Yale first nation final agreement act

Assented to June 2, 2011

Preamble

WHEREAS the recognition and reconciliation of the prior presence of Aboriginal peoples and the assertion of sovereignty by the Crown is of significant social and economic importance to all British Columbians;

AND WHEREAS Canadian courts have stated that this reconciliation is best achieved through negotiation and agreement, rather than through litigation;

AND WHEREAS, in order to achieve this reconciliation, representatives of the Yale First Nation, Canada and British Columbia have negotiated the Yale First Nation Final Agreement in a process facilitated by the British Columbia Treaty Commission;

AND WHEREAS British Columbia is building a New Relationship with First Nations and working to close the social and economic gaps that exist between Aboriginal and non-Aboriginal people;

AND WHEREAS the Yale First Nation Final Agreement embodies the principles of this New Relationship, including mutual respect, recognition and reconciliation of Aboriginal rights and title;

AND WHEREAS the Yale First Nation Final Agreement requires that British Columbia enact legislation to give effect to the Yale First Nation Final Agreement;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Not in force

1-3 [Not in force.]

Authorization to sign Yale First Nation Final Agreement

4 The Lieutenant Governor in Council may authorize a member of the Executive Council to sign the Yale First Nation Final Agreement.

Not in force

5-10 [Not in force.]

Authorization to enter into agreements

11 The Lieutenant Governor in Council may authorize a member of the Executive Council to enter into, on behalf of Her Majesty the Queen in right of British Columbia, an agreement that is contemplated by the Yale First Nation Final Agreement.

Tax treatment agreement

12 (1)-(2) [Not in force.]

(3) The minister charged with the administration of the Financial Administration Act is authorized to enter into the agreement referred to in sections 21.6.1 and 21.6.2 of Chapter 21 of the Yale First Nation Final Agreement, or an agreement amending the tax treatment agreement, and may sign the agreement or amending agreement before or after it has been approved by the Lieutenant Governor in Council.

Harvest agreement

13 (1) [Not in force.]

(2) The minister charged with the administration of the Fisheries Act is authorized to enter into the harvest agreement, and an agreement amending the harvest agreement in accordance with the terms of the harvest agreement, on behalf of Her Majesty the Queen in right of British Columbia.

Not in force

14-16 [Not in force.]

Retroactive effect of Chapters 25 and 26

17 (1) For the purposes of determining the eligibility of individuals for enrolment under the Yale First Nation Final Agreement, enrolling individuals under the Yale First Nation Final Agreement and ratifying that agreement by the Yale First Nation,

(a) Chapters 25 [Eligibility and Enrolment] and 26 [Ratification] of that agreement are conclusively deemed to have come into force on February 5, 2010 and are retroactive to the extent necessary to give them force and effect on and after that date,

(b) all things done that would have been validly done if Chapters 25 and 26 of the Yale First Nation Final Agreement had been in force on February 5, 2010 are conclusively deemed to have been validly done, and

(c) a person, committee or board is conclusively deemed to have had since February 5, 2010 the powers, privileges and immunities the person, committee or board would have had if Chapters 25 and 26 of the Yale First Nation Final Agreement had been in force on February 5, 2010.

(2) Each of the following bodies, despite the Personal Information Protection Act, is conclusively deemed to have had, on and after February 5, 2010, lawful authority to collect, use and disclose personal information as necessary for determining the eligibility of individuals for enrolment under the Yale First Nation Final Agreement, enrolling individuals under the Yale First Nation Final Agreement and ratifying that agreement by the Yale First Nation, all in accordance with the processes required by that agreement:

(a) the Enrolment Committee established under section 25.5.1 of Chapter 25 of the Yale First Nation Final Agreement;

(b) the Enrolment Appeal Board established under section 25.6.1 of Chapter 25 of the Yale First Nation Final Agreement;

(c) the Ratification Committee established under section 26.5.1 of Chapter 26 of the Yale First Nation Final Agreement.

(3) A body referred to in subsection (2) must comply with section 35 of the Personal Information Protection Act in relation to the personal information referred to in subsection (2) of this section as if the body were an organization as defined in that Act.

(4) This section must not be construed as lacking retroactive effect in relation to any matter because it makes no specific reference to that matter.

Not in force

18-19 [Not in force.]

Consequential and Related Amendments

[Note: See Table of Legislative Changes for the status of sections 20 to 69.]

Commencement

70 The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

PREAMBLE

CHAPTERS 1 to 24

CHAPTER 25 ELIGIBILITY AND ENROLMENT

25.1 ELIGIBILITY CRITERIA

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 APPLICATIONS FOR ENROLMENT

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 OTHER LAND CLAIMS AGREEMENTS

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 MEMBERSHIP IN A BAND OTHER THAN THE YALE BAND

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 ENROLMENT COMMITTEE

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 ENROLMENT APPEAL BOARD

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 ENROLMENT AFTER THE INITIAL ENROLMENT PERIOD

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 JUDICIAL REVIEW

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 COSTS

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.

CHAPTER 26 RATIFICATION

26.1 GENERAL

26.1.1 This Agreement is legally binding once ratified by all of the Parties in accordance with this Chapter.

26.1.2 This Agreement will be submitted to the Parties for ratification as set out in this Chapter after it has been initialled by chief negotiators for the Parties.

