Course:CONS370/2019/Comparing and Contrasting Aboriginal Forestry Laws and Regulations in Canada's British Columbia and China's GuiZhou Province
This case study examines the laws and regulations regarding Aboriginal Forestry in two different locations: the GuiZhou Province of China, as well as the province of British Columbia in Canada. In each province, the Indigenous communities experience a unique relationship to their natural environment, and therefore hold unique vantage points within the context of how their native forests are managed - and yet in both provinces, we see a lack of Indigenous representation in their current forestry management schemes. We look into the forestry management systems of each province, how the Aboriginal peoples are (or are not) involved, and our recommendations for each case.
In China, the majority of the people belongs to the Han ethnicity; along with the Han ethnicity, China also recognizes 55 other minority ethnic groups. These 55 minority ethnic groups have a collective term called the Shao Shu Min Zu, and they make up 8.4% of the total population in China (International Work Group for Indigenous Affairs, n.d.). Many of the Shao Shu Min Zu live in forested areas, and have relied on the resources provided by the forest to generate income for their family for centuries. A few of these forests are called “Feng Shui Woodlands” by both the locals and the government officials (Cheng and Hui, 2018). A close attachment to the area results from the close relationship between the locals and the “Feng Shui Woodlands”.
“Feng Shui” means “wind and water”, it is an ancient system that denotes the most favorable locations and designs for constructing a town, village, house, tomb and other components of life (Coggins, 2017). The layout of those components ultimately affect the flow, and generation of “chi”--a form of life-generating and sustaining energy. In addition to affecting the flow of “chi”, having good “feng shui” also implies good fortune for the person. Thus, many towns were laid out according to the fengshui-ist prior to construction. In terms of forestry. a forest with the term “Feng Shui” attached to it implies that this piece of forest can improve the local “feng shui” and is considered a sacred place by the locals (Coggins, 2017).
The population of British Columbia (B.C.), like the rest of Canada, is made up of people from a large mix of different ethnicities and cultural backgrounds. The original people who resided on this land before settler colonialism, and who live today on these traditional, unceded lands are the First Nations peoples. One of the most prominent ethnic divides in British Columbia has been the relationship between First Nations peoples and European colonial settlers. That relationship has improved in recent decades but fundamental differences continue to divide the two sides. The Government of Canada’s website (2019) says that in B.C., there are 198 First Nations communities that exist today, and their ancestral territories cover the entirety of the province. The Government of B.C. released a document in 2003 which claimed forest lands cover roughly two-thirds of the land area, covering 60 of the 95 million hectares in the province. Due to the deep historical connection to this forest-covered land, First Nations communities have an intrinsic relationship with the natural environment that other ethnicities may not fully understand. Peggy Smith (1995, insert page number after quoted text), an Aboriginal Forester, discusses this: “Aboriginal people have a unique relationship with the land, a relationship that … provides the basis of economic, cultural, and political activity in Aboriginal communities.” The arrival of European capitalist colonists brought about not only a change in the political landscape of British Columbia, but also to the physical, natural landscape. McGregor (2011, insert page number after quoted text) explains this transformation well when he says “the dominant form of human interaction with the forest thus rapidly shifted from systems of Aboriginal stewardship to heavily timber-biased “management” as practiced by Europeans.” Natural resource ownership and use, of forests in particular, has been the root of the problems between the First Nations-settler relationship. In this case study, we will examine the historical and current laws and regulations that determine who has access to forests in B.C. and GuiZhou, China, how they are administered and governed, and what it means to the First Nations peoples of this province.
Tenure arrangements/Administrative arrangements
Similar to the Aboriginal Forests in Canada, China has created numerous laws and regulations surrounding the management, protection and development of these specialty forests such as the “Feng Shui Woodlands”. These laws and regulations are created, enforced and updated under the National Forest and Grassland Administration (NFGA) & The National Park Administration. Below is a list of laws and regulations created by NFGA and the National Park Administration:
- The Forest Law
- The Wildlife Protection law
- The Law of Preventing and Combating Desertification and Sandification
- The Seeds Law
- Land Administration Law of the People’s Republic of China
(NFGA and National Park Administration, 2014b).
The “Feng Shui Forests/Woodlands” of China are under the strict protection and regulation of the NFGA. In this case study, the main focus will be in the Forest Law and the Law of Preventing and Combating Desertification and Sandification.
The Forest Law
The Forest Law was first adopted on September 20, 1984 after the 7th Meeting of the Standing Committee of the Sixth National People's Congress and includes regulations outlining the management, planning, legality, protection, administrative activities, production, and supplementary information.
