12 WILDLIFE HARVESTING AND MANAGEMENT
12.1 OBJECTIVES
12.1.1
This chapter has the following objectives:
to protect for the future the right of the Gwich’in to gather, hunt, trap and fish throughout the settlement area at all seasons of the year; to conserve and protect wildlife and wildlife habitat and to apply conservation principles and practices through planning and management; to provide the Gwich’in with certain exclusive, preferential and other harvesting rights and economic opportunities related to wildlife; to respect the harvesting and wildlife management customs and practices of the Gwich’in and provide for their ongoing needs for wildlife; to involve the Gwich’in in a direct and meaningful manner in the planning and management of wildlife and wildlife habitat; to integrate planning and management of wildlife and wildlife habitat with the planning and management of all types of land and water use in order to protect wildlife and wildlife habitat; to ensure that traditional harvesting by other aboriginal peoples who have harvested in the settlement area can be accommodated in this agreement; and to deal fairly and equitably with persons who hunt, trap, fish or conduct commercial wildlife activities in the settlement area and who are not participants.
12.2 DEFINITIONS
12.2.1
In this chapter,
“Board” means the Renewable Resources Board; and
“edible products of wildlife” includes those parts of wildlife traditionally consumed for food by aboriginal people.
12.3 GENERAL
12.3.1
Government shall retain the ultimate jurisdiction for the management of wildlife and wildlife habitat. Government shall continue to have the jurisdiction to initiate programs and to enact legislation with respect to the settlement area which are not inconsistent with this agreement.
12.3.2
The exercise of the rights of the Gwich’in under this chapter is subject to the limitations provided in this agreement and to legislation in respect of conservation, public health or public safety.
12.3.3
Nothing in this agreement is intended to confer rights of ownership in any wildlife.
12.3.4
Nothing in this agreement shall be construed as granting a participant any right to buy, sell or offer for sale any migratory game bird, or parts thereof, or migratory game bird’s egg not authorized for sale by law.
12.3.5
The right to harvest wildlife pursuant to this chapter does not extend to migratory non-game birds and migratory insectivorous birds as defined in the Migratory Birds Convention Act, R.S. 1985, c. M-7.
12.4 HARVESTING
12.4.1
The Gwich’in have the right to harvest all species of wildlife within the settlement area at all seasons of the year subject to limitations which may be prescribed in accordance with this agreement.
12.4.2
The right described in 12.4.1 does not preclude persons who are not participants from harvesting in accordance with legislation.
12.4.3
Subject to the provisions of this agreement, the Gwich’in have the exclusive right to harvest wildlife on Gwich’in lands. No person who is not a participant may harvest wildlife, other than fish or migratory game birds as may be provided pursuant to this agreement, on or in waters overlying Gwich’in lands.
12.4.4
The Gwich’in may use the special harvesting areas identified in schedules V to VIII, appendix F, to harvest fish or other species of wildlife specified for those special harvesting areas. The disposition of wildlife harvested from such areas is subject to 12.4. 16. Persons who are not participants may not have access to such areas for the purpose of harvesting wildlife where such harvesting would be inconsistent with the special harvesting by the Gwich’in. Persons who are not participants may, pursuant to legislation, harvest moose in the special harvesting areas designated for the harvesting of moose during a season in the fall of the year. The season in such area shall be no longer than 90 days in duration and shall close no later than the 16th day of December in any calendar year. Such special harvesting areas are set out in schedule VIII, appendix F. The Board may change or remove any such special harvesting areas and the conditions attached thereto, with the consent of the affected Renewable Resources Council.
12.4.5
The Gwich’in have the exclusive right to harvest fur bearers throughout the settlement area. Notwithstanding (a), persons who are not participants may hunt, but not trap, wolves, wolverines and coyotes on lands other than Gwich’ in lands throughout the settlement area in accordance with legislation.
12.4.6
A Renewable Resources Council may permit any person, within the limits prescribed by laws affecting wildlife harvesting and management and by this agreement, to harvest wildlife from the lands referred to in 12.4.3, to harvest wildlife to which the Gwich’in have been granted special harvesting rights in 12.4.4, and to harvest fur bearers to which the Gwich’in have the exclusive right, ‘upon terms and conditions respecting species, location, methods, quantities, seasons and duration of harvest as may be set by the Renewable Resources Council. In the case of 12.4.4, such permission may only be granted for the period of Gwich’in exclusive use and in respect of the species for which the special harvesting area was established. Where the Renewable Resources Council has received a request for permission to harvest pursuant to this provision, it shall render a decision within 60 days of the request and duly communicate such decision to the applicant.
12.4.7
Where a Renewable Resources Council has granted or refused permission to a person who is not a participant to harvest fur bearers on lands in the settlement area which are not Gwich’in lands and on which fur bearers are not being harvested, such person may apply in writing to the Board
for a review of such refusal or of the terms and conditions attached to any permission. The Board shall consider such application within 60 days of receipt and may set aside the decision of the Renewable Resources Council and may substitute its own decision together with terms and conditions, if the Board determines that it is reasonable, in all the circumstances, to do so. The decision of the Board shall not be subject to review by the Minister.
