NISGA'A FINAL AGREEMENT |
FISHERIES |
CHAPTER 8
FISHERIES
GENERAL
Nisga’a Fish Entitlements
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Nisga’a citizens have the right to
harvest fish and aquatic plants in accordance with this Agreement, subject
to:
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measures that are necessary for conservation;
and
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legislation enacted for the purposes of public
health or public safety.
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Notwithstanding that Nisga’a fish entitlements
are treaty rights, a Nisga’a fish allocation that is set out as
a percentage of the total allowable catch has the same priority in fisheries
management decisions as the remainder of the total allowable catch of that
species harvested in recreational and commercial fisheries.
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This Agreement is not intended to alter federal
and provincial laws of general application in respect of property in fish
or aquatic plants.
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Nisga’a fish entitlements are held
by the Nisga’a Nation.
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The Nisga’a Nation may not dispose
of Nisga’a fish entitlements.
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Nisga’a Lisims Government may authorize
persons other than Nisga’a citizens to harvest fish or aquatic plants
in Nisga’a fisheries, in accordance with this Agreement, the Harvest
Agreement and Nisga’a annual fishing plans. This authority is not
intended to alter the application of federal and provincial laws of general
application in respect of foreign fishing vessels in Canadian waters.
Licences, Fees, Charges, and Royalties
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Canada and British Columbia will not require
the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions,
Nisga’a Corporations, Nisga’a citizens, or other persons
authorized by Nisga’a Lisims Government to harvest fish or aquatic
plants under this Agreement:
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to have federal or provincial licences; or
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to pay fees, charges, or royalties
in respect of the harvest for domestic
purposes of fish or aquatic plants under this Agreement. This paragraph
does not restrict Canada’s ability to require licences for the use and
possession of firearms under federal laws on the same basis as applies
to other aboriginal people of Canada.
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Persons who sell fish harvested under this
Agreement are subject to fees and charges applied to commercial harvesters
in respect of the sale of fish or aquatic plants except to the extent that
Nisga’a Lisims Government, a Nisga’a Institution, or a Nisga’a
Corporation funds or performs the activities for which those fees and charges
are levied.
Trade and Barter
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Subject to Nisga’a laws, Nisga’a
citizens have the right to trade or barter among themselves or with other
aboriginal people any fish and aquatic plants harvested in Nisga’a
fisheries.
Harvesting Under Other Laws and Agreements
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This Agreement does not preclude Nisga’a
Institutions, Nisga’a Corporations, or Nisga’a citizens from
harvesting fish and aquatic plants throughout Canada in accordance with:
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federal and provincial laws;
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any agreements that are in accordance with
laws of general application between the Nisga’a Nation, a Nisga’a
Village, a Nisga’a Institution, or a Nisga’a Corporation,
on the one hand, and other aboriginal people on the other; or
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any arrangements between other aboriginal
people and Canada or British Columbia.
SALMON
Nisga’a Salmon Allocations
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In every year in which it is necessary for
conservation, the Minister will determine a minimum escapement level for
one or more species of Nass salmon.
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The Minister will not permit any directed
harvests of a species of Nass salmon in any year if:
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there is a minimum escapement level
for that species of Nass salmon; and
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the number of that species of Nass salmon
returning to Canadian waters, less incidental harvests, is less than or
equal to the minimum escapement level for that species.
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In any year:
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if the Minister has not determined a minimum
escapement level for a species of Nass salmon; or
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if the number of a species of Nass salmon
returning to Canadian waters, less incidental harvests, is greater than
the minimum escapement level determined by the Minister for that species
the amount of that species that the Nisga’a
Nation is entitled to harvest will be determined in accordance with Schedule
A and paragraph 16.
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The amount of each species of Nass salmon
in the Nisga’a fish allocations set out in Schedule A varies with
the size of the total run of that species returning to Canadian waters
in each year, as set out in Schedule A.
Overages and Underages
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Following the fishing season in each year,
the Minister and Nisga’a Lisims Government will conduct an accounting
of that year’s harvest of Nass salmon, in accordance with Schedule B.
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If there is an overage or underage of a species
of Nass salmon in any year, the amount of that species of Nass salmon to
be harvested in Nisga’a fisheries will be adjusted in subsequent
years, in accordance with Schedule B.
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In every year the Minister will manage all
Canadian fisheries that harvest Nass salmon in order to minimize overharvests
of each species of Nass salmon.
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The Minister and Nisga’a Lisims Government
will endeavour to minimize any overages or underages in each year and to
minimize the accumulation of overages and underages in successive years.
Adjustment of Species Composition
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In any year the Minister and Nisga’a
Lisims Government may agree to adjust the species composition of the Nisga’a
harvest for that year in accordance with the system of equivalencies set
out in Schedule C.
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If a proposed Nisga’a annual fishing
plan includes an adjustment under paragraph 19 that will affect a species
or fishery under the management authority of the other Party, the Minister
and Nisga’a Lisims Government will consult with the other Party’s
representatives on the Joint Fisheries Management Committee, and will notify
those representatives of any in-season adjustments.
Harvest Agreement
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On the effective date, the Parties will enter
into a Harvest Agreement pursuant to paragraph 22. The Harvest Agreement
does not form part of this Agreement.
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The Harvest Agreement will:
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include Nisga’a fish allocations equivalent
to:
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13% of each year’s adjusted total allowable
catch for Nass sockeye salmon, and
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15% of each year’s adjusted total allowable
catch for Nass pink salmon;
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be for a term of 25 years and be replaceable
at the discretion of the Nisga’a Nation every 15 years for a further
25 years;
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include provisions for the harvest and disposition
of fish, determination of overages and underages, harvest monitoring, and
fisheries management that are consistent with the similar provisions set
out in this Agreement; and
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include a dispute resolution process and a
requirement for fair compensation if the Harvest Agreement is breached
by terminating or reducing the Nisga’a fish allocations pursuant
to subparagraph (a).
