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1998 Legislative Session: 3rd Session, 36th Parliament

THIRD READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 22nd day of April, 1999

Ian D. Izard, Law Clerk

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

SCHEDULE

CHAPTER 5 OF 22

CHAPTER 5

FOREST RESOURCES

DEFINITIONS

1. In this

Chapter and in Appendix H:

"agreement under the Forest Act" means a

major licence or timber sale licence that, before the effective date, provided for the

harvesting of timber on Nis g a'a Lands;

"former Nis g a'a Indian reserves" means those

lands within Nis g a'a Lands that were Nis g a'a Indian reserves on the day

before the effective date as identified in Appendix A-4, and all Category A

lands;

"forest practices legislation" means the Forest

Practices Code of British Columbia Act , the Forest Act , or any regulation under

those Acts;

"forest practices" means timber harvesting and

related activities, including silviculture, and road construction, modification,

maintenance, and deactivation;

"forest standards" means the performance

requirements or constraints associated with a forest practice;

"Forestry Transition Committee" means the committee

established under paragraph 32 of this Chapter;

"licence" means an agreement issued by British

Columbia, in the nature of a forest licence or a timber sale licence, that provides for

the harvesting of timber on Nis g a'a Lands during the transition period;

"Nis g a'a Contractor" means a full phase

logging contractor whose operations and direction are effectively controlled by the Nis g a'a

Nation, a Nis g a'a Village, a Nis g a'a Corporation, or a Nis g a'a

citizen;

"non-timber forest resources" means all forest

resources other than timber or timber resources;

"timber" or "timber resources"

means trees, whether living, standing, dead, fallen, limbed, bucked, or peeled;

"transition period" means the five year period

commencing on the effective date; and

"transition year" means a one year period

commencing on the effective date, or any anniversary of the effective date, within the

transition period.

Interpretation

2. Unless the context indicates otherwise, words and

expressions used in this

Chapter and in Appendix H that are not defined in this Agreement

have the meaning given to them in forest practices legislation.

OWNERSHIP OF RESOURCES

3. On the effective date, the Nis g a'a Nation owns all

forest resources on Nis g a'a Lands.

4. Nis g a'a Lisims Government has the exclusive authority

to determine, collect, and administer any fees, rents, royalties, or other charges in

respect of:

a. non-timber forest resources on Nis g a'a Lands;

b. timber resources referred to in paragraphs 20 and 21; and

c. after the transition period, all timber resources on Nis g a'a

Lands.

APPLICABLE LAWS AND STANDARDS

Forest Practices and Standards

5. During the transition period, forest practices legislation

applies to activities and obligations of:

a. the holder of an agreement under the Forest Act on Nis g a'a

Lands as if Nis g a'a Lands were Crown land; and

b. the holder of a licence within the area covered by its forest

development plan on Nis g a'a Lands as if Nis g a'a Lands were Crown land.

6. Nis g a'a Lisims Government will make laws in respect

of the management of timber resources on Nis g a'a Lands, that will take effect on

the effective date.

7. Laws made under paragraph 6 do not apply to:

a. activities and obligations referred to in paragraph 5; and

b. fire control and suppression activities for which British Columbia

is responsible under paragraphs 57 and 59.

8. Laws made under paragraph 6 will include forest standards

that meet or exceed forest standards established under forest practices legislation

applicable to Crown land, and will include forest standards in respect of the following

subject areas if these subject areas are addressed in forest practices legislation:

a. riparian management;

b. cut block design and distribution;

c. road construction, maintenance and deactivation;

d. reforestation;

e. soil conservation;

f. biodiversity;

g. hazard abatement, fire preparedness and initial fire suppression;

h. silvicultural systems and logging methods; and

i. forest health.

9. In a determination of whether forest standards established

under paragraph 6 meet or exceed forest standards established under forest practices

legislation applicable to Crown land, the subject areas referred to in paragraph 8 will be

compared collectively.

10. Forest standards established under paragraph 6 will be

deemed to meet or exceed forest standards established under forest practices legislation

applicable to Crown land, if they are no more intrusive to the environment than the forest

standards applicable to Crown land established under forest practices legislation.

11. Nis g a'a Lisims Government may make laws in respect

of non-timber forest resources on Nis g a'a Lands, including establishing standards

to regulate harvesting and conservation of non-timber forest resources, provided that the

standards meet or exceed any federal or provincial standards established under legislation

to regulate, on private land, the harvesting and conservation of non-timber forest

resources.

