Chapter 3 - Eligibility and Enrollment
3.1.0 Definitions
In this chapter, the following definitions shall apply.
"Adopted Child" means a Person who, while a Minor, is adopted pursuant to
Law relating to adoption recognized in Canada or pursuant to aboriginal
customs.
"Descendant" means direct descendant by either maternal or paternal line,
notwithstanding any intervening adoption and independent of whether any
child of the line was born within or outside a marriage.
"Dispute Resolution Board" means the Board established pursuant to 26.5.0.
"Enrollment Commission" means the commission established pursuant to
3.6.0.
"Enrollment Committee" means a committee established pursuant to 3.5.0.
"Minor" means a Person who has not yet reached the age of majority as
determined from time to time by the Laws of the Yukon.
"Ordinarily Resident" means a Person who lived or has lived the majority of
his life in the Yukon. In making such determination, temporary absences from
the Yukon for reasons such as travel, education, medical treatment, military
service, or incarceration, shall be considered periods of residence provided
the Person was Ordinarily Resident prior to such temporary absences.
"Person" means a natural person.
3.2.0 Eligibility Criteria
3.2.1
Eligibility for enrollment under a Yukon First Nation Final Agreement shall be
determined by the process set out in this chapter.
3.2.2
A Person is eligible for enrollment as a Yukon Indian Person under one of the
Yukon First Nation Final Agreements if that Person is a Canadian citizen,
and:
3.2.2.1
establishes that he is of 25 percent or more Indian ancestry and was
Ordinarily Resident in the Yukon between January 1, 1800 and
January 1, 1940;
3.2.2.2
establishes that he is a Descendant of a Person living or deceased eligible under 3.2.2.1;
3.2.2.3
establishes that he is an Adopted Child of a Person living or deceased
eligible under 3.2.2.1 or 3.2.2.2; or
3.2.2.4
upon application within two years of the Effective Date of a Yukon First
Nation Final Agreement to the Enrollment Commission by that Yukon
First Nation, is determined by the Enrollment Commission in its
discretion, and upon consideration of all relevant circumstances, to
have a sufficient affiliation with that Yukon First Nation so as to justify
enrollment.
3.2.3
Notwithstanding the requirement for Canadian citizenship in 3.2.2, a Person
who is not a Canadian citizen is eligible for enrollment as a Yukon Indian
Person under one of the Yukon First Nation Final Agreements if that Person
meets one of the criteria set out in 3.2.2.1 to 3.2.2.4.
3.2.4
Enrollment of a Person under 3.2.3 shall not confer on that Person any rights
or benefits under the Indian Act, R.S.C. 1985, c. I-5, rights of entry into
Canada or of Canadian citizenship.
3.2.5
Any Person eligible for enrollment as a Yukon Indian Person pursuant to 3.2.2
or 3.2.3 is entitled to be enrolled under one, and no more than one, Yukon
First Nation Final Agreement.
3.2.6
Where a Person applying for enrollment is eligible for enrollment under more
than one Yukon First Nation Final Agreement, the Enrollment Commission
shall take into account the wishes of that Person and any affected Yukon First
Nation in deciding under which Yukon First Nation Final Agreement that
Person will be enrolled.
3.2.7
Membership in a Yukon Indian Band under the Indian Act, R.S.C. 1985, c. I-5
does not necessarily result in eligibility for enrollment under a Yukon First
Nation Final Agreement.
3.2.8
A Minor may apply on his own behalf to an Enrollment Committee for
enrollment under a Yukon First Nation Final Agreement.
3.3.0 Applications on behalf of Another Person
3.3.1
The Government, Yukon First Nations and Enrollment Committees shall work
together to ensure that adoptive parents or legal guardians of Minors eligible
for enrollment as a Yukon Indian Person under a Yukon First Nation Final
Agreement are made aware of the Minor's eligibility.
3.3.2
Any adult Person may apply to an Enrollment Committee to enroll a Minor
under a Yukon First Nation Final Agreement.
