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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 8 OF 22

CHAPTER 8

FISHERIES

GENERAL

Nis g a'a Fish Entitlements

1. Nis g a'a citizens have the right to harvest fish and

aquatic plants in accordance with this Agreement, subject to:

a. measures that are necessary for conservation; and

b. legislation enacted for the purposes of public health or public

safety.

2. Notwithstanding that Nis g a'a fish entitlements are

treaty rights, a Nis g a'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.

3. This Agreement is not intended to alter federal and

provincial laws of general application in respect of property in fish or aquatic plants.

4. Nis g a'a fish entitlements are held by the Nis g a'a

Nation.

5. The Nis g a'a Nation may not dispose of Nis g a'a

fish entitlements.

6. Nis g a'a Lisims Government may authorize persons other

than Nis g a'a citizens to harvest fish or aquatic plants in Nis g a'a

fisheries, in accordance with this Agreement, the Harvest Agreement and Nis g a'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

7. Canada and British Columbia will not require the Nis g a'a

Nation, Nis g a'a Villages, Nis g a'a Institutions, Nis g a'a Corporations,

Nis g a'a citizens, or other persons authorized by Nis g a'a Lisims Government

to harvest fish or aquatic plants under this Agreement:

a. to have federal or provincial licences; or

b. 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.

8. 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 Nis g a'a Lisims Government, a Nis g a'a

Institution, or a Nis g a'a Corporation funds or performs the activities for which

those fees and charges are levied.

Trade and Barter

9. Subject to Nis g a'a laws, Nis g a'a citizens have

the right to trade or barter among themselves or with other aboriginal people any fish and

aquatic plants harvested in Nis g a'a fisheries.

Harvesting Under Other Laws and Agreements

10. This Agreement does not preclude Nis g a'a

Institutions, Nis g a'a Corporations, or Nis g a'a citizens from harvesting fish

and aquatic plants throughout Canada in accordance with:

a. federal and provincial laws;

b. any agreements that are in accordance with laws of general

application between 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, on the one hand, and other aboriginal people

on the other; or

c. any arrangements between other aboriginal people and Canada or

British Columbia.

SALMON

Nis g a'a Salmon Allocations

11. 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.

12. The Minister will not permit any directed harvests of a

species of Nass salmon in any year if:

a. there is a minimum escapement level for that species of Nass

salmon; and

b. 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.

13. In any year:

a. if the Minister has not determined a minimum escapement level for

a species of Nass salmon; or

b. 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 Nis g a'a Nation is

entitled to harvest will be determined in accordance with

Schedule A and paragraph 16.

14. The amount of each species of Nass salmon in the Nis g a'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

15. Following the fishing season in each year, the Minister and

Nis g a'a Lisims Government will conduct an accounting of that year's harvest of Nass

salmon, in accordance with

Schedule B.

16. 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 Nis g a'a

fisheries will be adjusted in subsequent years, in accordance with

Schedule B.

17. 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.

18. The Minister and Nis g a'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

19. In any year the Minister and Nis g a'a Lisims

Government may agree to adjust the species composition of the Nis g a'a harvest for

that year in accordance with the system of equivalencies set out in

Schedule C.

20. If a proposed Nis g a'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 Nis g a'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

21. 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.

22. The Harvest Agreement will:

a. include Nis g a'a fish allocations equivalent to:

i. 13% of each year's adjusted total allowable catch for Nass

sockeye salmon, and

ii. 15% of each year's adjusted total allowable catch for Nass

pink salmon;

b. be for a term of 25 years and be replaceable at the discretion of

the Nis g a'a Nation every 15 years for a further 25 years;

c. 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

d. include a dispute resolution process and a requirement for fair

compensation if the Harvest Agreement is breached by terminating or reducing the Nis g a'a

fish allocations pursuant to subparagraph (a).

23. The Harvest Agreement will be established under federal and

provincial settlement legislation.

24. 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.

25. The Minister will implement the Harvest Agreement by:

a. issuing licences to Nis g a'a Lisims Government; or

b. other means under federal or provincial laws.

