Course:CONS370/Projects/Forestry impacts on Aboriginal archaeological sites in British Columbia, Canada

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Topographical map of British Columbia

British Columbia has seen a shifting cultural and political landscape from the time of colonization. Its distinct 198 first nations[1] have a rich history that we can access today in the form of oral history and archeological sites. As the government and first nations work towards Reconciliation this history has been gaining more acknowledgement and respect from the government and in the legislation that is passed. This cultural shift has drawn notice to the important issue of the intersection of aboriginal archaeology and logging. While the government has written into law protections for heritage archeological sites much work still has to be done to protect them and bring the issue to the public at large. There are few available resources to learn about the topic and even less legal precedence pertaining to it. In this case study we will explore what is available and put the issue into perspective.

Description

Our case study seeks to look at the effects of forestry on aboriginal archeological sites in British Columbia. In British Columbia 95% of the forest is Crown Land controlled by the Government, breaking down into 94% provincial ownership and 1% federal. The government leases its forested lands to companies in the forestry industry, allowing them to harvest while still having to meet restrictions set by the government. Forestry is a major industry in BC, employing over 50,000 people directly and making CAD 1.4 billion in tax revenue for the province in 2018/19[2]. British Columbia is also 95% unceded, traditional, ancestral territory[3] of the 198 distinct First Nations[1] that reside there.

Map of Haida Gwaii

The aboriginal peoples of British Columbia have resided there for over 10,000 years and because of that have their history and their cultures rooted into the soils and forests of British Columbia. The government of British Columbia offers protections for historically important sites, in particular those that have archeological importance through objects and sites like culturally modified trees (CMT), burial grounds, and former villages[4]. Within their traditional territories aboriginal peoples have the right to carry out traditional harvesting practices such as hunting, fishing, trapping, and gathering fungi, plants, and timber[5]. First Nations groups are also able to enter into Forest Consultation and Revenue Sharing Agreements which financially remunerate them for harvesting activities in their traditional territories[6].

The logging carried out under provincially-issued licences has historically been a contentious issue, demonstrated by the O’Brien & Fuerst Logging Ltd. v. White court case[7]. In that case the Haida nation fought against the Fuerst logging company’s right to log land in Tlaga Gaawtlaas Blue Jackets, an important heritage site to the Haida nation, after the licence had been issued by the government. A group of activists set up a blockade to protect the site from cutting operations. During the court case, the B.C. supreme court sided with the logging company, allowing them to log the area. In response, Gaagwiis Jason Alsop, president of the Council of the Haida Nation (CHN) said, ““The logging of the Bluejacket area would be a blatant act of disrespect and disregard of Haida title, sovereignty and jurisdiction, as well as a violation of provincial legislation,”. While it seems that both groups are still dedicated to Reconciliation, the Haida nation was shocked at the government's blatant disrespect for their own rules regarding heritage sites and valuable Haida archeological sites.[8][7]

Tenure arrangements

As a large portion of the forested land within the Province is public land, the Government of British Columbia (B.C.) is the legal owner of this land. As such, they are responsible for providing and managing any forest tenure agreements. The harvesting tenure agreements are split into twelve categories, which take the form of licenses, agreements, or permits, each with their own guidelines, fees and duration.[9] Through these tenures, the Government made a total gross revenue of CAD 397 million dollars in the 2013/2014 fiscal year, with CAD 367 million dollars coming from the Interior region and CAD 30 million dollars coming from the Coastal region.[10] This revenue includes the stumpage fees and harvesting rent fees placed on the tenure agreements, based on their location.[10]

The BC Timber Sales (BCTS) is a government-controlled agency that administers auctions for timber sales licenses in areas which cumulatively account for 20 percent of the annual allowable cut.[11] Contractors and processors can bid for portions of the 10-13 million cubic meters that are available.[11] These licenses have a range of guidelines that apply and also range in duration depending on where they are located.

