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1998 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

BILL 51: NIS G A'A FINAL AGREEMENT ACT –

SCHEDULE

CHAPTER 1 OF 22

CHAPTER 1

DEFINITIONS

In this Agreement:

"adjusted total allowable catch" means, for Nass

sockeye or Nass pink salmon, the total return to Canadian waters less the Nis g a'a

fish allocation set out in

Schedule A to the Fisheries Chapter, and less the

escapement goal;

"adopted child" means an individual who, while a

minor, was adopted by Nis g a'a custom or under laws recognized in Canada;

"aggregate right of way maximum" means 2,800

hectares;

"Agreement" means this Agreement between the Nis g a'a

Nation, Canada, and British Columbia and all Schedules and Appendices to this Agreement;

"annual management plan" means a plan approved in

accordance with the Wildlife and Migratory Birds Chapter;

"aquatic plants" means all marine and freshwater

plants, including kelp, marine flowering plants, benthic and detached algae, brown algae,

red algae, green algae, and phytoplankton;

"associated records" means records documenting Nis g a'a

culture including any correspondence, memorandum, book, plan, drawing, diagram, pictorial

or graphic work, photograph, film, microform, sound recording, video tape, machine

readable record, and any other documentary materials, regardless of the physical form or

characteristics, and any copy of those records;

"available flow" means the volume of flow of water

above that required:

a. to ensure conservation of fish and stream habitats and to continue

navigability as determined by the Minister in accordance with the provisions of this

Agreement, and

b. under water licences issued before March 22, 1996 and water

licences issued under applications made before March 22, 1996;

"Ayuu k hl Nis g a'a " and "Ayuuk"

mean the traditional laws and practices of the Nis g a'a Nation;

"British Columbia" means, unless the context

otherwise requires, Her Majesty the Queen in right of British Columbia;

"British Columbia right of way" means:

a. the Nis g a'a Highway corridor, or

b. any right of way on Nis g a'a Lands granted by the Nis g a'a

Nation or a Nis g a'a Village to:

i. British Columbia, or

ii. a public utility

on the effective date under this Agreement, or after the

effective date under paragraph 2 of the Roads and Rights of Way Chapter;

"Canada" means, unless the context otherwise

requires, Her Majesty the Queen in right of Canada;

"Category A Lands" means the lands defined in

paragraph 46 of the Lands Chapter;

"Category B Lands" means the lands defined in

paragraph 61 of the Lands Chapter;

"child" means a person under the age of majority in

British Columbia;

"child and family service" means a service that

provides for:

a. the protection of children, where the primary objective is the

safety and well-being of children, having due regard for:

i. the protection from abuse, neglect, and harm, or threat of

abuse, neglect, or harm, and any need for intervention,

ii. the support of families and care givers to provide a safe

environment and prevent abuse, neglect, and harm, or threat of abuse, neglect, or harm,

and

iii. the support of kinship ties and a child's attachment to the

extended family, or

b. the promotion of a well-functioning family and community life;

"community correction service" means:

a. bail, probation, conditional sentences, conditional supervision,

parole supervision, and other forms of conditional release of adult and young offenders,

b. preparation of reports for courts, Crown counsel, and parole

boards,

c. supervision of diverted offenders and operation of diversion

programs,

d. monitoring under the Electronic Monitoring Program,

e. development and supervision of alternative to custody programs for

adult and young offenders,

f. other similar services that may be delivered by British Columbia

or Canada from time to time, or

g. Family Court counsellor functions described in an agreement under

the Administration of Justice Chapter;

"consult" and "consultation" mean

provision to a party of:

a. notice of a matter to be decided, in sufficient detail to permit

the party to prepare its views on the matter,

b. in consultations between the Parties to this Agreement, if

requested by a Party, sufficient information in respect of the matter to permit the Party

to prepare its views on the matter,

c. a reasonable period of time to permit the party to prepare its

views on the matter,

d. an opportunity for the party to present its views on the matter,

and

e. a full and fair consideration of any views on the matter so

presented by the party;

"Crown" means Her Majesty the Queen in right of

Canada, or Her Majesty the Queen in right of British Columbia, as the case may be;

