Lake Sturgeon (South Hudson Bay-James Bay populations): conservation agreement

Official title: Agreement for the Conservation of the Lake Sturgeon, Southern Hudson Bay-James Bay populations

This Agreement for the preparation of a Cree-led Management Plan for the conservation of Lake Sturgeon/Nameu/Nimaau in the James Bay Northern Quebec Agreement Territory pursuant to section 11 of the Species at Risk Actis made in duplicate as of April 1, 2022

between

Her Majesty the Queen in right of Canada,
as represented by the Minister of Fisheries and Oceans (“Department of Fisheries and Oceans” or “DFO”)

and

Cree Nation of Eeyou Istchee
as represented by the Grand Chief (“Cree Nation” or “Cree Nation Government” or “CNG”)

(individually a “Party”, collectively, the “Parties”)

Preamble

Whereas the Lake Sturgeon (Acipenser fulvescens), Southern Hudson Bay – James Bay populations (populations hereinafter referred to as DU3), is a species that has been listed as special concern under Schedule 1 of the federal Species at Risk Act (S.C. 2002, c. 29) (hereinafter referred to as “SARA”);

Whereas Canada has legislative responsibilities for wildlife species listed under Schedule 1 of SARA, including with regards to the preparation of management plans as described under sections 65-72 of SARA;

Whereas the Minister of Fisheries and Oceans is the competent minister under SARA for aquatic species, except with respect to individuals in or on federal lands administered by the Parks Canada Agency;

Whereas the Minister of Fisheries and Oceans is required as per section 65 of SARA to prepare a management plan for Lake Sturgeon DU3 and its habitat that must include measures for the conservation of the species that the Minister considers appropriate;

Whereas a portion of the range of Lake Sturgeon DU3 is found within the James Bay and Northern Quebec Agreement (hereinafter referred to as “JBNQA”) territory (hereinafter referred to as “JBNQA Territory”);

Whereas if a listed wildlife species is found in an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species, the management plan must be prepared, to the extent it will apply to that area, in accordance with the provisions of that agreement, as per subsection 66(2) of SARA;

Whereas the Cree Nation Government (CNG) exercises governmental and administrative functions on behalf of the Cree Nation, including protection of Treaty rights;

Whereas the JBNQA Territory embraces a wide range of rich and diverse environments, habitats and wildlife including Lake Sturgeon’s populations;

Whereas the Lake Sturgeon, referred as Nameu (ᓇᒣᐤ) and/or Nimaau (ᓂᒫᐤ) in Eastern James Bay Cree dialect, is a culturally significant species highly valued by the people of the Cree Nation;

Whereas the Cree Nation has inherent and legislative responsibilities for the protection of the land and conservation of wildlife through its own distinctive traditional practices, systems, values, customs and laws, as well as through its various Agreements and Treaties;

Whereas section 24 of the JBNQA establishes a wildlife co-management regime where the Government of Canada and the Cree Nation have shared responsibilities including the respect of principle of “Conservation” defined under section 24.1.5 as “the pursuit of the optimum natural productivity of all living resources and the protection of the ecological systems of the Territory so as to protect endangered species[…]”;

Whereas the Lake Sturgeon is a species reserved for the exclusive use by the beneficiaries of the JBNQA, including the Crees, as provided by section 24.7 of the JBNQA;

Whereas the Cree Nation is a self-governing nation and continues to assert, affirm and define its inherent right to self-determination, including the right to fully participate in the governance of the JBNQA Territory and more specifically, in the conservation of wildlife and its habitats;

Whereas the Parties recognize that the role and leadership of the Cree Nation is essential for the protection of Lake Sturgeon–DU3 in the JBNQA Territory;

Whereas the Parties wish to establish a framework for a Nation-to-Nation collaboration for the conservation of the Lake Sturgeon DU3, including the preparation of a management plan for the species and its habitat;

Whereas the Parties agreed that such collaborative framework be initiated through a Conservation Agreement as described under section 11 of SARA;

Whereas the CNG wishes that this Conservation Agreement foster greater governance, responsibility and leadership on the part of the Cree Nation for the conservation of wildlife in the JBNQA Territory, including species at risk such as the Lake Sturgeon;

