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First Nations have relied on forest resources to support our traditional and cultural activities throughout our history. Many of our Aboriginal rights are associated with having access to the forested lands within our territories. While use of the forests for economic purposes has always been part of our societies, in the modern era our Nations have been engaged in industrial logging and other activities. This subject matter is linked to land management, land and marine use planning, water, environment, emergency preparedness, heritage and culture and wildlife. There are also similarities with approaches and issues for other renewable and non-renewable natural resource areas, such as minerals and precious metals, oil and gas and fish, fisheries and fish habitat.
For the most part, existing reserve lands in BC have limited or few forest resources, although there are some exceptions. Forestry on reserve is governed under the Indian Timber Regulations (C.R.C., c.961) made under the Indian Act. Off-reserve, management over the forests, including the granting of access to the resource by third parties, is a provincial responsibility and governed under the Forestry Act as amended from time-to-time. How the province has managed the forest resource has varied quite considerably over the past 30 years, depending on the political stripe of the ruling government.
Aboriginal title to the land includes the forests and other natural resources and any use of these resources would necessarily impact Aboriginal title and rights. The Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (“Haida”) case established that before granting third party interests or exploiting resources, the government has a duty to consult and accommodate First Nations’ interests in lands where Aboriginal title is claimed, even before the First Nation has proved Aboriginal title. As a result of advances in the recognition of title and rights, there are now a number of forestry related agreements and arrangements between First Nations and the province that have been negotiated and implemented. First Nations also have a governance interest in their traditional lands based on Aboriginal title and a role to play in land-use decisions, including having a say on the nature and scope of forest developments within traditional territories. To date, however, there has not, with the exception of the Kunst’aa guu – Kunst’aayah Reconciliation Protocol (“Haida Protocol”), been any agreement for shared decision–making or shared jurisdiction over off-reserve forestry. It is contemplated that there will be more in the future and shared decision-making should be part of such arrangements. In addition to governance interests, First Nations also have economic interests with respect to the forestry-sector business ventures many First Nations are involved in. These should, however, not be confused with governance interests and First Nations involved in negotiations should advocate for both interests to be properly accommodated.
For much of the province’s history, forestry has been an important part of the economy and, consequently, how forests have been managed to facilitate industrial logging has really guided land-use decisions on Crown land. Forestry licences are quite powerful instruments and forestry interests have had significant influence on the landscape of the province. For more detailed information on Tree farm Licenses (TFL) and other forest tenures, see the resource section below.
First Nations’ participation in the forest sector through economic or business opportunities granted in interim accommodation deals has grown significantly in the past ten years. The current estimate is that First Nations collectively hold 17% of the total provincial annual harvest. Over the past ten years, timber harvesting averaged 69 million cubic metres per year (reaching 90 million in 1987 and 2005).
Although First Nations are now actively operating provincial tenures in forest management, the legal obligation regarding how forestry is conducted on these tenures falls within the provincial legal framework of the Forest Act (R.S.B.C. 1996, c. 157), the Forest Practices Code of British Columbia Act (R.S.B.C. 1996, c. 159), Foresters Act (S.B.C. 2003, c. 19) and other affiliated legislation, regulations and policy. First Nations are not practising governance or shared decision-making over these tenured economic opportunities.
On reserve, the limited forestry resources are governed in accordance with the antiquated Indian Timber Regulations. All sectoral governance initiatives that deal with land also deal with forestry. All comprehensive governance arrangements also deal with forestry governance on reserve or settlement lands. Treaty arrangements can have additional provisions respecting governance off reserve or access to forestry resources for economic purposes.
In BC, First Nations have established the First Nations Forestry Council under the auspices of the BCAFN, the First Nations Summit and the Union of BC Indian Chiefs, to address forestry issues. The Council is politically accountable to the First Nations of BC. Similar to the Energy and Mining Council, this body’s focus is off reserve, but by implication any discussion of jurisdiction would necessary have to include consideration of on-reserve governance. The mission of the First Nations Forestry Council is to:
Canada is prepared to relinquish control of on-reserve forestry and full First Nation control is feasible. However, off-reserve, the province remains reluctant to recognize First Nation shared decision-making and jurisdictions within traditional territories, despite having made arrangements with the Haida Nation. Part of the issue has to do with ensuring that the proper Aboriginal titleholder is dealt with and there is also some uncertainty as to how institutions of shared decision-making would operate in practice.
