BC FIRST NATIONS FORESTRY COUNCIL olicy Changes … · BC FIRST NATIONS FORESTRY COUNCIL Recent P olicy Changes in BC and Implications to First Nations MARCH&29,2012&! …

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BC FIRST NATIONS FORESTRY COUNCIL

Recent Policy Changes in BC and Implications to First Nations

MARCH 29,2012

Compiled by First Nations Forestry Council

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BC First Nations Forestry Council (FNFC)

Recent Policy Changes in BC And Implications to First Nations

March 29, 2012

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Table of Contents List of Acronyms ........................................................................................................ iii

Introduction .................................................................................................................... 1

Review Recent Changes in Provincial Legislation ..................................................... 1 Bill 7 Forests and Range Statutes Amendment Act, May 25, 2010 ......................... 1 BC Order in Council 236 - Volume 38, Number 13, June 9, 2011 ............................ 2 BC Reg. 103/2011 First Nations Tenures Regulation, June 9, 2011 ........................ 3 Bill 13 Miscellaneous Statutes Amendment Act (No.2), June 2, 2011 .................... 4 Bill 6 Forest, Lands and Natural Resource Operations Statutes Amendment Act, October 4, 2011 ............................................................................................................ 5

Agreements between First Nations and the BC Government ................................... 8 Direct Award Agreements ........................................................................................... 8 Strategic Engagement Agreements ........................................................................... 8 Reconciliation Protocols .......................................................................................... 10

Policy Under Review ................................................................................................... 13 Resource Roads Discussion Paper ......................................................................... 13 Log Exports ................................................................................................................ 14

Forest Appeals Commission ...................................................................................... 15 Decision No. 2008-FOR-010(a) ................................................................................. 15

Forest Management Issues ......................................................................................... 17

References ................................................................................................................... 21

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List of Acronyms

AAC allowable annual cut ABCFP Association of BC Forest Professionals BC British Columbia CHN Council of Haida Nation FAC Forest Appeals Commission FCARs Forest Consultation and Revenue Sharing Agreements FNFC BC First Nations Forestry Council FNWL First Nations Woodland Licence FRA Forest and Range Agreement FRO Forest and Range Opportunity HGMC Haida Gwaii Management Council MARR Ministry of Aboriginal Relations and Reconciliation MSAA Miscellaneous Statutes Amendment Act MFLNRO Ministry of Forests, Lands and Natural Resource Operations RPF Registered Professional Forester SEA Strategic Engagement Agreement TFL Tree Farm Licence TOA Timber Opportunity Agreement TSA Timber Supply Area

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Introduction

As it did in March 2011, the British Columbia First Nations Forestry Council (FNFC) has undertaken a review of recent forest policy changes that affect First Nations governments and / or organizations (FNFC, 2011). This paper was funded by the New Relationship Trust. This paper examines policy change:

• Changes in forestry legislation in BC February 2011 to February 2012,

• Agreements between First Nations and the BC government, and

• Recent papers that discuss forest management in BC. Review Recent Changes in Provincial Legislation

Bill 7 Forests and Range Statutes Amendment Act, May 25, 2010

The provincial government introduced Bill 7 and the allowable annual cut (AAC) “partition order” into the Forest Act; and in February 2011 partition orders were brought into force. The partition order gives the Minister the ability to award forest tenures with an AAC for a specific tree species, specific area or terrain type. Before Bill 7 the Chief Forester authorized AAC at the Timber Supply Area (TSA) and Tree Farm Licence (TFL) level through the Forest Act section 8(5). If a partition order is given to a forest licence then the licence must comply with the harvest volume limit. Exemptions from Bill 7

• forest tenures with less than 10,000m3

• non-replaceable tenures with less than five years left on their licence

• non-replaceable tenures that have definite harvesting rights to a type of timber terrain, specific area or private land within a TFL

Downward adjustments Specific grades of logs will not count towards the licensee’s harvest volume in a partition order including:

• grade Z code under the Scaling Regulation for the Coast;

• grade codes 1, 2 and 4 under the Scaling Regulation for the Interior.

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Increase or Waiver of Harvest Volume Limit There is some flexibility in the partition orders. At the request of the licensee the Minister may waive the order. Also, the Minister may revoke or amend the volumes in the partition order. Penalty If the AAC amount is exceeded, the penalty is double the stumpage rate. Intent According the Chief Forester, the intent of partition order is to protect the mid-term timber supply. For example, “uplift volumes” (increases in AAC to salvage dead standing pine that was killed by mountain pine beetle) have been reduced somewhat in the Prince George and Quesnel TSAs and replaced with partition orders where the focus is to salvage dead pine and protect non-pine stands (Snetsinger, 2011). On the coast, partition orders have allowed for forest licences focuses on red alder stands. The forest industry is concerned that a partition order could force the logging of a percentage of non-profitable tree species, such as a western hemlock and balsam fir.

Potential Implications First Nations in the forest sector should understand how AACs are determined and how those AACs are allocated. First Nations can apply for partition orders.

BC Order in Council 236 - Volume 38, Number 13, June 9, 2011

The framework for the First Nations Woodland Licence (FNWL) was drafted with Bill 13 – 2010 Forest and Range (First Nations Woodland Licence) Statute Amendment Act. However, BC Order in Council 236/2011 formally introduces the new FNWL through. The following forestry laws were amended to introduce the new forest tenure: Forest Act, sections 8(1), 43(2), 43(51), 43(54), 43(57), 43(7), 47(3), 54(4), 111, 112, 151, 151(51) and 151(7); Forests and Range (First Nations Woodland Licence) Statutes Amendment, 2010, s. 60; Wildfire, section 69 and section 72. a) The following provisions of the Forests and Range (First Nations Woodland Licence)

Statutes Amendment Act, 2010, S.BC. 2010, c. 12, are brought into force: (i) section 1 (a) and (b); (ii) sections 2 to 49; (iii) sections 51 to 59.

b) BC Reg. 69/2009, the Allowable Annual Cut Administration Regulation, is amended. c) BC Reg. 122/2003, the Annual Rent Regulation, is amended. d) BC Reg. 352/2004, the Community Tenures Regulation, is amended. e) BC Reg. 578/2004, the Cut Control Regulation, is amended.

