Table of Contents

CHAPTER 9 — FISHERIES

GENERAL

1.  Tsawwassen First Nation has the right to harvest for Domestic Purposes:

a. Fish and Aquatic Plants in the Tsawwassen Fishing Area; and

b. Intertidal Bivalves in the Tsawwassen Intertidal Bivalve Fishing Area,

in accordance with this Agreement.

2.  The Tsawwassen Fishing Right is limited by measures necessary for conservation, public health or public safety.

3.  The Tsawwassen Fishing Right 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 Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right, among themselves or with other aboriginal people of Canada.

5.  Harvesting of Fish and Aquatic Plants under the Tsawwassen Fishing Right will be conducted in accordance with the provisions of Tsawwassen Harvest Documents.

6.  Unless otherwise provided for in a Tsawwassen Harvest Document, the Tsawwassen Fishing Right will be exercised within:

a. the Tsawwassen Fishing Area, in respect of all species of Fish and Aquatic Plants; and

b. the Tsawwassen Intertidal Bivalve Fishing Area, in respect of Intertidal Bivalves.

7.  Harvesting of Intertidal Bivalves under the Tsawwassen Fishing Right in areas where the Tsawwassen Intertidal Bivalve Fishing Area overlaps with a National Park or National Marine Conservation Area will be conducted in accordance with the terms and conditions for harvesting in National Parks and National Marine Conservation Areas.

8.  The Tsawwassen Fishing Right will be exercised in a manner that does not interfere with authorized uses or Dispositions of provincial Crown land existing on 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 of Fish and Aquatic Plants under the Tsawwassen Fishing Right, provided that British Columbia ensures that those authorized uses or Dispositions do not deny Tsawwassen First Nation the reasonable opportunity to harvest Fish and Aquatic Plants in the Tsawwassen Fishing Area.

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 Tsawwassen First Nation the reasonable opportunity to harvest under the Tsawwassen Fishing Right in the Tsawwassen Fishing Area.

11.  British Columbia may authorize uses of or Dispose of provincial Crown land and any authorized use or Disposition:

a. may affect the methods, times and locations of the harvest of Intertidal Bivalves under the Tsawwassen Fishing Right in the Tsawwassen Intertidal Bivalve Fishing Area; and

b. may, because of the location of the Tsawwassen Intertidal Bivalve Fishing Area, result in Tsawwassen First Nation having no meaningful opportunity to harvest Intertidal Bivalves in the Tsawwassen Intertidal Bivalve Fishing Area.

12.  The harvest of Intertidal Bivalves under the Tsawwassen Fishing Right in the Tsawwassen Intertidal Bivalve Fishing Area will be exercised in a manner that does not interfere with authorized uses or Dispositions of provincial Crown land existing on the Effective Date or authorized in accordance with clause 11.

13.  British Columbia has no obligation to Consult in respect of authorized uses or Dispositions of provincial Crown land made under clause 11.

14.  The Minister retains authority for managing and conserving Fish, Aquatic Plants, and Fish habitat and will exercise that authority in a manner that is consistent with this Agreement.

15.  The Tsawwassen Fishing Right may be exercised by those individuals who are designated by Tsawwassen First Nation to harvest Fish and Aquatic Plants.

16.  Any vessel used to harvest Fish and Aquatic Plants under the Tsawwassen Fishing Right will be a vessel that has been designated by Tsawwassen First Nation. For greater certainty, this Agreement does not alter the application of Federal or Provincial Law in respect of foreign fishing vessels in Canadian waters.

17.  Neither Canada nor British Columbia will require an individual, designated by Tsawwassen First Nation, to have a licence for the harvesting of Fish and Aquatic Plants under the Tsawwassen Fishing Right.

18.  Neither Canada nor British Columbia will charge a fee for a Tsawwassen Harvest Document, or any management fee or landing fee in respect of fisheries authorized by a Tsawwassen Harvest Document.

19.  Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right may not be sold.

20.  This Agreement does not alter Federal or Provincial Law in respect of property in Fish or Aquatic Plants.

21.  Nothing in this Agreement precludes:

a. Tsawwassen Members from harvesting Fish and Aquatic Plants under a licence, permit or other document issued under Federal or Provincial Law, or as otherwise authorized under Federal or Provincial Law;

b. Tsawwassen First Nation from concluding agreements that are in accordance with Federal and Provincial Law with other aboriginal groups with respect to designations to harvest Fish and Aquatic Plants;

c. Tsawwassen Members from being designated by another aboriginal group to harvest Fish and Aquatic Plants under federal or provincial arrangements with that aboriginal group.

