Documentation:Open Case Studies/FRST522/Aboriginal forestry in British Columbia
Aboriginal forestry in British Columbia - The Experiences of the Tl'azt'en Nation (TFL 42/CFA K4B)
The Tl'azt'en Nation is one of many First Nations living in British Columbia. While they were once a strong, self-governing people with an effective resource management system, much of their traditional territory has been lost to colonialization, now belonging to the provincial government. However, since the 1980's, they have managed to regain some management rights to their traditional territory through various land tenure agreements. However, while these tenure agreements may be enticing on paper, the traditional territory of the Tl'azt'en Nation remains as Crown land. This creates many challenges for the Tl'azt'en Nation, with a compromise of traditional values being chief among them. In order for these challenges to be resolved, steps must be taken so that the Tl'azt'en Nation regains full management and governance rights to their own territory, independent of federal or provincial politics.
- 1 Description
- 2 Tenure arrangements
- 3 Administrative arrangements
- 4 Affected Stakeholders
- 5 Interested Outside Stakeholders
- 6 Discussion
- 7 Assessment
- 8 Recommendations
- 9 References
Indigenous people and local communities around the world have often had tumultuous relationships with the central government. They are typically ignored and marginalized by the State, even as they fight for rights to their own traditional territories.  Some examples include Quilombola communities in Sao Paulo and the Ekuri people in Nigeria. Unfortunately, Canada has not been immune to indigenous marginalization, either. Aboriginal people in Canada have always had tumultuous relationships with the federal and provincial governments. Indeed, many of Canada's policies, such as the Indian Act and the Indian Residential School System, were originally designed so that Aboriginal people in Canada would robbed of their culture and forced to assimilate into the dominant Canadian society. Much of their traditional territories, which had never been ceded to anyone, were also forcibly taken and designated as Crown land. This also includes much of British Columbia's forests, many of them located on the traditional territories of various First Nations groups.
Today, 94% of British Columbia's forests still belong to the Crown. However, in the past few decades, there have been several major decisions made by the Supreme Court of Canada which have empowered Aboriginal people around the country to attempt to reclaim some of their lost rights and territories. In 1973, the Calder decision affirmed that Aboriginal title had, in fact, existed since the Royal Proclamation of 1763, the first acknowledgement in Canadian history. The Delgamuukw decision in 1997 affirmed that Aboriginal title extended to the land itself, and not just its resources. In 2004, two landmark cases (Haida/Taku River) established that both provincial and federal governments had a legal duty to consult with First Nations or provide reasonable accommodation when making decisions regarding land use and resources which could affect claims to Aboriginal title. Finally, the landmark Tsilhqot'in decision in 2014 formally gave Aboriginal title to the land and resources of the Tsilhqot'in people. These landmark court decisions have significantly impacted the lives of Aboriginal people across Canada.
However, even though Aboriginal title has been legally recognized by the Supreme Court of Canada, much of Canada's forests remains as Crown land, meaning that Aboriginal people do not have full management rights. In BC, in order to secure greater management rights to their traditional territories, some First Nations groups have attempted to participate in the forest industry by obtaining forest tenure agreements. These tenure agreements would grant the First Nations groups some management authority in their own traditional territories. However, there are many challenges to this, and the case of the Tl'azt'en Nation is a good example of this.
There are several terms which must be cleared up before this article continues. First, the term "Aboriginal" in Canada is actually a broader term relating to three distinct groups: First Nations, Inuit, and Metis. Most Aboriginals in Canada are First Nations, the Inuit live in northern Canada, and the Metis are a group with mixed European ancestry. The term "tenure" in this case study refers to a license issued by the Ministry of Forests, Lands, and Natural Resource Operations (MFLNRO) in BC allowing the tenure holder to harvest timber from a specified area of Crown land.