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f) BC Reg. 351/2004, the Transfer Regulation, is amended. g) The First Nation Tenures Regulation is made. h) BC Reg. 38/2005, the Wildfire Regulation, is amended.

Annual rent is $0.12/m3 of the AAC for FNWLs; this is cheaper than annual rent for woodlot licences ($0.60/m3 of the AAC) or community forest agreements ($0.37/m3 of the AAC).

Potential Implications The FNFC commented on the FNWLs before they were legislated – see Implications of Recent Changes in Forest Legislation Including introduction of “First Nations Woodlands Licence” (FNFC, 2011)1. The comments with the FNWL in its draft form with Bill 13 remain. The Huu-ay-aht First Nation were awarded the first FNWL in December 2011, as a treaty measure. The licence is for 70,000m3/year on an area base of 9,500 hectares near Bamfield, BC (MFLNRO.b., 2011).

BC Reg. 103/2011 First Nations Tenures Regulation, June 9, 2011

First Nations Tenures Regulation is a new regulation that amends the Forest Act to allow for direct awards of replaceable forest licence, community forest agreement, and the First Nations Woodland Licences. This regulation limits the eligibility of who can be granted a First Nation direct award forest tenure. First Nations direct award tenure can only be owned by a First Nation or it’s “representative”. Representative is defined as either a company the First Nations holds over 50% shares in or a non-profit society, defined by the Society Act. There is nothing stating that the members of the society are First Nations. The First Nations cannot sell or trade rights of the direct award tenure. Transfers of a FNWL requires cabinet approval and can only be transferred to another First Nation or its representative / non-profit society. This is very different from the treatment of tenures held by private companies, where transfers are much easier. For instance, with the introduction of the Forest Revitalization Act in 2003, the process of tenure transfers has been streamlined to a “notification approach” rather than a “Minister’s consent”. Also, at this time the provision of a five percent take-back volume upon the transfer of a major tenure has been dropped. Limiting the transferability of First Nations tenures affects their economic viability. This puts the First Nations forest tenure holders at a disadvantage in competing with larger private companies. 1 Implications of Recent Changes in Forest Legislation Including introduction of “First Nations Woodlands Licence” (2011) http://www.fnforestrycouncil.ca/downloads/recent-changes-in-forest-legislation-march-2011.pdf

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Potential Implications Limiting the transferability of direct award forest licences reduces their value. First Nations tenures should include incentives for establishing business and encouraging investment in forest operations to remove economic disadvantages faced by First Nations companies that have to compete with large industry (Swaak & Natcher 2009). This is an example of different rules that are set for First Nations imposed by the government. Legislation that has the intent of protecting First Nations interests should be First Nations led and advocated. First Nations have stated that they are interested in becoming equal decision makers for forest management. Having a tenure that requires cabinet approval to transfer to another First Nation or its representative is not equal when most other forest tenures require only Minister notification.

Bill 13 Miscellaneous Statutes Amendment Act (No.2), June 2, 2011

The MSAA was enacted June 2011 has made important changes to the rules that govern the issuance and transfer of woodlot licences under the Forest Act. Changes to Forest Act section 44 rules that a person, corporation or First Nation cannot hold or apply for a woodlot if they have “ineligible licences” that total more than 10,000m3. “Ineligible licences” are defined as a timber sale licence (major), a forest licence, a tree farm licence (TFL) or a forestry licence to cut that is replaceable, has a term of greater than five years. Not included are direct award licences through Forest Act section 47(3) to First Nations. Also, the concept of who controls the woodlot licence has been extended to who is “affiliated” with it. Affiliation is explained in Forest Act section 53 (2): “one corporation is affiliated with another corporation if one of them is the subsidiary of the other, or both are subsidiaries of the same corporation, or each of them is controlled by the same person.” This is in addition to the existing restriction that a person, corporation or First Nation cannot directly have control of more than two woodlot licences.

Potential Implications • Some First Nations have entered the forest sector by negotiating a woodlot licence

with the idea that it is a starting point. The ability to expand the forest tenure portfolio beyond 10,000m3 is limited by this legislation. However, this clause does not include direct award forest tenures and should only affect forest tenures that are acquired through business transactions.

• Some First Nations have decided to work with other First Nations or the forest industry to build capacity and / or to pool resources. Changes from MSAA could limit partnership models, because some First Nations have made business partnerships or become “affiliates” with the forest industry.

• The intent was to keep the woodlot licences small and owned by First Nations and

communities and not to transfer those rights to a large company.

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Other changes in the MSAA The Forest Act will be amended so that a non-lumber producer can only transfer a “receiving licence” to another non-lumber producer. This will help support the bioenergy, pulp and paper and value-added industries by providing security of supply for lower quality fibre needed by the non-lumber sector (MFLNRO.c., 2011). Receiving licences were created to give access to low value timber and waste. The idea was that the receiving licence volume could be added to the volume on a regular licence, which meant the company doing the logging can bring out both high-grade and low-grade timber. The focus of the receiving licences should be on bioenergy sector (Hoekstra, 2011). The Forest Act, Forest and Range Practices Act and the Ministry of Forests and Range Act will be amended so that the Minister replaces decision-maker references, such as regional manager or district manager. This will enable the Minister to delegate powers and duties to officials in the MFLNRO as needed to optimize decision-making and improve efficiency (MFLNRO.c., 2011).

Potential Implications Forest sector that have rights to the lumber and bioenergy could make their logging feasible by offsetting their logging operations with lower stumpage rates for the bioenergy sector. It is a positive that this decision-making has become more flexible. Hopefully, it remains clear whom First Nations can talk to for a decision when it comes to forest sector matters.

Bill 6 Forest, Lands and Natural Resource Operations Statutes Amendment Act, October 4, 2011

Direct Award of Fibre Supply Licences to Cut Amendments to the Forest Act made it easier for the provincial government to direct award wood residue and debris to support the growing bioeconomy. Fibre supply agreements are considered business to business agreements that specify the terms upon which the parties agree to supply and purchase wood fibre from each other (MAG, 2011).

