Forests are an integral part of First Nations culture, economy and spirituality. For more than a century First Nations across Canada have watched the depletion of forests in their traditional territories, while having limited opportunities to participate in forestry jobs and business development.
Before the treaty process was established in 1992 many First Nations had no choice but to seek court injunctions or participate in blockades to prevent logging in their traditional territories. The treaty process provides a constructive means to address First Nation interests in forestry.
Treaties may provide First Nations with a greater role in the management and commercial use of forests within their traditional territories.
Concerns have been raised that transferring land ownership and resource control to First Nations will reduce timber harvesting and processing on settlement lands and eliminate non-aboriginal jobs in forestry. However, organizations like the Council of Forest Industries, Interfor and Weyerhaeuser agree that providing a clear definition of forestry ownership, roles and responsibilities will benefit all British Columbians.
Studies into the impacts of aboriginal land claims settlements elsewhere have concluded that because of this increased certainty, resource development improved or stayed the same following settlements. Furthermore, some retail organizations, like Home Depot, require all lumber products to be certified under a scheme that ensures First Nations' legal rights to land have been "recognized and respected".
The Duty to Consult
Two landmark rulings in the BC Court of Appeal, Haida and Taku, confirm the provincial government must properly consult with and accommodate the interests of First Nations, pre-treaty, before proceeding with development on their traditional territories.
The court held that "there is a reasonable possibility that the Haida will be able to establish aboriginal title to at least some parts of the coastal and inland areas of Haida Gwaii as well as an aboriginal right to harvest red cedar trees from the various old-growth forests on Haida Gwaii."
The duty to consult, deriving from the "trust-like" relationship between First Nations and the Crown, exists when a First Nation asserts title through entering the treaty process and continues until after a treaty is signed or aboriginal rights and title are defined through the courts. The extent of the duty depends on the strength of the First Nation's connection to the land. The court concluded the Haida would have a potentially strong legal claim to aboriginal rights and title.
Interim Measures Agreements
The court made it clear that interim processes, either through the courts or negotiated agreements, can temporarily reconcile competing interests until there is final reconciliation through a treaty or decision at trial. This reaffirms the Report of the BC Claims Task Force, which stated in 1991 that "to protect interests prior to the beginning of negotiations, the federal and provincial governments must provide notice to First Nations of proposed developments in their traditional territories and, where required, initiate negotiations for an interim measures agreement.
Many First Nations have already signed interim measures agreements on forestry-related matters, which provide a greater degree of stability for investment and development while treaty negotiations continue. Some of these agreements have spurred joint venture and training opportunities between forest companies and First Nations. For example, Kaska member nation Kwadacha Band (Prince George) has a forestry training program and a joint venture agreement underway with forestry firm Abitibi Consolidated. An economic measures agreement signed with Ditidaht First Nation and Pacheedaht Band this January will allow the nations to pursue a timber sale licence that would yield 300,000 cubic metres of wood over 10 years and create up to 20 new jobs. All timber would come out of unused timber from previous year's allowable cuts from TimberWest. Ditidaht already operates a mill employing 28 people in Nitinat Lake Village. In addition to assisting with the licence, the agreement will enable Ditidaht and Pacheedaht to create training programs for members and explore joint venture opportunities.
The Nisga'a Treaty provided a five-year transition period for existing forest licensees. During this period, control of timber harvesting and management on Nisga'a Lands shifted from British Columbia to Nisga'a Lisms Government. In May 2005 the NLG's Forest Resources Department took full control of forest resources.
Under the transition agreement, forest companies were licensed to harvest specified volumes of timber each year and a percentage of volume had to be contracted to Nisga'a citizens to harvest. During 2004/5, a total of 20, 352 cubic metres of wood was harvested under the transition licenses, much of it by the community-owned Laxgalt'sap Forest Corporation. The target of 70 percent Nisga'a contractors was exceeded during the fourth year of the treaty.