An Analysis of Ontario Forest Governance Systems and their Ability to Effectively Include Indigenous People

Transcription

1 An Analysis of Ontario Forest Governance Systems and their Ability to Effectively Include Indigenous People A research project submitted in conformity with the requirements for the degree of Master of Forest Conservation Stephanie A. Robinson Faculty of Forestry University of Toronto University of Toronto Faculty of Forestry 33 Willcock s St. Toronto, ONM5S Copyright by Stephanie A. Robinson, 2017

2 ABSTRACT In the past few decades, sustainability has taken the forefront in discussions in Canada broadly, and specifically in the Canadian forest industry. There has been much focus on economic and environmental sustainability, but social sustainability in forest management has alluded much attention. This paper focuses on social sustainability in terms of social justice and reconciliation with Indigenous people in Ontario. This paper analyses and assesses Ontario forest governance systems and their ability to effectively include Indigenous people. The analysis uses the concepts from Sustainable Development, sustainable forest management, and United Nations Declaration on the Rights of Indigenous Peoples as a lens to assess Ontario forest governance. 1

3 Table of Contents 1.Introduction Historical Context Methodology Criteria Sustainable Development Sustainable Forest Management UNDRIP Analysis Criteria Forest Governance Federal Legislation The Constitution Act 1982, Section Provincial Legislation Environmental Assessment Act (1990) Environmental Bill of Rights (1993) Crown Forest Sustainability Act (1994) Provincial Parks and Conservation Reserves Act (2006) Endangered Species Act (2007) Third- Party Certification Forest Stewardship Council Sustainable Forest Initiative Analysis Federal Legislation The Constitution Act 1982, Section Provincial Legislation Environmental Assessment Act (1990) Environmental Bill of Rights (1993) Crown Forest Sustainability Act (1994) Provincial Parks and Conservation Reserves Act (2006) Endangered Species Act (2007) Third- Party Certification Forest Stewardship Council Sustainable Forest Initiative Discussion Recommendations Acknowledgements Literature Cited Appendices

4 1. Introduction The 1996 Royal Commission on Aboriginal Peoples divided the evolution of relationships between Indigenous and non-indigenous people in Canada into four stages (McGregor, 2011). The first was that of separate worlds, where Indigenous societies in North America and Europe were independent from one another and respectively developed their own cultures, political and educational structures, spirituality, and languages and traditions (McGregor, 2011). The second stage in this relationship was defined by nation-to-nation interactions whereby trade and military alliances and treaties were made between Indigenous people and Europeans. The Europeans and the individual Indigenous nations saw each other as distinct and independent (McGregor, 2011). This was followed by a third stage in which the relationship was characterized by displacement and assimilation (McGregor, 2011). Land acquisition, colonialism, and severe discrimination faced many Indigenous people as Europeans settled in North America. It was said that we are now in the fourth stage in which the relationship is characterized by renewal and renegotiation. Indigenous peoples are attempting to revitalize their political, cultural, educational, and spiritual institutions and they are trying to recover from devastating policies of domination and assimilation (McGregor, 2011). Canada s support for this process is evident by its commitment to various agreements such as Sustainable Development, Sustainable Forest Management, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canadian forestry has an important role to play in this renewed relationship considering approximately 80% of Indigenous people live in and around forest areas (CCFM, 2017). Ensuring that sustainable forest management practices are inclusive and allow room for alternatives to Western paradigms is important to properly recognize differences between nations. Achieving sustainable use of forest resources comes from balancing and optimising social, economic, and environmental values while ensuring Indigenous heritage for future generations. Society and social values are an important part of this aspiration (Adam & Kneeshaw, 2009). However, difficulties have occurred trying to include those most dependent on forest resources and thus most effected by forest development issues. Specifically, properly including Indigenous interests in forest management has been problematic. Fostering forest management that is well adapted to include and recognize Indigenous people s values, objectives, and social realities is thus one of the most pressing current challenges in Canadian forestry (Adam & Kneeshaw, 2009). In Canada, forestry is a provincial jurisdiction and it is thus up to each individual province to create its own interpretation of sustainable forest management and inclusion paradigms. Ontario forestry has been a leader in many regards, and has an opportunity to do so again in fostering inclusive forest governance. It has the potential to play a unique role in reconciliation, in that it directly affects many Indigenous communities within the province, for many of these communities forests 3

