Indigenous Rights and Forest Certification

1
Indigenous Rights and Forest Certification

• Chris Tollefson
• Faculty of Law
• University of Victoria

2
Structure of Talk

• Globally growing recognition of Indigenous
  peoples indigenous rights
• The Canadian context forests and First Nations
• B.C. the current legal political stalemate
  over the First Nation land question
• The FSC-BC Regional Std a vehicle for promoting
  sustainable forestry while recognizing and
  protecting FN rights?
• The Boreal Challenge ahead

3
The Global Context Forestry and Poverty

• The worlds poor, especially indigenous peoples,
  are heavily dependent on forest resources 90 of
  the worlds poorest 1.2 Billion people rely for
  their livelihood on forest resources
• Growing NGO pressure to move beyond 1980/90s
  preoccupation with forest conservation towards
  broader reforms that focus on people as well as
  trees
• Adopting major targets for forest conservation
  and mgmt are not enough the overall challenge is
  to create a linkage to the Banks mission for
  poverty alleviation and sustainable growth and
  development World Bank Forest Policy Review
  (1999)
• .

4
Global Context Indigenous Peoples

• 300 million Indigenous people worldwide
• Includes First Nations, native and aboriginal
  peoples in the Americas Pacific tribal and
  minority nationalities in Asia ethnic minorities
  in Africa

5
Defining Characteristics of Indigenous Peoples

• Close attachment to ancestral territories and
  natural resources
• An indigenous language, distinct from national
  language
• Existence of customary social and political
  institutions
• Primarily subsistence production economy

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Indigenous Rights

• In emerging domestic intl law these include
• Ownership, control over traditional territories,
  lands and resources
• Exercise of customary law
• Self government
• Control over, compensation for use of, their
  traditional knowledge

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Indigenous People Forests

• Traditional lands and territories of Indigenous
  peoples include large areas of tropical,
  temperate and boreal forests
• Globally, Indigenous peoples have received few
  benefits from industrial forestry while suffering
  a variety of negative impacts associated with
  loss of control over the resource
• These include forced resettlement adverse
  effects on social and cultural practices
  destruction of governance systems traditional
  economies

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Forestry Certification Indigenous Peoples

• Growing interest in certification as means of
  tackling forestry/poverty challenge
• FSC seen as most promising certification system
• Substance requires recognition respect for all
  existing aboriginal rights including those
  recognized in intl law
• Process institutional design (including
  Canadian FN chamber) high levels of indigenous
  participation

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FSC Principle 3

• The legal and customary rights of indigenous
  peoples to own, use and manage their lands,
  territories and resources shall be recognized and
  respected
• No forest development on their lands/territories
  unless control delegated with free and informed
  consent forestry shall not threaten or diminish
  resources or tenure rights of indigenous peoples
• Sites of special cultural, ecological, economic
  and religious significance to indigenous peoples
  shall be identified and protected
• Indigenous peoples shall be compensated for
  application of their traditional knowledge

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Forestry in Canada

• Canada has
• 10 of the worlds forests
• 20 of the worlds temperate rainforest
• 35 of the worlds boreal forest (85 of which is
  unaccessed)
• Canada is
• the worlds leading exporter of forest products
  (19 of world total)
• 79 of this is exported to the US 8 and 7 to
  EU and Japan respectively

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Indigenous Peoples of Canada

• Indigenous population is approaching one
  million is the fastest growing demographic
• historically, FN have received little benefit
  from development of the forest resource
• Most early treaties did not include forestry
  rights pre-1990s large areas not covered by
  treaties
• for most of our history provinces licensed
  forestry operations on Crown lands without
  consultation or consent of affected FNs

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Early treaties (to 1923)
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Modern Treaties

• Prior to 1970s, govts took position that
  aboriginal rights and title existed at pleasure
  of Crown land-claim organizing banned from 1927
  until 1951
• Calder (1973) recognized inherent nature of
  aboriginal rights and title led to growing
  pressure to negotiate over un-treatied lands
• 1982 constitutional entrenchment of existing
  aboriginal rights and title
• 1990s comprehensive claim settlements in Quebec,
  Labrador and the North spurred on by litigation
• But little headway made in British Columbia

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Aboriginal Rights in B.C.

