Fisheries

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Contents Fisheries	Overview This chapter sets out Nisga’a rights to harvest salmon, steelhead, non-salmon species of saltwater fish, bivalves, marine mammals and aquatic plants. It also sets forth a permanent role for Nisga’a people in managing these resources. What is the purpose of the Fisheries Chapter? To provide certainty with respect to Nisga’a rights to harvest fish and to participate in the management of the Nass Area fisheries. What are the general rules governing our harvesting rights? The right of Nisga’a citizens to harvest fish and aquatic plants in accordance with the Treaty are subject to measures that are necessary to conservation and to legislation that is enacted for the purposes of public health and public safety. The rights to harvest fish do not alter federal and provincial laws about property in fish, which provide generally that no one owns fish until they are caught. Nisga’a can also harvest fish outside the Treaty in accordance with federal and provincial laws that apply to everyone or, in some circumstances, in accordance with agreements with other First Nations. Nisga’a entitlements to fish are held by the Nisga’a Nation and the right to fish may not be sold or transferred. However, the Nisga’a Nation can authorize others to harvest some of the fish under Nisga’a entitlement from time to time. Canada and British Columbia cannot require Nisga’a to have federal and provincial licenses or to pay fees, charges or royalties with respect to harvesting fish or aquatic plants for domestic purposes. When Nisga’a sell fish harvested under the Agreement, they are subject to the same fees and charges that apply to commercial harvesters except to the extent to which Nisga’a Government or a Nisga’a Institution is performing the activities for which those fees and charges are levied. (For example, stock rehabilitation programs and marketing.) Finally, Nisga’a citizens have the right to trade or barter among themselves or with other aboriginal people any fish or aquatic plants harvested in Nisga’a fisheries, subject to Nisga’a laws. What are our rights to harvest salmon? The Minister will be required to establish a minimum escapement level for any of the species of Nass salmon for which it is necessary for conservation. If the Minister determines a minimum escapement level for a species of Nass salmon and the number of fish returning is less than that minimum escapement level, the Minister will not permit a directed harvest of that species by anyone. Once the number of fish is above the minimum escapement level, the Nisga’a share is determined before the total allowable catch is calculated for non-aboriginal fisheries. The Nisga’a share of each species of salmon varies depending upon the size of the total return to Canada. (See Schedule A of the Final Agreement.) What if our harvest exceeds or falls short of our allocation? Schedule B sets out a detailed accounting mechanism to ensure that if there is an overage or underage in the harvest of Nass salmon by Nisga’a, adjustments will take place in subsequent years in order to make up for the difference. There will be no underage in any given year if reasonable opportunities for the harvest have been provided. What is the Harvest Agreement? In addition to the salmon which the Nisga’a are allocated under the Treaty, the Nisga’a are also entitled to a Harvest Agreement with Canada and British Columbia under which the Nisga’a may harvest an additional 13 per cent of each year's adjusted total allowable catch of Nass sockeye salmon and 15 per cent of each year's adjusted total allowable catch of Nass pink salmon. The Treaty requires the Harvest Agreement to be in place on the effective date, to be for a term of 25 years and to be extended for an additional 25 years after every 15-year period. If the allocations under the Harvest Agreement are terminated or reduced, Nisga’a are entitled to fair compensation for the termination or reduction. Because the allocation under the Harvest Agreement is a percentage of adjusted total allowable catch, these allocations have the same priority as the commercial and recreational fisheries comprising the balance of the adjusted total allowable catch. In other words, regardless of the number of fish available for harvesting, the Nisga’a are always guaranteed the same percentage share of those fish, under the Harvest Agreement. Can salmon harvested under the Treaty or the Harvest Agreement be sold? Yes, subject to certain federal and provincial laws. The terms and conditions of sale will be established by Nisga’a law in a manner consistent with the annual fishing plan. Do we have the right to harvest surplus Nass salmon? Before Nisga’a will be able to harvest surplus Nass salmon, it will be necessary to reach agreement with the Minister. The Agreement will include the terms and conditions of the harvest and whether any part of the