Within the Forest Law, there are five categories of forests, each with a different purpose to serve such as erosion prevention, production of forest timber products, fuel production and many more. In the list below are the definition for each of the forest categories as well as the purpose they serve to the Chinese Government:
- Shelter forests: these forests, trees and shrubberies have the main purpose of protection. They protect the area where water supply is conserved, and act as a checkmark for soil erosion, for windbreak and sand-fixation, also for the protection of farmland and pasture as well as the protection of embankments and roads;
- Timber forests: the trees in those type of forests are primarily used for timber production, bamboo forest is also categorized as timber forest and is used mainly for bamboo timber production;
- Economic forests: economic forests are used for producing products for human consumption or for primary ingredients for additional processing, products such as fruits, edible oil, beverage ingredients, condiments, industrial raw material and medicinal materials are produced in these type of forests;
- Firewood forests: these type of forest is solely used for the purpose of fuel production; and
- Forests for special uses: these type of forests and its trees are used for the purpose of national defence, environmental protection and scientific experimentation. They include forests for national defence, experimental forests, seed forests, environmental protection forests, scenic forests, the trees at the scenic spots, historical sites and places of historic significance in the Chinese revolution, and forests belonging to nature reserves.
(NFGA, 2014a and b)
The Forest Law also outlines regulation and rules for import and export of timber products, actions and plans for forest conservation and fire prevention. In addition to regulation in regards to forest product export and import; the Forest Law of China also outlines consequences for any violation against the Forest Law (NFGA, 2014a and b). To date, government representatives, professional researchers and scientists as well as the local Shao Shu Min Zu are collaborating together to better manage the forests so this limited resource can be sustained for the future generations. In the aspect of “Feng Shui Forests”, they fall under the category of “forests for special use” because they are a part of nature reserves and thus are valued and strictly protected by the locals. Furthermore, being a type of forest for special use, Feng Shui Forests are protected from being logged unless it is for the purpose of cultivation or regeneration of trees (NFGA and National Park Administration, 2014 a and b). Unfortunately, due to increasing population density in China, Feng Shui Forests now face devastating threats imposed by economic development, urbanization and pollution (Chen et al., 2018).
In the aspect of the power devolved to local governments, the federal government of China is starting to give more power to the local municipality government in terms of managing the forests. Local government officials are responsible for allocating logging areas in State forests as well as a harvesting quota to individual forest land owners. The local government is also responsible for settling disputes between forest owners as well as being the first responder to any disasters that occur in a forest of their location (NFGA & National Park Administration, 2014b). As for the local forest owners and the inhabitants of the area, there was a large devolution in tenure from collective ownership to individual ownership of forested land in [insert date and policy here] (Qin, 2013). Although this shift gave the people of the villages and counties more power, there is still a need for further studies in this area as this change was effected 30 years ago, close to the “opening and reforming” period of the Chinese government (Qin, 2013).
The Law of Preventing and Combating Desertification and Sandification
This law outlines the legal responsibility of the local government and the people to maintaining the forest and actions to prevent and combat desertification and sandification of the area they live in. The State government is responsible for the planning, and implementing the strategies for desertification prevention for the whole nation while the provincial and municipal government agencies and organizations are responsible for planning, implementing and revising the desertification prevention of the region they belong to (NFGA, 2014b). The local government and its department of forestry are responsible for outlining the portion of land given to the building of an anti-wind and sand fixation forests as well as low-lying shrubs so to prevent the sandification of the area and the erosion of the soil to protect the forest. Forest owners as well as the government officials share the responsibility of sustaining the forest for future generation as the amount of forest allowed for timber production and other usage are dwindling in China.
British Columbia’s forests are separated between Crown (publicly-owned) lands, and private lands. Based on a provincial government document entitled ‘Forest Governance in British Columbia’ (2012), 95% of B.C.’s forests are Crown land, with the remaining 5% being considered private land. The priority of public forestry operations has been to involve British Columbians in “community-based strategic land and resource management planning” (Government of B.C., 2012), whereas private operations can be assumed to prioritize timber production and economic goals. There are slight differences in governance between public and private forest management, but the following acts are the main source of regulation for both (it is important to note that these are not the only forestry-related acts, but they are the most relevant to this case study):
- Forest Act (1996)
- Ecological Reserve Act (1996)
- Forest and Range Practices Act† (2002)
†only applies to Crown forest land
In addition to these laws, private management operations must also comply with:
- Private Managed Forest Land Act (2003)
These legislations are administered by the Ministry of Forests, Lands and Natural Resource Operations (FLNRO).