"Crown roads" means the Nis g a'a Highway and

secondary provincial roads;

"descendant" includes a direct descendant

notwithstanding any intervening adoption or any birth outside marriage;

"designated species" means:

a. a species of wildlife for which the Minister has determined under

the Wildlife and Migratory Birds

Chapter that there should be a total allowable harvest in

the Nass Wildlife Area, or

b. an initial designated species

in the Nass Wildlife Area;

"directed harvest" means the catching and keeping

of:

a. a species of fish from a fishery in which a Nass Area stock of

that species is a significant portion of the fish caught and kept, or

b. a Nass Area stock of a species of fish using live capture gear;

"disagreement" means any matter to which the

Dispute Resolution

Chapter applies as set out in paragraph 7 of that Chapter;

"dispose" means to transfer by any method and

includes assign, give, sell, grant, charge, convey, bequeath, devise, lease, divest,

release, and to agree to do any of those things;

"domestic purposes" means, in the Fisheries

Chapter, and in the Wildlife and Migratory Birds Chapter, food, social, and ceremonial

purposes;

"effective date" means the date upon which this

Agreement takes effect;

"eligible voter" means an individual who:

a. is eligible to vote under paragraph 6 of the Ratification Chapter,

b. who votes under paragraph 7 of the Ratification

Chapter and whose

vote is counted in accordance with paragraph 8 of that Chapter;

"enhancement initiative" means an initiative that

is intended to result in an increase in fish stocks through:

a. an artificial improvement to fish habitat, or

b. the application of fish culture technology;

"enrolled" means entered in the enrolment register

provided for in the Eligibility and Enrolment Chapter;

"Enrolment Appeal Board" means the board

established under paragraph 19 of the Eligibility and Enrolment Chapter;

"Enrolment Committee" means the committee

established under paragraph 8 of the Eligibility and Enrolment Chapter;

"environmental assessment" means the evaluation of

impacts on the environment, and includes screening, study, and review;

"escapement goal" means the number of a species of

Nass salmon that the Minister determines is necessary for spawning;

"fair compensation" means, in respect of land,

compensation as that term is generally applied in respect of a taking by the Crown, and

will be based on:

a. fair market value of the land or interest that is expropriated or

otherwise taken,

b. the replacement value of any improvement on the land that is

expropriated or otherwise taken,

c. disturbance caused by the expropriation or taking, and

d. in the case of Category A Lands, any particular cultural values;

"fish" means:

a. fish, including anadromous fish,

b. shellfish, crustaceans, and marine animals,

c. the parts of fish, shellfish, crustaceans, and marine animals, and

d. the eggs, sperm, spawn, larvae, spat, juvenile stages and adult

stages of fish, shellfish, crustaceans and marine animals

but not "wildlife fish";

"forest resources" means all timber and non-timber

forest resources, including all biota, but does not include wildlife, migratory birds,

water, or fish;

"geothermal resource" means the natural heat of the

earth and all substances that derive an added value from it, including steam, water, and

water vapour heated by the natural heat of the earth, and all substances dissolved in the

steam, water, or water vapour obtained from a well, but does not include:

a. water that has a temperature less than 80 degrees Centigrade at

the point where it reaches the surface, or

b. hydrocarbons;

"gravel management plan" means a written

description of the development, use, and closure of a gravel materials pit, that contains

information such as its location, size and extent, access roads, soil and gravel materials

descriptions, topographical and geotechnical mapping, development plans, anticipated

volumes of gravel materials extracted per time period, reporting, and reclamation;

"gravel materials" means gravel, rock, and random

borrow materials used in highway construction;

"heritage sites" includes archaeological, burial,

historical, and sacred sites;

"Hydro" means British Columbia Hydro and Power

Authority and its successors and assigns;

"incidental harvest" means the catching and keeping

of a species of Nass Area fish, other than in a directed harvest;

"initial designated species" means a species

designated under paragraph 15 of the Wildlife and Migratory Birds Chapter;

"initial enrolment period" means:

a. for the purposes of the Enrolment Committee, from October 1, 1997

to September 30, 1999, and

b. for the purposes of the Enrolment Appeal Board, from the effective

date to the day before the second anniversary of the effective date;