12.4.8
Where in accordance with this chapter, a Renewable Resources Council permits persons who are not participants to harvest wildlife, harvesting by those persons shall be in accordance with legislation and such conditions as may be set by the Renewable Resources Council. Where such permission is granted to persons who are not participants, the resulting harvest shall not be included in the Gwich’in Needs Level established pursuant to 12.5.
12.4.9
The Gwich’in shall not charge a fee or receive a benefit for the act of granting a person who is not a participant permission to harvest wildlife. The Gwich’in may charge a fee or obtain a benefit:
for granting access to Gwich’in lands to a person who is not a participant for harvesting; or for services and facilities provided to a person who is not a participant in connection with harvesting wildlife.
12.4.10
The Gwich’in have the right of access to all lands within the settlement area for the purpose of harvesting wildlife, subject to 12.4.10(b), 12.4.12, 12.4.13, 15.1.2 and 26.2.1. The exercise of the right of access provided by (a) to lands owned in fee simple or subject to an agreement for sale or a surface lease, is subject to the following conditions:
that there be no significant damage to the lands, and the user shall be responsible for any such damage; there be no mischief committed on the lands; there be no significant interference with the occupier’s use of, and peaceable enjoyment of, the lands; and unless otherwise provided for in an agreement with the owner or occupier, Gwich’in using this right of access do so at their own risk and have no right of action against the owner or occupier for loss suffered or damage arising therefrom.
12.4.11
The Gwich’in right of access granted by 12.4. 10 includes the right to travel and establish and maintain hunting, trapping and fishing camps. In (a), “camp” means a facility established for the personal use of the Gwich’in for the purpose of wildlife harvesting. The Gwich’in right of access described in 12.4.10 includes the use of plants and trees for purposes ancillary to wildlife harvesting.
12.4.12
The right of access granted by 12.4.10 shall not extend to:
lands dedicated to military or national security purposes pursuant to legislation or areas temporarily being used for military exercises for the period of such temporary use, after notice of such dedication or use has been given to the affected Gwich’in community or communities; lands which, at the date of settlement legislation, are owned in fee simple or are subject to an agreement for sale or to a surface lease; lands within municipal boundaries which, after the date of settlement legislation, are granted in fee simple, made subject to an agreement for sale or to a surface lease; lands outside municipal boundaries of 130 hectares (approximately 321 acres) or less in surface area which after the date of settlement legislation are granted in fee simple or made subject to an agreement for sale or to a surface lease; and lands the right of access to which is restricted in accordance with 12.4.13.
12.4.13
It is recognized that some uses of land, which may be authorized in the future, may conflict with harvesting activities and thus be incompatible with the exercise of Gwich’in harvesting rights. If government or a holder of an interest in land (hereinafter “the proponent”) proposes that the right of access granted in 12.4.10 should be restricted because a proposed use of land would conflict with harvesting, the proponent, after consultation with the Gwich’in Tribal Council with respect to the proposal, shall give notice to any other holder of an interest in the land and to any Renewable Resources Council for the area in which the land is situated specifying the nature, extent, duration and conditions as well as a proposal for public notice of the proposed restriction. Any Renewable Resources Council or holder of an interest in the land to which the notice has been sent may, within 60 days of receipt of the notice, or such other period as the Board may establish, refer the proposal to arbitration pursuant to chapter 6, which shall determine:
whether the proposed use conflicts with harvesting, and if so, the nature, extent, duration and conditions of the restriction on access for harvesting, including the establishment and maintenance of hunting, trapping and fishing camps, required to allow the proposed use.
The arbitrator shall ensure that a restriction shall only apply for as long as the land is in actual use and only to the extent necessary to permit the proposed use without conflict. Where no reference to arbitration is made pursuant to (c), the proposed restriction shall come into effect, according to the terms specified in the notice described in (b), unless otherwise agreed to by the parties. The provisions of 12.4.13 do not apply to Gwich’in lands.
12.4.14
The Gwich’in have the right to employ any methods of harvesting and to possess and use any equipment for the purpose of harvesting. In addition to being subject to legislation referred to in 12.3.2, this right is also subject to legislation respecting the humane harvesting of wildlife.
Government agrees that no legislation respecting the humane harvesting of wildlife will be introduced without prior consultation with the Gwich’in Tribal Council.
12.4.15
The exercise of the rights of the Gwich’in in 12.4. 10,12.4. 14 and 15.1.2 is subject to legislation for the protection of the environment from significant damage.
