct had an understanding of its possible effects; and (c) the conduct occurred under circumstances where the applicant knew or ought to have known that a practical alternative form of conduct without significant disadvantage was available,

• [s9]

  the Board, (d) shall consider the conduct in making or reviewing an award and may establish or vary conditions in the award; and (e) may, where there are clear clinical grounds for concluding that the conduct has contributed to the continuation or exacerbation of the disability or where the Board finds that any condition attached to an award under clause (d) has been disregarded, make or vary an award to provide a benefit in such lesser amount than would otherwise be provided as the Board considers appropriate.

• 8Fund to be established

  8 (1) There shall be established and maintained a fund to be known as the Grassy Narrows and Islington Bands Mercury Disability Fund into which shall be deposited by each Band the sum of money set out in the settlement. Agreement between Board and administrator (2) The Board shall make use of the services of an administrator in the investment, management and administration of the Fund and shall, subject to the approval of the Attorney General of Ontario, enter into such agreement or agreements with any person as the Board considers necessary for that purpose. Gifts or bequests (3) The administrator may, (a) accept and administer as part of the Fund any unconditional gift or bequest from any person; and (b) with the approval of the Board, accept and administer in accordance with the conditions attached thereto, any conditional gift or bequest from any person. When Board not to approve acc…

• 9Application for assistance

  9 An applicant may, at any time before the Fund is closed, submit an application in the prescribed form for assistance from the Fund in respect of disability which the applicant believes is caused by mercury poisoning.

• 10Material to accompany application

  10 An application shall be accompanied by, (a) an affidavit of the applicant setting out the matters prescribed; (b) in respect of the conditions manifested in the disability, a medical report from an authorized physician; (c) a certificate of the Council of the Band of which the applicant is a member setting out such matters as the Board prescribes; and (d) such other material as the Board prescribes.

• 11Submission of application to administrator

  11 Every application shall be submitted to the administrator and, in the event that an application is submitted by an applicant to the Board or to a member of the Board, the Board or the member shall forthwith transmit the application to the administrator.

• 12Application to be in prescribed form

  12 The administrator shall determine whether each application is in the prescribed form and, if it is not, shall provide written notice to the applicant setting out the deficiencies.

• 13Corrections

  13 Any deficiencies may be corrected without resubmission of the entire application.

• 14Duties of administrator on receipt of application

  14 Upon receipt of an application in the prescribed form, the administrator shall, within twenty-one days, (a) if the application qualifies in accordance with the plan document and is accompanied by the material set out in section 10, subject to clause (c), advise the applicant and the Board in writing that the application is accepted and specify the benefit payable in accordance with the plan document; (b) if the application does not appear to the administrator to qualify in accordance with the plan document or is not accompanied by the material set out in section 10, advise the applicant and the Board in writing of the reason it does not appear to qualify; or (c) if unable to determine whether the application qualifies, or what is the benefit payable, in accordance with the plan document, or if the administrator believes that there is any reason for the application to be considered by …

• 15Provision of interim benefits to applicant

  15 When an application is transmitted to the Board under clause 14 (c), the administrator may, with the consent of the chairman, provide such benefit to the applicant as the administrator considers appropriate pending a decision from the Board and, in the event that the Board subsequently decides that an award should not be made or that a lower benefit should be provided, the amounts or the excess amounts which have been provided shall not be recovered from the applicant.

• 16Where Board required to review decision

  16 An applicant or the Board or any member of the Board may, at any time after a determination by the administrator under clause 14 (a) or (b), by notice in writing to the Board or to the applicant or to the Board and the applicant respectively, require that the decision of the administrator be reviewed.

• 17Powers of Board

  17 The Board shall, at its next meeting, or in any event within four months or, if more than two years after the coming into force of this Act, eight months after receipt of an application under clause 14 (c) or of notice under section 16, review the application and, (a) approve the application and make or confirm or vary an award; or (b) reject the application.

• 18Provision of benefits

  18 When an application is subject to review under section 16, the administrator shall, pending receipt of the Board's decision, provide a benefit, or not, in accordance with the determination made under section 14 and, if the determination is varied by the award of the Board, the administrator shall not give retroactive effect to the award unless expressly so directed by the Board's decision.