3.3.3
Any Person who, by order of a court, aboriginal custom in Canada or
pursuant to Legislation, has been vested with the authority to manage the
affairs of an adult incapable of managing his own affairs, may apply to an
Enrollment Committee to enroll that adult under a Yukon First Nation Final
Agreement.
3.4.0 Other Settlements
3.4.1
Subject to 3.4.2, a Person who is enrolled in any other aboriginal land claims
settlement in Canada shall not be enrolled as a Yukon Indian Person under
any Yukon First Nation Final Agreement.
3.4.2
Any Person who is enrolled as a Yukon Indian Person under a Yukon First
Nation Final Agreement and who is also enrolled under another aboriginal
land claims settlement in Canada, shall have 60 days to elect between the
two settlement agreements following notice in writing from a Yukon First
Nation or the Enrollment Commission. If that Person elects to remain
enrolled in the other settlement agreement, then that Person shall cease to be
enrolled under the Yukon First Nation Final Agreement.
3.4.3
A Person who is enrolled under another aboriginal land claims settlement in
Canada is entitled to apply to be enrolled under a Yukon First Nation Final
Agreement on the condition that, if accepted for enrollment, that Person shall
cease to be enrolled under that other settlement.
3.4.4
Notwithstanding 3.4.1 and 3.4.2, a Minor who is enrolled under any other
aboriginal land claims settlement in Canada, and who is eligible for enrollment
as a Yukon Indian Person, may elect to be enrolled as a Yukon Indian Person
provided such election takes place within two years of the Minor attaining the
age of majority, whereupon the Minor ceases to be enrolled under the other
settlement.
3.5.0 Enrollment Committees
3.5.1
Each Yukon First Nation shall establish an Enrollment Committee composed
of no more than five members of that Yukon First Nation. Each Yukon First
Nation shall notify the Enrollment Commission of the composition of its
Enrollment Committee and of any changes made in it from time to time.
3.5.2
A Yukon First Nation may join with one or more Yukon First Nations to
establish a joint Enrollment Committee to be composed of no more than five
members of those Yukon First Nations. The affected Yukon First Nations
shall notify the Enrollment Commission of the composition of the joint
Enrollment Committee and any changes made in it from time to time.
3.5.3
Each Enrollment Committee shall:
3.5.3.1
establish its own procedures;
3.5.3.2
publish its own procedures;
3.5.3.3
publicize and provide information in respect of the enrollment process
to members of the Yukon First Nation;
3.5.3.4
review, update and amend existing Yukon First Nation enrollment lists
of that Yukon First Nation;
3.5.3.5
supply application forms to any Person wishing to apply for enrollment
and to any Person wishing to make an application pursuant to 3.3.0;
3.5.3.6
decide promptly, upon receiving an application for enrollment, whether
such applicant is entitled to be enrolled in accordance with 3.2.0 or
3.4.0;
3.5.3.7
prepare an initial list of all Persons who, in its opinion, are entitled to be
enrolled in accordance with 3.2.0 or 3.4.0;
3.5.3.8
prepare a list of all applicants who have been refused inclusion on the
list of Persons prepared pursuant to 3.5.3.7;
3.5.3.9
provide to the Enrollment Commission the lists prepared pursuant to
3.5.3.7 and 3.5.3.8 together with relevant information and
documentation within a reasonable time period established by the
Enrollment Commission;
3.5.3.10
provide to the Enrollment Commission amendments to the lists
prepared pursuant to 3.5.3.7 and 3.5.3.8 within a reasonable time
period established by the Enrollment Commission;
3.5.3.11
notify promptly each applicant, in writing, of the Enrollment
Committee's decision respecting his application; and
3.5.3.12
forward to the Enrollment Commission applications which, in its
opinion, should be considered by another Enrollment Committee.
3.5.4
If a Yukon First Nation is not represented on an Enrollment Committee or
does not establish an Enrollment Committee within three months of a request
to do so from the Enrollment Commission, or an Enrollment Committee has
not carried out its responsibilities as set out in 3.5.3 within a reasonable time
period established by the Enrollment Commission, the Enrollment
Commission may exercise any or all of the responsibilities of the Enrollment
Committee.