26. Fisheries under the Harvest Agreement have the same

priority as commercial and recreational fisheries in fisheries management decisions made

by the Minister.

27. Fish harvested under the Harvest Agreement may be sold in

accordance with the Harvest Agreement.

Harvest of Surplus Nass Salmon

28. In any year, the Minister may determine whether there is a

surplus of a species of Nass salmon, and the size of that surplus.

29. The Joint Fisheries Management Committee may:

a. recommend to the Minister procedures for the identification of a

b. provide advice to the Minister in respect of the size of the

surplus.

30. The Minister may permit Nis g a'a Lisims Government to

harvest some or all of the surplus Nass salmon on reaching agreement with Nis g a'a

Lisims Government in respect of:

b. whether all or part of the harvest will be included in the

determination of overages and underages.

Disposition of Salmon Harvests

31. Subject to paragraph 33, the Nis g a'a Nation, and its

agents, contractors, and licensees authorized by Nis g a'a Lisims Government, have

the right to sell Nass salmon harvested under this Agreement.

32. 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 Nis g a'a

fisheries.

33. 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 Nis g a'a

fisheries will not be permitted.

ENHANCEMENT

34. Nis g a'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.

35. 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 Nis g a'a

enhancement initiatives in the Nass Area will be excluded from the determination of the

Nis g a'a fish allocations under paragraph 13 for that year. The Nis g a'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.

36. The Nis g a'a Nation has the right to harvest surplus

Nass salmon that result from an approved Nis g a'a enhancement initiative, in the

same proportion as the Nis g a'a contribution to the total cost of the initiative.

These harvests are not subject to paragraph 16 and are in addition to the Nis g a'a

fish allocations under paragraph 13 and 35 and the Harvest Agreement.

37. Notwithstanding paragraphs 13, 16, 35, and 36, the Minister

and Nis g a'a Lisims Government may negotiate agreements in respect of the Nis g a'a

harvests of Nass salmon or Nass steelhead that result from Nis g a'a enhancement

initiatives.

STEELHEAD

General

38. Subject to paragraph 43, Nis g a'a fish entitlements

of Nass steelhead are for domestic purposes.

39. 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:

a. reliable estimates of sustainable harvest, including the

determination of escapement requirements and total allowable catch;

b. the productive capacity of fish habitat in the Nass Area; and

c. measures to improve Nass steelhead stocks and plans to implement

those measures.

40. 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 Nis g a'a Lisims Government on the conduct of those studies.

41. 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 Nis g a'a Lisims Government on

appropriate measures to address the concern.

42. 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

43. Any sale of Nass steelhead harvested under this Agreement

will be in accordance with federal and provincial laws of general application, and any Nis g a'a

law in respect of sale of fish.

Summer-run Steelhead

44. British Columbia and the Nis g a'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.

45. If no annual escapement goal for summer-run Nass steelhead

is established under paragraph 42, subject to paragraph 43, Nis g a'a citizens

have the right to harvest summer-run Nass steelhead for domestic purposes.

46. If an annual escapement goal for summer-run Nass steelhead

is established under paragraph 42, Nis g a'a citizens have the right to harvest

summer-run Nass steelhead under the Nis g a'a fish allocation set out in

Schedule D.

47. Subject to the Nis g a'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 Nis g a'a Nation and British Columbia will take measures to

limit summer-run Nass steelhead mortalities.

Winter-run Steelhead

48. Before a Nis g a'a fish allocation of winter-run Nass

steelhead is established under paragraph 49, subject to paragraph 43, Nis g a'a

citizens have the right to harvest winter-run Nass steelhead for domestic purposes.

49. If an annual escapement goal for winter-run Nass steelhead

is established under paragraph 42, British Columbia and the Nis g a'a Nation may

negotiate a Nis g a'a fish allocation of winter-run Nass steelhead. Any Nis g a'a

fish allocation established under this paragraph will be added to

Schedule D.