12.4.16
The Gwich’in have the right to trade among themselves and with other aboriginal persons, for personal consumption, edible products of wildlife harvested by them. In (a), “aboriginal persons” means aboriginal persons
who reside in and who are eligible to harvest wildlife in the Northwest Territories; or who are members of a Yukon First Nation and who reside in the Yukon. Nothing in 12.4.16 is intended to confer any rights on any persons other than the Gwich’in. The right provided in (a) is intended to maintain traditional sharing among individuals and communities and is not to be exercised in a manner that would be considered by the Board to be commercial. The Board may propose regulations in respect of such trade but only to ensure that it is not done in a manner that it considers commercial. Notwithstanding 12.8.25, the Minister may review any such proposed regulation only for purposes of conservation, public safety or public health.
12.4.17
The Gwich’in have the right to trade with any person any non-edible products of wildlife that are obtained from the harvesting of fur bearers or incidentally from the harvesting of wildlife for personal use.
12.4.18
The right to harvest wildlife includes the right to possess and transport wildlife parts and products in the Northwest Territories, in other areas where provided for in this agreement, and between the Northwest Territories and such other areas.
12.4.19
Where required by the Board, participants shall show proof of enrolment as provided by the Enrolment Board pursuant to 4.5.2(i). The Board may require participants to obtain permits or licences for the purpose of regulating harvesting, but participants shall not be required to pay any fee or tax for any non-commercial permit or licence.
12.4.20
Nothing in this agreement prevents any person from killing wildlife in the settlement area for survival in an emergency.
12.5 LIMITATION OF THE HARVEST
12.5.1
The Board may limit the quantity of the harvest by the Gwich’in in accordance with the procedure set out in 12.5.
12.5.2
The Board may, in accordance with this chapter, establish, modify or remove total allowable harvest levels from time to time in the settlement area but shall establish or modify such levels only if required for conservation and to the extent necessary to achieve conservation. Unless a total allowable harvest is established, the quantity of the harvest by the Gwich’in may not be limited.
12.5.3
Where a total allowable harvest has been established, the Board shall allocate for the Gwich’in a portion or all of the total allowable harvest, hereinafter called the “Gwich’in Needs Level”. When the Gwich’in Needs Level equals or is less than the total allowable harvest it shall constitute a first demand on the total allowable harvest. When the Gwich’in Needs Level is greater than the total allowable harvest, the Gwich’in shall be allocated not more than the total allowable harvest.
12.5.4
The Board may establish the total allowable harvest and the Gwich’in Needs Level for a particular wildlife species or population applicable to the settlement area as a whole, or to particular areas or
communities. The Board may adjust the Gwich’in Needs Level from time to time.
12.5.5
When establishing and adjusting a Gwich’in Needs Level, the Board shall consult with Renewable Resources Councils and shall consider all relevant factors including in particular:
the usage patterns and levels of past harvests by the Gwich’in; personal consumption needs of the Gwich’in, including their nutritional, clothing and cultural needs and fish for their dogs; trade among the Gwich’in to meet their needs described in (b); and the availability of various wildlife species and populations to meet these needs.
12.5.6
A Settlement Area Harvest Study shall be conducted in order to provide necessary information for the Board and government to effectively manage wildlife. The terms of reference for the harvest
study are set out in schedule I to this chapter.
12.5.7
Except when the total allowable harvest is less than the Gwich’in Minimum Needs Level established pursuant to 12.5.8 or 12.5.9, the Gwich’in Needs Level may be established above or at, but shall never be established below, the Gwich’in Minimum Needs Level.
12.5.8
When the study described in 12.5.6 has been completed, the Gwich’in Minimum Needs Level for a species or population of wildlife shall be equal to one half of the sum of the average annual harvest by the Gwich’in over the first five years of the study and the greatest amount taken in any one of those five years, which calculation is expressed mathematically as:
[h1+h2+h3+h4+h5 +hmax ]x1/2
5
| h1 |
= harvest in year 1 |
| h2 |
= harvest in year 2 |
| h3 |
= harvest in year 3 |
| h4 |
= harvest in year 4 |
| h5 |
= harvest in year 5 |
| hmax |
= greatest amount taken in years 1-5 |
12.5.9
Until the study described in 12.5.6 is completed, and when a total allowable harvest is established, the Board shall set the Gwich’in Minimum Needs Level in accordance with the calculation in 12.5.8, using the best information available to estimate the annual harvest levels for the five years prior to establishment of the total allowable harvest. The Board may review and adjust such Minimum Needs Level as the study data become available. Notwithstanding 12.5.7, if the Gwich’in Tribal Council or the appropriate Renewable Resources Council advises the Board that the Gwich’in Needs Level for a particular species, population, area or community will not be required in a particular harvesting period, the Board may allocate such unrequired portion, or a part thereof, pursuant to 12.5.15.
12.5.10
12.5.11 to 12.5.14 shall apply to the species named therein, notwithstanding 12.5.1 to 12.5.9.
Muskox
12.5.11
In the case of muskox, the Board, after consultation with the affected Renewable Resources Council with respect to location, methods, quantities, seasons and like matters, shall allocate a portion of any total allowable harvest in excess of the (3wich’in Needs Level for persons who are
not participants.