The B.C. Government uses tenure agreements to not only manage the timber supply through the annual allowable cut but also to enforce guidelines that protect the environment and public interest. Each of the twelve different harvesting tenure agreements has their own specific guidelines which are based on the type of harvesting which is being conducted.[12] Not all have significant impacts on Aboriginal archaeology; however, the ones which do are:

Community Forest Agreement (CFA)
"Big tree" mountain bike trail in the Cranbrook community forest

This is an agreement where a plot of land is given to a community to manage in a way that benefits the entire community. The main focus is on recreation, watershed management, wildlife management, and harvesting operations (Community Forest).[13] Standard forest practices must be followed, but the specifics of what type of harvesting is conducted are based on the objectives of the community.[13] There is also a limit to the harvestable timber volumes based on each agreement; overall, 1.2 million cubic meters of the annual allowable cut goes to all of the CFAs in the Province.[13] The communities apply for the CFAs, which are replaceable every 10 years and run for a duration of 25 to 99 years.[13]

Forest License

These license holders hold the most percentage of the annual allowable cut, making up roughly 65% of the allotment. The license allows the holder to harvest a certain volume of timber from a specific timber supply area.[14] The duration of these licenses is 20 years and can be replaceable or non-replaceable.[14]

  • The replaceable forest license (RFL) allows the holder to be eligible for a replacement license after 5 to 10 years into their original license.[14]
  • The non-replaceable forest license (NRFL) is a license that cannot be renewed, though in some rare cases, exceptions can be made.[14]

The license holder has to follow guidelines that deal with forest management practices, including operations, reforestation, and environmental protections.[14]

Tree Farm License

The license allows the holder to have nearly exclusive harvesting and management rights to a particular plot of land within the Province.[15]

Administrative arrangements

In British Columbia around 95% of the land is government-owned, meaning that the government authorizes most timber harvesting in the province. This system is managed through the forest tenure system that can provide an agreement, license, or permit that legally allows private forestry companies and communities to use harvested lands for a variety of activities. The provincial government requires tenure holders to comply with several acts and regulations including the Land Act, Heritage Conservation Act, and the Wildlife Act along with restrictions from other sections of the government such as the federal Fisheries Act and Species at Risk Act[16]. The Heritage Conservation Act clearly states that it is prohibited to damage, alter, excavate, or dig any heritage object or burial ground. Permits can be given under the act calling for a heritage investigation to better understand the value of the site and what steps should be taken to preserve heritage objects. After those findings permit holders must request an amendment to their permits allowing for alteration of the site, subject to refusal by the minister reviewing the permit if it would unnecessarily compromise the site or damage the heritage objects present. If the permit is amended it can be subject to conditions and requirements, such as only allowing for a specific period of time, requirement to contact the parties whose heritage is represented, sending satisfactory reports to the minister, and the use of a special repository for the heritage objects[4]. There is legal precedent for first nations groups to sue companies and the federal government, even after technically acting within the restrictions of the Heritage Conservation Act. In the court case Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), the Kitkatla Band sued the provincial government in the protection of several CMTs, or culturally modified trees. When the minister received the request to issue a permit for alteration of the site, the Kumealon area, he requested submissions from the Band and when they failed to reply, he issued the permit without reviewing archeological reports from the site. They successfully challenged his decision and the Minister was asked to reconsider those parts of the permit that pertained to CMTs, allowing the Band an extended opportunity to be consulted on the issue. The minister then accepted a modified CMT management plan from Interfor and the site was logged, leaving 76 of 116 trees standing and preserving fallen CMTs. The Kitkatla band petitioned for an order of prohibition, which they were refused by a judge[17].

Affected Stakeholders

Indigenous peoples in British Columbia are the affected stakeholders in terms of negative logging impacts damaging current and previously existing archaeological sites. A perfect example of the level of significance that some of these archaeological sites possess would be culturally modified trees (CMTs). CMTs give researchers the historic overview of indigenous presence in an area, as well as the extent to which those forests containing CMTs were culturally used.[18] There is an existing conflict in objectives pertaining to archaeological sites, as well as traditional knowledge in some communities as they don’t want to share information with the general public. [19] Because there is a disproportionately small number of indigenous archaeologists in the profession, archaeologists who are indigenous often find themselves stepping up and conducting their best work with the interests of their community, and culture at heart. [19]

Interested Outside Stakeholders

Interested stakeholders are steadily growing as time goes on and more attention is brought to this issue. An example of where some nations have found allies in this cause would be the Marine Plan Partnership for the North Pacific Coast, or also known as MaPP. Partnerships like this, which include the province of B.C. and other notable members, provide non-indigenous individuals as well as those in the science community, the opportunity to help bring awareness to archaeological sites and include them in ecosystem management on the coast of British Columbia. The relative objectives of these interested stakeholders are the same as the nations who partner with them, to preserve First Nations culture in British Columbia, to create ecosystem-based management that protects features like archaeological sites, and to begin developing working relationships with First Nations communities[18].