26.2 RATIFICATION OF YALE FIRST NATION CONSTITUTION

26.2.1 Ratification of the Yale First Nation Constitution requires:

a. that Eligible Voters have a reasonable opportunity to review the Yale First Nation Constitution;

b. a vote by way of a secret ballot that is conducted by the Ratification Committee in accordance with 26.4 and 26.5.2; and

c. that at least fifty percent plus one of individuals on the List of Eligible Voters vote in favour of the Yale First Nation Constitution.

26.2.2 Once ratified, the Yale First Nation Constitution will come into force on the Effective Date.

26.3 RATIFICATION OF THIS AGREEMENT BY YALE FIRST NATION

26.3.1 Ratification of this Agreement by Yale First Nation requires:

a. that Eligible Voters have a reasonable opportunity to review this Agreement;

b. a vote by way of a secret ballot that is conducted by the Ratification Committee in accordance with 26.4 and 26.5.2;

c. that at least fifty percent plus one of individuals on the List of Eligible Voters vote in favour of this Agreement;

d. ratification of the Yale First Nation Constitution under 26.2.1; and

e. that this Agreement be signed by the authorized representative of Yale First Nation.

26.4 ELIGIBLE VOTERS

26.4.1 An individual is eligible to vote if:

a. he or she is a Yale First Nation Member;

b. he or she is at least 18 years of age on the last day of voting; and

c. his or her name is included on the List of Eligible Voters.

26.4.2 Notwithstanding 26.4.1, an individual whose name is not included on the List of Eligible Voters is eligible to vote if he or she:

a. provides the voting officer with a completed enrolment application form or evidence satisfactory to the voting officer that the individual has submitted a completed enrolment application form to the Enrolment Committee; and

b. provides the voting officer with evidence satisfactory to the voting officer that the individual meets the requirement in 26.4.1b.

26.4.3 If the Enrolment Committee notifies the Ratification Committee that an individual referred to in 26.4.2 meets the Eligibility Criteria:

a. the name of the individual will be added to the List of Eligible Voters; and

b. the ballot of the individual will be tabulated for the purposes of the votes under 26.2.1b and 26.3.1b.

26.5 RATIFICATION COMMITTEE

26.5.1 The Parties will establish a Ratification Committee, consisting of one representative appointed by each Party, to be responsible for the Yale First Nation processes for ratifying the Yale First Nation Constitution and this Agreement as set out in this Chapter.

26.5.2 The Ratification Committee will:

a. ensure that Yale First Nation has provided Eligible Voters a reasonable opportunity to review the Yale First Nation Constitution and this Agreement;

b. establish and publish its procedures;

c. set its time limits;

d. at least 30 days before the first day of voting, prepare and publish a List of Eligible Voters based on the Enrolment Register provided by the Enrolment Committee under 25.5.3 by determining whether each individual on the register is eligible to vote under 26.4.1b; and

e. update the List of Eligible Voters by:

i. at any time on or before the last day of voting, adding to the List of Eligible Voters the name of each individual provided by the Enrolment Committee under 25.5.3 whom the Ratification Committee determines to be eligible to vote under 26.4.1b;

ii. adding to the List of Eligible Voters the name of each individual provided by the Enrolment Committee under 26.4.3;

iii. removing from the List of Eligible Voters the name of each individual who died on or before the last day of voting without having voted;

iv. removing from the List of Eligible Voters the name of each individual who did not vote and who provides to the Ratification Committee, within four days of the last day of voting, certification by a qualified medical practitioner that the individual was physically or mentally incapacitated to the point that he or she could not have voted on the dates set for voting; and

v. removing from the List of Eligible Voters the name of each individual who has applied, or on whose behalf application has been made, by the close of polls on the last day of voting, to have his or her name removed from the Enrolment Register under 25.5.9, provided the individual has not already voted;

f. after updating the List of Eligible Voters in accordance with 26.5.2e, prepare and publish a final List of Eligible Voters for each of the votes;

g. approve the form and content of the ballots;

h. authorize and provide general direction to voting officers to be employed in the conduct of the votes;

i. establish polling stations;

j. conduct the votes on the dates established by the Ratification Committee;

k. ensure that information about the dates set for voting and location of the polling stations be made publicly available;

l. tabulate the results of the votes;

m. provide the Parties with the result of the votes;

n. publish the result of the vote to ratify this Agreement; and

o. prepare and provide to the Parties a written report on the outcome of the vote to ratify this Agreement within 90 days of the last day of voting.

26.5.3 For greater certainty, the Ratification Committee may conduct the votes to ratify the Yale First Nation Constitution and this Agreement on separate dates.

26.6 RATIFICATION BY BRITISH COLUMBIA

26.6.1 Ratification of this Agreement by British Columbia requires:

a. that this Agreement be signed by a Minister authorized to do so; and

b. the coming into force of Provincial Settlement Legislation.

26.7 RATIFICATION BY CANADA

26.7.1 Ratification of this Agreement by Canada requires:

a. that this Agreement be signed by a Minister authorized to do so by the federal Cabinet; and

b. the coming into force of Federal Settlement Legislation.

26.8 CHANGES TO AGREEMENT PRIOR TO EFFECTIVE DATE

26.8.1 Before the Parties sign this Agreement the chief negotiators for the Parties may agree to make minor changes to this Agreement.

26.8.2 Before the Effective Date, the chief negotiators for the Parties may agree to correct any editing, grammatical or typographical errors found in this Agreement, and the corrections may be incorporated in the final printing of this Agreement after the Effective Date.

26.9 COSTS

26.9.1 Canada and British Columbia will provide an amount of funding agreed upon by the Parties for the Ratification Committee to carry out the duties and responsibilities set out in this Chapter.

CHAPTER 27

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