Picturing Our Future
Learn the facts about OKIB’s Forestry Tenure Opportunity Agree‐ ment with informa on provided by legal and forestry experts.
Ensuring the future through Cultural, Social, and Economic Development
2008‐ 47,000m3 agreement signed 2011‐ 215,000m3 agreement signed 2011‐ 70,000m3 agreement signed Total: 332,000m3 Lower Similkameen: 2007‐ 24,000m3 agreement signed 2007‐ 52,000m3 agreement signed 2008‐ 56,000m3 agreement signed 2009‐ 30,000m3 agreement signed 2012‐ 202,500m3 agreement signed Total: 364,500m3 Upper Similkameen 2007 – 256,000m3 agreement signed 2010 – 15,000m3 agreement signed Total: 271,000m3 Upper Nicola Band
To membership of the Okanagan Band Your Chief and Council would like to take this opportunity to inform you that a majority of Council have signed three Forest Tenure Opportunities Agree‐ ments (FTOA). A FTOA is one of the agreements the provincial government first established in 2003 to provide a share of revenue derived from resource ex‐ traction with First Nation communities. This was di‐ rectly in response to a series of First Nations court actions based upon access to tenure for community based socio‐economic purposes. To date there have been over 171 forest agreements signed with Aborigi‐ nal communities representing 85% of the 203 individ‐ ual bands in BC. These agreements have amounted to $242 million in revenue‐sharing and access to 54.6 million cubic metres of timber. Just within the Okana‐ gan Nation Alliance, many forestry agreements have been signed:
Osoyoos:
2007‐ 96,000m3 agreement signed 2011‐ 300,000m3 agreement signed 2015‐ agreement signed Total: 396,000m3 Penticton Band 2010 – 101,000m3 agreement signed Total: 101,000m3 Westbank First Nation 2002 – 275,000m3 agreement signed 2002 – 7500m3 agreement signed 2003 – 100,000m3 agreement signed 2007‐ 142,000m3 agreement signed 2011 – 75,000 m3 agreement signed 2011‐ 53,000m3 agreement signed Total: 652,500m3 ONA Total: 2,117,000m3
Approximate value based off of conservative estimate of $11 profit per m3 = $23,287,000 profit. Our council did not take this decision lightly. We consulted two law firms:
1. Mandell Pinder LLP Barristers & Solicitors who had undertaken redrafting of the original agreement templates to ensure our Brown’s Creek court case, would not be negatively af‐ fected. 2. The agreements were again reviewed by Ratcliff & Company who provided additional advice and amendments to the agreements and clarified Chief and Councils roles and re‐ sponsibilities in terms of such agreements. We asked the legal team at Ratcliff and Com‐ pany if signing a Forestry Tenure Opportunity Agree‐ ment would weaken our position regarding Aborigi‐ nal Title and Rights and were given the following as‐ surance: Establishing an aboriginal right requires evidence of a practice, custom or tradition that is of central signifi‐ cance to an aboriginal group at and prior to contact with Europeans. Establishing aboriginal title requires that an aboriginal group exclusively occupied a de‐ fined tract of land at 1846 (in BC)”. Further, they said, “the FCRSA previously signed and FTOAs signed by OKIB do not cede aboriginal rights or title ‐ signing them does not impact what hap‐ pened at contact or in 1846, so signing does not im‐ pact the foundations of OKIB’s aboriginal rights or title”. Currently the Okanagan Indian Band is a ser‐ vice provider with Aboriginal Affairs and Northern Development Canada (AANDC.) The funding is to be spent on specific programs and services based upon binding contractual service agreements. For the OKIB to be able to provide the services our membership wants outside of the government funding model, we need to source our own revenue. Signing this agree‐ ment can poten ally open doors of opportunity to advance training and employment, increase resource management capacity and provide addi onal reve‐ nue for OKIB. This summer we’ve seen record drought throughout the territory, but that is just part of a
much larger global issue. Where there is water, there is life and signing these agreements provides the OKIB to further our ability to participate, develop and implement forestry management and conservation plans. Not signing this agreement limits our capacity and funding to actively manage our resources at the current level, which we can all agree is inadequate for the size of the area we are obligated to manage and protect. Change takes time and a majority of council view signing a Forestry Tenure Opportunity Agree‐ ment as a preliminary step in the direction of positive change. Please take the time to read the rest of this information package. Respectfully, Chief Byron Louis
Forestry Tenure Opportunity Agreement 101
ures could potentially be deducted against any damage claim OKIB has against the Province for forest activities that occur during the term of the FTOA. In this sense, providing an “accommodation” is somewhat related to OKIB providing “consent” for the purposes of the Tsilhoqot’in decision even though the FTOA says that OKIB is not providing its consent to forest activities occurring during the term of the FTOA.