Moose and Barren-ground Caribou
12.5.12
In the case of moose and barren-ground caribou, the Board, after consultation with the affected Renewable Resources Councils with respect to location, methods, quantities, seasons and like matters, shall allocate a portion of any total allowable harvest in excess of the Gwich’in Needs Level for persons who are not participants.
Sheep
12.5.13
In the case of sheep in the Mackenzie Mountains, the Board shall allocate a portion of any total allowable harvest in excess of the Gwich’in Minimum Needs Level for persons who are not participants. For the purpose of 12.5.13, Mackenzie Mountains means that portion of Unit E, as described in the Government of the Northwest Territories Wildlife Management Unit Regulations (R-057-83), which is in the settlement area.
Migratory Game Birds
12.5.14
The Board may, in accordance with the provisions of this agreement, establish the total allowable harvest of migratory game birds in the settlement area:
recognizing the national and international responsibilities of the Minister, the Board shall ensure that the total allowable harvest figures are received by the Minister on a date, to be specified by the Minister, that will allow consideration of such total allowable harvest for the settlement area when regulations for other users who harvest the same migratory game bird species outside the settlement area are being established. If such figures are not received by the Minister by the specified date, the Minister may establish the total allowable harvest for the settlement area and advise the Board accordingly; the total allowable harvest for a migratory game bird species or population for the settlement area shall always be set at a percentage at least equal to the percentage that the settlement area harvest, as determined in (b)(i), bears to the total harvest of such migratory game bird species or population throughout Canada during the same period; and the total harvest figures for Canada of each migratory game bird species or population harvested in the settlement area shall be provided to the Board by the Minister as required to enable the Board to establish the total allowable harvest for the settlement area.
The Board shall establish the Gwich’in Minimum Needs Level for migratory game birds in the following manner:
the total annual harvest for a migratory game bird species or population in the settlement area and the harvest by the Gwich’in and by persons who are not participants shall be determined for five consecutive years and the average annual harvest by Gwich’in and by persons who are not participants will be calculated; the percentage of the Gwich’in average annual harvest of the total average annual harvest for migratory game bird species or populations in the settlement area shall be determined for such migratory game bird species or populations; and the total allowable harvest in any one year for such species or population, multiplied by the percentage determined in (b)(ii), shall constitute the Gwich’in Minimum Needs Level for that year.
The Board shall establish a Gwich’in Needs Level for migratory game birds in accordance with the provisions of this agreement and shall consult with the Gwich’in Tribal Council with respect to allocating the Gwich’in Needs Level among Gwich’in communities.
Allocation
12.5.15
In allocating any total allowable harvest in excess of the Gwich’in Needs Level, the Board shall consider all relevant factors, including the following factors (which are not intended to be in order of priority):
requirements of long-term residents of the Mackenzie Valley who are not participants who rely on wildlife from the settlement area for food for themselves, their families and their dogs; personal consumption needs of other aboriginal peoples who have harvesting rights in the settlement area; demand for hunting and sport fishing by:
residents of the Northwest Territories who are not participants; and other persons who are not participants; commercial demand inside and outside the settlement area; and demand by lodges and outfitters.
12.6 MANAGEMENT OF MIGRATORY SPECIES
12.6.1
Government undertakes that plans for wildlife management and habitat management will be designed to maintain or enhance the productivity of populations of migratory species within the Northwest Territories and Yukon Territory in an integrated fashion.
12.6.2
Government shall work with the Board, other wildlife management bodies and users to establish wildlife management agreements with respect to migratory species. Where an agreement has not been concluded for the management of a migratory species, government may exercise its powers
of management including stipulating the terrms of a management plan which shall be binding on all persons.
12.6.3
Government shall work with the users of the Bluenose caribou herd for the purpose of establishing an agreement for the management of the herd.
12.6.4
The provisions of the Porcupine Caribou Management Agreement and any management agreement established with respect to the Bluenose caribou herd shall apply to the herds named therein, notwithstanding any provisions of this agreement which may be inconsistent with such agreements.
12.6.5
In respect of migratory species which cross international boundaries, Canada shall endeavour to include the countries concerned in cooperative conservation and management agreements and arrangements. Canada shall endeavour to have provisions in such agreements respecting joint research objectives and related matters respecting the control of access to populations.
12.6.6
Government shall provide the Gwich’in with the opportunity to be represented in any Canadian management regime in respect of migratory species which are established pursuant to international or domestic agreements and which affect migratory species in the settlement area.
12.6.7
Canada shall consult the Board in developing Canadian positions for international consultations and negotiations relevant to migratory game bird management in the settlement area.