5 are more than just property. Instead, they represent culture, relationships, ecosystems, social systems, spirituality, and law. The objective of this paper is to analyze and assess the effectiveness of forest governance in Ontario at including Indigenous people. This paper further seeks to establish where Ontario forestry currently is in terms of Indigenous inclusion and how it could improve. 2. Historical Context: The Indigenous forest dwelling population in Canada Canada s Indigenous population has an age-old cultural and spiritual relationship with the forests. A fundamental aspect of Indigenous forest dwelling populations is characterized by how people relate and interact with the environment around them (McGregor, 2011). In Canada, the foresthuman interaction changed rapidly from systems of Indigenous stewardship to a timber based management as imposed by the Europeans settlers. Indigenous rights and titles have their origin in the occupation of North America by these people before European traders and settlers arrived (Wyatt, 2008). When Europeans settled in Canada, forests took on a utilitarian value and were increasingly exploited. In the early years of colonization, this exploitation was limited with regards to management. Land procurement was the primary objective of the colonial government (McGregor, 2011). Indigenous peoples were regarded as a part of the forests; they were an obstacle to the progression of land acquisition and were systematically moved out of the way. This displacement was executed through various methods such as treaties, policies, and legislation of the British and later Canadian governments (McGregor, 2011). Early treaties between colonial powers and Indigenous communities engaged the establishment of European legal and government systems and aimed to eradicate inherent Indigenous title to further facilitate European settlement (Wyatt, 2008). As forests became increasingly valued for their potential in timber supply, the necessity of forest conservation started to appear. During this time, the concept of forest management gained importance (McGregor, 2011). Despite this change, the relations with Indigenous people didn t alter and the colonial approach of appropriation of the forests and the practice of displacing Indigenous people persisted. The territories that Indigenous people relied on for their survival were taken away from them in order for the new governments to take control. This resulted in the deterioration of the relationship between Indigenous and European populations (McGregor, 2011). Although Canada s modernized forest management systems has the stated primary objective of aiming to be sustainable environmentally, economically, and socially; the challenge remains to involve Indigenous people in a meaningful way within this new approach. Systematic exclusion remains engrained and continues to frame the discourse on sustainable forest management. In 1867, the British North American Act was enacted, which ultimately led to the Constitution of Canada. It created the division of powers between the federal and provincial governments (McGregor, 2011). This division created a jurisdictional dilemma with regard to Indigenous issues in Canada. The federal government was responsible for the Indians and land reserved for Indians, however the management of natural resources over Crown lands was the responsibility of the provincial governments (McGregor, 2011). This structure was devised without any 4

6 consultation or consent from the Indigenous population. The Indigenous people wanted to remain autonomous and self-governing; and this division of powers did not recognize the cultural significance that the natural environment (or natural resources) had on them. The jurisdiction of the people and the land they were so connected to, were divided between two different levels of government. As Canada established itself as a country, Indigenous groups were effectively stripped of their authority and jurisdiction over the land upon which they relied. Although there are exceptions, the policy and legislative frameworks that govern the forest industry in Canada continue to exclude Indigenous people from forest management (McGregor, 2011). This exclusion can be seen in instances of restricting access to forest resources, limiting participation in decision making, and failing to include traditional uses and values in forest management (McGregor, 2011). Notwithstanding specifics of forest regulation that vary within Canadian provinces, most forestry occurs on publicly owned land where private enterprise manages and harvests forests under government assigned licenses. These forest management systems represent a continuation of colonialism (Wyatt, 2008). Permitting harvesting through leasing the land in this fashion deprives Indigenous people from fully participating in the decisions about the way in which forests are managed. This is an issue because Indigenous people continue to practice a wide range of activities on forest lands (Wyatt, 2008). The benefit Indigenous communities presently glean from the forests is similar to their historical roots. Forests continue to provide sustenance and traditional aspects of culture through economics (logging and trapping), health (medicines), food sources (hunting, gathering, growing), shelter materials, fuel supplies, recreation, cultural, spiritual, and social activities (ceremonies) (McGregor, 2011). The ongoing interdependence these communities have on forests highlights how forests and involvement in the management of them is as important now as it was before the Europeans arrived on North American soil. Forests have been paramount to Indigenous people since time immemorial. Eighty percent of Indigenous people live in or around forest area (NRCAN, 2016a; Joseph, 2016). This means that decisions about the management of these forests directly effects their relationship with the environment and their ability to carry out traditional activities and ceremonies. Despite the close ties and the historical connection to forests, Indigenous communities have only recently been granted the right to participate in decisions which affect forestry, often coming with a high cost of legal battles, boycotts, barricades, and negotiations (Joseph, 2016). Currently, research suggests that Indigenous participation in forestry decision-making is still relatively restricted (Booth & Skelton, 2011). Most of the power is through co-management regimes with industry and/or government or independent Indigenous forestry ventures. In more recent times, there has been a growing recognition of Indigenous rights to land and natural resources and this has resulted in more involvement in decision making, partnerships, and Aboriginal and forest based-businesses (NRCAN, 2016). After many strides towards reconciliation and supporting UNDRIP, it remains questionable as to whether there is enough legitimate Indigenous inclusion in forest governance. Is enough actually being done to improve the terms in which they are involved? 5