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The Harvest Agreement will be established
under federal and provincial settlement legislation.
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The Harvest Agreement is not intended to be
a treaty or land claims agreement, and it is not intended to recognize
or affirm aboriginal or treaty rights, within the meaning of sections 25
or 35 of the Constitution Act, 1982.
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The Minister will implement the Harvest Agreement
by:
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issuing licences to Nisga’a Lisims
Government; or
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other means under federal or provincial laws.
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Fisheries under the Harvest Agreement have
the same priority as commercial and recreational fisheries in fisheries
management decisions made by the Minister.
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Fish harvested under the Harvest Agreement
may be sold in accordance with the Harvest Agreement.
Harvest of Surplus Nass Salmon
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In any year, the Minister may determine whether
there is a surplus of a species of Nass salmon, and the size of that surplus.
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The Joint Fisheries Management Committee may:
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recommend to the Minister procedures for the
identification of a surplus and terms and conditions for the harvest of
the surplus; and
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provide advice to the Minister in respect
of the size of the surplus.
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The Minister may permit Nisga’a Lisims
Government to harvest some or all of the surplus Nass salmon on reaching
agreement with Nisga’a Lisims Government in respect of:
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the terms and conditions of the harvest; and
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whether all or part of the harvest will be
included in the determination of overages and underages.
Disposition of Salmon Harvests
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Subject to paragraph 33, the Nisga’a
Nation, and its agents, contractors, and licensees authorized by Nisga’a
Lisims Government, have the right to sell Nass salmon harvested under this
Agreement.
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For greater certainty, in accordance with
paragraph 13 of the General Provisions Chapter, federal and provincial
laws of general application pertaining to the sale of fish, in respect
of commercial transactions, health and safety, transport, inspection, processing,
packaging, storage, export, quality control, and labelling of fish, apply
to the sale of all Nass salmon harvested in Nisga’a fisheries.
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If, in any year, there are no directed harvests
in Canadian commercial or recreational fisheries of a species of Nass salmon,
sale of that species of Nass salmon harvested in directed harvests of that
species in that year’s Nisga’a fisheries will not be permitted.
ENHANCEMENT
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Nisga’a Lisims Government may conduct
enhancement initiatives for Nass salmon or Nass steelhead only with the
approval of the Minister. This approval will include provisions in respect
of the determination of surpluses resulting from an approved enhancement
initiative. The Joint Fisheries Management Committee may make recommendations
in respect of those initiatives and provisions.
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In any year, the portion of the return to
Canadian waters of chinook, coho, or chum salmon that can be identified
as resulting from approved Nisga’a enhancement initiatives in the
Nass Area will be excluded from the determination of the Nisga’a
fish allocations under paragraph 13 for that year. The Nisga’a fish
allocations of these fish are 21% of the chinook, 8% of the coho and 8%
of the chum salmon, subject to measures that are necessary for conservation
for non-enhanced Nass salmon and non-enhanced Nass steelhead stocks.
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The Nisga’a Nation has the right to
harvest surplus Nass salmon that result from an approved Nisga’a
enhancement initiative, in the same proportion as the Nisga’a contribution
to the total cost of the initiative. These harvests are not subject to
paragraph 16 and are in addition to the Nisga’a fish allocations
under paragraph 13 and 35 and the Harvest Agreement.
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Notwithstanding paragraphs 13, 16, 35, and
36, the Minister and Nisga’a Lisims Government may negotiate agreements
in respect of the Nisga’a harvests of Nass salmon or Nass steelhead
that result from Nisga’a enhancement initiatives.
STEELHEAD
General
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Subject to paragraph 43, Nisga’a fish
entitlements of Nass steelhead are for domestic purposes.
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The Parties, or any of them, may conduct studies
to determine the status, conservation requirements, and Canadian total
allowable catch of Nass steelhead stocks. The studies may include the determination
of:
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reliable estimates of sustainable harvest,
including the determination of escapement requirements and total allowable
catch;
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the productive capacity of fish habitat in
the Nass Area; and
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measures to improve Nass steelhead stocks
and plans to implement those measures.
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The Joint Fisheries Management Committee will
formulate plans for any studies to be conducted under paragraph 39 and
will provide recommendations to the Minister and Nisga’a Lisims
Government on the conduct of those studies.
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If a study conducted under paragraph 39 identifies
a conservation concern for a Nass steelhead stock, the Joint Fisheries
Management Committee will provide recommendations to the Minister and Nisga’a
Lisims Government on appropriate measures to address the concern.
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After considering studies conducted under
paragraphs 44 or 51, if it is necessary for conservation, the Minister
will establish an annual escapement goal for summer-run or winter-run Nass
steelhead stocks returning to Canadian waters below which no directed harvests
for that stock will be permitted.
Disposition of Steelhead Harvests
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Any sale of Nass steelhead harvested under
this Agreement will be in accordance with federal and provincial laws of
general application, and any Nisga’a law in respect of sale of fish.
Summer-run Steelhead
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British Columbia and the Nisga’a Nation
will negotiate and attempt to reach agreement about studies required to
determine an annual escapement goal for summer-run Nass steelhead. The
Minister will not permit any directed harvest of summer-run Nass steelhead
during those studies.
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If no annual escapement goal for summer-run
Nass steelhead is established under paragraph 42, subject to paragraph
43, Nisga’a citizens have the right to harvest summer-run Nass steelhead
for domestic purposes.
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If an annual escapement goal for summer-run
Nass steelhead is established under paragraph 42, Nisga’a citizens
have the right to harvest summer-run Nass steelhead under the Nisga’a
fish allocation set out in Schedule D.
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Subject to the Nisga’a fish allocation
of summer-run Nass steelhead set out in subparagraph 2(a) of Schedule D,
if the number of summer-run Nass steelhead returning to the Nass watershed
is less than the annual escapement goal, the Nisga’a Nation and
British Columbia will take measures to limit summer-run Nass steelhead
mortalities.