"intertidal bivalves" means littleneck clams ( Protothaca

staminea ), butter clams ( Saxidomus giganteas ), horse clams ( Tresus spp. ),

cockles ( Clinocardium nuttallii ), mussels ( Mytilus edulis ), and manila clams

( Tapes philippinarum );

"intoxicants" includes liquor;

"Joint Fisheries Management Committee" means the

committee established under paragraph 77 of the Fisheries Chapter;

"Joint Park Management Committee" means the

committee referred to in paragraph 106 of the Lands Chapter;

"land claims agreement" means:

a. a land claims agreement in Canada within the meaning of sections

25 and 35 of the Constitution Act, 1982, or

b. a treaty within the meaning of sections 25 and 35 of the Constitution

Act, 1982 that comes into effect in Canada after the effective date;

"law" includes federal, British Columbia, and Nis g a'a

legislation, acts, ordinances, regulations, orders in council, bylaws, and the common law,

but, for greater certainty, does not include Ayuu k hl Nis g a'a or Ayuuk;

"laws of general application" includes federal and

provincial laws that apply generally in British Columbia, but does not include federal

laws in respect of Indians or lands reserved for the Indians;

"liquor" means:

a. fermented, spirituous and malt liquors,

b. combinations of liquors, and

c. drinks and drinkable liquids that are intoxicating

and liquor that contains more than 1% alcohol by volume will

be conclusively deemed to be intoxicating, and "liquor" includes beer, or a

substance which, by being dissolved or diluted, is capable of being made a drinkable

liquid that is intoxicating and which substance is declared by order of the Lieutenant

Governor in Council to be liquor;

"Lisims" means the Nass River;

"migratory birds" has the meaning set out in any

federal legislation that is enacted further to international conventions and that is

binding on British Columbia, and includes the eggs of migratory birds;

"mineral resources" includes minerals and

geothermal resources;

"minerals" means ores of metal and all natural

substances that can be mined, and includes:

a. rock or other materials from mine tailings, dumps, and previously

mined deposits of minerals,

b. coal, petroleum, gas, earth, soil, peat, marl, sand, gravel, rock,

stone, limestone, dolomite, marble, shale, clay, volcanic ash, and diatomaceous earth, and

c. all precious and base minerals;

"Minister" means, in relation to any matter, the

Minister or Ministers of Her Majesty the Queen in right of Canada or in right of British

Columbia, as the case may be, having the responsibility, from time to time, for the

exercise of powers in relation to the matter in question;

"minor" means an individual under the age of

majority in that person's place of residence;

"Nass Area" means:

a. the entire Nass watershed,

b. all Canadian watersheds and water bodies that drain into portions

of Portland Inlet, Observatory Inlet, or Portland Canal, as defined in subparagraph (c),

and

c. all marine waters in Pearse Canal, Portland Inlet, Observatory

Inlet, and Portland Canal northeast of a line commencing at the Canadian border, midway

between Pearse Island and Wales Island, and proceeding along Wales Passage southeasterly

to Portland Inlet, then northeasterly to the midpoint between Start Point and Trefusis

Point, then south to Gadu Point

as set out approximately in Appendix I;

"Nass salmon" means chinook, chum, coho, sockeye,

and pink salmon originating in the Nass Area;

"Nass steelhead" means summer-run Nass steelhead

and winter-run Nass steelhead originating in the Nass Area;

"Nass Wildlife Area" means the area described in

Appendix J;

"natural boundary" means the visible high water

mark of any lake, river, stream, or other body of water where the presence and action of

the water are so common and usual, and so long continued in all ordinary years, as to mark

on the soil of the bed of the body of water a character distinct from that of its banks,

in vegetation, as well as in the nature of the soil itself;

"neutral" means a person appointed to assist the

Parties to resolve a disagreement and, except in paragraph 24 of the Dispute Resolution

Chapter and Appendix M-4, includes an arbitrator;

"neutral appointing authority" means the British

Columbia International Commercial Arbitration Centre or, if the Centre is unavailable to

make a required appointment, any other independent and impartial body or individual

acceptable to the Parties;

"Nis g a'a annual fishing plan" means a plan,

or an in-season adjustment to a plan, approved in accordance with the Fisheries Chapter;

