View Treaty - E105589
Exchange of Notes between the Government of Canada and the Government of the United States of America constituting an agreement amending Chapter 4 of Annex IV of the Treaty between the Government of Canada and the Government of the United States of America concerning Pacific Salmon, done at Ottawa on 28 January 1985, as amended
E105589 – CTS 2021/5
I
Ottawa, June 24 2019
Note: JLI-0101
Her Excellency Kelly Craft
Ambassador of the United States of America
Embassy of the United States of America
490 Sussex Drive
Ottawa ON KIN 1G6
Excellency:
I have the honour to refer to the recent recommendations of the Pacific Salmon Commission relating to Chapter 4 of Annex IV of the Treaty between the Government of Canada and the Government of the United States qf America Concerning Pacific Salmon, done at Ottawa on 28 January 1985, as amended (the “Treaty”). This Chapter is scheduled to expire by its own terms on 31 December 2019.
I therefore have the honour to propose an agreement between our two Governments, pursuant to Article XIII of the Treaty, to amend Annex IV as follows (the “Agreement”):
1. Chapter 4 of the Treaty shall be replaced in its entirety by the amended Chapter 4 set out in the Appendix to this Note.
2. This Agreement shall expire on 31 December 2028, unless our two Governments agree otherwise. If the Treaty is terminated in accordance with Article XV(2) this Agreement shall terminate effective from the date of the termination of the Treaty.
3. Compliance with this Agreement shall constitute compliance by our two Governments with their obligations under Article III of the Treaty.
4. This Agreement shall be provisionally applied as of 1 January 2020 and continue to be provisionally applied until it enters into force.
If the proposal set forth in this Note is acceptable to the Government of the United States of America, I have the honour to propose that this Note, with its Appendix, and your affirmative reply, which shall be equally authentic in the English and French languages, shall constitute an agreement between our two Governments that enters into force on the date of a second note that is part of a subsequent exchange of notes confirming the completion by each Party of all internal procedures necessary for its entry into force.
Please accept, Excellency, the assurances of my highest consideration.
The Honourable Chrystia Freeland, P.C., M.P.
Appendix
Chapter 4: Fraser River Sockeye and Pink Salmon
1. This Chapter shall apply to the period from 2020 through 2028 (“Chapter Period”). The Fraser River Panel (“the Panel”) shall undertake a review of the effectiveness of the implementation of this Chapter 4, if either Party has a significant concern. The review shall include biological and conservation considerations, effectiveness of assessment programs, management decisions, and achievement of Treaty harvest objectives by both Parties. The Panel shall identify any appropriate modifications to the implementation of this Chapter and make proposed recommendations to the Pacific Salmon Commission (the “Commission”) for consideration prior to the next fishing season.
2. The U.S. share of the annual Fraser River sockeye and pink salmon Total Allowable Catch (the “TAC”), as defined in paragraph 3, to be harvested in the waters of Washington State is as follows:
(a) for sockeye salmon, the U.S. catch in the Fraser Panel Area shall not exceed 16.5 percent of the TAC;
(b) for pink salmon, the U.S. catch in the Fraser Panel Area shall not exceed 25.7 percent of the TAC.
3. The TAC shall be calculated as the remaining portion of the annual aggregate Fraser River sockeye and pink runs (excluding any catch of Fraser River sockeye identified in Alaskan waters) after the spawning escapement targets established, unless otherwise mutually decided by the Panel, by applying Canada's pre-season escapement plan (subject to any adjustments made pursuant to paragraph 3(b)), the agreed Fraser River Aboriginal Exemption (AFE), and the retained catch in Panel-authorized test fisheries are deducted. The TAC shall be calculated separately for Fraser River sockeye and pink salmon. The following definitions and procedures apply to the TAC calculations:
(a) The annual U.S. share shall be calculated based on the last in-season run size estimates adopted by the Panel, using the escapement targets established by applying Canada's pre-season escapement plan, which may be adjusted pursuant to paragraph 3(b), and taking into account any adjustments under paragraph 8. The Panel has applied this methodology beginning with the 2018 season.
