BACKGROUND INFORMATION ON CHANGES TO FORESTRY LAWS
	In Haida Nation v. British Columbia (MOF) the Supreme Court of Canada affirmed that the Crown must consult and accommodate the Haida when decisions are made about timber tenures and forest management in Haida Gwaii. The legal principles articulated by the court create opportunities to reconcile Haida and Crown title through new models for long-term sustainability in Haida Gwaii. However, the case also paves the way for legal challenges to any form of resource tenure granted, replaced or disposed of without dealing honourably with Haida. Although the BC Court of Appeal had already reached a similar conclusion in 2002, as the case was making its way through the courts, the provincial government was repealing, rewriting or amending virtually every forest and environmental law in BC to reduce the role of the provincial government and place increased control in the hands of resource companies. Having eliminated or reduced its role in decisions about land and water, the Crown now claims that it has no duty to consult and accommodate First Nations when such decisions are made. The Crown has, in effect, attempted to avoid its constitutional duties through unilateral changes to legislation. Recent amendments to statutes like the Forest Act are thus vulnerable to constitutional challenge by First Nations. Such amendments are contrary to the direction of the Supreme Court of Canada, which held that the “honour of the Crown cannot be delegated” to resource companies, and that the Crown should be using its legislative authority as a tool to fulfill its legal obligations to First Nations – not to tie its hands. This trend is particularly apparent in the area of forestry, where legal changes make timber tenures more like private property, and offload responsibilities about forest planning and management decisions to corporate tenure holders. Some key examples include the following: CHANGE: Minister of Forests’ consent is no longer required when timber rights (tenures) change hands. Effect: The Crown now claims it does not have to consult the Haida about the fundamental matter of who controls/makes decisions about Haida territory through timber tenures. Specifically, the Crown claims that it has no duty to the Haida in relation to the Brascan purchase of Weyerhaeuser’s assets, despite the parallels to the Tree Farm Licence 39 case and the clear decision of the Supreme Court of Canada that consultation is required regarding tenure decisions, including transfers of rights from one company to another. CHANGE: The Minister of Forests no longer has the ability to insert conditions when a tenure is sold or there is a change in control of a company who holds tenures. Effect: This eliminates a critical and previously available tool for accommodation of Haida Aboriginal Title and Rights. CHANGE: There is no longer a 5 percent, non-compensable, take-back when tenures change hands. Effect: This eliminates a tool that was previously available to redistribute rights to First Nations and communities. CHANGE: The time period between tree farm licence and forest licence replacements has been extended from 5 to 10 years. Effect: This cuts in half future consultation and accommodation opportunities, including the Crown’s ability to insert conditions in replacement licences. Requirements that licensees operate mills and process wood from their tenures in them have been eliminated. Effect: Companies originally gained access to timber rights in exchange for taking on certain social responsibilities – today they are allowed to close mills but keep their timber rights. CHANGE: Landscape level operational plans (Forest Stewardship Plans) will now be prepared and approved only once every 5 years (and if extended, only once every 10 years) instead of yearly, and are required to contain only very limited information (e.g., they won’t show even the approximate location of planned cutblocks and roads before permits for them are already issued). Effect: Potential impacts on Haida rights and interests are harder to identify and prevent, and there are significantly fewer opportunities for consultation and accommodation of the Haida. CHANGE: Licensees can now opt out of default requirements in the Forest and Range Practices Act (FRPA) and set their own rules for values such as soil, water, fish, wildlife, biodiversity and size of cutblocks as long as they are consistent with vaguely worded environmental objectives, which must be met only to the extent it doesn’t “unduly reduce the supply of timber from British Columbia’s forests.” Effect: FRPA contains no bottom line protections for the ecosystems that sustain Haida culture, although the Crown must still consult with regard to plan approvals. CHANGE: In relation to some matters, Ministry of Forests staff must approve Forest Stewardship Plans if company foresters or other resource professionals say that the law has been met. Effect: The mandatory language of this provision ignores the Crown’s duties to First Nations. CHANGE: Requirements on companies to conduct terrain, watershed or archaeological assessments at various stages of planning have been eliminated. Effect: This limits the ability of the Haida to assess potential impacts of logging or roadbuilding on Haida rights and values. Where assessments are done, they are in the hands of companies, not the Crown, potentially creating barriers to Haida access to information. CHANGE: There is no longer Ministry of Forests approval of site level forestry plans (previously called silviculture prescriptions), although licensees must prepare them. Effect: The Crown claims to have eliminated its duties to consult and accommodate by removing itself from the process. CHANGE: Private land can be removed from Tree Farm Licences. Effect: Part of the historic “social contract” was that companies who received timber rights to log on public and indigenous land agreed to manage their private lands according to the same rules, as an integral part of their tree farm licence. Following recent amendments to the Forest Act, the Crown allowed the removal of thousands of hectares of land from Weyerhaeuser’s Tree Farm Licences 39 and 44 (among others) so that the Forest Act and FRPA no longer apply, leaving this land subject to even weaker legal protections. This was done without consultation with the Haida, Hupacasath or other affected Nations.