Consultation with First Nations in Forest Management: A Case Study on Culturally Modified Tree (CMT) Management Cons 370 Jan. 29, 2003 by Pamela Perreault, PhD Student, FRM Consultation with First Nations in Forest Management: A Case Study on Culturally Modified Tree (CMT) Management Cons 370 Jan. 29, 2003 by Pamela Perreault, PhD Student, FRM

What is a culturally modified tree (CMT)? “a tree that has been altered by native people as part of their traditional use of the forest” (MOF 1998)

Scars Scars –Tool marks Other CMTs Other CMTs Other artifacts Other artifacts Water source Water source Relatively flat land * Relatively flat land * Identifying CMTs

Why CMT management? 1. Indicator of a potential Aboriginal right 2. Indicator of potential Aboriginal title 3. CMTs are a cultural heritage resource for the province of BC 4. Education 5. Tourism

What is an Aboriginal Right? Van der Peet Decision 1996 SCC Practice, tradition or custom integral to the distinctive culture or an aboriginal society Practice, tradition or custom integral to the distinctive culture or an aboriginal society Occurred prior to European contact Occurred prior to European contact Scope and content of this right is determined on a case-by-case basis Scope and content of this right is determined on a case-by-case basis

What is Aboriginal Title? Delgamuukw 1997, SCC It is a right to exclusive use and occupation of land; It is a right to exclusive use and occupation of land; It is a proprietary interest, but is held communally It is a proprietary interest, but is held communally It is a particular kind of right that includes the right to choose to what uses land can be put to by the holders It is a particular kind of right that includes the right to choose to what uses land can be put to by the holders

What is a Cultural Heritage Resource? “those tangible and intangible aspects of cultural systems, both living and dead, that are valued by or representative of a given culture or that contain information about a culture” (qt.in Kerber 1994)

Why CMT management? 1. Indicator of a potential Aboriginal right 2. Indicator of potential Aboriginal title 3. CMTs are a cultural heritage resource for the province of BC 4. Education 5. Tourism

Canada’s Constitution Act s. 35(1) “aboriginal and treaty rights are hereby recognized and affirmed” Canada’s Constitution Act s. 35(1) “aboriginal and treaty rights are hereby recognized and affirmed” Provincial Legislation Provincial Legislation –B.C. Heritage Conservation Act –B.C. Forest Act –B.C. Forest Practices Code  Vancouver Forest Region, CMT Identification and Recording Handbook (1999) and Draft CMT Management Policy (1997) Crown Lands and Aboriginal Rights Policy Framework Crown Lands and Aboriginal Rights Policy Framework B.C. Consultation Guidelines B.C. Consultation Guidelines MOF Consultation Guidelines MOF Consultation Guidelines Until 2002…

CMT Management Procedures Step 1: Determine the potential for CMTs  Consultation and Protocol Step 2: Conduct assessments  AIA  CMT inventory Step 3: Determine significance  Cultural  Scientific Step 4: Management prescriptions  Protection  Mitigation

Where could they be? Not in my cut blocks!

And then 278 CMTs were found… What do we do now?

CMT Managemet

CMT Significance Criteria Criteria –Capacity –Cultural differences Informative Value Informative Value –Education of First Nations and Public –Inform archaeology Evidentiary Value Evidentiary Value –Aboriginal rights –Land use patterns (TUS)

After 13 meetings with archaeologists, local First Nations and Ministry officials… The following CMT management prescription was issued:

All CMTs were “preserved” according to the SP All CMTs were “preserved” according to the SP No damage was done to the CMTs during harvesting activities No damage was done to the CMTs during harvesting activities All CMTs were clearly marked and recorded in a AIA prior to harvesting All CMTs were clearly marked and recorded in a AIA prior to harvesting

Under previous Consultation Guidelines… Emphasis was put on “proving” the existence of Aboriginal rights prior to extensive consultation exercises; Emphasis was put on “proving” the existence of Aboriginal rights prior to extensive consultation exercises; The level of consultation carried out was at the discretion of the District Manager; The level of consultation carried out was at the discretion of the District Manager; Relied very heavily on “tools” such as archaeological models to “predict” the presence of CMTs; Relied very heavily on “tools” such as archaeological models to “predict” the presence of CMTs; Consultation = Consideration only Consultation = Consideration only

Was this meaningful consultation? What makes one CMT more important than another? Significance is assigned prior to harvesting, what about maintaining significance after harvesting? Who should be involved in consultation?

