The following electronic version is for informational purposes only.
The printed version remains the official version.
CHAPTER 26 – ELIGIBILITY AND ENROLMENT
26.1.1 As regards a Maa‑nulth First Nation, an individual is eligible for enrolment under this Agreement if that individual:
a. is of that Maa‑nulth First Nation ancestry;
b. was adopted under laws recognized in Canada or in accordance with the custom of that Maa‑nulth First Nation by an individual of that applicable Maa‑nulth First Nation who is eligible for enrolment under a., b. or c.;
c. is a descendant of an individual of that Maa‑nulth First Nation who is eligible for enrolment under a. or b.; or
d. is accepted by that Maa‑nulth First Nation as a member of that Maa‑nulth First Nation in accordance with the custom of the Maa‑nulth First Nation and has a demonstrated attachment to that Maa‑nulth First Nation community.
26.1.2 An individual can only be a Maa‑nulth‑aht of one Maa‑nulth First Nation at any point in time.
26.1.3 Being a Maa‑nulth‑aht does not:
a. confer or deny rights of entry into Canada, Canadian citizenship, the right to be registered as an Indian under the Indian Act, or any of the rights or benefits under the Indian Act; or
b. except as provided in this Agreement, or in any Federal Law or Provincial Law, impose any obligation on Canada or British Columbia to provide rights or benefits.
26.2.1 An individual who:
a. receives benefits under another treaty or land claims agreement in Canada; or
b. is enrolled under another treaty or land claims agreement in Canada,
may not at the same time be a Maa‑nulth‑aht.
26.2.2 For greater certainty, as provided in Chapter 1 General Provisions, following the Effective Date, upon becoming a Maa‑nulth‑aht an individual ceases to be a member or a registered Indian of an Indian Band.
26.2.3 An individual who is enrolled under another treaty or land claims agreement in Canada or receives benefits under another treaty or land claims agreement in Canada may apply to be a Maa‑nulth‑aht, provided that:
a. the individual meets one of the eligibility criteria described in 26.1.1; and
b. if his or her application succeeds that individual must withdraw from enrolment under the other treaty or land claims agreement in Canada and is no longer entitled to receive benefits under that treaty or land claims agreement.
26.2.4 If, prior to the Effective Date, the Enrolment Committee determines that an individual who has applied to enrol under this Agreement and who is enrolled under another treaty or land claims agreement in Canada, meets the eligibility criteria described in 26.2.3, the individual will be placed on the Preliminary Enrolment Register.
26.2.5 If an individual who has been placed on the Preliminary Enrolment Register as contemplated by 26.2.4 does not, within 60 days after the Effective Date or within 60 days of receiving written notification by the Enrolment Committee, whichever is later, demonstrates in writing that he or she has ceased to be enrolled under another treaty or land claims agreement in Canada, or has ceased to be a member or registered Indian of the Indian Band, the Enrolment Committee will remove that individual's name from the Enrolment Register.
26.3.1 During the Initial Enrolment Period, an individual may:
a. apply to the Enrolment Committee for:
i. placement on the Preliminary Enrolment Register of a Maa‑nulth First Nation before the Effective Date; or
ii. placement on the Enrolment Register of a Maa‑nulth First Nation following the Effective Date;
b. appeal a decision of the Enrolment Committee to the Enrolment Appeal Board; or
c. seek judicial review of a decision of the Enrolment Appeal Board,
on his or her own behalf, or on behalf of a minor, or an adult, whose affairs he or she has the legal authority to manage.
26.4.1 At the beginning of the Initial Enrolment Period, the Maa‑nulth First Nations will establish an Enrolment Committee to be responsible for the enrolment process of each Maa‑nulth First Nation during the Initial Enrolment Period.
26.4.2 The Enrolment Committee will be comprised of five Maa‑nulth First Nation individuals, as follows:
a. one member to be selected by Huu‑ay‑aht First Nations;
b. one member to be selected by Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations;
c. one member to be selected by Toquaht Nation;
d. one member to be selected by Uchucklesaht Tribe; and
e. one member to be selected by Ucluelet First Nation,
each of whom will have his or her own advisory committee to consult with on matters of Maa‑nulth First Nation customs and ancestry.
