Saturday, September 27, 2014

Reconciling Aboriginal Title in public forests in British Columbia

The recent Supreme Court of Canada decision defines Aboriginal title:
"The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations."
We usually think of land title in terms of individual ownership of a piece of land. Aboriginal title is more like a trust that requires sustainable use of the land for present or future generations. It is an advanced concept of inter-generational equity in land and forest.
One century ago, British Columbia decided to retain its forests in Crown or public ownership. The BC Government would be the enduring trustee that would ensure sustainable management of our forests. Generations of BC residents would reap the benefits of a healthy forest industry and stable forest dependent communities.
The Supreme Court of Canada decision should be seen as a devolution of sustainable trusteeship from the central BC Government to aboriginal groups or First Nations. Given the diversity of environment in different regions of BC, devolution of the sustainable trusteeship of lands and forests is a concept with merit and potential benefits.
Sustainable trusteeship is an advanced concept and it needs adequate institutions to realize the inter-generational benefits. Our legal and institutional arrangements for sustainable management of our public forests developed by successive BC Government administrations over the past century have left our forest assets somewhat depleted.  Our forest industry and dependent communities are less robust than experienced by previous generations.
Wise stewardship arrangements are needed to ensure sustainability of land and forests. Our public forests were intended to be managed by an independent professional forest service. The BC Government became more interested in realizing revenue from our public forests and devised a forest tenure system of private timber harvesting rights in public forests. Forest company tenure holders shared forest management responsibilities. Loggers managing public forests with the Government more interested in its share of the cash than ensuring stewardship is something that a grade 2 class would see as a deficient arrangement. The entrenched conservatism that surrounds the forest tenure system leaves few options for reconciling aboriginal title other than revenue sharing .

Aboriginal revenue sharing is no solution because it will just provide another drain on a system that is not providing sustainability or inter-generational equity. Aboriginal title should be exercised through a devolved local trust with trust documents and adequate institutions. An elected board and professional forest and resource managers could manage the local trust on a business basis.

Devolved sustainable trusteeship should not just be restricted to aboriginal communities. Other forest dependent communities and mixed communities could have similar local public forest trusts. A British Columbia forest trust assembly with elected and professional delegates from local trusts could audit local trusts and supply aerial fire-fighting and extension services. Forest companies would purchase logs from local trusts and would not be involved in forest management. Forest companies would benefit from the improved social license of a system of devolved local forest trusts.

Friday, September 26, 2014

Area Based Forest Tenures report released

The Area Based Forest Tenures report  has been released, a little late and without any fanfare. British Columbia's Minister of Forests has put area based tenures on hold given the recent the recent Supreme Court of Canada's decision on aboriginal title.

The report is tendentious in its support for the conversion of forest tenures to long term area based leases. It provides the usual tired arguments that the move to area based tenures is not another step in the gradual enclosure of public forests into the private interest. The Province of BC will own the land and the Government will remain the landlord. The BC Government was intended to be more than a landlord of the land that supports our forests. The Government was intended to be the enduring trustee and ensure sustainable benefits of our forests for the beneficiaries, being present and future generations of British Columbia's residents.

After 100 years and after one forest cycle or rotation our public' forest assets have been somewhat depleted and have not produced the robust sustainability of our forest dependent communities and forest sector that was intended. Successive Government administrations were supposed to develop a wise system of forest stewardship. The system that was developed was a forest tenure system of private timber harvesting rights in public forests that enabled the Government to share in the cash from the exploitation of valuable virgin timber while off loading forest management responsibilities to its tenure holding forest corporations. Was it wise to let logging companies harvest the timber and expect them to provide the stewardship to sustain the forest and its dependent industries and communities over the long term? A grade 2 class would probably think this idea to be unwise. Are we so stuck in conservatism combined with a total lack of imagination and ingenuity that we only see solutions in fix up repairs to a system that is fundamentally flawed.

Aboriginal title comes as an interesting bump in the road to the tenure system and a challenge to its stodgy unimaginative supporters. Land title is a bundle of rights to property, and we tend to think of it as ownership or possession. However aboriginal title is not ownership in a simple sense. The Supreme Court definition: "The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations." It is a kind of communal trust that ensures sustainability for future generations. It is actually very similar to the trust that the BC Government has not fully exercised toward our public forests. The BC Government is the trustee that is supposed to ensure the sustainability of public land and forests. Aboriginal title occurs mainly on public forests and lands so it can be viewed as a devolution of responsibilities from the central BC Government trustee to the local First Nation or aboriginal group. The sustainable trust concept provides an avenue for solution of the aboriginal title issue. A sustainable trust exercised over an area of land or forests requires some institutional arrangements to bring results on the ground. A forest tenure system giving private harvesting rights to loggers with a few forest management responsibilities thrown into the mix will not achieve the sustainability requirements of aboriginal title. It has not achieved the sustainability requirements of public forests. We need new institutions on the ground. If aboriginal title devolves forest and land stewardship responsibilities to local aboriginal groups, then we should look at similar devolution to non aboriginal and mixed communities.

Sunday, September 21, 2014

Forest management can learn from aboriginal cultures

Sixty percent of Canada's aboriginal languages are found in BC.  Terrain, climate and environment led to the development of differing aboriginal cultures and languages. Michael Blackstock a forester of part aboriginal descent has proposed a Biocultural Zonation of British Columbia based on bio-geography and aboriginal culture.  See: Biocultural Diversity Zonation article in BC Forest Professional Magazine

Since the arrival of Europeans, British Columbia has pursued a centralist, one size fits, all model for managing its forests. Most of the forest in BC are public forests and they are managed under a system of private timber harvesting tenure rights held by forest corporations. A recent complication is a Supreme Court of Canada decision that confirms the concept of aboriginal title. It is not a title of ownership but a title that is a communal trust to sustain the land and its values for future generations. The title is similar to the BC Government's trustee or stewardship responsibilities over public forests. The title implies devolved responsibilities to First Nations. Michael Blackstock suggests development of a caretaker strategy for each biocultural diversity zone. This is a good idea and there is the need for an independent local steward or caretaker with the freedom to manage according to the environment of each zone.