The Tl'azt'en Nation is a First Nations group located northwest of Prince George. They are members of the Dalkeh people, roughly translated as "We travel by water." The Dalkeh people also includes groups such as Nak'azdli, Takla, and Babine, and the Tl'azt'en Nation shares the boundaries of their traditional territory with them. The Dalkeh are also themselves members of the Carrier Sekani Tribal Council, which also includes a great number of other First Nations groups. The traditional territory of the Tl'azt'en Nation is very rich in natural resources, and the Nation has always been dependent on them for subsistence-based living, even to this day. Traditionally, before colonization, the territory was divided into land management units, or Keyohs. Each Keyoh belonged to a certain family or clan, and they would have been passed down through centuries, spanning many generations. Members of each Keyoh would have exclusive rights to harvest resources from the Keyoh, but they would have also been responsible for sustainably managing the resources in the Keyoh. Access and rights to each Keyoh was restricted to members only, and this was very strictly enforced.
Even though much of the management rights were devolved to members of each Keyoh, central government did exist in the form of the Potlatch, or Bahlats, system. Like many other First Nations groups, the Bahlats was a community event designed to celebrate cultural values, settle disputes, and re-distribute wealth. One of the most important aspects of the Bahlats, however, was when the Elders and Chiefs representing each Keyoh came together to resolve disputes over management or access between the Keyohs, as well as coming up with rules which would have been binding across all Keyohs. Indeed, for centuries, the Tl'azt'en Nation had been able to effectively manage their traditional territory through the Keyoh and Bahlats system. Of course, all of the lands and natural resources in BC eventually came under the control of the provincial government as Crown land, including much of the traditional territory of the Tl'azt'en Nation. As a result, the traditional form of self-government no longer exists, although many Tl'azt'en Elders can still point out where each Keyoh used to be.
The traditional territory of the Tl'azt'en Nation spans about 723,000 ha. Today, much of that territory still belongs to the provincial government, or more specifically, MFLNRO. There are several reserves located in the territory, which are managed by the federal government of Canada. The Tl'azt'en Nation is still very dependent upon the natural resources in their territory for subsistence-based livelihoods. However, in the 1980's, the Tl'azt'en Nation decided that it would be in their best interest to begin participating in industrial forestry, with the ultimate goal of reclaiming management rights to their traditional territory and improving their socioeconomic conditions. To that end, they established Tanizul Timber Ltd. in 1982, which has been the recipient of several land tenures. This article will examine these tenures in more detail, as well as a special co-operative agreement between the Tl'azt'en Nation and the University of Northern British Columbia (UNBC).
Since the 1980's, Tanizul Timber Ltd., and by extension, the Tl'azt'en Nation, have obtained multiple forms of land tenure agreements from MFLNRO, with the eventual goal of reclaiming management rights over their traditional territory. There are three major tenure agreements which Tanizul Timber Ltd. has either held or is currently in the application process. These include a Tree Farm License (TFL 42), a Community Forest Agreement (CFA K4B), and a First Nations Woodland License (FNWL N2O). In addition, the Tl'azt'en Nation also has a special agreement with UNBC in the form of the John Prince Research Forest (JPRF). The rest of their traditional territory is managed by external companies. While the article will explore each tenure agreement in more detail, it must be noted that all tenure agreements in BC, with the exception of First Nation reserves, are granted by MFLNRO, who has the power to revoke them at any time.
The Tl'azt'en Nation's experience with tenures and the industrial forest sector began in 1982, where, under the newly-formed Tanizul Timber Ltd., they successfully bid and obtained a Tree Farm License (TFL 42). This was quite significant, as it was the first time a major forest tenure was successfully obtained by a First Nation group. This tenure, which was renewable and area-based, allows Tanizul Timber Ltd. exclusive rights to harvest trees and other resources within a designated portion of their traditional territory. However, this did not come without restrictions. Every time trees were harvested, full stumpage prices (payment to the provincial government in exchange for the right to harvest timber, measured in $/m3) would have to be paid. In addition, while Tanizul Timber Ltd. does have exclusive rights to harvest timber, the amount of timber harvested cannot exceed the Annual Allowable Cut (AAC), which is determined by the Chief Forester each year. Despite these restrictions, granting a TFL to a First Nations group was ground-breaking, and it would empower other First Nations to obtain land tenure agreements. In 2009, Tanizul Timber Ltd. formally relinquished TFL 42 in exchange for a Community Forest Agreement (CFA K4B) in the same area. Like TFL 42, the CFA grants Tanizul Timber Ltd. exclusive rights to harvest timber and other resources within the designated area, and it is renewable and area-based. Again, all timber harvesting in CFA K4B cannot exceed the AAC. However, the main difference is that, while stumpage must still be paid, Tanizul Timber Ltd. is only charged 15% of the actual price.