This subject matter is an area where First Nations are exploring options to develop governance based upon their inherent rights. Given that the courts have already established that there is an Aboriginal right to cut timber for cultural purposes, Nations are looking to develop their own legal framework to regulate the harvesting of timber not only on their existing reserves but off reserve for cultural purposes (R. v. Sappier; R. v. Gray, [2006] S.C.R. 686; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2008 BCCA 107).
It should also be noted that when forest issues are discussed in treaty negotiations in BC, they are linked to issues of fire prevention on Crown lands and forest health.
Section 93 of the Indian Act prohibits removal of wood from a reserve:
93. A person who, without the written permission of the Minister or his duly authorized representative,
(a) removes or permits anyone to remove from a reserve
(i) minerals, stone, sand, gravel, clay or soil, or
(ii) trees, saplings, shrubs, underbrush, timber, cordwood or hay, or
(b) has in his possession anything removed from a reserve contrary to this section, is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars, or to imprisonment for a term not exceeding three months or to both
The Indian Timber Regulations apply to the cutting of timber on reserve lands or on reserve lands that have been surrendered under the Indian Act. The Regulations stipulate that it is forbidden to cut timber on reserve or surrendered lands without a licence from the Minister. The Regulations define different instruments relating to forest management on reserves. There are three main types of instruments under this Regulation, depending of the type of operator and the object of the operation:
Under the regime instituted by the Indian Timber Regulations, our Nations could be assigned various roles, such as participating in the drafting of cutting licences and permits. However, the Minister and the Department are always responsible for signing such instruments and no rights under the Regulations arise without a permit or licence from the Minister.
Curiously, there is also the Indian Timber Harvesting Regulations (C.R.C. SOR/2002-109) that creates different rules for First Nations identified on the Schedule. Ministerial permits are still required, but exceptions are made for “band’s” harvesting on unallotted lands on reserve for use on reserve and for harvesting for use on their allotted lands by holders of Certificates of Possession. Only one First Nation, the Tl’azt’en First Nation, is listed on the Schedule to this Regulation.
It should be noted that Aboriginal rights still exist on reserve lands. As a result, any analysis of the impact of the Indian Timber Regulations must take into account any Aboriginal right to harvest timber under section 35 of the Constitution Act 1982, which, if established, would put the onus on the Crown to justify that these Regulations do not unduly restrict the Aboriginal right to harvest timber. It is hard to imagine that in most First Nations timber was not harvested pre-contact in a manner that meets the test of Aboriginal rights established by the courts.
Provincial Forestry Initiatives
While not specifically governance oriented (no recognition of law-making authority or jurisdiction), there have been a number of significant forest-related initiatives that provide forestry opportunities for our Nations, and which have evolved from the recognition of our rights and title. While many of our Nations feel these arrangements do not go far enough in recognizing the extent of our interests in forest resources, they are, nonetheless, options that many Nations have taken up.
Provincial Agreements and Arrangements: The provincial government has developed the Forest and Range Agreements (FRA) and the Forest Opportunity Agreements (FRO) into the new Forest Consultation and Revenue Sharing Agreement (FCRS) as part of the renewal of the previous shorter-term arrangements. This change also separates the governance function of revenue-sharing from the economic function of tenure. Furthermore, in the new FCRS agreement there is an incentive built into how much provincial forest revenue will be shared with each First Nation, depending on the type of agreement with the ministry and government: interim accommodation agreement, Strategic Engagement Agreement (SEA), Reconciliation Agreement or treaty.
New BC Crown Tenure: First Nations Woodlands License (FNWL): Recent work done by the First Nations Forestry Council and the province of BC through its report of the Working Roundtable on Forestry: Moving Toward a High Value, Globally Competitive, Sustainable Forest Industry, has resulted in a new form of provincial forest tenure being developed specifically for First Nations communities. This tenure is intended to deal with concerns raised about the short-term nature (five years) of previous tenure opportunities and about not allowing for incorporation of First Nations values and principles of stewardship. The new FNWL allows for a longer term and is area-based, with the ability for licensees to write their own forest management plans, which will include First Nations stewardship values.