50. If a Nis g a'a fish allocation of winter-run Nass

steelhead is established under paragraph 49, Nis g a'a citizens have the right

to harvest winter-run Nass steelhead under that Nis g a'a fish allocation.

51. 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

Nis g a'a Fish Entitlements of Non-Salmon Species and

Aquatic Plants

52. Subject to paragraph 67, Nis g a'a fish entitlements

to non-salmon species and aquatic plants are for domestic purposes.

53. Before a Nis g a'a fish allocation of a non-salmon

species or an aquatic plant is established under this Agreement, Nis g a'a citizens

have the right to harvest non-salmon species and aquatic plants within the Nass Area for

domestic purposes.

54. Canada or British Columbia, in respect of any non-salmon

species or aquatic plant within their respective management authority, or the Nis g a'a

Nation may propose the establishment of a Nis g a'a fish allocation that will be the

Nis g a'a fish entitlement to that non-salmon species or aquatic plant.

55. Unless otherwise agreed by the Nis g a'a Nation and

Canada or British Columbia for non-salmon species or aquatic plants, within their

respective management authority, the Nis g a'a fish allocation of each non-salmon

species or aquatic plant will be 125% of the basic Nis g a'a fish entitlement to that

species.

56. The basic Nis g a'a fish entitlements to non-salmon

species and aquatic plants will be determined by taking into account:

a. current and past Nis g a'a use for domestic purposes;

b. the impact of conservation requirements and harvesting by others

on Nis g a'a use for domestic purposes;

c. the biological status of the species;

d. changes in Nis g a'a fishing effort; and

e. other factors that the Nis g a'a Nation and Canada or British

Columbia, as the case may be, agree are relevant.

57. Before a Nis g a'a fish allocation of a non-salmon

species or aquatic plant is established, the Nis g a'a Nation and Canada or British

Columbia, for non-salmon species and aquatic plants within their respective management

authority, will:

a. seek the advice of the Joint Fisheries Management Committee on the

determination of the basic Nis g a'a fish entitlement to that non-salmon species or

aquatic plant; and

b. conduct any studies they consider necessary to determine the basic

Nis g a'a fish entitlement to that non-salmon species or aquatic plant.

58. As soon as practicable after the effective date, the Nis g a'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 Nis g a'a fish entitlements to:

a. dungeness, tanner, and king crab;

b. halibut;

c. prawns and shrimp;

d. herring; and

e. aquatic plants used in the herring roe-on-kelp fishery.

59. If the Nis g a'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 Nis g a'a fish entitlement to a non-salmon

species or aquatic plant, that basic Nis g a'a fish entitlement will be finally

determined by arbitration under the Dispute Resolution Chapter.

60. Any Nis g a'a fish allocation of non-salmon species or

aquatic plants established under this

Chapter will be set out in

Schedule E.

61. If a Nis g a'a fish allocation is established for a

non-salmon species or aquatic plant, Nis g a'a citizens have the right to harvest

that non-salmon species or aquatic plant under that Nis g a'a fish allocation.

Oolichan

62. The Nis g a'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.

63. If there are any agreements between the Nis g a'a

Nation and other aboriginal people in respect of the harvesting of oolichan in the Nass

Area, Nis g a'a harvests of those oolichan will be in accordance with those

agreements.

Intertidal Bivalves

64. Nis g a'a citizens have the right to harvest, for

domestic purposes, intertidal bivalves within those portions of the Nass Area set out in

Appendix I.

65. The right to harvest intertidal bivalves set out in

paragraph 64 is the Nis g a'a fish allocation of intertidal bivalves.

66. 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

67. Any sale of non-salmon species and aquatic plants harvested

under Nis g a'a fish entitlements will be in accordance with federal and provincial

laws of general application and any Nis g a'a law in respect of sale of fish or

aquatic plants.

FISHERIES MANAGEMENT

Responsibilities of the Parties

68. Subject to this Agreement, the Minister is responsible for

the management of fisheries and fish habitat.