12. The Parties may negotiate arrangements to achieve

coordination and administrative efficiencies in respect of matters such as timber

harvesting plans, road building, forest health concerns, forest fire detection and

suppression, non-timber forest resources, and the protection of fisheries habitat.

Timber Marking and Timber Scaling

13. Subject to paragraph 14, provincial laws in respect of

timber scaling apply to timber harvested on Nis g a'a Lands.

14. After the transition period, Nis g a'a Lisims

Government may make laws compatible with provincial laws in respect of timber scaling.

15. If Nis g a'a Lisims Government makes laws under

paragraph 14, Nis g a'a Lisims Government will, on or before March 31 of each year,

provide to British Columbia a report on the volume of timber harvested during the

preceding year from Nis g a'a Lands, by species, grade, and timber mark.

16. Provincial laws in respect of timber marks apply to timber

harvested on Nis g a'a Lands.

TIMBER HARVESTING

Timber Harvesting Rates

17. Subject to the cut control provisions in Appendix H, the

volume of timber that may be harvested on Nis g a'a Lands, other than former Nis g a'a

Indian reserves, during the nine year period commencing on the effective date, is:

a. year 1 165,000 m 3 ;

b. year 2 165,000 m 3 ;

c. year 3 165,000 m 3 ;

d. year 4 165,000 m 3 ;

e. year 5 165,000 m 3 ;

f. year 6 135,000 m 3 ;

g. year 7 135,000 m 3 ;

h. year 8 135,000 m 3 ; and

i. year 9 130,000 m 3 .

18. On the effective date, or as soon as is practicable,

British Columbia will apportion among the holders of licences the volume of timber to be

harvested on Nis g a'a Lands, other than former Nis g a'a Indian reserves, by

the holders of licences during the transition period as follows:

a. year 1 155,000 m 3 ;

b. year 2 155,000 m 3 ;

c. year 3 155,000 m 3 ;

d. year 4 135,000 m 3 ; and

e. year 5 125,000 m 3 .

19. During the transition period, the aggregate volume of

timber to be harvested by holders of licences from that portion of the Ksi Hlginx

(Ishkheenickh) watershed that is within Nis g a'a Lands will not exceed 210,000 m 3 .

20. During the transition period, the Nis g a'a Nation,

subject to this Agreement, may authorize the harvest of the volumes of timber from Nis g a'a

Lands, other than former Nis g a'a Indian reserves as follows:

a. year 1 10,000 m 3 ;

b. year 2 10,000 m 3 ;

c. year 3 10,000 m 3 ;

d. year 4 30,000 m 3 ; and

e. year 5 40,000 m 3 .

21. In addition to the volumes specified in paragraph 20, the

Nis g a'a Nation may authorize the harvest of:

a. any overcut or accumulated undercut volumes of timber determined

under and in accordance with Appendix H; and

b. timber from former Nis g a'a Indian reserves.

22. Nis g a'a Lisims Government, in accordance with Nis g a'a

laws, including any cut control provisions, will authorize the harvest of volumes of

timber from Nis g a'a Lands for years six through nine after the effective date as

follows:

a. year 6 135,000 m 3 ;

b. year 7 135,000 m 3 ;

c. year 8 135,000 m 3 ; and

d. year 9 130,000 m 3 .

23. The Nis g a'a Nation and British Columbia may

negotiate agreements in respect of matters such as the rate of harvest of timber resources

on Nis g a'a Lands.

24. The Nis g a'a Nation will make timber harvested under

paragraph 20 and subparagraph 21 (

a) reasonably available to local mills.

Timber Harvesting Rights Existing Before the Effective Date

25. Except as provided in Appendix H, British Columbia will

ensure that on the effective date any portion of:

a. any agreement under the Forest Act ; and

b. any plan, permit or authorization associated with any agreement

under the Forest Act

that applies to Nis g a'a Lands, ceases to be valid.

26. Timber harvesting rights under a licence or permit granted

under the Indian Timber Regulations in respect of former Nis g a'a Indian reserves

expire on the effective date.

Timber Harvesting Rights During the Transition Period

27. British Columbia may enter into a licence with a person who

was the holder of an agreement under the Forest Act to allow for the harvesting of

some or all of that volume of timber on Nis g a'a Lands referred to in paragraph 18.

28. A licence referred to in paragraph 27 that replaces a major

licence will:

licence, except that the new licence will expire on the earliest of:

i. the date that was specified in the agreement under the Forest

Act ,

ii. the end of the transition period, or

iii. the cancellation of the licence;

b. if the licence replaces a portion of a tree farm licence, provide

that the holder of the licence may not harvest timber outside of that portion of Nis g a'a

Lands that was included in the area of the tree farm licence unless requested to do so by

the Forestry Transition Committee; and

c. require the holder of the licence to use Nis g a'a

Contractors under full phase logging contracts in accordance with Appendix H.