The Framework Agreement on First Nation Land Management (Framework Agreement)
As an aspect of land management, the Framework Agreement includes provisions regarding renewable and non-renewable resources on First Nation lands that are subject to a First Nation’s Land Code. Included are all the interests, rights and resources that belong to that land, to the extent that these are under the jurisdiction of Canada and are part of that land. These include forestry resources. The Framework Agreement covers reserve lands and resources on reserve lands but not off reserve lands. However, developing institutions of government and laws on reserve helps inform discussions and in negotiating broader arrangements with the Crown or third parties with respect to your natural resources, such as timber, located off reserve within your traditional territory.
If your First Nation has significant forestry resources on reserve, then the Framework Agreement and the First Nations Land Management Act (FNLMA) provide a mechanism to exercise jurisdiction of forestry on reserve lands. For example, McLeod Lake First Nation, which gained access to sizable forestry resources as a result of its adherence agreement to Treaty 8, used the Framework Agreement to displace the Indian Act and the Indian Timber Regulations. The adhesions to Treaty 8 are somewhat unusual. Although these arrangements were made quite recently, they are not understood as being made through the BC treaty process. For example, the Indian Act continues to apply to the Nation that adhered to Treaty 8, which is why options like FNLMA were and are available.
All of the comprehensive governance arrangements provide jurisdiction over forestry and forested lands on reserve or settlement lands, as the case may be.
| General Jurisdiction: | |
Sechelt |
The First Nation manages the forestry resources as the owner of the resource. (Sechelt Constitution Part 1, Division (3), ss.1-4) |
Westbank |
Jurisdiction over preservation and management of forestry resource. (Part XII, s. 135) |
Nisga’a |
Nisga’a Lisims Government has law making authority in respect of the management of timber resources on Nisga’a Lands. (Ch. 5, ss. 6-8) |
Tsawwassen |
Tsawwassen has jurisdiction over management of forest resources on Tsawwassen Lands. (Ch. 8, s. 2) |
Maa-nulth |
Forestry resources, forest practices and range practices. (s. 9.2.1) |
| Conflict of Laws: | |
Sechelt |
Sechelt law prevails. (s. 38) |
Westbank |
Westbank law prevails. (Part XII, s. 140) |
Nisga’a |
Nisga’a law prevails. (Ch. 2, s. 13) |
Tsawwassen |
Tsawwassen law prevails. (Ch. 8, s. 3) |
Maa-nulth |
Federal or provincial law prevails. (s. 9.2.2) |
| First Nation | By-law | Description |
McLeod Lake Indian Band (Tsekani) |
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McLeod Lake Indian Band Forest Practices Code Act |
Comprehensive Governance Arrangements
| First Nation | By-law | Description |
Huu-ay-aht First Nations |
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Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nations |
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Nisga’a Nation |
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Toquaht Nation |
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Tsawwassen First Nation |
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Uchucklesaht Tribe |
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Ucluelet First Nations |
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Other Activities
Harvesting — British Columbia
http://www.for.gov.bc.ca/hfp/publications/00001/1-harv-index.htm
Area harvested (ha) on Crown land from 81/82 to 97/98, by region
Year |
Cariboo |
Kamloops |
Nelson |
P. George |
P. Rupert |
Vancouver |
TOTALS |
81/82a |
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82/83a |
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83/84 |
27 313 |
30 182 |
19 299 |
62 590 |
24 236 |
24 608 |
188 228 |
84/85 |
35 444 |
31 113 |
21 842 |
56 287 |
27 850 |
25 917 |
198 453 |
85/86 |
41 652 |
33 473 |
22 471 |
57 163 |
21 546 |
34 092 |
210 397 |
86/87 |
48 527 |
31 014 |
21 673 |
57 470 |
30 807 |
36 973 |
226 464 |
87/88 |
56 960 |
40 457 |
27 618 |
61 631 |
11 195 |
41 108 |
238 969 |
88/89 |
53 936 |
33 810 |
26 448 |
57 704 |
30 742 |
34 816 |
237 456 |
89/90 |
47 902 |
18 043 |
15 882 |
59 990 |
30 459 |
21 858 |
194 134 |
90/91 |
33 459 |
21 747 |
17 115 |
37 395 |
19 213 |
23 083 |
152 012 |
91/92 |
37 812 |
21 954 |
15 239 |
44 966 |
17 388 |
28 991 |
166 350 |
92/93 |
42 267 |
27 113 |
21 350 |
56 120 |