69. Nis g a'a Lisims Government may make laws that are in

respect of the Nis g a'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 Nis g a'a annual fishing plans including

matters such as:

a. distribution of the Nis g a'a fish entitlements under this

Agreement and Nis g a'a fish allocations under the Harvest Agreement;

b. authorization of persons other than Nis g a'a citizens to

harvest fish or aquatic plants from the Nis g a'a fish entitlements under this

Agreement and Nis g a'a fish allocations under the Harvest Agreement;

c. the trade or barter of fish or aquatic plants harvested under the

Nis g a'a fish entitlements under this Agreement or the Nis g a'a fish

allocations under the Harvest Agreement;

d. designation and documentation of fishing vessels;

e. identification, in a manner compatible with that required under

federal and provincial laws of general application, of fishing vessels and gear; and

f. other matters agreed to by the Parties.

70. Nis g a'a Lisims Government will make laws that are

consistent with this Agreement and the Harvest Agreement and that are not inconsistent

with Nis g a'a annual fishing plans:

a. to establish and administer licensing requirements, for the

harvest of fish or aquatic plants under this Agreement and the Harvest Agreement; and

b. to require the designation and documentation of persons who

harvest fish or aquatic plants under this Agreement or the Harvest Agreement.

71. In the event of an inconsistency or conflict between a Nis g a'a

law made under paragraphs 69 or 70 and a federal or provincial law, the Nis g a'a law

will prevail to the extent of the inconsistency or conflict.

72. Nis g a'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.

73. 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.

74. Nis g a'a Lisims Government will make laws to require:

a. that any fish harvested under this Agreement or the Harvest

Agreement that are transported outside Nis g a'a Lands for the purpose of trade or

barter be identified as fish for trade or barter; and

b. Nis g a'a citizens and the authorized agents, contractors,

and licensees of Nis g a'a Lisims Government to comply with Nis g a'a annual

fishing plans.

Nis g a'a Fisheries Operational Guidelines

75. The Parties will prepare and maintain a document to be

known as the "Nis g a'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 Nis g a'a

annual fishing plans. The Parties will amend the document as required as improved

fisheries management and stock assessment procedures are developed.

76. The Nis g a'a Fisheries Operational Guidelines:

a. is not a part of this Agreement;

b. 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

c. does not create legal obligations.

Management Structure

77. On the effective date, the Parties will establish the Joint

Fisheries Management Committee to facilitate cooperative planning and conduct of Nis g a'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:

a. sharing information and plans for existing and proposed fisheries

that could affect or be affected by Nis g a'a fisheries;

b. arranging for collection and exchange of data required to carry

out the provisions of this Chapter;

c. providing advice concerning escapement goals;

d. making recommendations to the Minister and Nis g a'a Lisims

Government in respect of other conservation requirements and the management of fish and

aquatic plants;

e. providing advice to the Parties in respect of the determination of

the basic Nis g a'a fish entitlements to non-salmon species and aquatic plants;

f. making recommendations to the Minister and Nis g a'a Lisims

Government in respect of Nis g a'a overages and underages, in accordance with

Schedule B;

g. making recommendations to the Minister and Nis g a'a Lisims

Government in respect of Nis g a'a annual fishing plans;

h. making recommendations to the Minister and Nis g a'a Lisims

Government in respect of studies for enhancement and enhancement initiatives;

i. making recommendations and providing advice to the Minister in

respect of surpluses;

j. 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;

k. communicating with other management or advisory bodies in respect

of matters of mutual interest;

l. providing advice on the coordination of the Nis g a'a annual

fishing plans and proposed decisions of Nis g a'a Lisims Government in respect of

methods, timing, and locations of harvests;

m. providing advice in respect of any proposed in-season adjustments

to the Nis g a'a annual fishing plans; and

n. carrying out other responsibilities agreed to by the Parties.

78. 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 Nis g a'a annual fishing plan, and Nis g a'a Lisims Government will, as

far in advance as practicable, give notice to the Joint Fisheries Management Committee of

any proposed decisions of Nis g a'a Lisims Government in respect of methods, timing,

and locations of Nis g a'a harvests.

