Picturing Our Future
Learn the facts about OKIB’s Forestry Consul‐ ta on Revenue Shar‐ ing Agreement with informa on provided by legal and forestry experts.
Ensuring the future through Cultural, Social, and Economic Development
To membership of the Okanagan Band Early last year your Chief and Council signed Forestry Consultation Revenue Sharing Agreement (FCRSA.) A FCRSA is an agreement established by the provincial government to provide a share of revenue derived from resource extraction with First Nation communities. This was directly in response to a series of First Nations court actions based upon access to tenure for community based socio‐economic purpos‐ es. To date there have been over 171 forest agree‐ ments signed with Aboriginal communities represent‐ ing 85% of the 203 individual bands in BC. These agreements have amounted to $242 million in reve‐ nue‐sharing and access to 54.6 million cubic metres of timber. In 2008, the council of the day signed what was called a Interim Forest and Range Agreement. The agreement saw $827,536 per year in “stumpage” fees as well as provided 89,000m3 in tenure per year but the OKIB did not log and the tenure was shared amongst other licence holders. The term of the Forest and Range Agreement’s
term ended in 2013 and the OKIB found itself with the financial burden of fulfilling project obligations taken on by previous councils. Furthermore, the Jules and Wilson Court challenges had taken away all opportu‐ nities to generate revenue through logging, like other communities have done so to provide services for their community. The province and the OKIB entered into the FRCSA in January of 2014. The FCRSA provides less monies than the For‐ est and Range Agreement as it is based off of a differ‐ ent model and with the implementation of the Forest‐ ry Tenure Opportunity Agreement (signed by council in August and amended in October 2015,), we are confident that the benefits drawn from these agree‐ ments will not harm our Rights and Title to our lands. As our legal counsel has told us, signing agreements puts the OKIB on the playing field and provides a fi‐ nancial accommodation which, in turn, the OKIB uses to pay for programs and services our members need. Through signing these agreements, the Okana‐ gan Indian Band can not only receive the financial benefits, but also, and more importantly, open up for‐ est based economic opportunities. Like the information we provided to you about the Forestry Tenure Opportunity Agreement, the in‐ formation contained within this booklet has been sourced and checked by legal experts with combined decades of experience in not only Aboriginal Law, but also Forestry Law and how it applies to Aboriginal People. Please take the time to read this information careful‐ ly. Respectfully, Chief Byron Louis
What is an FCRSA? An FCRSA is a common type of “consultation and accommodation agreement” that the Province offers First Nations who have forest activities occurring in their traditional territory. FCRSAs are used broadly throughout the Province and many Nations have signed virtually identical FCRSAs with the Province.
Can a First Nation get out of an FCRSA easily? An FCRSA only applies to forest activities that occur on a First Nation’s territory during the term of the FCRSA and most FCRSAs are for a term of 1 to 3 years (OKIB’s FCRSA is for a term of 3 years). This means that the FCRSA does not cover infringements that occurred outside of the term of the FCRSA in question. However, it is possible that a First Nation has entered into numerous FCRSAs (or similar revenue sharing agreements) in the past, so some care must be used when dealing with past infringements.
The basic idea with an FCRSA is that in exchange for a portion of provincial forest revenues generated in a First Nation’s territory, the First Nation agrees (1) to a consultation process around forest activities in its territory, and (2) that it has been provided an accommodation accommodated A First Nation can get out of a current FCRSA fairly easily for infringements to its aboriginal rights and title that hap- – typically on notice to the Province for any reason. OKIB pen as a result of those forest activities. can get out of the FCRSA by delivering the Province 90 days written notice.
Can we negotiate the FCRSA with the Province?
Unfortunately, the Province takes the view that FCRSAs are essentially a non-negotiable form of agreement. However, it is possible to make some additions to address an individual First Nation’s concerns – this happened with OKIB’s FCRSA. Negotiation of actual revenue sharing is very difficult.
Does the FCRSA say that we’ve “consented” to all forest activities in our territory? No, not exactly. But by accepting forest revenues under an FCRSA and agreeing to a consultation process a First Nation limits what it can do in the future. In short, a First Nation who takes FCRSA payments from the Province and who eventually gets title to an area may have less of a claim in the future for any damages that it seeks from the Province because of forest activity-related infringements.