Potential Implications The rationale for the direct awards is that they are secondary ‘business to business’ agreements between a licensee and manufacturing company and allow for greater utilization of the forests. Low grade timber and residue typically have minimum stumpage. This could create a competitive advantage to the large industry that will have to pay less stumpage for a portion of their cut. Therefore, the impact is that if you have an area based tenure you will have a more viable business asset. So from a business standpoint First Nations should be negotiating a fibre supply packages. More work needs to be done to look at the full life cycle of the bioenergy industry, including stewardship values, because there are some fundamental differences between

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bioenergy industy the commercial forest management. For instance, there coarse woody debris is needed for the soils and wildlife habitat.

Woodlots removal of private land The Forest Act section 47(1) was amended to allow for the withdrawal of private lands from woodlot licences. This mirrors similar amendments to the Forest Act in 2004 to make it easier for private land to be removed from TFLs. There are 866 woodlot licences in BC operating on 592,000 hectares of forestland and about 16% of the total area is privately owned. Previously, woodlot licence applications were more likely to be approved if they included private lands to be managed with public forest practices. They also received benefits of low taxes (Hamilton, 2011). These changes came into affect March 2012. All potential private land removals will be at the discretion of the Minister of Forests, Lands and Natural Resources (or a delegate determined by the Minister) following public consultation. The following requirements must also be met:

• The private land has been part of a woodlot licence for at least 10 years.

• The woodlot holder has provided notification and advertised their intent.

• The licence is in good standing with no overdue payments, no major contraventions of forestry legislation, or outstanding obligations.

• Access to Crown land via existing roads on the private land has been adequately addressed.

• Private land removed from an existing woodlot can’t be used by the owners to apply on new woodlot licence opportunities” (MFLNRO, 2012).

Potential Implications

First Nations should be consulted and accommodated for the removal of private lands from a woodlot. Two Nuu-chah-nulth First Nations sued the province for not consulting and accommodating them before private lands were removal from TFL 44. Other First Nations on south Vancouver Island are concerned about land use changes on private lands from forestry to infrastructure developments within their traditional territories.

Accreditation of Timber Cruisers in the Foresters Act November 2011, the Foresters Act was amended to accredit timber cruisers and to allow them to become members of the Association of BC Forest Professionals (ABCFP.a., 2011). Timber cruising involves forestry fieldwork to gather data on the type, amount, grade and value of a stand of timber in a cut block area. It provides confidence of accurate information to calculate stumpage rates paid to the provincial government. To become a timber cruiser, a person must apply to the ABCFP, show competencies in timber cruising through past education and / or training, work experience, references, field equipment experience and timber cruising knowledge. A fee schedule for application, exam, and annual membership fees is posted on the ABCFP web site (ABCFP.a., 2011).

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Becoming an accredited timber cruiser is another avenue to the forest sector for First Nations.

Extending the term or Master Licences to Cut and Free Use Permits In Forest Act section 47(5) the occupant and master licence to cut term was extended from a five-year term to a ten-year term. In Forest Act section 49 the term of a free use permit was extended from one year to five years.

Potential Implications • Occupant licences to cut and master licences to cut from oil and gas, mining and

independent power project have cumulative impacts to aboriginal interests. • First Nations often apply for free use permits for timber for cultural and community

use, extending the terms makes it more flexible.

Accurate information from timber cruise The Forest Act section 106 deals with cruise-based stumpage. It was amended to add Forest Act section 106(3) that requires timely and accurate submission of information “in a manner” required by the Minister. Licensees pay stumpage based on the timber cruise and are then not required to do a waste and residue survey or pay a waste bill; this is to be covered by the timber cruise. Timely submission of information is not a new requirement, this is a clause of cutting permits. The licensee tracks how much of the cut block is cut in hectares. The licensees are expected to report is when the trees are felled (not yarded or hauled away). Reporting to the government is generally once a month and stumpage is due when they are billed. Forest Act section 106(3) makes timely submission of information more formal than just having this clause in the cutting permit.

Potential Implications In First Nations Consultation and Revenue Sharing Agreements, First Nations are accommodated by the stumpage, waste and annual rent paid within in their traditional territories. In the case of cruise-based stumpage they would be compensated only by stumpage and annual rent, since waste and residue surveys are not required with cruise-based stumpage.

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Agreements between First Nations and the BC Government

Direct Award Agreements

Forest and Range Agreements / Forest and Range Opportunities were not renewed after March 2011 and have been replaced by two stand alone agreements, Forest Consultation and Revenue Agreements (FCARS) and Timber Opportunity Agreements (TOAs).

Forest Consultation and Revenue Sharing Agreements - FCARs To date, 72 of 203 First Nations communities in BC have signed FCARs. FCARs include consultation and revenue sharing. FCARs provide First Nation communities with economic benefits returning directly to their community based on harvest activities in their traditional territory. Revenue sharing is 3% of the stumpage, waste and annual rent collected by the province and overlapping territories will be prorated. If the revenue sharing is calculated to be less than $35,000, the First Nation will receive $35,000.

Timber Opportunity Agreements – TOA Before a First Nations receive rights to a direct award forest tenure, the First Nation must sign a Timber Opportunity Agreement that states that they agree that they have been partially accommodated. Direct award tenures include: First Nations Woodland Licences, forest licence to cuts and / or non-replaceable timber licences (MARR, 2012). Implications Before receiving a forest tenure a First Nation must first agree to sign both a FCAR and a TOA. There was very little flexibility in wording or terms for the FCARs. The First Nations agree that they have been accommodated for forest activities within their traditional territories. In some cases, this has proven problematic because of the lack of forest development plan mapping that shows the activities plan to do in the next three to five years they must trust that they will agree with these impacts and that they are being accommodated fairly. Regardless, many First Nations are agreeing to these agreements.

Strategic Engagement Agreements

Four Strategic Engagement Agreements (SEAs) with the province are signed: Tsilhqot’in, Nanwakolas, Ktunaxa and Taku River Tlingit. SEAs establish mutually agreed upon procedures for consultation and accommodation developed by First Nations and the province. They are all similar in that they reference the New Relationship and the Transformative Change Accords as principles of the document. Each include a map of the area that they cover, the framework on how the parties will agree to engage with each other, and recognize existing aboriginal rights. The SEAs do not take away or assume any of the decision-making authority of elected band councils or the Council of Chiefs or hereditary chiefs. The province has committed to signing ten new non-treaty agreements such as SEAs or reconciliation agreements by 2015.