19 979 |
29 772 |
196 601 |
93/94 |
34 672 |
26 881 |
29 210 |
42 431 |
20 789 |
27 930 |
181 913 |
94/95 |
29 857 |
22 608 |
16 534 |
42 142 |
21 503 |
27 362 |
160 006 |
95/96 |
33 819 |
25 026 |
17 575 |
38 202 |
19 479 |
30 768 |
164 869 |
96/97 |
41 982 |
27 379 |
19 112 |
46 157 |
21 893 |
22 516 |
179 039 |
97/98 |
36 056 |
21 064 |
15 103 |
46 619 |
14 093 |
21 539 |
154 474 |
| a. Data reported as sum of Crown and private land harvested - Data source: MoF annual reports.To download the Excel data file for this table, click here. Back to Harvesting Contents | |||||||
British Columbia has introduced a new type of forestry agreement, the Forest Consultation and Revenue Sharing Agreement (FCRSA) that provides First Nation communities with economic benefits, which return directly to the community and are based on harvest activities in the traditional territory. The changes to the revenue-sharing model will reflect what is happening ‘on the ground’ in First Nations communities so that, for the first time, communities will see more direct economic benefits returning from harvest activities taking place in their traditional territory. As the forest sector recovers, the amount of revenues shared with First Nations will increase.
Click through the hotlinks to view copies of the Forest Consultation and Revenue Sharing Agreements B.C. has signed with First Nations to date.
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http://www.for.gov.bc.ca/haa/fn_agreements.htm
These agreements, introduced in 2003, provide for revenue-sharing and forest tenure opportunities. The timber volume comes from unlogged timber from existing forest licences and from timber that will be made available once the province-wide timber reallocation process is completed. The Ministry's approach to negotiating Forest and Range Agreements is outlined in the Strategic Approaches to Accommodation Policy .
2009/03 |
Northern Interior |
Prince George |
1.52 |
n/a |
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2009/03 |
Southern Interior |
Merritt |
.28 |
30 |
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2009/03 |
Coast |
Port Alberni |
.57 |
n/a |
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2009/03 |
Southern Interior |
Williams Lake |
7.7 |
844 |
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2009/03 |
Northern Interior |
Prince George |
.337 |
9 |
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2009/03 |
Southern Interior |
Penticton |
2.2 |
236 |
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2008/10 |
Coast |
Gold River |
1.29 |
77 |
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2008/10 |
Southern Interior |
Lytton |
.271 |
29 |
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2008/10 |
Southern Interior |
Vernon |
4.14 |
n/a |
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2008/08 |
Coast |
Port McNeill |
.088 |
30 |
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2008/09 |
Southern Interior |
Williams Lake |
1.195 |
130 |
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2008/08 |
Coast |
Chilliwack |
.075 |
n/a |
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2008/07 |
Coast |
Port Alberni |
1.61 |
173 |
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2008/07 |
Southern Interior |
Spences Bridge |
.701 |
117 |
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2008/01 |
Coast |
Matsqui |
.526 |
32 |
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2008/01 |
Coast |
Campbell River |
1.225 |
73 incl abt |
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2008/02 |
Coast |
Campbell River |
.714 |
50 |
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2008/02 |
Southern Interior |
Merritt |
1.794 |
207 |
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2008/03 |
Southern Interior |
Merritt |
.466 |
50 |
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2008/03 |
Northern Interior |
Fort St James |
3.56 |
TBD |
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2008/04 |
Coast |
Massett |
9.49 |
n/a |
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2008/04 |
Coast |
Tofino |
4.34 |
n/a |
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2008/04 |
Coast |
Chilliwack |
.295 |
18 |
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2008/04 |
Southern Interior |
Merritt |
2.37 |
257 |
1 Revenue Sharing is over a 5 year period.
2 Revenue Sharing is over a 6 year period.
3 Denotes Squamish FRA is over a 1 year period.
4 Denotes this agreement is a Westbank IM Agreement extension.
5Denotes Takla FRO is over a 9 month period.