harvest of surplus salmon will be included in the determination of overages and underages. The Joint Fisheries Management Committee (JFMC) may recommend to the Minister procedures for the identification of the surplus and terms and conditions of the harvest of the surplus. However, there is no legal obligation for the Minister to either follow these recommendations or to permit any Nisga’a harvest of surplus salmon. Can Nisga’a take measures to enhance Nass salmon stocks? Yes, with the approval of the Minister. Because enhancement initiatives can affect wild fish stocks, the Minister has a final responsibility for determining whether they take place. The Minister may receive recommendations from the Joint Fisheries Management Committee. Agreements with the Minister concerning enhancement may include agreements with respect to a Nisga’a harvest of Nass salmon or Nass steelhead that result from Nisga’a enhancement initiatives. Why are there separate provisions for steelhead? Unlike salmon, steelhead are managed primarily by the provincial government. For a variety of reasons, including the different way in which steelhead are managed, current information concerning the state of Nass steelhead stocks are inadequate. The Treaty provides the means to improve this information through studies to determine the status, conservation requirements and total allowable catch of Nass steelhead stocks. The JFMC will formulate plans for those studies and prepare recommendations to the Minister and Nisga’a Government. If the studies reveal a conservation concern, recommendations will be made on how to address the concern. If it is necessary for conservation, the Minister can establish an annual escapement goal for steelhead stocks which, like the minimum escapement level with respect to salmon, determines the level below which no directed harvests will be allowed. What is our right to harvest steelhead? Generally, under the Treaty Nisga’a citizens will continue to have the right to harvest steelhead for domestic purposes. However, the Parties have also agreed that there is a need to assess the current state of summer run Nass steelhead. The Parties have agreed that an annual escapement goal should be established. On the effective date, British Columbia and Nisga’a Government will negotiate and attempt to reach an agreement on studies required to establish this goal. Once those studies are commenced, there will be no directed harvest of summer run Nass steelhead by anyone, including Nisga’a. Following those studies, Nisga’a citizens will have the right to harvest summer run Nass steelhead for domestic purposes and, if an annual escapement goal is established, Nisga’a citizens will have the allocation set forth in Schedule D. In any year in which the number of summer run Nass steelhead returning to the Nass watershed is less then the annual escapement goal, the Nisga’a Nation and British Columbia will take additional measures to minimize mortalities in other fisheries. On the effective date, the Nisga’a will continue to have the right to harvest winter run Nass steelhead for domestic purposes. If in the future it is necessary to establish an annual escapement goal, studies will be conducted and recommendations made. If the Minister decides that there will be an annual escapement goal for winter run steelhead, then British Columbia and Nisga’a Government may negotiate a Nisga’a allocation. If no allocation is established the Nisga’a will continue to have the right to harvest for domestic purposes. What are Nisga’a rights to harvest other species? All other fish, marine mammals and aquatic plants are dealt with in the same way. Following the effective date, Nisga’a citizens will continue to have the right to harvest all of these species for domestic purposes. If at any time Nisga’a, Canada or British Columbia (for species they manage) wish there to be an allocation, the Parties are required to establish an allocation under the terms set out in the Treaty. Under this process the Parties must establish a number called the “basic Nisga’a entitlement” which is a number to be determined by taking into account current and past Nisga’a use of the species for domestic purposes, the impact of conservation requirement on harvesting by others on our use for domestic purposes, the biological status of the species, any changes in Nisga’a fishing effort and other factors agreed to be relevant. The Nisga’a allocation is 125 per cent of the basic Nisga’a entitlement. If agreement cannot be reached on the basic Nisga’a entitlement, the matter will be referred to arbitration. This process will be followed as soon as practicable after the effective date for dungeness, tanner and king crab, halibut, prawns and shrimp, herring, and aquatic plants used in the herring roe on kelp fishery. Once an allocation is established, it will be added to the Treaty. What are our rights to oolichan? The Nisga’a Nation, together with