(b) For the purposes of in-season management by the Panel, the spawning escapement objective is the target set by Canada, including any extra requirements that may be identified and mutually decided by the Panel, for natural, environmental, or stock assessment factors, to ensure that the fish reach the spawning grounds at target levels. If the Panel does not mutually decide on additional escapement amounts, the Commission staff shall make a recommendation that shall become effective upon consent by at least one National Section of the Panel. Any additional escapement amounts that Canada believes are necessary beyond those determined pursuant to the above shall not affect the U.S. share.
(c) The agreed AFE is that number of sockeye that is subtracted from the total run size in determining the TAC upon which the U.S. shares that are specified in paragraph 2 are calculated. Any Canadian harvests in excess of these amounts count against the TAC, and do not affect the U.S. share. The agreed AFE is the actual catch of Fraser River sockeye harvested in both the in-river and marine area Aboriginal Fisheries, up to 400,000 sockeye annually.
(d) To calculate the TAC by stock management group, the AFE shall be allocated to management groups as follows: The Early Stuart sockeye exemption shall be up to 20% of the AFE, and the remaining balance of the AFE exemption shall be based on the average proportional distribution for the most recent three cycles and modified annually, as required, to address concerns for Fraser River sockeye stocks and other species and as otherwise mutually decided by the Panel. If, either in the pre-season or in-season, there is insufficient harvestable surplus (defined as run size minus escapement goal, minus management adjustments made pursuant to paragraph 3(b), minus test fishing catches) in any stock management group to allow for the total AFE distribution to that stock management group as described above, the AFE for that stock management group shall be the greater of: (a) the catch, (b) the projected catch by aboriginal fisheries or (c) the available harvestable surplus. The remaining balance of AFE that is not distributed to that stock management group shall be re-distributed to the other stock management groups in the same proportions that are specified above, unless otherwise mutually decided by the Panel. The Panel shall develop procedures to implement potential AFE redistributions.
(e) Each Fraser River sockeye stock is assigned to one of four stock management groups. The stock management groups are Early Stuart, Early Summer, Mid-Summer and Late Run. The annual U.S. share of sockeye available for harvest in the Panel Area is calculated by applying the percentage share provided in paragraph 2(a) to the aggregate TAC, defined as the sum of the TACs calculated for each of the four stock management groups. To the extent practicable, the Panel shall develop and implement a fishing plan that provides the U.S. fishery with the opportunity to harvest its 16.5 percent aggregate share of the TAC of Fraser River sockeye. To accomplish this, the Panel to the extent practicable, shall strive to concentrate the U.S. sockeye fishery on the most abundant management group (or groups), i.e., those that provide the largest percentage of the available TAC. It is understood that, despite concentrating the U.S. harvest in this manner, the overlapping of management groups may result in more than 16.5 percent of the TAC for one or more of the less abundant management groups being harvested by the U.S. fishery. A small but acceptable rate of incidental harvest may occur on one or more overlapping management groups that have little or no TAC as defined in this Chapter.
(f) Notwithstanding paragraph 3(e), in order to address specific conservation and harvest objectives in any given year, the Panel may, by mutual decision, assign Fraser River sockeye stocks to five or more management groups. If the Panel adopts more than four Fraser River sockeye stock management groups, the TAC calculation, overlapping stock harvest approach, and incidental harvest provisions apply in a similar fashion as with the four stock management groupings set out in paragraph 3(e). As part of the decision to adopt more than four stock management groups, the Panel shall mutually decide on how the AFE would be apportioned among the stock management groups.
(g) To the extent practicable, the Panel shall develop and implement a fishing plan that provides the U.S. fishery with the opportunity to harvest its 25.7 percent share of the Fraser River pink salmon TAC. To accomplish this, the Panel shall take into consideration the availability of both the sockeye salmon TAC and pink salmon TAC, through the entire fishing season, while to the extent practicable, minimizing the impacts on overlapping sockeye management groups with little or no TAC. It is understood that the overlapping of sockeye and pink salmon migrations may result in a small but acceptable rate of incidental harvest on one or more overlapping sockeye management groups that have little or no TAC as defined in this Chapter.