79. The Joint Fisheries Management Committee will have six

members. The Nis g a'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 Nis g a'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 Nis g a'a Nation and British

Columbia are responsible for functions in respect of fisheries managed by British

Columbia.

80. 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.

81. 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.

82. 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

83. 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 Nis g a'a

Nation in developing those bodies and, if appropriate, will provide for the participation

of the Nis g a'a Nation in those bodies.

Nis g a'a Annual Fishing Plans

84. Nis g a'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:

a. the methods, timing, and locations of harvest;

b. monitoring of harvest;

c. enforcement;

d. stock assessment and enhancement;

f. authorized harvest by persons other than Nis g a'a citizens

or Nis g a'a Lisims Government;

g. in-season adjustments to any of the matters referred to in this

paragraph; and

h. other matters that the Parties agree to include in the Nis g a'a

annual fishing plans.

85. The monitoring provisions referred to in subparagraph

84 (

b) may include:

a. requirements for identification of persons authorized to harvest;

b. processes for catch monitoring that may include the establishment

of designated landing sites and procedures for the transportation of fish;

c. processes for reporting and accounting of harvest and sale;

d. requirements for compiling and reporting data to the Minister; and

e. processes for verification by the Minister of the monitoring

processes.

86. Each year Nis g a'a Lisims Government will propose Nis g a'a

annual fishing plans that:

a. are consistent with Nis g a'a fish entitlements under this

Agreement and Nis g a'a fish allocations under the Harvest Agreement;

b. set out any Nis g a'a preferences for methods, timing, and

locations of harvest; and

c. take into account any management concerns identified by the

Minister or Nis g a'a Lisims Government.

87. Nis g a'a Lisims Government will forward the proposed

Nis g a'a annual fishing plans to the Joint Fisheries Management Committee on a

timely basis.

88. The Joint Fisheries Management Committee, on a timely

basis, will:

a. consider the proposed Nis g a'a annual fishing plans;

b. make any appropriate adjustments that are necessary to integrate

the Nis g a'a annual fishing plans with other fisheries conservation and harvesting

plans, while giving effect to the Nis g a'a preferences in respect of methods,

timing, and locations of harvest, to the extent possible; and

c. make recommendations regarding the proposed Nis g a'a annual

fishing plans to the Minister and Nis g a'a Lisims Government.

Review of Recommendations

89. In considering recommendations of the Joint Fisheries

Management Committee, the Minister will take into account:

a. conservation requirements and availability of fisheries resources;

b. any Nis g a'a preferences in respect of methods, timing, and

locations of harvests throughout the Nass Area, set out in the recommendations;

c. utilization of the fisheries resources for the benefit of all

Canadians;

d. efficient and effective harvesting of fisheries resources;

e. requirements for integration and efficient management of all

fisheries;

f. accepted scientific procedures for management of fisheries

resources; and

g. any other matters the Minister considers appropriate.

90. After considering the recommendations of the Joint

Fisheries Management Committee under paragraph 89, the Minister, on a timely basis, will:

a. approve, or vary and approve, the Nis g a'a annual fishing

plans recommended by the Joint Fisheries Management Committee, or its members, and provide

written reasons for varying Nis g a'a annual fishing plans; and

b. 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 Nis g a'a annual fishing plans, and approvals

and rejections of other recommendations, must be consistent with this Agreement and the

Harvest Agreement.

91. If special circumstances make it impracticable to receive

advice from the Joint Fisheries Management Committee, the Minister:

a. may make the decision or take the action that the Minister

considers necessary, without receiving advice from the Joint Fisheries Management

Committee; and

b. 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

92. In order to:

a. avoid duplication of requirements between a Nis g a'a annual

fishing plan and federal and provincial laws of general application; and

b. otherwise facilitate the management of Nis g a'a fisheries

if there is an inconsistency between a Nis g a'a annual

fishing plan and a federal or provincial law of general application, the Nis g a'a

annual fishing plan prevails to the extent of the inconsistency.