29. A licence referred to in paragraph 27 that replaces a

except that the new licence will expire on the earliest of:

a. the date that was specified in the agreement under the Forest

Act ;

b. the end of the transition period; or

c. the cancellation of the licence.

Operational Plans and Permits During the Transition Period

30. During the transition period, the operational planning and

performance requirements contained in Appendix H apply to timber harvesting and related

activities on Nis g a'a Lands.

31. Except as set out in this Agreement, British Columbia will

not:

a. approve plans or issue permits under forest practices legislation

in respect of Nis g a'a Lands; or

b. allow the holders of licences to carry out timber harvesting or

related activities on Nis g a'a Lands.

32. On the effective date, the Nis g a'a Nation and

British Columbia will establish the Forestry Transition Committee and will each appoint

one member to that committee.

33. The Forestry Transition Committee has, in respect of Nis g a'a

Lands, sole authority to approve, extend or issue, or to exempt the requirement for:

a. forest development plans and amendments in respect of timber

harvesting and related activities to be carried out during the transition period;

b. silviculture prescriptions and amendments submitted by the holder

of a licence for harvesting proposed for the fourth and fifth years of the transition

period;

c. all cutting permits and road permits required by the holder of a

licence to carry out timber harvesting and related activities during the fifth year of the

transition period; and

d. all road use permits required during the transition period.

34. The Forestry Transition Committee may exempt a person from

any requirement to comply with operational planning constraints specified in Appendix H.

35. The Forestry Transition Committee may impose conditions on

any exemption referred to in paragraph 33 or 34.

36. British Columbia has the authority to approve, extend or

issue, or to exempt the requirement for, prescriptions and permits referred to in this

Agreement that are:

a. required by the holder of a licence; and

b. not referred to in paragraph 33.

37. British Columbia may impose conditions on any exemption

referred to in paragraph 36.

38. The Forestry Transition Committee will make its decisions

by consensus, and any dispute between the members of the Forestry Transition Committee

arising out of the performance of its duties will be finally determined by arbitration in

accordance with Appendix H.

39. The member of the Forestry Transition Committee who acts on

behalf of the Nis g a'a Nation, or an arbitrator in an arbitration referred to in

paragraph 38, will have the same immunities from liability as a district manager under

forest practices legislation.

Performance Obligations

40. Notwithstanding paragraph 25, British Columbia will ensure

that all obligations in respect of harvested areas and roads constructed on Nis g a'a

Lands imposed under agreements under the Forest Act or the forest practices

legislation are fulfilled.

41. Notwithstanding the expiry, surrender, suspension, or

cancellation of a licence, British Columbia will ensure that all obligations imposed under

the licence and the forest practices legislation are fulfilled.

42. British Columbia will fulfill on Nis g a'a Lands all

obligations imposed under forest practices legislation for the small business forest

enterprise program.

43. The Nis g a'a Nation will:

a. determine which roads that require deactivation under forest

practices legislation will not require deactivation; and

b. notify in writing the person responsible for the road that

deactivation of the road is not required.

44. Notice under paragraph 43 will be given as soon as

practicable after the person responsible for the road advises the Nis g a'a Nation

that they intend to deactivate the road.

45. All roads that are required to be deactivated will be

deactivated:

a. as soon as practicable after the end of the transition period; or

b. if they are required for carrying out silviculture obligations, as

soon as practicable after the completion of those obligations.

46. The Nis g a'a Nation will provide access to Nis g a'a

Lands to holders of agreements under the Forest Act , to holders of licences and to

British Columbia so that they may fulfill the obligations referred to in paragraphs 40 to

42 and 45.

Compliance and Enforcement

47. During the transition period, British Columbia is

responsible for enforcing compliance with forest practices legislation on Nis g a'a

Lands by holders of agreements under the Forest Act and by holders of licences.

48. British Columbia will ensure that the holders of agreements

under the Forest Act and the holders of licences comply with the requirements of

their agreements and licences.

49. After the transition period, British Columbia is

responsible for enforcing compliance with forest practices legislation on Nis g a'a

Lands by holders of agreements under the Forest Act and by holders of licences for

obligations referred to in paragraphs 40 to 42 and 45.

