SENATE SUBCOMMITTEE ON THE BOREAL FOREST

COMPETING REALITIES: The Boreal Forest at Risk


CHAPTER 3 

ABORIGINAL REALITIES
Traditional Land Use Issues
Other Uses of the Forest: Business and Employment Opportunities
Jurisdictional Issues and Recent Developments
RECOMMENDATIONS


ABORIGINAL REALITIES

Traditional Land Use Issues

Canada has three aboriginal peoples – the original inhabitants of the land: First Nations Métis and Inuit. The boreal forest is home to approximately 500 First Nations communities and hundreds of Métis communities(163). Over thousands of years, native people have evolved close and efficient interaction with the land, making use of a large variety of trees, shrubs, herbs, moss and fungi for everything from food, medicine, clothing, and building materials to ceremonial materials. Likewise, many species of wildlife are used for food, clothing, medicine, decoration, and other purposes. The knowledge of how, where and when to harvest these resources, how to preserve, prepare and use them is part of their traditional knowledge passed from generation to generation.

Harvesting these resources involved moving from place to place. The traditional territory used by a First Nations community was much larger than the reserves on which they are now located; annual travel might encompass hundreds of kilometres. A typical year-round cycle of activity in the northwestern boreal forest included hunting and trap preparation in the fall, fishing and trapping in winter, trapping (beaver and muskrat) in spring, plant-gathering in summer, and year-round preparation of harvested materials.(164)

As long-term residents of the land, native people evolved a land ethic revolving around a sense of stewardship. Rules and principles such as: take only what you need; consider the effects of your actions on your successors, to the seventh generation; respect Mother Earth and the animals she provides; no one owns the earth, it is there to be shared and then passed down along with ways to use the land from generation to generation.

Contacts with white or European culture and economies brought many changes. In most parts of Canada, treaties were signed between the federal government and native groups to reduce conflicts and assist with European settlement. Reserves were created and aboriginal rights, including the rights to land, rights to hunt, fish and gather, as well as cultural rights were affirmed(165). Native signatories interpreted these treaties as agreements to share the land with the newcomers.(166)

Métis descended from marriages between aboriginal and white persons and were classified as either Treaty Indian or not under the Indian Act. If classified as Treaty Indian, they could live on the reserve and be granted treaty, food and harvesting rights. If not so designated, they received no title to lands or resources (except in Alberta, where there has been a provincially designated land base since 1939). As a result, many Métis and Indians live in communities that have no land base for economic development.(167)

In a relatively short time, native people found their traditional off-reserve hunting and fishing lands taken over by settlers, loggers, white trappers, miners and others who valued the land for its market price or what it could provide for sale. In recent years, resource exploration and development, road-building, damming of rivers, and industrial timber harvesting have severely infringed upon native use of the land.

Throughout the country, the Subcommittee heard from native groups that family trapping areas and wildlife habitat have been destroyed even while people are still attempting to carry on these traditional activities.

"At one point there were 11 forestry companies operating within the area of the territory of the [52 Waswanipi community] traplines...As of now, I believe there are somewhere around seven to eight companies operating in Waswanipi." (168)

"It is pretty hard to have a trapline going through the middle of a clear-cut." (169)

"Used to be nobody bothered the timber, there was a lot of fur. Now they’re taking all the timber and there’s no fur hardly anywhere. The animals just freeze.....We saw two moose frozen and the boy said, there’s no bush to go to. That’s why they are frozen. We just about cry when we saw the frozen moose." (170)

Aboriginal groups told the Subcommittee that over-harvesting of timber is taking place under permits granted by the provinces on their traditional lands in spite of meetings with forestry companies during which they have delineated their traditional use areas.

The application of herbicides by some forestry companies to suppress competing vegetation has made native people feel that the medicinal plants and berries they are gathering are no longer healthful. Fish populations are affected as a result of machinery working in streambeds, disrupting the flow of water and silting up of streams; run-off of herbicides, and debris from timber harvesting.

"Don’t eat the wild berries.’ This sign, put up by the Ontario Ministry of Natural Resources, says a lot. Sadly, it is indicative of a host of other contaminants that are ruining our forests. Mine tailings have destroyed fish and forest habitat. Sprayed areas are devoid of wildlife and birds. Chemicals from sprays leach into our river and lake systems...Clear-cutting destoys our trap lines...Fish ladders are not installed when rivers are dammed." (171)

These losses, along with the loss of their language and culture in non-native educational systems, have been socially disorienting.