Winter-run Steelhead
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Before a Nisga’a fish allocation of
winter-run Nass steelhead is established under paragraph 49, subject to
paragraph 43, Nisga’a citizens have the right to harvest winter-run
Nass steelhead for domestic purposes.
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If an annual escapement goal for winter-run
Nass steelhead is established under paragraph 42, British Columbia and
the Nisga’a Nation may negotiate a Nisga’a fish allocation
of winter-run Nass steelhead. Any Nisga’a fish allocation established
under this paragraph will be added to Schedule D.
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If a Nisga’a fish allocation of winter-run
Nass steelhead is established under paragraph 49, Nisga’a citizens
have the right to harvest winter-run Nass steelhead under that Nisga’a
fish allocation.
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If the Minister determines that it is necessary
to suspend directed harvesting of winter-run Nass steelhead because of
a conservation concern about winter-run Nass steelhead, studies under paragraph
39 will be conducted. The Minister will not permit any directed harvest
of winter-run Nass steelhead during those studies.
NON-SALMON SPECIES AND AQUATIC PLANTS
Nisga’a Fish Entitlements of
Non-Salmon Species and Aquatic Plants
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Subject to paragraph 67, Nisga’a fish
entitlements to non-salmon species and aquatic plants are for domestic
purposes.
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Before a Nisga’a fish allocation of
a non-salmon species or an aquatic plant is established under this Agreement,
Nisga’a citizens have the right to harvest non-salmon species and
aquatic plants within the Nass Area for domestic purposes.
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Canada or British Columbia, in respect of
any non-salmon species or aquatic plant within their respective management
authority, or the Nisga’a Nation may propose the establishment of
a Nisga’a fish allocation that will be the Nisga’a fish entitlement
to that non-salmon species or aquatic plant.
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Unless otherwise agreed by the Nisga’a
Nation and Canada or British Columbia for non-salmon species or aquatic
plants, within their respective management authority, the Nisga’a
fish allocation of each non-salmon species or aquatic plant will be 125%
of the basic Nisga’a fish entitlement to that species.
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The basic Nisga’a fish entitlements
to non-salmon species and aquatic plants will be determined by taking into
account:
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current and past Nisga’a use for domestic
purposes;
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the impact of conservation requirements and
harvesting by others on Nisga’a use for domestic purposes;
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the biological status of the species;
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changes in Nisga’a fishing effort;
and
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other factors that the Nisga’a Nation
and Canada or British Columbia, as the case may be, agree are relevant.
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Before a Nisga’a fish allocation of
a non-salmon species or aquatic plant is established, the Nisga’a
Nation and Canada or British Columbia, for non-salmon species and aquatic
plants within their respective management authority, will:
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seek the advice of the Joint Fisheries Management
Committee on the determination of the basic Nisga’a fish entitlement
to that non-salmon species or aquatic plant; and
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conduct any studies they consider necessary
to determine the basic Nisga’a fish entitlement to that non-salmon
species or aquatic plant.
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As soon as practicable after the effective
date, the Nisga’a Nation and Canada or British Columbia, for non-salmon
species and aquatic plants within their respective management authority,
will negotiate and attempt to reach agreement on basic Nisga’a fish
entitlements to:
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dungeness, tanner, and king crab;
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halibut;
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prawns and shrimp;
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herring; and
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aquatic plants used in the herring roe-on-kelp
fishery.
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If the Nisga’a Nation and Canada or
British Columbia, for non-salmon species and aquatic plants within their
respective management authority, do not agree on the basic Nisga’a
fish entitlement to a non-salmon species or aquatic plant, that basic Nisga’a
fish entitlement will be finally determined by arbitration under the Dispute
Resolution Chapter.
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Any Nisga’a fish allocation of non-salmon
species or aquatic plants established under this Chapter will be set out
in Schedule E.
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If a Nisga’a fish allocation is established
for a non-salmon species or aquatic plant, Nisga’a citizens have
the right to harvest that non-salmon species or aquatic plant under that
Nisga’a fish allocation.
Oolichan
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The Nisga’a Nation, together with any
other persons who have aboriginal rights to harvest oolichan in the Nass
Area, has the right to harvest the total harvest of oolichan in the Nass
Area.
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If there are any agreements between the Nisga’a
Nation and other aboriginal people in respect of the harvesting of oolichan
in the Nass Area, Nisga’a harvests of those oolichan will be in
accordance with those agreements.
Intertidal Bivalves
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Nisga’a citizens have the right to
harvest, for domestic purposes, intertidal bivalves within those portions
of the Nass Area set out in Appendix I.
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The right to harvest intertidal bivalves set
out in paragraph 64 is the Nisga’a fish allocation of intertidal
bivalves.
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The Minister will not permit commercial harvesting
of intertidal bivalves within those portions of the Nass Area set out in
Appendix
I.
Disposition of Non-Salmon Species
and Aquatic Plants
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Any sale of non-salmon species and aquatic
plants harvested under Nisga’a fish entitlements will be in accordance
with federal and provincial laws of general application and any Nisga’a
law in respect of sale of fish or aquatic plants.
FISHERIES MANAGEMENT
Responsibilities of the Parties
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Subject to this Agreement, the Minister is
responsible for the management of fisheries and fish habitat.
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Nisga’a Lisims Government may make
laws that are in respect of the Nisga’a Nation’s rights and obligations
in respect of fish and aquatic plants under, and that are consistent with,
this Agreement and the Harvest Agreement and that are not inconsistent
with Nisga’a annual fishing plans including matters such as:
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distribution of the Nisga’a fish
entitlements under this Agreement and Nisga’a fish allocations under
the Harvest Agreement;
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authorization of persons other than Nisga’a
citizens to harvest fish or aquatic plants from the Nisga’a fish
entitlements under this Agreement and Nisga’a fish allocations under
the Harvest Agreement;
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the trade or barter of fish or aquatic plants
harvested under the Nisga’a fish entitlements under this Agreement
or the Nisga’a fish allocations under the Harvest Agreement;
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designation and documentation of fishing vessels;
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identification, in a manner compatible with
that required under federal and provincial laws of general application,
of fishing vessels and gear; and
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other matters agreed to by the Parties.
