Reconciliation Framework Agreement for Fisheries Resources

I Between

We Wai Kai Nation, Wei Wai Kum First Nation, K'ómoks First Nation, Tlowitsis Nation and Kwiakah First Nation

(the “Signatory First Nations”)

and

Her Majesty the Queen in right of Canada as represented by the Minister of Crown-Indigenous Relations and the Minister of Fisheries, Oceans and the Canadian Coast Guard (“Canada”)

(Each “ Party” and collectively, the “Parties”)

II Whereas

Canada is committed to a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership and to implementing the United Nations Declaration on the Rights of Indigenous Peoples in accordance with the Canadian Constitution;
On December 1, 2018, Canada, the Province of British Columbia and the First Nations Summit signed the Principals’ Accord On Transforming Treaty Negotiations in British Columbia;
On September 4, 2019, Canada, the Province of British Columbia and the First Nations Summit endorsed the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia;
The Signatory First Nations are in the advanced stages of negotiations under the British Columbia treaty process;
The Signatory First Nations are members of the A-Tlegay Fisheries Society, an organization founded in 1999 with a mandate to enhance and protect marine resources for the benefit and livelihood of the citizens of the Signatory First Nations; and
The Parties wish to reconcile their interests in fisheries and fisheries management.

III Definitions

Ecosystem Based Management – Ecosystem Based Management is an adaptive approach to managing human activities that seeks to ensure the coexistence of healthy, fully functioning ecosystems and human communities. The intent is to maintain those spatial and temporal characteristics of ecosystems such that component species and ecological processes can be sustained and human well-being supported and improved.
Fisheries resources – For the purposes of this Framework Agreement, includes Fish, Fishery and Fish Habitat as they are defined in the Fisheries Act.
Integrated Fisheries Management Plan– An Integrated Fisheries Management Plan is a Department of Fisheries, Oceans and the Canadian Coast Guard (DFO) plan that is developed to describe and manage the fisheries of a particular species in a given Fisheries and Oceans Canada region.
Precautionary approach – A precautionary approach in fisheries management means being cautious when scientific information is uncertain, unreliable or inadequate and not using the absence of inadequate information as a reason to postpone or fail to take action to avoid serious harm to the resource.

IV Purpose

By entering into this Framework Agreement, the Parties intend to establish a process to advance reconciliation in respect of Fisheries Resources with the following goals:

Reducing socio-economic gaps by creating fuller employment and enhancing economic opportunities through:
- expanding the Signatory First Nations’ access to and participation in the commercial fishing industry; and
- developing community fisheries;
Creating a mechanism for the collaborative governance, including stewardship and management of Fisheries Resources by Fisheries and Oceans Canada and the Signatory First Nations, including the joint development of Integrated Fisheries Management Plans;
Re-building Signatory First Nations’ capacity relating to Fisheries Resources; and
Furthering predictability and stability with respect to the governance and management of Fisheries Resources.

V Principles

The Parties commit to work together based on recognition of rights, respect, co-operation and partnership and will be guided in the negotiations by the following principles and objectives:

Restore access to a beneficial and culturally significant resource as an integral component of reconciliation;
Respect conservation and sustainable development of Fisheries Resources using Ecosystem Based Management and Precautionary Approaches;
Respect for Signatory First Nations’ traditional and contemporary knowledge related to governance of the Fisheries Resources;
Build on the strength of relationships between the Signatory First Nations and the A-Tlegay Fisheries Society (A-Tlegay) and the relationships between the Signatory First Nations and Fisheries and Oceans Canada;
Support good management and conservation practices and economically sound business planning and expanded economic opportunities that support sustainable Signatory First Nation communities;
Collaborative development of mandates including identifying where limiting assumptions, policies, mandates and authorities inhibit positive outcomes and, where appropriate, seek changes to those assumptions, policies, mandates and authorities; and
Endeavour to be collaborative, flexible, transparent, creative and expeditious

VI Agenda – Subject areas

The Parties agree that the subject areas in section VI will be explored in order to co-develop non-binding term sheets that will inform the basis for the Parties to seek mandates and / or policies from their principals to negotiate Treaties, agreements or other constructive arrangements to reconcile their interests in fisheries and fisheries management.