• More comprehensive land claims pending in BC than
  in rest of Canada combined
• B.C. Treaty Commission created in 1993
• 49 First Nations in 40 sets of treaty
  negotiations
• Only one in final stage

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BC Govt Policy on First Nations Forestry

• Will consult with First Nations but does not
  recognize aboriginal rights that have not been
  judicially affirmed
• Only weak interim protection available for
  lands/rights claims pending negotiation
• First Nations must choose to litigate or
  negotiate
• New Govt intends to hold a province-wide
  referenda on future of treaty process

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The Stalemate

• Prov Govt business as usual
• First Nations want greater share in forest
  resource but distrust industrial forestry
  perceive that as treaty negotiations crawl along,
  their legacy is being lost
• Forest Sector severely impacted by
  legal/political uncertainty and tariffs
  concerned about protests, boycotts and lawsuits

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The FSC-BC Regional Standard

• Draft 1 completed May 1999 Draft 2 released May
  2001 Final Draft being written
• Significant First Nations support for Draft 2
• P3 two goals
• - to provide base level protection of aboriginal
  rights
• - to enhance ability of FN to build new
  relationships with local forest industries

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Proposed P-3 standard under Draft 2

• Recognition and respect
• Protocol agreement

Joint Management
Consultation
Approval Sign-Off
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Assessing the FSC-BC P-3 Standard

• Unanimously recommended by four chamber experts
  team
• Strong support from FN groups including National
  Aboriginal Forestry Assoc. others
• Expected to be in force by 2002
• Influential in promoting interest in national
  boreal standard

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The Boreal Challenge
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Developing a National Boreal Standard

• 75 of Canadas forests are boreal this
  constitutes 35 of the global total
• Under strong resource development pressure
  (forestry, oil and gas, mining)
• Forestry in boreal areas is relatively new slow
  growth rates uncertain regeneration potential
• The homeland of 85 of Canadas First Nations
  supports traditional subsistence economies

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Developing a FSC-Canada National Boreal standard

• Boreal forests cut across 7 provinces and 3
  territories
• Goal a Std by 2003

• OPTIONS
• Separate stds based on political jurisdictions
• One national standard
• A FN-led process
• A process that subdivides the boreal
  bio-physically

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Concluding thoughts I

• P-3 standard setting processes
• create political and legal space for
  relationships to be re-negotiated
• Assist in creating a fair bargaining relationship
  between FNs and forest companies
• Allow parties flexibility in tailoring solutions
  to local circumstances

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Concluding thoughts II

• But challenges and issues remain
• Regional stds are not a substitute for
  bottom-line, outcome-based govt regulation
• Many FN communities lack the capacity to take
  advantage of joint venture opportunities
• Difficult issues relating to conflicting/competing
  FN claims loom
• Regional Stds should not be an excuse for govts
  to retreat from treaty negotiations

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Selected Sources

• B.C. Treaty Commission, Annual Report 2001
• Marcus Colchester, Indigenous Peoples and the
  new Global Vision on Forests (World Bank
  Forest Policy Working Paper, 1999) linked to
  World Bank website
• Federal Indian Claims Commission
  www.indianclaims.ca
• Federal Standing Committee on Natural Resources,
  Forest Management Practices in Canada as an
  International Trade Issue Final Report (June
  2000)
• FERN, Behind the Logo An Environmental and
  Social Assessment of forest certification
  schemes (2001) www.fern.org
• FSC Canada www.fsccanada.org
• FSC International www.fscoax.org
• Patrick Macklem, Indigenous Difference and the
  Constitution of Canada (U of T Press, 2001)
• Christopher McKee, Treaty Talks in B.C. (2nd ed)
  (UBC Press, 2000)
• Robert Muckle, The First Nations of B.C. (UBC
  Press, 1999)
• National Aboriginal Forestry Association
  www.nafa.org
• Proceedings Indigenous Peoples and FSC
  Certification (Joint FSC-NAFA Conference
  Ottawa, 2001) linked to FSC Canada website
• Mark Stevenson and Albert Peeling, Legal
  Memoranda re FSC Principle 3 (unpublished,
  2001) linked to FSC Canada website
• Leonard Rotman, Parallel Paths Fiduciary
  Doctrine and the Crown-Native Relationship in
  Canada (U of T Press, 1996)
• World Bank, A Revised Forest Strategy for the
  World Bank Group (2001)