Below are some frequently asked questions about Forestry Tenure Opportunity Agreements. These questions have been answered by forestry and In short, the Province wants OKIB to sign the legal experts. FTOA to limit what the Province could be sued for once OKIB’s rights and title are proved.
Q: What is an FTOA? A: An FTOA is a common type of “accommodation agreement” that the Province offers First Nations who have forest activities occurring on their territory. An FTOA is meant to act as an “interim measure” and compensate the First Nation for infringements to that Nation’s aboriginal rights and title that occur on its traditional territory as a result of forest activities that the Province approves. Under an FTOA, the Province gives the Frist Nation forest tenures as an accommodation for these infringements. Q: Why has the Province offered FTOAs to OKIB?
The Province wants OKIB to sign the FTOAs and take the forest tenures offered so that the Province can have some “certainty” about the forest activities that the Province approves on OKIB’s territory. As a result of recent Tsilhoqot’in decision, the Province ideally wants OKIB’s consent for forest activities on OKIB’s territory to insulate the Province against any potential damage claims that OKIB could make for infringements to its aboriginal rights and title. However, receiving the consent of OKIB is a very high standard for the Province to expect and the Province realizes that it is very unlikely that OKIB would provide consent in exchange for only a few forest tenures. Instead, the Province wants OKIB to agree that the forest tenures provided are an “accommodation” for infringements to OKIB’s aboriginal rights and title from the forest activities. What this essentially means is that the value of the forest ten-
Q: Does the FTOA deal with OKIB approving forest activities that have already occurred? A: To be clear, OKIB’s FTOAs do not deal with the approval of past infringements that the Province has committed on OKIB’s territory (i.e. activities that occurred before the FTOA was signed). These FTOAs for OKIB only cover infringements that will occur during the term of the FTOA in question. OKIB is free to sue the Province for infringements that occurred before the date that Chief and Council sign the FTOAs. Q: How do the FTOAs affect OKIB’s Brown Creek litigation? A: The FTOAs do not affect OKIB’s Brown Creek litigation because the FTOAs only deal with forest activities that occur from the date of the FTOAs forward (for example, from August 12, 2015 onwards). The FTOAs do not approve or give any consent to past forest activities that occurred on OKIB’s territory.
Q: Can an FTOA be used against OKIB if OKIB sues the Province? A: Yes, an FTOA could be used by the Province as proof to say that OKIB “consented to” forest activities on OKIB territory. However (and as discussed above), an FTOA only relates to current forest activities – it does not cover past activities. This means that OKIB’s exposure is limited to activities that occur after the FTOA is signed. Also, the forest tenures provided under the FTOA only amount to an accommodation –
not the entire accommodation. This means that it is possible for OKIB to claim that the forest tenures provided are not a complete accommodation and OKIB is still owed more.
impacts.