Whereas the Parties recognize that the conservation of Lake Sturgeon will require the engagement and cooperation with others, such as those listed in section 66 of SARA. These may include other Indigenous nations, governments, co-management organizations, industries, municipalities, non-governmental organizations, and other stakeholders;

Now therefore, the parties agree as follows: 

1 Definitions

“Agreement”

means this Agreement, known as the Agreement for the preparation of a Cree-led Management Plan for the conservation of Lake Sturgeon/Nameu/Nimaau in the James Bay Northern Quebec Agreement Territory pursuant to section 11 of SARA, and includes all appendices and any amendments;

“Conservation Agreement Committee”

means the committee established pursuant to subsection 6.4 of this Agreement;

“Cree”

has the meaning set forth in subsection 1.9 of the JBNQA;

“Cree First Nations”

means all Cree First Nations recognized by CNG for the purpose of this Agreement: Cree Nation of Chisasibi, Cree Nation of Wemindji, Cree Nation of Eastmain, Cree Nation of Waskaganish, Cree Nation of Nemaska, Cree Nation of Mistissini, Ouje-Bougoumou Cree Nation, Cree Nation of Waswanipi, Cree Nation of Washaw Sibi;

“Cree-led Management Plan”

means the management plan for Lake Sturgeon/Nameu/Nimaau DU3 applying within the JBNQA Territory, to be prepared by the CNG as set out in this agreement, in accordance with section 65 of SARA and with Cree Rights that must include conservation measures for the Lake Sturgeon/Nameu/Nimaau DU3;

“Cree Rights”

means the Cree Aboriginal Rights as well as Treaty Rights and their subsequent agreements recognized and affirmed by section 35 of The Constitution Act, 1982;

“Cree Traditional Knowledge”

means the knowledge, innovations and practices of the Crees as developed from experience gained over centuries and adapted to the local culture and environment, particularly in, but not limited to, land use, hunting, fishing, trapping and environmental management in general;

“Federal Management Plan”

means the management plan for the full extent of Lake Sturgeon DU3 prepared by DFO as per section 65 of SARA and that will adopt or incorporate the complete or partial content of the Cree-led Management Plan;

“JBNQA”

means the James Bay and Northern Quebec Agreement approved, given effect and declared valid by the James Bay and Northern Québec Native Claims Settlement Act, S.C. 1976-77, c. 32 and by the Act approving the Agreement concerning James Bay and Northern Québec, L.Q., 1976, c. 46, and as amended by certain complementary agreements;

“Lake Sturgeon DU3”

means the Southern Hudson Bay – James Bay populations of Lake Sturgeon, which correspond to designable unit 3 (DU3), as defined by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) in the 2017 assessment and status report.  

“Operational Working Group”

means the working group established pursuant to subsection 6.5 of this Agreement.

2 Purpose and goals

2.1 This Agreement pursuant to section 11 of SARA is to benefit the Lake Sturgeon DU3, a species at risk on Schedule 1 of SARA, and to enhance its survival in the wild.

2.2 The purpose of this Agreement is to provide for a framework for a Nation-to-Nation collaboration between the Parties to prepare the Cree-led Management Plan. The Cree-led Management Plan will, among other things, identify conservation targets and establish concrete actions to be taken in order to address the identified threats to the species and its habitat and ensure long-term survival of the said populations of Lake Sturgeon/Nameu/Nimaau DU3.

2.3 The main goals of this Agreement are:

• 2.3.1 To set out the process to be followed to prepare the Cree-led Management Plan;
• 2.3.2 To set out the timelines for the said process;
• 2.3.3 To set out the roles and responsibilities of the Parties in the said process;
• 2.3.4 To set out the collaboration approaches with third parties during the process; these third parties are those considered as active and potential collaborators on the JBNQA Territory in relation to Lake Sturgeon DU3 conservation;
• 2.3.5 To set out the process to be followed to approve the Cree-led Management Plan.

3 Principles

3.1 Recognition: The Parties recognize the extensive knowledge and leadership of the Cree Nation of Eeyou Istchee in the management of Lake Sturgeon/Nameu/Nimaau in the JBNQA Territory.

