The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 2nd day of June, 2011
Ian D. Izard, Q.C., Law Clerk
CHAPTER 25 ELIGIBILITY AND ENROLMENT
25.1.1 An individual is eligible for enrolment under this Agreement if that individual:
a. is of Yale First Nation ancestry and has a demonstrated attachment to Yale First Nation;
b. was a member, or was entitled to be a member, of the Yale Band under the Indian Act as of the day before the Effective Date;
c. was adopted as a Child under laws recognized in Canada or by Yale First Nation custom by an individual who is eligible for enrolment under this Agreement;
d. has been accepted into the community under Yale First Nation custom; or
e. is a descendant of an individual who is eligible for enrolment under a, b, c or d.
25.1.2 In determining whether an individual has a demonstrated attachment under 25.1.1a the Enrolment Committee, or a body established under 25.7, will take into account all relevant factors, including:
a. the number and degree of ancestral connections between the individual and Yale First Nation;
b. present family connections between the individual and Yale First Nation;
c. the individual's ordinary place of residence;
d. cultural, linguistic, and spiritual ties between the individual and Yale First Nation; and
e. participation by the individual in the community activities, culture and traditions of Yale First Nation.
25.1.3 Enrolment under this Agreement will 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 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.
25.2.1 An individual may, in accordance with this Chapter:
a. apply to the Enrolment Committee, or a body established under 25.7, for enrolment under this Agreement;
b. appeal a decision of the Enrolment Committee to the Enrolment Appeal Board; and
c. seek judicial review of a decision of the Enrolment Appeal Board or a body established under 25.7,
on the individual's own behalf, or on behalf of a Child or an adult whose affairs the individual has legal authority to manage.
25.2.2 Each applicant has the burden of demonstrating that he or she meets the Eligibility Criteria.
25.3.1 Other than as provided below, an applicant who is a beneficiary of, or has applied for enrolment under, another treaty or land claims agreement in Canada will not at the same time be enrolled under this Agreement.
25.3.2 Upon application to be enrolled under this Agreement, an applicant must notify the Enrolment Committee or a body established under 25.7 if he or she is a beneficiary of, or has applied for enrolment under, another treaty or land claims agreement in Canada.
25.3.3 Subject to 25.3.4, an individual described in 25.3.1 may be enrolled if he or she meets the Eligibility Criteria.
25.3.4 An individual who has been enrolled under 25.3.3 will:
a. within 120 days after the Effective Date; or
b. where the decision to accept his or her application to be enrolled under 25.3.3 is made after the Effective Date, within 120 days of receiving written notification from the Enrolment Committee or a body established under 25.7 that he or she has been enrolled;
provide written evidence to a body established under 25.7 to demonstrate that he or she has ceased to be a beneficiary of, or has withdrawn his or her application for enrolment under, another treaty or land claims agreement in Canada.
25.3.5 If an individual enrolled under 25.3.3 fails to satisfy the requirements of 25.3.4, his or her name will be removed from the Enrolment Register.
25.3.6 An individual enrolled under 25.3.3 is not entitled to exercise any rights or receive any benefits under this Agreement until he or she has satisfied the requirements of 25.3.4.
25.4.1 For greater certainty, as provided in 2.10.1, after the Effective Date, upon becoming a Yale First Nation Member an individual ceases to be a member or a registered Indian of any Band.
26.4.2 An individual who was a member or a registered Indian of a Band other than the Yale Band will:
a. within 120 days after the Effective Date; or
b. where the decision to accept his or her application to be enrolled under 25.3.3 is made after the Effective Date, within 120 days of receiving written notification from the Enrolment Committee or a body established under 25.7 that he or she has been enrolled;
do all things necessary to request Canada to change his or her affiliation to Yale First Nation and to issue a new status card.
25.5.1 At the beginning of the Initial Enrolment Period, the Yale Band will establish an Enrolment Committee that will be responsible for the enrolment process during the Initial Enrolment Period and will be comprised of three representatives appointed by the Yale Band.
25.5.2 Yale First Nation will notify Canada and British Columbia of the members of the Enrolment Committee.
25.5.3 The Enrolment Committee will:
a. establish enrolment procedures and time limits;
b. take reasonable steps to notify individuals potentially eligible to be enrolled of the Eligibility Criteria and enrolment procedures;
c. publish its enrolment procedures, including a list of the documentation and information required of each applicant;
d. publish the Eligibility Criteria, provide information on the enrolment process and provide application forms to any individual who wishes to apply for enrolment;
e. during the Initial Enrolment Period, receive enrolment applications, consider each application, request further information if required, enrol applicants who meet the Eligibility Criteria, and maintain a record of those decisions;
f. establish and maintain an Enrolment Register;
g. notify in writing each applicant and the Parties of its decision and, if enrolment is refused, provide written reasons;
h. on request, provide information with respect to an applicant's enrolment application, in confidence, to the Parties and the Enrolment Appeal Board;
i. add names to, delete names from, or amend names on, the Enrolment Register in accordance with this Chapter and decisions of the Enrolment Appeal Board;
j. unless otherwise provided in this Chapter, keep information provided by and about applicants confidential;
k. provide a copy of the Enrolment Register to the Parties; and
l. provide a copy of the Enrolment Register, and any other relevant information requested, to the Ratification Committee in a timely manner.
