NATIONAL ABORIGINAL FORESTRY ASSOCIATION
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Aboriginal communities may be affected by forest certification in several ways:
Public participation in forest management planning: What status do Aboriginal people/communities have in the planning process and how are Aboriginal values incorporated into planning? Business/economic opportunities: Will certification hinder or promote Aboriginal participation? Forest management on Reserve land: Will First Nations1 (see footnote at end of document) choose to follow certification standards to improve forest management of Reserve forest lands? Assessment and monitoring: Will Aboriginal communities have a say in whether companies being certified are actually meeting standards?
Many forest companies in Canada will voluntarily follow certification processes which will require them to assure certification organizations that their wood supply is from sustainably managed forests. In turn, independent suppliers of wood to these companies will be required to also follow the certification process which either the forest company or harvesting contractor has adopted. Inability to meet the criteria for certification will mean that the forest company will refuse wood at the mill gate which does not come from sustainably managed forests.
Although no precise data exists with respect to Aboriginal businesses in the forest sector, NAFA estimates that there are 600 forest-based businesses generating approximately 10,000 man-years of employment. Approximately 50% of all Aboriginal businesses are involved with forest harvesting primarily as third party license holders or as contractors to large forest companies. These contractors may be logging both on and off Reserve.
According to the Canadian Forest Service, the productive forest lands on Canada's Indian Reserves total approximately 1.4 million hectares. Of the 603 First Nations with a Reserve land base, approximately 240 have forest areas in excess of 1,000 hectares. Timber harvesting on Reserve lands has declined in recent years due to the depletion of merchantable timber. Harvest levels for most Reserves do not exceed 2,400 cubic metres (1,000 cords) per year although there are exceptions. Presently, First Nations and their contractors now harvest timber from Reserve lands which is sold to a full range of forest companies. The value of wood coming off Reserve lands is unknown though it is estimated to be between $400-$600 million per year nationally. Since 1984, 250 First Nations have developed forest management plans for their forested lands. These plans are largely timber-oriented with allowable cuts determined on a sustained yield basis, that is, logging no more than the forest can produce continuously at a given intensity of management (Silvicultural Terms in Canada, 1992).
The vast majority of Aboriginal forest companies operate off Reserve in areas under the tenure of forest companies or management by the provinces. Across the country, the array of working arrangements with forest companies is quite broad with each province operating its tenure system on Crown land through a multitude of licensing processes. It is safe to conclude, however, that the instances where First Nations would be considered the forest manager are limited. Two exceptions are Tanizul Timber, a forest company of the Tl'azt'en First Nation in B.C., which holds a Tree Farm License administered by the Province of B.C. and Mistik Corporation, a joint venture company involving the Meadow Lake Tribal Council, which holds a Forest Management Licence Agreement in northern Saskatchewan administered by the Province of Saskatchewan.
Reserve land is held in trust by the federal government which has Constitutional authority for "Indians and Indian lands". Reserves are governed by the Indian Act . For forestry on Reserve lands, the only provisions in the Act are the Indian Timber Regulations which state that the Minister of Indian Affairs must issue permits for timber harvesting. There are no provisions for forest management or renewal in the Act.
First Nations could apply for certification of forest management on Reserve land if they have their own processing facility or if they are supplying wood (whether from on Reserve or off) to a processing facility off Reserve which is certified. A First Nation may also decide to make Reserve forest land part of a larger defined forest area. Such a cooperative venture might be negotiated with a province as forest manager, a forest company with a license in the area adjacent to the Reserve or with other First Nations or private woodlot owners. A First Nation's ability to determine its own course of action, though, is limited by the Indian Act and the requirement to have ministerial approval for any chosen course of action.
In a number of studies carried out in the past ten years, it has been concluded that most Indian Reserves are of insufficient size to support a viable forestry operation. Reserve lands have also been overexploited for the past 100 years or more resulting in the degradation of these forests. This degradation was a result of the lack of any forest management on Reserve lands and First Nations' peoples being excluded from access to resources off Reserve and therefore forced, usually by poverty, to rely heavily on the small area Reserve lands.
Consequently, the first question which will need to be addressed in looking at certification is the cost of implementing a sustainable forest management system relative to the value of timber that could be harvested. This will need to be a local decision based on cost-effectiveness, weighing the costs of implementing a sustainable forest management system against the sale of wood harvested under such a system. If costs are prohibitive for First Nations, then certification systems could actually serve to further exclude these communities from participating in forest management and operations.
In the development of the CSA SFM system, forest companies and other forest managers, such as woodlot owners, were considered. Aboriginal people and their issues were referred to in values identification and participation in planning. First Nations were not mentioned in the role of forest manager although the CSA Technical Committee did acknowledge that Reserve lands could be treated like woodlots.
There are a number of issues a First Nation would have to address when deciding to seek certification for Reserve land under the CSA SFM system.
Managing for Sustainability The CSA SFM System places the onus on the owner or manager for a DFA. In the case of Indian Reserve lands, title and jurisdictional responsibility is vested in the Federal Crown. Only the Federal Minister of Indian Affairs has the authority to issue permits to harvest timber pursuant to the Indian Act and Indian Timber Regulations. No doubt, First Nations would need to come to some arrangement with the Department of Indian Affairs to designate the DFA.
SFM Performance Framework The CSA Z808 document states that "values are a principle, standard, or quality considered worthwhile or desirable. In SFM, values relate to the environmental, economic, and social aspects of forests and their uses." The CCFM Criteria and Indicators provide general guidance in values identification but the CSA also stresses the identification of local values. With respect to Reserve lands, the values of First Nations could differ significantly from other communities.