• 19Chairman to certify decision of Board

  19 The chairman shall set forth and certify in writing every decision of the Board and shall incorporate in the decision the answer of the Board to any question submitted by the administrator under clause 14 (c), and shall provide a copy of the decision to the applicant and to the administrator.

• 20Review by Board

  20 The Board may in its sole discretion, at any time after giving notice to the applicant, on its own motion or upon request from an applicant or any member of the Board or the Attorney General of Ontario, review and vary any award.

• 21Decision final

  21 (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by this Act and to determine all questions of fact and law that arise in any matter before it and, subject to sections 20 and 23, every decision of the Board is final and binding and is not subject to review and, subject to this Act, shall be given effect by the administrator. Non-application of R.S.O. 1980, c. 484 (2) The Statutory Powers Procedure Act does not apply to the Board in its exercise of a statutory power of decision under this Act.

• 22Consent required to amend plan document

  22 (1) The Board shall not amend the plan document, except as provided for in subsection (2), without the consent of the Attorney General of Ontario, the Minister of Indian and Northern Affairs, Canada and the Band Councils. Addition of further conditions to plan document (2) The Board may add any further condition to the plan document and assign points in respect of such condition in conformity with the distribution of points then in effect for other conditions. Award to be based on nature and extent of disability (3) Notwithstanding anything in this Act, the Board shall make or confirm or vary each award in such amount as it considers appropriate, having regard to the nature and extent of an applicant's disability, but shall not make any award in an amount greater than the maximum benefit.

• 23Procedure

  23 The Board shall establish its own procedure including, without limitation, the location of its meetings, and any applicant aggrieved by the procedure, even where the procedure prescribed by this Act has been followed, may request the Board to review an award under section 20.

• 24Evidence

  24 (1) The Board may make any decision without hearing any evidence but may, in its sole discretion, hear evidence under oath and every member of the Board may examine or cross-examine any person. Applicant may be heard (2) Any applicant may appear and be heard at any meeting of the Board at which his or her application or award is to be considered or reviewed, and the Board shall provide notice to each applicant accordingly.

• 25Examination of persons

  25 No person other than a member of the Board may, except to the extent permitted by the Board in its sole discretion, examine or cross-examine any person at any meeting of the Board.

• 26Report to be considered

  26 The Board shall consider, in respect of each condition manifested in the disability, the medical report of an authorized physician before making an award.

• 27What Board may consider

  27 The Board shall consider any information, advice, report, evidence or other material or matter which, in its sole discretion, it deems useful for the purpose of deciding any matter including whether it may be appropriate to make or vary any award or awards, and may hear or, subject to subsection 24 (2), not hear any person.

• 28No costs

  28 The Board shall not award costs of any application.

• 29Personal expenses

  29 The Board may, in its sole discretion, direct payment of all or part of the personal expenses of an applicant in connection with an application, whether or not the Board makes an award.

• 30Quorum

  30 (1) The quorum of the Board shall be four of the panel established under section 5 and the decision of three or more members of the panel is the decision of the Board, and where a decision is not concurred in by three or more members of the Board, (a) in the case of a review brought under section 16, the decision of the administrator shall be deemed to be confirmed; and (b) in the case of an application transmitted under clause 14 (c), the application shall be deemed to be rejected. Use of telecommunications (2) The Board may, with the consent of the members of the panel established under section 5 and, where applicable, of an applicant, conduct any meeting or make any decision by telecommunications without the members being physically present in the same place. Five members only to participate in decision (3) Other than for the purposes of section 32 and subject to subsection (4) of …

• 31Assistance to applicant by Board member

  31 Any member of the Board may assist an applicant in the preparation or submission of an application to the administrator or before the Board and shall not, by reason thereof, be disqualified from participating in the decision of the Board.