4. Pursuant to Article IV, paragraph 3 of the Treaty, Canada shall annually establish the Fraser River sockeye and pink salmon spawning escapement targets for the purpose of calculating the annual TAC. For the purposes of pre-season planning, if possible, Canada shall provide forecasts of run size and spawning escapement requirements by stock management groupings to the Fraser River Panel no later than the annual meeting of the Commission. Canada shall provide the Panel forecasts of migration patterns, including run timing and diversion rate, and any in-season adjustments in escapement requirements, as they become available in order to accommodate the management needs of the Panel in a timely manner. In addition, the United States shall provide, on a timely basis, run size forecasts of U.S. origin sockeye and pink salmon stocks affected by Panel management.
5. To support Fraser River Panel decisions including those related to fishery management, the Panel shall develop test fishing plans, fishing plans, and in-season decision rules as may be necessary to implement this Chapter. The Parties shall establish and maintain data sharing principles and processes that enable the Parties, the Commission staff, and the Panel to manage their fisheries in a timely manner consistent with this Chapter. With respect to management responsibilities, all activities of the Parties, the Commission staff, and the Panel shall be consistent with the Exchange of Notes between the Government of Canada and the Government of the United States of America constituting an Agreement regarding the implementation of Article XV (paragraph 3) of the Pacific Salmon Treaty signed on January 28, 1985, done at Ottawa on 13 August 1985 .
6. The Panel pre-season planning meetings that do not occur simultaneously with the Commission meetings shall be held alternately in Canada and the United States. Scheduled in-season management meetings shall be held in Richmond, British Columbia unless the Panel mutually decides otherwise. As decided, the Panel meetings may be held by telephone conference call.
7. The Parties may adjust the specific areas within the Fraser Panel Area in which Panel decisions apply, by mutual decision, through annual regulatory control letters, as necessary, to simplify domestic fishery management and ensure adequate consideration of the effect on other stocks and species harvested in the Area.
8. The Commission staff shall annually adjust the calculation of the U.S. share for harvest overages and underages based on post-season catch estimates as follows:
(a) The U.S. share shall be adjusted in the amount of any harvest overage or underage of the same species from the previous year or years as provided in subparagraphs (b) and (c). In making that adjustment, the U.S. current year share shall not be reduced by more than 5 percent or increased by more than 15 percent because of the adjustment, unless otherwise determined by Panel decision. The Panel shall attempt to fully implement any adjustments to the U.S. share by the expiration of this Chapter. Any remaining balance from the harvest overage or underage shall be incorporated in the subsequent year's allocation. Any residual overage or underage remaining at the last year of this Chapter shall be carried forward into the next Chapter Period.
(b) The U.S. share shall be adjusted to account for management imprecision in U.S. fisheries subject to the limitations prescribed in subparagraph (c). Additionally, the U.S. share shall be adjusted for underages that occur as a result of Canada directly impeding the U.S. from pursuing its in-season share of the TAC. This latter circumstance shall be noted in-season by the Panel including the effect Canada's catch had on impeding the U.S. pursuit of its in‑season share, and shall be compensated for as an underage pursuant to paragraph (a).
(c) The U.S. share shall not be adjusted:
(i) for underages that occur because the U.S. fishery fails to deploy sufficient effort;
(ii) for underages that occur because too few fish are available to the U.S. fishery due to migration patterns (e.g., diversion rates) or harvesting constraints for intermingled stocks or species;
(iii) for the portion of an underage that results from an increase in the estimated TAC that is identified after the year's fishery ends but that would not have been available due to harvest constraints for intermingled stocks or species;
(iv) for an overage that results from TAC reductions after the scheduling of the last Panel approved U.S. fishery of the season; or
(v) for any harvest of Fraser River sockeye that occurs in Alaska.
(d) Fisheries that occur after the last U.S. Fraser River Panel approved fishery are expected to remain similar to those of recent years.
9. The Parties shall establish a Technical Committee (the "Committee") for the Panel:
(a) The members of the Committee shall coordinate the technical aspects of the Panel activities with the Commission staff and the National Sections of the Panel, and shall report, unless otherwise mutually decided, to their respective National Sections of the Panel. The Committee may receive assignments of a technical nature from the Panel and shall report results directly to the Panel.