3.2 Reserved status of Lake Sturgeon: The Lake Sturgeon/Nameu/Nimaau being a reserved species (as set out in Schedule 2 of section 24) for the exclusive use of the Crees, as beneficiaries of the JBNQA and pursuant to section 24.7.1 of the JBNQA, it imparts a fundamental responsibility to the Crees to ensure the conservation of the Lake Sturgeon/Nameu/Nimaau and pursue its optimum natural productivity and protection for future generations and continuance of the traditional pursuits.

3.3 Collaboration: The Parties will work together to develop conservation measures and prepare the Cree-led Management Plan, in such a way as to be consistent with Cree Rights, values and concerns, and harmonized with DFO process and obligations for preparing a management plan as required under section 65 of SARA.

3.4 Reconciliation: The Parties agree that the implementation of this Agreement shall be guided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the UNDRIP Act, informed by the Truth and Reconciliation Commission’s Calls to Action, and more specifically, by the spirit and principles of the JBQNA.

3.5 Use of best available information: The Parties shall obtain, exchange, and use the best available information, including information derived from Cree expertise, Cree Traditional knowledge and Western scientific information to prepare the Cree-led Management Plan.

3.6 Conservation: The Parties agree that conservation measures set out in the Cree-led Management Plan will be consistent with the purposes of SARA and with the principles of conservation as defined under the JBNQA.

3.7 Adaptive management: The conservation measures set out in the Cree-led Management Plan should allow for continuous evaluation and adjustment wherever warranted, including by adaptive management or when new or better information is made available, including information derived from Cree expertise, Cree Traditional knowledge and Western scientific information.

3.8 Transparency: The Parties will share information related to the preparation of the Cree-led Management Plan with each other. The Parties agree that Cree Traditional Knowledge is culturally sensitive, and may be considered confidential to the Crees, and shall not be publicly disclosed without prior consent of the Crees, subject to section 7 of this Agreement.

3.9 Engagement: In preparing the Cree-led Management Plan, the Parties shall seek opportunities to cooperate with the government of Quebec, the Cree Communities, the Cree Trappers’ Association, tallymen, land users and the Hunting, Fishing and Trapping Coordinating Committee in relation to Lake Sturgeon/Nameu/Nimaau conservation. The Parties shall also seek opportunities to consult with neighbouring First Nations and stakeholders deemed directly affected by or interested in the Cree-led Management Plan such as Hydro-Québec, active mining companies, forestry companies, academics, etc.

3.10 Intergenerational: The Parties acknowledge and value the need to ensure knowledge, values and capacity are transferred and supported over time and across generations. Furthermore, it is understood that special effort is required to engage the knowledge of Cree elders and tallymen for traplines on which Lake Sturgeon/Nameu/Nimaau is present.

3.11 Capacity Building: The Parties acknowledge that capacity building within the Cree Nation shall be a key element in the process related to the preparation of the Cree-led Management Plan and will seek opportunities in that matter.

3.12 Jurisdiction: The Parties acknowledge that conservation measures considered under this Agreement may be within the jurisdiction, responsibilities and/or subject to the revision or approval of the Government of Québec.

3.13 Communication: Efforts should be made to communicate the outcomes of all processes related to the preparation of the Cree-led Management Plan to the general public, including presentations at assemblies and interviews on the local and regional radio.

4 Interpretation

4.1 The Preamble hereof and any appendices hereto form an integral part of this Agreement.

4.2 The Minister of Fisheries and Oceans enters into this Agreement under the authority of section 11 of SARA.

4.3 This Agreement does not create or alter any new legal powers, duties or functions on the part of the Parties nor does it alter or affect the powers, duties and functions of the Minister of Fisheries and Oceans under SARA or any other federal legislation.

4.4 The Parties do not relinquish or acquire any jurisdiction, right, power, privilege, prerogative, immunity, or Access by virtue of this Agreement.

4.5 More specifically, nothing in this Agreement shall be construed or interpreted as affecting, restricting, prejudicing, adding to or waiving in any way, shape or form, Cree aboriginal and Treaty rights and notably JBNQA Treaty Rights, regardless of whether such rights are recognized, established or defined before the execution of this Agreement or during the Term of this Agreement. By virtue of this Agreement, no Cree rights are waived or renounced upon.

4.6 This Agreement does not and is not intended to create legally binding obligations between DFO and the CNG. Nothing in this Agreement is to be construed as creating any legal, financial, or contractual relations between the Parties enforceable by a court of competent jurisdiction.

