Table of Contents

CHAPTER 11 — MIGRATORY BIRDS

GENERAL

1.  Tsawwassen First Nation has the right to harvest Migratory Birds for Domestic Purposes in the Tsawwassen Migratory Bird Harvest Area throughout the year in accordance with this Agreement.

2.  The Tsawwassen Right to Harvest Migratory Birds is limited by measures necessary for conservation, public health or public safety.

3.  The Tsawwassen Right to Harvest Migratory Birds is held by Tsawwassen First Nation and Tsawwassen First Nation may not Dispose of that right.

4.  Tsawwassen First Nation and Tsawwassen Members have the right to Trade and Barter Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds, among themselves or with other aboriginal people of Canada resident in British Columbia.

5.  Tsawwassen First Nation may sell inedible by-products, including down, of Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds, in accordance with Federal and Provincial Law and a Tsawwassen Law made under subclause 20.e.

6.  Tsawwassen First Nation may sell Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds if the sale of Migratory Birds is permitted under Federal and Provincial Law, and any such sale will be in accordance with Federal and Provincial Law and a Tsawwassen Law made under subclause 22.c.

7.  This Agreement does not preclude Tsawwassen First Nation from entering into an agreement with a federal department or agency in respect of access and harvesting by Tsawwassen Members on land owned or in use by that department or agency in accordance with that agreement and Federal and Provincial Laws.

8.  The Tsawwassen Right to Harvest Migratory Birds will be exercised in a manner that does not interfere with authorized uses or Dispositions of provincial Crown land existing as at the Effective Date or authorized in accordance with clause 9.

9.  British Columbia may authorize uses of or Dispose of provincial Crown land and any authorized use or Disposition may affect the methods, times and locations of the harvest under the Tsawwassen Right to Harvest Migratory Birds, provided that British Columbia ensures that those authorized uses or Dispositions do not deny to Tsawwassen First Nation the reasonable opportunity to harvest under the Tsawwassen Right to Harvest Migratory Birds.

10.  Upon six months notice by either Party, Tsawwassen First Nation and British Columbia will negotiate and attempt to reach agreement on a process to evaluate uses and Dispositions of provincial Crown land that have the potential to deny to Tsawwassen First Nation the reasonable opportunity to harvest under the Tsawwassen Right to Harvest Migratory Birds.

11.  Tsawwassen First Nation may exercise the Tsawwassen Right to Harvest Migratory Birds on Private Lands, if the owner or occupant of that land agrees to provide access.

12.  Tsawwassen First Nation may exercise the Tsawwassen Right to Harvest Migratory Birds on a Reserve, if the Indian Band for whom the Reserve is set aside agrees to provide access.

13.  Tsawwassen First Nation may exercise the Tsawwassen Right to Harvest Migratory Birds on lands contained within a National Wildlife Area if Canada agrees to provide access, and any such harvest will be in accordance with Federal and Provincial Law.

14.  The transport and export by Tsawwassen First Nation and Tsawwassen Members of Migratory Birds or their inedible by-products, including down, harvested under the Tsawwassen Right to Harvest Migratory Birds are subject to Federal and Provincial Law.

15.  The Minister retains authority for managing and conserving Migratory Birds and Migratory Bird habitat and will exercise that authority in a manner that is consistent with this Agreement.

16.  Neither Canada nor British Columbia will require a Tsawwassen Member to have a licence or to pay a fee or royalty for harvesting Migratory Birds under the Tsawwassen Right to Harvest Migratory Birds.

17.  Nothing in this Agreement affects the application of Federal or Provincial Law in respect of the possession, use or regulation of firearms.

18.  This Agreement does not alter Federal or Provincial Law in respect of property in Migratory Birds.

19.  This Agreement does not preclude Tsawwassen Members from harvesting Migratory Birds in Canada under:

a. Federal or Provincial Law;

b. an agreement, that is in accordance with Federal and Provincial Law, between Tsawwassen First Nation and other aboriginal people; or

c. an arrangement between other aboriginal people and Canada or British Columbia.

POWER TO MAKE LAWS

20.  Tsawwassen Government may make laws in respect of:

a. the designation of Tsawwassen Members to harvest Migratory Birds under the Tsawwassen Right to Harvest Migratory Birds;

b. the distribution among Tsawwassen Members of Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds;

c. the methods, timing, and location of the harvest of Migratory Birds by Tsawwassen Members under the Tsawwassen Right to Harvest Migratory Birds;

d. the Trade and Barter of Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds; and

e. the sale of inedible by-products, including down, of Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds.