3.5.5
The Enrollment Commission shall not exercise the responsibilities of an
Enrollment Committee unless the Enrollment Commission has attempted to
assist the Enrollment Committee in the performance of its responsibilities.
The Enrollment Commission shall relinquish such responsibilities when the
Enrollment Committee demonstrates to the reasonable satisfaction of the
Enrollment Commission that it is ready, willing and able to perform its
responsibilities.
3.5.6
The Enrollment Commission, in accordance with standards set by it, shall
reimburse each Enrollment Committee for its reasonable out-of-pocket
expenses incurred over the period of three years from the date of each
Enrollment Committee's inception. Each Enrollment Committee shall prepare
a budget and submit it for approval to the Enrollment Commission when
requested to do so by it.
3.5.7
Where an Enrollment Committee fails or neglects to make a decision in
respect of an application for enrollment within 120 days, then that application
shall be deemed to have been rejected and a right of appeal lies to the
Enrollment Commission.
3.6.0 Enrollment Commission
3.6.1
The Enrollment Commission was established by the parties to the Umbrella
Final Agreement on July 1, 1989.
3.6.2
Settlement Legislation shall:
3.6.2.1
give the Enrollment Commission and the Enrollment Committees the
powers required to carry out their responsibilities;
3.6.2.2
deem the Enrollment Commission to have had, as of July 1, 1989, the
jurisdiction, power and authority provided under the Umbrella Final
Agreement, other than those set out in 3.6.2.4;
3.6.2.3
provide for the enforcement after the effective date of Settlement
Legislation of any order or decision of the Enrollment Commission in a
like manner as an order of the Supreme Court of the Yukon; and
3.6.2.4
provide the Enrollment Commission with the power to direct and
compel the production of documents and the attendance of witnesses,
with the exception of Ministers of Government, as provided to a Board
of Inquiry under the Public Inquiries Act, R.S.Y. 1986, c. 137.
3.6.3
The Enrollment Commission shall be comprised of:
3.6.3.1
one Person nominated by the Council for Yukon Indians and an
alternate to act in the absence of the Person so nominated;
3.6.3.2
one Person nominated jointly by Canada and the Yukon and an
alternate to act in the absence of the Person so nominated; and
3.6.3.3
one Person and an alternate to act in the absence of that Person, each
nominated by the two members nominated under 3.6.3.1 and 3.6.3.2.
If the two members are unable to agree on a third member of the
Commission, or an alternate, then either may refer the matter of
appointment to the dispute resolution process under 26.3.0, or, in the
absence of that process, to the Supreme Court of the Yukon.
3.6.4
The Minister shall appoint all Persons nominated pursuant to 3.6.3. In the
event of a vacancy, the appropriate party shall promptly make a new
nomination, and the Minister shall appoint the new nominee.