12.7 COMMERCIAL OPPORTUNITIES RELATED TO WILDLIFE
Commercial Harvesting
12.7.1
The Board shall determine whether commercial harvesting is to be permitted in a particular area for a particular species or population and may prescribe terms and conditions for such harvesting. The terms and conditions may include general licence terms in respect of employment, training and business opportunities for the Gwich’in, non-interference with harvesting by the Gwich’in, and like matters. Where there has not been commercial harvesting described in (a) at any time during the previous three years, the Board shall require the consent of the affected Renewable Resources Council before permitting such commercial harvesting. A Renewable Resources Council shall render a decision within such reasonable time as is specified by the Board. On application by an interested party, or on its own motion, the Board may review the decision of a Renewable Resources Council under (b) not to consent to such commercial harvesting and may permit such harvesting if the Board determines that it is reasonable, in all the circumstances, to do so.
12.7.2
The Gwich’in Tribal Council shall have the right of first refusal, in accordance with the provisions of 12.7.5, to any new licence for the commercial harvesting of wildlife. The provisions of 12.7.2 do not
apply to commercial fishing licences.
Commercial Harvesting of Fish
12.7.3
In 12.7.3,
a licence shall be deemed to be valid at the date of settlement legislation if the licence was valid for the April 1 to March 31 period in which the date of settlement legislation occurs; and “fishery” means the commercial harvesting of a specific fish species in a specific location as set out in legislation.
Government may not issue a licence for a fishery in waters overlying Gwich’in lands to a person who is not a participant except in the case of a person who:
held a licence which was valid at the date of settlement legislation for a fishery in waters overlying Gwich’in lands; and applies to renew and is issued such licence within the April 1 to March 31 period in which the date of settlement legislation occurs and in every April 1 to March 31 period thereafter.
Government may only issue a licence for a fishery in the waters listed in schedule VI, appendix F, to a person who:
held a licence which was valid at the date of settlement legislation for a fishery in the waters listed in schedule VI, appendix F; and applies to renew and is issued such licence within the April 1 to March 31 period in which the date of settlement legislation occurs and in every April 1 to March 31 period thereafter. In the case of the commercial harvesting of fish in waters other than waters in (b):
government shall offer to the Gwich’in for every licensing period after the date of settlement legislation and for each fishery a number of licences equal to the larger of
the number of licences held by Gwich’in at the date of settlement legislation who met any minimum production requirements, and if there are no production requirements, who actually fished pursuant to a licence during the fishing season immediately preceding the date of settlement legislation, and the number of licences held by Gwich’in at the date of settlement legislation who met any minimum production requirements, and if there are no production requirements, who actually fished pursuant to a licence during the fishing season two seasons immediately preceding the date of settlement legislation;
government shall first offer the licences described in (i) to Gwich’in who, in the fishery for which the licence is offered, met any minimum production requirements, and if there are no production requirements, who actually fished pursuant to a licence, in both or either of the two immediately preceding fishing seasons; and second, to the Gwich’in Tribal Council; subject to (iv), the Gwich’in Tribal Council shall have the right of first refusal, for each fishery, to one half of any licences which are new, not renewed or not reissued to the previous holder; the right provided in (iii) shall not apply for any fishing season for any fishery in respect of which Gwich’in and the Gwich’in Tribal Council together have been offered or issued at least 50 percent of the licences for that fishing season for that fishery; and after the Gwich’in have been offered or have taken up licences pursuant to (i) or (iii), Gwich’in shall be treated on the same basis as other licence applicants in respect of a particular fishery.
Commercial Naturalist Activities and Commercial Guiding and Outfitting Activities in Respect of Hunting and Sport Fishing
12.7.4
The provisions of 12.7.1 apply, with such modifications as the circumstances require, to commercial naturalist activities and to commercial guiding and outfitting activities in respect of hunting and sport fishing.
12.7.5
The Gwich’in Tribal Council shall have the right of first refusal to a new licence for an activity described in 12.7.4 in the settlement area, provided that the Board provides that a portion of such licences for guiding and outfitting for barren-ground caribou be reserved for residents who are not participants. Where a person who is not a participant has applied for a licence as described in (a), other than a licence reserved for such resident, the Gwich’in Tribal Council shall be duly notified of such application and shall have such reasonable time as is specified by the licensing authority to prepare and submit an application for the licence. The Gwich’in Tribal Council shall be awarded the licence except where:
the Gwich’in Tribal Council fails to submit an application in the form and manner required for such applications by legislation and by the licensing authority and within the time specified in (b); or the licensing authority determines that the application of the Gwich’in Tribal Council would not provide a comparable degree of long-term economic benefit to the community compared to the person’s application.
12.7.6
In the event that the holder of a licence in respect of any of the activities described in 12.7.4 intends to relinquish the licence and/or sell or transfer the enterprise, or any part thereof, the Gwich’in Tribal Council shall have the right of first refusal to take up such licence and/or the first opportunity to purchase the said enterprise or the part thereof at fair market value, provided that the following shall not be considered as sales or transfers under 12.7.6:
sales or transfers to persons holding rights or options to purchase as at the date of this agreement; sales or transfers to persons who are members of the holder’s immediate family, and who are themselves eligible to hold a licence; or incorporations or reorganizations which do not affect the effective ownership of the enterprise, or amount to an effective sale or transfer of all or a part thereof. Procedures for the exercise of the right of first refusal in (a) are set out in schedule II to this chapter.