22.  Tsawwassen First Nation will provide catch data and other information related to Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right as required by Tsawwassen Harvest Documents or Federal or Provincial Law.

TSAWWASSEN ALLOCATIONS

23.  The Tsawwassen Allocations for Fish and Aquatic Plants are set out in Appendix J-2.

24.  In any year in which the Minister determines, in respect of a stock or species of Fish or Aquatic Plants for which there is a Tsawwassen Allocation expressed as a fixed number, that the quantity of that stock or species that is available for harvest is not sufficient to meet all anticipated allocations from that stock or species for food, social or ceremonial purposes, the Minister may reduce any one or more of the allocations for that year.

25.  Where, under clause 24, the Minister wishes to reduce a Tsawwassen Allocation, the Minister will inform the Joint Fisheries Committee of the proposed reduction and, if time permits, will take into account any written recommendations on the proposed reduction received from the Joint Fisheries Committee before implementing the reduction.

26.  Where under clause 24, the Minister reduces a Tsawwassen Allocation, the Minister will give reasons in writing for the reduction to Tsawwassen First Nation and the Joint Fisheries Committee.

OVERAGES AND UNDERAGES

27.  The Minister and Tsawwassen First Nation will endeavour to minimize any overages or underages for Tsawwassen Allocations in each year and to minimize the accumulation of overages and underages through adjustments to the Tsawwassen First Nation annual harvest in successive years.

28.  The Tsawwassen Fisheries Operational Guidelines describe the process, timing and data sources for calculating overages and underages.

29.  Unless Canada and Tsawwassen First Nation agree otherwise, the determination of overages and underages described in the Tsawwassen Fisheries Operational Guidelines will be consistent with the principles described in Appendix J-3.

30.  Overages and underages will not be applied to non-salmon Fish species harvested under the Tsawwassen Fishing Right and managed by British Columbia as of the Effective Date.

NON-ALLOCATED SPECIES — CRAB

31.  Any Tsawwassen Harvest Document for Tsawwassen First Nation to harvest crab under the Tsawwassen Fishing Right will authorize the harvest to be carried out using the number of traps proposed by Tsawwassen First Nation in the Tsawwassen Annual Fishing Plan for the harvest if:

a. the number of traps does not exceed 50 traps per vessel;

b. the traps meet the requirements for traps for harvesting crab as set out in the Tsawwassen Fisheries Operational Guidelines; and

c. a Tsawwassen Allocation for crab has not been established under this Agreement.

PROCESS FOR NON-ALLOCATED SPECIES

32.  For the purposes of this chapter,

a. "Non-Allocated Species" means a species of Fish or Aquatic Plant for which a Tsawwassen Allocation has not been established under this Agreement;

b. "Basic Harvest Entitlement" for a Non-Allocated Species means Tsawwassen First Nation average annual harvest, expressed as:

i. a defined harvest quantity or quota;

ii. a harvest quantity or quota determined by the use of a formula; or

iii. a harvest quantity or quota determined by the use of a formula with respect to a defined harvest area within the Tsawwassen Fishing Area or the Tsawwassen Intertidal Bivalve Fishing Area,

for that species for Domestic Purposes, over the Base Period for that Non-Allocated Species, as may be determined by arbitration under clauses 40 through 49;

c. "Base Period" for a Non-Allocated Species means a period of 10 calendar years immediately preceding the date of a proposal made under clause 34 for the establishment of a Tsawwassen Allocation for the Non-Allocated Species, or such other period as the Minister and Tsawwassen First Nation may agree.

33.  Non-Allocated Species may be harvested for Domestic Purposes under the Tsawwassen Fishing Right in accordance with Tsawwassen Harvest Documents.

34.  Subject to clause 35, the Minister or Tsawwassen First Nation may propose the establishment of a Tsawwassen Allocation for a Non-Allocated Species by providing the other Parties with a written proposal and providing a copy of the proposal to the Joint Fisheries Committee.

35.  The Minister and Tsawwassen First Nation will propose the establishment of a Tsawwassen Allocation for crab under clause 34 in the twelfth year after the Effective Date or such other date as the Minister and Tsawwassen First Nation may agree.