any other persons who have to harvest oolichan in the Nass Area, have the right to the total harvest of oolichan in the Nass Area. The Treaty also contemplates agreements between the Nisga’a Nation and other First Nations with respect to oolichan stocks. What is our allocation of clams, cockles and other bivalves? The Treaty establishes bivalve harvesting areas in which Nisga’a citizens have the right to harvest intertidal bivalves for domestic purposes. There will not be any commercial harvesting of intertidal bivalves in those areas. Can we sell non-salmon species? Any sale would have to be in accordance with federal and provincial laws of general application and with Nisga’a laws with respect to the sale of fish. What involvement will Nisga’a have with fisheries management? The Minister is responsible for management of fisheries and fish habitat, however, the Nisga’a will also have important law-making authority and planning responsibility. For example, Nisga’a Government may make laws, not inconsistent with the Treaty, the Harvest Agreement or annual fishing plans, about such matters as distribution of our entitlements among Nisga’a citizens, authorizing others to harvest fish from our entitlements, allocations and trade and barter, designation and documentation of fishing vessels, and identification of fishing vessels and gear. We must make laws to administer and establish licensing requirements and designating and documenting people who harvest fish under the Treaty or Harvest Agreement. The relationship between our laws and federal and provincial laws are set forth in the Treaty. What involvement will we have in planning and conducting Nisga’a fisheries in the Nass Area? The Parties must establish a Joint Fisheries Management Committee (JFMC) which will be made up of two representatives each from the Nisga’a Nation, Canada and British Columbia. Federal and provincial representatives will only participate with respect to fisheries which their government manages. It will be the primary institution for cooperative planning and management and its responsibilities are set out in detail in the Agreement. The JFMC is to function by consensus. If consensus is not reached, the various members may submit their own recommendations to each Party. In the future, additional regional or watershed bodies may be established. The Treaty provides for Nisga’a participation in the development and functioning of any such body. How will the rules for each year's harvest be established? The practical instrument for each year's harvest will be the Nisga’a annual fishing plan, recommended by the JFMC and approved by the Minister. These plans will guide the exercise of harvesting rights with respect to such matters as the methods, timing and location of harvest, monitoring and enforcement, stock assessment and enhancement, sale, harvest by others, in-season adjustments and other matters the Parties agree to include. Finally, the Treaty provides for future agreements that may be negotiated concerning enforcement of federal, provincial and Nisga’a laws. What is the Lisims Fisheries Conservation Trust? Canada and the Nisga’a have agreed to establish the Lisims Fisheries Conservation Trust with the objective of promoting conservation and protection of Nass area fish species, facilitating sustainable management of fisheries, and promoting and supporting Nisga’a participation in the stewardship of Nass fisheries. Canada will contribute $10 million to this trust while the Nisga’a will contribute $3 million. The trust will be designed so as to receive additional funds and it is intended that it receive charitable status. Do we get to participate in the general commercial fishery? Yes. In addition to having and retaining the same opportunities to participate in the fishery as all Canadians, the Nisga’a Nation will receive $11.5 million (as adjusted) in order to purchase commercial fishing licenses, or vessels and licenses, to participate in the general commercial fishery in British Columbia. The Nisga’a may spend up to $3 million of this money for other fishery-related activities. Are there other provisions? Under the Treaty, a feasibility study on a Nisga’a herring roe on kelp impoundment will be carried out to determine what opportunities may be available for this sort of development. Canada will be obliged to consult with Nisga’a Government with respect to Canada’s positions in international negotiations affecting Nass fisheries resources and Nisga’a may formally participate in commissions or fisheries management advisory bodies. The Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions and Nisga’a Corporations may not establish a new fish processing facility capable of processing more than 2,000 tonnes of round weight of fish per year within eight years of the effective date, unless Canada and British Columbia otherwise agree. (see Nass Area Intertidal Zones for Bivalve Harvesting map in Appendices)