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Tsilhqot’in Signed December 2009, the Tsilhqot’in framework agreement: among the Province of British Columbia, the Tsilhqot’in Nation and the Tsilhqot’in National Government. Tsilhqot’in Nation represents five First Nations in the Cariboo-Chilcotin region of British Columbia:

• Alexis Creek Indian Band, • Tl’etinqox-t’in Government Office, • Stone Indian Band, • Xeni Gwet’in First Nation Government, and • ?Esdilagh First Nation.

Under the agreement, $1.26 million dollars over three years will fund the streamlining of consultation and natural resource decisions. The parties agree to pursue negotiations for revenue sharing on new major natural resource developments. It includes hiring and training staff to establish an web based consultation process (Tsilhqot’in Nation & BC, 2009).

Ktunaxa October, 2011 Ktunaxa Nation signed a Strategic Engagement Agreement between the Province of British Columbia and Ktunaxa Nation. The Ktunaxa Nation is in the south eastern part of the province. Ktunaxa represents four First Nations:

• Akisq’nuk First Nation • ? Aq’am (St. Mary’s Indian Band) • Yaqan nu?kiy (Lower Kootenay Indian Band) • Tobacco Plain Indian Band

“Under the agreement, $1.65 million will be provided over three years to the Ktunaxa Nation to more effectively engage with the Province on land and resource development decisions in Ktunaxa Territory. This is anticipated to result in more co-operative decision-making and lead to increased certainty for resource activities in the area.” (MFR & ILMB, 2011).

Nanwakolas Nanwakolas represents eight Kwakwaka’wakw First Nations on the mid-coast and northern Vancouver Island with a land base of 80,000 hectares. There are thirteen major projects in the SEA area. First Nations:

• Kwakiutl First Nation • Mamalilikulla-Que’Qwa’Sot’Em First Nation • Tlowitsis First Nation • Da’naxda’xw Awaetlala First Nation • Gwa’sala-‘nakwaxda’xw First Nation

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• Kwiakah First Nation • K’omoks First Nation • Wei Wai Kum First Nation

Under this agreement $2.25 million dollars, over three years will fund a consultation clearing house. In the first two years, it showed positive results with over 90 percent of consultation referrals to the First Nations completed within the timelines. This creates more certainty and increases investment (Nanwakolas, 2010).

Taku River Tlingit First Nation Signed July 2011, the Wóoshtin Yan Too.aat Land and Resource Management and Shared Decision Making Agreement was signed by the Taku River Tlingit First Nation and the province. It is an SEA based on the principles of the New Relationship and the Transformative Change Accord. Under this agreement, up to $650,000 will be provided to establish a collaborative Framework for Shared Decision Making Respecting Land Use and Wildlife Management, for the implementation of the Atlin Taku Land Use Plan and ongoing land and resource decision-making in Taku River Tlingit First Nation territory. The Taku River Tlingit First Nation will make recommendations to the province for new protected areas, fish and wildlife management, monitoring structures and joint research that values traditional ecological knowledge. The Taku River Tlingit First Nation will have the ability to obtain commercial recreation tenures in Atlin Park. Appendix E of the agreement describes how the Taku River Tlingit First Nation and the province will engage in discussion regarding industrial access routes for mining and other developments that will be consistent with the Atlin Taku Land Use Plan (Taku River Tlingit First Nation and British Columbia, 2011).

Potential Implications Case law such as Haida and Taku established that it is the responsibility of the Crown to consult and accommodate First Nations before there are changes and developments on the land base. The SEAs develop a mutually agreed upon decision making process, venue and resources for the First Nations and the province for consultation and accommodation.

Reconciliation Protocols

Reconciliation protocols are mutually agreed upon by First Nations and the province that focus of community prosperity through forestry, carbon, tourism and a host of First Nation identified needs and ecosystem services. Reconciliation agreements have defined process for shared decision making and revenue sharing.

Haida In December 2009, the Haida Nation and the province signed a reconciliation protocol - Kunst’aa guu - Kunst’aayah, which means “the beginning” (MARR.a., 2009).

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Elements of the agreement includes:

• $10 million dollars towards the acquisition for a forest tenure, • Officially naming Queen Charlotte islands Haida Gwaii • The Haida Nation will receive $3.2 million over 5 years to implement the protocol • A carbon offset sharing agreement • a shared decision making process (next section)

Haida Gwaii Management Council

In December 2009, the Kunst’aa guu-Kunst’aayayah Reconciliation Protocol was signed between the Council of Haida Nation (CHN) and the BC government. Under this protocol, a Haida Gwaii Management Council (HGMC) was established in July 2011, for shared decision making for natural resources on Haida Gwaii. The CHN and the province each appoint two board members to the HGMC. The board term is two years and can be re-appointed for a maximum of six years. The CHN and province jointly decide upon a Chair for the HGMC. The HGMC is part of the government and has responsibilities authorized under the Haida Gwaii Reconciliation Act and traditional First Nation law - the KaayGuu Ga ga Kyah ts’as—Gin ‘inaas ‘laas ‘waadluwaan gud tl’ gud giidaa which says that the HGMC shall be guided by respect for all living things. The HGMC will be making decisions that will be legally binding under BC Law. These include decisions on:

• AAC on Haida Gwaii (with some exceptions) at least every 10 years, • policy and standards for cultural heritage sites, • management plans for protected area (and amendments to current management

plans) under the Park Act, • objectives for the Forest Range and Practices Act, and • other strategic level management matters that the Partied delegate to the HGMC.

For making decisions the HGMC can draw on the following laws: federal, provincial and Haida laws. The HGMC will make efforts to make decisions by consensus in a voting process, but failing consensus, by majority vote of the board members. In the event of a tie, the Chair of the HGMC will break the tie by casting the deciding vote. According the Haida Gwaii Reconciliation Act the following Natural Resource Laws do not apply: Forest Act Section 8, Forest Range and Practices Act 1 (1), 8(2), 149(2), Heritage Conservation Act Section 7, and Land Act Chapter 245. Basically, the laws are still in effect on Haida Gwaii, but they are amended to enable the HGMC to make the decisions. The wording “objectives set by government” was amended to “objectives established by the Haida Gwaii Management Council” (MARR, 2010).