"Our communities have very high levels of alcoholism, substance abuse, gang-led youth, sexual abuse – all of the conventional indicators of mental health breakdown. We believe the indicators are directly linked to the destruction of the institutional relaltionship between our people and the forests" (172)

In eastern Canada, where contact with European culture occurred long before it did in the West, traditional ways have nearly been lost.(173) Nevertheless, many native people today strive to take part in the market economy while maintaining their customs, values and connection to the land. As Mr. Steve Ginnish of the Eel Ground First Nation put it:

"I am a forester. I went to university to get my education. I am a tribal individual who practises my traditional ways, and I live on an Indian reserve." (174)

Several native presenters reported a renewal of traditional ways in their communities. While sending their children to schools, they are also trying to teach them the ways of the elders. Medicinal herbs are again being gathered.

In remote northern communities, traditional ways been much less disrupted. A Canadian Forest Service-commissioned study of traditional forest-related activities occurring in the predominantly native communities of Nahanni Butte and Liard River in southwest N.W.T. found many traditional activities being practiced. Some individuals are totally dependent on the bush, while others make their living from employment and still others participate in both seasonal employment and bush life. Many young people are engaged in trapping. Elders living in the bush rely considerably on fish and small game. Harvested food is shared and supplies a large proportion of the dietary needs of these communities.(175)

The cash replacement value of the materials harvested from the forest by these two communities — wild meat (moose, fish, bear, caribou, rabbit, grouse), animal furs, firewood, and crafts — was estimated to be between $950,000 and $1.7 million per year(176). This does not include medicinal plants, wood products made for their own use, skin clothing, bush cabins or guiding activities from tourism and hunting. The study concluded that financial compensation for the harvested materials could not adequately replace many of the items and would not constitute an acceptable alternative, as the harvesting and related activities are integral to the peoples’ way of life(177). During its visit to Manitoba, the Subcommittee heard a similar account concerning First Nations communities in Northern Manitoba. In the area that is home to the 26 northern-most First Nations of Manitoba, the replacement value of fish and game harvested in the area has been calculated by researchers at $30 to $35 million a year. The Subcommittee was told that:

"If you had to replace the game and fish our people harvest and bring home and pay cash at a northern store, at Safeway (where prices are nearly double Winnipeg prices), it would take $30 to $35 million to do it." (178)

 

Other Uses of the Forest: Business and Employment Opportunities

Roughly 80 per cent of Canada’s First Nation communities are situated in forested areas(179). Native forest communities, with their high rates of population growth and unemployment, are turning to the forest sector for employment and for commercial ventures such as value-added forestry products, guiding and wilderness tourism.

In most cases, First Nations presenters said that the forest resources on their reserve lands are inadequate to sustain such activities. According to the estimates of the Canadian Forest Service in 1992, harvest levels on reserve forests represented 25 per cent of the annual potential allowable cut(180). Mr. Bombay stated that many reserves have woodlots but no mills to process their wood; thus value-added opportunities are limited unless partnerships are developed.(181)

One forest that is being sustainably managed by the community is on the Eel Ground Reserve in New Brunswick. The manager of this forest, and also other native presenters, told the Subcommittee that his ability to carry out sustainable forest management is greatly hindered by provisions of the Indian Act. Under the Act, the authority to issue timber permits resides, not with the community, but with the Minister of Indian and Northern Affairs Canada (INAC)(182). In fact, as soon as a First Nations Community begins to implement sustainable resource management practices on reserve land, they are breaking the law. INAC is currently reviewing this problem.(183)

Most aboriginal witnesses stressed that access to Crown land resources outside their designated areas is essential if native people are to develop self-sufficiency through forestry-related enterprises. Such access is not generally available to aboriginal people, except in the province of New Brunswick, which allocates 5 per cent of its annual allowable cut to be shared by all First Nations bands. Shared access is also practiced in a few licensed areas in Saskatchewan.(184)

Many First Nations communities want to develop a self-sustaining economic base.

"Our people do not want to settle for one-fifteenth of 5 per cent (the band’s share) of the total forestry operations because it would not meet our needs. We want to be able to create job opportunities for our people and reduce our unemployment rate by another 15 per cent. "(185)

However, as noted by the Royal Commission on aboriginal Peoples, the amount of unallocated forest lands on which this can take place is steadily diminishing.(186) Another obstacle is the fact that federal ministerial approval is still also required in order to start a business in a native community.(187)

The need for capital funding, training, and capacity-building in areas such as forest management and value-added manufacturing were raised by many native people. Partnerships and co-management enterprises between aboriginal people, industry and governments are seen as a partial solution. These should encourage input and direction from aboriginal groups, as well as the private interests who are frequently the driving forces in such enterprises.