Enforcement

93. The Nis g a'a Nation may negotiate agreements with

Canada or British Columbia concerning enforcement of federal, provincial or Nis g a'a

laws in respect of fisheries.

94. Persons who harvest or sell fish or aquatic plants under

this Agreement may be required to show proof of their authority to do so.

95. Nis g a'a laws made in accordance with this

Chapter

may be enforced by persons authorized to enforce federal, provincial, or Nis g a'a

laws in respect of fish and aquatic plants in British Columbia.

LISIMS FISHERIES CONSERVATION TRUST

Establishment

96. As soon as practicable after the effective date, Canada and

the Nis g a'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

97. Canada and the Nis g a'a Nation will each appoint an

equal number of trustees of the Lisims Fisheries Conservation Trust, and Canada and the

Nis g a'a Nation will appoint one additional trustee jointly.

Other Charities

98. In order to realize most effectively the objects of the

Lisims Fisheries Conservation Trust, Canada and the Nis g a'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

99. The objects of the Lisims Fisheries Conservation Trust will

be to:

a. promote conservation and protection of Nass Area fish species;

b. facilitate sustainable management of fisheries for Nass Area

species and stocks; and

c. promote and support Nis g a'a participation in the

stewardship of Nass Area fisheries

for the benefit of all Canadians.

Trustees' Responsibilities

100. 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.

101. 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:

a. to evaluate specific and integrated conservation needs and habitat

requirements for all species of Nass Area fish;

b. to assess the status of Nass salmon and non-salmon species;

c. to provide for appropriate salmon escapement monitoring processes;

d. to facilitate the seasonal estimation of Nass salmon and

non-salmon species production including providing procedures required to give effect to

the Nis g a'a fisheries;

e. to facilitate the discrimination of Nass salmon stocks and to

evaluate factors limiting the production of Nass salmon and non-salmon species; and

f. to obtain gifts, donations, grants, and other contributions to the

Lisims Fisheries Conservation Trust.

102. 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.

103. 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 Nis g a'a fisheries and the determination of factors limiting the production

of Nass salmon and non-salmon species.

104. 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.

105. The trustees will not use the Lisims Fisheries

Conservation Trust property to support:

a. projects, programs, or activities that:

i. monitor fisheries, other than Nis g a'a fisheries, outside

the Nass Area, or

ii. collect stock assessment data for salmon stocks originating

from streams outside of the Nass Area, except as required to assess Nass salmon stocks;

b. the establishment or operation of, or representation on, the Joint

Fisheries Management Committee;

c. salaries of full time employees of the Department of Fisheries and

Oceans; or

d. the purchase of equipment for the Department of Fisheries and

Oceans.

106. 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

107. Within 60 days of the effective date, or later if Canada

and the Nis g a'a Nation agree, Canada and the Nis g a'a Nation will each settle

on the trustees the respective amounts described in

Schedule F.

108. The Lisims Fisheries Conservation Trust property may be

increased by gifts, donations, grants, and other contributions.

109. 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

110. 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 Nis g a'a Nation under this Agreement.

PARTICIPATION IN THE GENERAL

COMMERCIAL FISHERY

111. On the effective date, Canada and British Columbia will

each provide funding in the respective amounts described in

Schedule G to the Nis g a'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.

112. At the request of the Nis g a'a Nation, Canada, and

British Columbia will provide the Nis g a'a Nation with support for the acquisition

of the commercial licences, or vessels and commercial licences, referred to in paragraph

111, including:

a. general fishing industry information;

b. available information concerning the fleet composition and number

of commercial vessels;

c. available commercial fishing industry cost and earnings

information;

d. estimated commercial vessel and commercial licence costs; and

e. recent estimates of commercial harvests and landed values.

113. Notwithstanding paragraph 111, the Nis g a'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

114. 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 Nis g a'a herring roe-on-kelp

impoundment.

