MacMillan Bloedel Parks Settlement Agreement Decision
Before exploring the specific issues raised by members of the public, I will summarize the tone and content of the submissions made to me.
Based on the public consultations I have carried out, there is overwhelming opposition to the use of land or resource rights for the purpose of compensating MB. The reaction against use of Crown land was particularly strong but I noted very little distinction in the public mind between deregulation of the Schedule A land held by MB and privatizing Crown land, whether or not the Crown land is currently within a Tree Farm License.
At public hearings, opposition to use of land or resource rights as compensation ranged from as low as 60% to as high as 95% at some hearings, while the written submissions are virtually unanimous in opposition to this option. In fact, of 1,100 written submissions received, less than 20 were in support of using land and resource rights as payment.
There is always a selection bias possible in public consultations of this type. What this means is that only persons who have a greater interest than the average member of the public are likely to attend a public hearing or send in a written submission. People who respond are more likely to have a fixed or strong view of matters than members of the general public. The tendency therefore is for public consultation to be over represented by persons passionately involved in an issue, unless steps are taken to compensate by establishing focus groups or using other polling techniques designed to create a truly random sample of public opinion.
I did not request demographic information from persons making written submissions nor was there an attempt to screen members of the public who made oral representations at public hearings. Nonetheless I believe that it would be a mistake to characterize the public response through this process as simply being a reflection of interest group politics. The persons who attended at the public hearings came from a wide variety of backgrounds, represented a wide range of ages and appeared at communities ranging from Queen Charlotte Island to Vancouver. Given the consistency of the opposition to the use of land as compensation, and the reliance upon similar arguments for that opposition, I am of the opinion that this public consultation has given a fair representation of the broader public view on this compensation issue.
Because the Settlement Agreement touches on a wide range of public policy issues, I received representations on a great number of topics other than the simple choice between land or cash as a payment method. Because these representations may be of assistance to the Province in formulating future compensation decisions, I have included those arguments and representations as part of this Report.
Land use issues in British Columbia are at the core of our politics. No other issues have generated more controversy than those concerning the use of land, whether the focus is forestry, the environment or growth management. Because the issue of compensating MB arises from land use decisions made over the course of several years, the public hearings inevitably encouraged members of the public to revisit the great debates that have dominated public life in this province for twenty years. The Settlement Agreement touches on issues of compensation, forest tenure reform, property rights, political philosophy, environmental, social and economic issues and the role of the public in resolving these issues. There appears to be a great hunger for a public forum to discuss these issues, and in the absence of other means of making their voices heard, members of the public seized this opportunity to approach me in this public consultation process. I promised members of the public who brought me their concerns that they would be passed along to the provincial government, and accordingly, those concerns are reflected in this report.
1. LAND PROPOSED FOR SETTLEMENT
The process for selection of lands determined by the Settlement Agreement provided that MB would select those lands which would be of interest to them for settlement purposes and the Province would then evaluate the parcels to determine whether or not they would be prepared to alienate the lands or make the resource rights changes requested.
By far the majority of the land involved in this compensation discussion is known as Schedule A lands. These are lands owned in fee simple by MB but which are currently regulated within Tree Farm License 39 and 44. Approximately 91,000 hectares of land are within this category.
The next largest category are Crown lands known as the Vancouver Island Plantation ("VIP") lands. The lands selected are approximately 19,000 hectares located for the most part in the Duncan/Ladysmith area but ranging as far north as Campbell River. The historical background to these parcels is that they were at one time alienated by the Crown as part of the E & N Land Grant in the 1800s. The parcels in question passed back into the Crown's hands in the 1920s and 1930s as a result of a failure to pay property taxes on them. They are currently used for forestry purposes, for the most part under the Small Business Enterprise Program.
The third category of land is known as Schedule B lands and these constitute approximately 13,000 hectares. These are Crown lands within Tree Farm Licenses 39 and 44, held by MB in the Sayward, Powell River and Port Alberni regions.
After the initial selection of lands by MB, the parcels were reviewed by Ministry of Forests and Ministry of Environment, Lands and Parks staff to identify any immediate difficulties with use of the land as currency or in changes in land use. The Ministry of Environment has indicated that they had insufficient time to conduct an in-depth screening. The Ministry of Environment only had a few weeks to provide an initial assessment which occurred in March, 1999. Since that date, Ministry of Environment staff have had further opportunity to review the lands and have provided me with those comments, which are attached as Schedule "A" to this report. Given the sensitivity of some of the parcels as identified by the Ministry of Environment staff, there should be further analysis of these parcels by interested ministries in order to ensure that vital wilderness habitat or other environmental values are not inadvertently compromised, if any of the proposed transfers take place.