7 Forest management is not static. Practices across Canada have continued to change and evolve. Forestry systems are increasingly concerned with the institutions, processes, and decision making that acknowledges both the complexity of forest ecosystems and the role of humans within the system (Wyatt, 2008). This can be perceived as encouraging in that that systems will shift to a more inclusive nature. Currently participation of Indigenous people in forestry can take many forms, such as consultation, impact assessments, traditional knowledge, co-management, and promoting Indigenous forestry (Wyatt, 2008). As Indigenous people become more included in the forest sector in Canada, issues arise such as how to ensure that cultural differences are respected and that relations are built on a nation to nation level. For instance, Indigenous people should not be forced to fit into a western forestry paradigm and should not be treated as just another stakeholder. Indigenous rights are not just to use land, but are also to allow the freedom for self-government, language, culture, and identity (Wyatt, 2008). However, in the absence of recognition of Indigenous rights and titles, Indigenous people are forced to act within the scope of provincial and federal regulations with respect to forestry. As the economic importance of timber and forestry science evolved in the 1900s, the government and forest industry took on the responsibility of forest planning and management (Wyatt, 2008). Forest management developed as being dominated by rational scientific planning aimed at ensuring supply of wood coupled with economic analysis (Wyatt, 2008). The forest management systems were thus established in accordance with the norms of western positivist science, leaving little place for the cultural identity and distinct relationship and management styles the Indigenous people in Canada have with the forest lands. This unique partnership which the Indigenous people have with the forest came from living in harmony with their surroundings for centuries, and from understanding how the components of the environment are interconnected (CCFM, 2017). This unique relationship to forests is of particular importance because in many instances people believe that land reinforces who Indigenous people are as humans (Booth, 1998). Many in communities consider entire land bases as sacred. The survival of fish, wildlife, and plants are required for spiritual/cultural maintenance and traditional practices to be ensured (Booth & Skelton, 2011). In the face of forestry and other extractive activities, maintaining access to a functioning land base is a serious challenge for most Indigenous people. Thus, participation in decision making that gives a voice to this significant cultural aspect is essential. A nation-to-nation relationship between Indigenous and non-indigenous Canadians with respect to sustainable forest management is necessary to acknowledge and incorporate rights and culturally appropriate practices (McGregor, 2011). 3. Methodology In order to achieve the objective of analyzing and assessing the effectiveness of forest governance in Ontario at including Indigenous peoples, criteria were derived from the concepts of Sustainable Development, Sustainable Forest Management, and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). These three commitments of the federal government of Canada were used as a lens of analysis. This was because all three concepts are nationally accepted as a standard to strive towards. Also, due to the Policy of Tabling Treaties in Parliament, when the 6