50. If British Columbia determines that a holder of an

agreement or a holder of a licence has contravened forest practices legislation by

harvesting timber without proper authority, British Columbia will levy a penalty against

the holder equal to:

a. British Columbia's determination of the stumpage and bonus bid

that would have been payable had the volume of timber been sold under

section 20 of the Forest

Act ; and

b. twice British Columbia's determination of the market value of logs

and special forest products that were, or could have been, produced from the timber.

51. During the transition period, if a penalty other than a

performance penalty is imposed on a person for a contravention of forest practices

legislation on or affecting Nis g a'a Lands, British Columbia will pay to the Nis g a'a

Nation an amount equivalent to the portion of that penalty that is imposed in respect of

the contravention on or affecting Nis g a'a Lands.

52. During the transition period, if a performance penalty is

imposed on a person for a contravention of forest practices legislation on Nis g a'a

Lands, British Columbia will pay to the Nis g a'a Nation an amount equivalent to the

portion of that penalty that is imposed and collected in respect of the contravention on

Nis g a'a Lands, less the reasonable costs associated with imposing that penalty.

53. During the transition period, the Nis g a'a Nation may

commence, or intervene in, an appeal to the Forest Appeals Commission in respect of:

a. a determination of whether a person has contravened forest

practices legislation on or affecting Nis g a'a Lands; or

b. the determination of whether to impose a penalty referred to in

paragraphs 51 and 52 and the amount of that penalty.

54. During the transition period, the powers of the Forest

Practices Board set out in forest practices legislation in respect of complaints, audits

and special reports apply on Nis g a'a Lands to holders of agreements under the Forest

Act and to holders of licences.

55. During the transition period, the Forest Practices Board

will perform an annual audit of compliance with and enforcement of forest practices

legislation on Nis g a'a Lands.

56. The Nis g a'a Nation is responsible for enforcing

compliance with laws made under paragraphs 6 and 11.

FOREST FIRES AND FOREST HEALTH

Forest Fire Control and Suppression on Nis g a'a Lands

57. During the transition period, British Columbia is

responsible for the control and suppression of forest fires on Nis g a'a Lands:

a. to the same extent and in the same manner as it is responsible for

the control and suppression of forest fires on Crown land elsewhere in British Columbia;

and

b. by using the same priority assessment that it uses to assign

priority to the control and suppression of forest fires on Crown land elsewhere in British

Columbia.

58. During the transition period, Canada will pay the costs

incurred by British Columbia in controlling and suppressing forest fires that originate on

former Nis g a'a Indian reserves on the same basis as would have applied if the

former Nis g a'a Indian reserves had remained Indian reserves under the Indian Act .

59. After the transition period, British Columbia is

responsible for control and suppression of forest fires on Nis g a'a Public Lands:

a. to the same extent and in the same manner as it is responsible for

the control and suppression of forest fires on Crown land elsewhere in British Columbia;

and

b. by using the same priority assessment that it uses to assign

priority to the control and suppression of forest fires on Crown land elsewhere in British

Columbia.

60. After the transition period, the Nis g a'a Nation will

be responsible for the control and suppression of forest fires on Nis g a'a Village

Lands and on Nis g a'a Private Lands.

61. After the transition period, the Nis g a'a Nation will

pay the costs incurred by British Columbia in controlling and suppressing forest fires on

Nis g a'a Public Lands if the forest fire:

a. originates on Nis g a'a Public Lands and is caused by

an act

of God or an industrial user authorized by the Nis g a'a Nation;

b. originates on Crown land and is caused by

an act of God;

c. originates on private land and is caused by

an act of God; or

d. originates on Nis g a'a Village Lands or on Nis g a'a

Private Lands.

Forest Health

62. Except for the responsibilities of the holders of licences

set out in Appendix H, the Nis g a'a Nation is responsible for forest health on Nis g a'a

Lands.

63. If a forest health problem on Nis g a'a Lands

threatens forest resources on adjacent Crown land:

a. British Columbia may notify the Nis g a'a Nation of the

nature, extent and location of the forest health problem;

b. if the Nis g a'a Nation receives notice under subparagraph

(a), it will, within a reasonable time, take all reasonable measures to mitigate the

forest health problem;

c. if the Nis g a'a Nation does not meet its obligation under

subparagraph (b), British Columbia, after providing reasonable notice to the Nis g a'a

Nation, may enter onto Nis g a'a Lands and carry out reasonable measures, consistent

with Nis g a'a laws made under paragraphs 6 and 11, to mitigate the forest health

problem;

d. British Columbia will use, to the extent that they are available

and qualified, Nis g a'a citizens to carry out measures under subparagraph (c); and

e. the Nis g a'a Nation will reimburse British Columbia for all

reasonable costs incurred by British Columbia in carrying out measures under

subparagraph (c).

