Forestry Plan infringes on aboriginal rights
The provincial Forestry Revitalization Plan will result in a range of infringements on Aboriginal Title and Rights, according to a new paper released by West Coast Staff lawyer Jessica Clogg. According to Clogg, new and upcoming forest legislation and policy enhances the rights of forest companies holding tenure at the expense of First Nations, potentially setting up new rounds of court action.
In 2003, the provincial government legislated a new administrative and legal regime for forest tenure in British Columbia. The amendments contained in Bills 27-29 and 44-45 make up a large part of the Provincial Forestry Revitalization Plan. Clogg concludes that these and the related Ministry of Sustainable Resource Management Working Forest initiative will result in infringements of Aboriginal Title and Rights in a substantial number of instances, leaving the province and industry open to a period of legal conflict and instability.
Key changes enumerated by Clogg, include
- unilaterally increasing the control tenure holders have over allowable annual cut, land use and processing decisions on First Nations’ territories;
- reducing or eliminating statutory decisions about tenure, planning and practices that trigger legally enforceable duties on the Provincial Crown and third party resource tenure holders to consult and accommodate Aboriginal people;
- placing limits on timber volume and revenue available to First Nations based on a per capital formula that has been generally rejected by BC First Nations (i.e., limiting First Nations’ access to forest resources proportionally to their current percentage of the general rural population);
- introducing new guarantees for industry compensation when tenure is reallocated, increasing the cost of honourably addressing the First Nations land question; and,
- removing opportunities for future tenure redistribution, and failing to reflect many First Nations’ desire for new structures that allow them to exercise decision-making control (or potentially shared jurisdiction) over their whole territories.
First Nations, like others, were shut out of the joint government-industry tables that produced the revitalization package. And many have reacted by rejecting the initiative, through resolutions like the one adopted by the Union of BC Indian Chiefs (UBCIC) that dismissed the legislative and policy changes “because they violate the province’s Constitutional duties to protect Aboriginal Title, Rights and Treaty Rights, including seriously compromising the ability of the provincial Crown to meet its fiduciary obligations to Aboriginal Peoples and to reconcile Crown and Aboriginal Title.”
Over the past year, pressure has increased with new concerns expressed by the First Nations Summit and individual First Nations like the Haida. On September 11 & 12, Clogg presented her paper to a unique meeting in Kelowna. The meeting, hosted by the Okanagan Nation Alliance and supported by both the First Nations Summit and the Union of BC Indian Chiefs, brought together leaders from all corners of the province for the first in a series of province-wide First Nations sessions to initiate collaborative action around land and resources issues.
Clogg reviewed the legislative changes with the audience and told the meeting that the legislative changes provide grounds for a variety of responses by First Nations.
In particular, she noted, there are strong grounds for a constitutional challenge to the new administrative and legal regime for tenure embodied in the recent Forest Act amendments. As well, court decisions, in conjunction with a failure to consult First Nations and accommodate their interest, may open tenure holders to issues related to undisclosed liabilities. Finally, Clogg noted other Canadian jurisdictions where First Nations have taken steps to exercise their rights to timber consistent with legal rulings but outside of provincial administrative frameworks, such as the new one developed here in BC.
By opting to strengthen tenure holder rights over First Nations rights ratified by courts, the provincial forest strategy, Clogg concludes, leaves BC open to greater investment instability and land use conflict.
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