An example of one rather unique enterprise is NorSask Forest Products Inc., which operates a sawmill, now 100 per cent owned by the Meadow Lake Tribal Counci. It was previously owned jointly by the Tribal Council and Millar-Western, the latter also being the owner on an adjoining pulp mill. In 1988 the Saskatchewan Government granted NorSask a long-term Forest Management Licence Agreement for 3.3 million hectares in northwestern Saskatchewan.(188) As clearcutting progressed, a split developed within the native communities affected by the cutting. Some advocated a continuation of logging to preserve employment and others wanted to stop the cutting. Protests, blockades and arrests ensued. Eventually, all charges were dropped.(189) The heavy amount of cutting has been blamed, by some, on the provincial forestry laws(190). Today, local co-management processes are in place and environmental assessment covering a 20 year time frame has been completed and approved. The lesson, however remains: native communities want forestry employment, but not at the expense of the environment. As stated by Mr. Bombay:

"From the aboriginal point of view, there is a delicate balance between traditional and preservation aspirations as opposed to economic development. Aboriginal people are wrestling with that issue all the time. Each community has a different perspective."(191)

A recent study on forest industry perspectives on aboriginal people, commissioned by the Canadian Forest Service, concludes that the large forest industry firms believe that closer ties between themselves and aboriginal communites would benefit both the communities and themselves. However, most have no special programs for hiring aboriginal people, and only a handful of industries had a significant number of native employees. (192)

Some of the companies which met with the Subcommittee have addressed aboriginal employment and economic issues. For example, representatives from Tembec told the Subcommittee that Tembec has a large number of native people working in its pulp, paper and saw mills in Quebec and has a variety of agreements with aboriginal communities across four provinces.  (193)(194) Alberta-Pacific Forest Industries also told the Subcommittee that it employs native people in all aspects of its operations and has policy objectives encouraging aboriginal training and the development of business opportunities.(195) With a local reserve, the company has started a selective logging program using horses. The Canadian Pulp and Paper Association told the Subcommittee that 10 per cent of the pulp and paper industry’s workforce is comprised of aboriginal people(196). NorSask Forest Products trains native people to run their sawmills.

A chief forester at Tembec expressed his frustration in setting up economic arrangements with native communities:

"In an attempt to develop economic benefits, the politics of the issue often gets in the way, and politics is in play on many levels. Whose traditional area is it? Who should we sit down with to develop economic benefits from the harvesting of those resources, Band A or Band B? Is it between the band and the government? Is it an in-band decision? Is it between the chief and the economic development group? These are all issues that we have to deal with that make it difficult for us to sit down and develop a long-term business partnership."(197)

Industry-aboriginal consultations are not satisfactory to either side. In its brief to the Subcommittee, the National Aboriginal Forestry Association (NAFA) stated that governments should not be asking industry to deal with aboriginal people on treaty rights. First Nations have a relationship with government and that is the mechanism by which it should be done.(198)

NAFA also told the Subcommittee that there are eight First Nations forest companies barely surviving and two others that have had to fold because of lack of access to the U.S. softwood lumber market. First Nations companies have been given about .02 per cent of the softwood lumber quota in four provinces.(199)

In its 1995 report "Gathering Strength," the federal government made commitments to build capacity for development and implementation of professional development strategies in lands and environmental stewarship, in land and resource management; and in increased funding for resource initiatives. INAC has been involved in assisting First Nations with funding for forestry activities, for example in the First Nation Forestry Program which has as its goal the attainment of self-sufficiency in forestry activities by First Nations(200). However, the program will expire in 2001 and funding is declining annually from the budget of $5 million in 1996. As of 1998, the program had brought in a significant amount of money from other partnering sources and NAFA is examining funding mechanisms by which such funding could be continued(201). Several other federal programs have been used to help First Nations members acquire access to forested Crown land, training in forestry skills, and business start-up assistance. These programs include the Resource Access Negotiations Program and the Resource Acquisition Initiative of INAC; training programs under Human Resources Development Canada; and the Aboriginal Business Canada program of Industry Canada.(202) The Subcommittee was told that no such programs exist for the Métis, even though they have been recognized in the constitution as an aboriginal people.

 

Jurisdictional Issues and Recent Developments

The transfer of jurisdiction over natural resources to provincial governments created a difficult situation for the protection of the aboriginal Treaty rights and the rights to hunt, trap, fish and gather. Although the federal government retained the responsibility to protect these rights, management of the land and its resources is now under provincial control, with the exception of certain aspects including fish, endangered species, migratory birds, and navigable waters. When allocating timber, provinces have generally disregarded aboriginal rights.