5 Overarching conservation objectives and strategies for defining the conservation measures of the cree-led management plan

5.1 The Parties acknowledge that:

• 5.1.1 A watershed-level management approach should be favored, that is adapted to the ecological reality of Lake Sturgeon/Nameu/Nimaau–DU3 in JBNQA Territory
• 5.1.2 Determining appropriate conservation measures is a multifaceted and complex undertaking that requires the Parties’ separate and collective analysis of biological, jurisdictional, social, ceremonial, and economic considerations.
• 5.1.3 Lake Sturgeon/Nameu/Nimaau–DU3 conservation requires both short and long-term conservation measures to mitigate threats and ensure that Lake Sturgeon/Nameu/Nimaau–DU3 do not become threatened or endangered while ensuring the exercise by the Crees of their harvesting rights in accordance with the principles of conservation as provided in section 24 of the JBNQA.
• 5.1.4 The long-term conservation objective of the Cree-led Management Plan and ultimately of this Agreement is to ensure Lake Sturgeon/Nameu/Nimaau–DU3 long-term persistence throughout their current range, including yet to be discovered locations, and to prevent the species from becoming threatened or endangered by:
  • 5.1.4.1 Protecting existing populations to prevent any further decline;
  • 5.1.4.2 Restoring degraded populations to healthy self-sustaining levels;
  • 5.1.4.3 Re-establishing populations in historically occupied habitats, where feasible and where functional habitat exists.
• 5.1.5 Five broad strategies shall be put in place to develop conservation measures that address threats to the species and its habitat: 
  1. Surveys and Monitoring
  2. Management and Coordination
  3. Research
  4. Habitat Protection, Restoration, and Enhancement; and
  5. Outreach and Communication
• These broad strategies may be modified, or other strategies may be included, based on the outcome of the cooperation and consultation activities with the stakeholders as per subsection 6.5.3.2 of this Agreement; any additional strategies should be at the same high level of categorization.

6 Governance and responsibilities

6.1 CNG commits to:

• 6.1.1 Collecting and assessing the data and information relevant for the preparation of the Cree-led Management Plan;
• 6.1.2 Establishing a cree regional working group and community local working groups to support the preparation of the Cree-led Management Plan, as further detailed in Appendix 6.1.2 appended hereto;
• 6.1.3 Ensuring collaboration with the co-management bodies established pursuant to the JBNQA and with other relevant monitoring committees established pursuant to other agreements for which the CNG is a member that are acting or will be acting on the JBNQA Territory to favour efficiency and avoid duplicating consultation efforts;
• 6.1.4 Drafting the Management Plan in collaboration with partners, collaborators, committees and working groups, as described in Appendix 6.1.2, and with the guidance of the Operational Working Group established pursuant to subsection 6.5.

6.2 DFO commits to:

• 6.2.1 Ensuring collaboration with relevant existing DFO committees including those identified in Appendix 6.1.2 to favour efficiency and avoid duplicating consultation efforts;
• 6.2.2 Adopting or incorporating the Cree-led Management Plan in the Federal Management Plan (as described in subsections 69(1) and 69(2) of SARA), in the manner agreed upon by the two Parties in view of reaching the objectives of the Federal Management Plan in compliance with SARA and in compliance with the critical path to be developed by the Operational Working Group as per subsection 6.5.3.1;
• 6.2.3 Involving the CNG in the DFO-led review and publication process of the Federal Management Plan, particularly in the incorporation of comments pertaining to the JBNQA Territory, including those received after the proposed version of the Federal Management Plan is posted on the Species at Risk Public Registry (as described in subsections 68(3) and 68(4) of SARA);
• 6.2.4 Involving the CNG in the DFO process provided for in section 72 of SARA to monitor and report on implementation of the Federal Management Plan in the JBNQA Territory, as described under subsection 6.4.2.7.

6.3 The Parties agree to establish the Conservation Agreement Committee for Lake Sturgeon (hereinafter the “Committee”) and the Operational Working Group for the preparation of the Cree-led Management Plan (hereinafter the “Operational Working Group”) to collaborate for the achievement of their commitments.

