Natural Resources and the Environment
Resource rights and jurisdiction
A treaty will set out the First Nation's rights to harvest natural resources. Allocations for forestry, fish, wildlife and migratory birds may be set out in the treaty or in side-agreements.
The treaty will also spell out the First Nation's power to make laws regarding natural resources on treaty settlement land. Federal and provincial laws will continue to apply, along with the First Nation's laws, and the treaty will prescribe which law will prevail in the event of a conflict.
Under the treaty, the First Nation will own and manage forests on treaty settlement land. The treaty may include forest tenures in the First Nation's claimed traditional territory and fee simple ownership of forested land parcels. Forest management standards on treaty settlement lands must “meet or beat” standards under provincial legislation for privately-held forest lands. On Crown lands, forests must be managed to provincial standards for Crown land.
At many treaty negotiation tables in BC, fish are a central topic of negotiation because of their importance to First Nations' culture, identity and traditional economy, as well as to the economy of the region.
Most treaties will provide for allocations of fish for food, social and ceremonial purposes – which are intended for First Nations' consumption – and for access to commercial fisheries. Canada is committed to mitigating any reduction in available harvest opportunities that result from treaty settlements. Mitigation will be effected through mechanisms such as the voluntary retirement of existing commercial licences.
Food, social and ceremonial allocations are negotiated for a variety of species. In negotiating allocations for each species, a number of factors are taken into account, including estimates of recent harvest levels by First Nation fishers, the abundance of the species in the area, and others as the parties agree.
First Nations' access to food, social and ceremonial allocations will be subject to conservation requirements. Their access to food, social and ceremonial fish will have priority over access by recreational and commercial fishers.
The First Nation will own subsurface resources on treaty settlement land, subject to certain exceptions set out in the treaty. Existing tenures on subsurface resources will be protected.
Wildlife and migratory birds
The relevant federal or provincial Minister will retain authority for managing and conserving wildlife and migratory birds, and their habitat.
First Nation members will be able to hunt wildlife and migratory birds within defined harvest areas (usually similar to their asserted territory), provided they have documentation issued by the First Nation. Non-First Nation members will continue to have access to these lands for hunting, subject to provincial authorities. The Minister of Environment can limit access to hunt a particular species of wildlife or migratory bird if necessary for conservation, public health or public safety.
Federal and provincial laws will apply on treaty settlement lands, along with the First Nation's laws. For issues of broad national importance, including the Species At Risk Act, the Environmental Protection Act, the Migratory Birds Convention and laws concerning international issues, federal law will prevail.
Provincial and federal laws concerning environmental protection will continue to apply post-treaty. The First Nation will be able to make laws concerning environmental protection on its treaty settlement land, provided those laws “meet or beat” standards set by federal and provincial laws. Federal and provincial laws will prevail in the event of a conflict.
Treaties will provide for First Nations' participation in environmental assessment processes regarding their lands. The First Nation may enter into agreements with other governments on environmental protection and environmental emergencies.
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