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Nisga’a Lisims Government will make
laws that are consistent with this Agreement and the Harvest Agreement
and that are not inconsistent with Nisga’a annual fishing plans:
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to establish and administer licensing requirements,
for the harvest of fish or aquatic plants under this Agreement and the
Harvest Agreement; and
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to require the designation and documentation
of persons who harvest fish or aquatic plants under this Agreement or the
Harvest Agreement.
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In the event of an inconsistency or conflict
between a Nisga’a law made under paragraphs 69 or 70 and a federal
or provincial law, the Nisga’a law will prevail to the extent of
the inconsistency or conflict.
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Nisga’a Lisims Government may make
laws in respect of sale, in accordance with this Agreement, of fish or
aquatic plants that are harvested under this Agreement or the Harvest Agreement.
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In the event of a conflict between a law made
under paragraph 72 and a federal or provincial law of general application,
the federal or provincial law will prevail to the extent of the conflict.
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Nisga’a Lisims Government will make
laws to require:
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that any fish harvested under this Agreement
or the Harvest Agreement that are transported outside Nisga’a Lands
for the purpose of trade or barter be identified as fish for trade or barter;
and
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Nisga’a citizens and the authorized
agents, contractors, and licensees of Nisga’a Lisims Government
to comply with Nisga’a annual fishing plans.
Nisga'a Fisheries Operational Guidelines
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The Parties will prepare and maintain a document
to be known as the "Nisga’a Fisheries Operational Guidelines" that
will set out the operational principles, procedures, and guidelines to
assist each of them, and the Joint Fisheries Management Committee, in carrying
out the provisions of this Chapter and the Harvest Agreement, including
the preparation and recommendation of Nisga’a annual fishing plans.
The Parties will amend the document as required as improved fisheries management
and stock assessment procedures are developed.
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The Nisga’a Fisheries Operational Guidelines:
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is not a part of this Agreement;
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is not intended to be a treaty or land claims
agreement, and it is not intended to recognize or affirm aboriginal or
treaty rights, within the meaning of sections 25 or 35 of the Constitution
Act, 1982; and
-
does not create legal obligations.
Management Structure
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On the effective date, the Parties will establish
the Joint Fisheries Management Committee to facilitate cooperative planning
and conduct of Nisga’a fisheries and enhancement initiatives in
the Nass Area. For this purpose, the Joint Fisheries Management Committee
will carry out the responsibilities assigned to it under this Agreement,
including:
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sharing information and plans for existing
and proposed fisheries that could affect or be affected by Nisga’a
fisheries;
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arranging for collection and exchange of data
required to carry out the provisions of this Chapter;
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providing advice concerning escapement goals;
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making recommendations to the Minister and
Nisga’a Lisims Government in respect of other conservation requirements
and the management of fish and aquatic plants;
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providing advice to the Parties in respect
of the determination of the basic Nisga’a fish entitlements to non-salmon
species and aquatic plants;
-
making recommendations to the Minister and
Nisga’a Lisims Government in respect of Nisga’a overages
and underages, in accordance with Schedule B;
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making recommendations to the Minister and
Nisga’a Lisims Government in respect of Nisga’a annual fishing
plans;
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making recommendations to the Minister and
Nisga’a Lisims Government in respect of studies for enhancement
and enhancement initiatives;
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making recommendations and providing advice
to the Minister in respect of surpluses;
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making recommendations to the trustees of
the Lisims Fisheries Conservation Trust in respect of projects, programs,
and activities to be funded with expenditures from that Trust;
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communicating with other management or advisory
bodies in respect of matters of mutual interest;
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providing advice on the coordination of the
Nisga’a annual fishing plans and proposed decisions of Nisga’a
Lisims Government in respect of methods, timing, and locations of harvests;
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providing advice in respect of any proposed
in-season adjustments to the Nisga’a annual fishing plans; and
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carrying out other responsibilities agreed
to by the Parties.
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The Minister will, as far in advance as practicable,
give notice to the Joint Fisheries Management Committee of any proposed
in-season adjustments to the Nisga’a annual fishing plan, and Nisga’a
Lisims Government will, as far in advance as practicable, give notice to
the Joint Fisheries Management Committee of any proposed decisions of Nisga’a
Lisims Government in respect of methods, timing, and locations of Nisga’a
harvests.
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The Joint Fisheries Management Committee will
have six members. The Nisga’a Nation, Canada, and British Columbia
will each appoint two members to represent them on the Joint Fisheries
Management Committee. The members of the Joint Fisheries Management Committee
representing the Nisga’a Nation and Canada are responsible for functions
in respect of fisheries managed by Canada. The members of the Joint Fisheries
Management Committee representing the Nisga’a Nation and British
Columbia are responsible for functions in respect of fisheries managed
by British Columbia.
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The Joint Fisheries Management Committee will
meet as often as necessary to carry out its responsibilities and will establish
its procedures, including procedures to carry out its responsibilities
relating to in-season fisheries management.
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Whenever possible, the Joint Fisheries Management
Committee will carry out its responsibilities by consensus of the members
responsible for each function. If there is no consensus, the Joint Fisheries
Management Committee will submit the recommendations or advice of each
Party’s representatives.
-
If it is impracticable for the Joint Fisheries
Management Committee to address an issue, each Party’s representatives
may submit their recommendations or advice.
Other Fisheries Management Bodies
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The Parties acknowledge that fisheries management
may involve the consideration of issues on a regional or watershed basis.
If Canada or British Columbia proposes to establish fisheries management
advisory bodies for areas that include any part of the Nass Area, Canada
or British Columbia will consult with the Nisga’a Nation in developing
those bodies and, if appropriate, will provide for the participation of
the Nisga’a Nation in those bodies.
