Aboriginal Title and Local Forest Trusts

We should all celebrate the Supreme Court of Canada decision in the case Tsilhqot’in Nation v. British Columbia. The First Nation won their case and have aboriginal title over an area of the Chilcotin west of Williams lake. First Nations in BC have been fighting court cases on land claims for years and hopefully this decision will take things out of the courts and move things forward toward equitable solutions on the ground. Those benefiting to date seem to be lawyers with the case reportedly costing $ 30 million.

The Supreme court definition of aboriginal title is really a long term trust to ensure sustainable collective benefits to communities:

"Aboriginal title confers ownership rights similar to those associated with fee simple, including:  the right to decide how the land will be used; the right of enjoyment and occupancy of the land;  the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.

 Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations.  This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.  Some changes — even permanent changes – to the land may be possible.  Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises."

Aboriginal title is an innovative collective trust concept well suited to sustainable forest management and the support of communities. It is less a concept of ownership but a definition of sustained inter-generational stewardship responsibility.  All public forests should be managed in this manner. The same trust concept should apply to all the public forests in BC. Innovation should be for everyone, for aboriginal and other communities alike.

Democratic local forest trusts are an ideal legal and institutional framework to implement the collective sustainable management requirements of aboriginal title over forest land. A local forest trust would have an elected board and professional forest and resource managers that would manage all forest resources and values.  First nation's could lead the way in asking for local forest trusts as the best mechanism for implementing aboriginal title.

What is good for the Goose is good for the gander. Other communities should have similar sustainable title to forest land and local forest trusts. Local forest trusts for all communities would give everyone the same responsibilities and deal with areas of public forest occupied by a mix of First Nation's and other folk. A ward system for different communities and rural areas would enable representation of First Nations and other communities on the elected board of the local forest trust. The board of the local trust will be the forum to work things out.

First Nations should think about local forest trusts as a way to gain speedy implementation of aboriginal title. Other communities could and should follow their example and claim similar institutional advances to exercise similar sustainable stewardship responsibilities in their forest landscapes.

Comments from the area based forest tenures consultation

 The following comments are from the area based tenures consultation.

DENIS O'GORMAN from Thompson / Okanagan provides well balanced comments that are not encumbered by technical forestry details:

VOLUME TO AREA BASED FOREST TENURE

1. CONVERSION: PROS AND CONS
The current proposal is, as I understand, to enable conversion of existing replaceable volume based licenses to replaceable area based licenses (known as tree farm licenses). The primary benefit I also understand is that it creates an incentive for intensive forest management because it enables those investing effort and other resources to benefit from anticipated increases in harvestable volumes. In concept, it is increasing the commercial value of the timber rights.
On the other hand, disbenefits with area-based licenses are:
It has proven difficult and costly to make land use adjustments that are in the public interest, and
It capitalizes the harvesting rights into shareholder value but gives no assurance of either permanent commitment to BC or its communities or proportionate “rent” to the Crown.

2. CONCERNS

Stability

Many companies have had area-based licenses (TFLs) in BC. We have been witness to the departure of many: BC Forest Products, Can Cel, Columbia Cellulose, Crown Zellerbach, Eurocan, Fletcher Challenge, McMillan-Bloedel, Rayonier, and Weldwood to list a few. Long term investment decisions including forest management and intensive forestry were not delivered, nor was long term community stability. High value old growth forests were largely liquidated along with their ecosystems. The “thrifty” forests that replaced them have in many cases underperformed in both volume and quality. It is necessary to ask why some form of reserve account to deliver greater ongoing stand management can’t be put in place.

One way Street

The founding promise of TFLs was to package public timber lands along with adjacent private timberlands to help make more viable and sustainable management units capable of ensuring sustainable log supply to mills. Reductions to these TFLs, beyond a low threshold, would require compensation. Yet we witnessed no compensation when Western Forest Products private lands were removed from TFL status even without compensation for foregone taxes. It proved to be a great holding property with no commitments to manage land for forest values or due process evident.

All Values Considered

Forests have many non-timber values and these have tended to obtain greater but still insufficient recognition over time. Nominally the Forests Ministry represents all these values and some progress has been made in this. That said, the principal mind-set remains that of timber supply. Any “net downs” of a harvestable timber base are resisted. Concessions to recognition of non-timber values typically come at public cost such as offset payments against stumpage charges or direct compensation. To society, non timber values including recreation, tourism, visual protection, watershed integrity and ecosystem/species protection have and continue to rise.
Further locking in of timber as a property right would make any harvest level/land use adjustments more costly even, on a land base that is nominally Crown.

Access

Some will recall roads paid for as through stumpage, not being open to public access. I’m also aware of and deplore vandalism of machinery, recreation sites and forest stands. But I am apprehensive about potential new access barriers. Ministry enforcement capacity needs serious re-examination.