Discussion

Cut CMT

The purpose of this case study was to look into the impacts of the forestry industry to Aboriginal archaeology within the Province of British Columbia. The traditional territory of the 198 First Nations bands in the Province overlaps with the various forest tenures that are provided by the B.C. Government. As such, the harvesting of timber within these tenures can lead to the logging operations disturbing archaeological sites. Even though there are procedures put in place that are supposed to prevent damage to archaeological sites, these regulations are incomplete. They do not thoroughly protect all types of archaeological sites and artifacts. A lack of consultation with First Nations groups has led to a shortfall on the Government's behalf to do their part in mitigating the loss of archaeological sites through proper identification before logging, legal regulations and monitoring.

Culturally modified trees (CMTs) are some of the most affected archaeological objects in the Province as there are twice as many CMTs as there are other types of archaeological sites.[18] Protection for CMTs is outlined in section 12.1 of the Heritage Conservation Act, stating that except for permit holders, archaeological sites must not be damaged, altered, or desecrated.[20] However, as in the 2000 court case between the Kitkatla Band versus the Government of British Columbia and the forestry company International Forest Products (Interfor), forest companies can obtain permits that allow them to remove CMTs even though they are considered archaeological artifacts. In this case, Interfor attained a permit to harvest CMTs while logging an area in the Central Coast region within their forest license through the Ministry of Small Businesses, Tourism and Culture.[17] The permit was provided despite the Kitkatla Band not being adequately consulted about the harvesting of the CMTs.[17] The issue was brought before the B.C. Appeals Court; however, the judge dismissed the appeal.[17]This dismissal is a failure on the part of the Provincial Government, as the authorization to desecrate any Aboriginal archaeological site should be determined by the Band whose traditional territory it falls under.

Cut CMT

It is easy to entirely place the blame on the forestry companies who are running the harvesting operations; however, the lack of thorough regulations from the B.C. Government is equally at fault. The current regulations do not protect these archaeological sites at the level at which they should be. Even though studies are performed before operations commence, these studies are broad and do not always take place in the field.[21]If there is an archeological site identified at that point, an impact study would be conducted, and a plan would be put in place. However, this is all done by an archeologist without the need for consultations from First Nations Bands in the area.[21]

Furthermore, there is very little monitoring of harvesting operations in terms of these archeological sites during the actual operating period. The Government does perform impacts surveys through the Forest and Range Evaluation Program (FREP), however, these are done mainly after the companies have ceased operations. FREP checks to see if any of the forest operations impacted the environment and go against the Forest and Range Practices Act.[22] Archaeological sites fall within the survey, and this is a step in the right direction, however, as it is only performed after harvesting, it does not prevent the desecration of sites. The Government could and should be doing more to prevent these sites from being impacted by logging operations by increasing protection and increasing the monitoring of logging sites during operation.

Assessment

Throughout the Province, eight major forestry companies held roughly fifty percent of the annual allowable cut (AAC) in 2019. The largest holder is Canadian Forest Products, with 10.8 million cubic meters, equating to 16.93 percent of the AAC.[23] The next five largest companies each hold over a million cubic meters; West Fraser Mills Ltd. had 5.4 million, Western Forest Products Inc. had 4.9 million, Tolko Industries Ltd. had 3.4 million, Interfor Corporation had 3.3 million, and Louisiana-Pacific Inc. has 1.6 million (aptro43).[23] The last two companies Conifex Mackenzie Forest Products Inc. and Mackenzie Fibre Management have 932,000 and 800,000 cubic meters, respectively (aptro43).[23] By holding such a large portion of the AAC, it is clear that these forest companies, and many of the ones with less percentage, hold high power within the forestry industry. These companies can exercise their influence and power during conflicts with the smaller First Nations Bands. The companies are able to work around the regulations put in place by the Provincial Government, and are usually backed by the Government in any conflicts.

The Government of British Columbia seemingly holds power in this situation. They can refuse both the companies and the first nations groups' rights to the land and to what is on it. The problem arises when the government habitually sides with the companies, allowing for culturally important archeological sites to be logged. First nations groups have avenues of appeal open through the court system and as shown in the Kitkatla Band v. British Columbia but cannot reach their ultimate goals of requiring Free, Prior and Informed regarding their traditional territories and the logging activities that happen on them.