36.  Where, under clause 34, the Minister or Tsawwassen First Nation proposes the establishment of a Tsawwassen Allocation for a Non-Allocated Species under the Tsawwassen Fishing Right, the Joint Fisheries Committee will consider the proposal, taking into account:

a. Base Period information on the harvests by Tsawwassen First Nation of that Non-Allocated Species for Domestic Purposes;

b. measures necessary for conservation, including the impact of those measures on the harvests by Tsawwassen First Nation of that Non-Allocated Species for Domestic Purposes;

c. harvests for management of that Non-Allocated Species;

d. other harvests of that Non-Allocated Species for food, social or ceremonial purposes;

e. the impact of commercial and recreational fisheries on harvests by Tsawwassen First Nation of that Non-Allocated Species for Domestic Purposes; and

f. other relevant information.

37.  Where all representatives of the Joint Fisheries Committee agree, the Joint Fisheries Committee may recommend to the Parties that studies, in respect of the information referred to in clause 36, be conducted to assist the representatives in reaching agreement on a recommendation.

38.  Where all representatives of the Joint Fisheries Committee agree on a recommendation for a Tsawwassen Allocation for a Non-Allocated Species, the Joint Fisheries Committee will notify the Parties of that recommendation.

39.  Where, six months after receipt of a proposal under clause 34, the Joint Fisheries Committee has not agreed on recommendations for a Tsawwassen Allocation, the Joint Fisheries Committee will notify the Parties that they are unable to agree on a recommendation.

ARBITRATED TSAWWASSEN ALLOCATON

40.  Where a proposal is made under clause 34 to establish a Tsawwassen Allocation for a Non-Allocated Species and the Minister and Tsawwassen First Nation have not agreed to a Tsawwassen Allocation for that Non-Allocated Species within one year after the proposal, the Basic Harvest Entitlement for that Non-Allocated Species will be finally determined by arbitration, under the Dispute Resolution chapter, without proceeding through Stages One and Two.

41.  Where the Minister and Tsawwassen First Nation agree with the recommendation of the Joint Fisheries Committee for studies, the Parties may agree to extend the time period referred to in clause 39 or 40 to allow for the completion of the studies referred to in clause 37.

42.  The Minister or Tsawwassen First Nation may request that an arbitrator describe a Basic Harvest Entitlement for a Non-Allocated Species under the Tsawwassen Fishing Right as a defined harvest quantity or quota, or a harvest quantity or quota determined by the use of a formula, or a harvest quantity or quota determined by the use of a formula in respect of a defined harvest area within the Tsawwassen Fishing Area or Tsawwassen Intertidal Bivalve Fishing Area.

43.  In an arbitration referred to in clause 40, the arbitrator will take into account the factors set out in clause 36.

44.  In an arbitration referred to in clause 40, the arbitrator will determine the Basic Harvest Entitlement within a period of not more than one year.

45.  An arbitrator may extend the time period referred to in clause 44 to allow for the completion of studies referred to in clause 37.

46.  Where an arbitrator determines the Basic Harvest Entitlement for a species, the Minister and Tsawwassen First Nation will, as soon as practicable, negotiate and attempt to reach agreement on the Tsawwassen Allocation for that species.

47.  If, six months after an arbitrator provides a decision to the Parties under clause 40, the Parties have not agreed on the Tsawwassen Allocation for that Non-Allocated Species, the Tsawwassen Allocation for that Non-Allocated Species is the Basic Harvest Entitlement times 1.25.

48.  In the case of crab, where an arbitrator determines the Basic Harvest Entitlement for crab under clause 40, the Parties will use that Basic Harvest Entitlement as the Tsawwassen harvest level for crab until the Parties reach agreement on a Tsawwassen Allocation under clause 46 or until a Tsawwassen Allocation is established under clause 49.

49.  In the case of crab, if 30 months after an arbitrator provides a decision under clause 40, the Parties have not agreed on the Tsawwassen Allocation, the Tsawwassen Allocation is the Basic Harvest Entitlement times 1.25.

AMENDMENT TO THE FINAL AGREEMENT

50.  Where the Minister and Tsawwassen First Nation agree in writing to the Tsawwassen Allocation for a Non-Allocated Species, or a Tsawwassen Allocation for a Non-Allocated Species is determined under clause 47 or 49, the Parties will amend this Agreement, in accordance with clause 11 of the Amendment chapter, to include the Tsawwassen Allocation in this Agreement.

