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NATIONAL ABORIGINAL FORESTRY ASSOCIATION |
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An intervention submitted to the Royal Commission on Aboriginal Peoples by the National Aboriginal Forestry Association
Ottawa, Ontario
July, 1993
In this section NAFA presents a summary of provincial policies for allocating the harvest of forest land resources. We highlight those provisions and policies relating to forests, wildlife and plants that are particularly pertinent to Aboriginal peoples' interests. A more complete review of legislation dealing with the licensing of renewable resources in each province may be found in Mactavish (1989) and a review of federal and provincial forest legislation has been done by Bayne (1990).
The provinces offer a range of timber access opportunities tailored to the needs of the forest industry. The most significant category is designed for the larger integrated forest industries that operate pulp and paper and/or major sawmills. In recognition of the multimillion dollar investments required for plant and equipment, these licences provide for annual harvests of large volumes over periods of 20 - 25 years. All have renewable features, giving the licensee a virtually guaranteed supply of timber. In most cases the licensee receives exclusive timber harvesting rights to an area specified in the licence. In some instances, Quebec for example, several firms may hold privileges over the same area, each allocated rights to certain species. In return for timber harvesting rights, the licensees in all provinces are required to meet annual harvest quotas and apply reforestation, silvicultural and environmental measures to ensure forests are managed on a sustained yield basis. The applicant is also required to own and operate a wood processing facility such as a sawmill or pulp mill. Provincial control of forest management is maintained through the licensee's obligation to submit long range forest management plans and shorter term working plans for approval. Depending on the province, these large forest holdings are called tree farm licences, forest management agreements, forest management licence agreements, or timber supply and forest management agreements.
The provinces also offer timber licensing programs more suitable for smaller firms. Renewable licences for 10 and even 20-year periods are awarded through a competitive bidding process. In most cases these licences are also restricted to operators of sawmills or other manufacturing facilities.
The provinces also provide for very short term timber permits to satisfy domestic and other small timber needs, such as fuelwood, poles, and building materials.
British Columbia is the only province that has made specific legislative provision for access to Crown timber by Indian bands. The Forest Act provides for woodlot licences of up to 400 hectares of Crown land for terms of up to 15 years to persons or "a band as defined by the the Indian Act (Canada)" that do not operate wood processing facilities. At least 13 First Nations in B.C. have taken advantage of this provision, combining the forested portion of their reserves with the leased Crown land to create opportunities to participate in the forest industry.
For generations, wild rice has been an important crop for Aboriginal people in regions of Ontario, Manitoba, and northern Saskatchewan. Its development by Aboriginal firms as a commercial crop, with exports to Europe, Japan and the United States, has been complicated in recent years by competition from commercial farming of the plant in California.
Licences to harvest wild rice are required in all three provinces. In both Saskatchewan and Manitoba, ten-year licences may be obtained after successful operation of one-year permits. In Ontario, only single year permits are provided for, although there has been some experimenting with longer terms. The longer tenures are, of course, important to entrepreneurs seeking to develop commercial enterprises.
Both Saskatchewan and Manitoba employ licensing measures that are helpful to Aboriginal rice harvesters. In northern Saskatchewan a permit applicant must have been resident of the region for at least 15 years or one half his or her lifetime, and holders of trapping licences may acquire a rice permit for the area covered by the trapline. Both these measures tend to favour Aboriginal people. In Manitoba, the Wild Rice Act carries the specific proviso that it be "administered so as not to abrogate or derogate any aboriginal or treaty rights an Indian band may have relating to wild rice". Also in Manitoba, certain areas may be designated for hand picking without a permit and in the Whiteshell area special provisions are made to allow only hand picking for several days at the beginning of each season before mechanical harvesting is permitted.
In the 1980's Manitoba went a step further in trying to foster Aboriginal rice harvesters by giving Indian bands priority licensing to harvest rice in northern lakes where it had been artificially introduced. The province had to drop this priority system when it was successfully challenged in court.
New licensing of wild rice harvesting in the Treaty 3 area of Ontario has been under a moratorium since 1978 when it became known that the original treaty negotiations may have included exclusive rights for the Indians. This moratorium remains in place pending determination of which lakes may have been covered by the treaty discussions.
No province regulates the harvest of berries.
Aboriginal peoples' access to wildlife resources varies somewhat from province to province, depending on treaty provisions, or the lack thereof. Recent court decisions, including Sparrow and Delgamuukw have had a positive effect, especially in British Columbia, but also in other provinces where it is now confirmed that rights of treaty Indians come second only to necessary conservation measures.