Commercial Propagation. Cultivation and Husbandry Activities
12.7.7
Where, in the opinion of the Board, a proposed commercial activity for the propagation, cultivation or husbandry of a species of wildlife indigenous to the settlement area could adversely affect harvesting by the Gwich’in by reason of the area in which it is proposed to be carried on, or otherwise, the Board shall require the consent of the Renewable Resources Council for the area. Where, in the opinion of the Board, a proposed commercial activity for the propagation, cultivation or husbandry of a species of wildlife which is not indigenous to the settlement area could adversely affect harvesting by the Gwich’in by reason of the area in which it is proposed to be carried on, the Board shall require the consent of the Renewable Resources Council for the area. On application by an interested party, or on its own motion, the Board may review a decision of a Renewable Resources Council under (a) and (b), and may permit the proposed commercial activity if the Board determines that it is reasonable, in all the circumstances, to do so. The Board shall advise the appropriate licensing authority of its decision pursuant to 12.7.7.
12.7.8
The Gwich’in Tribal Council shall have a right of first refusal in accordance with the provisions set out in 12.7.5 to any new licence in respect of commercial activities described in 12.7.7(a).
Muskox
12.7.9
The Gwich’in Tribal Council shall have the exclusive right to be licensed to commercially harvest free-roaming muskox and the exclusive right to be licensed to provide guiding services and harvesting opportunities with respect to this species.
General Conditions
12.7.10
The Gwich’in shall have the exclusive right to be licensed to conduct commercial wildlife activities on Gwich’in lands, and to permit others to do so, subject to rights existing at the date of settlement legislation.
12.7.11
Government shall, upon request and at reasonable rent, permit the use of or lease such lands to the Gwich’in as in the opinion of government are reasonably necessary to carry out the licensed activities described in this chapter.
12.7.12
The commercial wildlife activities referred to in 12.7 shall be conducted in accordance with legislation affecting such activities. A licence fee may be required to engage in such activities.
12.8 RENEWABLE RESOURCES BOARD
12.8.1
A Renewable Resources Board shall be established to be the main instrument of wildlife management in the settlement area. The Board shall act in the public interest. The Board shall be established by virtue of settlement legislation at the date thereof. Wildlife shall be managed in the settlement area in accordance with this agreement including its objectives.
12.8.2
Where, by legislation, any other renewable resources board (“the new board”) is established having jurisdiction in an area within the Mackenzie Valley which includes the settlement area:
the new board shall assume the powefs and responsibilities of the Board; the Board shall merge with and become a regional panel of the new board. The regional panel shall be reduced to five members of which two shall be nominees of the Gwich’in Tribal Council; the regional panel shall exercise the powers of the Board except that where, in the opinion of the new board, any decision or recommendation may affect renewable resources in an area within the jurisdiction of the new board outside the settlement area, the decision or recommendation shall be made by the new board. At least one member of the new board making such a decision or recommendation shall be a nominee of the Gwich’in Tribal Council; and decisions of the regional panel shall be decisions of the new board and subject to review by the Minister in the same manner as decisions of the Board. The Gwich’in Tribal Council shall be consulted with respect to any such legislation.
Establishment and Structures
12.8.3
The Board shall consist of seven members appointed as follows:
six members and six alternate members to be appointed jointly by the Governor in Council and Executive Council of the Government of the Northwest Territories (“Executive Council”), of whom three members and three alternate members shall be appointed from nominees put forward by each of the Gwich’in and government, provided that the Board shall include at least one resident of the Northwest Territories who is not a participant; and a chairperson, resident in the settlement area, to be nominated by the members of the Board appointed under (a) and appointed jointly by the Governor in Council and Executive Council.
12.8.4
Board members shall not be considered to have a conflict of interest by reason only of being public servants or employees of Gwich’in organizations. Each member shall, before entering upon his or her duties as such, take and subscribe before an officer authorized by law to administer oaths, an oath in the form set out in schedule III to this chapter.
12.8.5
In the event that the Board does not recommend a chairperson within 90 days after the other members of the Board are appointed, the Minister of Indian Affairs and Northern Development jointly with the Minister of Renewable Resources of the Government of the Northwest Territories shall, after consultation with the Board, recommend a chairperson to the Governor in Council and Executive Council.
12.8.6
Should any party fail to nominate members to the Board within 90 days of the date of settlement legislation, the Governor in Council and Executive Council may jointly appoint any persons to complete the Board.
12.8.7
Should a member resign or otherwise leave the Board, the body which nominated that member shall nominate a replacement within 90 days.
12.8.8
A vacancy in the membership of the Board does not impair the right of the remainder to act.
12.8.9
Each member shall be appointed to hold office for a specific term not to exceed five years. A member may be reappointed.