8 federal government of Canada signs an international convention, agreement, or protocol, they must consult with the provinces. The selection of governance structures to be used for this analysis was selected through the perceived legitimacy and the relevance to achieving the objective. The forest governance systems were then analyzed according to the criteria and literature review. From the analysis, the results were discussed and policy recommendations that arose were summarized. 4. Criteria The role and responsibility of Indigenous people in achieving global Sustainable Development standards was recognized in 1987 with the publication of the UN World Commission on Environment and Development report Our Common Future (Brundtland Report) and later in Article 8 of the Convention on Biological Diversity (see Appendix 2 for timeline). Further, the responsibility to recognize and uphold well-established and protected human rights standards, including Indigenous peoples, is a vital aspect of executing the practice of sustainable forest management (FSC, 2016a). The more recent document, the United Nations Declaration of the Rights of Indigenous People outlines how to recognize and uphold the rights of Indigenous people across the globe. Canada has committed to adopt and instill the principles of sustainable development, sustainable forest management, and UNDRIP in its country s practices. In order to achieve Sustainable Development, which is a holistic approach and temporal process, it is important to work towards environmental, social, and economic sustainability, and acknowledge their interdependence. Sustainable Development cannot be achieved without social sustainability which is an integral part of sustainable forest management in terms of equity and inclusion. Specifically, in terms of Indigenous People, UNDRIP outlines how this social inclusion and equity can be achieved. The reason these concepts were used to assess Ontario s forest governance is because they are globally accepted standards and Canada has committed to them by signing onto their respective international agreements. Further, due to the Policy of Tabling Treaties in Parliament, when the federal government of Canada signs an international convention, agreement, or protocol; they must consult with the provinces (Global Affairs Canada, 2014). Therefore, in the case of Sustainable Development, sustainable forest management, and UNDRIP, although the federal government signed them; the provinces are responsible for implementation within their respective jurisdictions laid out in the Constitution. Therefore, in the case of forestry, the provinces are responsible for reflecting these commitments in their legislative process. 4.1 Sustainable Development 7

9 In 1992, Canada signed Agenda 21, the UN non-binding agreement to adopt Sustainable Development. Canada has since taken on legislative responsibility to promote Sustainable Development in many instances, such as the founding act the Department of Industry Act, which mandates Ministers to strengthen the national economy and promote sustainable development. The federal government also has a Federal Sustainable Development Act that requires all included departments or agencies to prepare a sustainable development strategy which complies and contributes to the Federal Sustainable Development Strategy. In terms of forests, the Canadian Council of Forest Ministers (CCFM), is the primary mechanism for cooperating in national and international forestry matters and provides direction for the provincial forest ministers in order to achieve Sustainable Development. CCFM consists of thirteen federal, provincial, and territorial ministers responsible for forests. Canada s continual commitment to Sustainable Development is why it was chosen to be one of the criteria for analysis in this paper. For the purpose of this paper, the definition of Sustainable Development is sustained, inclusive and sustainable growth. Growth can be inclusive and can eliminate poverty only if all segments of society, including the marginalized, share the benefits of development and participate in decision-making (UNDP, 2017). Also, growth must happen in a way that considers the environment and what is necessary for future generations. A part of including Sustainable Development into Canadian development of resources, such as forests, environmental, social, and economic sustainability must be considered. Environmental and economic sustainability have been well defined and in forestry have gathered much attention. Economic sustainability was why forest management began, in order to ensure there was a continued resource to profit European settlers. Then in the mid-1900s there was a push toward considering the environmental sustainability of forestry development. The evolution of sustainable forest management has left social sustainability discussions vague and actions trivial. Social sustainability encompasses topics such as social equity, liveability, health equity, community development, social capital, social support, human rights, labour rights, place making, social responsibility, social justice, cultural competence, community resilience, and human adaption (Dempsey et al., 2009). These concepts of social sustainability are meant to be inclusive and apply to all people in the world, including Indigenous people in Canada. In order for Canadian forests to develop sustainably, there must be equal consideration of the three pillars of sustainability. See Figure 1. In order for forest development to be truly sustainable the lack of attention given to social sustainability needs to be addressed. Thus, it is an important factor for this analysis. Canada has committed to Sustainable Development, including social sustainability. Figure 1. Three Pillars of Sustainability 8

10 4.2 Sustainable Forest Management The Montreal Process was formed in 1994 (see Appendix 2) in response to the Forest Principles document created at the United Nations Conference on Environment and Development, which provided recommendations for sustainable management of forests (The Montréal Process, 2015). Canada is a member of the Working Group and has adopted the Montreal Process and commitment to sustainable forest management. The Montreal Process has criteria and indicators to make the mission understandable and achievable (The Montréal Process, 2015). The criteria of particular importance for the purpose of this paper is the maintenance and enhancement of longterm multiple socio-economic benefits that meet the needs of societies (i.e. socially, economically, culturally, in terms of heritage, etc.) (The Montréal Process, 2015). The Government of Canada (2012), contends that forests are an integral part of Canada s landscape and economy. Also, forests enrich lives of Canadians, offer sanctuary and recreation, and are fundamental to the cultural and spiritual value of Indigenous people (Government of Canada, 2012). This is why sustainable forest management is promoted and practiced throughout Canada. According to CCFM, sustainable forest management is management that maintains and enhances the long term health of forest ecosystems for the benefit of all living things while providing environmental, economic, social and cultural considerations (CCFM, 2017). While provincial legislation, standards, and programs of forests differ across Canada, they all operate under the 9