The forest tenures offered under the FTOA represent an excellent economic opportunity for OKIB. OKIB could choose to manage the forest OKIB can very easily terminate the FTOA when- tenures itself or sell the rights to other timber companies. Depending on how the forest tenever it wants. Once the FTOA is terminated, ures are managed, the three forest tenures the Province will no longer be “accommodating” OKIB for any infringements noted above hold the potential to earn OKIB that result from forest activities that go on after hundreds of thousands per year (once the two non-replaceable licences expire, this amount the termination date. will likely drop). Q: What is a forest tenure? A: A forest tenure is a type of permit issued by Q: What are some risks with holding a forest the Province that allows the holder to harvest tenure? a certain amount of timber per year from A: It is likely that OKIB itself will not hold the forCrown land. There are two basic types of forest est tenures directly. Instead, OKIB will probably tenures: (1) area-based forest tenures that give form a new company or partnership to hold the holder the exclusive right to manage and them. This will help to insulate OKIB from risks harvest timber from a defined area of land, associated with holding the forest tenures but and (2) volume-based tenures that give the at the same time allow for income from the holder the right to harvest timber from a large operations to flow back to OKIB. area but may be in competition with others Regardless of who holds the forest tenures, who hold similar rights in the area. there are costs associated with holding and Forest tenures can be for a set period of time properly managing forest tenures. Among oth(non-replaceable) or can be oner things, the holder will have to pay rent on going/”evergreen” with no set term the forest tenures (typically $0.10 per m3) and (replaceable). will have to agree to reforest/plant trees on any land that it harvests (called the “silviculture Q: Will OKIB control all of the forest tenures in obligation”). The silviculture obligation can be its territory if OKIB signs the FTOA? costly and must be managed appropriately so A: No, signing the FTOA will not give OKIB con- that there is money to pay for silviculture opertrol over all of the forest activities that occur in ations from time to time as the trees grow. Also, its territory. Many other people will still hold for- the holder will be responsible for any environest tenures that give them rights on OKIB terrimental damage or offences to forestry laws tory. that occur under the operations of the tenures. Proper planning is essential for good manageQ: Why would OKIB want to have forest ten- ment of the forest tenures and OKIB may have ures? to hire people to manage the forest tenures if it A: If OKIB does not hold all the forest tenures in does not already have the internal capacity. its territory, even holding a few will give OKIB more say on what goes on in the forests. These The forest industry is a risky business and timber forest tenures also represent an excellent eco- prices vary from time to time. There is no guarnomic opportunity and chance for OKIB to antee that the forest tenures that OKIB regrow its forestry business. ceives under the FTOAs will present a consistent and steady income flow. Making sure By holding these forest tenures, OKIB can the forest tenures are managed properly is also choose what timber it harvests and how it manages the land. OKIB can begin to have a very important to ensure that liabilities against bigger influence on forest practices in its terri- the forest tenures do not add up and become tory, with regard to cultural and environmental a liability to OKIB.
Frequently Asked Questions: Q: Is unused tenure saved? Like, if the OKIB didn’t participate in forestry activities, would the unused tenure be “protected trees?” A: No. Each year the Ministry of Forests, Lands and Natural Resources allots a specific amount of timber to be cut throughout the Province – Annual Allowable Cut. If that amount of allowable cut isn’t harvested, the remaining amounts are distributed between existing licensees. In other words, if you don’t use it, you lose it.
cubic metre (m3) The agreements are broken down on the following pages.
Q: What areas are mentioned in the FTOA? A: - Brown’s Creek Area Okanagan Timber Supply Area (TSA) Arrow Lakes TSA See maps and further detail on the following pages.
Tree planting, ecosystem restoration, creek restoration, cultural use studies are a part of forestry activities.
Q: How can areas which have been identified as culturally sensitive be protected?
Currently, our Territorial Stewardship Department visits all cut blocks within our territory and if Q: So, you mean that even if the area is found to be culturally sensitive, OKIB does not participate in forestry activiwe are able to eliminate that area from harties, someone else is cutting down the trees? vesting. A: Yes. Other licensees will receive the unused volume.
Q: How can we protect our watershed?