Currently, Tanizul Timber Ltd. is in the process of applying for a First Nations Woodland License (FNWL N2O). If approved, this agreement would grant the Tl'azt'en Nation another portion of their traditional territory, in conjunction with CFA K4B, where they would have full management rights. Like the other tenure agreements, the FNWL would allow Tanizul Timber Ltd. exclusive harvesting rights in the designated area. However, while full stumpage must be paid through this tenure agreement, 85% of the stumpage fee is actually returned to the tenure holder if they hold a Forest Consultation and Revenue Sharing Agreement (FCRSA), which the Tl'azt'en Nation has held since 2014. This form of tenure is the most conducive to upholding the interests of First Nations, making it the best available tenure agreement for the Tl'azt'en Nation at this time. As of September 2017, MFLNRO has approved the draft proposal for FNWL N2O, but it has yet to be formalized.
In addition to these tenure agreements, the Tl'azt'en Nation has held a co-operative management project with UNBC since 1999 in the form of the John Prince Research Forest. The JPRF spans approximately 13 000 ha, and it is both the largest research forest in North America and the only research forest in North America to be jointly operated by a university and a First Nations group. The JPRF holds a unique tenure agreement in the form of a Special Use Permit. According to this tenure agreement, the JPRF must be co-managed by both UNBC and the Tl'azt'en Nation. This creates a unique opportunity where the Tl'azt'en Nation can freely harvest resources from the JPRF, while the university is able to run various research programs. Currently, combining both CFA K4B and the JPRF, the Tl'azt'en Nation currently holds exclusive management rights over 9% of their traditional territory. If FNWL N2O is approved, that amount would increase to 14%. The rest of the traditional territory of the Tl'azt'en Nation is currently being managed by other tenure holders, such as mining and forestry companies.
In addition to Crown land owned by the provincial government, the traditional territory of the Tl'azt'en Nation also has several reserves. These reserves are managed under the jurisdiction of the federal government of Canada, rather than the provincial government. The Tl'azt'en Nation has exclusive use and occupation rights within these reserves, and no party, including the federal and provincial governments, can legally take them away. The Tl'azt'en Nation also receives federal funding each year to help meet their basic needs, such as education, housing, or healthcare.
Traditionally, members of each Keyoh would have been responsible for its management, and all Keyohs would ultimately report to the assembly of Elders and Chiefs at the Bahlats. In those days, the Bahlats were very powerful, and the regulations devised at each meeting were very strictly enforced. In the present day, however, most of the land now belongs to the provincial government (de jure) as Crown land. MFLNRO is responsible for issuing all land tenure agreements in BC, and the rules and regulations for each tenure need to be observed. All tenure holders need to report to MFLNRO. Otherwise, MFLNRO has the right to revoke tenure agreements if policies are violated. This is a very important consideration for Tanizul Timber Ltd. and the Tl'azt'en Nation. While CFA K4B and FNWL N2O (if approved) does grant Tanizul Timber Ltd. exclusive rights to harvest timber and other resources from the specified areas within their traditional territory, the necessity of paying stumpage to the provincial government makes it clear that these areas are still Crown land. As a result, it is necessary for Tanizul Timber Ltd. to follow the restrictions and guidelines outlined in each tenure agreement (eg. AAC) and report to MFLNRO. Otherwise, MFLNRO could potentially revoke these tenure agreements, and the Tl'azt'en Nation would be left with nothing.