Private forests also differ in governance from public forests in that they may have to comply with federal laws/regulations enforced by Environment Canada as well as Fisheries & Oceans Canada (Government of B.C., 2012). The Private Managed Forest Land Act established an independent provincial agency entitled The Private Managed Forest Land Council, which administers the Act to private forestry operations.
Forest Act (1996)
This act essentially entitles the provincial government to have final authority over management and governance of Crown forest land in British Columbia. It also serves as a regulatory body for private forestry operations. This legislation is and has been the main source of regulation to determine forestry management practices in British Columbia since its establishment in 1996. The act applies more heavily to public forest lands, with extensive regulations including (but not limited to):
- Annual allowable cut
- Timber sales
- Community tenures
- First Nations tenures
- Forest licensing
- Manufactured forest products
- Timber marketing and transportation
(Government of B.C., 2012)
The only regulation that the Forest Act enforces on private forestry operations is:
- Timber marketing and transportation
The act was reviewed in 2005, and then again in 2014, both times claiming that the area-based allowable annual cut, the adapting cut control for provisions respecting First Nations woodland licenses, and the regulation making power for First Nations woodland licenses may all be repealed, and that the entire act may be amended (but neither have actually occurred) (B.C. Laws, 2019).
Ecological Reserve Act (1996)
The purpose of this act is “to reserve Crown land for ecological purposes, including for scientific research, areas where rare or endangered native plants and animals in their natural habitats may be reserved,” as well as “areas that contain unique and rare examples of botanical, zoological, or geological phenomena” (B.C. Laws, 2019). This act applies to forestry management in that the government, with council from First Nations representatives, worked to determine these geographic areas within the province that are “off-limits” to any forestry operation, public or private. This therefore limits the amount of potential forestry that could occur in the province, ensuring the long-term protection of culturally valuable ecological areas.
Forest and Range Practices Act (2002)
This legislation “outlines how all forest and range practices and resource-based activities are to be conducted on Crown land in B.C., while ensuring protection of everything in and on them, such as plants, animals and ecosystems” (Government of B.C., 2019). This act dives deep into the details of forestry operations, enforcing specific requirements for things such as industrial roads, operation site plans, woodlot license plans, forest health, range use plan for grazing, invasive plants, etc. (B.C. Laws, 2017). Basically, all forestry operation plans, in high detail, need to be approved by the provincial government before operations can commence, and before the government can approve any plan, they are required under federal law to invite and consider public and First Nations opinions and concerns regarding the operation in question. Private Managed Forest Land Act (2003)
The purpose of this act is to establish the enforcing body, the Private Managed Forest Land Council (Managed Forest Council for short), to establish objectives for soil conservation, water quality, fish habitat, critical wildlife habitat, and reforestation, as well as to provide procedures for private managed forest land application, withdrawal of management commitment, exit fees, annual declarations, and local government restrictions with respect to land uses (Managed Forest Council, 2019). The purpose of the council is to “encourage management practices on private managed forest land, taking into account the social, environmental and economic benefits of those practices” (Government of B.C., 2019). The council is composed of two members appointed by the provincial government, two members elected by private managed forest landowners and one chair who is jointly appointed by the other four council members (Managed Forest Council, 2019).
Affected Stakeholders/Interested Outside Stakeholders
Demographics of Guizhou Province
Name of Country: China
Name of Province: Guizhou Province
Capital City: Guiyang
Population: 35.8 million (Brinkhoff, n.d.)
Notable Ethnic Shao Shu Min Zu of Guizhou: Miao, Dong, Buyi, and Gelo (Zhengxu and Jicheng, 2016)
Due to the large dispersal of Shao Shu Min Zu throughout the cities of China, we will use the Shao Shu Min Zu of Guizhou Province as an example. Of the 17 different Shao Shu Min Zu living in the counties and cities of Guizhou, the four main Shao Shu Min Zu are: Miao, Dong, Buyi, and Gelo (Zhengxu and Jicheng, 2016). The local Shao Shu Min Zu depended heavily on forests to survive as the trees reclaim soil which allows them to cultivate fields to generate income for their family. For example, the Buyi Shao Shu Min Zu lived near the mountains of Biandan and depend on the soil retained by the nearby forests for field cultivation to generate food and income for the families. Thus, due to the dependency and the benefits provided by the forest, the locals deemed that forested area the “Feng Shui Forest”. Prior to the emergence of the Forest Law, the locals had their own sets of rules integrated with indigenous knowledge for protecting the forest as they faced threat of desertification long before the start of the 1900s (Zhengxu and Jicheng, 2016).