26.4.3 Each Maa‑nulth First Nation will notify Canada and British Columbia of the name of the member it selects to participate on the Enrolment Committee upon that individual's appointment.
26.4.4 During the Initial Enrolment Period, the Enrolment Committee will:
a. consider and decide each application for enrolment based on the eligibility criteria of the applicable Maa‑nulth First Nation and:
i. enrol each applicant, or the individual upon whose behalf the application was submitted, who demonstrates that he or she, or the individual upon whose behalf the application was submitted, meets the eligibility criteria; and
ii. refuse to enrol each applicant, or the individual upon whose behalf the application was submitted, who does not demonstrate that he or she, or the individual upon whose behalf the application was submitted, meets the eligibility criteria;
b. establish and maintain, as a public document, a Preliminary Enrolment Register for each Maa‑nulth First Nation, containing the name of each individual who is enrolled in that Maa‑nulth First Nation before the Effective Date;
c. establish and maintain, as a public document, an Enrolment Register for each Maa‑nulth First Nation, containing the name of each individual who is enrolled in that Maa‑nulth First Nation following the Effective Date and before the end of the Initial Enrolment Period;
d. amend the Enrolment Register of the applicable Maa‑nulth First Nation to take into account decisions of the Enrolment Appeal Board;
e. take reasonable steps to publish the enrolment rules and the eligibility criteria;
f. provide an application form to any individual who wishes to apply for enrolment on his or her own behalf, or on behalf of a minor, or an adult, whose affairs he or she has the legal authority to manage;
g. provide written notification to each applicant of its decision in respect of his or her application, and if enrolment is refused, include reasons for that decision;
h. provide a copy of the notification referred to in 26.4.4 g., including any reasons, to the applicable Maa‑nulth First Nations, Canada and British Columbia;
i. upon request, provide to a Party or the Enrolment Appeal Board, in confidence, information in respect of an individual's enrolment application;
j. other than as provided in this Chapter, keep confidential information provided by and about an applicant, and an individual, if different from the applicant, on whose behalf the applicant submitted the application;
k. provide a copy of the Enrolment Register and the Preliminary Enrolment Register for each Maa‑nulth First Nation to each of the Parties each year and at other times on request;
l. report on the enrolment process to the Parties; and
m. comply with other requirements as provided for in this Agreement.
26.4.5 In addition to the functions described in 26.4.4, before the completion of the ratification of this Agreement by the Maa‑nulth First Nations contemplated by Chapter 28 Ratification, the Enrolment Committee will:
a. provide the Ratification Committee with the name of each individual who is enrolled, and any other information requested by the Ratification Committee; and
b. if the Enrolment Committee forms the opinion that an applicant, or the individual on whose behalf the applicant submitted the application, will be refused enrolment, provide the applicant with a reasonable opportunity to present further information or representations.
26.4.6 Each applicant has the burden of proving to the Enrolment Committee that he or she, or the individual on whose behalf the applicant submitted the application, meets the eligibility criteria of the applicable Maa‑nulth First Nation.
26.4.7 Subject to 26.6.0, all decisions of the Enrolment Committee are final and binding.
26.4.8 The Enrolment Committee may, before an appeal of a decision is commenced, vary its decision on the basis of new information, if it considers the decision was in error.
26.4.9 If the Enrolment Committee does not make a decision in respect of an application for enrolment within 60 days of the receipt of a completed application, the application is deemed to be refused and the deemed refusal constitutes grounds to appeal to the Enrolment Appeal Board.
26.5.1 If an applicant applies to have his or her own name, or the name of a minor, or an adult, whose affairs he or she has the legal authority to manage, removed from the Maa‑nulth First Nation Enrolment Register, the Enrolment Committee will remove the name and will notify the applicant.
26.6.1 An applicant or a Party may appeal to the Enrolment Appeal Board any decision of the Enrolment Committee made in accordance with 26.4.4 a., 26.4.8 or 26.4.9.
26.6.2 Maa‑nulth First Nations and Canada will establish the Enrolment Appeal Board at the Effective Date to be responsible for the enrolment appeal process provided for in this Agreement.