Signatory First Nation access/Participation in the commercial fishing industry
- Identification of total value of commercial fishing opportunities (licences, quotas and landing) available in or relying upon the proposed fishing area, including aquaculture and wild geoduck fisheries
- Identification of aspirations and objectives with regard to an expanded participation in the fishery and in fishery management
- Identification of preferred economic outcomes
- Other economic development opportunities (e.g. new or emerging fisheries, testing or monitoring to open up fisheries, processing, marketing, sanitation-depuration certification)
Community Fishery
- The definition of a “Community Fishery” including any sub-components such as target species and other fishery characteristics (e.g. fishing areas, participants, timing of Community Fisheries, management elements of Community Fisheries, etc.)
- Terminal fishery opportunities in relation to Community Fisheries
- Gap analysis with respect to existing fisheries management practices (e.g. stock assessment, community fishery planning, catch monitoring, catch reporting, etc.) and what would be needed to support Community Fisheries
- Potential Community Fisheries for the Signatory First Nations
- Any reforms required to implement any Community Fishery (e.g. Licence reforms, policy reforms, etc.)
Capacity building
- Identification of existing fishing capacity
- Gap analysis between existing fishing capacity and that needed for Signatory First Nations to play an expanded role in fisheries and fisheries management
Fisheries governance
- Internal governance structure for Signatory First Nations
- Signatory First Nations-Fisheries and Oceans Canada collaborative governance/management for fisheries (including aquaculture and recreational fisheries), including an examination of the strengths and weaknesses of current arrangements
- Linkages with other governance structures (e.g. First Nation-First Nation, First Nation-Fisheries and Oceans Canada, First Nation-Fisheries and Oceans Canada-Stakeholders, Government of British Columbia)
Fisheries management
- Clarifying roles and responsibilities for fisheries management within the proposed fishing area and outside the proposed fishing area
Relationship between the common fisheries negotiation table and individual treaty negotiation tables
- Topics that will be addressed at a common fisheries negotiation table
- Topics that will be addressed bilaterally at individual Treaty tables
Review and approval process regarding negotiated agreements or arrangements arising from this Framework Agreement
Implementation, including funding of any negotiated agreement or arrangement
Studies related to the subject area matters described above
Other subject areas as agreed by the Parties

VII Structure and process

Approach

The following approach will guide the Parties in fulfilling the purpose of this Framework:

Phase 1: Set priorities, work plans and timelines to explore the subject areas set out in section VI of this Framework Agreement. The Parties will carry out and revise work plans to complete all related work items to the satisfaction of the Parties.
Phase 2: Once Phase 1 has been completed to the satisfaction of the Parties, the products of that work will be used by the Parties to seek mandates from their respective principals to negotiate one or more of the subject areas set out in this Framework Agreement.
Phase 3: Where authorities or mandates are obtained, the Parties will negotiate, as appropriate, Treaties, agreements or other constructive arrangements on any or all of the subject areas set out in this Framework Agreement.

Leadership Committee to meet as needed to provide overall direction and to resolve disputes

Fisheries and Oceans Canada: Senior Assistant Deputy Minister or Regional Director, Reconciliation and Partnerships
Crown-Indigenous Relations and Northern Affairs Canada: Senior Assistant Deputy Minister, Treaties and Aboriginal Government or Director General, Treaties and Aboriginal Government – Negotiations West
Signatory First Nations’ Chiefs and appointed representatives

Senior Working Group to meet monthly or as otherwise agreed

Signatory First Nations: Lead Negotiator from each of the Signatory First Nations
Fisheries and Oceans Canada: Lead Negotiator
Crown-Indigenous Relations and Northern Affairs Canada: Lead Negotiator

Technical Committee, to meet as required

Technical support staff of the Parties

VIII Application to other negotiations

The Parties to this Framework Agreement are in active negotiations under the British Columbia Treaty Process and are committed to those negotiations and intend that this Framework Agreement will not derogate from, but contribute to, those negotiations.

IX Funding

The Signatory First Nations will endeavour to utilize British Columbia Treaty Commission funding to support the human resources required for their participation in respect of this Framework Agreement.
Subject to yearly appropriation of funds by Parliament and Canada’s funding policies and objectives, Canada will endeavour to provide funding to support specific initiatives that will be required to advance negotiations under this Framework Agreement.

