NISGA'A FINAL AGREEMENT |
ELIGIBILITY
AND ENROLMENT |
CHAPTER 20
ELIGIBILITY AND ENROLMENT
ELIGIBILITY CRITERIA
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An individual is eligible to be enrolled under
this Agreement if that individual is:
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of Nisga’a ancestry and their mother
was born into one of the Nisga’a tribes;
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a descendant of an individual described in
subparagraphs 1(a) or 1(c);
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an adopted child of an individual described
in subparagraphs 1(a) or 1(b); or
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an aboriginal individual who is married to
someone described in subparagraphs 1(a), (b), or (c) and has been adopted
by one of the four Nisga’a tribes in accordance with Ayuukhl
Nisga’a, that is, the individual has been accepted by a Nisga’a
tribe, as a member of that tribe, in the presence of witnesses from the
other Nisga’a tribes at a settlement or stone moving feast.
-
Enrolment under this Agreement does not:
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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
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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.
OTHER LAND CLAIMS AGREEMENTS
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An individual who is enrolled under another
land claims agreement in Canada may not at the same time be enrolled under
this Agreement.
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An individual enrolled under another land
claims agreement in Canada may apply to enrol under this Agreement, but
if their application succeeds that individual must withdraw from enrolment
under the other land claims agreement.
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If the Enrolment Committee determines that
an individual who is enrolled under another land claims agreement in Canada
meets the eligibility criteria, the individual will be conditionally enrolled,
and the individual’s enrolment will be effective when the individual ceases
to be enrolled under the other land claims agreement.
-
If an individual who has been conditionally
enrolled does not, within 60 days after receiving written notification
by the Enrolment Committee, demonstrate that they have ceased to be enrolled
under the other land claims agreement, the Enrolment Committee will remove
that individual’s name from the enrolment register.
APPLICANTS
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An individual may:
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apply to the Enrolment Committee for enrolment;
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appeal a decision of the Enrolment Committee
to the Enrolment Appeal Board; or
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seek judicial review of a decision of the
Enrolment Appeal Board
on their own behalf, or on behalf of a minor,
or an adult whose affairs they have the legal authority to manage.
ENROLMENT COMMITTEE
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The Enrolment Committee is a committee established
by the General Executive Board of the Nisga’a Tribal Council and
governed by enrolment rules adopted by the General Executive Board of the
Nisga’a Tribal Council.
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The Enrolment Committee comprises eight Nisga’a
individuals, as follows:
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two members from the Laxsgiik (Eagle)
tribe, as selected by that tribe;
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two members from the Gisk’aast
(Killer whale) tribe, as selected by that tribe;
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two members from the Ganada
(Raven) tribe, as selected by that tribe; and
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two members from the Laxgibuu (Wolf)
tribe, as selected by that tribe
each of whom must understand Ayuukhl
Nisga’a, Nisga’a culture, Nisga’a ancestry, Nisga’a
tribes, and Nisga’a community institutions, and must reside in a
Nisga’a Village.
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During the initial enrolment period, the Nisga’a
Tribal Council or the Nisga’a Nation, as the case may be, will notify
Canada and British Columbia of the names of the individuals appointed to
the Enrolment Committee.
-
During the initial enrolment period, the Enrolment
Committee will:
-
consider each application and:
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enrol each applicant who demonstrates that
they meet the eligibility criteria, and
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refuse to enrol each applicant who does not
demonstrate that they meet the eligibility criteria;
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establish and maintain, as a public document,
an enrolment register containing the name of each individual who is enrolled;
-
take reasonable steps to publish the enrolment
rules and the eligibility criteria;
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provide an application form to any individual
who wishes to apply for enrolment;
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provide written notification to each applicant
of its decision in respect of their application, and if enrolment is refused,
include written reasons for that decision;
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provide a copy of the notification referred
to in subparagraph 11(e), including any reasons, to the Nisga’a
Tribal Council or the Nisga’a Nation, as the case may be, and to
Canada;
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upon request, provide in confidence a Party
or the Enrolment Appeal Board with information in respect of an individual's
enrolment application;
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add names to, or delete names from, the enrolment
register in accordance with this Chapter;
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subject to this Chapter, keep information
provided by and about applicants confidential; and
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provide a copy of the enrolment register to
the Parties each year and at other times on request.