Contents

Fisheries

Overview

This chapter sets out Nisga’a rights to harvest salmon, steelhead, non-salmon species of saltwater fish, bivalves, marine mammals and aquatic plants. It also sets forth a permanent role for Nisga’a people in managing these resources.

What is the purpose of the Fisheries Chapter?

To provide certainty with respect to Nisga’a rights to harvest fish and to participate in the management of the Nass Area fisheries.

What are the general rules governing our harvesting rights?

The right of Nisga’a citizens to harvest fish and aquatic plants in accordance with the Treaty are subject to measures that are necessary to conservation and to legislation that is enacted for the purposes of public health and public safety.

The rights to harvest fish do not alter federal and provincial laws about property in fish, which provide generally that no one owns fish until they are caught.

Nisga’a can also harvest fish outside the Treaty in accordance with federal and provincial laws that apply to everyone or, in some circumstances, in accordance with agreements with other First Nations.

Nisga’a entitlements to fish are held by the Nisga’a Nation and the right to fish may not be sold or transferred. However, the Nisga’a Nation can authorize others to harvest some of the fish under Nisga’a entitlement from time to time.

Canada and British Columbia cannot require Nisga’a to have federal and provincial licenses or to pay fees, charges or royalties with respect to harvesting fish or aquatic plants for domestic purposes. When Nisga’a sell fish harvested under the Agreement, they are subject to the same fees and charges that apply to commercial harvesters except to the extent to which Nisga’a Government or a Nisga’a Institution is performing the activities for which those fees and charges are levied. (For example, stock rehabilitation programs and marketing.)

Finally, Nisga’a citizens have the right to trade or barter among themselves or with other aboriginal people any fish or aquatic plants harvested in Nisga’a fisheries, subject to Nisga’a laws.

What are our rights to harvest salmon?

The Minister will be required to establish a minimum escapement level for any of the species of Nass salmon for which it is necessary for conservation. If the Minister determines a minimum escapement level for a species of Nass salmon and the number of fish returning is less than that minimum escapement level, the Minister will not permit a directed harvest of that species by anyone.

Once the number of fish is above the minimum escapement level, the Nisga’a share is determined before the total allowable catch is calculated for non-aboriginal fisheries. The Nisga’a share of each species of salmon varies depending upon the size of the total return to Canada. (See Schedule A of the Final Agreement.)

What if our harvest exceeds or falls short of our allocation?

Schedule B sets out a detailed accounting mechanism to ensure that if there is an overage or underage in the harvest of Nass salmon by Nisga’a, adjustments will take place in subsequent years in order to make up for the difference. There will be no underage in any given year if reasonable opportunities for the harvest have been provided.

What is the Harvest Agreement?

In addition to the salmon which the Nisga’a are allocated under the Treaty, the Nisga’a are also entitled to a Harvest Agreement with Canada and British Columbia under which the Nisga’a may harvest an additional 13 per cent of each year's adjusted total allowable catch of Nass sockeye salmon and 15 per cent of each year's adjusted total allowable catch of Nass pink salmon. The Treaty requires the Harvest Agreement to be in place on the effective date, to be for a term of 25 years and to be extended for an additional 25 years after every 15-year period. If the allocations under the Harvest Agreement are terminated or reduced, Nisga’a are entitled to fair compensation for the termination or reduction. Because the allocation under the Harvest Agreement is a percentage of adjusted total allowable catch, these allocations have the same priority as the commercial and recreational fisheries comprising the balance of the adjusted total allowable catch. In other words, regardless of the number of fish available for harvesting, the Nisga’a are always guaranteed the same percentage share of those fish, under the Harvest Agreement.

Can salmon harvested under the Treaty or the Harvest Agreement be sold?

Yes, subject to certain federal and provincial laws. The terms and conditions of sale will be established by Nisga’a law in a manner consistent with the annual fishing plan.

Do we have the right to harvest surplus Nass salmon?

