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.

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