Long Logging Road
Achieving a long term solution to native logging rights in New Brunswick is going to be a long and winding road.
By Harold Hatheway
After much controversy, native loggers are now back cutting on New Brunswick Crown lands. But this time it's on their own allocations, with Department of Natural Resources (DNR) staff specifically assigned to help develop longterm, professional native forestry units-and functioning inside the Crown Lands Act. It's a welcome, and important, change from earlier confrontation and violence, but the road ahead is long and has some major challenges. When the 1998 Turnbull court decision supported native treaty rights to Crown lands, unlicensed native crews began cutting choice timber where they saw fit. Forest industry leaders demanded immediate government action-some making scarcely veiled threats-and natives and the nonnatives working with them were arrested. An appeal court reversal solved nothing: having tasted employment and income, natives flatly rejected a return to being shut out of forestry, potential legal solutions were years down the road, and the politicians were on the spot. Underlying all this is DNR's longrange objective to have all commercial forest activity on public lands operating under the Crown Lands Act, a complex, longrange, forest management policy involving government, major companies (leasees) and many smaller companies (subleasees).
It is a process designed to ensure forestry will always be a major, sustainable part of the provincial economy. At the heart of the process are the "evergreen" fiveyear leases, tied to the demonstrated requirements of pulp, paper and sawmills, in return for which leasees must meet stringent and increasingly complex management requirements on their operations and those of their subleasees. It has taken 20 years and much effort to reach the current level of efficiency and understanding.
Adding native operations, outside the existing leasee/subleasee framework and with no measurable mill requirements, poses major challenges to all players-not the least of which is lack of communication. Recent confusion about the 25year planning projection is an example of that lack of communication. DNR, of course, knew this vital part of the management process was not included in the binding agreement, but overlooked native unfamiliarity with such details-and a muddled media report left some native leaders upset about "25 year agreements". The Crown Lands Act was developed by DNR and industry, after extensive consultation and negotiation, and has evolved through more than 20 years of change and sometimes difficult adjustment. The native community had no history of involvement with Crown land operations, nor with DNR as the authority-in fact it had only confrontations in the past. Complicating matters is the turbulent, sometimes unstable, political structure of some bands and native umbrella groupings, and the strong feeling of some natives that existing council and chiefs structures had been imposed and lacked the authority to speak, much less enter into binding agreements, for bands or their members. The provincial government has avoided that situation for the moment by using Ottawa's decision to recognize only chiefs and councils. But until there is a native resolution, the problem won't go away. It was against that background, in a precedent setting move which acknowledged the longstanding socioeconomic crisis on the reserves, and the potential for Crown land access to offset it, that government came up with its "interim" proposal. Using the fact that natives make up about two per cent of the provincial population, the same percentage of Crown land would be reallocated for native logging, subdivided between bands on a per capita basis.
That didn't fly-quantities would have been unrealistic for smaller bands-and native leaders counter proposed 30 to 40 per cent. After discussions, DNR made a firm offer of five per cent of currently allocated Crown land, plus a rebate of all stumpage charges. Band reaction varied from quick acceptance to rejection-primarily on the grounds that five per cent was too little-plus objections from individuals and groups (Native Loggers Association, Aboriginal Peoples' Council and others) claiming the chief and councils could not speak or act for them. Industry, while insisting that loss of any allocation could affect jobs and production, accepted the proposal as an interim solution to the postTurnbull uncertainty. Government held firm on the five per cent aspect and oneyear agreements were entered into for the 199899 season, all with a proviso that they were "interim" and would in no way affect the results of current or future court or land claim decisions. Brad Green, who combines Aboriginal Affairs with the Justice and AttorneyGeneral portfolios, acknowledges that several native groups are cooperatively developing land claims. Between them, the Mawi Council and the Union of New Brunswick Indians represent the 15 bands or First Nations and the Aboriginal Peoples' Council speaks for offreserve natives. However Green makes it clear that this is in all respects a federal process, and while he has met with these groups, it is in no way "negotiations". Early in 1999, DNR's Jeff Patch, an experienced district ranger, was assigned to negotiate agreements to begin in 1999 and run for one, two or three years.
