Lawyers for the Great Bear Rainforest
 February 2006 saw the long-awaited provincial government announcement regarding the future of the “Great Bear Rainforest” (GBR), a 6.4 million hectare area on BC’s Central and North Coasts. The outcome? Protection of one third of the GBR from all logging, sustainable “ecosystem-based” management requirements for the remaining area by 2009, and commitments for collaborative management with Coastal First Nations in new protected areas.
But is this the end of the story? Far from it. A number of legal questions remain in ensuring that the agreements reached on the Coast achieve lasting change on the ground.
What’s law got to do with it?
Innovative solutions require innovative legal tools. West Coast Environmental Law has been involved since 1999 in providing legal research, analysis and advice in relation to the GBR.
The following are just some of the issues:
- How to achieve both lasting protection and provide for the continued exercise of Aboriginal Title and Rights;
- How to design and implement collaborative management with First Nations;
- How should decisons about ecosystem-based management be made, and by whom;
- How to legally implement new planning and management requirements so that they are binding on third parties; and,
- How recent deregulation of forest practices laws will affect implementation.
West Coast Environmental Law has worked with the Coast Information Team, the Rainforest Solutions Project and the Coastal First Nations of the Turning Point Initiative to help answer these questions.
A new approach to protected areas
Aboriginal Title and many Aboriginal Rights are much more expansive than the First Nations uses permitted by provincial policy in parks. Furthermore, policy commitments to allow sustenance, ceremonial and spiritual uses are not entrenched in legislation, making the guarantees less secure. Litigation in other parts of the country (while not directly on point due to differences in the legislative and treaty context) indicates that uncertainty remains as to the full range of permissible First Nations uses. In this context, First Nations have an understandable desire for greater security and clarity regarding the future exercise of their Aboriginal Title and Rights in protected areas.
Significant analysis was done by West Coast and other lawyers on potential options. At the end of the day, amendments to the provincial
Park Act will be made to create a new “Conservancy” designation which will provide for at least equivalent protection to Class A parks and collaborative management with First Nations.
“Shared Decision-Making”
The Supreme Court of Canada has confirmed that Aboriginal and Crown title co-exist in British Columbia. In the “New Relationship” Vision and Principles, the Province has committed to a new government-to-government relationship with First Nations based on respect, recognition and accommodation of Aboriginal Title.
To give life to this commitment, First Nations have called for a “co-jurisdictional” approach that ensures that First Nations have at least equal decision-making control over land and resources. Experience with achieving this goal on the Coast, however, has been mixed.
The Crown has committed to negotiating collaborative management agreements with First Nations with respect to new protection areas. However, as we note in the 1999 West Coast Environmental Law Occasional Paper
Maintaining Cultural and Ecological Diversity on the Central Coast: Co-management Options
(PDF, 295 Kb), most existing models of parks co-management leave ultimate control in the hands of the Crown.
The exact nature of collaborative management of Conservancies thus remains to be resolved through government-to-government negotiations and the agreements that result. At the present time, the Crown has not yet committed to co-jurisdiction/collaborative management of the rest of the land base.
New institutions for ecosystem-based management
Ecosystem-based management (EBM) is an adaptive approach to managing human activities that seeks to ensure the coexistence of healthy, functioning ecosystems and human communities. EBM maintains ecological integrity, recognizes Aboriginal Title and Rights, and sustains cultures, communities and economies within the context of healthy ecosystems.
In 2004, West Coast Environmental Law, collaboratively with co-authors from UBC, produced a detailed research paper on recommended legal and institutional design tools for implementation of EBM for the Coast Information Team (CIT). One of the most innovative aspects of land use planning on the Central and North Coasts and Haida Gwaii, the CIT was created to bring together the best available scientific, traditional, and local knowledge to develop independent information and analyses to support the planning tables.
At the end of the day, the government-to-government agreements reached provide for a number of new bodies with First Nations and provincial representation. These bodies may make recommendations about matters including establishment of legal objectives, timelines for operational transition, and ensuring that laws, policies, plans, tenures or decisions are consistent with agreed-to EBM objectives. A Coastal EBM Working Group involving conservation groups, communities and industry will also have a role in making recommendations regarding the monitoring and implementation of EBM.
Legalizing ecosystem-based management
As those who have participated in planning tables in other areas of the province know, in and of itself, Cabinet approval of land use plans has no legal impact on the ground. Further legal steps are required under various statutes, without which companies have no obligation to follow approved land use plans. Furthermore, in setting the allowable annual cut, as a matter of policy, the Chief Forester does not consider any part of land use plans that have not been legalized.
Through a number of research and discussion papers, West Coast Environmental Law worked with the Rainforest Solutions Project and the Coastal First Nations to identity the most effective legal options for implementing EBM. However, the Province has proved inflexible on this point.
The tool that will be used to legalize the first phase of EBM – legal objectives under the
Land Act – is not without challenges. Such challenges include: the ease with which objectives can subsequently be changed, the fact that ministerial objectives apply only to forestry and not to other resource industries, and the fact that legal objectives are not tools that are well-designed to establish new institutions, decision-making structures, or EBM planning requirements.
The Land Act mechanisms do not exhaust the options for legalizing EBM and other outcomes from government-to-government land use planning negotiations. Other options such as stand-alone legislation, or establishment of a trust for the planning area could allow a more holistic and comprehensive approach to legal implementation. As full EBM implementation is achieved before March 31, 2009, the latter tools should be kept in mind.
An inspiring model in challenging times
Since 1991, virtually every environmental and natural resource law in BC has been repealed or rewritten. While many implementation challenges remain, the relatively high degree of protection and commitments to EBM on the Coast represent a refreshing and hard-fought-for opportunity for real change.
— Jessica Clogg
Jessica Clogg – West Coast Staff Lawyer
 Jessica first joined West Coast Environmental Law in 1995 and presently oversees our “Sustaining the Land” program, which addresses the cross-cutting impacts of logging, oil and gas, and mining development. Jessica’s work has particular focus on providing legal and strategic support to First Nations on land use planning and forestry law.
A founding member of the BC Coalition for Sustainable Forest Solutions, in 2003 Jessica was responsible for drafting a comprehensive draft private members bill for forestry law reform on behalf of this broad-based coalition. Jessica was also one of the principal technical drafters of the
Forest Stewardship Council-BC (FSC-BC) Regional Standards and is presently the co-chair of FSC-BC. She is also the chair of the Canadian Eco-lumber Co-op, a marketing and distribution co-operative for producers of FSC-certified wood products, and was for many years the co-chair of the BC Environmental Network Forest Caucus.
Jessica holds a joint Masters in Environmental Studies and law degree from Osgoode Hall, York University, where her graduate research focused on “Tenure Reform for Ecologically and Socially Responsible Forest Use in British Columbia.” Before joining West Coast, Jessica worked as a facilitator, popular educator and organizer for a variety of non-profits in Canada and overseas, at a Vancouver litigation firm, and as a law clerk to the British Columbia Supreme Court.
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