Does an FCRSA take away a First Nation’s aboriginal rights and title? No. An FCRSA does not take away from a First Nation’s aboriginal rights and title or limit the ability of the First Nation to pursue a title claim. As noted in the question above, what the FCRSA does is limit the damages that a First Nation might be able to claim against the Province in the future when you get title. By signing an FCRSA, a First Nation is agreeing that it has been consulted and provided an accommodation for infringements on its aboriginal rights and title interests. This does not take away from the aboriginal rights themselves.
How long is the term of the FCRSA?
How does an FCRSA deal with forest activities that happened before the FCRSA was signed? To be clear, FCRSAs only relate to activities approved by the Province during the term of the FCRSA in question. If a First Nation signs an FCRSA, is not agreeing that it has been consulted on or accommodated for forest activities that occurred before the FCRSA was place. As noted in the question above, it is possible that previous FCRSAs have been signed by the First Nation so it is important to check if a forest activity occurred when a different FCRSA was in effect. If something happened years ago, before an FCRSA (or similar-type agreement) was in place, the First Nation is not agreeing that it has been consulted or accommodated on that activity. However, it is possible that a First Nation has signed a number of FCRSAs (or similar-type agreements). The FCRSA-model is a relatively new model of accommodation agreement that the Province has been using but before FCRSAs there were similar-type agreements in use.
Does the FCRSA meet the Province’s duty to meaningfully consult and accommodate? No, on its face an FCRSA does not meet the Province’s duty in this regard given current case law, but once a First Nation signs an FCRSA, the First Nation will basically have agreed that the Province has fulfilled its duty, especially with regard to the consultation aspect. If a First Nation signs an FCRSA, it agrees that the consultation process set out by the Province in the FCRSA is how the Province and the First Nation with deal with consulta-
tion. The First Nation also agrees with the Province that the forest revenues it receives are “an” accommodation for impacts to that First Nation’s aboriginal rights and title. In practice, this means that the First Nation has been “partially” accommodated and that theoretically the First Nation could seek additional accommodation if it wanted to. This does leave some room for the First nation to pursue other things from the Province, like forest tenures.
What happens if a First Nation doesn’t sign an FCRSA? In practice, nothing happens. There is no requirement that a First Nation enter into an FCRSA with the Province.
What, if anything, can a First Nation do to leverage itself to receive additional forest revenue sharing? Again, this is a difficult question to answer. Our response is similar to the question above: develop a litigation strategy and challenge the Province where possible. Find out where your claims are the strongest and what the Province is doing in those areas, then determine how best to make sure that the Province hears you.
What can be included in an FCRSA to ensure that the highest environmental standards are met for forestry operations in the First Nation’s territory?
If an FCRSA is not signed, the Province still has to fulfill its duty to consult and accommodate and the Province will still reach out to the First Nation to talk about potential infringements to aboriginal rights and title that come from forest activities.
As noted above, an FCRSA is essentially a non-negotiable template document that the Province uses with First Nations. It is unlikely that the Province will agree to adding specific clauses respecting environmental standards, but it may be possible to negotiate with the Province to add additional consultation steps.
If a First Nation chooses not to sign an FCRSA, it will have no mechanism in place to receive any share of Provincial forest revenue. This may not be a desirable situation for the First Nation to be in. Without an FCRSA in place, a First Nation may have leverage over the Province because there is much more of an open/unresolved question for the Province as to how it needs to consult and accommodate that First Nation.
The addition of consultation requirements could ensure that the First Nation has a chance to make the Province aware of the Nation’s position, which in turn would mean that the Province has to meaningfully consider that input. This could potentially equate into the Province treating certain issues, like environmental stewardship, more carefully/in a way the First Nation wants.
Is the amount of forest revenue received from an FCRSA proportionate to the scale of impact from the infringements that happen because of the forest activities? This is a difficult question to answer. The short answer is that in order to receive benefits proportionate to impacts, a First Nation needs to determine the strength of its claim to aboriginal rights and title, and make a stand on those that the Nation thinks will most influence the Province to move its position. Assessing strength of claim is a difficult and expensive proposition, plus taking a firm position on those claims may also involve costly litigation. Going down a litigation a route could equate to challenging every permit/ authorization that the Province issues. Also, a First Nation needs a very accurate understanding of the scope of forest activity in its territory to help determine what sort of benefits/financial revenues can be realized. There are lots of questions around this topic.