However, the caretaker strategy or caretaker will need some institutional foundation or it will just float around as a bit of an amorphous concept in the present institutional framework of public forests with private timber harvesting tenure rights. Private timber harvesting rights was a convenient way for the BC Government to share forest management and timber revenues with the private sector. It represents a conflict of interest in the Government's trustee responsibilities to ensure that forest values are sustained for future generations. We have almost completed one forest rotation where revenue sharing was a boon to the forest industry and Government coffers, but the inter-generational asset base of the public forest has been eroded. It is not a good long term economic model to ensure the sustainability of forest dependent and aboriginal communities. We do not need to extend the inadequacy of the existing institutional arrangements by corrupting the sustainability requirements of aboriginal title with more revenue sharing.

The proposed biocultural diversity zones are very large areas and most will need several caretakers. If local forest trusts were the caretaker areas within the biocultural diversity zone and local forest trusts were audited and supported by a Provincial Forest Trust Assembly, the diversity zones could become boundaries for regional meetings of the Assembly. This would enable the local forest trust managers develop the caretaker strategies appropriate to each zone.

Sunday, September 14, 2014

Aboriginal Title may be corrupted by the BC Government and First Nations

Old growth tree near a summit considered sacred by aboriginal people

A Supreme Court decision in June 2014 granted Aboriginal title to the Tsilqot'in Nation. Since that time there has been much comment suggesting that the decision gives aboriginals increased power over resource development and land use.

British Columbia Premier Christy Clark has stated that the ruling can't be ignored signaling a need to make accommodations for aboriginal title.  What will become of aboriginal title when the BC Government and First Nations come to some accommodation?

Aboriginal title is being discussed frequently in the media without clarification that it is a very different kind of land title. When most of us think of land title, we think about a piece of land owned by an individual. It is a legal provision to protect ownership of land first developed by the Romans to prevent the big guy from taking land from the little guy. Aboriginal title has a different purpose. It is a communal title, not an individual title, designed to protect and sustain the use and benefits of the land for future generations of the community. It is a more advanced concept than individual ownership. It is a communal trust to sustain the land and its values for future generations.

Since technological prowess is now available, aboriginal title will require some institutional arrangements to sustain the land, its forests and values. This will require some forest and other professionals to manage the land to ensure sustainability for future generations.

The Assembly of First Nations are seeking recognition of aboriginal title and there seems to be little thought about the arrangements to ensure sustainability of the land for future generations. Revenue sharing from resource development seems to be the priority. Premier Christy Clark wants to use the supreme court ruling to work together with First Nations. Both parties seem to think that the ruling will take matters out of the courtrooms into new relationships through negotiations. The negotiations, it seems will be about the size of the cheque for revenue sharing.

Revenue sharing has already been a big corrupter of sustainability intentions in BC. Aboriginal title is a progressive communal sustainability title or trust concept. BC public forests were also intended as a societal trust for sustainable stewardship of most of the forest land in BC. The BC Government was supposed to be the trustee and would manage the forests for inter-generational economic and social benefits. The Forest Service was originally intended as the independent professional forest management institution for public forests. The BC Government decided to share forest management responsibilities with forest companies. Private rights to harvest timber were granted and the Government shared revenue from forest harvesting. This revenue sharing effort worked well for all concerned as forest companies gorged on BC's virgin timber. It has hit a few major bumps in the road now that the best virgin timber is long depleted. Revenue sharing from resource exploitation has not proved to be a good vehicle for sustainability.

First Nations want to join the BC Government is becoming bad trustees of BC's forests through the mechanism of revenue sharing. Most BC residents would like to see the prospects of First Nations people much improved. Unearned income revenue sharing from BC forests is not the best way to employ forests to service the needs of First Nations. First Nations and the rest of us will be best served if we have institutions that ensure sustainable stewardship of our forests. The BC Government and First Nations need to think about what kind of institution will ensure sustainable use of land and forests for the long term benefit of communities. This is an issue for all BC communities.

Aboriginal title is a communal trust to ensure the sustainability of a local area of land and forest. The BC Government already has this trust for all public forests but has not exercised its responsibilities to ensure sustainability. Aboriginal title is therefore little more than a devolution of responsibility. If responsibility for forests and land are devolved we need to ensure that there are good local or communal institutions to ensure sustainability. Local forest trusts with an elected board and professional forest management staff are an ideal institution. These could be applied to all communities, not just First Nations.

Local forest trusts would exercise sustainable stewardship responsibilities of local landscapes for benefit of communities. They would operate as businesses and promote sustainable economic use of timber and non timber products as well as nature based opportunities. Earned income will be the main economic benefit to communities. Depending on geography and population some local forest trusts would be entirely aboriginal, while others could involve a mix of aboriginal and other communities represented on a ward system. All forest trusts could promote forest employment for aboriginal people and provide for greater economic improvement of aboriginals than just aboriginal title areas alone.

A British Columbia Forest Trust Assembly governed by delegates from local forest trusts would audit and support local forest trusts to ensure that the ideals of inter-generational sustainability for the benefit of communities can be realized. This outcome is necessary for all communities. In British Columbia we can all benefit from the progressive concept of aboriginal title. We should not allow the BC Government and First Nations to corrupt this progressive opportunity with a backward concept of revenue sharing.