POWER TO MAKE LAWS

51.  Tsawwassen Government may make laws in respect of:

a. the designation of individuals and vessels to harvest Fish and Aquatic Plants under the Tsawwassen Fishing Right; and

b. the distribution among Tsawwassen Members of Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right.

52.  A Tsawwassen Law made under clause 51 prevails to the extent of a Conflict with a Federal or Provincial Law.

53.  Tsawwassen Government may make laws in respect of:

a. the designation of individuals and vessels by Tsawwassen First Nation to harvest Fish and Aquatic Plants under fishing licences that are issued to Tsawwassen First Nation but that are not Tsawwassen Harvest Documents;

b. the documentation of individuals and vessels designated by Tsawwassen First Nation; and

c. the Trade and Barter by Tsawwassen Members of Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right.

54.  A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 53.

DESIGNATION

55.  Where a Tsawwassen Allocation for a species of Fish or Aquatic Plants has been established under this Agreement, Tsawwassen First Nation may designate Tsawwassen Members and other individuals to harvest that species of Fish or Aquatic Plants under the Tsawwassen Fishing Right.

56.  Tsawwassen First Nation may not designate individuals who are not Tsawwassen Members to harvest a species of Fish or Aquatic Plants under the Tsawwassen Fishing Right where no Tsawwassen Allocation for that species has been established under this Agreement.

DOCUMENTATION

57.  Where Tsawwassen First Nation designates an individual or a vessel, Tsawwassen First Nation will issue written documentation to the individual or vessel to evidence the designation.

58.  Documentation issued under clause 57 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;

b. in the case of an individual, include the name and address of the individual; and

c. meet any requirements set out in the Tsawwassen Fisheries Operational Guidelines and Tsawwassen Harvest Documents.

TSAWWASSEN HARVEST DOCUMENTS

59.  Each year, or periodically for those fisheries matters managed by British Columbia, the Minister will issue one or more Tsawwassen Harvest Documents to Tsawwassen First Nation in respect of the Tsawwassen Fishing Right. A Tsawwassen Harvest Document will be consistent with this Agreement.

60.  Tsawwassen First Nation will inform those individuals who are designated by Tsawwassen First Nation to harvest Fish and Aquatic Plants under the Tsawwassen Fishing Right of the provisions of the Tsawwassen Harvest Documents.

61.  Where the Minister issues a Tsawwassen Harvest Document, the Minister will take into account:

a. conservation measures and the availability of fisheries resources;

b. the recommendations on the provisions of Tsawwassen Harvest Documents that the Minister has received in a timely way from the Joint Fisheries Committee;

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 that the Minister considers relevant.

62.  The Minister will provide written reasons to Tsawwassen First Nation and the Joint Fisheries Committee if the provisions of a Tsawwassen Harvest Document differ significantly from:

a. the provisions that the Joint Fisheries Committee recommended to the Minister for inclusion in the Tsawwassen Harvest Document; or

b. a written recommendation in respect of the Tsawwassen Harvest Document under clause 77.

63.  Where the Minister amends a Tsawwassen Harvest Document, the Minister will:

a. give notice to;

b. provide written reasons to; and

c. where practicable, discuss those amendments in advance with

Tsawwassen First Nation and the Joint Fisheries Committee.

64.  Where special circumstances make it impracticable to discuss an amendment with Tsawwassen First Nation or the Joint Fisheries Committee under clause 63, the Minister:

a. may amend the Tsawwassen Harvest Document without receiving recommendations from the Joint Fisheries Committee; and

b. will notify the Joint Fisheries Committee and Tsawwassen First Nation as soon as practicable of the amendment and the reasons for the amendment.

TSAWWASSEN ANNUAL FISHING PLAN

65.  Every year, Tsawwassen First Nation will develop a Tsawwassen Annual Fishing Plan for the harvest under the Tsawwassen Fishing Right of Non-Allocated Species of Fish and Aquatic Plants, and species for which there is a Tsawwassen Allocation.