"Nis g a'a artifact" means any object created

by, traded to, commissioned by, or given as a gift to a Nis g a'a person or Nis g a'a

community, or that originated from a Nis g a'a community or Nis g a'a heritage

site and that has past and ongoing importance to Nis g a'a culture or spiritual

practices, but does not include any object traded to, commissioned by, or given as a gift

to another aboriginal people;

"Nis g a'a Certificate" means a certificate of

Nis g a'a Lisims Government described in subparagraph 7 (

b) of the Land Title

Chapter;

"Nis g a'a child" means a minor who is or is

eligible to become a Nis g a'a citizen;

"Nis g a'a citizen" means a citizen of the Nis g a'a

Nation as determined by Nis g a'a law;

"Nis g a'a Constitution" means the

constitution of the Nis g a'a Nation adopted in accordance with the Nis g a'a

Government Chapter;

"Nis g a'a Corporation" means a corporation

that is incorporated under federal or provincial law, all of the shares of which are owned

legally and beneficially by the Nis g a'a Nation, a Nis g a'a Village, a Nis g a'a

settlement trust, a Nis g a'a Corporation Intermediary, or any combination of those

entities;

"Nis g a'a Corporation Intermediary" means a

corporation that is incorporated under federal or provincial law, all of the shares of

which are owned legally and beneficially by the Nis g a'a Nation, a Nis g a'a

Village, a Nis g a'a settlement trust, another Nis g a'a Corporation

Intermediary, or any combination of those entities;

"Nis g a'a Court" means a court established

under the Administration of Justice Chapter;

"Nis g a'a Fee Simple Lands" means Category A

Lands and Category B Lands;

"Nis g a'a fish allocation" means a Nis g a'a

fish entitlement under this Agreement, or a right to harvest fish under the Harvest

Agreement referred to in the Fisheries Chapter, for which there is:

a. a defined harvest quantity or quota,

b. a formula defining a harvest quantity or quota, or

c. a defined harvest area other than the entire Nass Area;

"Nis g a'a fish entitlement" means a right to

harvest fish or aquatic plants under this Agreement, but does not include the right to

harvest fish under the Harvest Agreement referred to in the Fisheries Chapter, or under

federal or provincial laws of general application;

"Nis g a'a fisheries" means:

a. fisheries to harvest fish under Nis g a'a fish entitlements

under this Agreement,

b. fisheries to harvest Nass salmon under Nis g a'a fish

allocations under the Harvest Agreement, and

c. harvests of aquatic plants under Nis g a'a fish entitlements

under this Agreement;

"Nis g a'a Government" means Nis g a'a

Lisims Government and Nis g a'a Village Governments;

"Nis g a'a Highway" means the following:

a. the British Columbia highway existing on the effective date

connecting Highway 16, New Aiyansh, Nass Camp, Gitwinksihlkw, and Lagalt'sap, and

b. the portion of the route for the proposed highway from Nass Camp

to Highway 37 that is within Nis g a'a Lands, and the route for the proposed highway

from La x galt'sap to Gingolx;

"Nis g a'a Highway corridor" means the area of

land on which the Nis g a'a Highway is located, as determined under paragraphs 9 and

10 of the Roads and Rights of Way

Chapter and as described in

Schedule A of the Roads and

Rights of Way Chapter;

"Nis g a'a Institution" means:

a. Nis g a'a Lisims Government,

b. a Nis g a'a Village Government, or

c. a Nis g a'a Public Institution;

"Nis g a'a Lands" means those lands identified

in paragraphs 1 and 2 of the Lands

Chapter and includes additions under paragraphs 9 or 11

of the Lands Chapter;

"Nis g a'a laws" includes the Nis g a'a

Constitution;

"Nis g a'a Lisims Government" means the

government of the Nis g a'a Nation described in the Nis g a'a Constitution;

"Nis g a'a Nation" means the collectivity of

those aboriginal people who share the language, culture, and laws of the Nis g a'a

Indians of the Nass Area, and their descendants;

"Nis g a'a participant" means an individual

who is enrolled;

"Nis g a'a Police Board" means a board

established under the Administration of Justice Chapter;