6Reflects only the additional volume authorized under this agreement (i.e., excludes direct award agreement volume).
7Denotes Tsey Keh Dene FRO is over a 2 year period.
B-# Denotes the number of bands participating in the Forest and Range Agreement.
+ abt Denotes this agreement has an Area Based Tenure associated with it. The Woodlot volume is EXCLUDED from the Timber Volume value. Please refer to the Agreement for specifics.
incl abt Denotes this agreement has an Area Based Tenure associated with it. The Woodlot volume is INCLUDED with the Timber Volume value. Please refer to the Agreement for specifics.
Direct Awards
http://www.for.gov.bc.ca/haa/fn_agreements.htm
In May 2002, an amendment to the Forest Act allowed the Minister of Forests to invite First Nations to apply for forest licences without competition. The timber volume for these licences comes from beetle-kill and fire-damaged timber as well as from unlogged timber from other forest licences. The following is a link to the Ministry's Direct Award Policy.
2011/02 |
Southern Interior |
Barriere |
500 |
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2011/02 |
Southern Interior |
Merritt |
300 |
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2011/03 |
Westbank3yr |
Southern Interior |
Kelowna |
53 |
2011/01 |
Southern Interior |
Kelowna |
75 |
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2010/12 |
Southern Interior |
Lytton |
1425 |
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2010/10 |
Southern Interior |
Barriere |
599 |
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2010/09 |
Southern Interior |
Cranbrook |
77 |
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2010/09 |
Southern Interior |
Cache Creek |
495 |
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2010/08 |
Northern Interior |
Fraser Lake |
375 |
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2010/07 |
Southern Interior |
Penticton |
102 |
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2010/07 |
Northern Interior |
Fraser Lake |
375 |
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2010/06 |
Northern Interior |
Smithers |
154 |
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2010/04 |
Northern Interior |
McLeod Lake |
4000 |
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2010/05 |
Southern Interior |
Lillooet |
3000 |
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2010/03 |
Southern Interior |
Canim Lake |
100 |
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2010/03 |
Southern Interior |
Keremeos |
15 |
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2010/03 |
Southern Interior |
Quesnel |
250 |
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2009/12 |
Southern Interior |
Merrit |
250 |
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2009/10 |
Red Bluff 15yr |
Southern Interior |
Quesnel |
1125 |
2009/09 |
Snuneymuxw 1yr |
Southern Interior |
Naniamo |
11 |
2009/07 |
Southern Interior |
Merrit |
100 |
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2009/07 |
Shuswap 5yr |
Southern Interior |
Invermere |
23 |
2009/05 |
Southern Interior |
Cranbrook |
100 |
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2009/05 |
Nicomen 5yr |
Southern Interior |
Lytton |
20 |
2009/03 |
Southern Interior |
Merritt |
75 |
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2009/01 |
Lower Nicola 5yr |
Southern Interior |
Merrit |
35 |
2009/01 |
Southern Interior |
Kamloops |
3000 |
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2009/01 |
Cook's Ferry 5yr |
Southern Interior |
Merrit |
39 |
2009/01 |
Southern Interior |
Keremeos |
30 |
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2008/12 |
Southern Interior |
Lytton |
75 |
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2008/11 |
Coast |
Gold River |
200 |
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2008/11 |
Southern Interior |
Keremeos |
56 |
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2008/10 |
Southern Interior |
Williams Lake |
2490 |
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2008/10 |
Coast |
Alert Bay |
4 |
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2008/10 |
Coast |
Lantzville |
15 |
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2008/10 |
Coast |
Mill Bay |
15 |
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2008/09 |
Southern Interior |
Williams Lake |
300 |
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2008/05 |
Lower Nicola 5yr |
Southern Interior |
Merrit |
378 |
2008/05 |
Southern Interior |
100 Mile House |
390 |
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2008/05 |
Xats'ull (aka Soda Creek) |
Southern Interior |
Williams Lake |
150 |
2008/03 |
Southern Interior |
100 Mile House |
175 |
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2008/02 |
Southern Interior |
Williams Lake |
740 |
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2008/01 |
Southern Interior |
100 Mile House |
250 |
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2008/01 |
Southern Interior |
Osoyoos |
47 |
B-# Denotes the number of bands participating in the Direct Award Agreement.