After the initial assessment, some parcels were removed from consideration and the remainder of the lands in question went forward to the public consultation process.
I should note that this report does not purport to be a detailed examination of the costs and benefits involved in a transfer to MB of each particular parcel of land. Given that approximately 120,000 hectares of land spread over more than 100 parcels on Vancouver Island, Powell River and Queen Charlotte Island are under consideration, a parcel by parcel analysis is beyond the scope of this report. As a result, further analysis by interested ministries will be necessary before any particular parcels can be used as currency.
Now that the lands have been selected and have been subjected to the public review process, the Province will be able to make an election as to whether or not to leave categories of land or particular parcels of land on the table for consideration as currency. Only Schedule A lands have been appraised to date, but the results of that appraisal are not available to me at this time. Should the Province decide to use Schedule B and VIP lands, then they will be subject to an appraisal process as well.
The economic benefit to MB of Crown land is largely the standing timber found on that land. All of the Schedule B and VIP lands proposed for transfer are currently within the Forest Land Reserve ("FLR") and cannot be used for any other purposes except for active forestry. MB has not requested that any of the lands be removed from FLR before being transferred to them.
All of the categories of land proposed for transfer would create value for MB because there would be less government regulation of forest activities on those lands. All of the land under consideration if currently governed by the Forest Practices Code. If any of the land is removed from a Tree Farm Licence or transferred to MB, the only government regulation governing use of the land would be local government zoning and private forest regulations. The direct economic benefits derive from the fact the forestry would no longer be subject to stumpage payments if lands were transferred to MB. (It should be noted that MB is not currently paying stumpage on Schedule A lands that are in Tree Farm Licenses.) MB would also gain an economic advantage by removal of these lands from under the control of the Forest Practices Code. This would permit the company to operate in a more flexible manner without the complex and time-consuming regulatory restrictions imposed on forestry practices by the Province. For most of the lands involved, there would no longer be a ban on raw log exports should land be removed from a Tree Farm License or Crown land transferred to MB. Finally, there would no longer be allowable annual cut regulations, meaning that MB could decline to harvest in low market price years and exercise an accelerated harvest in high market price years.
2. FIRST NATIONS IMPLICATIONS
As a result of the meetings held with First Nations, the written and oral submissions I have received from First Nations and their lawyers and my own review of the Province's obligations under the Supreme of Court of Canada decision in Delgamuukw and the Province's Consultation Guidelines published September, 1998, I am convinced that the Province has an obligation to engage in further consultations with every First Nation affected by the proposed land transfers before any such transfer can be completed. For the transfers of Crown land, both Schedule B and VIP lands, it will be difficult to design a post-transfer tenure that would allow aboriginal rights and title to co-exist with fee simple title in MB. Accordingly, for the Crown land transfers, more extensive consultation will be required with the First Nations affected.
With respect to the Schedule A lands, there are two aspects of the transfers that may impinge on aboriginal rights. There is currently a Forestry Agreement between the Hupacasath First Nation and the Ministry of Forests where there is ongoing consultation with respect to managing forestry practices so as to minimize the effect on aboriginal rights. Should the Schedule A land be removed from the Tree Farm License, then this agreement would no longer have any effect. Accordingly, there must be a consultation between the Ministry and affected First Nation before this ongoing initiative could be disrupted.
In addition, the forest activities are managed under the direction of Ministry of Forests staff using the provisions of the Forest Practices Code on the Schedule A lands in such a way as to minimize the effect on the environment and as a result, minimize the secondary affect on aboriginal rights. For example, under the Forest Practices Code there is extensive regulation about cutting near and around watersheds. The purpose of this regulation is to minimize the impact of forest activities on fish habitat. Members of the west coast First Nations have traditionally relied heavily upon salmon as a source of food and it forms an important part of their cultural heritage as well. If Schedule A lands are removed from the Forest Practices Code, they will only be subject to the much less restrictive private forest regulations.