What are the administrative arrangements with regards to the John Prince Research Forest? As the Special Use Permit stipulates, both UNBC and the Tl'azt'en Nation must co-operatively manage the forest. To facilitate this, both parties have jointly created a company called the Chuzghun Resources Corporation (CRC). Created for the primary function of managing the JPRF, the CNC is governed by a Board of Directors comprised of six members, with three from each party. This would ensure that the JPRF is being effectively co-managed by both UNBC and the Tl'azt'en Nation. Again, it must be made clear that the Special Use Permit, like all other forms of land tenure, was issued by the provincial government, requiring that both parties in the JPRF comply with government regulations. Since the Special Use Permit requires that both parties co-manage the forest, it can be inferred that, in the event that one party tries to exercise more authority over the other, the government then has the right to revoke the tenure and end the JPRF.
Both of these cases highlight something very important in BC. No one may harvest timber in Crown land, which comprises most of BC, unless a tenure agreement is obtained. Even if a tenure agreement is obtained, however, the tenure holder does not officially own the piece of land issued to him or her. It is still Crown land, and tenure holders must comply with the stipulations set out in the tenure agreement, or they risk having their tenure agreement revoked by MFLNRO.
With regards to the reserves located within their traditional territory, the Tl'azt'en Nation does hold more freedom and autonomy. However, they must still report their finances back to the federal government each year, and the Minister has the right to increase or decrease funding at his or her discretion. The Tl'azt'en Nation is very dependent on this federal funding to meet their basic needs. In addition, the federal government, through the Governor-in-Council, has the right to set regulations for various activities within the reserves. However, unlike the tenure agreements in BC, the federal government does not have the legal right to remove these reserves.
The Tl'azt'en Nation, and, by extension, Tanizul Timber Ltd., are the primary affected stakeholders in this case study. The resources and land within their traditional territory once belonged exclusively to them before the provincial government came and declared it as Crown land. The Tl'azt'en Nation is still very much dependent on the resources within their traditional territory for subsistence-based livelihoods. In order to regain more autonomy and management rights over their traditional territory, they decided that it would be in their best interest to participate in industrial forestry. As a result, they have obtained several land tenure agreements from MFLNRO, allowing them to harvest timber from designated areas within their traditional territory. However, as these tenures are issued by the provincial government, the Tl'azt'en Nation must abide by provincial regulations, or they risk having their tenure agreements revoked.
Interested Outside Stakeholders
Indigenous and Northern Affairs Canada (INAC)
The department of Indigenous and Northern Affairs Canada (INAC), which is currently in the process of transitioning to the departments of Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), represents the federal government of Canada in all matters relating to Aboriginal people (First Nations, Metis, and Inuit) in the country. In the case of the Tl'azt'en Nation, there are several Reserves located within their traditional territory. These are managed under the jurisdiction of the federal government, rather than the provincial government. While the Tl'azt'en Nation does hold a good degree of freedom within these reserves, they are very dependent on federal funding to meet their basic needs, and they are required to submit their financial statements back to the federal government each year. The federal government also has the right to impose regulations on various activities within these reserves, as needed.
This is the branch of BC's provincial government responsible for the management of the province's natural resources, officially titled as Crown land. They are responsible for issuing all forms of land tenure agreements, excluding reserves, to land users in BC. All land users must have a tenure agreement from MFLNRO if they wish to harvest resources on Crown land. The ministry, or more specifically, the Chief Forester, is also responsible for setting the AAC each year to ensure that tree stocks would be replenished for following years. MFLNRO expects that all tenure holders adhere to the regulations set out by the tenure agreements and the Forestry Act. If these regulations are violated, MFLNRO has the right to revoke tenure agreements. 
UNBC currently co-manages the John Prince Research Forest alongside the Tl'azt'en Nation within their traditional territory. The Special Use Permit ensures that, while the university conducts research and forest operations, the Tl'azt'en Nation is still able to harvest resources within the forest for their own sustenance.
There are also a number of other land users currently using the traditional territory of the Tl'azt'en Nation. This includes forestry, mining, and gas companies. They, too, have obtained tenure agreements with MFLNRO to use this land. While the Tl'azt'en Nation is doing their best to accommodate these other stakeholders, they are very concerned over the possibility of overexploitation of the resources in their traditional territory.