25.5.4 During the Initial Enrolment Period, after a decision of the Enrolment Committee and before any appeal of that decision is commenced, an applicant may submit new information to the Enrolment Committee.
25.5.5 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.
25.5.6 If the Enrolment Committee fails to decide upon an application for enrolment within the time limit established in its enrolment procedures, the application is deemed to be refused and the failure to decide constitutes grounds for appeal to the Enrolment Appeal Board.
25.5.7 No action lies or may be commenced against the Enrolment Committee or any member of the Enrolment Committee for anything said or done or omitted to be said or done in good faith in the performance, or intended performance, of a duty or in the exercise of a power under this Chapter.
25.5.8 Subject to this Chapter, all decisions of the Enrolment Committee will be final and binding.
25.5.9 If an applicant applies to have his or her own name, or the name of a Child or an adult whose affairs he or she has the legal authority to manage, removed from the Enrolment Register, the Enrolment Committee will remove the name and will notify the applicant.
25.6.1 Yale First Nation and Canada will establish the Enrolment Appeal Board at a date agreed upon by the Parties.
25.6.2 Yale 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 a chairperson from among themselves.
25.6.3 A member of the Enrolment Committee may not also be a member of the Enrolment Appeal Board.
25.6.4 During the Initial Enrolment Period, an applicant or a Party may appeal by written notice to the Enrolment Appeal Board:
a. any decision of the Enrolment Committee made under 25.5.3e or 25.5.5; and
b. any application that is deemed to be refused under 25.5.6.
25.6.5 The Enrolment Appeal Board will:
a. establish and publish its own procedures and time limits;
b. hear and determine any appeal brought under 25.6.4 and decide whether the applicant will be enrolled;
c. 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;
d. provide written reasons for its decision to the applicant, the Enrolment Committee and the Parties; and
e. maintain a record of its decisions and communicate them to the Enrolment Committee as required.
25.6.6 As of the Effective Date, the Enrolment Appeal Board may:
a. by summons 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. direct a witness to answer on oath or solemn affirmation any relevant question posed to the witness.
25.6.7 If a person fails to comply with a summons or direction of the Enrolment Appeal Board made under 25.6.6, on application by the Enrolment Appeal Board, a judge of the Provincial Court of British Columbia may enforce the summons or direction.
25.6.8 Any applicant, Party or witness appearing before the Enrolment Appeal Board may be represented by counsel or an agent.
25.6.9 No action lies or may be commenced against the Enrolment Appeal Board or any member of the Enrolment Appeal Board for anything said or done or omitted to be said or done in good faith in the performance, or intended performance, of a duty or in the exercise of a power under this Chapter.
25.6.10 Subject to 25.8, all decisions of the Enrolment Appeal Board will be final and binding.
25.7.1 The Enrolment Committee and the Enrolment Appeal Board will be dissolved when they have rendered final decisions with respect to those applications or appeals commenced during the Initial Enrolment Period.
25.7.2 On dissolution, the Enrolment Committee and Enrolment Appeal Board will provide their records to Yale First Nation and to Canada or British Columbia upon request.
25.7.3 After the Initial Enrolment Period, Yale First Nation will:
a. be responsible for the enrolment process, including the application of the Eligibility Criteria;
b. maintain the Enrolment Register;
c. provide a copy of the Enrolment Register to Canada and British Columbia each year or as otherwise requested by Canada or British Columbia; and
d. provide information respecting enrolment to Canada or British Columbia upon request.
25.8.1 An applicant or a Party may apply to the Supreme Court of British Columbia for judicial review of a decision of the Enrolment Appeal Board, or any body established by Yale First Nation to undertake responsibilities provided under 25.7, on the grounds that the Enrolment Appeal Board or body:
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.
25.8.2 On an application for judicial review under 25.8.1 the Supreme Court of British Columbia may dismiss the application, set aside the decision or refer the matter back to the Enrolment Appeal Board, or a body established under 25.7, for determination in accordance with such directions as the court considers appropriate.
25.8.3 If the Enrolment Appeal Board, or a body established under 25.7, 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 body to hear or decide the appeal in accordance with such directions as the court considers appropriate.
25.8.4 An application for judicial review under 25.8.1 must be brought within 60 days of notification of the decision of the Enrolment Appeal Board or any body established under 25.7.
25.8.5 Notwithstanding 25.8.4, the court may extend the time for making an application for judicial review on terms the court considers proper.
25.9.1 Canada and British Columbia will provide to Yale First Nation an agreed amount of funding for the Enrolment Committee and the Enrolment Appeal Board to carry out the functions with respect to those applications or appeals commenced during the Initial Enrolment Period.
25.9.2 The Enrolment Committee and the Enrolment Appeal Board will operate within their approved budgets.
25.9.3 After the Initial Enrolment Period, Yale First Nation will bear the administrative costs associated with enrolment.