Consultation with First Nations in Forest

Management: A Case Study on Culturally Modified Tree

(CMT) Management

Cons 370Jan. 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 370Jan. 29, 2003

by Pamela Perreault, PhD Student, FRM

What is a culturally modified What is a culturally modified tree (CMT)?tree (CMT)?

““a tree that has been a tree that has been altered by native altered by native people as part of people as part of their traditional use their traditional use of the forest” of the forest” (MOF (MOF 1998)1998)

ScarsScars– Tool marksTool marks

Other CMTsOther CMTs Other artifactsOther artifacts Water sourceWater source Relatively flat land Relatively flat land

**

Identifying Identifying CMTsCMTs

Why CMT management?Why CMT management?

1.1. Indicator of a potential Aboriginal Indicator of a potential Aboriginal rightright

2.2. Indicator of potential Aboriginal titleIndicator of potential Aboriginal title

3.3. CMTs are a cultural heritage CMTs are a cultural heritage resource for the province of BCresource for the province of BC

4.4. EducationEducation

5.5. TourismTourism

What is an Aboriginal Right?What is an Aboriginal Right?

Van der PeetVan der Peet Decision 1996 SCC Decision 1996 SCC Practice, tradition or custom integral Practice, tradition or custom integral

to the distinctive culture or an to the distinctive culture or an aboriginal societyaboriginal society

Occurred prior to European contactOccurred prior to European contact Scope and content of this right is Scope and content of this right is

determined on a case-by-case basisdetermined on a case-by-case basis

What is Aboriginal Title?What is Aboriginal Title?

DelgamuukwDelgamuukw 1997, SCC 1997, SCC It is a right to exclusive use and It is a right to exclusive use and

occupation of land;occupation of land; It is a proprietary interest, but is held It is a proprietary interest, but is held

communallycommunally It is a particular kind of right that It is a particular kind of right that

includes the right to choose to what includes the right to choose to what uses land can be put to by the holdersuses land can be put to by the holders

What is a Cultural Heritage What is a Cultural Heritage Resource?Resource?

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

Why CMT management?Why CMT management?

1.1. Indicator of a potential Aboriginal Indicator of a potential Aboriginal rightright

2.2. Indicator of potential Aboriginal titleIndicator of potential Aboriginal title

3.3. CMTs are a cultural heritage CMTs are a cultural heritage resource for the province of BCresource for the province of BC

4.4. EducationEducation

5.5. TourismTourism

Canada’s Constitution ActCanada’s Constitution Act s. 35(1) s. 35(1) “aboriginal and treaty rights are hereby “aboriginal and treaty rights are hereby recognized and affirmed”recognized and affirmed”

Provincial LegislationProvincial Legislation– B.C. Heritage Conservation ActB.C. Heritage Conservation Act– B.C. Forest ActB.C. Forest Act– B.C. Forest Practices CodeB.C. Forest Practices Code

Vancouver Forest Region, Vancouver Forest Region, CMT Identification CMT Identification and Recording Handbookand Recording Handbook (1999) and (1999) and Draft Draft CMT Management PolicyCMT Management Policy (1997) (1997)

Crown Lands and Aboriginal Rights Policy Crown Lands and Aboriginal Rights Policy Framework Framework

B.C. Consultation GuidelinesB.C. Consultation Guidelines MOF Consultation GuidelinesMOF Consultation Guidelines

Until 2002…Until 2002…

CMT Management CMT Management ProceduresProcedures

Step 1: Determine the potential for CMTsStep 1: Determine the potential for CMTs Consultation and Protocol Consultation and Protocol

Step 2: Conduct assessmentsStep 2: Conduct assessments AIAAIA CMT inventoryCMT inventory

Step 3: Determine significanceStep 3: Determine significance CulturalCultural ScientificScientific

Step 4: Management prescriptionsStep 4: Management prescriptions ProtectionProtection MitigationMitigation

Where could they be?

Not in my cut blocks!

And then 278 CMTs were found…

What do we do now?

CMT Managemet

CMT SignificanceCMT Significance

CriteriaCriteria– CapacityCapacity– Cultural differencesCultural differences

Informative ValueInformative Value– Education of First Education of First

Nations and PublicNations and Public– Inform archaeologyInform archaeology

Evidentiary ValueEvidentiary Value– Aboriginal rightsAboriginal rights– Land use patterns Land use patterns

(TUS)(TUS)

After 13 meetings with archaeologists, local First Nations and Ministry officials…

The following CMT management prescription was issued:

All CMTs were All CMTs were “preserved” “preserved” according to the SPaccording to the SP

No damage was No damage was done to the CMTs done to the CMTs during harvesting during harvesting activitiesactivities

All CMTs were All CMTs were clearly marked and clearly marked and recorded in a AIA recorded in a AIA prior to harvestingprior to harvesting

Under previous Consultation Under previous Consultation Guidelines…Guidelines…

Emphasis was put on “proving” the Emphasis was put on “proving” the existence of Aboriginal rights prior to existence of Aboriginal rights prior to extensive consultation exercises;extensive consultation exercises;

The level of consultation carried out The level of consultation carried out was at the discretion of the District was at the discretion of the District Manager;Manager;

Relied very heavily on “tools” such as Relied very heavily on “tools” such as archaeological models to “predict” the archaeological models to “predict” the presence of CMTs;presence of CMTs;

Consultation = Consideration onlyConsultation = Consideration only

Was this meaningful Was this meaningful consultation?consultation?