6.4 The Committee

• 6.4.1 The Committee shall be composed of representatives of the CNG and DFO. Both parties will co-chair the Committee.
• 6.4.2 Responsibilities and Duties of the Committee:
  • The Committee shall carry out, but without being limited to, the following responsibilities in accordance with the Principles of this Agreement set out in Section 3. The administrative procedures of the Committee are appended hereto as Appendix 6.4.2:
  • 6.4.2.1 Ensure the effective administration and implementation of this Agreement;
  • 6.4.2.2 Coordinate the efforts of the entities involved in creating, developing, implementing and evaluating the activities covered by this Agreement;
  • 6.4.2.3 Establish joint priorities, needs and activities relating to the application of this Agreement;
  • 6.4.2.4 Make recommendations to the respective authorities of each Party of measures that may be needed in order for this Agreement to be carried out in full and its objectives to be achieved;
  • 6.4.2.5 Establish the terms of reference of the Operational Working Group to be appended hereto in accordance with subsection 9.2, for the preparation of the Cree-led Management Plan and overview the Operational Working Group’s work;
  • 6.4.2.6 Discuss opportunities for monitoring the implementation of conservation measures;
  • 6.4.2.7 Discuss opportunities for the implementation of conservation measures;
  • 6.4.2.8 Ensure that the Committee’s objectives are achieved in accordance with the Cree cultural values and consistent with the principles of conservation, as per the spirit of the JBNQA.
  • 6.4.2.9 Ensure that the Committee’s objectives are achieved in accordance with the precautionary principle.

6.5 The Operational Working Group

• 6.5.1 The Operational Working Group shall be established by and will report to the Committee;
• 6.5.2 The Operational Working Group shall comprise representatives of the CNG, Cree Trappers’ Association (CTA), and DFO. CNG and DFO shall co-chair the Operational Working Group.
• 6.5.3 Responsibilities and Duties of the Operational Working Group:
  • The Operational Working Group shall carry out, but without being limited to, the following duties and responsibilities in accordance with the Principles and Overarching Conservation Objectives of this Agreement set out, respectively, in sections 3 and 5:
  • 6.5.3.1 Develop and implement the critical path and process, including timelines, to be followed for the preparation and approval of the Cree-led Management Plan;
  • 6.5.3.2 Engage with relevant working groups, users, right holders, collaborators and stakeholders (as described in Appendix 6.1.2 appended hereto) to inform the preparation of the Cree-led Management Plan in accordance with section 66 of SARA;
  • 6.5.3.3 Revise the draft and final versions of the Cree-led Management Plan in accordance with the process to be set out under subsection 6.5.3.1 of this agreement;
  • 6.5.3.4 Submit for approval to the Committee the final version of the Cree-led Management Plan;
  • 6.5.3.5 Provide recommendations to the Conservation Agreement Committee on the implementation of the Cree-led Management Plan;
  • The administrative procedures of the Operational Working Group will be appended hereto, in accordance with subsection 9.2, once defined as per subsection 6.4.2.5.

7 Information sharing

7.1 Each Party agrees, subject to any applicable data sharing agreements and legislative provisions that would prevent them from doing so, to provide the other Party access, at no charge, to available data and information relevant to the implementation of this Agreement.

7.2 Some data and information may require confidentiality, or may have been obtained with an understanding of confidentiality in order to protect species at risk from exploitation or harm. Data and information so identified by a Party, or a collaborator in programs and activities related to this Agreement, will be held confidential by DFO and the CNG to the extent permitted by their respective legislation and related policies, procedures, and agreements.

7.3 Any draft versions of the Cree-led Management Plan shared with a third party during the engagement process shall not be shared by this third party unless given approval by the Operational Working Group.

8 Financial arrangements and support

8.1 The Parties acknowledge that the CNG requires capacity to perform duties and actions to support the preparation of the Cree-led Management Plan for Lake Sturgeon/Nameu/Nimaau–DU3 described in subsection 6.1 of the Agreement and have identified financial needs on this matter.

8.2 The terms and conditions by which projected funding will be provided by DFO to support CNG for the preparation of the Cree-led Management Plan will be set out in a separate funding agreement to be negotiated.

8.3 In the event that the projected funding agreement cannot be reached as planned, the Parties agree to initiate the dispute resolution process as identified in section 10 and/or the Agreement termination process as defined in subsection 9.3.