3.6.5
The Enrollment Commission:
3.6.5.1
shall establish and publish its own procedures including procedures in
respect of appeals from decisions of Enrollment Committees;
3.6.5.2
shall only spend funds allocated to it for the carrying out of its functions
and responsibilities in accordance with its approved budget;
3.6.5.3
shall assist Enrollment Committees in carrying out their responsibilities;
3.6.5.4
shall prepare and provide such information and forms as may be
necessary to facilitate enrollment through Enrollment Committees;
3.6.5.5
shall refer to the appropriate Enrollment Committee those applications
for enrollment which are submitted by Persons directly to the
Enrollment Commission and those applications which appear to have
been made to an inappropriate Enrollment Committee;
3.6.5.6
shall prepare, certify, publish and advertise the initial official enrollment
list for each Yukon First Nation;
3.6.5.7
shall enter on the initial official enrollment lists the name of each
Person who, in the opinion of an Enrollment Committee, is entitled to
be enrolled as a Yukon Indian Person, provided the Enrollment
Commission is satisfied all Persons named are in fact eligible for
enrollment in accordance with 3.2.0 or 3.4.0;
3.6.5.8
where it appears to the Enrollment Commission that an applicant
recommended by an Enrollment Committee pursuant to 3.5.3.7 is not
entitled to be enrolled, the Commission may, on its own motion,
institute an appeal pursuant to 3.6.5.9 in respect of that Person's
application;
3.6.5.9
shall hear and determine any appeal initiated on its own motion or by
an applicant, a Yukon First Nation, the Council for Yukon Indians or
Government, arising from any decision of an Enrollment Committee
with respect to enrollment and to provide such remedy or remedies as
the Enrollment Commission in its absolute discretion deems
appropriate;
3.6.5.10
shall hear and determine matters before it in accordance with the
principles of natural justice; and
3.6.5.11
shall notify the applicant, Government, Council for Yukon Indians, any
affected Yukon First Nation and affected Enrollment Committees of
additions to or deletions from official enrollment lists as a result of
decisions made by the Enrollment Commission pursuant to 3.6.5.8 and
3.6.5.9.
3.6.6
The Enrollment Commission shall be an independent body, operating at arm's
length from the parties to the Settlement Agreements.
3.6.7
Where the Enrollment Commission fails or neglects to make a decision in
respect of an appeal pursuant to 3.6.5.9, then that appeal shall be deemed to
have been rejected and a right of appeal shall lie to the Supreme Court of the
Yukon. The Supreme Court may give direction to the Enrollment Commission
and refer the matter back to the Enrollment Commission.
3.6.8
All Persons on the official enrollment list for a Yukon First Nation as of the
Effective Date of that Yukon First Nation Final Agreement shall be deemed to
be enrolled under that Yukon First Nation Final Agreement, subject to 3.7.0,
without further action being required.
3.7.0 Judicial Review
3.7.1
All decisions and orders of the Enrollment Commission shall be final and
binding and not subject to appeal or judicial review in any court provided,
however, that an application for judicial review by an applicant, a Yukon First
Nation, the Council for Yukon Indians or Government, shall lie to the Supreme
Court of the Yukon upon the grounds that the Enrollment Commission:
3.7.1.1
failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
3.7.1.2
erred in law in making its decision or order, whether or not the error
appears on the face of the record; or
3.7.1.3
based its decision or order on an erroneous finding of fact that it made
in a perverse or capricious manner or without regard for the material
before it.
3.7.2
The application for a judicial review by an applicant pursuant to 3.7.1 shall be
made:
3.7.2.1
in the case of a decision made prior to the Effective Date of the
affected Yukon First Nation's Final Agreement, within 60 days of that
Yukon First Nation's Final Agreement coming into effect; or
3.7.2.2
in the case of a decision made after the Effective Date of the affected
Yukon First Nation's Final Agreement, within 60 days of the decision
being made.
3.8.0 Budget
3.8.1
The Enrollment Commission shall prepare an annual budget in respect of its
operations and in respect of the operations of the Enrollment Committees and
shall submit the proposed annual budget to Canada for approval. Canada
shall pay the approved expenses.
3.9.0 Dissolution of Enrollment Committees
3.9.1
The responsibilities of each Yukon First Nation's Enrollment Committee shall
cease, except with respect to matters pending before it, two years after the
day on which the Yukon First Nation's Final Agreement comes into effect.
Upon dissolution, each Enrollment Committee shall deliver all its documents
and records to the affected Yukon First Nation.
3.9.2
A joint Enrollment Committee shall deliver to a Yukon First Nation documents
and records relating to applications for enrollment under that Yukon First
Nation's Final Agreement.
