British Columbia to Seek First Nations’ Consent on Forestry Planning

On October, 20, 2021 the British Columbia Government (the “Province”) introduced legislation to amend the Forest and Range Practices Act (the “FRPA”).

The FRPA governs all stages of forest planning on public lands in British Columbia, including road building, timber harvesting, reforestation and livestock grazing.

The Province believes that the proposed amendments to the FRPA will strengthen public confidence in the management of BC’s forest and range resources by increasing the participation of Indigenous Nations and local communities, prioritizing forest health, reducing industry’s decision-making role, and streamlining planning processes.

The amendments signal two major changes to the management of forestry in British Columbia:

  • The Province will re-assert its role as land manager from the forestry industry, particularly with Forest Landscape Plans (“FLPs”) and Forest Operating Plans (“FOPs”).
  • The Province will seek First Nations’ consent on FLPs and FOPs:
    • through a statutory process; or
    • through agreements between the Chief Forester or the Minister and an Indigenous body under s. 7 of the Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”) to jointly approve FLPs or FOPs or to require the Indigenous body’s consent before approving FLPs or FOPs.

The Province Re-asserts its Role as Land Manager

A key change to the FRPA is replacing Forest Stewardship Plans (“FSPs”) with FLPs. The forestry industry sector currently develops FSPs. If the BC Government passes the proposed amendments are passed, forestry licensees will instead need to obtain the Province’s approval of FLPs, which would govern future forestry activities. Subsequent industry-developed site level plans must align with the FLPs and the Province must approve the plans.

By implementing FLPs, the Province is re-asserting its role as land manager from the forestry industry and will take a more active role in strategic decisions governing forestry management and operations. If the amendments are passed, the Province must properly consider the interests of all communities and stakeholders. The Province will post the FLPs publicly for review and comment by any interested parties and every five years the Chief Forester will publicly report on the plans and their outcomes.

Shared Decision-Making and Consent Seeking with First Nations

With the amendments to the FRPA, the Province has introduced legislation to follow through on its commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) contained in the Declaration Act, which received royal assent in 2019. If passed, the amendments to FRPA would change how the Province engages First Nations on high-level forestry plans.

Significantly, the amendments empower the Minister and the Chief Forester to enter into agreements with Indigenous Governing Bodies enabled by s. 7 of the Declaration Act requiring:

  • the Province and Indigenous bodies to jointly exercise the statutory decision making powers with respect to FLPs and FOPs;
  • or obtain the Indigenous bodies’ consent for those approvals.

Indigenous Governing Bodies with such agreements will exercise considerable decision making and control over how forestry companies operate in the territories to which the agreements apply.

For First Nations without such agreements, new amendments would require the Province to seek First Nations’ consent for new FLPs. The Province’s failure to obtain an affected First Nations’ consent for an FLP triggers a dispute resolution process, which requires the Province to take further steps to attempt to achieve the First Nations’ consent. However, the Province is not required to obtain an affected First Nation’s consent before approving an FLP for First Nations without s. 7 agreements under the Declaration Act..

With respect to forestry management in British Columbia, the proposed amendments are a significant first step forward in implementing UNDRIP, and specifically its requirement to obtain the free, prior and informed consent of Indigenous peoples for the development of lands and resources in their territories.

However, in the view of many First Nations, the proposed amendments do not go far enough. Those First Nations would prefer that the power to enter into s. 7 agreements under the Declaration Act be extended to all statutory decisions under FRPA, not just FLPs and FOPs. Similarly, some First Nations say that the consent-seeking process, while an improvement on the current consultation model, should be extended to other statutory decisions and should require the Province to obtain consent, not just seek consent.

Pilot Projects with First Nations

A number of Pilot Projects are currently underway between First Nations, forestry licensees and the Province to jointly develop FLPs. Read our ‘Namgis First Nation Enters Collaborative Forest Management Planning Process article to learn more.

For example, the recently announced Pilot Project between ‘Namgis First Nation and Western Forest Products Inc., which is supported by the Chief Forester’s Office, will not only develop a draft FLP for Tree Farm Licence 37 for consideration by the Chief Forester, but will also make recommendations for how other statutory decisions under FRPA can be exercised jointly between the Province and ‘Namgis.

Amendments in addition to FLPs, FOPs and First Nations’ Consent

In addition to the amendments requiring FLPs and FOPs and the implementation of UNDRIP, other amendments include:

  • expanding provisions for wildfire management, including the addition of wildfire as a FRPA objective and new prescribed practices within Wildland Urban Interface Areas to safeguard British Columbia communities against the threat of wildfire;
  • enhancing road management to protect public safety and the environment; and
  • improving the compliance and enforcement framework through enabling disclosure of information, the creation of 12 new fines and increasing nine fines.

We will continue to closely monitor the progress the proposed amendments.

If you have questions regarding the amendments to the FRPA in British Columbia, please contact one of the lawyers in our Indigenous practice group.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.