Table of Contents

CHAPTER 21 — ELIGIBILITY AND ENROLMENT

GENERAL

1.  Enrolment under this Agreement does not:

a. confer or deny rights of entry into Canada, Canadian citizenship, or the right to be registered as an Indian under the Indian Act, or

b. except as set out in this Agreement or in any Federal or Provincial Law, impose any obligation on Canada or British Columbia to provide rights or benefits.

TSAWWASSEN ELIGIBILITY CRITERIA

2.  An individual is eligible to be enrolled under this Agreement if that individual:

a. was a member or was entitled to be a member of the Tsawwassen First Nation band under the Indian Act as of the day before the Effective Date;

b. is of Tsawwassen First Nation ancestry;

c. was adopted under a law recognized in Canada, or under Tsawwassen First Nation customs, by an individual eligible to be enrolled; or

d. is a descendant of an individual eligible to be enrolled under subclause 2.a, 2.b or 2.c.

3.  Despite subclause 2.d, where an individual having no aboriginal ancestry became a member of the Tsawwassen First Nation band under the Indian Act before April 17, 1985, because of marriage to a member of the Tsawwassen First Nation band under the Indian Act, and that individual subsequently has a child with another individual who is not eligible under clause 2, that child is not eligible to be enrolled.

APPLICATIONS FOR ENROLMENT UNDER THE ENROLMENT COMMITTEE

4.  An applicant, on their own behalf, on behalf of a child under the age of 18, or on behalf of an adult whose affairs they have the legal authority to manage, may:

a. apply to the enrolment committee to be enrolled;

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.

5.  Each applicant has the burden of demonstrating to the enrolment committee that the applicant meets the eligibility criteria set out in clause 2.

6.  If an applicant requests that the name of an individual in relation to whom they submitted an application for enrolment be removed from the enrolment register, the enrolment committee will remove that name and will notify the applicant of the removal.

OTHER LAND CLAIMS AGREEMENTS

7.  An applicant may not at the same time be enrolled under this Agreement if the applicant is:

a. a member of an aboriginal group that is a signatory to a treaty;

b. enrolled under another land claims agreement in Canada; or

c. on an Indian Act band list, other than that of the Tsawwassen First Nation band under the Indian Act.

8.  An applicant, upon application, must notify the enrolment committee if the applicant, or an individual on behalf of whom the applicant is applying, falls within a category set out in clause 7.

ENROLMENT COMMITTEE

9.  The enrolment committee will be established by Tsawwassen First Nation at a time agreed upon by the Parties, and will consist of three representatives appointed by Tsawwassen First Nation.

10.  Tsawwassen First Nation will notify Canada and British Columbia of the representatives on the enrolment committee, as soon as practicable upon their appointment.

11.  The enrolment committee will:

a. establish its procedures and set its time limits;

b. publish its procedures and time limits, including the eligibility criteria and a list of the documentation and information required of each applicant, in time for individuals to review before making their applications for enrolment;

c. provide an application form to any individual who wishes to apply for enrolment;

d. receive applications for enrolment;

e. consider and make a decision on each application, based on the eligibility criteria set out in clause 2;

f. before the date of the ratification vote, enrol applicants who meet the eligibility criteria and who meet the time limits set out in subclause 11.a;

g. maintain a record of those decisions;

h. provide written notification to each applicant and to the Parties of its decision in respect of each application and, if enrolment is refused, include written reasons for that decision;

i. establish and maintain an enrolment register containing the name of each individual who is enrolled;

j. add names to, delete names from, or amend names on, the enrolment register in accordance with this chapter and the decisions of the enrolment appeal board;

k. provide information in respect of an enrolment application, in confidence, on request of the Parties or of the enrolment appeal board, and the Parties acknowledge that such information is personal information as defined in federal and provincial privacy and access to information legislation, and agree to protect that personal information from subsequent disclosures to the extent possible under the law;

l. report to the Parties on the enrolment process as requested;

m. keep information about applications confidential; and

n. on request provide to the Parties without cost a true copy of the enrolment register.

12.  After a decision by the enrolment committee and before any appeal of that decision is commenced, an applicant may submit new information to the enrolment committee.