Accordingly, there is a potential indirect effect on aboriginal rights by removal of private land from regulation under the Forest Practices Code. If forest practices are carried out on Schedule A land that is owned fee simple outside of a Tree Farm License, there could potentially be a negative impact on fish habitat. As a result, the aboriginal right to fish may be negatively affected. Given this potential effect, even the removal of Schedule A lands is, in my view, subject to further consultation.
CONSTITUTIONAL OBLIGATION TO CONSULT
It was established in Delgamuukw that any infringement on aboriginal right or title creates an obligation by the government infringing on that right or title to consult with the affected First Nation. Delgamuukw v. British Columbia (1997) 153 D.L.R. (4th) 193 (S.C.C.) at 265 states "there is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown's failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law...the nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious and relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to land held pursuant to aboriginal title. Of course, even in these rare cases where the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands." The Court goes on to then discuss the requirement for compensation in certain cases.
As a result of the Delgamuukw decision, the Province developed guidelines for consultation with First Nations when resource decisions were made. Relevant portions of the guidelines are excerpted as follows:
With respect to the issue of whether or not the guidelines apply in authorizing a use of private land, the policy states "the policy will only apply where:
In the course of my meetings with affected First Nations, all of them asserted aboriginal title to all lands within their traditional use areas. Some First Nations also assert aboriginal title in lands that have been alienated to MB and accordingly, assert aboriginal title in Schedule A lands.
Aboriginal rights asserted in the lands at issue include hunting and fishing rights, gathering of traditional foods and healing medicines, the opportunity to have cultural and religious experiences in wilderness areas sacred to First Nations, obtaining wood supplies for traditional aboriginal activities such as home building, canoes and art work and finally, a protection of aboriginal heritage such as village sites and culturally modified trees.
DETERMINATION OF LEVEL OF CONSULTATION
I have made no attempt in the course of this brief public consultation to evaluate the strength of the asserted claims of aboriginal rights and title over the affected lands. Nonetheless there are certain indicators that suggest there is a strong probability that aboriginal rights could be proven over a large area of the lands in question and that aboriginal title may exist in at least some of the parcels being considered. The lands in questions are all located on Vancouver Island or near the coast in areas where First Nations are known to have lived continuously for many thousands of years up to the present time. Many of the parcels are adjacent to or near existing reserves, along river valleys or near coastal areas, all of which are indicators of continuous use and occupation.
The Province's Consultation Guidelines set out a series of steps in determining whether or not full consultations are required. The first step requires a determination of whether there is a potential for infringing on aboriginal rights or title. Relevant indicators on the Schedule B land at issue is that title has been continuously held in the name of the Crown (Guidelines, page 17). With respect to the Vancouver Island Plantation lands, relevant indicators are that the land is near current reserves, the land has been subject to traditional use, is used for aboriginal activity, and is subject to a claim from First Nations, specifically members of the Te'Mexw Treaty Association, the Snuneymuxw First Nation, the Kwakuitl Laich-Kwil-Tach Treaty Association and the Hulquminum Treaty Group.
Although the Schedule A land is owned fee simple by a third party, it is actively managed under the direction of Ministry of Forests staff using the provisions of the Forest Practices Code in such a way as to respect aboriginal rights. Accordingly, should the current regulatory regime be ended by removal of the Schedule A land from the Tree Farm License, then aboriginal rights could be affected. Thus, there is a potential infringement of aboriginal rights and title.
The second step in applying the Guidelines is to determine whether or not the proposed activity would infringe on aboriginal title. Because the proposal is to alienate the lands to a third party, this would constitute a high level of infringement.
The next step is to determine whether or not the infringement could be justified. There is no doubt that development of forestry is a legitimate Provincial legislative objective. What is at issue in this settlement process, given the alternative of the less intrusive option of using cash, is whether or not it can be justified to use land which is subject to potential aboriginal rights or title to satisfy the settlement obligations.
Before determining whether or not the Crown has met its fiduciary obligations, further consultation would be required with the First Nations. My brief series of meetings with First Nations certainly does not satisfy the Crown's fiduciary obligation. Given the potential for the highest level of infringement, i.e. alienation of land to a third party and the potential for the land to be fully logged, which would make the exercise of aboriginal rights impossible, then a higher degree of consultation will be required than mere notice to the affected First Nations. Accordingly, the final stage of some form of accommodation or negotiation with the First Nations is likely to be required on a significant portion of the proposed settlement lands.