Nisga’a Annual Fishing Plans
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Nisga’a annual fishing plans are plans
for the harvest, and if applicable the sale, of fish and aquatic plants
under this Agreement and the Harvest Agreement. The plans will include,
as appropriate, provisions in respect of:
-
the methods, timing, and locations of harvest;
-
monitoring of harvest;
-
enforcement;
-
stock assessment and enhancement;
-
the terms and conditions for the sale of fish
or aquatic plants;
-
authorized harvest by persons other than Nisga’a
citizens or Nisga’a Lisims Government;
-
in-season adjustments to any of the matters
referred to in this paragraph; and
-
other matters that the Parties agree to include
in the Nisga’a annual fishing plans.
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The monitoring provisions referred to in subparagraph
84(b) may include:
-
requirements for identification of persons
authorized to harvest;
-
processes for catch monitoring that may include
the establishment of designated landing sites and procedures for the transportation
of fish;
-
processes for reporting and accounting of
harvest and sale;
-
requirements for compiling and reporting data
to the Minister; and
-
processes for verification by the Minister
of the monitoring processes.
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Each year Nisga’a Lisims Government
will propose Nisga’a annual fishing plans that:
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are consistent with Nisga’a fish entitlements
under this Agreement and Nisga’a fish allocations under the Harvest
Agreement;
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set out any Nisga’a preferences for
methods, timing, and locations of harvest; and
-
take into account any management concerns
identified by the Minister or Nisga’a Lisims Government.
-
Nisga’a Lisims Government will forward
the proposed Nisga’a annual fishing plans to the Joint Fisheries
Management Committee on a timely basis.
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The Joint Fisheries Management Committee,
on a timely basis, will:
-
consider the proposed Nisga’a annual
fishing plans;
-
make any appropriate adjustments that are
necessary to integrate the Nisga’a annual fishing plans with other
fisheries conservation and harvesting plans, while giving effect to the
Nisga’a preferences in respect of methods, timing, and locations
of harvest, to the extent possible; and
-
make recommendations regarding the proposed
Nisga’a annual fishing plans to the Minister and Nisga’a
Lisims Government.
Review of Recommendations
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In considering recommendations of the Joint
Fisheries Management Committee, the Minister will take into account:
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conservation requirements and availability
of fisheries resources;
-
any Nisga’a preferences in respect
of methods, timing, and locations of harvests throughout the Nass Area,
set out in the recommendations;
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utilization of the fisheries resources for
the benefit of all Canadians;
-
efficient and effective harvesting of fisheries
resources;
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requirements for integration and efficient
management of all fisheries;
-
accepted scientific procedures for management
of fisheries resources; and
-
any other matters the Minister considers appropriate.
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After considering the recommendations of the
Joint Fisheries Management Committee under paragraph 89, the Minister,
on a timely basis, will:
-
approve, or vary and approve, the Nisga’a
annual fishing plans recommended by the Joint Fisheries Management Committee,
or its members, and provide written reasons for varying Nisga’a
annual fishing plans; and
-
approve or reject, in whole or in part, all
other recommendations made by the Joint Fisheries Management Committee,
or its members, and provide written reasons for rejecting, in whole or
in part, any of those other recommendations
but approved Nisga’a annual fishing
plans, and approvals and rejections of other recommendations, must be consistent
with this Agreement and the Harvest Agreement.
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If special circumstances make it impracticable
to receive advice from the Joint Fisheries Management Committee, the Minister:
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may make the decision or take the action that
the Minister considers necessary, without receiving advice from the Joint
Fisheries Management Committee; and
-
will advise the Joint Fisheries Management
Committee as soon as practicable of the special circumstances and the decision
made or action taken.
Federal and Provincial Laws of General
Application
-
In order to:
-
avoid duplication of requirements between
a Nisga’a annual fishing plan and federal and provincial laws of
general application; and
-
otherwise facilitate the management of Nisga’a
fisheries
if there is an inconsistency between
a Nisga’a annual fishing plan and a federal or provincial law of
general application, the Nisga’a annual fishing plan prevails to
the extent of the inconsistency.
Enforcement
-
The Nisga’a Nation may negotiate agreements
with Canada or British Columbia concerning enforcement of federal, provincial
or Nisga’a laws in respect of fisheries.
-
Persons who harvest or sell fish or aquatic
plants under this Agreement may be required to show proof of their authority
to do so.
-
Nisga’a laws made in accordance with
this Chapter may be enforced by persons authorized to enforce federal,
provincial, or Nisga’a laws in respect of fish and aquatic plants
in British Columbia.
LISIMS FISHERIES CONSERVATION TRUST
Establishment
-
As soon as practicable after the effective
date, Canada and the Nisga’a Nation will establish a trust to be
known as the Lisims Fisheries Conservation Trust, and will undertake all
actions required to register the trust as a charity for the purposes of
the Income Tax Act.
Appointment of Trustees
-
Canada and the Nisga’a Nation will
each appoint an equal number of trustees of the Lisims Fisheries Conservation
Trust, and Canada and the Nisga’a Nation will appoint one additional
trustee jointly.
Other Charities
-
In order to realize most effectively the objects
of the Lisims Fisheries Conservation Trust, Canada and the Nisga’a
Nation may establish other charities having substantially the same objects
as the Lisims Fisheries Conservation Trust, but they will have no obligation
to do so or to contribute any amount to any other charity.
Objects of Trust
-
The objects of the Lisims Fisheries Conservation
Trust will be to:
-
promote conservation and protection of Nass
Area fish species;
-
facilitate sustainable management of fisheries
for Nass Area species and stocks; and
-
promote and support Nisga’a participation
in the stewardship of Nass Area fisheries
for the benefit of all Canadians.
Trustees’ Responsibilities
-
The trustees will hold the Lisims Fisheries
Conservation Trust property in trust exclusively for the objects of the
Lisims Fisheries Conservation Trust and will administer the property in
accordance with the trust agreement establishing the trust.