+ abt Denotes this agreement has an Area Based Tenure associated with it. Please refer to the FRA for specifics.
#-yr Denotes Mtn Pine Beetle Agreement is over a # year period.
1 Not a Direct Award Agreement. Direct award of forest licence (over one year) to further September 2002 Direct Award Agreement, pursuant to section 47.3 of the Forest Act.
2 Reflects volume from this agreement. Additional volumes became available through subsequent agreements.
3 Maximum volume amended as a result of Sliammon First Nations Interim Measures Agreement dated April 11, 2006.
Suite 615, 100 Park Royal South
West Vancouver BC V7T 1A2
Phone: 604-921-4488
Fax: 604-921-4401
Email: admin@fnforestrycouncil.ca
- BC First Nations Forestry Action Plan
http://www.fnforestrycouncil.ca/resources/publications- First Nations Mountain Pine Beetle Action plan
http://www.fnforestrycouncil.ca/programs/mountain-pine-beetle-program/bc-first-nations-mountain-pine-beetle-action-plan
Suite 300, 396 Cooper Street
Ottawa, ON K2P 2H7
Phone: 613-233-5563
Fax: 613-233-4329
Email: nafa@web.ca
- The National Aboriginal Forestry Association (NAFA) was established to promote sustainable forestry as a necessary condition for Aboriginal economic development, the repair of environmental degradation, and the restoration of cultural and community spiritual health for Aboriginal people across the country.
Terrasses de la Chaudière
10 Wellington, North Tower
Ottawa, ON K1A 0H4
Toll Free: 1-800-567-9604
Fax: 1-866-817-3977
Toll Free: 1-866-553-0554
www.ainc-inac.gc.ca
- Indian Timber Regulations
- Indian Timber Harvesting Regulations (C.R.C. SOR/2002-109)
- Section 93 of the Indian Act prohibits removal of wood
Ministry of Forests, Lands and Natural Resource Operations
PO Box 9049 Stn Prov Govt
Victoria, BC V8W 9E2
Ministry of Aboriginal Relations and Reconciliation
PO Box 9100 Stn Prov Govt
Victoria, BC V8W 9B1
- Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (“Haida”)
http://scc.lexum.org/en/2004/2004scc73/2004scc73.pdf- Kunst’aa guu – Kunst’aayah Reconciliation Protocol(“Haida Protocol”), 11 December 2009. <http://www.newrelationship.gov.bc.ca/shared/downloads/haida_reconciliation_protocol.pdf>
- BC - New Relationships with Aboriginal People and Communities in BC, Annual Report on Progress 2009-1010
http://www.newrelationship.gov.bc.ca/shared/downloads/annual_report_2009_10.pdf- Ministry of Aboriginal Relations and Reconciliation, 2010/11 – 2012/13 Service Plan - March 2010 http://www.bcbudget.gov.bc.ca/2010/sp/pdf/ministry/arr.pdf
- Forest Act (R.S.B.C. 1996, c. 157)
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96157_00- Forest Practices Code of British Columbia Act (R.S.B.C. 1996, c. 159)
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96159_01- Foresters Act (S.B.C. 2003, c. 19)
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03019_01- R. v. Sappier; R. v. Gray, [2006] S.C.R. 686
http://scc.lexum.org/en/2006/2006scc54/2006scc54.pdf- British Columbia (Minister of Forests) v. Okanagan Indian Band , 2008 BCCA
- Just the Facts – A review of silviculture and other forestry statistics
http://www.for.gov.bc.ca/hfp/publications/00001/index.htm- Working Roundtable on Forestry. Moving Toward a High Value, Globally Competitive, Sustainable Forest Industry (March 2009), http://www.for.gov.bc.ca/mof/forestry_roundtable/Moving_Toward_a_Globally_Competitive_Forest_Industry.pdf
- Bill 13 – 2010 – Forests and Range (First Nations Woodland Licence) Statutes Amendment Act, 2010
http://www.leg.bc.ca/39th2nd/3rd_read/gov13-3.htm