66.  A Tsawwassen Annual Fishing Plan will include, as appropriate, Tsawwassen First Nation preferences as to:

a. the stocks or species of Fish and Aquatic Plants to be harvested and, where appropriate, the amounts;

b. a description of the Fish and Aquatic Plants to be harvested;

c. the species, locations and timing of the harvest of Intertidal Bivalves;

d. the location and timing of harvests;

e. access to specific run timing groups;

f. the method of harvest, the size, type, identification, marking, and quantity of fishing gear and the manner in which it may be used;

g. the monitoring of harvests, including notification, catch monitoring, identification and reporting of harvest;

h. the distribution and transportation of Fish and Aquatic Plants harvested under the Tsawwassen Fishing Right;

i. Tsawwassen First Nation enforcement activities;

j. other matters as may be required for Tsawwassen Harvest Documents; and

k. other matters in respect of Tsawwassen fisheries.

67.  Each year, Tsawwassen First Nation will provide a Tsawwassen Annual Fishing Plan to the Joint Fisheries Committee in a timely way.

JOINT FISHERIES COMMITTEE

68.  On the Effective Date, the Parties will establish a Joint Fisheries Committee to facilitate cooperative assessment, planning, and management of:

a. the exercise of the Tsawwassen Fishing Right;

b. Enhancement Initiatives and Stewardship Activities by Tsawwassen First Nation;

c. monitoring and enforcement activities in respect of Tsawwassen First Nation fisheries; and

d. other matters as the Parties may agree.

69.  Subject to federal and provincial access to information and privacy legislation, the Parties will provide each other with access to publicly available information necessary to enable the Joint Fisheries Committee to carry out its functions and activities.

70.  The Joint Fisheries Committee will consist of one representative from each Party, but additional individuals may participate in meetings to support or assist a representative.

71.  Canada may choose not to attend Joint Fisheries Committee meetings on fisheries matters managed by British Columbia.

72.  British Columbia may choose not to attend Joint Fisheries Committee meetings on fisheries matters managed by Canada.

73.  In facilitating cooperative activities and functions under clause 68, the Joint Fisheries Committee may:

a. discuss publicly available information for proposed new emerging commercial fisheries and other fisheries that may be conducted in Tsawwassen Territory or that could significantly affect the Tsawwassen Fishing Right;

b. discuss publicly available information that is related to measures necessary for conservation, public health or public safety that could significantly affect the Tsawwassen Fishing Right;

c. discuss publicly available information related to proposed Enhancement Initiatives in the Tsawwassen Fishing Area or Tsawwassen Intertidal Bivalve Fishing Area;

d. arrange for the collection and exchange of publicly available data on fisheries;

e. discuss possible provisions for a Tsawwassen Annual Fishing Plan or Tsawwassen Harvest Documents before Tsawwassen First Nation develops a Tsawwassen Annual Fishing Plan;

f. review a Tsawwassen Annual Fishing Plan;

g. review proposals by Tsawwassen First Nation for Enhancement Initiatives;

h. communicate with other advisory bodies in respect of matters of mutual interest;

i. exchange publicly available information on issues related to international arrangements that could significantly affect the Tsawwassen Fishing Right; and

j. carry out other functions and activities as the Parties may agree.

74.  The Joint Fisheries Committee may discuss and make recommendations to the Parties in respect of:

a. Tsawwassen First Nation fisheries for Non-Allocated Species and Tsawwassen Allocations;

b. the management and harvesting of Fish in the Tsawwassen Fishing Area and the Tsawwassen Intertidal Bivalve Fishing Area;

c. the management and harvesting of Fish outside the Tsawwassen Fishing Area and the Tsawwassen Intertidal Bivalve Fishing Area that could significantly affect harvesting under the Tsawwassen Fishing Right;

d. the management and protection of Fish habitat;

e. Enhancement Initiatives and Stewardship Activities conducted by Tsawwassen First Nation in Tsawwassen Territory;

f. overages and underages;

g. in-season amendments to Tsawwassen Harvest Documents;

h. the provisions for Tsawwassen Harvest Documents, taking into account, among other things, provisions related to:

i. matters set out in a Tsawwassen Annual Fishing Plan, where Tsawwassen First Nation gives the Tsawwassen Annual Fishing Plan to the Joint Fisheries Committee in a timely way;

ii. measures for establishing harvest amounts for a Non-Allocated Species in any given year;

iii. access to a specific stock; and

iv. other measures for the harvest and management of Fish;

i. procedures for the identification of surplus Salmon and terms and conditions for harvests of surplus Salmon;

j. the size and disposition of surplus Salmon;

k. the harvest of surplus Salmon; and

l. other matters that could significantly affect harvesting under the Tsawwassen Fishing Right.