In March, 1993, British Columbia published new "Interim Guidelines on Aboriginal Use of Fish and Wildlife" to guide activities of wildlife officials and to serve as a basis for consultations with First Nations. The province hopes to develop cooperative wildlife planning and management processes with each First Nation for its traditional territory. In the interim, First Nation non-commercial hunting and fishing for life sustaining, cultural and spiritual uses may occur during all seasons where there are no conservation concerns. Where conservation measures are necessary, First Nations will be consulted, issued permits and given priority in harvest calculations. In return, First Nations will be asked to provide harvest data to the province for planning purposes. Restrictions will apply to species designated as threatened or endangered under the Wildlife Act, and to any species in areas where there is no open hunting season at any time of year for conservation or public safety reasons. The new policy guidelines also include a commitment by the province to consult with individual First Nations whenever a resource development activity, such as logging, is planned for their traditional territory.
While status Indians are exempt from trapping licence requirements in British Columbia, many have obtained licences to ensure they have exclusive rights to their trapping areas. Recent amendment to the Wildlife Act permits an amalgamation of licences in a First Nation's traditional area. This will allow a First Nation to allocate the available harvest among its trappers and will facilitate cooperative management programs with the province.
Treaty provisions covering the three prairie provinces allow all season hunting, trapping and fishing for food on unoccupied Crown land and on private lands with the agreement of the occupant. First Nation commercial trappers are required to be licensed.
Traplines in Alberta are issued to individuals and provincial policy is to encourage a First Nation to find a successor when one of its members wishes to sell his trapline. The northern portion of Saskatchewan is divided into fur conservation areas within which the Aboriginal people themselves apportion trapping areas. Manitoba employs interrelated local, regional and a provincial trappers association to obtain advice on fur management questions, including the allocation of traplines. Aboriginal people have strong representation in these organizations.
The prairie provinces are attempting to address wildlife management difficulties through cooperative management agreements with individual First Nations. While retaining overall responsibility for resource management, the provinces are seeking agreements that will recognize treaty rights of Indians, help develop mutual understanding and trust, provide for data collection and sustained-yield management advice by the Aboriginal communities and provide for some delegation of responsibilities and employment opportunities in game management. Several agreements are described below to exemplify the cooperative management regime that is gradually evolving.
In Ontario, the Robinson-Superior Treaties and Treaties Nos. 3, 5, and 9 provide for First Nation hunting and fishing on unoccupied Crown lands. Although Treaty No. 9 is the only one that specifically mentioned trapping, the province considers trapping to be included in the provision for hunting in the other treaties. The Game and Fish Act are not applied to First Nations' hunters and trappers these treaty areas, except for provisions dealing with public safety. However, most First Nation trappers do avail themselves of the exclusive use provisions of trapping licences.
Ontario considers those provincial game preserves and parks where public hunting is prohibited to be occupied Crown lands and therefore not open to treaty right use. Exceptions include the Polar Bear and Winisk Parks in the Treaty 9 area, where the First Nations continue to enjoy hunting and trapping rights. Through a 1991 interim agreement relating to land claim negotiations, Ontario extended special moose and deer hunting privileges in Algonquin Park to the Algonquins of Golden Lake First Nation.
In Quebec, the First Nations in the area covered by the James Bay and Northern Quebec Agreement have extensive exclusive hunting and trapping rights as well as advisory roles in wildlife management. South of the James Bay Agreement area, but north of the St. Lawrence River, the province has established a number of fairly large areas, referred to as Beaver Reserves, where Aboriginal people have all- season hunting and fishing rights and exclusive trapping rights. Those Aboriginal communities that do not have portions of Beaver Reserves for their use have obtained exclusive trapping and fishing rights on areas near their reserves. Forest industry intrusions in some Beaver Reserves and in the James Bay region have caused problems for Aboriginal communities wishing to protect their traditional lifestyles. Efforts of the Algonquins of BarriËre Lake and the Grand Council of the Cree are discussed below. There appear to be no special hunting and trapping arrangements for communities south of the St. Lawrence.
Aboriginal peoples access to wildlife resources in the Maritime provinces has been uncertain since the 1985 Supreme Court of Canada decision in Simon. In that decision, the Court ruled that a 1752 peace agreement between the Micmacs and the British constituted a treaty which confirmed the right of the Micmac to live and hunt as previously. At the present time the Micmacs in Nova Scotia arrange their own moose hunt annually, just prior to the regular hunting season. In New Brunswick and Prince Edward Island all Crown land is considered to be occupied and First Nation persons are supposed to avail themselves of hunting and trapping licences. There are no registered trapline systems in the Maritimes. Aboriginal people in Labrador continue to live off the land in their traditional ways, while those on the Island of Newfoundland are expected to follow provincial regulations respecting wildlife.
The migratory bird conservation measures under the federal Migratory Bird Convention Act apply to Aboriginal peoples in all provinces.
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