-
In pursuance of the objects of the Lisims
Fisheries Conservation Trust, the trustees will review, sponsor, and fund,
projects, programs, and activities that the trustees in their discretion
determine serve some or all of the following objectives:
-
to evaluate specific and integrated conservation
needs and habitat requirements for all species of Nass Area fish;
-
to assess the status of Nass salmon and non-salmon
species;
-
to provide for appropriate salmon escapement
monitoring processes;
-
to facilitate the seasonal estimation of Nass
salmon and non-salmon species production including providing procedures
required to give effect to the Nisga’a fisheries;
-
to facilitate the discrimination of Nass salmon
stocks and to evaluate factors limiting the production of Nass salmon and
non-salmon species; and
-
to obtain gifts, donations, grants, and other
contributions to the Lisims Fisheries Conservation Trust.
-
In pursuance of the objects of the Lisims
Fisheries Conservation Trust, the trustees may, in their discretion, initiate
and direct projects, programs, and activities that the trustees, in their
discretion, determine serve some or all of the objectives set out in paragraph
101.
-
In reviewing, sponsoring, funding, initiating,
and directing, projects, programs, and activities under paragraphs 101
and 102, the trustees will give priority to the monitoring of Nass salmon
escapement, the monitoring of harvests in the Nisga’a fisheries
and the determination of factors limiting the production of Nass salmon
and non-salmon species.
-
In addition to any projects, programs, and
activities undertaken under paragraphs 101 and 102, the trustees may review,
sponsor, fund, initiate, or direct any other projects, programs, or activities
that the trustees, in their discretion, determine appropriate in pursuance
of the objects of the Lisims Fisheries Conservation Trust.
-
The trustees will not use the Lisims Fisheries
Conservation Trust property to support:
-
projects, programs, or activities that:
-
monitor fisheries, other than Nisga’a
fisheries, outside the Nass Area, or
-
collect stock assessment data for salmon stocks
originating from streams outside of the Nass Area, except as required to
assess Nass salmon stocks;
-
the establishment or operation of, or representation
on, the Joint Fisheries Management Committee;
-
salaries of full time employees of the Department
of Fisheries and Oceans; or
-
the purchase of equipment for the Department
of Fisheries and Oceans.
-
In pursuance of the objects of the Lisims
Fisheries Conservation Trust, the trustees will seek and consider recommendations
from the Joint Fisheries Management Committee regarding projects, programs,
and activities to be funded by the Lisims Fisheries Conservation Trust.
Settlement
-
Within 60 days of the effective date, or later
if Canada and the Nisga’a Nation agree, Canada and the Nisga’a
Nation will each settle on the trustees the respective amounts described
in Schedule F.
-
The Lisims Fisheries Conservation Trust property
may be increased by gifts, donations, grants, and other contributions.
-
When Canada has contributed the full amount
referred to in subparagraph 1(a) of Schedule F, Canada will have discharged
its obligations under this Agreement to fund projects, programs, and activities
that are funded by the Lisims Fisheries Conservation Trust.
Other Responsibilities
-
The operation of the Lisims Fisheries Conservation
Trust will not affect the responsibilities of Canada under federal legislation,
or the obligations of Canada or the Nisga’a Nation under this Agreement.
PARTICIPATION IN THE GENERAL COMMERCIAL
FISHERY
-
On the effective date, Canada and British
Columbia will each provide funding in the respective amounts described
in Schedule G to the Nisga’a Nation to enable it to increase its
capacity, in the form of commercial licences, or vessels and commercial
licences, to participate in the general commercial fishery in British Columbia.
These commercial licenses and vessels will be subject to federal and provincial
laws of general application in respect of commercial fisheries in British
Columbia.
-
At the request of the Nisga’a Nation,
Canada, and British Columbia will provide the Nisga’a Nation with
support for the acquisition of the commercial licences, or vessels and
commercial licences, referred to in paragraph 111, including:
-
general fishing industry information;
-
available information concerning the fleet
composition and number of commercial vessels;
-
available commercial fishing industry cost
and earnings information;
-
estimated commercial vessel and commercial
licence costs; and
-
recent estimates of commercial harvests and
landed values.
-
Notwithstanding paragraph 111, the Nisga’a
Nation may spend up to $3 million, as adjusted under Schedule G, of the
amounts referred to in paragraph 1 of Schedule G for other fisheries related
activities.
HERRING ROE-ON-KELP STUDY
-
As soon as practicable after the effective
date, the Parties will conduct a study to assess the availability of herring
and kelp within the Nass Area to determine the feasibility of a Nisga’a
herring roe-on-kelp impoundment.
INTERNATIONAL ARRANGEMENTS
-
Canada will consult with the Nisga’a
Nation with respect to the formulation of Canada’s positions in relation
to international discussions or negotiations that may significantly affect
fisheries resources referred to in this Agreement.
-
This Agreement will not affect or preclude
participation of the Nisga’a Nation, Nisga’a Villages, Nisga’a
Institutions, Nisga’a Corporations, or Nisga’a citizens in
commissions or fisheries management advisory bodies.
PROCESSING FACILITIES
-
The Nisga’a Nation, Nisga’a
Villages, Nisga’a Institutions, or Nisga’a Corporations will
not establish a new fish processing facility capable of processing more
than 2,000 metric tons of round weight of fish per year, within eight years
of the effective date, except as agreed to by the Parties.
SCHEDULE A -- NISGA’A FISH ALLOCATIONS
FOR SALMON
-
Subject to paragraphs 2 and 3 of this Schedule,
in each year the Nisga’a fish allocation of each species of Nass
salmon is:
-
the percentage for that species set out in
Table 1, Row 1, multiplied by
-
the estimated number of that species returning
to Canada in that year, and
-
if a portion of the return to Canadian waters
of chinook, coho, or chum salmon can be identified as resulting from Nisga’a
enhancement initiatives in the Nass Area approved under paragraph 34 of
the Fisheries Chapter, that portion will be subtracted from the estimated
number of Nass salmon of that species returning to Canadian waters in that
year.