• 32Termination of Fund

  32 (1) The Fund may be terminated and closed by the Board after the expiry of three consecutive years from the date of the last award or variation of an award, but in any event not sooner than the 1st day of January, 2001, and with the consent of at least six members of the Board. Report of Board (2) The Board shall, before consenting to the Fund being closed, provide to the Minister of Indian and Northern Affairs, Canada, the Attorney General of Ontario and each of the Bands a report in respect of the efficacy of the Fund in achieving the objects of this Act. Duty of administrator (3) Upon the Board consenting to the Fund being closed, (a) the administrator shall, if then possible, purchase from the balance of the Fund for every applicant then in receipt of a benefit a life annuity in the amount of the annual benefit or, if not then possible, do so as soon as it becomes possible, and th…

• 33Indemnification of Treasurer of Ontario

  33 The Treasurer of Ontario shall be deemed to be and hereafter continue to be indemnified by each of the Bands, to the extent of any amounts paid to each Band under clause 32 (3) (b) together with interest calculated on such payments at a rate equal to the Consumer Price Index for Canada published by Statistics Canada, against liability for any claim by a person who would have been eligible to be an applicant but for the termination of the Fund brought against any party to the settlement in respect of the matters contemplated by the settlement.

• 34Reciprocal legislation by Canada

  34 This Act is enacted in contemplation of a reciprocal enactment by the Parliament of Canada for the purpose of giving effect in part to the settlement, and shall be construed accordingly.

• 35Effect of Act

  35 This Act shall have force and effect only to the extent that it is within the legislative jurisdiction of the Legislature.

• 36Benefits not treated as income for purposes of other Acts

  36 (1) Notwithstanding any other Act of the Legislature, the benefits paid or payable to a member of a Band under the terms of the settlement shall not be considered or treated as income for the purposes of any other Act of the Legislature and no payment to which that member is entitled under any other Act of the Legislature shall be reduced by reason of the payment or availability of benefits to that member under the terms of the settlement. Availability of programs or services not diminished (2) The moneys paid to the Bands in accordance with the settlement and the benefits paid from the Fund to members of the Bands shall be considered as additional to any applicable program or service offered by the Government of Ontario, and the availability to the Bands and the members thereof of such program or service shall not be diminished by reason of the moneys paid under the settlement or the…

• 37Insured services under R.S.O. 1980, c. 197

  37 Every examination, service, test or report provided by, or at the direction of, an authorized physician in respect of an applicant in accordance with a requirement of the plan document, the administrator or the Board shall be deemed to be an insured service under the Health Insurance Act.

• 38Representative action

  38 For greater certainty, Ontario Supreme Court Action Number 14716/77 (Judicial District of York) shall be deemed to be a representative action, and its disposition in accordance with the settlement shall not be called into question in any court.

• 39Existing and future rights of action abolished

  39 All existing and future rights of action of the Bands and of every past, existing or future member of the Bands, and the estates thereof, in respect of claims and causes of action which are the subject of the settlement are, in consideration of and pursuant to the settlement, abolished.

• 40Limitation on liability in respect of claims

  40 (1) The total liability in respect of any claim by a past, present or future member of a Band or a registered Indian customarily resident on a reserve before the 1st day of October, 1985, brought against any party to the settlement in respect of matters contemplated by the settlement, whether brought before or after the Fund is closed, shall be not more than the cost, at the time of the claim, of a life annuity in the amount of the annual maximum benefit payable from the Fund at the time the claim was brought or immediately prior to the Fund being closed, as the case may be. Does not contemplate claims may be brought (2) Section 33 and this section shall not be deemed to contemplate that any claim described in section 33, notwithstanding the other provisions of this Act, may be brought or maintained.

• 41Settlement entire

  41 The settlement is entire and the consideration flowing to the Bands and their present and future members therefrom shall be deemed to flow to every such member, and the settlement shall not be deemed to be divided between the Bands and their present and future members by this Act or anything done under the authority of this Act.

• 42Regulations

  42 The Lieutenant Governor in Council may make regulations prescribing, for the purposes of subsection 4 (5), the procedures to be followed in the collection of the costs of the Board and in the payment of the moneys received to the persons entitled thereto.

• 43Moneys

  43 The moneys required to be paid by Ontario in accordance with the terms of the settlement, including the payment of interest thereon where provided for in the settlement at the rate of 8.52 per cent per annum compounded annually from the 15th day of October, 1985, shall be paid out of the Consolidated Revenue Fund.

• 44

  44 Omitted (provides for coming into force of provisions of this Act).

• 45

  45 Omitted (enacts short title of this Act). ______________