A: There is an agreement, which is separate from the Non-Replaceable FTOA document, A: The central concept underlying the Market which provides the Okanagan Indian Band Pricing System is that auctions of standing with the opportunity to develop a Watershed timber establish the market value of the timManagement Plan in the litigation area to ber, and those market values can then be determine how to best manage our reused to determine the stumpage price for sources. the timber harvested under long term ten ures. Q: What about replanting? Does participating in forestry mean that all we’re doing is cutting Q: Based off of today’s prices, what is the po- down trees? tential value of the FTOAs? A: No, there are other activities relating to In the fall of 2014, the price was $11.00 per the forest which are part of the logging proQ: How is the value of lumber calculated?
cess: Tree planting, eco system restoration, road maintenance, creek restoration and cultural use studies. Non-timber forest products (NTFPs) are any product or service other than timber that is produced in forests. They include fruits and nuts, vegetables, fish and game, medicinal plants, resins, essences and a range of barks and fibres.
the holder the right to harvest timber from a large area but may be in competition with others who hold similar rights in the area.
Q: What are renewable tenures? A: A fixed amount of timber to be harvested annually. The tenure never expires but is adjusted approx. every four years to reflect stumpage rates and Band population.
Q: Why is it good to manage the forest?
Q: And Non-Renewable? A: It’s our duty as stewards of the land. Prop- A: Adjustable amount of timber to be harvested over a limited term. er management of our resources can assist in preventing the wild fires we see each year Q: What are the terms of the OKIB’s FTOAs? through fuel management, dangerous tree The Okanagan Indian Band has signed three removal and other practices mentioned FTOAs. above. Forestry Management also allows the management of forest health concerns ie 1. Renewable FTOA within the Okanagan TSA Various Bark Beetles, Tussock Moth, root disease. Length of Tenure: 20 years
Q: What kinds of opportunities can arise for band members? A: Mentorship opportunities will be available initially, with the potential of a band owned logging company when we have the capacity. Training opportunities for members will be available through OTDC and ESD as well for members who are interested in entering the field. Q: What is a forest tenure? A: A forest tenure is a type of permit issued by the Province that allows the holder to harvest a certain amount of timber per year from Crown land. There are two basic types of forest tenures: (1) area-based forest tenures that give the holder the exclusive right to manage and harvest timber from a defined area of land, and (2) volume-based tenures that give
Annual Volume: 89,154m3 Total Volume: 1,783,080m3
Area: The volume may be taken from anywhere within the Okanagan TSA (see map) Based off of a conservative estimate of approx $11 per cubic meter of volume (m3) = $980,654 annual revenue. 2. Non-Renewable FTOA within Arrow TSA Length of Tenure: 5 years
Annual Volume: 10,000m3 Total Volume: 50,000m3 Area: The volume may be taken from anywhere within the Arrow TSA Based off of a conservative estimate of approx $11 per cubic meter of volume (m3) = $110,000 annual revenue
3. Non-Renewable FTOA within Brown’s Creek Area Length of Tenure: 7 years
Brown’s Creek area to: - Define goals and objectives for the area, addressing sustainable resource harvesting and management, cultural continuity and restoring habitat conditions in consideration of our changing climate conditions and with the understanding that quality and quantity of water is likely the most important goal and objective to address. - Identify, prescribe, and implement restoration work needed within the area to meet the long term goals and objectives - Involve subject experts as required - Allow timber harvesting in the area in a scope and manner that achieves the long term goals and objectives Q: What other ONA bands have signed a FTOA? A: Upper Nicola Band Osoyoos Indian Band Westbank First Nation Lower Similkameen Band
