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Familiar problem threatening to explode

By Jim Stirling

As if the forest industry doesn't have enough concerns, a familiar problem is seething just below the surface, threatening to explode.

First Nations representatives in many parts of British Columbia are becoming increasingly frustrated with the lack of progress senior governments are making toward addressing their concerns. Many of those concerns focus on demonstrating meaningful consultation and adequate accommodation of aboriginal interests.

As part of that, a forestry plan has been developed by the First Nations and presented to the provincial government along with a clear message.

"Unless there is some action in the very near future, there most certainly is the risk for escalating conflict and that's not just conflict that's already happening in the courts. We're talking about the kind of potential for major unrest," Shawn Atleo warned reporters in Prince George last October.

Contrast that statement with what Atleo, a representative of the B.C. Assembly of First Nations, told the Logging & Sawmilling Journal in January 2008. He said there were growing pockets of discontent within his constituency, especially among younger people.

He was trying to defuse them and keep the lid on the situation. Atleo said the assembly was trying to maintain a reasoned approach, underpinned by the recognition of First Nations as governments and partners. Clearly, the situation has become worse since then.

The key element in the First Nations forestry plan is for legislation--before the May provincial election--to enable the creation of First Nations tenures. Wood for that, they say, should come from the approximately 20 per cent of the annual Crown timber supply dispersed through B.C. Timber Sales.

Many native groups in B.C. have already received forest licences and signed forestry agreements with the provincial government totaling in the tens of millions of cubic metres of timber. Some of the licences have been short term and non-renewable, which native groups say is uneconomical given today's timber marketing realities.

Other demands the First Nations are making include: entrenching in legislation First Nations title and rights; requiring BC Hydro to include First Nations as partners in future bio-energy requests; and encouraging the federal government to make good on its commitment to give 20 per cent of its $1 billion beetle relief package to First Nations.

The 20 per cent figure in the latter demand is curious given that the native population in the province is closer to 10 per cent of the total.

The promotion of native rights through the court system continues to produce decisions which while not conclusive, add more to the natives' position than the Crown's. For example, a B.C. Supreme Court ruling last summer found the province--through the Ministry of Forests and Range--failed to adequately accommodate a First Nation when renewing log harvesting licences in the Nass and Kispiox regions of northwestern B.C.

Madam Justice Kathryn Neilson noted in her ruling that consultation between the government and the native band did take place. "The issue is whether that consultation process was reasonable and whether any resulting accommodation was adequate," she wrote. "The Crown's obligation to reasonably consult is not fulfilled simply by providing a process within which to exchange and discuss information."

Clearly, one court, one day must tackle a workable definition of what does and what does not constitute meaningful consultation or adequate accommodation. The possible interpretations need to be confined for the protection of both parties' rights and to allow the process to move forward.

Obviously, this is a complex issue with wide-ranging implications. But the status quo of trying to re-establish relationships with native groups based on legalese quicksand is no way to re-construct fairness and good faith.

The word fairness is questionable in the context of B.C.'s attempts to forge better relationships with its First Nations. Firstly, how fair is it for the forest industry to be front and centre as the means to correct all native frustrations? There is no doubt the living conditions for many First Nation communities fall pitiably short of acceptable standards. It is a national disgrace. But should that be laid so disproportionately at the forest industry's door simply because it is a land user?

Secondly, every workable agreement between parties has in its structure elements of give and take that contribute to its effectiveness. Successful negotiations require it.

Although native groups clearly and in many cases, rightly, feel hard done by, they must also play their role, especially navigating the murky waters of meaningful consultation or adequate accommodation. Trying to consult, meaningfully or otherwise, with a native band or group is very frequently another exercise in frustration. The complex familial clan structure within groups plus their internal political machinations make it more than challenging for businesses to get a straight answer, let alone a consistent one.
The native groups would be doing themselves and the process a great favour, flawed though it is, if they could first do their own internal homework and preparation. So when a forest company comes knocking on the door, eager for meaningful consultation and adequate accommodation, it can be directed to an office with designated spokesmen who can speak with authority on the band's position and expectations. And further, what emerges from that can be recognized by all parties as an honest and binding attempt to further their respective interests.

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March Logging and Sawmilling Journal

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