11 sustainable forest management paradigm (CCFM, 2017). Sustainable forest management applies across various governing themes such as planning land use, forest management, public consolation, Indigenous participation, protected areas, etc. Canada s forests have long played an integral role in meeting cultural, spiritual, and material needs of Indigenous peoples, and encouraging more Indigenous involvement in the forest sector is beneficial to Canada s sustainable forest management. (CCFM, 2017). 4.3 UNDRIP The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a declaration that sets out the individual and collective rights of Indigenous peoples. UNDRIP emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, and cultures (UNDRIP, 2007). This document originated from ideas developed at the Indigenous and Tribal Peoples Convention in 1989, which ratified an international treaty for empowering Indigenous and tribal people globally (see Appendix 2). When the Declaration was first adopted in 2007 by the UN s General Assembly, Canada voted against it (Donovan, 2017). However, the Canadian government said they would support the spirit of UNDRIP. Canada s government contended that UNDRIP was fundamentally incompatible with Canada s constitutional framework (Donovan, 2017). Specifically, Article 19, 26, and 28 were seen as problematic and prevented Canada from fully supporting UNDRIP (NRCAN, 2016). Article 19 requires government to secure free, prior, and informed consent (FPIC) from Indigenous people regarding matters of public policy. Articles 26 and 28 would require the government to reopen and discuss land claims. In 2010, Canada officially endorsed UNDRIP, however it kept its position that the Declaration was aspirational (Donovan, 2017). This meant that the Canadian government would take steps to endorse the document in a way that was consistent with the Constitution and laws. In 2016, Canada officially adopted and promised to implement the declaration fully (Donovan, 2017). UNDRIP has important potential impacts when it comes to forest governance in Canada. Eighty percent of Indigenous people in Canada live in and around forests (CCFM, 2017). Putting UNDRIP to practice in Canada would give decision making power to those people, even if they don t have official land claims with the Government of Canada. It would allow Indigenous people more say in the planning and management processes in forestry. UNDRIP was chosen to be one of the criteria in this paper to analyze governance because Canada has fully, without qualifications committed to supporting this document. It is important to then hold Canadian governance mechanisms and frameworks to this standard. However, it should be recognized that implementing UNDRIP in Canada will be a cumbersome and long process that will include changing provincial and federal legislation, and involve an examination of the root of policies and changing systems. Articles 19, 25, 26, 29, 31 and 32 will be used as criteria in this paper. For the specifics of the articles used for the criteria of this analysis, see Appendix 1. 10

12 4.4 Analysis Criteria In order to do a governance analysis using the criteria mentioned above, the concepts were assembled and distilled into a series of criteria. The criteria are as follows: 1. Socially sustainable (in terms of inclusion, equity, and social justice). 2. Maintains and enhances socio-economic benefits that meet the needs of societies (i.e. socially, economically, culturally, heritage, etc.). 3. FPIC before adopting/implementing legislation that will affect the Indigenous People. 4. Allows Indigenous People to maintain or strengthen their distinctive spiritual relationship with their traditional land. 5. Allows Indigenous People to own, use, and control their lands, territories and resources. (As established by traditional ownership, traditional occupation or use, or those otherwise acquired). 6. Indigenous People have the right to protect, conserve, or develop (to the extent of their choosing) their land. 7. Enables Indigenous People to maintain, control, protect and develop their cultural heritage, traditional knowledge, and traditional cultural expressions. 8. Indigenous People are given opportunity to determine and develop priorities and strategies for development or use of their lands/territories/resources. 9. FPIC is granted prior to approval of any project affecting their lands/territories/resourceforest. 5. Forest Governance In order to choose which governance structures to assess, the legitimacy of each structure that pertain to governance in Ontario forestry was considered. Legitimacy was looked at from an input and output perspective according to aspects that contribute to perceived legitimacy. As discussed by Turner et al. (2016), these factors include: trust, confidence, and equity. As demonstrated in Figure 2, the input and output of these three contributing factors of legitimacy were broken down to determine which governance structures would be included for the purpose of analysis and to meet the objectives laid out in this paper. Further questions considered: Does it have to do with Indigenous inclusion in forestry? Does it contribute to the goal of reconciliation? Should it? Figure 2: Legitimacy Evaluation Legitimacy 11