INTERNATIONAL ARRANGEMENTS

115. Canada will consult with the Nis g a'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.

116. This Agreement will not affect or preclude participation

of the Nis g a'a Nation, Nis g a'a Villages, Nis g a'a Institutions, Nis g a'a

Corporations, or Nis g a'a citizens in commissions or fisheries management advisory

bodies.

PROCESSING FACILITIES

117. The Nis g a'a Nation, Nis g a'a Villages, Nis g a'a

Institutions, or Nis g a'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 – NIS G A'A FISH ALLOCATIONS

FOR SALMON

1. Subject to paragraphs 2 and 3 of this Schedule, in each year

the Nis g a'a fish allocation of each species of Nass salmon is:

a. the percentage for that species set out in Table 1, Row 1,

multiplied by

b. the estimated number of that species returning to Canada in that

year, and

c. if a portion of the return to Canadian waters of chinook, coho, or

chum salmon can be identified as resulting from Nis g a'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.

2. 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 Nis g a'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 Nis g a'a

fish allocation will not exceed the return to Canada minus the minimum escapement level.

3. 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

Nis g a'a fish allocation will not exceed the maximum for that species set out in

Table 1, Row 3.

4. If, in any year, a portion of the return of chinook, coho,

or chum salmon is identified as resulting from Nis g a'a enhancement initiatives in

the Nass Area, as described in subparagraph 1 (

c) of this Schedule, the Nis g a'a

fish allocations of these fish are as set out in paragraph 35 of the Fisheries Chapter.

Species

Sockeye

Pink

Chinook

Coho

Chum

Nis g a'a share (%) of return to Canada

10.5%

0.6%

21.0%

8.0%

8.0%

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

Nis g a'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

1. For the purpose of catch accounting, harvests for each

salmon species are classified into two groups of fisheries:

a. Nis g a'a fisheries; and

b. other Canadian fisheries harvesting Nass salmon.

2. To determine the overage or underage for a Nass salmon

species in Nis g a'a fisheries, the following post-season estimates are required for

each species of salmon:

a. the total return to Canada (the "TRTC") for that species

of Nass salmon;

b. the total escapement to Nass Area streams (the "Post-Season

Escapement Estimate");

c. the harvest share for Nis g a'a fisheries (the "Nis g a'a

Share") for that year determined in accordance with the Nis g a'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 Nis g a'a Share for overages and underages;

d. the harvest allowed for other Canadian fisheries (the

"Remaining Allowable Catch") based on the post-season estimate of TRTC, the

escapement goal and the Nis g a'a Share for that year;

e. the total number of fish of that species caught in Nis g a'a

fisheries (the "Nis g a'a Catch");

f. the total number of Nass salmon of that species caught in other

Canadian fisheries (the "Other Catch"); and

g. the total catch for a year (the "Total Catch")

determined by adding the Nis g a'a Catch to the Other Catch.

3. In each year, the Nis g a'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 Nis g a'a Account is a number greater than zero, then there

is an overage. If the Nis g a'a Account is a number less than zero, then there is an

underage.

4. The Nis g a'a Account for salmon in each year will be

calculated as follows:

a. 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 Nis g a'a fish allocations and the Nis g a'a Catch is less than the Nis g a'a

Share, and the Other Catch is less than or equal to the Remaining Allowable Catch, the Nis g a'a

Account is zero;

b. if the Post-Season Escapement Estimate is greater than or equal to

the escapement goal and the Nis g a'a Catch is more than the Nis g a'a Share,

the Nis g a'a Account is:

Nis g a'a Account = Nis g a'a Catch - Nis g a'a

Share;

c. 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

Nis g a'a Account is:

Nis g a'a Account = Remaining Allowable Catch - Other Catch;

d. if the Post-Season Escapement Estimate is less than or equal to

the escapement goal and there is a Nis g a'a Share and there is no Remaining

Allowable Catch, the Nis g a'a Account is:

Nis g a'a Account = Nis g a'a Catch - Nis g a'a

Share - Other Catch;

e. if the Post-Season Escapement Estimate is less than the escapement

goal and there is a Nis g a'a Share and there is a Remaining Allowable Catch, the Nis g a'a