Another case done in Guizhou Province by Juanwen et al., 2012 placed an emphasis on the urge of integrating indigenous knowledge into the current forest conservation practices for a long term and sustainable result. Indigenous knowledge is the knowledge that has been passed down verbally for generations and has been practiced by its descendants; it is knowledge that integrates religious beliefs, customs, folktale, and land use practices (Juanwen et al., 2012). In the study, two local villages were looked at--Zhanli and Guntang, in the Zhanli village: the Dong Shao Shu Min Zu manages the forests with the application of their indigenous knowledge and rules; in the Guntang village, the Buyi Shao Shu Min Zu manages the forests with their own sets of rules and indigenous knowledge applied. Both villages have different types of tenure in forest ownership as created by the People’s Government of China. In the Zhanli village, there are two types of forest tenure: private (560 ha) and individual (70 ha) ownership. In private forestlands, the entire village are dedicated to care for the forest; whereas in individual forestlands, each member of the village is assigned a plot and they are responsible for the maintenance of the plot (Juanwen et al., 2012). Both of the villages set up rules in regards to private and individually owned forestlands in order to sustain the forest for future generation and to prevent mass deforestation due to the pressure of urbanization and human development. Below are the rules implemented by the two villages:
- Cutting of ancient trees are strictly forbidden
- Cutting of firewood is only allowed in private forestlands --> If one cuts the tree(s) belonging to another household, the offender will be fined 0.06 kg of silver. If the person cuts trees in “Feng Shui Forest”, the fine will be 0.6 kg of silver
- Setting fire in any types of forestlands are strictly prohibited --> Offender will be fined the 3-120s: 120 jin of each of the following: wine, pork and rice (2 jin is 1 kg), and will also be put on mandatory tree planting and caring for 3 years (Juanwen et al., 2012)
Guntang Village--have rules on feng shui forests
- Tree cutting for personal use is forbidden
- There shall be no land reclamation
- Burning for ash is forbidden
- Dead trees are not to be cut, but rather left to naturally decay. Branches of the dead tree can be used for fuelwood by the villagers for the prevention of purposefully cutting trees for fuelwood
- Severe punishment will be implemented for any violation of the above rules
- Cutting trees in Feng Shui Forest is only allowed for specific collective purposes such as the special pole for carrying the coffin of a deceased person, but the pole must be kept in the hands of the head of the village. The tree can also be cut for collective welfare on special occasions such as building roads for the village (Juanwen et al., 2012)
These traditional forest management practices have been well enforced by the locals as immediate actions are taken upon reported violations so that the damage can be minimized (Juanwen et al., 2012). Due to the strict enforcement of the local regulations set out by the Shao Shu Min Zu of the two villages, forest management has become more sustainable due to the integration of the indigenous knowledge into the management practices for the Feng Shui Forests.
There is a crucial need to include First Nations in forestry operations in British Columbia, mainly for the sake of reconciliation. Since the arrival of the first European settlers in this region, First Nations communities have suffered massively, especially from being restricted access to the forests which for thousands of years provided the basis for all social, economic and political activity within their communities. In recent years, the federal government has administered a nation-wide push towards reconciliation with Aboriginal peoples, officially recognizing the horrific mistakes made by the government since initial arrival to present-day Canada, but this governmental apology strategy is worth nothing if real changes are not made to important subjects like Aboriginal access to and authority over their ancestral territories, including these lands’ natural resources. [And the role of provincial governments?]
Another important reason for First Nation consultation in regards to forestry operations and practices is that these communities, due to their aforementioned unique relationship to the natural environment and these geographically-specific ecosystems, is that they have a particular knowledge of how these ecosystems work, and how best to sustain their long-term health. Turner et al. (2000; include page numbers when you quote directly) call this cultural phenomena Traditional Ecological Knowledge and Wisdom (TEKW), and claim that it encompasses such knowledges as: “knowledge of ecological principles, such as succession and interrelatedness of all components of the environment; use of ecological indicators; adaptive strategies for monitoring, enhancing and sustainably harvesting resources; effective systems of knowledge acquisition and transfer; respectful and interactive attitudes and philosophies; close identification with ancestral lands; and beliefs that recognize the power and spirituality of nature.” Ultimately, if these First Nations communities are more knowledgeable about how to best manage B.C.’s forests, their opinions and input should be valued as an important tool towards long-term sustainable forestry practices in the province.