13 TRUST/ ACCOUNTABILITY CONFIDENCE INPUT in the process of creating governance systems or decision making in the ability of the institution to perform in the way they say they will and to the degree that is required OUTPUT in information from governing bodies and that enough information was considered and collected in institutional performancei.e. established mechanisms to hold actors accountable (incentives, sanctions, etc.) EQUITY in decision making process of management outcomes or decisions The scope of the governing structures evaluated is on a national and provincial level. Certain government policy established by the Government of Canada effects the whole country, including Ontario, and therefore it was relevant to look at federal policy. On the provincial level, relevant legislation was analysed. Third party certifications are international in scale but apply to Ontario and were also included. 5.1 Federal Legislation The federal legislation that will be analyzed in this paper is The Constitution Act of Indigenous rights in Canada are recognized in Section 35 of The Constitution Act (1982), but it does not define them. The Act solidifies treaty rights and titles. Aboriginal rights comes from the their continued occupation of lands since before European settlement. Indigenous rights are not set in stone, they are an evolving interpretation through much debate and discussion and as defined by the many Supreme Court cases (Walkem & Bruce, 2003). They range from cultural, political, economic, and land rights, as well as right to practice own culture. This is the section that informs the level of inclusion and rights in provincial forestry legislation (Walkem & Burce, 2003) The Constitution Act 1982, Section 35 Section 35 of The Constitution Act (1982) was the result of much activism through demonstrations, fundraisers, and campaigns at a national and international level (Walkem & Bruce, 2003). The United Nations and British Parliament urged the Canadian government to include this section to recognize Indigenous rights. The section was not included in the original proposal for partition in 1980 (Walkem & Bruce, 2003). Indigenous Canadians were not consulted about the new Constitution. This raised much concern with the transfer of constitutional powers from Britain to Canada, and questions of whether the new government would uphold rights and what jurisdiction that would fall under (Walkem & Bruce, 2003). 12

14 Although Section 35 is pivotal for the Canadian public s acceptance of pre-existing Indigenous rights, there is much contention around it. Debate about Section 35 stems from the idea that it reinforces colonialism in ways by recognizing Canadian law as supreme law, instead of defining a true nation-to-nation relationship. Many scholars have argued that the Constitution is a colonial form of rule based in British concepts and ideologies; these include individual rights and private property ownership (Walkem & Bruce, 2003). Further, it is also acknowledged that the colonial power is the overarching supreme law in which everything has to be adjusted to fit in the terms of the dominant system (Walkem & Bruce, 2003). Despite Section 35, Indigenous people in Canada have had to advocate for their rights in costly and lengthy court battles to prove their rights exist, and that governments should respect these rights (Wilson- Raybould, 2017). As Justice Minister Wilson- Raybould pointed out in her 2017 speech on reconciliation, the result is spending vast amounts of time in conflict rather than building a nation-to-nation relationship with recognition and respect that a rights-based approach demands and is reflected more generally in the principles of civil society that the idea of the Charter evokes. Therefore, section 35 is important in that it affirms rights as transferred from the British to Canadian government but it does not explicitly state rights and has ended in needing lengthy judicial disputes in order to clarify and define these rights. The necessity to analyze the effectiveness of this legislation in terms of social sustainability and specifically reconciliation and social justice is essential to reaching those goals. 5.2 Provincial Legislation in Ontario The provincial legislation that will be discussed in the following section is that that governing Crown Land in Ontario, which is managed by the Ministry of Natural Resources and Forestry (MNRF). Approximately 77% of ON s land mass is Crown land, and 10% of Crown land is held as provincial parks and conservation reserves (MNRF, 2014). 44% of managed forests are on Crown lands. In ON, forestry activities include providing access (roads and bridges), harvesting trees (cutting and removing trees), forest regeneration, maintenance (caring for forests), and planning (preparing plans to carry out forest management activities) (MNRF, 2014). Among protected areas in ON, old growth and habitat for rare or endangered plants and animals are sited as areas of interest. Protected areas include provincial parks (6.9% of province), conservation reserves (1.4% of province), wilderness areas (<0.1% of province), and dedicated protected areas in the far North (1.1% of province) (MNRF, 2014). The Ministry of Natural Resources and Forestry (MNRF) is responsible for the long-term health of Crown forests. This responsibility is executed through forest management planning. Forest managers provide for healthy forests now and in the future and provide a range of benefits. For instance, these include timber and commercial products, wildlife habitats, and recreational opportunities. For the purposes of this analysis, the provincial legislation that will be discussed are the Environmental Assessment Act, Environmental Bill of Rights, Crown Forest Sustainability Act, Provincial Parks and Conservation Reserves, and Endangered Species Act. 13