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The HGMC is in the process of making a statutory decision for AAC.

Potential Implications This is the first governance model that allows First Nations participation in the statutory decision making process at the provincial level. In other jurisdictions, boards are developed where First Nations have a seat, sometimes equal representation; however the province or the territory makes the ultimate decision. In most cases over the last thirty years, First Nations negotiated forest tenures with government or industry that limited the ways in which First Nations peoples could apply their own values in the forest management system (Wyatt, 2008). This is a positive new governance structure that will enable the HGMC to manage systems that include aboriginal values.

Coastal First Nations In December 2009, the Coastal First Nations signed a reconciliation agreement with the BC government. Coastal First Nations represents six First Nations:

• Gitga’at First Nation • Haisla Nation • Heiltsuk Nation • Kitasoo Indian Band • Metlakatla First Nation • Wuikinuxw Nation

Included in the agreement:

• A larger ferry terminal at Klemtu, paid for equally by the provincial and federal government

• A shared-decision process will be established for resource and land use that will create certainties for process and timelines in decision-making through the involvement of the Coastal First Nations

• The Coastal First Nations will receive a total of $3.2 million over six years to fund their participation in the shared-decision making process

• Developing shared carbon offsets agreement where the Coastal First Nations will receive a portion of the carbon offsets within their traditional territories

• An Alternative Energy Action Plan will be created by the province and Coastal First Nations to advance alternative energy projects on the central and north coast

• Commercial recreation permits and tenures • The creation of long term forest tenure opportunities through undercut volumes

and unused forest and range agreement volumes (MARR.b., 2009)

Nanwakolas In addition to a SEA, the Nanwakolas recently signed a reconciliation protocol that includes forestry agreements including renewable forest tenures totalling 52,993 m3/year and 39,457 m3/year for five years, non-replaceable licences. The protocol agreement discusses revenue sharing opportunities for tourism, mines and clean power. Similar to

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the Haida and Coastal First Nations it includes the ability to share carbon-offsets (MARR & Nanwakolas, 2011). This agreement represents five First Nations:

• Mamalilikulla-Qwe’Qwa’Sot’Em • Tlowitsis • Da’naxda’xw • Gwa’sala-‘Nakwaxda’xw • K’omoks


As the Haida indicated, these reconciliation protocols are a “good beginning” an these agreements are still in the implementation phase. Policy Under Review

Resource Roads Discussion Paper

Currently resource roads on Crown lands are administered through 11 laws. Resource roads are managed at varying standards by several ministries responsible for: forestry, mining, oil and gas, land tenures, and recreation. The BC government has made a couple of attempts to revise the current framework to consolidate the resources roads into one law the Natural Resource Roads Act. In October 2011, the BC government published the “Natural Resource Road Act Project” discussion paper for public comment. Currently, there is no measure for cumulative impact administration of the existing road network before approving a new resource road. There are no provincial strategies for road deactivation in critical areas. For example, consider the caribou recovery plan in the northeast of the province. At the regional level, there is actually pressure to keep roads open. The Natural Resource Road Act Project discussion paper states it would like to consolidate the of resource roads for sound environmental stewardship, supporting rural economic stability, reducing administrations cost to tax payers and increasing industry’s competitiveness. Road cost and maintenance is becoming an issue in parts of the province where the forest industry would maintain them, but has become inactive. However, due to the decline in forestry in the province, roads are not being maintained by forestry companies to the same degree (MFLNRO.a., 2011). In the last couple of years, the province has worked with the Union of BC Municipalities to fund resource roads across the province that were previously maintained by the forest industry2.

2 Examples of resource roads that access First Nations and rural communities: Zeballos Forest Service Road (FSR), 300 residents; In-SHUCK-ch FSR, 500 residents; Harrison FSR, 250 residents; Lillooet / Hurley FSR, 200 residents, Nass FSR, 2,200 residents; Cunningham FSR, 160 residents; Leo Creek FSR 475 residents; Finaly FSR, 475 residents; Adams West FSR, 425 residents; Chilcotin S FSR 150 residents; Bamfield Road.

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Consider a policy and funding model to maintaining communities that are accessed by resource roads:

o Think of these roads as part of the provinces’ transportation system. o Provide reliable capital for operation funding. o Consider multi-year funding, like highways (Schultz, 2010).

Potential Implications Impacts continue to arise from unrestricted access to undeveloped forest lands for the purposes of forestry, mining, oil, gas and recreation. Unrestricted access to forestlands leads to interruption of wildlife migration, increased access for hunting and disruption of hydrology. On the other hand, about 70 First Nations communities are accessed by resource roads.

Recommendations:

• Resource roads access about 70 First Nations communities in BC. First Nations should be engaged in the development of the new Natural Resource Road Act.

• Consider policy to make road deactivation of unnecessary roads a priority. Make road deactivation a priority when it benefits species at risk and important hunting grounds for First Nations.

• Consider discussions with the Union of BC Municipalities that have negotiated maintenance for resource roads that access communities.

• Identify First Nations communities that have the highest safety risk.

Log Exports

Timber harvested in BC must be manufactured in BC, as required under the Forest Act. However, exemptions may be given if the logs are determined to be surplus to domestic market requirements. Log exports can have a key role in the development of BC’s economy, particularly on the coast, by supporting jobs and economic activity in the logging and transportation sectors. The BC government is currently considering a relaxing of the present policy on raw log exports to allow increased volumes to be sold from coastal BC. Multiple scenarios have been put forward to industry and the public for consideration. The FNFC has participated in reviewing these options and has provided direct input to the MFLNRO in consideration of First Nations position on log export policy.

Potential Implications Increased coastal raw log export may serve to benefit First Nations as tenure holders considering the typical economic rationale for increasing log export. A coastal consideration does little for the situation in the interior where First Nations licenses are “price takers” due to reduced manufacturing facilities leaving limited market options.