SFM System Framework Once the issue of ownership or management responsibility of Reserve land is clarified, First Nations would have some flexibility in terms of expressing commitment. A resolution of the First Nation Council enunciating mission, principles and codes of practice would likely suffice.
Public participation could be achieved through consultation with the members of the First Nation and with non-Aboriginal people who may have an interest in the land or the affairs of the First Nation.
Existing forest management plans would need to be amended to incorporate the required elements of a SFM Plan. In this regard a major issue will arise, that of regulation and control. In developing the SFM Plan, a First Nation will need to specify how regulation will be exercised and how activities will be controlled. The lack of a forest management regulatory regime for Reserve lands could pose a dilemma.
Implementing the SFM Plan, a First Nation will need to dedicate resources and develop a system for ongoing data collection, measurement, accountability, annual reviews, etc.
SFM Registration AS with others seeking certification, First Nations will need to submit to an audit verifying compliance.
Traditional territories are those lands which have been and are currently being used by Aboriginal communities. Some of this land may be "Reserve" land (defined above), but much of it may also be "Crown" land. On some areas of Crown land, Aboriginal peoples negotiated treaties with the federal government ensuring protection of their way of life and a sharing of the natural resources on this land. In areas, where treaties were not negotiated, the Canadian Constitution and courts have recognized "Aboriginal rights," that is continued use of lands as was an Aboriginal people's custom (see Appendix 3, "Aboriginal Participation in Forest Management: Not Just Another Stakeholder'").
Both the CSA and the FSC contain clauses which require Aboriginal participation and the inclusion of Aboriginal values and recognise that Aboriginal peoples have particular rights to land and use of forest land which is different from other forest users.
Both the CSA and the FSC recognise the historical and legal rights of Aboriginal peoples. The full wording of the language on Aboriginal issues in these two processes is outlined in Section 3. The FSC in its Principle #3 recognizes "the legal and customary rights of indigenous peoples to own, use and manage their lands, territories, and resources." The CSA based its recognition of Aboriginal and treaty rights on the CCFM Criteria and Indicators. In that process, the Canadian Council of Forest Ministers refused to grant respect and provision for Aboriginal and treaty rights a special place as a separate criterion and instead relegated it to an indicator under Criterion 6. By following the CCFM criteria and indicators, the CSA also gave Aboriginal rights a lesser place. Under the CSA process, it is also likely that indicators will be dropped or adapted after public participation and this may have an impact on the weight given to Aboriginal issues, especially since in most areas Aboriginal peoples are in the minority.
Indicator 6.1 of the CCFM's Criterion 6, Accepting Society's Responsibility for Sustainable Development, states:
Existing Aboriginal and treaty rights are recognized and affirmed in the Canadian Constitution. In order to ensure that duly established Aboriginal and treaty rights are respected, they should be considered in the context of sustainable forest management.
Various levels of government in Canada will aim to meet their legal obligations with respect to duly established Aboriginal and treaty rights in accordance with policy and legislation in their respective jurisdictions. When discussed in relation to renewable resources, such Aboriginal and treaty rights generally related to hunting, fishing and trapping, and in some cases, gathering.
Forest management and planning processes should be designed, as far as possible, with input from involved Aboriginal communities, as well as other affected groups and communities. Final plans should reflect the options considered and actions taken with respect to duly established Aboriginal and treaty rights.
With both the CSA and FSC processes, auditors measuring whether a forest manager has complied with standards will determine whether or not Aboriginal and Treaty rights have been identified and respected in forest management plans. If an Aboriginal community thinks that their rights have not been given serious attention in the forest management planning process, then they may challenge the certification.
The CSA has developed its SFM System on the basis that Aboriginal people need to and will participate in public participation and planning processes controlled by other forest owners and managers. The FSC's Canadian standards when they are developed will no doubt include Aboriginal participation based on their Principle #3 which states that indigenous peoples will control or delegate control of forest management on their territories. It will be up to Aboriginal communities to participate in these process to ensure that standards are being followed at the local level.
Both the CSA and the FSC require that Aboriginal values be given consideration in forest management planning. Both recognize that Aboriginal peoples have a special knowledge concerning forest sustainability based on their traditional practices and experiences ("traditional knowledge") and that this knowledge should be used in planning. The FSC goes further to recommend that Aboriginal peoples should be compensated for this knowledge and that "this compensation shall be formally agreed upon with their free and informed consent before forest operations commence." The CSA states that Aboriginal peoples must be given "an opportunity to participate in the public consultation process and input their special knowledge to the process of setting values, criteria, indicators and objectives."
Both the CSA and FSC require the forest manager applying for certification to follow the legislative and regulatory requirements established by governments. The CSA states that "the forest manager or owner must comply with all applicable legislation and other requirements that relate to ownership, tenures, and rights that apply to the DFA." The FSC's Principle #1 also requires that forest management shall respect all applicable laws of the country in which they occur...." These clauses mean that any existing policy concerning Aboriginal people and their involvement in natural resource management would become an essential element of the certification of sustainable forest management. Therefore, for example, Condition #77 of the Class Environmental Assessment for Timber Management on Crown Lands in Ontario which requires the Ontario Ministry of Natural Resources to provide more opportunities in the forest sector to Aboriginal communities and the B.C. Protection of Aboriginal Rights Policy would have to be followed under these certification systems. This will be an advantage for Aboriginal communities in those provinces which have stronger regulations supporting Aboriginal and treaty rights and Aboriginal participation in forest management.
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