15 5.2.1 Environmental Assessment Act (1990) Under the Environmental Assessment Act in Ontario, there is a class environmental assessment (EA) for forestry. Class EA is a document that sets out a standardized planning process for classes or groups of activities, and it applies to projects that are carried out routinely and have predictable environmental effects that can be readily managed (Ontario Government, 2017). Timber management activities were approved for class EAs (declaration order) first in 1994 and this class has since been amended with evolving conditions on the class EAs. The EA amendments were done with consultation of public, stakeholders, Indigenous people, and a Government Review Team. The Declaration Order (MNRF-75) that creates the forestry class EA requires the MNRF to adhere to a list of conditions in undertaking forest management. The Order ensures that the leases of provincial land abide by these conditions (Ontario Government, 2017). The stipulations cover recurring management activities of building access roads, harvesting trees, renewing the forest, and conducting forest maintenance; and provide direction for the preparation, review, and approval of forest management plans (Ontario Government, 2017). Moreover, the conditions in the Declaration Order define the direction for forest management planning and seeks to complement the forest management planning principles of the Crown Forest Sustainability Act. EA process provides approvals to carry out forest management on Crown lands in the area of undertaking. Every five years, the MNRF provides an EA Report on Forest Management to the Ministry of Environment and the public on how it met EA requirements (Ontario Government, 2017) Environmental Bill of Rights (1993) The Environmental Bill of Rights (EBR) was seen as a ground-breaking law when it was enacted in The law asserts that Ontario citizens have the right to know and to have a say in decisionmaking that affects the environment (ECO, 2017). The law creates a set of tools to allow public participation, transparency, and accountability in the government s decision-making process. These tools include applications for review and investigation, the Environmental Registry, and provisions for the creation of the position of the Environmental Commissioner of Ontario (ECO, 2017). The EBR posts all forestry plans on the Environmental Registry for public input. Further, the amendments and conditions for class EAs for forest management in Ontario is also posted on the Environmental Registry. The EBR is meant to balance economic-driven development and to protect Ontario s clean air, water, forests, and agriculture lands (Sadik, 2016). The principle behind EBR is that more transparency and public input in environmental decision-making, will lead to better decisions made about the environment. EBR is a significant contribution toward working to sustainable development (Sadik, 2016). 14

16 However, it fails to address issues of environmental and social justice. For instance, communities belonging to historically disadvantaged groups, such as Indigenous communities, who are disproportionately exposed and impacted by environmental hazards or degrading projects (Sadik, 2016). Further, the EBR does not specifically allow for special consideration or consultation with Indigenous people Crown Forest Sustainability Act (1994) The Crown Forest Sustainability Act (CFSA) was enacted in 1994 with the purpose of providing sustainable Crown forests in the province of Ontario and to manage Crown forests to meet social, economic, and environmental needs of present and future generations (Ontario Government, 1994). This is done through the principles of promoting large, healthy, diverse and productive Crown forests and their associated ecological processes and biological diversity. As well, the longterm health and vigour of Crown forests should be provided for by using forest practices that, within the limits of silvicultural requirements, emulate natural disturbances and landscape patterns while minimizing adverse effects on plant life, animal life, water, soil, and social and economic values; where these include recreational values and heritage values (Ontario Government, 1994). The CFSA aims to achieve sustainable forest management through legislation, regulations, policies, standards and guides, forest management planning system, compliance program and independent forest audits to monitor progress, public reporting on the status of all aspects of forest management (Ontario Government, 1994). The CFSA grants licenses to allow industry to harvest trees. The forest management plans are prepared by registered professional foresters with the input of local citizens, Indigenous communities, stakeholders, and the public (MNRF, 2014). Moreover, forest management plans are meant to ensure sustainability while finding a balance of social, economic, and environmental values (MNRF, 2014). The CFSA does not detract from or add to any Indigenous or treaty rights that are recognized and affirmed by section 35 of the Constitution Act, 1982 (Ontario Government, 1994). The Minister can enter into agreements with FN for the joint exercise of any authority of the Minister under this Part (Ontario Government, 1994) Provincial Parks and Conservation Reserves Act (2006) The Provincial Parks and Conservation Reserves Act was adopted in 2006 to permanently protect a system of provincial parks and conservation reserves. These include ecosystems that are representative of all Ontario s natural regions, protects provincially significant elements of natural and cultural heritage, maintains biodiversity and provides opportunity for compatible, and ecologically sustainable recreation (Ontario Government, 2006). The Act was created with extensive consultation with public, stakeholder groups, Indigenous communities, and organizations, and Ontario Park Board of Directors (Ontario Government, 2006). The Act allows First Nations access to wilderness class of parks to meet their distinct cultural needs and rights. Also, if an area is involved with a claim settlement in respect to Indigenous rights, the Act allows the disposition of areas of the provincial park or conservation reserve (Ontario 15