75.  The Joint Fisheries Committee will establish its own operating procedures and the Parties will set them out in the Tsawwassen Fisheries Operational Guidelines.

76.  The Joint Fisheries Committee representatives will seek to operate by consensus. The representatives of the Joint Fisheries Committee representing the Tsawwassen First Nation and Canada are responsible for functions and activities in respect of fisheries matters managed by Canada. The representatives of the Joint Fisheries Committee representing the Tsawwassen First Nation and British Columbia are responsible for functions and activities in respect of fisheries matters managed by British Columbia.

77.  If the Joint Fisheries Committee has not been able to reach agreement on a recommendation or is unable to convene due to special circumstances, any Party may submit its written recommendations to the Minister and will provide a copy to the other Parties.

78.  If special circumstances make it impracticable for the Minister to receive recommendations from the Joint Fisheries Committee, the Minister:

a. may make the decision or take the action that the Minister considers necessary, without receiving recommendations from the Joint Fisheries Committee; and

b. for the matters described in the Tsawwassen Fisheries Operational Guidelines, will provide written reasons to the Joint Fisheries Committee, as soon as practicable, of the special circumstances and the decision made or action taken.

TSAWWASSEN FISHERIES OPERATIONAL GUIDELINES

79.  The Tsawwassen Fisheries Operational Guidelines set out the operational principles, procedures and guidelines to assist the Parties to implement this chapter.

80.  The Parties will update and maintain the Tsawwassen Fisheries Operational Guidelines document as required.

REGIONAL FISHERIES COMMITTEE

81.  Where a regional fisheries committee is proposed or established for aboriginal fisheries in an area that includes all or part of the Tsawwassen Fishing Area or Tsawwassen Intertidal Bivalve Fishing Area and that committee has functions and activities similar to those of the Joint Fisheries Committee, the Parties will determine which functions or activities of the Joint Fisheries Committee can be addressed more effectively by a regional fisheries committee, and will discuss the mechanism for participation by Tsawwassen First Nation in the regional fisheries committee.

82.  Any Party may request that a function or activity of the Joint Fisheries Committee be performed by the regional fisheries committee.

83.  In determining which functions or activities of the Joint Fisheries Committee can be addressed more effectively by a regional fisheries committee under clause 81, no Party will unreasonably withhold consent to a request made by another Party.

84.  Where the Parties agree that a function or activity of the Joint Fisheries Committee will be carried out by a regional fisheries committee:

a. the Parties will update the Tsawwassen Fisheries Operational Guidelines document, as required, to reflect the change; and

b. a reference in this Agreement to the Joint Fisheries Committee will be read as a reference to the regional fisheries committee for that function or activity.

85.  Where a regional fisheries committee performs a function or activity of the Joint Fisheries Committee:

a. any Party may request that a function or activity that is not effectively addressed or efficiently coordinated by the regional fisheries committee be resumed by the Joint Fisheries Committee; and

b. the Parties will update the Tsawwassen Fisheries Operational Guidelines document, as required, to reflect the change.

86.  In determining which functions or activities of the regional fisheries committee can be resumed by the Joint Fisheries Committee, under subclause 85.a, no Party will unreasonably withhold its consent to a request made by another Party.

87.  If a regional fisheries committee is terminated and is not replaced by another process, the Joint Fisheries Committee will resume its original functions or activities.

88.  The Parties will, from time to time, review and discuss the effectiveness of the Joint Fisheries Committee and the regional fisheries committee that carries out a function or activity of the Joint Fisheries Committee.

PUBLIC FISHERIES MANAGEMENT ADVISORY PROCESS

89.  Where Canada or British Columbia proposes to establish a public fisheries management advisory process for an area of the Fraser River watershed that includes any part of the Tsawwassen Fishing Area or Tsawwassen Intertidal Bivalve Fishing Area, Canada or British Columbia will Consult with Tsawwassen First Nation in developing that public fisheries management advisory process and, if appropriate, will provide for participation by Tsawwassen First Nation on the same basis as other First Nations.

90.  Neither a public fisheries management advisory process referred to in clause 89 nor a regional fisheries committee referred to in clause 81 is an international fisheries advisory process.

91.  The design, establishment and termination of public fishery advisory management processes are at the discretion of the Minister.

ENFORCEMENT

92.  The Parties may negotiate agreements in respect of the enforcement of Federal and Provincial Laws and Tsawwassen Laws in respect of fisheries.