On the surface, the Tl'azt'en Nation appears to be successful in regaining management rights to their traditional territory. They currently have a Community Forest Agreement in one portion of their traditional territory, and they are making progress in obtaining a First Nations Woodland License, which would grant them management rights to another portion of their traditional territory. These forms of tenure agreements are renewable, and stumpage fees are heavily subsidized. In addition, the Tl'azt'en Nation is able to co-manage yet another portion of their traditional territory alongside UNBC in the form of the John Prince Research Forest. Although these initiatives have certainly helped the Tl'azt'en Nation in regaining management rights to their own territory, there is still one critical aspect of these tenure agreements which prevents them from achieving full autonomy. Under these tenure agreements, Crown land never stops being Crown land. In other words, with the exception of the Reserves, the land attributed to these tenure agreements still belongs to the provincial government of BC. This means that, in order to keep these tenure agreements, the Tl'azt'en Nation must follow the regulations set out by MFLNRO, such as paying stumpage and not exceeding the AAC. Even the JPRF is operated under a tenure by MFLNRO, albeit a special one. Should any of these regulations be violated, MFLNRO has the right to revoke these tenures. As long as Crown land remains Crown land, the Tl'azt'en Nation will never have full management rights to their own traditional territory.
There are also several other challenges which could hinder the ability of the Tl'azt'en Nation to fully participate in BC's forest industry. Perhaps one of the largest barriers for the Tl'azt'en Nation, and for many other First Nations groups, concerns the trade-offs between traditional values and industrial values. The original decision to participate in commercial forestry was not made lightly, and it did not go unchallenged from within the community. Many First Nations groups have traditionally taken a more holistic approach to resource management, and the Keyoh system, which had been deeply ingrained in the Tl'azt'en Nation for centuries, is a noteworthy example. However, the provincial government and forest industry take a more economic approach to resource management, and their objectives and values are often in direct conflict with those of the Tl'azt'en Nation. Unfortunately, in order for the Tl'azt'en Nation to acquire tenure agreements and successfully participate in the forest industry in BC, it would have been necessary to adopt the management objectives and values of the provincial government, thus compromising their own. For example, provincial laws require that 50% of the AAC must be cut, regardless of the concerns of the community. Naturally, this has created a lot of tension within the community, especially among the older members and Elders who had grown up under the traditional Keyoh system, and it is still a major issue today.
The Tl'azt'en Nation has also faced many economic setbacks which significantly hampers their ability to participate in the forestry sector. TFL 42, and subsequently, CFA K4B, is actually one of the smallest area-based tenure agreements in BC, which means that the AAC is more restricted. As a result, Tanizul Timber Ltd. has been unable to secure long-term harvesting contracts, nor afford the machinery required by the contractors, which significantly reduces profits. In addition, an overall lack of forestry expertise among the Tl'azt'en Nation has also caused Tanizul Timber Ltd. to suffer financially. There are some very nice timber stands in the allocated area, but they are located in areas where access is quite difficult. Since very few members of the Tl'azt'en Nation have the experience and knowledge required to safely access and harvest these stands, they are mostly ignored, which also drives down potential profits. Forest operations also require roads, bridges, and a lot of planning. Unfortunately, since most of the members of the Tl'azt'en Nation have no forestry experience, Tanizul Timber Ltd. has had to pay external contractors to complete these tasks. Again, this results in a loss of profits. Coupled with the necessity of paying stumpage and meeting the AAC, the Tl'azt'en Nation faces a very difficult economic challenge.
There are many other challenges hampering the ability of the Tl'azt'en Nation from fully participating in the forest industry, such as a lack of adequate consultation, unclear goals, and tensions within the community between the elected Council and Chiefs (C&C) and the descendants of traditional Keyoh holders, but they all boil down to one simple fact: Crown land is still Crown land, and the Tl'azt'en Nation is required to follow the guidelines set by the provincial and federal governments, even if they clash with their own traditional values.