Access to what

One answer is access to special places often made scarce by past harvesting. As an example, some may recall that one of the last mountain- top hikes on Vancouver Island, Heather Mountain, was reduced to a short stroll. Were all values seriously considered? In the words of Marion Clarison from Resources for the Future, Forests for Whom and for What?, this is a question with enduring validity.
Consider for example the fragility of even designated parks now being made available for development through “research permits”. Where’s the reverse compensation to the public there?

License Conversion where it makes sense

A business case for conversion can readily be made. Security as a hedge, growth and yield “lifts” and timber value capitalization put into a saleable asset base. When would it not make sense? Perhaps where society’s land use values are changing or are not adequately resolved? Perhaps where long term commitment to a community or Province is not assured? Perhaps where access to timber supply by value-added operators is restricted? These and other questions need to be considered as part of valid timber tenure reform.

Other Tenure holders

A stated benefit of area-based tenure is that it will provide non-timber operators a land manager “so they know who to talk to about their non-timber tenures”. The question is what if anything is their leverage in such discussions? Strong tenures with concentrated economic values (e.g. mineral claims) presumably have significant leverage, heli-ski companies perhaps less, backcountry recreation tenures still less and local communities any? What if any fair process for consideration of non-timber values would be provided? This needs serious examination as part of tenure review.

3. CLOSING COMMENTS

The proposal to convert existing replaceable volume based licenses with area-based licenses does not presently address many important concerns related to ensuring the public interest in use of Crown land.
Rather than presume this proposed conversion from volume to area-based tenures is the only way to produce prospective benefits of more intensive forest management, a more comprehensive evaluation of tenure and management options should be considered including opportunities for tenure diversification and the respective enabling conditions for each.
This entails considered comparative assessment of a range of options against outcomes such as:
ability to respond to new land use demands, needs and desires (i.e. flexibility);
ability to achieve more intensive forest management;
support for greater areas of wood supply for non-timber licensees;
contribution to community stability to reinvestment; and
contribution to Crown revenue
One starting point could be identification of a full range of tenure options by an expert panel coupled with a comparative assessment of those options. The question of appropriate tenure options and their appropriate mix and either respective enabling conditions warrants in depth examination including an adequate opportunity for open public review.
Thanks for the opportunity to comment.

Denis O’Gorman
May 29, 2014

Clear cutting forests and a lack of imagination

A clear cut is seen through some second growth forest on the hills or mountains of southern Vancouver Island. In the distance there are regenerated clear cuts and a few scraps of poor old growth on rocky mountain tops. The harvest in this vicinity is of more recent vintage because this is tougher terrain than the lower valleys where the cycle of old growth harvest commenced.

In the late 1960's, there was considerable old growth left in some lower valleys and mid slopes of mountains on southern Vancouver Island. A look at Google Earth reveals a sea of second growth forest. Although the second growth forests of Douglas Fir, Hemlock, Cedar etc. grow well in comparison to conifer forest elsewhere in the world, lost are the huge old growth trees that once stood in these places. Gone are the Douglas Fir and cedar trees that were four, six, ten or twelve feet in diameter. Even the crusty old time logger that wrestled these huge trees from these mountains would look at a two foot diameter, one hundred foot second growth tree trunk and call it a bean pole. The old logger can imagine these landscapes as they once were with their majestic trees. The young person cannot even imagine these landscapes as they once were. These places have been diminished. Harvesting of sixty year old second growth has taken place in some areas. Big trees may never grow here again.

While the total volume and usually quality of timber in old growth forests is much greater than the sixty or eighty year old forests, the old growth was not accumulating additional timber volume. Younger forests about eighty years old give peak average annual growth, so the idea was to harvest the old growth relatively quickly so that they would be replaced by young forests with higher average annual growth. This provided a good economic rationale for hogging through the high volume high quality old growth forests at a great rate.

The high volume old growth forests had enough value to enable roads and relatively expensive cable logging to be done on the relatively mountainous terrain of Vancouver island and elsewhere on the BC coast. A major economic problem has occurred in young forest economics. Although the average annual growth is high, there may not be sufficient volume at sixty or eighty years of age to cover the expense of harvest off the mountain. Some of the potential harvest from the young forests cannot be harvested.

The coastal forests are sending an economic message about increasing the rotation age and growing bigger trees. While conifer forests in most parts of the world do show relatively rapid decline in average growth after about 100 years, British Columbia's coastal rain forest species demonstrate good average growth for 200 years. Quality of wood usually improves with age so good utilization in the manufacture of the wood may yield greater value. Industrial forest management and its clear cutting myopia looks for maximum timber volume. The better measure is the value of product and employment that can be generated from a forest.

Forests can also generate income from non timber forest products and nature based enterprises. Also the forest has a great role in generating the public good of a quality environment. These other values will generally do better in a forest that is not completely given over to young forest tree farming.