The 198 First Nations Bands and their supporters have the least amount of power in terms of the issue surrounding Aboriginal archaeology. Using the “Blue Jacket Timber Sales” as an example, it shows the people of Masset village felt helpless against both the forest industry and the Provincial Government. The Government provided O’Brien and Fuerst Logging with the property that was culturally significant to the Haida without consulting them thus leading Masset people being locked out of the area.[7] Both had a legal right to the land in a way; however, the Government-backed the logging company leaving the Haida powerless. This is just one example that the Government-backed a forestry company over a First Nation Band, and it will probably not be the last. Unless more can be done to empower the First Nations Bands they will always hold unequal power.

Recommendations

Public education as well as more community outreach will be two of the best tools that First Nations groups have at their disposal to help protect these precious ancestral archaeology sites. With passing time there are more stakeholders getting involved with aiding First Nations communities in their goal to protect this part of their culture.[24] There is still lots of work to be done on the administrative and corporate end of this issue. Government having more power while working collaboratively with First Nations groups would be an ideal solution but with corporate lobbyists influencing action towards their own financial interests, First Nations’ concerns will be lower on the priority list than company profits.


References

  1. 1.0 1.1 Welcome BC. "B.C. FIRST NATIONS & INDIGENOUS PEOPLE". Retrieved April 11, 2020.
  2. Forestry Innovation Investment. "B.C. Forest Sector Overview". Retrieved April 11, 2020.
  3. Wilson, Kory (2018). Pulling Together: Foundations Guide. Victoria: BCcampus. pp. Section 1. ISBN 978-1-77420-054-4.
  4. 4.0 4.1 Heritage Conservation Act, RSBC 1996, c187, s12.1-12.5
  5. Aboriginal Legal Aid in BC. "Harvesting Rights". Retrieved April 11, 2020.
  6. BC Government. "Forest Consultation and Revenue Sharing Agreements". Retrieved April 11, 2020.
  7. 7.0 7.1 7.2 O’Brien & Fuerst Logging Ltd. v. White, S1910279 (Supreme Court of British Columbia December 4, 2019)
  8. Kurial, Alex (October 10, 2019). "Logging moves forward as court rules against Haida Gwaii protesters". Haida Gwaii Observer. Retrieved April 11, 2020.
  9. Government of British Columbia. "Forest Tenure". Government of British Columbia. Retrieved April 11, 2020.
  10. 10.0 10.1 MNP LLP. (2015). BC Forest Industry Economic Impact Study. MNP LLP.
  11. 11.0 11.1 Government of British Columbia. "BC Timber Sales". Government of British Columbia. Retrieved April 11, 2020.
  12. Government of British Columbia. "Timber Harvesting Rights". Government of British Columbia. Retrieved April 11, 2020.
  13. 13.0 13.1 13.2 13.3 Government of British Columbia. "Community Forest Agreements". Government of British Columbia. Retrieved April 11, 2020.
  14. 14.0 14.1 14.2 14.3 14.4 Government of British Columbia. "Forest Licences". Government of British Columbia. Retrieved April 11, 2020.
  15. Government of British Columbia. "Tree Farm License". Government of British Columbia. Retrieved April 14, 2020.
  16. B.C. Government. "Timber Tenures in British Columbia" (PDF). Retrieved April 11, 2020.
  17. 17.0 17.1 17.2 17.3 Kitkatla Band v. British Columbia, 27801 (Supreme Court of Canada March 28, 2002).
  18. 18.0 18.1 18.2 Earnshaw, J. (n.d.). "The trees you do not need": Culturally Modified Forests and the Tsilhqot'in Ruling .
  19. 19.0 19.1 Turner, L., & Leung, H. (n.d.). 'A voice to confront': One woman's journey to decolonize archaeology.
  20. HCA, H. C. (1996). Heritage Conservation Act Chapter 187. Retrieved from http://www.bclaws.ca/civix/document/id/complete/statreg/96187_01
  21. 21.0 21.1 Ministry of Small Business, Tourism and Culture. (2018). British Columbia Archaeological Resource Management Handbook. Victoria: Province of British Columbia.
  22. Government of British Columbia. "Forest & Range Evaluation Program (FREP)". Government of British Columbia. Retrieved April 11, 2020.
  23. 23.0 23.1 23.2 Ministry of Forests, Lands, and Natural Resources. (2019). Ministry of Forests, Lands, and Natural Resource Operations - Apportionment System Linkages and Licences. Victoria: Government of British Columbia.
  24. MaPP. (2019, March 20th). Cultural and Archaeological Work in the North Vancouver Island Marine Plan. Retrieved from http://mappocean.org/cultural-and-archaeological-work-in-the-north-vancouver-island-marine-plan/



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