17 HARVESTING COMPENSATION

17.1.1
In this chapter,

“compensation” means a cash payment, either lump sum or a periodic payment, or non-monetary compensation such as replacement or substitution of damaged or lost property or equipment or relocation or transportation of participants or equipment to a different harvesting locale or a combination of such elements;

“development activi ty” means a development activity in the settlement area, other than individual or commercial wildlife harvesting activities, naturalist activities and commercial guiding and outfitting activities in respect to hunting and sport fishing; and

“wildlife harvesting” means wildlife harvesting pursuant to this agreement and does not include wildlife harvesting permitted pursuant to legislation other than legislation giving effect to this agreement.

17.1.2

1. A developer is liable absolutely, without proof of fault or negligence, for the following losses and damage suffered by a participant as a result of development activity of that developer:

   1. loss or damage to property or equipment used in wildlife harvesting or to wildlife harvested;

   2. present and future loss of income from wildlife harvesting; and

   3. present and future loss of wildlife harvested for personal use or which is provided by the participant to other participants for their personal use; and

2. notwithstanding (a), a developer shall not be liable for losses suffered by a participant as a result of the establishment of a national park or a protected area, or any lawful activity within a park or protected area, except for direct loss or damage to property or equipment used in wildlife harvesting or to wildlife harvested.

17.1.3
Participants shall make their best efforts to mitigate any losses or damage referred to in 17.1.2.

17.1.4
If agreement has not been reached between a developer and a participant with respect to a claim for compensation within 30 days of the submission of a claim in writing by a participant, either party may refer the matter to arbitration pursuant to chapter 6.

17.1.5
An arbitrator, if a claim is proven, may:

1. award compensation to a participant with provision for review of the award, if appropriate;

2. recommend that a developer or a participant take or refrain from taking certain action in order to mitigate further loss or damage; and

3. on review of a previous award, determine whether the developer or the participant has adopted any mitigative recommendations made under that previous award.

17.1.6
Nothing in this chapter is intended to prejudice the legal rights of participants to sue for damages from any person. However, if a participant elects to refer the dispute to arbitration, the provisions of chapter 6 shall apply.

17.1.7
Nothing in this chapter is intended to prejudice the negotiation of agreements between the Gwich’in and developers with respect to compensation for losses in relation to wildlife harvesting, including the process for settling and resolving claims under this chapter.

17.1.8
Legislation may provide for limits of liability of developers, the burden of proof on claimants, limitation periods for making claims and any other matters not inconsistent with this agreement.

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