3.9.3
Upon dissolution of an Enrollment Committee the Yukon First Nation shall
have the powers and responsibilities to:
3.9.3.1
maintain, update and amend the official enrollment list for that Yukon
First Nation after the initial official enrollment list has been published by
the Enrollment Commission;
3.9.3.2
deliver to the Yukon the official enrollment list on each anniversary of
the dissolution of the Enrollment Committee;
3.9.3.3
decide promptly upon all applications received, and advise all Persons
in writing of the Enrollment Commission or the Dispute Resolution
Panel's disposition of their application;
3.9.3.4
supply application forms to any Person wishing to apply for enrollment;
3.9.3.5
establish its own procedures;
3.9.3.6
publish its own procedures; and
3.9.3.7
publicize and provide information in respect of the enrollment process
to members of the Yukon First Nation.
3.10.0 Continuation of Enrollment
3.10.1
After the dissolution of an Enrollment Committee, a Person seeking
enrollment as a Yukon Indian Person, and a Person making application
pursuant to 3.3.2 or 3.3.3 shall apply to the appropriate Yukon First Nation
which shall determine, according to this chapter, whether such Person or the
Person on whose behalf the application is being made, is entitled to be
enrolled under its Yukon First Nation Final Agreement.
3.10.2
If the Yukon First Nation rejects the application or fails or refuses to make a
decision within 120 days, then an appeal shall lie to either:
3.10.2.1
the Enrollment Commission, if it has not been dissolved pursuant to
3.10.4; or
3.10.2.2
a single arbitrator appointed by the chairperson of the Dispute
Resolution Board.
3.10.3
Upon a decision to enroll a Person under 3.10.1, the Yukon First Nation shall
provide written notice to Government. Such enrollment shall not come into
effect until 30 days following Government's receipt of such notice or, in the
event of a dispute, until a determination has been made pursuant to 3.11.0.
3.10.4
The responsibilities of the Enrollment Commission shall cease, except with
respect to matters pending before it, on the day two years after the Effective
Date of the last Yukon First Nation Final Agreement or 10 years after the
effective date of Settlement Legislation, whichever comes first. Upon
dissolution, the Enrollment Commission shall deliver all its documents and
records to the Dispute Resolution Board.
3.11.0 Dispute Resolution
3.11.1
The Dispute Resolution Board shall maintain the confidentiality of the
documents and records delivered to it by the Enrollment Commission
pursuant to 3.10.4.
3.11.2
Upon the dissolution of the Enrollment Commission, the Dispute Resolution
Board, in addition to its powers and duties under Chapter 26 - Dispute
Resolution, shall have the following powers and duties:
3.11.2.1
to establish and publish its own procedures, including procedures in
respect of appeals from decisions of a Yukon First Nation respecting
eligibility and enrollment under this chapter;
3.11.2.2
the chairperson of the Dispute Resolution Board shall appoint a single
arbitrator to hear and determine an appeal from any decision of a
Yukon First Nation with respect to enrollment and to provide such
remedy or remedies as the arbitrator in his discretion deems
appropriate;
3.11.2.3
to direct and compel the production of documents and the attendance
of witnesses with the exception of Ministers of Government, as
provided to a Board of Inquiry under the Public Inquiries Act, R.S.Y.
1986, c. 137;
3.11.2.4
to hear and determine matters before it arising under this chapter in
accordance with the principles of natural justice;
3.11.2.5
powers necessarily incidental to the discharge of the arbitrator's duties
in considering matters under this chapter;
3.11.2.6
to notify the applicant, Government, the Council for Yukon Indians and
the affected Yukon First Nations of additions to or deletions from
official enrollment lists as a result of decisions made by the arbitrator;
and
3.11.2.7
to carry out any other responsibilities assigned to the Enrollment
Commission under this chapter.
3.11.3
Any affected Yukon First Nation, Government, and any other affected Person
shall be entitled to be a party in respect of an appeal or application for judicial
review under this chapter.
3.11.4
Any decision or order of the arbitrator shall be enforceable in a like manner as
an order of the Supreme Court of the Yukon.
3.11.5
All decisions of the arbitrator shall be subject to judicial review in the same
manner as provided in 3.7.0.
3.12.0 Public Access
3.12.1
Any Person may examine the official enrollment list maintained by an
Enrollment Committee or Yukon First Nation during its usual business hours.
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