Saturday, June 28, 2014

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.

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