(b) Membership of the Committee shall consist of up to five technical representatives as may be designated by each National Section of the Commission.
(c) Members of the Committee shall analyze proposed management regimes, provide technical assistance in the development of proposals for management plans, explain technical reports and provide information and technical advice to their respective National Sections of the Panel.
(d) The Committee shall work with the Commission staff during pre-season development of the fishery regime and management plan and during in-season consideration of regulatory options for the sockeye and pink salmon fisheries of Fraser Panel Area waters and during post-season evaluations of the season to ensure that:
(i) domestic allocation objectives of both Parties are given full consideration;
(ii) conservation requirements and management objectives of the Parties for species and stocks other than Fraser River sockeye and pink salmon in the Fraser Panel Area during periods of Panel regulatory control are given full consideration; and
(iii) the Commission staff is informed in a timely manner of management actions taken by the Parties in fisheries outside of the Fraser Panel Area that may harvest sockeye and pink salmon of Fraser River origin.
(e) the Commission staff shall consult regularly in-season with the Committee to ensure that its members are fully informed in a timely manner on the status of Fraser River sockeye and pink salmon stocks, and the expectations of abundance, migration routes and proposed regulatory options, so the members of the Committee can brief their respective National Sections prior to each in-season Panel meeting.
10. The Parties agree that Panel management actions should meet the following objectives, listed in order of priority:
(a) obtain spawning escapement goals by stock or stock grouping;
(b) meet Treaty defined international allocation; and
(c) achieve domestic objectives.
11. The Panel shall manage its fisheries in a manner consistent with the other chapters of Annex IV to ensure that the conservation needs and management requirements for other salmon species and other sockeye and pink salmon stocks are taken into account.
12. The Parties agree to develop regulations to give effect to the provisions of the preceding paragraphs. Upon approval of the pre-season plan and during the period of Panel regulatory control, all sockeye and pink fisheries under the Panel's jurisdiction are closed unless opened for fishing by in-season order of the Panel.
13. Pursuant to the Parties' obligations under Article VI, the Panel shall use the following in-season decision-making process:
(a) The mid-point forecast provided by Canada shall be used for management purposes until in-season updates of run size become available. Based upon advice from the Committee and Commission staff, the Panel may adopt more precautionary or optimistic applications of the forecast information until in-season updates of run size are available. The Commission staff shall provide the Panel with recommendations for in-season run size and other factors relevant to sound fisheries management decisions. The Parties and the Commission staff shall identify further their responsibilities in annual workplans. Based on information such as, but not limited to, in-season estimates of run timing and diversion rate, the Commission staff shall make recommendations to the Panel regarding in-season decision-making.
(b) The Commission staff shall provide the Panel with projected harvestable surpluses and status of harvest from fisheries under Panel management. These projections shall incorporate any Panel decision on management adjustments that deal with environmental conditions during in-river migration that could significantly impact the Panel's ability to achieve spawning escapement objectives and other considerations mutually decided to by the Panel.
(c) Acceptance of the Commission staff recommendation requires approval of at least one of the National Sections of the Panel. Divergence from the Commission staff recommendations provided under paragraphs 13(a) and 13(b) shall be based on mutual consent of the National Sections of the Panel.
(d) The respective National Sections of the Panel shall develop proposed regulations for their domestic Panel Area fisheries consistent with recommendations and projections provided by the Commission staff as described in paragraphs 13(a) and 13(b) as may be modified pursuant to paragraph 13(c). Either National Section may ask the Commission staff for advice in designing its fisheries proposals. The Commission staff shall assess and provide advice as to whether proposed fishery regulations for Panel Area fisheries are consistent with recommendations and projections described in paragraphs 13(a) and 13(b) and Panel objectives. Subsequently, after full discussion of a Panel Area fishery proposal, the following may occur: (i) the Panel may adopt the proposal based on mutual consent or; (ii) the proposing National Section may modify and re-submit its proposal in response to advice from staff or concern(s) raised by the other National Section; or (iii) while acknowledging objection(s) of the other National Section, the Panel shall approve the fishery proposal. If the Panel approves a fishery under the latter circumstance (paragraph 13(d)(iii), prior to the commencement of the proposed fishery, the proposing National Section must provide a written rationale for the proposed fishery.