9 Duration, amendment, termination, and renewal

9.1 The Agreement shall come in force at its date of signing by the Parties and be valid unless otherwise terminated in accordance with this Agreement.

9.2 This Agreement and any part of it may be amended from time to time by written consent of the Parties, subject to any required approval or authorization.

9.3 Either Party may terminate this Agreement by giving ninety (90) days written notice of termination to the other Party provided the dispute resolution process identified in section 10 of this Agreement is unsuccessful in resolving disputes.

10 Dispute resolution

10.1 Subject to the terms of this Agreement, if a disagreement arises concerning the development, interpretation or implementation of this Agreement (any such disagreement being a “Dispute”), the Parties will make good faith efforts to attempt to resolve the Dispute, including by participating in the following dispute resolution processes:

• 10.1.1 The Party raising the Dispute will deliver to the other Party a written summary of the issues in the Dispute along with proposed measures to resolve the Dispute.
• 10.1.2 Within 30 days of receipt of notice of the Dispute, senior decision makers of the Parties will meet (in person or by phone/video call) and seek to resolve the dispute.
• 10.1.3 If the Dispute remains unresolved after the meeting of senior-decision makers, the Parties may, under terms mutually agreeable, utilize non-binding dispute resolution processes, including facilitation, mediation, or obtaining independent technical or legal advice.
• 10.1.4 If the Dispute remains unresolved after the conclusion of the non-binding resolution processes, at the request of either Party, the Agreement termination process outlined in subsection 9.3 may be entered.

11 Designation for implementation of this agreement

11.1 For the purposes of this Agreement, the Representatives from each Party are:

• Cree Nation of Eeyou Istchee – Isaac Voyageur, Director, Environment and Remedial Works, Cree Nation Government
• Department of Fisheries and Oceans – Alain Guitard, Director, Marine Planning and Conservation and Species at Risk Management

Signatures

In witness whereof, the parties have executed this agreement.

On behalf of Her Majesty the Queen in Right of Canada, as represented by the Minister of Fisheries and Oceans.

Original signed by

Sylvain Vézina
Quebec Regional Director General
Department of Fisheries and Oceans

Signed this 1st day of April, 2022.

On behalf of the Cree Nation of Eeyou Istchee, as represented by the Grand Chief.

Original signed by

Isaac Voyageur
Director of the Environment and Remedial Works
Cree Nation Government

Signed this 1st day of April, 2022.

Appendix 6.1.2: Cree-led Management Plan Preparation Organization Structure Diagram

Legend to appendix 6.1.2

CNG:

Cree Nation Government

CQFB:

Cree-Québec forestry board

CTA:

Cree trappers’ association

DFO:

Fisheries and Oceans Canada

EM1-A:

Eastmain-1-A

EMRLCA:

Eeyou Marine Region Land Claims Agreement

HFTCC:

Hunting, fishing and trapping coordinating committee

HQ:

Hydro-Québec

JBACE:

James Bay advisory committee on the environment

JBNQA:

James Bay and Northern Québec Agreement

LEA:

local environmental advisor

MFFP:

Ministère des forêts, de la faune et des parcs du Québec

Nemeo:

Nameu/Nimaau

NGOs:

Non-governmental organizations

SARA:

Species at Risk Act

Appendix 6.4.2: Administrative procedures of the Conservation Agreement Committee for Lake Sturgeon

The committee will:

• meet at least twice a year or more often as deemed necessary by the co-chairs, until the Committee is dismissed by both Parties or until the Agreement is terminated in accordance with its provisions under section 9
• reach decisions on a consensus basis

The co-chairs, with support of the co-secretaries, will:

• approve agenda for each meeting and information to be distributed
• distribute information in advance of the meeting, make arrangements for scheduling meetings
• prepare and distribute ‘Record of Decisions and Action Items’ for each meeting to committee members
• request the participation of other staff or outside experts to address specific issues
• assign tasks for members of the committee when deemed necessary; and
• responsible for arranging meetings and logistic support as required

Committee members are:

• responsible for being well prepared for meetings
• responsible for briefing their staff and managers
• responsible for their own travel costs, if necessary; and
• accountable to their respective managers/directors/organizations for seeking necessary approvals