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Recommendations:

• First Nations from either the coast and interior should have the right to choose to export their forest products – either in raw or processed form.

Forest Appeals Commission

Role of the Forest Appeals Commission (FAC)

The Forest Appeals Commission (FAC) is an independent tribunal that is composed of a chair and part time board members that have technical forestry background. The role of FAC is to make administrative decisions for the following laws: the Forest Act, Forest and Range Practices Act, Private Managed Land Act, Range Act and Wildfire Act in BC. The FAC not do any investigations on their own, but listen to arguments and make legal decisions. For contraventions of forestry law, MFLNRO Compliance and Enforcement staff to decide if a contravention of forestry law will go to the FAC for an administrative penalty or to the court system. To appeal a decision that would follow up in the court system, it would have to be a misinterpretation of the law, not technical forestry issues or facts i.e. if a forest practice caused a landslide. FAC was formed with the rationale that it would be cheaper, faster, less formal than the court system in the province. i.e. you don’t have to be have a lawyer. However, based on the time FAC makes decisions, it is questionable if the FAC is faster, but it could be cheaper and less formal.

Decision No. 2008-FOR-010(a)

This case was brought forward by Jack Sebastian and the Suskwa Chiefs Economic Corporation (the Corporation) against a November 10, 2008 determination made by Barry Smith, RPF, District Manager of the Skeena Stikine Forest District. Jack Sebastian is the Chief Executive Officer of the Corporation and the Corporation is owned by the Gitxsan Chiefs. The District Manager concluded that the Corporation on behalf of the Gitxsan Chiefs had contravened section 52(1) of the Forest Range and Practices Act by harvesting timber from Crown land without authorization from the MFLNRO. The Corporation harvested beyond the road centerline by 50 meters, cutting 1,238 m3 of timber beyond the boundaries of three forest licences. The District Manager levied a fine of $500 against Jack Sebastian and two penalties of $1,500 and $500 against the Corporation for trespass. Appellants Argument: The appellants did not argue the trespass, but argued that the District Manager failed to fulfil his duty to consult the Gitxsan Chiefs and this negatively impacted Gitxsan’s aboriginal title to the lands. The cutting happened in the Gitxsan traditional territory; the Gitxsan had good prima facie claim of aboriginal title through previous court cases and

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signing an interim agreement with the province. The Gitxsan chiefs asserted their existing rights to the MFLNRO throughout the compliance and enforcement investigation and the District Manager’s decision. The ministry ignored the Gitxsan’s own governance structure, ignoring Gitxsan’s laws and only taking into account provincial laws. The appellant argued that “by treating the Gitxsan like any other persons under the Act, the Ministry’s compliance and enforcement actions effectively rendered the Gitxsan’s aboriginal rights (including title) valueless. The Gitxsan’s aboriginal title includes the embedded right to govern and use their resources.” Consultation as defined by the Supreme Court of Canada through Haida would have included: notice, providing information, listening to asserted rights, considering in good faith of the effect on those rights and accommodation. The Provinces Argument: The MFLNRO stated that the duty to consult was not triggered because this was an enforcement case and because an individual (Jack Sebastian) and the Corporation were not entitled to consultation. The province also argued that exercising aboriginal title does not mean making a unilateral decision on the land. They also argued that this was a “collateral attack” of the province’s ability to regulate and manage forestry resources (“collateral attack” in this case means that it is not valid to assume aboriginal title as a defense when the Corporation signed a FLTC and agreed to BC forestry laws). The issue was broken into four questions: 1. Can Jack Sebastian and the Corporation; rely upon any rights that may be claimed by the Gitxsan, a non party to the licenses, as a defence to enforcement action by the Ministry in relation to a breach of a term or condition of their licenses? Yes said the FAC, in paragraph 57 of the decision it states that even though Jack Sebastian and the Corporation were issued trespass contraventions and penalties, they made it clear they represented the Gitxsan hereditary chiefs. A court case (NTC Smokehouse) set precedence that corporate entities may rely on First Nation’s claim to aboriginal title or its right to consultation as a defence to a regulatory proceeding. Hereditary chiefs agreed that Jack Sebastian and the Corporation were working on behalf of the Gitxsan. Also, when applying for the forest licences Jack Sebastian in a letter to the MFLNRO advised that he did represent the Gitxsan hereditary chiefs. 2. If Jack Sebastian and the Corporation can rely on the duty to consult with the Gitxsan, was the duty to consult triggered by the investigation or enforcement proceedings undertaken by the Respondent? Yes said the FAC. Duty to consult was triggered by the investigation and enforcement proceedings undertaken by the District Manager. Paragraph 111 of the FAC decision states that although Haida does state that the Crown does have the authority to manage resources it cannot do so in a way that deprives aboriginal benefits of the resources. The Crown’s approach to enforce the Forest and Range Practices Act scheme, regardless of

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the assertion to title to an area restricted the Gitxsan’s ability to benefit from the forest resources. 3. Does the Appellants’ claim to be consulted in this case amount to a collateral attack on the province’s validly enacted regulatory scheme? The FAC decided that this is not a collateral attack on the legislation, but rather a proper defense arising from constitutionally recognized rights. 4. What is the appropriate remedy in this case? The FAC could not nullify the contravention, but suggested that the District Manager who had the jurisdiction should. The FAC rescinded the three penalties totaling $2,500 (FAC, 2011). Result The province has appealed the decision and this case will go to BC courts.

Potential Implications This decision shows that First Nations are willing to advocate for more access to the lands and resources as they once had for millennia, but when they gain access to the forests they are often limited to the provincial (and federal) laws. This decision acknowledges the inability to use First Nations governance structures. This decision will affect how the province will engage First Nations in compliance and enforcement proceedings. Forest Management Issues

Several groups have advocated for sustainable resource management in this last year.