X General

This Framework Agreement is not legally binding and is not intended to define, create, recognize, deny or amend any of the rights of the Parties including Aboriginal title or rights, or treaty rights, within the meaning of sections 25 and 35 of the Constitution Act, 1982. For greater certainty, this Framework Agreement is not intended to be a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982 or to alter or affect the legal status of lands and resources or the existing authorities of the Parties with respect to lands, resources and governance.
Nothing in this Framework Agreement shall fetter or limit or be deemed to fetter or limit in any manner the rights, jurisdiction, authority, obligation or responsibilities of any Party or its representative(s).
This Framework Agreement does not replace bilateral arrangements and processes or any other agreement.
This Framework Agreement does not affect the Aboriginal or treaty rights of any other Aboriginal group.
The Parties recognize the need to involve stakeholders in management activities related to Fisheries Resources that affect them.
Canada will fulfil its consultation obligations to Indigenous groups, including self-governing First Nations, whose rights may be adversely affected.
This Framework Agreement, and any discussions and negotiations conducted pursuant to this Agreement, and all related documents shall not be construed as an admission of fact or liability and are without prejudice to any legal positions which have been or may be taken by any Party in any court proceeding or any other forum, or the negotiation of a treaty among some or all of the Parties.
The discussions and negotiations conducted pursuant to this Framework Agreement and all related documents are confidential unless the Parties specifically agree otherwise.
If a dispute arises between the Parties relating to the interpretation or intent of this Framework Agreement, the Parties or their duly appointed representatives will meet as soon as practicable and will attempt to resolve the dispute. Prior to the meeting, the Parties will exchange in writing a full description of the dispute, together with their respective concerns and proposed specific actions that could be taken to address the dispute.
Prior to any written notice of intent to terminate this Framework Agreement, the Parties will make reasonable efforts to engage in dispute resolution mechanisms as contemplated in section (i).
Canada or the Signatory First Nations may terminate this Framework Agreement by giving 45 days advance written notice to the other Party of their intent to terminate the agreement and reasons for the termination.
A Chief and Council of any of the Signatory First Nations may, at any time, by notice in writing to Canada, and the other Signatory First Nations terminate its participation in this Framework Agreement. The remaining Signatory First Nations and Canada will discuss the implications of that termination, and the continued implementation of this Framework Agreement.
Where any information or communication is required to be given under this Framework Agreement in accordance with section X - GENERAL, it will be in writing and delivered personally, or by courier, registered mail or electronic mail and unless notice to the contrary is given, will be addressed to the Parties at:
To: K’ómoks First Nation

K’ómoks First Nation
3330 Comox Road
Courtney, BC
V9N 3P8

Attention: Hegus, K’ómoks First Nation

To: We Wai Kai Nation

We Wai Kai Nation
c/o Laich-Kwil-Tach Treaty Society
664 Seahawk Drive
Campbell River, BC
V9H 1P9

Attention: Chief, We Wai Kai Nation

To: Wei Wai Kum First Nation

Wei Wai Kum First Nation
c/o Wei Wai Kum Kwiakah Treaty Society
1650 Old Spit Road
Campbell River, BC
V9W3E8

Attention: Chief, Wei Wai Kum First Nation

To: Kwiakah First Nation

Kwiakah First Nation
c/o Wei Wai Kum Kwiakah Treaty Society
1650 Old Spit Road
Campbell River, BC
V9W3E8

Attention: Chief, Kwiakah First Nation

To: Tlowitsis Nation

Tlowitsis Nation
1345 Bute Crescent
Campbell River, BC
V9H 1G6

Attention: Chief, Tlowitsis Nation

To DFO:

Fisheries and Oceans Canada
200-401 Burrard Street
Room: Suite 200
Vancouver, B.C. V6C3S4
Attention: Regional Director, Reconciliation and Partnerships

To CIRNAC:

Crown-Indigenous Relations and Northern Affairs Canada
British Columbia Region 1138 Melville Street, Suite 600 Vancouver, BC V6E 4S3

Attention: Director General, Negotiations West
Other First Nations and the Government of British Columbia may become a Party to this Framework Agreement:
1. upon written agreement of the Parties to this Framework Agreement; and,
2. by signing this Framework Agreement.
Where a Signatory First Nation who is a Party to this Framework Agreement concludes a treaty with Canada and British Columbia, the provisions of any pilot project, interim measure, or other initiative arising from this Framework Agreement may be incorporated into the treaty in a fashion agreed amongst the First Nation, Canada and British Columbia.
The provisions of this Framework Agreement may be amended by written agreement of the Parties.
Other issues may be discussed under this Framework Agreement by agreement of the Parties.

The Parties have signed this Framework Agreement as of: ______________, 20__.

On behalf of the Signatory First Nations:

Chief Brian Assu, We Wai Kai Nation
Print Name:____________________________

Chief Steven Dick, Kwiakah First Nation
Print Name: _____________________________________

Chief Danial Smith, Tlowitsis Nation
Print Name: _____________________________________

Hegus Nicole Rempel, K’ómoks First Nation
Print Name:_____________________________________

On behalf of Her Majesty the Queen in right of Canada:

___________________________________________
The Honourable Bernadette Jordan
Minister of Fisheries, Oceans and the Canadian Coast Guard