Provincial Consultation Policy October 2002 Post Haida decision 2002 BCCA 462 Post Haida decision 2002 BCCA 462 –Tenure holders obligation to consultation –Accommodation of First Nation interests Post Forest and Range Practices Act Post Forest and Range Practices Act –Section 152 Review and Comment and sharing with First Nations “ Lieutenant Governor in Council may make regulations ”

How is “consultation” defined? Information gathering process Information gathering process “Consideration Process” (MOF 1998) “Consideration Process” (MOF 1998) Public participation process (e.g. LRMP) Public participation process (e.g. LRMP)

Consultation Principles (BC) The onus to prove aboriginal rights or title lies with the First Nation; The onus to prove aboriginal rights or title lies with the First Nation; Through consultation, the Province must consider aboriginal interest prior to making land or resource decisions concerning Crown land activities…and attempt to address and/or accommodate concerns that are raised…provided the concerns related to interests are sound; Through consultation, the Province must consider aboriginal interest prior to making land or resource decisions concerning Crown land activities…and attempt to address and/or accommodate concerns that are raised…provided the concerns related to interests are sound; Consultation should be carried out as early as possible in the decision making process; Consultation should be carried out as early as possible in the decision making process;

Consultation Principles (BC)… The Crown must ensure the adequacy of any consultation activities that are undertaken on its behalf; The Crown must ensure the adequacy of any consultation activities that are undertaken on its behalf; decision makers should take steps to ensure consultation involves representatives from all potentially affected First Nation; decision makers should take steps to ensure consultation involves representatives from all potentially affected First Nation; Consultation processes need to be effective and timely; Consultation processes need to be effective and timely; Consultation processes should inform decision makers of any infringement on aboriginal interests; Consultation processes should inform decision makers of any infringement on aboriginal interests;

Consultation Principles (BC)… If infringement appears likely, efforts to attempt to address and/or reach a workable accommodations should be considered by the decision maker; If infringement appears likely, efforts to attempt to address and/or reach a workable accommodations should be considered by the decision maker; Consultation should be integrated over a number activities; Consultation should be integrated over a number activities; Consultation should be clearly defined to the First Nation in question; Consultation should be clearly defined to the First Nation in question; Consultation processes should illustrate how information provided by the First Nation was considered in the decision making process; Consultation processes should illustrate how information provided by the First Nation was considered in the decision making process;

Consultation Principles (BC)… Consultation will inform the First Nation of the potential effect of a proposed activity. Information should be provided in a manageable and understandable format, with adequate time for review; Consultation will inform the First Nation of the potential effect of a proposed activity. Information should be provided in a manageable and understandable format, with adequate time for review; All letters, meetings, telephone calls, site visits and other efforts by the Crown to obtain information about aboriginal interests prior to making land and resource use decisions are elements of the consultation process. All letters, meetings, telephone calls, site visits and other efforts by the Crown to obtain information about aboriginal interests prior to making land and resource use decisions are elements of the consultation process.

Operational Implementation of BC Consultation Policy (2002) Pre – consultation Assessment Stage 1: Initiate Consultation Stage 2: Consider the impact of the decision on aboriginal interests Stage 3: Consider whether any likely infringement of aboriginal interests could be justified Stage 4: Look for opportunities to accommodate aboriginal interests and/or negotiate resolution bearing in mind the potential for setting precedents that may impact other Ministries or agencies.

Questions to ponder… Who should determine the “soundness of aboriginal interests”? Who should determine the “soundness of aboriginal interests”? What will accommodation look like on the ground? What will accommodation look like on the ground? What impact will this “new” consultation process have on industry-First Nation- government relations? What impact will this “new” consultation process have on industry-First Nation- government relations? How will you as a practicing land manager engage in meaningful consultation with First Nations? How will you as a practicing land manager engage in meaningful consultation with First Nations? How will you measure the effectiveness of your consultation process? How will you measure the effectiveness of your consultation process?