"The exploitation of forests seems to be an overriding right; it appears that the right of aboriginal people to develop their territory is not as valid as the industry’s right to exploit the forest."(203)

Native groups have had to resort to the courts in many cases to halt development on their traditional lands. This has only happened in the last few decades, as prior to that,

"We were sitting back and waiting for the promises to be fulfilled, waiting for the commitments that government and industry promised First Nation communities long ago. We came to the realization that this just was not going to occur, however, and that many of the promises were going to be broken. We started to speak our minds.(204)

A number of Supreme Court decisions have ruled in favor of their rights on these lands, and the updated Constitution Act in 1982 has re-affirmed the existence of aboriginal rights and the responsibility of the government to protect them. The interpretation of aboriginal and treaty rights has been evolving as land claims are negotiated(205). Several aboriginal presenters urged the Subcommittee to seek a resolution of land claims as a help in this regard. However, as the Métis representative pointed out, his people are frozen out of land claims and there are no programs to assist Métis in accessing a land base.(206)

The situation today with regard to the provinces’ honouring of aboriginal rights varies from province to province. Some provinces acknowledge in law the right of First Nations to hunt, trap and fish, but do not protect traditional lands from resource development. Some have required forest companies to contact or ‘consult’ with First Nations directly about management plans. Native speakers pointed out to the Subcommittee that in dealing with a large forest company, a local native community is often at great disadvantage. For example, it may lack expertise at predicting the results of a cutting plan(207). Moreover, as the Delgamuukw case in British Columbia stated, "the involvement of aboriginal peoples in decisions taken with respect to their lands" is required for meeting the Crown’s fiduciary obligation.(208) Hence, First Nations maintain they should be consulted as partners in decision-making(209). Some provinces have begun to address aboriginal rights through forestry legislation and policies requiring consultation and negotiation.

Some forest industries have incorporated aboriginal land use into their forest management plans; for example, Alberta-Pacific Forest Industries Inc. and NorSask Forest Products have shared decision-making processes at the local level.

Métis spokespersons stated that the aboriginal rights of the Métis, while recognized in court decisions, have not been included in policies regarding consultations and continue to be ignored by governments at all levels.

"Everywhere we turn, provinces are using all their power to circumvent and act in direct contravention of the Supreme Court of Canada’s decision on the rights of Métis people to hunt and fish for food." (210)

The recent Powley case in Ontario (1998) affirmed the aboriginal rights of the Métis community to hunt and fish for food. Similar decisions in Manitoba and Saskatchewan have been upheld at the appeal court level.

The significant role that aboriginal peoples should have in forest policy, planning and management was acknowledged by the Canadian Council of Forest Ministers (CCFM) in the National Forest Strategy of 1998, which put forward action plans "to ensure the involvement of aboriginal peoples in forest management and decision-making, consistent with aboriginal and Treaty rights; and to recognize and make provision for aboriginal and Treaty rights in sustainable forest management." (211)

The CCFM also put forward plans to "increase access to forest resources for aboriginal communities to pursue both traditional and economic development activities"(212)

With regard to employment and business development in forestry, the CCFM’s objectives are to "support aboriginal employment and business development in the forest sector and increase the capacity of aboriginal communities, organizations and individuals to participate in and carry out sustainable forest management."(213)

The 1997 Blue Ribbon panel’s review of progress toward achieving these goals notes that "some progress" has been made in the area of aboriginal business development. Industry Canada has sponsored research and seminars into value-added opportunities, and the federally funded First Nations Forestry Program has examined business opportunities. Industry Canada has put $25 million into 475 business projects in forestry and related industries since 1989. The National Aboriginal Forestry Association, together with Employment and Immigration Canada have bugun to address aboriginal training and employment needs in the forestry sector.(214)

The National Forest Strategy also makes the following promise:

"We will recognize and make provision for aboriginal and Treaty rights in sustainable forest management;" and

"We will increase access to forest resources for aboriginal communities to pursue both traditional and economic development activities." (215)

For the most part, this has fallen on deaf ears. Using problems arising from split jurisdiction as an excuse, buck-passing between the federal and provincial governments on this issue has been the order of the day.(216)

 

RECOMMENDATIONS

  • Indian Affairs and Northern Development Canada, the Canadian Forestry Service, and other federal agencies must live up to the federal government’s responsibilities regarding Métis and First Nations in all of their programs dealing with aboriginal forestry issues.
    • Governments should not grant timber harvesting rights to forestry companies on traditional lands used by aboriginal peoples for centuries or in areas of disputed land claims without adhering to the most recent court decisions. The Subcommittee also supports the timely resolution of aboriginal land claims.
    • The Crown’s fiduciary duty to protect and honour aboriginal rights must be clearly acknowledged by the provinces as being a shared responsibility with respect to forestry matters. This includes the responsibility of governments to participate in negotiations between aboriginal people and forest industry representatives.
    • Forestry companies must include traditional aboriginal land uses in planning on any forested area that is a traditional aboriginal use area, or where forestry practices might infringe upon treaty rights.
    • Continued and expanded mechanisms for partnering between government, industry and aboriginal peoples with regard to forestry training, business development, access to a forest land base, and employment opportunities must be found.

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