Healthy Forests Healthy Communities “The HFHC was initiated in January 2011 as a non-partisan, volunteer supported initiative to provide an opportunity for communities and concerned citizens to inform decision-makers of their views and concerns regarding management of BC forests. Over 150 volunteers across BC contributed to delivery of the HFHC through providing expert opinions based on experience and science and community views arising from local experiences. Twenty-seven (27) Background Briefs were provided by experts in various fields of forestlands management as information for use by participants in the 20 Community Dialogue Sessions held across all regions of the province. The results of the input from experts, communities and concerned citizens included:

• A forestlands vision to guide legislation, regulation, policies, practices and plans • A framework brief for use in evaluating BC forestlands management • 12 key challenges arising from the expert opinion Background Briefs • Six priority community issues arising from the Dialogue Sessions regarding the

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management of local / regional forest lands • A number of suggested actions by decision-makers to address the “priority issues”

The 2011 HFHC made six recommendations:

I. Political parties engage in dialogue with communities and concerned citizens regarding community and family long-term needs

II. Government review the legislation, regulation and policies to be consistent with the focus on long-term forest lands stewardship

III. Government adopt the requirement for a forest lands vision to guide legislation, regulation and policy

IV. Decision-makers adopt the key messages and challenges identified though the HFHC

V. Decision-makers establish opportunities to bring together people to generate innovative ideas to address issues and challenges

VI. Communities identify initiatives to assist in providing clarity regarding what is needed from local-regional forest lands and mechanisms to become more involved in forest management decisions

VII. Professional associations and academia consider development of a program to provide assistance to communities (Bourgeois, 2012)”

The HFHC continues its efforts in 2012 and is soliciting participation from First Nations, their organizations and First Nations working in forestry.

Mid-term Timber Supply November 2011, the Association of BC Forest Professionals wrote a paper to the Chief Forester in BC. The Chief Forester is responsible for making determinations of AACs for TFLs and TSAs in the province. The focus of the forest professional’s paper is the analysis of mid-term timber supply in mountain pine beetle damaged forests; and the affected communities. There are about 104 First Nations living in areas affected by mountain pine beetle killed forests. Affected TSAs include: Quesnel, Vanderhoof, Prince George, Kamloops, Lakes, Okanagan, Merritt and Fort Saint James. Advice was gathered by interviewing industry experts, mainly forest professionals working and living in mountain pine beetle affected areas. The forest professionals felt that existing land use plans are still relevant. Changing these plans would not change the fact that there will be an inevitable mid-term timber supply decline after dead standing mountain pine beetle timber is gone / unusable and before the next generation of trees grows. Advice from the forest professionals to BC’s Chief Forester included:

1. Protect the supply of mature green wood by not cutting it 2. Protect and manage the understory of beetle killed stands 3. Increase funding for silviculture and the establishment of new forests

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4. Improve management of young stands targeted for mid-term timber supply 5. Offer incentives to forest resource based-businesses (ABCFP.b., 2011)

Auditor General Report BC’s Auditor General, John Doyle, completed an audit to determine if the MFLNRO is achieving its objectives for timber. The audit asked three questions:

1. Has the Ministry clearly defined its forest objectives for timber? 2. Does the Ministry have the management practices it needs to achieve its

objectives for timber? 3. Does the Ministry appropriately monitor and report its timber results against its

timber objectives?” The audit concluded that:

1. The ministry has not clearly defined its timber objectives. Without clearly defining its timber objectives, the ministry cannot ensure that its management practices are effective.

2. Existing management practices are insufficient to offset a trend toward future forests having a lower timber supply and less species diversity in some ways.

3. The ministry does not appropriately monitor and report its timber results against its timber objectives.

The Auditor General has made six broad recommendations:

1. “Develop a plan for directing forest stewardship that establishes clearly defined timber objectives and stewardship principles to guide decision-making, actions, timeframes and assessment of results.

2. Ensure that investments in silviculture are sufficient to achieve long-term timber objectives, and that they align with stewardship principles and are cost-effective.

3. Ensure that restocking activities result in the establishment of forests that are consistent with long-term timber objectives.

4. Ensure that information systems reflect actual forest conditions in priority management areas.

5. Ensure the collective and individual components of its oversight framework are sufficient to ensure the achievement of long-term timber objectives.

6. Develop and implement appropriate performance measures to demonstrate progress toward achieving long-term timber objectives and report publicly on the results. (Auditor General of BC, 2012)”


The auditor questions the province’s ability to manage for stewardship values, silviculture, monitoring, and mid-term timber supply in part due to the mountain pine beetle epidemic. The FNFC have similar concerns, in fact the mountain pine beetle epidemic was the

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impetus for the creation of the FNFC. In 2005, the FNFC developed a Mountain Pine Beetle Action Plan that was developed with the input of over seventy-five First Nations; in 2008 after two years of province wide regional meetings FNFC developed the BC First Nations Forestry and Land Stewardship Action Plan. Fundamentally, the concepts from these strategic documents remain. First Nations have unique issues that are not focused on industrial forest management and require a separate venue to address these issues. First Nations are interested in becoming full partners in forestry, including decision-making for the best stewardship of lands and resources. Recommendations:

Action items from the Mountain Pine Beetle Action Plan3 and BC First Nations Forestry and Land Stewardship Action Plan4 relevant to the mid-term timber supply, healthy forests, healthy communities and forest management planning:

• Ensure a central role for First Nations in all silviculture efforts; • Work with First Nations organizations to assess the cumulative impacts of

resource exploitation within traditional territories and the effect on long-term planning;

• Work to implement First Nations jurisdiction over non-timber forest resources; • Develop a consistent and regular process for First Nations review and joint

development of forest-related federal and provincial legislation; • Obtain an allocation for First Nations from the BC Forest Investment Account for

research, marketing and promotion, habitat restoration, etc.; • Develop a concurrent and post epidemic restorative strategy; • Work with other parties on the influence of climate change and biodiversity within

First Nations traditional territories; • Ensure full First Nations participation in the management and restoration of the

resources, taking into account First Nations values and priorities.

3 BC First Nations Mountain Pine Beetle Action Plan. 2005. http://www.ubcic.bc.ca/files/PDF/FN_MPBActionPlan270905.pdf

4 BC First Nations Forestry and Land Stewardship Action Plan. 2008. http://www.fnforestrycouncil.ca/downloads/action-plan.pdf

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References

Auditor General of BC. 2012. An Audit of the Ministry of Forests, Lands and Lands and Natural Resource Operations’ management of timber. Victoria, BC. http://www.bcauditor.com/pubs/2012/report11/timber-management

[ABCFP.a.] Association of BC Forest Professionals. 2011. Timber Cruiser’s Log: 6th

Edition (Revised Jun 2011) Instruction Guide and Log. Vancouver, BC. http://www.abcfp.ca/entering_the_profession/career_options/documents/Timber_Cruiser_Log.pdf

ABCFP. b. 2011. Mid-Term Timber Supply Report: Produced for the Chief Forester.

