Sunday, July 13, 2014

Aboriginal Title offers a progressive solution for all forest dependent communities.


Aboriginal title provides the right to occupy and use land. It differs from other titles because it is a collective title held by a group or community. Uses of the land have to be sustainable. The present generation cannot use the land in a manner that will degrade the land and deprive future generations of its benefits. The land cannot be sold and can only be alienated to the Crown.

Aboriginal title is a progressive and sustainable concept. The recent Canada Supreme Court decision has been reported in the press mainly through the lens of how it will affect other rights and development. There is concern about private timber harvesting rights on Crown land, rights of way for pipelines and other developments.

Aboriginal land claims have been ongoing for 130 years, and the supposedly accelerated process of the last two decades has hardly made it out of first gear. Lawyers rather than First Nations seem to be the main beneficiaries. While the Supreme court has given a progressive definition of aboriginal title, it differs from other private land titles and private tenures and entitlements on Crown land. The discontinuity or gulf between the various titles and the realities will provide fertile ground for more high priced lawyers and little hope for solutions that will benefit aboriginals and the wider Canadian society. We need to solve the problem with some new legal and institutional arrangements. Wise progressive political solutions are needed now.

Aboriginal title is a progressive concept and it is actually very similar to the progressive concept of public forests that developed at the start of last century. Public forests were to be held in Crown ownership with the British Columbia Government acting as the trustee to ensure that the forests would be managed by a professional forest service. The intended outcomes were sustainable forests, communities and a diverse wood manufacturing industry. The original intent of independent professional management by a forest service got a little corrupted through the granting of private timber harvesting rights and sharing forest management responsibilities with forest corporations. Aboriginal title is really a form of sustainable trust and very similar to the original intent of public forests. Public forests are also a trust with the BC Government acting as the trustee. Successive government administrations acted as poor trustees of public forests by developing a tenure system of private timber rights in public forests. It is these private rights that clash with aboriginal title. The main outcomes of the tenure system are forests of degraded value, a struggling forest industry and forest dependent communities coupled with discriminatory tariffs on wood exports. The BC Government is presently thinking about strengthening these private timber rights in public forests.

Aboriginal title is a sustainable trust over land and forest. What sort of legal and institutional arrangements can be developed to ensure that the trusteeship will be exercised in a sustainable fashion for present and future generations? The BC Government should be asking itself the same question regarding its trusteeship of Crown Land. Crown land comprises over 90% of BC land and forest. Trusteeship of BC's Crown land and public forests by the central trustee of the BC Government has been far from exemplary in the past century. It is time to seek some new and more sustainable institutional arrangements for trusteeship. Some devolved form of trusteeship would work for aboriginal communities as well as other or mixed communities. The legal and institutional arrangements for devolved trusteeship need to be sufficiently robust to ensure that the sustainable trust is truly exercised with inter-generational equity. This is a right or entitlement of all communities dependent on the surrounding landscapes and it has to be achieved by exercise of responsibility. Sustainable trusts are more about responsibilities than rights. Aboriginal communities need to exercise these responsibilities and so do mixed or non aboriginal communities.

British Columbia needs devolved sustainable trusteeship of its lands and forests. We need a system that enables all land dependent communities to participate in true sustainable trusteeship. Aboriginal title could be exercised through a local forest trust. In other situations where there has been long term occupation by aboriginal and others a local forest trust with board members elected under a ward system will also suffice. Since the concept of a sustainable local trust is progressive it will also service non aboriginal communities and rural areas. In other words, everyone gets the same brush. However it needs to be a good brush of adequate legal and institutional structure.

How should local sustainable land and forest trusts be organized and operated? What checks and balances are needed to ensure that they will operate with regard to the needs of present and future generations?  The area of land in the local devolved trust should be of sufficient size to an enable economic operation that supports a professional forest and environmental management staff. The staff would be accountable to an elected board. A ward system would be required where there are several communities or rural areas in the vicinity. Local trusts would operate under trust documents or a charter modeled on scientific sustainable land and forest management criteria. The Montreal Process, an international sustainable forest management agreement provides robust standards. There is considerable freedom for local trusts to develop their own local approach given their ecosystem conditions. The lands and forests would be managed and planned comprehensively for timber, non timber, and nature based economic activity while maintaining the spiritual and recreational qualities of the landscape.

Local forest trusts would be audited and supported by a British Columbia Forest Trust Assembly governed by one elected and professional delegate from each local trust. It would audit, provide collective services such a fire fighting, insurance and extension services.

A system of local forest trusts and a BC forest trust assembly will work to ensure the sustainability of aboriginal title and provide a similar system of sustainable trusteeship for other communities and their landscapes in British Columbia. While it will enable a different flavor to the management of each local trust, it will ensure sustainability for all.

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