12.8.10
A member may be removed from office at any time for cause by the Governor in Council and Executive Council after consultation with or at the request of the body which nominated the member.
Administration and Procedure
12.8.11
The Board may make by-laws:
respecting the calling of meetings of the Board; and respecting the conduct of business at meetings of the Board, including in-camera meetings, and the establishment of special and standing committees of the Board, the delegation of duties to such committees and the fixing of quorums for meetings of such committees.
12.8.12
A majority of the members from time to time in office constitutes a quorum of the Board.
12.8.13
The Board shall have, subject to its approved budget, an Executive Director and such staff, professional and technical advisors and consultants as are necessary for the proper conduct of its affairs.
12.8.14
The Board shall be accountable to government for its expenditures.
12.8.15
It is intended that there be no duplication in the functions required for the public management of wildlife.
12.8.16
The Board shall prepare an annual budget, subject to review and approval by government. The approved expenses of the Board shall be a charge on government. Such budget shall be in accordance with the Government of Canada’s Treasury Board guidelines and may include:
remuneration and travel expenses for attendance of Board members at board and committee meetings; the expenses of public hearings and meetings; a budget for research, public education and other programs as may be approved by government from time to time; and the expenses of staff, advisors and consultants and of the operation and maintenance of the office.
12.8.17
The annual budget of the Board in its first year of operation shall be set out in the implementation plan.
12.8.18
The Board may make rules respecting the procedure for making applications, representations and complaints to it, including the conduct of hearings before it, and generally respecting the conduct of any business before it.
12.8.19
The Board shall have the powers of a commissioner under part I of the Inquiries Act, R.S. 1985, c. I-11. The Board may not, however, subpoena Ministers.
12.8.20
The Board may consult with government, communities, the public and with Renewable Resources Councils and may do so by means of informal meetings or public hearings.
12.8.21
A public hearing may be held by the Board where the Board is satisfied that such a hearing is desirable. A public hearing shall be held when the Board intends to consider establishing a total allowable harvest and a Gwich’in Needs Level in respect of a species or population of wildlife which has not been subject to a total allowable harvest level within the previous two years.
12.8.22
A public hearing may be held at such place or places within the settlement area as the Board may designate.
Powers of the Renewable Resources Board
12.8.23
In furtherance of its purpose as the main instrument of wildlife management in the settlement area, the Board shall have the power to:
establish policies and propose regulations in respect of:
the harvesting of wildlife by any person, including any class of persons; the commercial harvesting of wildlife; and commercial activities relating to wildlife including:
commercial establishments and facilities for commercial harvesting; propagation, cultivation and husbandry of fur bearers and other species; and commercial processing, marketing and sale of wildlife and wildlife products, which may include trade with persons not included in 12.4.16; guiding and outfitting services; and hunting, fishing and naturalist camps and lodges;
exercise the powers and duties given to it elsewhere in the agreement; approve plans for the management and protection of particular wildlife populations, including transplanted wildlife populations and endangered species, and particular wildlife habitats including conservation areas, territorial parks and national parks in the settlement area; approve the designation of conservation areas and endangered species; approve provisions of interim management guidelines, park management plans and policies that impact on wildlife and harvesting by the Gwich’in in a national park; approve regulations which may be proposed by government pursuant to 12.8.29, except for those in respect of which the Board has already made a final decision under 12.8.27; establish rules and procedures for the carrying out of any consultation required by these provisions; and review any matter in respect of wildlife management referred to it by government.
12.8.24
Unless the Minister directs otherwise, the Board shall forward all its decisions, except those made pursuant to 12.4.7, to the Minister, accompanied by draft regulations, where the Board proposes regulations. Unless the Minister directs otherwise, all decisions of the Board, except those made pursuant to 12.4.7, shall be confidential until the process in 12.8.25 has been completed, or the time provided for the process has expired.
12.8.25
The Minister may, within 60 days of the receipt of a decision under 12.8.24, accept, vary or set aside and replace the decision. The Minister must consider the same factors as were considered by the Board and in addition may consider information not before the Board, and matters of public interest not considered by the Board. Any proposed variation or replacement shall be sent back to the Board by the Minister with written reasons.
12.8.26
The Minister may extend the time provided in 12.8.25 by 30 days.
12.8.27
The Board shall, within 30 days of the receipt of a variation or replacement from the Minister pursuant to 12.8.25, make a final decision and forward it to the Minister with written reasons. The Minister may extend the time provided under (a).
12.8.28
The Minister may, within 30 days of receipt of a final decision of the Board accept or vary it, or set it aside and replace it, with written reasons. The Minister may consider information not before the Board and matters of public interest not considered by the Board.
12.8.29
Government shall, as soon as practicable, implement:
all decisions of the Board which are accepted by the Minister under 12.8.25; all decisions of the Minister under 12.8.28; and subject to (a) and (b), all decisions of the Board after the expiry of the time provided in 12.8.25 and 12.8.28.