The Provincial Consultation Guidelines look for resource use decisions that will allow the exercise of aboriginal rights to co-exist with proposed resource activities. If any or all of the land transfers or change in tenures should occur as part of this Settlement Agreement, it is very difficult to envisage a management scheme whereby aboriginal rights could continue to be exercised on what would then be fee simple lands owned by a private corporation. Exercise of aboriginal rights on land owned privately would be by the consent of the private landowner. Accordingly, there is a strong possibility that the exercise of aboriginal rights could be extinguished on lands used as part of a settlement process.
Given the combination of a high probability of aboriginal rights having been exercised traditionally on at least part of the affected lands, and the clear negative impact that alienation of these lands or deregulation of Schedule A lands would have on the exercise of aboriginal rights, it is strongly recommended that further consultations be undertaken with all of the affected First Nations before any of the land identified through the Settlement Agreement are transferred to MB or removed from a Tree Farm License.
Should such a consultation process be necessary, the following steps must be taken:
Time constraints in the Settlement Agreement specify that land will be transferred to MB by October 31, 1999, if it is used in satisfaction of the settlement. It is unlikely, in my view, that any of the transfers could take place that quickly. Even on Schedule A land, where there is likely a significantly lower aboriginal claim than on Crown lands, given the large number of First Nations potentially affected and the wide range of traditional aboriginal practices that may be characterized as aboriginal rights on these lands, the consultation process will be complex and time consuming.
Effect on Treaty Process:
The lands proposed for settlement under the Settlement Agreement are all subject to aboriginal claims of varying levels. However, the available Crown lands are also currently the subject of negotiations at various Treaty tables, particularly those involving the Sliammon, Hulquminum, Kwakuitl Laich-Kwil-Tach and Nuuchahnalth Nations. At each of these Treaty tables land currently owned by the Crown or by MB has been, or soon will be, identified by the affected First Nations as candidate land for settlement of Treaty negotiations.
Because the Settlement Agreement was negotiated privately in order to settle a lawsuit, the outcome of it was a surprise, both to Provincial Treaty negotiators and to First Nations. Representatives of First Nations expressed shock, hurt and disappointment that large amounts of Crown land could be proposed for removal from the land base available to be used as potential settlement lands in Treaty processes without prior notification through the Treaty table.
The problem is particularly acute for the Sliammon and Hulquminum Treaty groups. Because of the very large land grants that were given as part of the E & N Railroad in the 1800s on the southern part of Vancouver Island, there is very little Crown land available on the east coast of Vancouver Island for Treaty settlement. In a submission from the Cowichan Tribes it was estimated that the Vancouver Island Plantation lands proposed by MB constitute 73% of the Crown land available for settlement of Treaties in the Hulquminum traditional area. This is an area on the east coast of Vancouver Island from Chemainus to Mill Bay and inland to Cowichan Lake. Likewise in the Sliammon traditional area near Powell River, most of the land is within MB’s tree farm licence. If part of the land is transferred to MB it will significantly reduce the land base available for selection by the Sliammon.
It was repeatedly noted by First Nations that should the candidate lands be alienated for the purposes of settlement with MB, it may be necessary to repurchase the lands in the future in order to settle Treaty negotiations. Because land available for the purpose of settling a Treaty will be in short supply, this could result in the land becoming more valuable to MB on a reconveyance to the Crown than the original appraisal on the transfer of the land to MB as part of the Settlement Agreement. The outcome could be greater drain on Provincial resources than had cash simply been used for the settlement in the first place.
Treaty negotiators from affected First Nations indicated that they believed the Treaty process has been damaged by the process used for land selection in the Settlement Agreement. Representatives of the Sliammon indicated they would prefer to deal with the members of the government who had authority to offer land to MB rather than with their own Treaty table. They expressed frustration at the Province’s apparent willingness to settle a claim from MB quickly and expeditiously while First Nations are forced to wait for settlement of their own Treaty claims.
The Settlement Agreement was negotiated with MB in isolation from the Treaty process. It is recommended that major resource and land use decisions such as disposition of Crown land or deregulation of private land should be evaluated at an early stage for the potential impact on aboriginal rights, aboriginal title or on the Treaty process. Furthermore, in order to maintain an atmosphere of trust and good faith at the Treaty table, major resource policy initiatives should be communicated to the potentially affected First Nations, ideally through a single communication point and as early as possible in the decision-making process.