In BC, the provincial government, or more specifically, MFLNRO, holds the power of the pen. As most of BC's forests are comprised of Crown land, the Ministry is responsible for issuing land tenure agreements, and tenure holders are expected to follow the specified guidelines and regulations. Otherwise, the Ministry has the right to revoke these tenure agreements. While the federal government does have jurisdiction over the various reserves located within the Nation's traditional territory, the provincial government is the main political entity in BC. While they have granted various tenure agreements to the Tl'azt'en Nation, the tenures still recognize traditional territory as Crown land, and the Nation must still follow provincial guidelines. While the tenure agreements issued by MFLNRO may be effective for other stakeholders, they are not effective in helping the Tl'azt'en Nation achieve their goals of greater autonomy.
All of the other stakeholders, including the Tl'azt'en Nation, are under the jurisdiction of the provincial government. They are required to follow MFLNRO's guidelines, or their tenure agreements could be revoked. As such, the other stakeholders do not have much decision-making authority. In the end, the losers in this scenario would be the Tl'azt'en Nation, as these tenure agreements directly affect their livelihoods. The other stakeholders, including UNBC, would not be as affected if they lose their tenure agreements, as they would still have other means to generate income.
An overall lack of forestry training and education within the Tl'azt'en Nation has significantly hampered the ability of the community to make full use of the timber granted to them through TFL 42/CFA K4B. The lack of experience has also forced Tanizul Timber Ltd. to hire external contractors to perform various forest operations, which significantly reduces profits. It is highly recommended, therefore, that more members of the Tl'azt'en Nation take up formal forestry education and training (perhaps through UNBC) in order to become Registered Professional Foresters (RPFs), which would give them the experience and skills necessary to safely access and harvest the stands in their tenure area, even those in difficult locations. This would also allow Tanizul Timber Ltd. to complete the necessary forest operations within the forest by simply hiring those within the Tl'azt'en Nation with the relevant skills, negating the need to hire external contractors. This would allow the Tl'azt'en Nation to gain significant revenue and profits from TFL42/CFA K4B.
This is perhaps the most important aspect that must be addressed in order for the Tl'azt'en Nation to effectively take part in the forest industry in BC. Currently, regulations regarding the ability of the Tl'azt'en Nation to manage their traditional territories are handled by both the federal and provincial governments. One of the most significant problems with BC's land tenure system, with regards to the First Nations living in the province, is the fact that tenure agreements do not in any way negate Crown land from being Crown land. As a result, tenure holders must follow the guidelines set out by MFLNRO, or they risk having their tenures revoked. This becomes especially problematic for First Nations groups such as the Tl'azt'en Nation. The economy-driven goals and objectives are often in direct conflict with the more holistic-based worldview of the Tl'azt'en Nation. As a result, the Nation has often had to compromise their own values in order to keep up with provincial guidelines. Naturally, this has created a lot of tension within the community. In addition, many in the Tl'azt'en Nation are opposed to the federal government's elected C&C governance structure, as it is not in line with their traditional form of leadership.
Instead, steps should be taken so that the Tl'azt'en Nation has full governance and management rights to their own traditional territory, independent of federal or provincial politics. By allowing them to form their own governance structure, and possibly allowing them to return to using the Keyoh and Bahlats system, the Tl'azt'en Nation would be able to manage their traditional territory on their own terms, and with their traditional values included. This would help to unify the Tl'azt'en Nation. Though this, the Nation would be able to set clear goals and tribal economic development can increase without having to compromise their own traditional values.
Clear-cut logging is a major issue in the traditional territory of the Tl'azt'en Nation. While the Nation is doing their best to try and accommodate the other tenure holders as they conduct their operations, they are concerned over possible overexploitation. At this time, they are also unable to stop these companies from extracting resources from their traditional territory, as the companies have legal tenures. Therefore, it is again highly recommended that the Tl'azt'en Nation is given full rights to their land so that they can establish their own governance system. That way, the traditional system of Keyohs and Bahlats can be re-established. This has been an extremely effective method of managing natural resources for centuries, and the federal and provincial governments need to recognize this. By allowing the Tl'azt'en Nation to form their own governance system, they would also be able to include or exclude outsiders who wish to utilize their resources, ensuring that unsustainable activities would not take place on traditional territory. In order for any positive change to take place, the first step would be to grant the Tl'azt'en Nation full governance over their traditional territory, without any political interference.
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