-
If the Minister has established a minimum
escapement level for a species under paragraph 11 of the Fisheries Chapter,
and the number of Nass salmon of that species returning to Canada exceeds
the minimum escapement level but does not exceed the small return to Canada
for that species set out in Table 1, Row 2, the Nisga’a fish allocation
will increase in a linear manner, from zero at the minimum escapement level
to the threshold for that species set out in Table 1, Row 3, except that
the Nisga’a fish allocation will not exceed the return to Canada
minus the minimum escapement level.
-
If the number of Nass salmon of a species
returning to Canada exceeds the large return to Canada for that species
set out in Table 1, Row 2, the Nisga’a fish allocation will not
exceed the maximum for that species set out in Table 1, Row 3.
-
If, in any year, a portion of the return of
chinook, coho, or chum salmon is identified as resulting from Nisga’a
enhancement initiatives in the Nass Area, as described in subparagraph
1(c) of this Schedule, the Nisga’a fish allocations of these fish
are as set out in paragraph 35 of the Fisheries Chapter.
SCHEDULE A -- continued
Table 1.
|
Species |
Sockeye |
Pink |
Chinook |
Coho |
Chum |
1. |
Nisga'a share (%) of
return to Canada |
10.5%
|
0.6%
|
21.0%
|
8.0%
|
8.0%
|
2. |
Return to Canada
Small
Large |
160,000
600,000
|
300,000
1,100,000
|
13,000
60,000
|
40,000
240,000
|
30,000
150,000
|
3. |
Nisga'a fish
allocations
at small and large
returns to Canada
Threshold (at small
return to Canada)
Maximum (at large
return to Canada) |
16,800
63,000
|
1,800
6,600
|
2,730
12,600
|
3,200
19,200
|
2,400
12,000
|
SCHEDULE B -- OVERAGES AND UNDERAGES
Determination of Overages and Underages
-
For the purpose of catch accounting, harvests
for each salmon species are classified into two groups of fisheries:
-
Nisga’a fisheries; and
-
other Canadian fisheries harvesting Nass salmon.
-
To determine the overage or underage for a
Nass salmon species in Nisga’a fisheries, the following post-season
estimates are required for each species of salmon:
-
the total return to Canada (the "TRTC") for
that species of Nass salmon;
-
the total escapement to Nass Area streams
(the "Post-Season Escapement Estimate");
-
the harvest share for Nisga’a fisheries
(the "Nisga’a Share") for that year determined in accordance with
the Nisga’a fish allocations set out in the Fisheries Chapter and
the Harvest Agreement using the post-season estimate of the TRTC and the
escapement goal for that year, including any adjustments to the Nisga’a
Share for overages and underages;
-
the harvest allowed for other Canadian fisheries
(the "Remaining Allowable Catch") based on the post-season estimate of
TRTC, the escapement goal and the Nisga’a Share for that year;
-
the total number of fish of that species caught
in Nisga’a fisheries (the "Nisga’a Catch");
-
the total number of Nass salmon of that species
caught in other Canadian fisheries (the "Other Catch"); and
-
the total catch for a year (the "Total Catch")
determined by adding the Nisga’a Catch to the Other Catch.
-
In each year, the Nisga’a Account will
be calculated for each species, as set out below, to determine if an overage
or underage has occurred for that species. If the Nisga’a Account
is a number greater than zero, then there is an overage. If the Nisga’a
Account is a number less than zero, then there is an underage.
-
The Nisga’a Account for salmon in each
year will be calculated as follows:
-
if the Post-Season Escapement Estimate is
greater than or equal to the escapement goal and the Minister has provided
reasonable opportunities for the harvest of the Nisga’a fish allocations
and the Nisga’a Catch is less than the Nisga’a Share, and
the Other Catch is less than or equal to the Remaining Allowable Catch,
the Nisga’a Account is zero;
-
if the Post-Season Escapement Estimate is
greater than or equal to the escapement goal and the Nisga’a Catch
is more than the Nisga’a Share, the Nisga’a Account is:
Nisga’a Account
= Nisga’a Catch - Nisga’a Share;
-
if the Post-Season Escapement Estimate is
greater than or equal to the escapement goal and the other Canadian fisheries
harvest more than their share, the Nisga’a Account is:
Nisga’a Account
= Remaining Allowable Catch - Other Catch;
-
if the Post-Season Escapement Estimate is
less than or equal to the escapement goal and there is a Nisga’a
Share and there is no Remaining Allowable Catch, the Nisga’a Account
is:
Nisga’a Account
= Nisga’a Catch - Nisga’a Share - Other Catch;
-
if the Post-Season Escapement Estimate is
less than the escapement goal and there is a Nisga’a Share and there
is a Remaining Allowable Catch, the Nisga’a Account for sockeye
salmon is:
Nisga’a Account
= Nisga’a Catch - Nisga’a Share - 13% of the Overharvest;
and the Nisga’a Account for pink
salmon is:
Nisga’a Account
= Nisga’a Catch - Nisga’a Share - 15% of the Overharvest;
and the Nisga’a Account
for each of the other salmon species is:
Nisga'a Account - NIsga'a
Catch -
Nisga'a Share . Total Catch
(Nisga'a Share + Remaining Allowable Catch)
-
In each year, the "Cumulative Nisga’a
Account" for each species will be calculated by adding that year’s Nisga’a
Account for that species, to the previous year’s Cumulative Nisga’a
Account for that species as adjusted under paragraph 6 of this Schedule
or paragraph 30 of the Fisheries Chapter.