"Nis g a'a Police Service" means a police

service established under the Administration of Justice Chapter;

"Nis g a'a Private Lands" means Nis g a'a

Lands that are designated as Nis g a'a Private Lands by Nis g a'a Lisims

Government;

"Nis g a'a Public Institution" means a Nis g a'a

Government body, board, commission, or tribunal established under Nis g a'a law, such

as a school board, health board, or police board, but does not include the Nis g a'a

Court referred to in the Administration of Justice Chapter;

"Nis g a'a Public Lands" means Nis g a'a

Lands other than Nis g a'a Village Lands or Nis g a'a Private Lands;

"Nis g a'a public officer" means:

a. a member, commissioner, director, or trustee of a Nis g a'a

Public Institution,

b. a director of a Nis g a'a Corporation, the documents of

incorporation of which have been approved by the Inspector of Municipalities for British

Columbia,

c. an officer or employee of the Nis g a'a Nation, a Nis g a'a

Village, a Nis g a'a Institution, or a Nis g a'a Corporation, the documents of

incorporation of which have been approved by the Inspector of Municipalities for British

Columbia,

d. an election official within the meaning of a Nis g a'a law,

e. a volunteer who participates in the delivery of services by the

Nis g a'a Nation, a Nis g a'a Village, a Nis g a'a Institution, or a body

referred to in subparagraph (

b) or (c), under the supervision of an officer or employee of

the Nis g a'a Nation, a Nis g a'a Village, a Nis g a'a Institution, or a

body referred to in subparagraph (

b) or (c);

"Nis g a'a road" means a road on Nis g a'a

Lands that is not a provincial secondary road or a private road;

"Nis g a'a

section 35 rights" means the

rights, anywhere in Canada, of the Nis g a'a Nation, that are recognized and affirmed

section 35 of the Constitution Act, 1982;

"Nis g a'a tribe" means the Laxsgiik

(Eagle), Laxgibuu (Wolf), the Gis k 'aast (Killerwhale), or the G anada

(Raven) tribe of the Nis g a'a Nation;

"Nis g a'a Urban Locals" means the entities

established for the purpose of participation in Nis g a'a Lisims Government by Nis g a'a

citizens residing outside of the Nass Area;

"Nis g a'a Village" means:

a. the village of New Aiyansh, Gitwinksihlkw, La x galt'sap, or

Gingolx, or

b. any additional village on Nis g a'a Lands, established in

accordance with the Nis g a'a Constitution and this Agreement;

"Nis g a'a Village Government" means the

government of a Nis g a'a Village;

"Nis g a'a Village Lands" means Nis g a'a

Lands that are designated as Nis g a'a Village Lands of a particular Nis g a'a

Village by Nis g a'a Lisims Government;

"Nis g a'a wildlife allocation" means a Nis g a'a

wildlife entitlement to a defined share of the total allowable harvest of a designated

species;

"Nis g a'a wildlife entitlement" means a right

to harvest wildlife or migratory birds under this Agreement, but does not include a right

to harvest wildlife or migratory birds under federal or provincial laws of general

application;

"non-salmon species" means a species of fish in the

Nass Area other than Nass salmon and Nass steelhead;

"overage" means the amount calculated in accordance

with

Schedule B of the Fisheries

Chapter in any year in which the Nis g a'a harvest

of a species exceeds the amount of that species that the Nis g a'a Nation is entitled

to harvest in Nis g a'a fisheries in that year;

"overharvest" means the amount in any year by

which, as a result of harvesting in Canadian fisheries, the escapement goal exceeds the

actual escapement for a species of Nass salmon;

"participating Party" means a Party that:

a. is required or agrees to participate in, or

b. initiates

a process described in the Dispute Resolution

Chapter to

resolve a disagreement;

"Party" means a party to this Agreement;

"private road" means a road on a private right of

way area on Nis g a'a Lands;

"project" means any undertaking or proposed

undertaking in relation to a physical work or activity;

"provincial Torrens system" means the Land Title

Act and all other laws of British Columbia in respect of the registration of title to,

rights in, claims against, and estates and interests in, land, whether legal or equitable;