(e) If, post-season, a Party believes that it has been adversely affected by a fishery that is objected to pursuant to paragraph 13(d)(iii) or paragraph 13 (f); the Commission staff shall prepare an objective report on the circumstances of the fishery and its consequences for the January Commission meeting following the season in question. The Panel shall review the staff report and determine what action is required. If the Panel cannot come to a mutual decision on the appropriate action, the issue shall be referred to the Commission for resolution during its February annual meeting.
(f) Pursuant to Article VI, paragraph 7 of this Treaty, the Parties shall communicate and consult with one another in a timely manner regarding their fishing plans for Fraser River sockeye outside of the Panel's regulatory control. If a Party has an objection to the other Party's fishing plans as they relate to achievement of the Panel objectives, the implementing Party shall provide the rationale for those plans.
14. The Parties agree that:
(a) Fraser River sockeye are caught incidental to fisheries in Alaska District 104 directed at pink salmon;
(b) Fraser River sockeye comprise a minor portion of the catch in that fishery and are not the target stock in that fishery;
(c) the extent of these incidental catches is unpredictable from year to year; and
(d) paragraph 8(c)(v) is premised on the fact that the circumstances described in paragraphs 14(a), (b), and (c) are ongoing.
II
Ottawa, October 1, 2019
Note: 653
The Honorable Chrystia Freeland
Minister of Foreign Affairs of Canada
Ottawa, Ontario
Excellency,
I have the honor to acknowledge receipt of your diplomatic note No. JLI-0101 dated June 24, 2019, which reads as follows:
“I have the honour to refer to the recent recommendations of the Pacific Salmon Commission relating to Chapter 4 of Annex IV of the Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, done at Ottawa on 28 January 1985, as amended (the “Treaty”). This Chapter is scheduled to expire by its own terms on 31 December 2019. I therefore have the honour to propose an agreement between our two Governments, pursuant to Article XIII of the Treaty, to amend Annex IV as follows (the “Agreement”):
1. Chapter 4 of the Treaty shall be replaced in its entirety by the amended Chapter 4 of Annex IV, set out in the Appendix to this Note.
2. This Agreement shall expire on 31 December 2028, unless our two Governments agree otherwise. If the Treaty is terminated in accordance with Article XV(2), this Agreement shall terminate effective from the date of the termination of the Treaty.
3. Compliance with this Agreement shall constitute compliance by our two Governments with their obligations under Article III of the Treaty.
4. This Agreement shall be provisionally applied as of 1 January 2020 and continue to be until it enters into force.
If the proposal set forth in this Note is acceptable to the Government of the United States of America, I have the honour to propose that this Note, with its Appendix, and your affirmative reply, which shall be equally authentic in the English and French languages, shall constitute an agreement between our two Governments that enters into force on the date of a second note that is part of a subsequent exchange of notes confirming the completion by each Party of all internal procedures necessary for its entry into force.
Please accept, Excellency, the assurances of my highest consideration.”
Numbered paragraph 1 above reads: “1. Chapter 4 of the Treaty shall be replaced in its entirety by the amended Chapter 4 set out in the Appendix to this Note.” We propose that this be clarified through a separate reply note confirming that the paragraph should read as follows: “1. Chapter 4 of Annex IV of the Treaty shall be replaced in its entirety by the amended Chapter 4 set out in the Appendix to this Note.”
I am pleased to inform you that the Government of the United States of America accepts the proposal set forth in your diplomatic note with the clarification noted above. The Government of the United States of America further agrees that your diplomatic note with its Appendix, and your reply note confirming the text of numbered paragraph 1, together with this reply, which shall be equally authentic in the English and French languages, shall constitute an agreement between the United States of America and Canada that enters into force on the date of a second note that is part of a subsequent exchange of notes confirming the completion by each Party of all internal procedures necessary for its entry into force.
Accept, Excellency, the renewed assurances of my highest consideration.
Richard Mills Jr.
Chargé d’Affaires