HARVEST AGREEMENT
THIS AGREEMENT made ___________.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Fisheries and Oceans
(“Canada”)
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of ___________
(“British Columbia”)
LHEIDLI T’ENNEH, as represented by Lheidli T’enneh Government
(“Lheidli T’enneh”)
WHEREAS:
Lheidli T'enneh, Canada and British Columbia have entered into the Lheidli T'enneh Final Agreement which provides that the Parties will enter into a Harvest Agreement on the Effective Date.
NOW THEREFORE in consideration of the premises and the covenants and agreements set out below, the Parties agree as follows:
1. Words and expressions in this Agreement that are capitalized but are not defined in this Agreement, but are defined in the Lheidli T’enneh Final Agreement, have the meanings ascribed to them in the Lheidli T’enneh Final Agreement.
2. In this Agreement:
“Agreement” means this Harvest Agreement and the Appendix;
“Canadian Commercial Total Allowable Catch” in respect of a stock or species of Fish, means the amount of the stock or species that the Minister determines is available for any commercial, recreational, experimental and demonstration fisheries harvest in Canadian waters, but excludes test fisheries and food, social and ceremonial fisheries;
“Commercial Allocation” means the Commercial Allocation described in paragraph 16 of this Agreement;
“Communication” means a notice, document, request, approval, authorization or consent required or permitted to be given or made under this Agreement;
“Eligibility”, in respect of a fishing licence, means the eligibility to apply for the fishing licence.
“Lheidli T’enneh Final Agreement” means the Lheidli T'enneh Final Agreement signed on behalf of Her Majesty in right of Canada on [__________],Her Majesty in right of British Columbia on [__________] and Lheidli T'enneh on [__________],and includes any amendments made to the Lheidli T'enneh Final Agreement from time to time in accordance with its provisions;
“Lheidli T'enneh Fisheries Operational Guidelines” means the Fisheries Operational Guidelines as referred to in the Fisheries Chapter of the Final Agreement;
“Licence” means a Licence referred to in paragraph 7;
“Parties” means Canada, British Columbia and Lheidli T’enneh;
“Party” means any one of the Parties; and
“Upper Fraser Sockeye Salmon” means sockeye salmon that originate in the Fraser River drainage system in or upriver of Naver Creek, but does not include kokanee salmon.
3. Canada will recommend to Parliament and the Governor-in-Council that legislation be enacted to implement this Agreement.
4. The legislation referred to in paragraph 3 may contain provisions for opening and closing fisheries, and such provisions may be similar to provisions for opening and closing the general commercial fisheries.
5. British Columbia will recommend to the Legislature of British Columbia that legislation be enacted to implement this Agreement.
6. This Agreement:
a. is not part of the Lheidli T’enneh Final Agreement; and
b. is not a treaty or land claims agreement and does not recognize or affirm any aboriginal or treaty rights within the meaning of sections 25 or 35 of the Constitution Act, 1982.
7. Each year, the Minister will issue one or more Licences to provide for the Commercial Allocation, pursuant to the legislation referred to in paragraphs 3, 4 and 5 to Lheidli T’enneh for an Upper Fraser Sockeye Salmon commercial fishery in the Lheidli T'enneh Fish Area in accordance with this Agreement.
8. For greater certainty, the Minister retains the authority to manage commercial fisheries, including whether to have any commercial fishery and, if so, where and when it will occur.
9. Subject to paragraph 10, this Agreement will come into force on the Effective Date of the Final Agreement or such earlier date as the Parties may agree.
10. If the Effective Date of the Final Agreement is later than August 15 in a year and the Parties do not agree on an earlier date for this Agreement to come into force, this Agreement will come into force on January 1 of the following year.
11. The term of this Agreement is 25 years, commencing on the date this Agreement comes into force.
12. Subject to paragraph 26, on the expiry of the term, this Agreement shall be renewed on the same terms and conditions, in perpetuity.
13. At any time, a Party may give notice in writing to the other Parties that it wishes to amend this Agreement.
14. Within six months of a Party giving notice under paragraph 13, the Parties will negotiate and attempt to reach agreement on the amendment, and those negotiations will be conducted as set out in the Dispute Resolution Chapter of the Lheidli T’enneh Final Agreement, but none of the Parties are obliged to proceed to Stage Three of that Chapter.