"public utility" has the meaning as set out in the Utilities

Commission Act , and includes Hydro, BC TEL, and a water, sewage, or petroleum

distribution utility;

"Ratification Committee" means the committee

established under the Ratification Chapter;

"Regional District of Kitimat-Stikine" means the

Regional District of Kitimat-Stikine as it exists on the effective date, and any successor

regional government;

"Registrar" means "Registrar" as defined

in the Land Title Act;

"right of way area" means a defined portion of Nis g a'a

Lands on which a grant is given by the Nis g a'a Nation or a Nis g a'a Village

for a specified use, including use for a public or private road, or a public utility;

"road" means the surface area of lands constructed

and used for vehicular passage, and includes surfacing, bridges, drainage and support

works, traffic control structures, and other works required to maintain the integrity of

the travelled surface;

"secondary provincial road" means a road existing

on the effective date located on a right of way area granted by the Nis g a'a Nation

or a Nis g a'a Village to British Columbia as described in Appendix C-1, subject

to changes permitted under this Agreement;

"settlement legislation" means the Acts of

Parliament and the Acts of the Legislature of British Columbia that give effect to this

Agreement;

"Simgigat and Sigidimhaanak" means

individuals who are Nis g a'a chiefs, and Nis g a'a matriarchs, respectively, in

accordance with Ayuu k hl Nis g a'a;

"stream" includes a natural watercourse or source

of water supply, whether usually containing water or not, and a lake, river, spring,

ravine, swamp, and gulch;

"submerged lands" means lands below the natural

boundary;

"summer-run Nass steelhead" means:

a. those Nass steelhead within the Nass River that migrate from

marine environments to fresh water environments between June 1 and October 31 in any year,

and

b. all Nass steelhead within watersheds draining into the Nass River

upstream of the confluence of the Tseax River and the Nass River;

"surplus" means the amount, in any year, of a

species of Nass salmon that exceeds the physical incubation and rearing capacity of a

natural area, or an enhancement facility, for that species, and that has not been

harvested in Nis g a'a fisheries or other aboriginal, commercial, or recreational

fisheries;

"survey plan" means a plan based on a survey, made

by a British Columbia Land Surveyor, that complies with the regulations in respect of

surveys and plans made by the Surveyor General of British Columbia;

"total allowable harvest" means the maximum number

of a designated species, as determined by the Minister, that may be harvested in the Nass

Wildlife Area in each year, commencing on April 1 and ending on March 31;

"underage" means the amount calculated in

accordance with

Schedule B of the Fisheries

Chapter in any year in which the amount of a

species that the Nis g a'a Nation is entitled to harvest in that year in Nis g a'a

fisheries exceeds the Nis g a'a harvest of that species;

"voting officer" means an individual who has been

authorized by the Ratification Committee to issue ballots for the referendum at a place of

voting;

"wildlife" means:

a. all vertebrate and invertebrate animals, including mammals, birds,

wildlife fish, reptiles, and amphibians, and

b. the eggs, juvenile stages, and adult stages of all vertebrate and

invertebrate animals

but does not include "fish" or "migratory

birds";

"Wildlife Committee" means the committee

established under paragraph 45 of the Wildlife and Migratory Birds Chapter;

"wildlife fish" means:

a. lampreys, crustaceans, mollusks, and non-anadromous fish, from or

in non-tidal waters,

b. the parts of lampreys, crustaceans, mollusks, and non-anadromous

fish, from or in non-tidal waters, and

c. the eggs, sperm, spawn, larvae, spat, juvenile stages, and adult

stages of lampreys, crustaceans, mollusks, and non-anadromous fish, from or in non-tidal

waters;

"winter-run Nass steelhead" means:

a. those Nass steelhead within the Nass River that migrate from

marine environments to fresh water environments between November 1 in any year, and May 31

in the next year,

b. all Nass steelhead within watersheds draining into the Nass River

downstream of the confluence of the Tseax River and the Nass River, including the Tseax

River watershed, and

c. all Nass steelhead within watersheds draining into the Nass Area,

other than the Nass River watershed and watersheds draining into the Nass River; and

"year" means a calendar year unless otherwise

provided, or unless the Parties otherwise agree.

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