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.
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.
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.
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?
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.
May 29, 2014