What makes one CMT What makes one CMT more important than more important than another?another?

Significance is assigned Significance is assigned prior to harvesting, what prior to harvesting, what about maintaining about maintaining significance after significance after harvesting?harvesting?

Who should be involved Who should be involved in consultation?in consultation?

Provincial Consultation PolicyProvincial Consultation Policy October 2002 October 2002

Post Haida decision 2002 BCCA 462Post Haida decision 2002 BCCA 462– Tenure holders obligation to consultationTenure holders obligation to consultation– Accommodation of First Nation interestsAccommodation of First Nation interests

Post Post Forest and Range Practices ActForest and Range Practices Act– Section 152 Review and Comment and Section 152 Review and Comment and

sharing with First Nations sharing with First Nations ““Lieutenant Governor in Council may make Lieutenant Governor in Council may make

regulationsregulations””

How is “consultation” How is “consultation” defined?defined?

Information gathering processInformation gathering process ““Consideration Process” Consideration Process” (MOF 1998)(MOF 1998)

Public participation process (e.g. Public participation process (e.g. LRMP)LRMP)

Consultation Principles (BC)Consultation Principles (BC)

The onus to prove aboriginal rights or title The onus to prove aboriginal rights or title lies with the First Nation;lies with the First Nation;

Through consultation, the Province must Through consultation, the Province must consider aboriginal interest prior to making consider aboriginal interest prior to making land or resource decisions concerning land or resource decisions concerning Crown land activities…and attempt to Crown land activities…and attempt to address and/or accommodate concerns address and/or accommodate concerns that are raised…provided the concerns that are raised…provided the concerns related to interests are sound;related to interests are sound;

Consultation should be carried out as early Consultation should be carried out as early as possible in the decision making process;as possible in the decision making process;

Consultation Principles (BC)Consultation Principles (BC)……

The Crown must ensure the adequacy of The Crown must ensure the adequacy of any consultation activities that are any consultation activities that are undertaken on its behalf;undertaken on its behalf;

decision makers should take steps to decision makers should take steps to ensure consultation involves ensure consultation involves representatives from all potentially representatives from all potentially affected First Nation;affected First Nation;

Consultation processes need to be Consultation processes need to be effective and timely;effective and timely;

Consultation processes should inform Consultation processes should inform decision makers of any infringement on decision makers of any infringement on aboriginal interests;aboriginal interests;

Consultation Principles (BC)Consultation Principles (BC)……

If infringement appears likely, efforts to If infringement appears likely, efforts to attempt to address and/or reach a attempt to address and/or reach a workable accommodations should be workable accommodations should be considered by the decision maker;considered by the decision maker;

Consultation should be integrated over a Consultation should be integrated over a number activities;number activities;

Consultation should be clearly defined to Consultation should be clearly defined to the First Nation in question;the First Nation in question;

Consultation processes should illustrate Consultation processes should illustrate how information provided by the First how information provided by the First Nation was considered in the decision Nation was considered in the decision making process;making process;

Consultation Principles (BC)Consultation Principles (BC)……

Consultation will inform the First Nation of Consultation will inform the First Nation of the potential effect of a proposed activity. the potential effect of a proposed activity. Information should be provided in a Information should be provided in a manageable and understandable format, manageable and understandable format, with adequate time for review;with adequate time for review;

All letters, meetings, telephone calls, site All letters, meetings, telephone calls, site visits and other efforts by the Crown to visits and other efforts by the Crown to obtain information about aboriginal interests obtain information about aboriginal interests prior to making land and resource use prior to making land and resource use decisions are elements of the consultation decisions are elements of the consultation process.process.

Operational Implementation of Operational Implementation of BC Consultation Policy (2002)BC Consultation Policy (2002)

Pre – consultation AssessmentPre – consultation AssessmentStage 1: Initiate ConsultationStage 1: Initiate ConsultationStage 2: Consider the impact of the decision Stage 2: Consider the impact of the decision

on aboriginal interestson aboriginal interestsStage 3: Consider whether any likely Stage 3: Consider whether any likely

infringement of aboriginal interests could infringement of aboriginal interests could be justifiedbe justified

Stage 4: Look for opportunities to Stage 4: Look for opportunities to accommodate aboriginal interests and/or accommodate aboriginal interests and/or negotiate resolutionnegotiate resolution bearing in mind the bearing in mind the potential for setting precedents that may potential for setting precedents that may impact other Ministries or agencies.impact other Ministries or agencies.

Questions to ponder…Questions to ponder… Who should determine the “soundness of Who should determine the “soundness of

aboriginal interests”?aboriginal interests”? What will accommodation look like on the What will accommodation look like on the

ground?ground? What impact will this “new” consultation What impact will this “new” consultation

process have on industry-First Nation-process have on industry-First Nation-government relations?government relations?

How will you as a practicing land manager How will you as a practicing land manager engage in meaningful consultation with engage in meaningful consultation with First Nations?First Nations?

How will you measure the effectiveness of How will you measure the effectiveness of your consultation process? your consultation process?