64. If British Columbia becomes aware of forest health problems

on Crown land that threaten forest resources on Nis g a'a Lands, British Columbia

will:

a. within a reasonable time, take all reasonable measures to mitigate

the identified forest health problem; and

b. compensate the Nis g a'a Nation for any damage to forest

resources on Nis g a'a Lands that result from its failure to meet its obligation

under subparagraph (a).

TIMBER PROCESSING

65. Provincial laws in respect of manufacture in British

Columbia of timber harvested from Crown land apply to timber harvested from Nis g a'a

Lands.

66. The Nis g a'a Nation may apply to British Columbia to

export timber harvested from Nis g a'a Lands.

67. During the transition period, British Columbia will approve

an application referred to in paragraph 66 if the application is in accordance with

provincial laws and policies.

68. Paragraph 65 does not apply in respect of timber harvested

from former Nis g a'a Indian reserves during the transition period.

69. Timber harvested from former Nis g a'a Indian reserves

during the transition period may be exported in accordance with federal laws as if the

timber had been harvested from a "reserve" as defined in the Indian Act.

70. The Nis g a'a Nation, a Nis g a'a Village, or a

Nis g a'a Corporation will not establish a primary timber processing facility for 10

years after the effective date.

71. Paragraph 70 does not preclude the Nis g a'a Nation, a

Nis g a'a Village, or a Nis g a'a Corporation from:

a. establishing a timber processing facility to provide lumber for

use by the Nis g a'a Nation, a Nis g a'a Village, Nis g a'a Institutions, a

Nis g a'a Corporation, or Nis g a'a citizens for residential or public purposes;

b. conducting value-added timber processing; or

c. entering into any partnership or joint venture with the owner of

an existing timber processing facility.

ECONOMIC CONSIDERATIONS

Same Economic Position

72. British Columbia, in accordance with Appendix H, will make

payments to the Nis g a'a Nation in respect of timber harvested by holders of

licences during the transition period.

Restoration

73. British Columbia and Canada recognize that the present and

anticipated efforts of the Nis g a'a Nation to restore watersheds within the Nass

Area are consistent with the objectives of Forest Renewal British Columbia.

74. The Nis g a'a Nation, a Nis g a'a Village, a Nis g a'a

Corporation, or a Nis g a'a citizen may apply for funding for restoration of Nis g a'a

Lands under federal, provincial, or Crown corporation programs, in accordance with

requirements and guidelines of those programs.

FOREST RESOURCES OUTSIDE NIS G A'A

LANDS

Forest Management

75. Canada or British Columbia will provide the Nis g a'a

Nation, through the Joint Fisheries Management Committee and the Wildlife Committee, the

information concerning forest development plans applicable to all or part of the Nass Area

that is provided to the ministries or departments of Canada and British Columbia

participating on those committees.

Forest Tenures

76. British Columbia agrees in principle to an acquisition by

the Nis g a'a Nation of a forest tenure or tenures having an aggregate allowable

annual cut of up to 150,000 m 3 .

77. An acquisition referred to in paragraph 76 will require

approval by the Minister of Forests in accordance with the Forest Act.

78. The Minister of Forests supports, and will approve, an

acquisition referred to in paragraph 76 if the Minister is satisfied that:

a. there has been a public process, in accordance with Ministry

policy on tenure transfers and corporate concentration, that identifies public interests

in relation to those matters; and

local employment and economic opportunities, including those in the Nass Area, and

regional fibre supply needs.

79. In addition to the requirements set out in paragraphs 77

and 78, if the tenure to be acquired by the Nis g a'a Nation is a Tree Farm Licence,

the approval of the Minister of Forests will be conditional upon the agreement by the Nis g a'a

Nation to the inclusion of a portion of Nis g a'a Lands as

Schedule A Lands within

the Tree Farm Licence.

80. The portion of Nis g a'a Lands to be included as

Schedule A Lands within a Tree Farm Licence will be:

a. negotiated at the time of the Tree Farm Licence acquisition; and

b. based on appropriate management considerations.

81. Nothing in this Agreement limits the ability of the Nis g a'a

Nation, a Nis g a'a Village, a Nis g a'a Corporation, or a Nis g a'a

citizen to acquire a forest tenure under the Forest Act .

82. A forest tenure referred to in paragraph 76 or 81 that is

acquired by the Nis g a'a Nation, a Nis g a'a Village, a Nis g a'a

Corporation, or a Nis g a'a citizen, is subject to federal and provincial laws of

general application.

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