26.6.3 The Enrolment Appeal Board will be composed of one individual appointed by each Maa‑nulth First Nation and one individual appointed by the Minister of Indian Affairs and Northern Development. A member of the Enrolment Committee may not be a member of the Enrolment Appeal Board.
26.6.4 The Enrolment Appeal Board will:
a. establish its own procedures and set time limits;
b. maintain as a public document its procedures and time limits;
c. consider and decide appeals from decisions of the Enrolment Committee brought in accordance with 26.6.1 and decide whether the applicant, or the individual upon whose behalf the application is being made, will be enrolled;
d. conduct its hearings in public unless it determines in a particular case that there are reasons for confidentiality that outweigh the public interest in having an open hearing;
e. provide written reasons for its decision to the appellant, the applicant and the Parties; and
f. provide written reasons for its decision within ninety days of receiving each appeal.
26.6.5 The Enrolment Appeal Board:
a. by subpoena, may require any individual to appear before the Enrolment Appeal Board as a witness and produce any relevant document in his or her possession; and
b. may direct a witness to answer on oath or solemn affirmation questions posed to the witness.
26.6.6 A judge of the Provincial Court of British Columbia, on application by the Enrolment Appeal Board, may enforce a subpoena or direction made in accordance with 26.6.5.
26.6.7 Each applicant, Party, and witness appearing before the Enrolment Appeal Board may be represented by counsel or agent.
26.6.8 No action lies against the Enrolment Appeal Board, or any member of the Enrolment Appeal Board, for anything done or omitted in good faith in the performance, or intended performance, of a duty under this Chapter.
26.6.9 Subject to 26.7.0, all decisions of the Enrolment Appeal Board are final and binding.
26.7.1 An applicant or a Party may apply to the Supreme Court of British Columbia to review and set aside a decision of the Enrolment Appeal Board or a decision of a Maa‑nulth First Nation made in accordance with 26.11.1, on the grounds that the Enrolment Appeal Board or the Maa‑nulth First Nation acted without jurisdiction, acted beyond its jurisdiction, refused to exercise its jurisdiction, failed to observe procedural fairness, erred in law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner, or without regard for the material before it.
26.7.2 On an application for judicial review, the Supreme Court of British Columbia may either dismiss the application or set aside the decision and refer the matter back to the Enrolment Appeal Board or the Maa‑nulth First Nation for determination in accordance with any directions that the Supreme Court of British Columbia considers appropriate.
26.7.3 If the Enrolment Appeal Board or the Maa‑nulth First Nation fails to hear or decide an appeal within a reasonable time, an applicant or a Party may apply to the Supreme Court of British Columbia for an order directing the Enrolment Appeal Board or the Maa‑nulth First Nation to hear or decide the appeal in accordance with any directions that the Supreme Court of British Columbia considers appropriate.
26.7.4 An applicant or a Party may apply for judicial review within sixty days of receiving notification of the decision of the Enrolment Appeal Board or the Maa‑nulth First Nation or a longer time determined by the Supreme Court of British Columbia.
26.8.1 Canada and British Columbia will provide agreed upon funding for the Enrolment Committee and Enrolment Appeal Board.
26.9.1 On the Effective Date, the names on the Preliminary Enrolment Register of a Maa‑nulth First Nation will be placed on the Enrolment Register of that Maa‑nulth First Nation by the Enrolment Committee.
26.10.1 Each of the Enrolment Committee and the Enrolment Appeal Board is dissolved when it has made a decision in respect of every application or appeal made or commenced before the end of its Initial Enrolment Period.
26.10.2 On dissolution, the Enrolment Committee and Enrolment Appeal Board will provide their records and the Enrolment Register to the applicable Maa‑nulth First Nation.
26.11.1 After the Initial Enrolment Period each Maa‑nulth First Nation will:
a. be responsible for its enrolment process and the administrative costs of that process;
b. maintain its own Enrolment Register;
c. provide a copy of its Enrolment Register to Canada and British Columbia each year or as they request; and
d. provide information concerning enrolment in that Maa‑nulth First Nation to Canada and British Columbia as they request.