Vancouver, BC. pp. 1-4 http://www.abcfp.ca/publications_forms/publications/documents/Chief_Forester's_Executive_Report.pdf

Bourgeois, Bill. 2012. Healthy Forests-Healthy Communities - A Conversation on BC

Forests: 2011 Activities Summary Report. North Vancouver, BC. http://bcforestconversation.com/wp-content/uploads/2011-Activities-Report-Exec-Sum1.pdf

[CHN & MARR] Council of Haida Nation & Ministry of Aboriginal Relations and

Reconciliation. 2009. Kenta’s guru – Kunst’aayah reconciliation protocol. Haida Gwaii. http://www.newrelationship.gov.bc.ca/shared/downloads/haida_reconciliation_protocol.pdf (accessed November 19, 2011).

CHN & MARR.a. 2011. Haida Gwaii Management Council Policy and Procedures

Manual. pp. 1-15. Haida Gwaii. http://www.haidagwaiimanagementcouncil.ca/Documents/HGMCpolicyprocedures_final.pdf

CHN & MARR.b. 2011. News Release: Unique Haida Gwaii decision Making council

formed. pp. 1-2. Haida Gwaii. http://www2.news.gov.bc.ca/news_releases_2009-2013/2011ARR0004-000370.htm

[FNFC] First Nations Forestry Council. 2005. BC First Nations Mountain Pine Beetle

Action Plan. http://www.ubcic.bc.ca/files/PDF/FN_MPBActionPlan270905.pdf FNFC. 2008. BC First Nations Forestry and Land Stewardship Action Plan.

http://www.fnforestrycouncil.ca/downloads/action-plan.pdf FNFC. 2011. Implications of Recent Changes in Forest Legislation Including introduction

of “First Nations Woodlands Licence”. West Vancouver, BC. http://www.fnforestrycouncil.ca/downloads/recent-changes-in-forest-legislation-march-2011.pdf

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[FAC] Forest Appeal Commission. 2011. Jack Sebastian and the Suskwa Chiefs Economic Corporation. Decisions No. 2008-FOR-010(a). Victoria, BC. pp. 1-29. http://www.fac.gov.bc.ca/forestAndRange/2008for010a.pdf

Hamilton, Gordon. 2011. Move by Liberals to amend Forest Act draws criticism: This

sounds like a mini-version of the tree farm licence removal controversy. The Vancouver Sun. Vancouver, BC. http://www.vancouversun.com/business/Move+Liberals+amend+Forest+draws+criticism/5523278/story.html

Hoekstra, Gordon. 2011. B.C. Liberal introduce wood-waste right change. Prince George

Citizen. Prince George, BC. http://www.princegeorgecitizen.com/article/20110525/PRINCEGEORGE0101/305259971/-1/princegeorge0101/bc-liberals-introduce-wood-waste-rights-change

[MARR.a.] Ministry of Aboriginal Relations and Reconciliation. 2009. News Release: BC

and Haida achieve historic reconciliation protocol. http://www2.news.gov.bc.ca/news_releases_2009-2013/2009PREM0079-000754.htm

MARR.b. 2009. News Release: Reconciliation protocol benefits Coastal First Nations.

http://www2.news.gov.bc.ca/news_releases_2009-2013/2009PREM0078-000747.htm

MARR. 2010. Bill 18 – 2010: Haida Gwaii Reconciliation Act. Victoria, BC. MARR & Nanwakolas. 2011. News Release: Partnerships lead to increased economic

opportunities. Campbell River, BC. http://www2.news.gov.bc.ca/news_releases_2009-2013/2011ARR0018-001540.htm

MARR. 2012. Forest Consultation and Revenue Sharing Agreements webpage.

http://www.newrelationship.gov.bc.ca/agreements_and_leg/forestry.html [MAG] Ministry of Attorney General. 2011. Information Bulletin: Bill amends

miscellaneous statutes. Victoria, BC. http://www2.news.gov.bc.ca/news_releases_2009-2013/2011AG0011-000563.htm

[MFR & ILMB] Ministry of Forests and Range and Integrated Land Management Bureau.

2011. News Release: Ktunaxa Nation and Province sign engagement agreement. Cranbrook, BC. http://www2.news.gov.bc.ca/news_releases_2009-2013/2010FOR0182-001318.htm

[MFLNRO.a] Ministry of Forests, Lands and Natural Resource Operations. 2011.

Discussion Paper: Natural Resource Road Act Project. http://www.for.gov.bc.ca/mof/nrra/index.htm

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MFLNRO.b. 2011. News Release: Huu-ay-aht First Nation first in line. Victoria, BC. 2011FOR0216-001564. http://www2.news.gov.bc.ca/news_releases_2009-2013/2011FOR0216-001564.htm

MFLNRO.c. 2011. News Release: Forestry processes to be streamlined. Victoria, BC.

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MFLNRO. 2012. News Release: Policy change opens options for woodlot licensees.

Victoria, BC. 2012FOR0026-000271. http://www2.news.gov.bc.ca/news_releases_2009-2013/2012FOR0026-000271.htm

Ktunaxa Nation & BC. 2010. Strategic engagement agreement between the province of

British Columbia and Ktunaxa Nation. Cranbrook, BC. pp. 1-55. Nanwakolas & BC. 2010. Amendment of the Nanwakolas / British Columbia Framework

Agreement between Kwakiutl First Nation, Mamalilikulla-qwe’qwa’sot’em First Nation, Tlowitsis First Nation, Da’naxda’xw awaetlala First Nation, Gwa’sala-nakwaxda’xw First Nation, Kwiakah First Nation, K’omoks First Nation (collectively Nanwakolas) and British Columbia. Campbell River, BC. pp. 1-73.

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