How does the FCRSA affect OKIB’s Brown Creek litigation? The present FCRSA (2014 to 2017) only has the poten al to affect the Brown Creek li ga on to the extent that the li ga on claims infringement during the me period of this FCRSA. The impact would be that the Province could argue that infringe‐ ments during that me period are jus fied, and that compensa‐ on for any infringements during that me period should be reduced to account for the monies received as a result of the FCRSA. As noted above, the FCRSA does not approve or give any consent to past forest ac vi es that occurred on OKIB’s territo‐ ry.
Can an FCRSA be used against OKIB if OKIB sues the Province? Yes, an FCRSA could be used by the Province to say that during the term of the FCRSA OKIB was consulted and provided “an” accommodation for forest activities on OKIB territory. However (and as discussed above), an FCRSA only relates to current forest activities – it does not cover past activities (unless a past form of FCRSA was in place). This means that OKIB’s exposure is limited to activities
that occur only during when the FCRSA (or similar-type) agreements were signed. Also, it is important to note that the FCRSA only amounts to an accommodation – not the entire accommodation. This means that it is possible for OKIB to claim that the forest revenue provided was not a complete accommodation and OKIB is still owed more. Again, signing an FCRSA does not limit the ability of a First Nation to pursue an aboriginal rights or title claim. OKIB can very easily terminate the FCRSA whenever it wants, on 90 days’ notice for any reason. Once the FCRSA is terminated, the Province will no longer be “accommodating” OKIB for any infringements that result from forest activities that go on after the termination date.
PART B: SPECIFIC QUESTIONS Which other Nations have signed an FRCSA? Adams Lake Indian Band - 2015 Ashcroft Indian Band - 2014 Ahousaht First Nation - 2014 Bonaparte Indian Band - 2011 Boston Bar First Nation - 2015Burns Lake Band - 2014 Campbell River Indian Band (Wei Wai Kum First Nation) - 2015 Canim Lake Band - 2015 Cape Mudge Indian Band (We Wai Kai First Nation) - 2015 Chawathil First Nation - 2012 Cheam First Nation - 2012 Cheslatta Carrier Nation - 2014 Coldwater Indian Band - 2013 Cook's Ferry Indian Band - 2014 Cowichan Tribes - 2014 Da'naxda'xw/Awaetlala First Nation - 2014 Daylu Dena First Nation - 2014 Dease River First Nation - 2014 Ditidaht First Nation - 2014 Douglas (Xa'xtsa) First Nation - 2014 Dzawada'enuxw First Nation - 2011 Ehattesaht First Nation - 2012 Esketemc First Nation - 2014 Gitga'at First Nation - 2015 Gwa’sala-‘Nakwaxda’xw Nations - 2015 Haisla Nation - 2014 Halalt First Nation - 2014 Heiltsuk First Nation - 2014
Hesquiaht First Nation - 2013 High Bar First Nation - 2012 Homalco Indian Band - 2014 Hupacasath First Nation - 2015 In-SHUCK-ch - 2014 Kanaka Bar Indian Band - 2015 Katzie First Nation - 2014 Kitasoo/Xaixais First Nation - 2015 Kitselas Indian Band - 2014 Kitsumkalum Indian Band - 2011 K’omoks First Nation - 2014 Ktunaxa Nation - 2014 Kwadacha Band - 2014 Kwantlen First Nation - 2012 Kwaw-kwaw-Apilt First Nation - 2015 Kwiakah First Nation - 2015 Kwikwasut'inmuxw Haxwa'mis First Nation - 2012 Kwikwetlem First Nation - 2015 Lake Babine Nation - 2015 Lake Cowichan First Nations - 2014 Lax Kwalaams - 2014 Leq’a:mel First Nation - 2014 Lheidli T'enneh First Nation - 2015 Lhoosk'uz Dene Nation - 2014 Lhtako Dene - 2014 Lil’wat Nation - 2014 Little Shuswap Lake Indian Band 2014 Lower Similkameen