The official mandate of every forestry legislation is that there is a duty by the government to consult First Nations communities, and these communities must have free, prior, and informed consent (FPIC) before any forestry operation can be approved by the government (UN, 2016). [this sentence is simply a hodge-podge of wrong information. The United Nations has no legal power over federal or provincial government in Canada]. This step in the operation application process is where much of the tension between First Nations communities and the government arises; more often than not, either the government fails to adequately consult First Nations communities on budding projects, or they fail to obtain First Nations' consent for such projects, yet continue to approve operations if the government deems it valuable to the economy of the province.
In the aspect of the Aboriginal Forestry in China, the variety of land tenure is diverse and is a very complex study to clarify the roles for both the local Shao Shu Min Zu, the interested stakeholders as well as the government representatives. However, as the awareness for forest conservation and cultural conservation increase, the three different stakeholders are becoming more willing to collaborate with each other. With that said, there is still work to be done on clearly defining the different types of tenure (private, common, and government owned) to the different stakeholders so that all the conflicting values will be addressed and that the correct type of tenure is given to the applicant when they with to work in an Aboriginal Forest or Feng Shui Woodland. Furthermore, in the aspect of mitigating the effects of climate change, all levels of the Chinese government (The People’s Government, the Provincial and the Municipal Government) need to create different types of strategies to effectively combat against the complexity of climate change.
While there has been an improvement in Aboriginal forestry management involvement in B.C. over the past decade, not enough work is being done to improve the relationship between First Nations and the provincial government regarding land rights. Much of the current provincial legislation still limits the involvement of First Nations in important decision-making regarding Crown forest lands, and gives too much freedom to the private sector to push projects through for economic reasons. Aboriginal peoples of this province hold valuable knowledges about these forests that should be taken into account much more than is currently. Historical disparities between First Nations and the government continue to shape the way that Indigenous folks can interact with their ancestral lands.
Despite the strict enforcement of the local village heads, there are still some challenges that still need to be overcome in sustaining the Feng Shui Forest in these areas as well as other locations in China. Challenges such as human development, conflicting relationship between the local government and the communities within the area, extremely strict regulations as well as the overlapping responsibility between different levels of the government in terms of management of the forest are preventing the success in the conservation of Feng Shui Forests as well as other forest types (Xu et al., 2012). [This is in the wrong section in which to introduce new information].
Aboriginal forestry practices in British Columbia have improved quite a bit in the past decade due to changes in legislation that have made it easier for Aboriginal peoples to access forestry licenses and job opportunities. First Nations involvement in the B.C. forestry sector has increased drastically in the past ten years, a trend which continues today. However, a lot of First Nations communities are still excluded from adequately accessing the natural resources of their home lands, and this is largely due to large private forestry operations that pass government assessment despite the common lack of Aboriginal consent granted. [This section is so vague as to be meaningless]
In order to overcome these challenges, a model where the bottom-up approach in forest management should be studied and evaluated to determine the effectiveness of such system [not a sentence]. The bottom-up approach system serves as a valuable learning experience for the researchers if failed and at the same time a sample model for the government for future expansion if succeed (Xu et al., 2012). [what on earth does this sentence mean?] Another opportunity in managing Feng Shui Forests and other forest in nature reserves in China is to collaborate with the locals in the area for more effectiveness in executing management strategies (Xu et al., 2012). Encouraging other local agencies to participate to promote multi-stakeholder management of the forest will result in higher success rate of the forest conservation plan.
Although it has been less than half a century that China has imposed laws and regulations in regards to forest and nature reserve conservation and management, there are still many challenges and opportunities within the subject area. However, the reformation of laws and the active engagement of the local communities as well as taking the indigenous knowledge into account when amending existing laws and creating new laws will likely lead to the success in forest conservation in China.
It seems that the provincial government is working hard in recent years to amend legislation in ways that open up opportunities for Aboriginal peoples to be involved in the forestry sector, but there is still a lot of work to do in regards to private corporation power over Aboriginal consent, by means of federal legislative change. For instance, the Canadian Environmental Assessment Act (CEAA) is the tool used to apply an in depth-examination of large projects in forest lands before they can commence, and it is a long way from adequately legislatively involving First Nations representation in these assessments. Changes need to be made to this act so that private companies cannot continue to defy Aboriginal consent rights in British Columbia which are enforced at an international level. [This is in the wrong section in which to introduce new information]
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Amy Zeng, 38003142
Shea McConkey, 15603137
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