21.  A Tsawwassen Law made under clause 20 prevails to the extent of a Conflict with a Federal or Provincial Law.

22.  Tsawwassen Government may make laws in respect of:

a. the management of Migratory Birds and Migratory Bird habitat on Tsawwassen Lands;

b. the establishment and administration of licensing requirements for the harvest of Migratory Birds under the Tsawwassen Right to Harvest Migratory Birds, including the issuance of documentation to identify individuals designated by Tsawwassen First Nation in respect of that harvest; and

c. the sale of Migratory Birds harvested under the Tsawwassen Right to Harvest Migratory Birds.

23.  A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 22.

DOCUMENTATION

24.  Tsawwassen First Nation will issue documentation to identify individuals who are authorized by Tsawwassen First Nation to harvest under the Tsawwassen Right to Harvest Migratory Birds.

25.  When harvesting under the Tsawwassen Right to Harvest Migratory Birds, an individual is required to produce, at the request of a person authorized to enforce Federal Law, Provincial Law or Tsawwassen Law in respect of Migratory Birds, the documentation referred to in clause 24.

26.  Documentation issued under clause 24 will:

a. be in the English language, which version is authoritative and, at the discretion of Tsawwassen First Nation, in the Hun'qum'i'num language; and

b. include the name and address of the individual.

ENFORCEMENT

27.  The Parties may negotiate and attempt to reach agreements in respect of the enforcement of Federal Law, Provincial Law, and Tsawwassen Law in respect of Migratory Birds.

28.  Tsawwassen Laws made under this chapter may be enforced by persons authorized to enforce Federal Law, Provincial Law, or Tsawwassen Law in respect of Migratory Birds.

CONSERVATION MEASURES

Designated Migratory Bird Population

29.  At the request of Tsawwassen First Nation or the Minister, the Parties will share information in respect of conservation for Migratory Bird populations, including activities related to harvesting under the Tsawwassen Right to Harvest Migratory Birds.

30.  Where, in the opinion of a Party, there is a conservation risk to a Migratory Bird population, that Party may make recommendations to the Minister for the designation of that population as a Designated Migratory Bird Population.

31.  After Consulting with Tsawwassen First Nation, the Minister may designate a Migratory Bird population as a Designated Migratory Bird Population if the Minister determines that, in order to address a conservation risk to that population, a Total Allowable Migratory Bird Harvest of that Migratory Bird population is necessary.

32.  The Minister, in determining the Total Allowable Migratory Bird Harvest for a Designated Migratory Bird Population, will take into account, among other things, the following:

a. recommendations from Tsawwassen First Nation;

b. the best available knowledge about the Designated Migratory Bird Population, including aboriginal traditional knowledge;

c. continental and local conservation requirements; and

d. Canada's international commitments in respect of Migratory Birds.

33.  In making an allocation for Tsawwassen First Nation from the Total Allowable Migratory Bird Harvest for a Designated Migratory Bird Population, the Minister will take into account the Tsawwassen Right to Harvest Migratory Birds and, among other things, the following:

a. the Total Allowable Migratory Bird Harvest for that population;

b. current and past food, social or ceremonial needs, and harvesting practices of Tsawwassen First Nation in respect of that population; and

c. other harvests of that population for food, social or ceremonial purposes.

34.  On the recommendation of a Party, the Minister may determine that there is no longer a conservation risk to a Designated Migratory Bird Population and remove the designation from that population.

Migratory Bird Agreements

35.  The Parties may enter into an agreement on the conservation or management of Migratory Birds, including a range of activities related to achieving Migratory Bird population and habitat conservation objectives, such as inventory, monitoring, assessment, research, harvest allocation, regulation, compliance and enforcement, creation and management of protected areas, stewardship, restoration, enhancement, outreach and education on best practices.

CONSULTATION ON INTERNATIONAL NEGOTIATIONS ON MIGRATORY BIRDS

36.  Canada will Consult with Tsawwassen First Nation on the development of Canada's positions in respect of international discussions or negotiations that may adversely affect the Tsawwassen Right to Harvest Migratory Birds.