Q: What other bands in BC have signed a FTOA? Total Volume: A: Tk’emlups te Secwepemc 200,000m3 Ktunaxa Communties Based off of a Moricetown Band conservative Shuswap Band estimate of Kitasoo/Xai’xais First Nation approx $11 per Malahat First Nation cubic meter of Kwaw-kwaw-Apilt First Nation volume (m3 ) = Skwah First Nation $2,200,000 toHupacasath First Nation tal revenue. Xwemalhkwu (aka Homalco) First Nation Tseshaht First Nation *Note* Lheidli T’enneh Band The Okanagan Indian Band will create a resNanwakolas First Nations toration and management plan for the Neskonlith Indian Band
Kwadacha, Tsay Keh Dene and McLeod Lake Kwiakah First Nation Haisla Nation Splatsin First Nation Canim Lake Band Nak’azdli Band Nadleh Whuten Band T’it’q’et Splatsin Seabird Island Ts’Kw’aylaxw (Pavilion) Sts’ailes (formerly Chehalis Indian Band) Esketemc Skeetchestn Simpcw (North Thompson) Ashcroft Canim Lake Band Bonaparte Nadleh Whut’en Q: Does the signing of a FTOA weaken our position regarding title and rights? A. In short, no, a FTOA does not impact whether OKIB has aboriginal rights or title and they do not surrender or cede rights or title. They are agreements that indicate that for the time being, OKIB does not want to stop forestry, and instead wants to actively and directly participate in forestry management and obtain some benefit for the forestry taking place in Okanagan territory.
group at and before contact with Europeans. There are three ways in which signing a FTOA may be relevant to a claim in court for aboriginal rights or title: 1. The Crown will want to reference these agreements, or even just the offer of the agreements if OKIB doesn’t sign them, as an accommodation – ie, if it is established that OKIB’s aboriginal rights or title exist and have been infringed, the Crown will want to present the FTOA, as part of their justification of the infringement. Note that even if the agreements are not signed, the Crown will want to say – we tried to consult with OKIB and share some benefits. The language of the FTOAs makes clear that OKIB does not consider the agreement to be sufficient accommodation, so OKIB can always argue that it deserves much more.
2. While the FTOA is in effect, OKIB cannot say that it entirely disagrees with the forestry taking place in the areas of the agreement because OKIB will participating in tenures (FTOA) or obtaining a % of stumpage revenue (FCRSA). OKIB can still argue that the forestry should be taking place in a different way (eg preserving particular areas of importance), but it cannot argue that there should be no forestry at all. If OKIB is not satisSigning an agreement in 2015 does not fied with the benefits it receives and wants to change what happened in 1846. Title is deargue generally against forestry, it can cantermine by which Aboriginal group exclusive- cel the agreements and forgo the benefits. ly occupied a specific tract of land in 1846. Aboriginal rights are determined by providing 3. Finally, if the Crown is found to be liable evidence of a practice, custom or tradition in damages to OKIB in relation to aboriginal that is of central significance to an Aboriginal rights or title (note that no such claim is cur-
rently made), the financial benefits obtained from a FTOA would likely be deducted from a damages award. The advantage to OKIB is, of course, that some financial benefits would be obtained now. There is no guarantee that any damages will be obtained in the future.
the FTOA that it wants to end the agreement. If OKIB ends the agreement, BC may require the OKIB give back to forestry license that was obtained under the agreement.
Q. What is the fiduciary responsibility of the OKIB Chief and Council and why aren’t we having a referendum on this important agreement? A: The fiduciary responsibility of Chief and Council is to act on behalf of all band members. That responsibility means making and implementing decisions that Council believes are in the best interests of all members of the Band, and avoiding acting in a selfinterested manner. Therefore, based upon Chief and Council’s fiduciary obligation to membership and undertaking careful deliberation, the decision was made to act and to move forward with the signing of this agreement. Q: What if another nation gets a better deal than we’ve negotiated? A: OKIB has proposed a ‘me too’ clause in the FTOAs which states that if BC enters into forestry agreements with other First Nations that are quite different and more favourable to the First Nations, OKIB should also get similar benefits. Q: If the Chief and Council change their mind about the agreement, is there a way to get out of it? A: Yes, OKIB can give 60 days’ notice under
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Okanagan Indian Band