12.8.30
Government may make changes of a technical nature only, not going to substance, to any decision or fmal decision of the Board, without varying or setting aside and replacing the decision or final decision, provided the Board is advised of any such change.
Licensing and Enforcement
12.8.31
The Board shall not issue licences, or hear and decide applications for individual commercial undertakings, or enforce legislation, unless otherwise agreed by government and the Gwich’in.
Advisory Powers
12.8.32
Government may consult the Board on any matter which will likely impact on wildlife or wildlife habitat in the settlement area and shall seek the timely advice of the Board on the following matters:
draft legislation respecting wildlife or wildlife habitat; land use policies or draft legislation which will likely impact on wildlife or wildlife habitat; proposed inter-provincial or international agreements which will likely impact on wildlife, wildlife harvesting or wildlife habitat; the establishment of new national parks and territorial parks; plans for public education on wildlife, wildlife harvesting and wildlife habitat; policies respecting wildlife research and the evaluation of wildlife research in the settlement area; plans for cooperative management and research relating to species and populations not wholly within the settlement area, such as the Porcupine caribou herd; and plans for training Gwich’in in management of wildlife and related economic opportunities.
12.8.33
The Board shall provide any advice to government under 12.8.32 within such reasonable time as government requires, failing which, government may proceed without any such advice.
12.8.34
The Minister may request the Board to exercise a power described in 12.8.23 and the Board shall comply with the request within such reasonable time as the Minister requires.
12.8.35
If urgent circumstances require an immediate decision respecting matters referred to in 12.8.23 or 12.8.32, the Minister or his designated agent may make an interim decision and take such action as required to implement the interim decision without receiving a decision or advice from the Board. The Minister shall advise the Board forthwith of the interim decision made or action taken and the reasons therefor and direct the Board to review the decision made or action taken and render its decision or advice in accordance with this agreement.
12.8.36
The Board may:
advise the Minister or government of any matter relating to wildlife or wildlife habitat at any time whether or not the Minister or government has requested such advice; and request the parties to this agreement to review any of its provisions.
Research and Harvesting Studies
12.8.37
It is intended that the Board and government departments and agencies work in close collaboration, and exchange full information on their policies, programs and research.
12.8.38
The Board may participate in harvesting studies, in data collection and in the evaluation of wildlife research. It is intended that the Board have an independent research capability, to the extent agreed by government and which does not duplicate research which is otherwise available to it.
12.8.39
The Board shall establish and maintain a public file for reports, research papers and data received by the Board. Any material furnished on a confidential basis shall not be made publie without the consent of the originator.
12.8.40
Wildlife research or harvesting studies conducted in the settlement area by government, or by the Board, or with government assistance shall directly involve Renewable Resources Councils and Gwich’in harvesters to the greatest extent possible.
12.8.41
Notwithstanding 12.5.2 and until the Board exercises its powers or carries out its duties under 12.8.23, legislation and government policies in effect from time to time shall continue to apply.
12.9 RENEWABLE RESOURCES COUNCILS
12.9.1
There shall be a Renewable Resources Council in each Gwich’in community to encourage and promote local involvement in conservation, harvesting studies, research and wildlife management in the local community.
12.9.2
A Renewable Resources Council shall be composed of not more than seven persons who are residents of the local community.
12.9.3
A Renewable Resources Council shall be established by the designated Gwich’in organization in the community.
12.9.4
A Renewable Resources Council shall have the following powers:
to allocate any Gwich’in Needs Level for that community among local participants; to manage, in a manner consistent with legislation and the policies of the Board, the local exercise of Gwich’in harvesting rights including the methods, seasons and location of harvest; to establish group trapping areas, as defined in legislation, subject to the approval of the Board; to exercise powers given to Renewable Resources Councils under this agreement; and to advise the Board with respect to harvesting by the Gwich’in and other matters of local concern within the jurisdiction of the Board.
12.9.5
The Board shall consult regularly with Renewable Resources Councils with respect to matters within the Board’s jurisdiction. Government and the Board may jointly delegate authority to Renewable Resources Councils, upon terms and conditions established by government and the Board.
12.9.6
Renewable Resources Councils shall participate in the collection and provision, to government and the Board, of local harvesting data and other locally available data respecting wildlife and wildlife habitat.
12.10 OTHER PROVISIONS
12.10.1
Government shall consult with the Gwich’in Tribal Council with respect to the formulation of government positions in relation to international agreements which may affect wildlife or wildlife habitat in the settlement area, including negotiations with respect to methods of harvesting and amendments to the Migratory Birds Convention( 1916), prior to adopting positions.
12.10.2
Persons who reside in the Mackenzie Valley or the Western Arctic Region and who held General Hunting Licences as at the date of settlement legislation may continue to harvest in the settlement area in accordance with legislation pertaining to such licences. Any participant who held a General Hunting Licence as at the date of settlement legislation may continue to hold such licence and shall be permitted to harvest outside the settlement area in accordance with legislation pertaining to such licences.
Schedules to Chapter 12
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