15. This Agreement may be amended with the written agreement of the Parties.
16. Each year, Lheidli T’enneh will have a Commercial Allocation equal to the sum of:
a. an amount equal to 0.7043 percent of the Canadian Commercial Total Allowable Catch of Upper Fraser Sockeye Salmon for that year; and
b. where, under paragraph 34 of the Fisheries Chapter of the Lheidli T’enneh Final Agreement, the Harvest Level for Upper Fraser Sockeye Salmon is reduced for that year, the amount of the reduction.
B. Potential Future Quota Reallocations
17. If the fisheries management system moves to a quota-based system for Upper Fraser Sockeye Salmon and there is a process to reallocate quota, Lheidli T'enneh may, in accordance with that process, request that all or part of:
a. any quota for Upper Fraser Sockeye Salmon that is held by a Lheidli T'enneh fishing licence for which Lheidli T’enneh have Eligibility be reallocated to the Commercial Allocation; or
b. the Commercial Allocation described in paragraph 16.a be reallocated and no longer form part of the Commercial Allocation.
18. Any quota reallocated under the process referred to in paragraph 17.a will not be compensable under paragraph 27.
19. For greater certainty, nothing in this Agreement precludes Lheidli T'enneh from participating in programs applying to other licensed commercial fishers.
20. The Parties will amend this Agreement to reflect any quota reallocated under the process referred to in paragraph 17.
C. Lheidli T'enneh Access to Unharvested CCTAC
21. The Joint Fisheries Committee may recommend that the Minister provide Lheidli T'enneh an allocation of unharvested Canadian Commercial Total Allowable Catch for Upper Fraser Sockeye Salmon that enters the Lheidli T'enneh Fish Area.
22. Where the Minister agrees to provide Lheidli T'enneh an allocation described in paragraph 21, the Minister will authorize the fishing.
23. For greater certainty, any allocations provided under paragraph 22 will be for that year only and will not be compensable under paragraph 27.
D. Other Stocks or Species
24. The Parties may agree on a Commercial Allocation for a stock or species, other than Upper Fraser Sockeye Salmon, for inclusion in this Agreement by amending this Agreement.
25. For greater certainty, any allocations provided under paragraph 24 will not be compensable under paragraph 27.
26. Any Party may, on giving 240 days notice to the other Parties, reduce the percentage in paragraph 16.a or terminate the Commercial Allocation or this Agreement.
27. If, under the process set out in paragraph 26, the percentage in paragraph 16.a is reduced or the Commercial Allocation or this Agreement is terminated, Lheidli T'enneh will be entitled to be paid fair compensation from the Party or Parties that reduced or terminated the Commercial Allocation, or terminated this Agreement.
28. If this Agreement is terminated, and
a. there is a process to reallocate quota; and
b. quota for Upper Fraser Sockeye Salmon was added pursuant to paragraph 17.a,
Lheidli T'enneh may use the process to reallocate the quota.
29. If the Parties cannot agree on determination of fair compensation, the Parties will submit the issue to the Dispute Resolution process described in paragraph 49.
30. Fishing under the Licences will be carried out by individuals who are identified to do so by Lheidli T'enneh.
31. Lheidli T'enneh will issue personal and non-transferable documentation to individuals identified under paragraph 30.
32. Documentation referred to in paragraph 31 will:
a. be in the English language and, at the discretion of Lheidli T’enneh, also in the Carrier language;
b. include the name and address of the individual; and
c. meet any requirements set out in the Lheidli T'enneh Fisheries Operational Guidelines.
33. Lheidli T’enneh will inform every individual who is identified under paragraph 30 to fish under a Licence of the provisions of the Licence.
B. Licence Fees and Charges
34. The Minister will not charge a fee for the issuance of a Licence to implement this Agreement.
35. Should participants in other commercial fisheries that harvest stocks or species included in this Agreement be required to pay management costs, other than licence fees, Lheidli T’enneh may be required to pay management costs on a similar basis unless, with the agreement of the Parties, Lheidli T'enneh is providing associated management services.