Indian Band 2014 Lyackson First Nation - 2013 Malahat First Nation - 2012 Matsqui First Nation - 2013 Mamalilikulla Qwe'Qwa'Sot'Em First Nation - 2015 Metlakatla First Nation - 2015 Moricetown Band - 2014 Mowachaht/Muchalaht First Nation - 2014 'Namgis First Nation - 2015 Nazko First Nation - 2011 Nee-Tahi-Buhn Indian Band - 2014 Neskonlith Indian Band - 2012 Nicomen Indian Band - 2014 N’Quatqua - 2014 Nuchatlaht First Nation - 2015 Nuxalk Nation - 2013 Okanagan Indian Band - 2014 Osoyoos Indian Band - 2014 Pacheedaht First Nation - 2014 Penelakut First Nation - 2014 Penticton Indian Band - 2014 Peters Band - 2013 Popkum Indian Band - 2014 Qualicum First Nation - 2013 Quatsino First Nation - 2014
Scia'new (Beecher Bay) First Nation - 2013 Scowlitz First Nation - 2015 Seabird Island Indian Band - 2014 Sechelt Indian Band - 2012 Shuswap Band - 2014 Shxw'owhamel First Nation - 2012 Simpcw First Nation - 2013 Siska Band - 2014 Skawahlook First Nation - 2014 Skeetchestn Indian Band - - 2012 Skin Tyee Nation - 2015 Skwah First Nation - 2015 Snaw-Naw-As First Nation - 2013 Splatsin First Nation - 2015 Squamish Nation - 2015 Stellat'en First Nation - 2011 Stswecem'c/Xgat'tem (Canoe Creek) First Nation - 2015 Stz'uminus First Nation - 2013 Sumas First Nation - 2013 Takla Lake First Nation - 2015 Taku River Tlingit First Nation - 2012 T'eqt'aqtn'mux First Nation (Kanaka Bar) - 2011 T'it'q'et First Nation - 2011 Tk'emlups te Secwepemc - 2014 Tlatlasikwala Nation - 2015 Tla'amin Nation (Sliammon) - 2015 Tl'azt'en Nation - 2014 Tla-o-qui-aht First Nations - 2015 Tlowitsis First Nation - 2012 Ts’elxwéyeqw Tribe (Ch-ihl-kway-uhk) - 2014 Tseshaht First Nation - 2011 Ts’kw’aylaxw First Nation - 2014 Tsleil-Waututh Nation - 2014 T'Sou-ke First Nation - 2013 Ulkatcho First Nation - 2015 Union Bar First Nation - 2012 Upper Similkameen Indian Band - 2013 Westbank First Nation - 2014 Wet'suwet'en First Nation - 2015 Wuikinuxv First Nation - 2015 Xat's?ll (Soda Creek Indian Band) - 2012 Xaxli'p First Nation - 2013 Yale First Nation - 2014 Yekooche First Nation - 2015 123 Nations have signed out of 203 = %60.5
ceived from the FCRSA “away from the band administration by setting up a corporation to administer the funds.” Does the action of the OKIB setting up a corporation to receive the funds flowing from the FCRSA affect the accountability to the OKIB membership? Why or Why not?? This is not really a question directly related to the FCRSA as it has more to do with internal OKIB dealings. How OKIB itself wants to spend the forest revenues received and maintain accountability to its membership is very not dealt with through the FCRSA. Technically, the FCRSA does not require that OKIB set-up a corporation to receive the funds. Section 3.1 of the FCRSA says that OKIB can “elect” to have a corporation or other entity receive the funds (that entity becomes OKIB’s “Designate” under the FCRSA). It is OKIB’s choice. If OKIB wants to have the funds from the FCRSA go to a Designate, it may be required under the FCRSA to provide a BCR to the Province, as well as satisfying other requirements that the forest revenues will actually go to OKIB. Accountability to the OKIB membership is up to present Chief and Council to determine, as membership were the ones who elected them. Chief and Council have duties to their members that they have to live up to. In some cases, Chief and Council can put themselves personally at risk from a liability standpoint if they choose not to act in accordance with their duty to OKIB and members.