93.  Tsawwassen Laws made under this chapter may be enforced by persons authorized to enforce, in British Columbia, Federal Law, Provincial Law or Tsawwassen Law.

STEWARDSHIP AND ENHANCEMENT

94.  With the approval of the Minister and in accordance with Federal and Provincial Law, Tsawwassen First Nation may conduct Enhancement Initiatives and Stewardship Activities in Tsawwassen Territory.

95.  Canada and Tsawwassen First Nation may negotiate agreements in respect of Tsawwassen First Nation activities related to Enhancement Initiatives and Stewardship Activities.

TSAWWASSEN FISHERIES FUND

96.  On the Effective Date, Canada will pay to Tsawwassen First Nation one million dollars ($1,000,000) to establish a Tsawwassen Fisheries Fund.

97.  The Tsawwassen Fisheries Fund may be used for:

a. promoting the conservation and protection of Fish and Aquatic Plants and Fish habitat in Tsawwassen Territory;

b. facilitating the sustainable management of Fish and Fish habitat in Tsawwassen Territory; and

c. promoting and supporting participation by Tsawwassen First Nation in the stewardship of Fish and Fish habitat in Tsawwassen Territory.

98.  In pursuing the uses of the Tsawwassen Fisheries Fund, Tsawwassen First Nation may seek and consider recommendations from the Joint Fisheries Committee.

MARINE PROTECTED AREAS

99.  Canada will Consult with Tsawwassen First Nation when Canada proposes to establish, terminate, or change the boundaries of a Marine Protected Area that is wholly or partially within Tsawwassen Territory.

100.  Tsawwassen First Nation may recommend in writing that Canada establish, terminate or change the boundaries of a Marine Protected Area that is wholly or partially within Tsawwassen Territory.

101.  Where Tsawwassen First Nation makes a written recommendation under clause 100 to establish, terminate or change the boundaries of a Marine Protected Area that is wholly or partially within Tsawwassen Territory, Canada will review the recommendation and provide a written response.

ECONOMIC OPPORTUNITIES

102.  On the Effective Date, Canada, British Columbia and Tsawwassen First Nation will enter into a Tsawwassen First Nation Harvest Agreement.

103.  For greater certainty, as provided for under clause 58 of the General Provisions chapter, a Tsawwassen First Nation Harvest Agreement:

a. is not part of this Agreement; and

b. is not a treaty or land claims agreement and does not create, recognize or affirm aboriginal or treaty rights within the meaning of sections 25 and 35 of the Constitution Act, 1982.

104.  A Party may terminate a Tsawwassen First Nation Harvest Agreement and it will recompense the Tsawwassen First Nation in accordance with the terms of that agreement.

105.  For purposes of increasing the commercial fishing capacity of Tsawwassen First Nation, on the Effective Date, Canada will provide to Tsawwassen First Nation amounts, to be paid in accordance with clause 1 of the Capital Transfer and Negotiation Loan Repayment chapter, to establish:

a. a Tsawwassen Commercial Fish Fund; and

b. a Tsawwassen Commercial Crab Fund.

The values in 2006 of the amounts referred to in subclauses 105.a and 105.b are approximately $1,155,000 and $450,000, respectively.

NEW EMERGING COMMERCIAL FISHERIES

106.  Where the Minister proposes to establish a new emerging commercial fishery within Pacific Fishery Management Areas 14, 15, 16, 17, 18, 19, 20, 28 or 29, the Minister will advise Tsawwassen First Nation of the proposal to establish the fishery and will Consult with Tsawwassen First Nation on a process for participants to enter the fishery and for how the fishery should be allocated among participants.

107.  Any participation by Tsawwassen First Nation in any new emerging commercial fishery authorized by the Minister will be determined in accordance with the process established by the Minister.

AQUACULTURE

108.  Tsawwassen First Nation may give notice to British Columbia within ten years of the Effective Date that it wishes to negotiate a shellfish aquaculture tenure within Tsawwassen Territory.

109.  A notice from Tsawwassen First Nation under clause 108 will include written confirmation that Tsawwassen First Nation has addressed any issues arising from claims of other aboriginal groups to specific shellfish aquaculture tenure sites proposed by Tsawwassen First Nation.

110.  Upon receiving notice from Tsawwassen First Nation under clause 109, British Columbia and Tsawwassen First Nation will negotiate and attempt to reach agreement on a shellfish aquaculture tenure under Provincial Law.