Adjustment of the Nisga’a Harvest
-
The Minister and Nisga’a Lisims Government
will endeavour to minimize any overages or underages in each year and to
minimize the accumulation of overages and underages in successive years,
but in any year:
-
unless otherwise agreed by the Minister and
Nisga’a Lisims Government, any adjustments to the Nisga’a
harvest in that year for past overages will not exceed 5% of the total
Nisga’a fish allocations of that species;
-
any adjustments to the Nisga’a harvest
in that year for past underages will only be made if those adjustments:
-
are approved by Nisga’a Lisims Government,
and
-
unless otherwise agreed by the Minister and
Nisga’a Lisims Government, do not exceed 5% of the pre-season estimate
of the Remaining Allowable Catch for that species;
-
the Minister and Nisga’a Lisims Government
may agree to reduce an overage for one species by an underage for another
species, in accordance with the system of equivalencies set out in Schedule
C, in order to reduce the overages and underages in the Cumulative Nisga’a
Account; and
-
if an adjustment is made to the Nisga’a
harvest under subparagraphs (a), (b), or (c) or paragraph 30 of the Fisheries
Chapter, a corresponding adjustment will be made to the Cumulative Nisga’a
Account.
Joint Fisheries Management Committee Recommendations
-
The Joint Fisheries Management Committee will
recommend to the Minister and Nisga’a Lisims Government adjustments
to the Nisga’a harvest in Nisga’a fisheries for each year
to account for cumulative overages and cumulative underages in accordance
with this Schedule.
SCHEDULE C -- SYSTEM OF SALMON EQUIVALENCIES
-
Equivalencies for conversions among salmon
species will be expressed as sockeye equivalents, where the value of each
species is calculated relative to the value of sockeye salmon. Sockeye
equivalents will be based on average weights and average commercial landed
value statistics for salmon in the Nass Area, unless otherwise agreed by
the Minister and Nisga’a Lisims Government.
-
The sockeye equivalent factor for each salmon
species will be calculated as follows:
SE Chinook = Chinook average weight
.. Chinnok average price/weight
Sockeye average weight Sockeye
average price/weight
SE Coho
= Coho average weight
.. Coho average price/weight
Sockeye average weight Sockeye
average price/weight
SE Pink
= Pink average weight
.. Pink average price/weight
Sockeye average weight Sockeye
average price/weight
SE Chum
= Chum average weight
.. Chum average price/weight
Sockeye average weight Sockeye
average price/weight
SCHEDULE D -- DETERMINATION OF THE NISGA’A
FISH ALLOCATION OF STEELHEAD
-
In this Schedule, the adjusted total allowable
catch of summer-run Nass steelhead is equal to 95% of the total number
of the summer-run Nass steelhead returning to the Nass Area less the annual
escapement goal.
-
The Nisga’a fish allocation of summer-run
Nass steelhead under paragraph 46 of the Fisheries Chapter will be equal
to:
-
5% of the total number of summer-run Nass
steelhead returning to the Nass Area; plus
-
25% of the adjusted total allowable catch
but, in any event, the Nisga’a fish
allocation will not exceed 1000 summer-run Nass steelhead.
SCHEDULE E -- NISGA’A FISH ALLOCATIONS
OF NON-SALMON SPECIES OR AQUATIC PLANTS
This schedule will set out Nisga’a
fish allocations of non-salmon species or aquatic plants established under
this Chapter after the effective date.
SCHEDULE F -- PROVISIONAL SCHEDULE OF
LISIMS FISHERIES CONSERVATION TRUST SETTLEMENT AMOUNTS
-
The amounts to be settled on the trustees
of the Lisims Fisheries Conservation Trust are:
-
$10 million by Canada; and
-
$3 million by the Nisga’a Nation.
Note 1 to this schedule will be deleted, and
will no longer form part of this Agreement, when this Schedule is
completed in accordance with that note and the effective date occurs.
Note 1
The amounts stated in (a) and (b) will
be adjusted on the revision date by multiplying each amount by N and dividing
by O
where:
N is the first published value of FDDIPI
for the latest calendar quarter for which Statistics Canada has published
a FDDIPI before the revision date;
O is the value of the FDDIPI for the last
quarter in the 1995 calendar year published by Statistics Canada at the
same time as the value used in N; and
FDDIPI is the Final Domestic Demand Implicit
Price Index for Canada, series D15613, published regularly by Statistics
Canada in Matrix 6544: Implicit Price Indexes, Gross Domestic Product.
The revision date will be a date 14 days before
the effective date, or such other date as the Parties may agree. On the
revision date, the amounts in (a) and (b) will be replaced by amounts adjusted
in accordance with this note, the title of this schedule will be changed
to "Schedule F - Lisims Fisheries Conservation Trust Settlement Amounts".
SCHEDULE G -- PROVISIONAL SCHEDULE OF
FUNDING UNDER PARAGRAPH 111 OF THE FISHERIES CHAPTER
-
Funding under paragraph 111 of the Fisheries
Chapter will be as follows:
-
$5.75 million will be paid by Canada; and
-
$5.75 million will be paid by British Columbia.
Note 1 to this schedule will be deleted, and
will no longer form part of this Agreement, when this Schedule is
completed in accordance with that note and the effective date occurs.
Note 1
The amounts stated in (a) and (b) will
be adjusted on the revision date by multiplying each amount by N and dividing
by O
where:
N is the first published value of FDDIPI
for the latest calendar quarter for which Statistics Canada has published
a FDDIPI before the revision date;
O is the value of the FDDIPI for the last
quarter in the 1995 calendar year published by Statistics Canada at the
same time as the value used in N; and
FDDIPI is the Final Domestic Demand Implicit
Price Index for Canada, series D15613, published regularly by Statistics
Canada in Matrix 6544: Implicit Price Indexes, Gross Domestic Product.
The revision date will be a date 14 days before
the effective date, or such other date as the Parties may agree. On the
revision date, the amounts in (a) and (b) will be replaced by amounts adjusted
in accordance with this note, the title of this schedule will be changed
to "Schedule G - Funding under paragarph 111 of the Fisheries Chapter".
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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