36. If the Minister establishes a consultation process with respect to management costs referred to in paragraph 35, Lheidli T’enneh may participate in that process on the same basis as participants in other commercial fisheries for Upper Fraser Sockeye Salmon.
C. Harvest Agreement Fishing Plan
37. Each year, Lheidli T’enneh will give the Joint Fisheries Committee, in a timely fashion, a fishing plan that sets out Lheidli T’enneh’s proposals as to how the fishing under this Agreement should be conducted that year.
38. A fishing plan will describe Lheidli T'enneh’s proposals with respect to:
a. the distribution of the Commercial Allocation among Upper Fraser Sockeye Salmon stocks;
b. the method, location and timing of the fishing;
c. the size, type, identification, marking and quantity of fishing gear and the manner in which it may be used;
d. catch monitoring and reporting of harvest;
e. other matters for which there may be provisions in a Licence; and
f. other matters.
39. The Parties agree that the Joint Fisheries Committee will review the fishing plan and make recommendations to the Minister as to what provisions should be included in the Licences.
40. Where a Party does not agree with a recommendation of the Joint Fisheries Committee, the Party may, in writing, recommend other provisions to be included in the Licences and will send a copy of the recommendations to the other Parties.
41. Where the Minister receives, in a timely fashion, a recommendation referred to in paragraph 39 or 40, the Minister will take the recommendation into account when the Minister issues Licences.
42. In the event that a Licence has material differences from the recommendations made by the Joint Fisheries Committee or Lheidli T'enneh, pursuant to paragraph 39 or 40, the Minister will provide written reasons to Lheidli T'enneh and the Joint Fisheries Committee for the differences.
D. Commercial Fishing Planning Processes
43. If the Minister establishes a planning process for commercial fisheries for Upper Fraser Sockeye Salmon, Lheidli T'enneh may participate in that process.
44. Where the Minister establishes or terminates a planning process for commercial fisheries for Upper Fraser Sockeye Salmon, the Minister will Consult Lheidli T’enneh in developing or terminating that process.
45. Where any notice, request, directions, information or other communication is required to be given pursuant to this Agreement, it shall be in writing and delivered personally, by registered mail or courier or facsimile, and unless notice to the contrary is given, shall be addressed to the Party at the address or number set out below:
a. To Canada:
Regional Director General
Fisheries and Oceans Canada
Suite 200, 401 Burrard Street
Vancouver, British Columbia,
Phone
Facsimile
b. To British Columbia:
Title
Ministry of Aboriginal Relations and Reconciliation
Address
Victoria, British Columbia,
c. To Lheidli T’enneh Government:
Lheidli T'enneh…
, British Columbia,
46. Such notices, requests, directions, information or other communication shall be deemed to have been received when the postal receipt is acknowledged by the other Party if sent by registered mail and the following business day if sent by courier, facsimile or delivered in person.
47. The Parties agree that if any person initiates legal proceedings that challenge the validity of some or all of this Agreement, the Parties will defend the validity of the Agreement in any such proceedings.
48. If a superior court of British Columbia or the Supreme Court of Canada finally determines any provision of this Agreement to be invalid or unenforceable, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.
49. If any issue arises with respect to interpretation of this Agreement where the Parties cannot reach an acceptable solution, the Parties will use the process described in the Dispute Resolution Chapter of the Final Agreement.
50. This Agreement shall be interpreted in accordance with the law in force in the Province of British Columbia, subject always to any paramount or applicable federal laws.
51. This Agreement constitutes the entire Agreement among the Parties.
52. Lheidli T'enneh may not assign or subcontract this Agreement or any part thereof.
53. For greater certainty, paragraph 52 does not affect the reallocation of quota in accordance with this Agreement.
THIS AGREEMENT HAS BEEN EXECUTED as of the day and year first above written.
EXECUTED in the presence of:
_______________________________
As to the authorized signatory for the Minister of Indian Affairs and Northern Development
)
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by __________________
_____________________________
Per: duly authorized signatory
As to the authorized signatory for the Minister of __________________
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by __________________
As to the signature of
LHEIDLI T’ENNEH as represented by __________________ or duly authorized signatory
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