Before Nisga’a will be able to harvest surplus Nass salmon, it will be necessary to reach agreement with the Minister. The Agreement will include the terms and conditions of the harvest and whether any part of the harvest of surplus salmon will be included in the determination of overages and underages. The Joint Fisheries Management Committee (JFMC) may recommend to the Minister procedures for the identification of the surplus and terms and conditions of the harvest of the surplus. However, there is no legal obligation for the Minister to either follow these recommendations or to permit any Nisga’a harvest of surplus salmon.

Can Nisga’a take measures to enhance Nass salmon stocks?

Yes, with the approval of the Minister. Because enhancement initiatives can affect wild fish stocks, the Minister has a final responsibility for determining whether they take place. The Minister may receive recommendations from the Joint Fisheries Management Committee. Agreements with the Minister concerning enhancement may include agreements with respect to a Nisga’a harvest of Nass salmon or Nass steelhead that result from Nisga’a enhancement initiatives.

Why are there separate provisions for steelhead?

Unlike salmon, steelhead are managed primarily by the provincial government. For a variety of reasons, including the different way in which steelhead are managed, current information concerning the state of Nass steelhead stocks are inadequate. The Treaty provides the means to improve this information through studies to determine the status, conservation requirements and total allowable catch of Nass steelhead stocks. The JFMC will formulate plans for those studies and prepare recommendations to the Minister and Nisga’a Government. If the studies reveal a conservation concern, recommendations will be made on how to address the concern. If it is necessary for conservation, the Minister can establish an annual escapement goal for steelhead stocks which, like the minimum escapement level with respect to salmon, determines the level below which no directed harvests will be allowed.

What is our right to harvest steelhead?

Generally, under the Treaty Nisga’a citizens will continue to have the right to harvest steelhead for domestic purposes.

However, the Parties have also agreed that there is a need to assess the current state of summer run Nass steelhead. The Parties have agreed that an annual escapement goal should be established. On the effective date, British Columbia and Nisga’a Government will negotiate and attempt to reach an agreement on studies required to establish this goal. Once those studies are commenced, there will be no directed harvest of summer run Nass steelhead by anyone, including Nisga’a.

Following those studies, Nisga’a citizens will have the right to harvest summer run Nass steelhead for domestic purposes and, if an annual escapement goal is established, Nisga’a citizens will have the allocation set forth in Schedule D. In any year in which the number of summer run Nass steelhead returning to the Nass watershed is less then the annual escapement goal, the Nisga’a Nation and British Columbia will take additional measures to minimize mortalities in other fisheries.

On the effective date, the Nisga’a will continue to have the right to harvest winter run Nass steelhead for domestic purposes. If in the future it is necessary to establish an annual escapement goal, studies will be conducted and recommendations made. If the Minister decides that there will be an annual escapement goal for winter run steelhead, then British Columbia and Nisga’a Government may negotiate a Nisga’a allocation. If no allocation is established the Nisga’a will continue to have the right to harvest for domestic purposes.

What are Nisga’a rights to harvest other species?

All other fish, marine mammals and aquatic plants are dealt with in the same way. Following the effective date, Nisga’a citizens will continue to have the right to harvest all of these species for domestic purposes. If at any time Nisga’a, Canada or British Columbia (for species they manage) wish there to be an allocation, the Parties are required to establish an allocation under the terms set out in the Treaty. Under this process the Parties must establish a number called the “basic Nisga’a entitlement” which is a number to be determined by taking into account current and past Nisga’a use of the species for domestic purposes, the impact of conservation requirement on harvesting by others on our use for domestic purposes, the biological status of the species, any changes in Nisga’a fishing effort and other factors agreed to be relevant. The Nisga’a allocation is 125 per cent of the basic Nisga’a entitlement. If agreement cannot be reached on the basic Nisga’a entitlement, the matter will be referred to arbitration.

This process will be followed as soon as practicable after the effective date for dungeness, tanner and king crab, halibut, prawns and shrimp, herring, and aquatic plants used in the herring roe on kelp fishery. Once an allocation is established, it will be added to the Treaty.

What are our rights to oolichan?