Account for sockeye salmon is:

Nis g a'a Account = Nis g a'a Catch - Nis g a'a

Share - 13% of the Overharvest;

and the Nis g a'a Account for pink salmon is:

Nis g a'a Account = Nis g a'a Catch - Nis g a'a

Share - 15% of the Overharvest;

and the Nis g a'a Account for each of the other salmon species

is:

Nis g a'a Account = Nis g a'a Catch

Nis g a'a Share • Total Catch

(Nis g a'a Share + Remaining Allowable Catch)

5. In each year, the "Cumulative Nis g a'a

Account" for each species will be calculated by adding that year's Nis g a'a

Account for that species, to the previous year's Cumulative Nis g a'a Account for

that species as adjusted under paragraph 6 of this

Schedule or paragraph 30 of the

Fisheries Chapter.

Adjustment of the Nis g a'a Harvest

6. The Minister and Nis g a'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:

a. unless otherwise agreed by the Minister and Nis g a'a Lisims

Government, any adjustments to the Nis g a'a harvest in that year for past overages

will not exceed 5% of the total Nis g a'a fish allocations of that species;

b. any adjustments to the Nis g a'a harvest in that year for

past underages will only be made if those adjustments:

i. are approved by Nis g a'a Lisims Government, and

ii. unless otherwise agreed by the Minister and Nis g a'a

Lisims Government, do not exceed 5% of the pre-season estimate of the Remaining Allowable

Catch for that species;

c. the Minister and Nis g a'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 Nis g a'a Account; and

d. if an adjustment is made to the Nis g a'a harvest under

subparagraphs (a), (b), or (

c) or paragraph 30 of the Fisheries Chapter, a corresponding

adjustment will be made to the Cumulative Nis g a'a Account.

Joint Fisheries Management Committee Recommendations

7. The Joint Fisheries Management Committee will recommend to

the Minister and Nis g a'a Lisims Government adjustments to the Nis g a'a

harvest in Nis g a'a fisheries for each year to account for cumulative overages and

cumulative underages in accordance with this Schedule.

SCHEDULE C – SYSTEM OF SALMON EQUIVALENCIES

1. 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 Nis g a'a Lisims Government.

2. The sockeye equivalent factor for each salmon species will

be calculated as follows:

SE Chinook =

Chinook average weight

---------------------------------

Sockeye average weight

Chinook average price/weight

--------------------------------------

Sockeye average price/weight

SE Coho =

Coho average weight

---------------------------------

Sockeye average weight

Coho average price/weight

--------------------------------------

Sockeye average price/weight

SE Pink =

Pink average weight

---------------------------------

Sockeye average weight

Pink average price/weight

--------------------------------------

Sockeye average price/weight

SE Chum =

Chum average weight

---------------------------------

Sockeye average weight

Chum average price/weight

--------------------------------------

Sockeye average price/weight

SCHEDULE D – DETERMINATION OF THE NIS G A'A

FISH ALLOCATION OF STEELHEAD

1. 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.

2. The Nis g a'a fish allocation of summer-run Nass

steelhead under paragraph 46 of the Fisheries

Chapter will be equal to:

a. 5% of the total number of summer-run Nass steelhead returning to

the Nass Area; plus

b. 25% of the adjusted total allowable catch

but, in any event, the Nis g a'a fish allocation will not

exceed 1000 summer-run Nass steelhead.

SCHEDULE E – NIS G A'A FISH ALLOCATIONS

OF NON-SALMON SPECIES OR AQUATIC PLANTS

This

schedule will set out Nis g a'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

1. The amounts to be settled on the trustees of the Lisims

Fisheries Conservation Trust are:

a. $10 million by Canada; and

b. $3 million by the Nis g a'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

1. Funding under paragraph 111 of the Fisheries

Chapter will be

as follows:

a. $5.75 million will be paid by Canada; and

b. $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 paragraph 111 of the Fisheries

Chapter".

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