Common use of Harvesting Clause in Contracts

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. (a) Subject to the provisions of this agreement, the Gwich’in have the exclusive right to harvest wildlife on Gwich’in lands. (b) 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. (a) 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 (b) 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. (c) 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. (d) 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. (a) The Gwich’in have the exclusive right to harvest fur bearers throughout the settlement area. (b) Notwithstanding (a), persons who are not participants may ▇▇▇▇, 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: (a) for granting access to Gwich’in lands to a person who is not a participant for harvesting; or (b) for services and facilities provided to a person who is not a participant in connection with harvesting wildlife. (a) 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. (b) 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: (i) that there be no significant damage to the lands, and the user shall be responsible for any such damage; (ii) there be no mischief committed on the lands; (iii) there be no significant interference with the occupier’s use of, and peaceable enjoyment of, the lands; and (iv) 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. (a) 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. (b) In (a), “camp” means a facility established for the personal use of the Gwich’in for the purpose of wildlife harvesting. (c) 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: (a) 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; (b) 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; (c) 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; (d) 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 (e) lands the right of access to which is restricted in accordance with 12.4.13. (a) 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. (b) 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. (c) 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: (i) whether the proposed use conflicts with harvesting, and if so, (ii) 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. (d) 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. (e) 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. (f) 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.

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. (a) Subject to the provisions of this agreement, the Gwich’in have the exclusive right to harvest wildlife on Gwich’in lands. (b) 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. (a) 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 (b) 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. (c) 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. (d) 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. (a) The Gwich’in have the exclusive right to harvest fur bearers throughout the settlement area. (b) Notwithstanding (a), persons who are not participants may ▇▇▇▇, 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: (a) for granting access to Gwich’in lands to a person who is not a participant for harvesting; or (b) for services and facilities provided to a person who is not a participant in connection with harvesting wildlife. (a) 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. (b) 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: (i) that there be no significant damage to the lands, and the user shall be responsible for any such damage; (ii) there be no mischief committed on the lands; (iii) there be no significant interference with the occupier’s use of, and peaceable enjoyment of, the lands; and (iv) 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. (a) 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. (b) In (a), “camp” means a facility established for the personal use of the Gwich’in for the purpose of wildlife harvesting. (c) 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: (a) 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; (b) 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; (c) 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; (d) 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 (e) lands the right of access to which is restricted in accordance with 12.4.13. (a) 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. (b) 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. (c) 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: (i) whether the proposed use conflicts with harvesting, and if so, (ii) 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. (d) 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. (e) 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. (f) 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.