Clause 6.1.4 allows the province the Province of BC, at its sole discretion, to audit the books of the OKIB to see if the funds received from the FCRSA were spent in accordance with the agreement. If the funds were put into Band Revenue (referred to as the black hole,) it puts the band in trouble because clause 6.1.4 gives the province the right to go through the OKIB financial statements. The concern is that by auditing the OKIB books, the province will know how much money the OKIB has to fight for title and rights. To your knowledge, has this happened be-
Section 3.0 or the FCRSA: Section 3.0 allows the OKIB to create a corporation to receive funds in exchange for forestry fore and if not, is it a likely scenario. and range access to OKIB territory. The Can the province search through all concern is that this gives the Chief and OKIB books to find the FCRSA monies? Council the ability to transfer the funds re-
ince, Chief and Council will work with the Province to help resolve those issues. Chief and Council only have to help To my knowledge, the Province has not used an FCRSA as facilitate a good faith dialogue between the members in a way to get into the books of a First Nation to assess the question and the Province. There is nothing in the FCRSA Nation’s ability to carry forward litigation. It is difficult to that says that if Chief and Council aren’t successful in tryassess the actual level of risk of the Province trying to use a ing to work with members and the Province to resolve the provision in an FCRSA to do something like this but I think issues, that OKIB will be in default of the FCRSA. Memthe risk in any event would likely be fairly small. bers are permitted to do as they choose and exercise their rights. In practice, if the Province exercised its rights under the FCRSA to audit OKIB’s financial records, they would give No, the FCRSA does not limit OKIB to how or what forest OKIB prior notice of such an audit. In the event OKIB reactivities OKIB can challenge. The FCRSA only sets out a ceives notice of the Province wanting to do an audit, OKIB consultation process that OKIB agrees to follow but it does should contact its lawyers and accountants to make sure not require that OKIB actually agree with the ultimate decithat the Province is only looking at the documents it needs sions of the Province on those matters under consultation. to in order to assess compliance with the FCRSA. This is OKIB is free to exercise and enforce its aboriginal rights common practice when audit requests come in under an and title. However, if OKIB does challenge a decision of agreement like a FCRSA. The key phrase in section 6.1.4 is the Province, the Province can suspend the forest revenue
that the Province must exercise this audit right
payments that it makes to OKIB under the FCRSA. “reasonably” – this means that the Province cannot go look at everything in OKIB’s books, it can only look at FCRSAOther nations submit maps that overlap related expenditures. Plus, this is why OKIB would likely need to use lawyers and accountants to help determine what with Okanagan Maps. When the province accepts those maps and accepts our is “reasonable” for the Province to actually look at.
Section 8.0: 8.1 shows the Chief and Council agree to collaborate with the Province to “resolve any acts of intentional interference by members of the OKIB re: Forestry in the territory.” The concern is that this means the OKIB Chief and Council are legally obligated to report all forest and range land activities of band members whenever requested to do so by the province. The other concern is that it’s a “gag order” and that we agree not to challenge or support any challenge to any forestry related dispute under the agreement. Is the band required to report the forest and range activities of its members at the request of the province and is the OKIB now prevented from challenging or supporting any challenge to any forestry related issued covered under the agreement? No, section 8.1 does not mean that Chief and Council have to police OKIB members or report them to the Province respecting questionable forest activities (or intentional interference) of those members in OKIB’s traditional territory. Section 8.1 means that if OKIB is requested by the Prov-
maps as well and then prorates FRCRSA funding when overlap occurs between overlapping nations, is the OKIB admitting that the OKIB doesn’t “own” its entire nation? This is coming from the Tsilhqot’in decision where a nation had to prove exclusive occupancy. The concern is that by the OKIB Chief and Council signing agreements which recognize infringements on our declared territory will make it more difficult for the Okanagan to claim exclusive occupancy when the Nicola and Shuswap are declaring swaths of our territory as theirs in their FCRSAs? The FCRSA is clear that it does not address or prejudice conflicting interests or competing claims between First Nations (section 16.3). This means that if a First Nation signs the FCRSA, that First Nation is not limiting the legal position it can take on overlap issues with either the Province or with other First Nations. In short, Chief and Council signing an FCRSA should not recognize/confirm shared territory or make it any more difficult to prove title because of the overlap map attached to the FCRSA.
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Okanagan Indian Band