The reasoning was that by 2002-when the next industry fiveyear leases were due-fiveyear agreements with native bands would mean that all Crown land would be under the same forest management system. After lowprofile discussions, eight threeyear and seven oneyear agreements were signed and executive director Julius Tarjan explains that administration has now been decentralized to his five ranger districts, just like the big company leases. Clifford Sacobie, coordinator of forestry operations for the Kingsclear Band on the St. John River near Fredericton, has obviously given careful thought to the opportunities and challenges facing his community. In 199899 the Kingsclear operation, regarded as one of the more successful in the province, cut a total of 17,881 cubic metres, worth about $1.1 million (estimated mill value) with a return of $194,258 in royalty payments to the band. However, as Sacobie says: "The whole point of this is to provide employment and income but, unless we can get our own machinery, we have to pay nonnatives to bring in skidders and trucks and, because they insist on bringing in their own cutters (chainsaw operators), they get almost all the money ." Asked if he thought DNR's objective of fiveyear agreements was a good idea, Sacobie chuckled. "I'm only under contract with the band to manage forestry for this threeyear contract. Maybe somebody else will be making that decision. Longer agreements would help get bank loans, but there are concerns about how they might affect land claims ." Up the river valley at the Tobique First Nations, Aaron Nicholas is responsible for forestry under that band's oneyear contract.
Why not three years? "Well, there were concerns about how future land claims might be affected, and the five per cent was not really enough. But all that aside, the agreement is working and while it will take time to work out the glitches and get up to speed, there is real potential ." Unlike Kingsclear, Tobique has a history of education and entrepreneurship and there were band members who owned skidders, eliminating the pressure to use nonnative cutters. Incidentally, the Tobique band has an ongoing program of traditional ecological management and has partnered with Fraser Inc, the area leasee, to develop it-so there is a specific policy of no heavier equipment in the operation. Some training was provided in cooperation with DNR at the beginning- probably 80 per cent of the work force is now trained and there are plans to train the balance. This, of course, has meant higher employment of band members, a major objective of the whole program. In 1998 99, Tobique cut 42,716 cubic metres, worth $2,684,602 (estimated mill value), with a royalty return of $432,720 and, because of the use of native workers, this was a major economic boost for the band. At the halfway point through the second year of the program there are major positives and negatives. On the positive side, all bands have signed agreements-more than half for the threeyear version-and harvesting is under way without confrontation. However, most bands are operating far below the potential for employment and income-the basic objectives of the program-and that's negative. Results run all the way from Tobique, where trained workers and native owned equipment mean jobs and dollars go where they are intended, to the majority of bands where a very large proportion of the potential employment and income is being diverted to nonnative contractors, simply because most bands and members do not have the capital to purchase machinery or the skills to operate it.
Jeannot Volpé, Minister of Natural Resources, while aware of the problem, feels strongly that "progress has been and will continue to be made". "The first year, the natives were not familiar with the rules and requirements under the Crown Lands Act, and they didn't have the training for woods operations. We have provided training, because we don't want to see workers hurt. Now they are beginning to do their own training. "Under one year agreements, the first year it wasn't possible to get funding for equipment, but with threeyear agreements bands were able to get funding and equipment. Tobique is a good example-a model ." About the future, the Minister was optimistic, but careful. "The idea of opening up this and other programs to native people is something we are going to do. However, Crown lands allocations are based on proven needs of leasees and subleasees, while the native allocation is simply an amount taken from the total. "The next round of leases comes up in 2002, when we'll have to look at the AAC for the next five years, and then decide how to divide it up between leasees, subleasees, marketing boards and the natives. Until we have the figures I couldn't speculate on who would get how much ." Regardless of allocations, unless bands can develop "owned and operated" forestry units to keep jobs and income in native hands, the bright promise of a decent life will prove to be a mirage.
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