The Nisga’a Nation, together with any other persons who have to harvest oolichan in the Nass Area, have the right to the total harvest of oolichan in the Nass Area. The Treaty also contemplates agreements between the Nisga’a Nation and other First Nations with respect to oolichan stocks.

What is our allocation of clams, cockles and other bivalves?

The Treaty establishes bivalve harvesting areas in which Nisga’a citizens have the right to harvest intertidal bivalves for domestic purposes.

There will not be any commercial harvesting of intertidal bivalves in those areas.

Can we sell non-salmon species?

Any sale would have to be in accordance with federal and provincial laws of general application and with Nisga’a laws with respect to the sale of fish.

What involvement will Nisga’a have with fisheries management?

The Minister is responsible for management of fisheries and fish habitat, however, the Nisga’a will also have important law-making authority and planning responsibility.

For example, Nisga’a Government may make laws, not inconsistent with the Treaty, the Harvest Agreement or annual fishing plans, about such matters as distribution of our entitlements among Nisga’a citizens, authorizing others to harvest fish from our entitlements, allocations and trade and barter, designation and documentation of fishing vessels, and identification of fishing vessels and gear.

We must make laws to administer and establish licensing requirements and designating and documenting people who harvest fish under the Treaty or Harvest Agreement. The relationship between our laws and federal and provincial laws are set forth in the Treaty.

What involvement will we have in planning and conducting Nisga’a fisheries in the Nass Area?

The Parties must establish a Joint Fisheries Management Committee (JFMC) which will be made up of two representatives each from the Nisga’a Nation, Canada and British Columbia. Federal and provincial representatives will only participate with respect to fisheries which their government manages. It will be the primary institution for cooperative planning and management and its responsibilities are set out in detail in the Agreement.

The JFMC is to function by consensus. If consensus is not reached, the various members may submit their own recommendations to each Party. In the future, additional regional or watershed bodies may be established. The Treaty provides for Nisga’a participation in the development and functioning of any such body.

How will the rules for each year's harvest be established?

The practical instrument for each year's harvest will be the Nisga’a annual fishing plan, recommended by the JFMC and approved by the Minister. These plans will guide the exercise of harvesting rights with respect to such matters as the methods, timing and location of harvest, monitoring and enforcement, stock assessment and enhancement, sale, harvest by others, in-season adjustments and other matters the Parties agree to include.

Finally, the Treaty provides for future agreements that may be negotiated concerning enforcement of federal, provincial and Nisga’a laws.

What is the Lisims Fisheries Conservation Trust?

Canada and the Nisga’a have agreed to establish the Lisims Fisheries Conservation Trust with the objective of promoting conservation and protection of Nass area fish species, facilitating sustainable management of fisheries, and promoting and supporting Nisga’a participation in the stewardship of Nass fisheries.

Canada will contribute $10 million to this trust while the Nisga’a will contribute $3 million. The trust will be designed so as to receive additional funds and it is intended that it receive charitable status.

Do we get to participate in the general commercial fishery?

Yes. In addition to having and retaining the same opportunities to participate in the fishery as all Canadians, the Nisga’a Nation will receive $11.5 million (as adjusted) in order to purchase commercial fishing licenses, or vessels and licenses, to participate in the general commercial fishery in British Columbia. The Nisga’a may spend up to $3 million of this money for other fishery-related activities.

Are there other provisions?

Under the Treaty, a feasibility study on a Nisga’a herring roe on kelp impoundment will be carried out to determine what opportunities may be available for this sort of development.

Canada will be obliged to consult with Nisga’a Government with respect to Canada’s positions in international negotiations affecting Nass fisheries resources and Nisga’a may formally participate in commissions or fisheries management advisory bodies.

The Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions and Nisga’a Corporations may not establish a new fish processing facility capable of processing more than 2,000 tonnes of round weight of fish per year within eight years of the effective date, unless Canada and British Columbia otherwise agree. (see Nass Area Intertidal Zones for Bivalve Harvesting map in Appendices)