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In addition to the functions set out in paragraph
11, before the completion of the referendum in respect of this Agreement
under paragraph 2 of the Ratification Chapter, the Enrolment Committee
will:
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provide the Ratification Committee with the
name of each individual who is enrolled, and any other information requested
by the Ratification Committee; and
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if the Enrolment Committee forms the opinion
that an applicant will be refused enrolment, provide the applicant with
a reasonable opportunity to present further information or representations,
in accordance with the enrolment rules.
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Each applicant has the burden of proving to
the Enrolment Committee that they meet the eligibility criteria.
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Subject to this Chapter, all decisions of
the Enrolment Committee are final and binding.
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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.
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If the Enrolment Committee does not make a
decision in respect of an application for enrolment within the time established
in the enrolment rules, the application will be deemed to be refused.
APPLICATION TO REMOVE APPLICANTS FROM ENROLMENT
REGISTER
-
If a Nisga’a participant, or an individual
having legal authority to manage the affairs of a Nisga’a participant,
applies to have the Nisga’a participant’s name removed from the
enrolment register, the Enrolment Committee will remove the Nisga’a
participant’s name and will notify the individual who made that application.
ENROLMENT APPEAL BOARD
Appeals
-
An applicant, a Party, or a Nisga’a
Village may appeal to the Enrolment Appeal Board any decision of the Enrolment
Committee made under subparagraph 11(a) or paragraph 15.
Establishment of Enrolment Appeal Board
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On the effective date, the Nisga’a
Nation and Canada will establish the Enrolment Appeal Board consisting
of three members. The Nisga’a Nation and Canada will each appoint
one member and will jointly appoint a chairperson.
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The Enrolment Appeal Board will:
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establish its own procedures and time limits;
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hear and determine each appeal brought under
paragraph 18 and decide whether the applicant will be enrolled;
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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; and
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provide written reasons for its decision to
the appellant, the applicant and the Parties.
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The Enrolment Appeal Board:
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by summons, may require any individual to
appear before the Enrolment Appeal Board as a witness and produce any relevant
document in their possession; and
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may direct a witness to answer on oath or
solemn affirmation questions posed to the witness.
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A judge of the Supreme Court of British Columbia,
on application by the Enrolment Appeal Board, may enforce a summons or
direction made under paragraph 21.
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An applicant, a Party, a Nisga’a Village
or a witness appearing before the Enrolment Appeal Board may be represented
by counsel or agent.
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No action lies or may be instituted 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
or intended exercise of a power under this Chapter.
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Subject to paragraphs 26 to 29, all decisions
of the Enrolment Appeal Board are final and binding.
JUDICIAL REVIEW
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An applicant, a Party, or a Nisga’a
Village may apply to the Supreme Court of British Columbia to review and
set aside a decision of the Enrolment Appeal Board, on the grounds that
the Enrolment Appeal Board 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.
-
On an application for judicial review, the
Court may either dismiss the application or set aside the decision and
refer the matter back to the Enrolment Appeal Board for determination in
accordance with any directions that the Court considers appropriate.
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If the Enrolment Appeal Board fails to hear
or decide an appeal within a reasonable time, an applicant, a Party, or
a Nisga’a Village 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.
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An applicant, a Party, or a Nisga’a
Village may apply for judicial review within 60 days of receiving notification
of the decision of the Enrolment Appeal Board or a longer time determined
by the Court.
FUNDING
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During the initial enrolment period, Canada
and British Columbia will pay the costs of the Enrolment Committee and
the Enrolment Appeal Board as set out in the "Eligibility and Enrolment
Funding Agreement for a Nisga’a Final Agreement" dated October 23,
1997.
DISSOLUTION OF ENROLMENT COMMITTEE AND
ENROLMENT APPEAL BOARD
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The Enrolment Committee and the Enrolment
Appeal Board will be dissolved when they have made a decision in respect
of every application or appeal made or commenced before the end of their
respective initial enrolment period.
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On dissolution, the Enrolment Committee and
Enrolment Appeal Board will provide their records to Nisga’a Lisims
Government.
NISGA’A NATION RESPONSIBILITIES
FOR ENROLMENT
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Subject to the funding agreement referred
to in paragraph 30, after the initial enrolment period the Nisga’a
Nation will:
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be responsible for an enrolment process and
the administrative costs of that process;
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maintain the enrolment register;
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provide a copy of the enrolment register to
Canada and British Columbia each year or as they request; and
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provide information concerning enrolment to
Canada and British Columbia as they request.
CHAPTERS:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
APPENDICES:
A
B
C
D
E
F
G
H
I
J
K
L
M
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