13.  The enrolment committee may, before an appeal of a decision is commenced, vary the decision on the basis of new information if it considers the decision was in error.

14.  If the enrolment committee does not make a decision in respect of an application within the time established in its procedures, the application will be deemed to be refused and the refusal will constitute grounds for appeal to the enrolment appeal board.

15.  Subject to this chapter, all decisions of the enrolment committee are final and binding.

16.  In addition to the functions set out in clauses 11 through 15, the enrolment committee will provide the ratification committee with the name of each individual who is enrolled, and any other relevant information requested by the ratification committee in accordance with the Ratification chapter.

ENROLMENT APPEAL BOARD

17.  Tsawwassen First Nation and Canada will each appoint one member to the enrolment appeal board and will jointly appoint a third member, and the members will select, from among themselves, a chairperson.

18.  Tsawwassen First Nation and Canada will establish the enrolment appeal board at a date agreed upon by the Parties.

19.  A member of the enrolment committee may not also be a member of the enrolment appeal board.

20.  The enrolment appeal board will:

a. establish its procedures and set its time limits;

b. publish its procedures and time limits;

c. hear and determine any appeal brought under subclause 4.b or clause 14, including:

i. determining whether the appellant, or the individual on behalf of whom the appellant appealed, will be enrolled;

ii. re-hearing any matters arising from clauses 31 or 32; and

iii. maintaining a record of those decisions;

d. conduct 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 each decision to each appellant and to the Parties;

f. maintain a record of decisions and provide those decisions to the enrolment committee as required; and

g. provide a report to the Parties on the appeal process, as requested.

21.  An applicant under clause 4, or a Party, may appeal by written notice to the enrolment appeal board:

a. any decision of the enrolment committee made under subclause 11.e or clause 13; and

b. any application that is deemed to be refused under clause 14.

22.  On or after the Effective Date, the enrolment appeal board may:

a. require, by summons, any individual to appear before the enrolment appeal board as a witness and to produce any relevant document in their possession;

b. direct a witness to answer, on oath or solemn affirmation, any relevant question posed to the witness; and

c. re-hear an appeal that was completed before the Effective Date.

23.  A judge of the Provincial Court of British Columbia, on application by the enrolment appeal board, may enforce a summons or direction under clause 22.

24.  An appellant or Party, or a witness appearing before the enrolment appeal board, may be represented by counsel or an agent.

25.  Subject to clauses 30 through 33, all decisions of the enrolment appeal board are final and binding.

26.  No action lies against the enrolment appeal board, or any member of the enrolment appeal board, for anything done or omitted to be done in good faith in the performance or intended performance of a duty under this chapter.

FUNDING

27.  Canada and British Columbia will provide to Tsawwassen First Nation an agreed amount of funding for the enrolment committee and the enrolment appeal board to carry out the functions referred to in clauses 9 through 22.

TRANSITION TO TSAWWASSEN GOVERNMENT

28.  The enrolment committee and the enrolment appeal board will be dissolved when they have rendered final decisions in respect of those applications or appeals commenced before the Effective Date.

29.  After the Effective Date, Tsawwassen First Nation will:

a. be responsible for an enrolment process and the administrative costs of that process;

b. maintain an enrolment register;

c. provide a copy of the enrolment register to Canada and British Columbia each year or as requested, without cost; and

d. provide information concerning enrolment to Canada and British Columbia as requested, without cost.

JUDICIAL REVIEW

30.  An applicant or a Party may apply to the Supreme Court of British Columbia to review a decision of the enrolment appeal board on the grounds that the enrolment appeal board:

a. acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

b. failed to observe procedural fairness;

c. erred in law; or

d. 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.

31.  On an application for judicial review under clause 30, the court may dismiss the application, set aside the decision, or refer the matter back to the enrolment appeal board for determination in accordance with any directions that the court considers appropriate.

32.  If the enrolment appeal board fails to hear or decide an appeal within a reasonable time, an applicant or Party may apply to the Supreme Court of British Columbia for an order directing the enrolment appeal board to hear or decide the appeal, in accordance with any directions that the court considers appropriate.

33.  An applicant or Party may apply for judicial review within 60 days of receiving notification of the decision of the enrolment appeal board or a longer time as determined by the court.