17 Government, 2006). Participation in the planning process for the provincial parks and conservation reserves happens through the Environmental Registry (MNRF, 2014) Endangered Species Act (2007) In Ontario, species at risk are protected by the Endangered Species Ac that was enacted in The Act provides science-based assessment in which species are assessed by an independent body based on the best available science and Indigenous traditional knowledge. If a species is classified as endangered or threatened, it receives legal protection and the habitat of such species is also protected. The Act provides a timeline for producing strategies and plans to recover at-risk species, as well as tools to reduce human impact on species and habits. Further, the Act sets out ways to encourage protection and recovery activities. The Endangered Species Act establishes a Committee on the Status of Species at Risk in Ontario. The members of the Committee must either have Indigenous traditional knowledge or a scientific discipline expertise (e.g. in conservation biology, population dynamics, taxonomy, systematics, or genetics). Indigenous people are allowed by the Ac to enter agreements and to be authorized to engage in activities specified (through permits) that would be otherwise prohibited. This is an important piece of legislation to analyze because of its collaboration between Western science and traditional knowledge at the planning, implementation, and monitoring stages of it. However, although the Endangered Species Act of Ontario sets out to protect species at risk and do so in an inclusive nature, it exempts many resource extraction industries. For instance, the MNRF exempts the forestry industry from the Act (Casey, 2016). 5.3 Third-Party Certifications Third party certifications play an important role in governance and enforcement in Canada because on top of complying with the provincial and federal laws, companies that are certified, must comply with the standards of the certification scheme (NRCAN, 2016). As seen in Figure 3, third-party certifications are widely used in Ontario. Moreover, their use has been increasing since the early 2000s, as seen in Figure 4. There are three third-party certifications used in Ontario; the Forest Stewardship Council (FSC), the Sustainable Forest Management Initiative (SFI), and the Canadian Standards Association (CSA). The CSA was established in 1919 and has developed standards for over 3000 industries. In 1995, the Canadian Council of Forest Ministers (CCFM) created a national framework of criteria and indicators to monitor Canada s strides to achieving SFM (CSA, 2016). The first CSA SFM standard was published in The Standard was reviewed in 2002 and again in In 2013, the 2009 version of the Standard was reaffirmed for another 3 years (CSA, 2016). Due to the fact that the CSA Standard is developed by the CCFM, there are not adequate resources to conduct research the other certification bodies (FSC and SFI) have. Further, FSC and SFI update their standards more frequently in order to reflect the latest in sustainable forest management. 16

18 Moreover, certified forest area certified by CSA has been on the decline since 2009 (see Figure 3 and Figure 4). Therefore, for the purposes of this analysis, FSC and SFI will be the focus and CSA will be excluded. Figure 3: Certification Status of Management Units by Certification Standard (Government of ON, 2017) Figure 4: Managed Crown Forest Area Certified 17

19 (Government of ON, 2017) Forest Stewardship Council The Forest Stewardship Council (FSC) is an international non-governmental, non-profit, multistakeholder organization that was first established in 1993 to promote responsible forest management, environmentally and socially. A group of timber users, traders, and representatives of environmental and human rights organizations met in 1990 over the concern for accelerating deforestation, environmental degradation, and social exclusion (FSC, 2016). The group highlighted the need for a system that could credibly identify well-managed forests as the sources of responsibly produced wood products. The concept of FSC and the name were coined at this meeting. Two years later, the Earth Summit provided a forum for many non-government organizations to come together and generate support for the idea of a non-governmental, independent, and international forest certification scheme (FSC, 2016). The FSC seeks to help care for the forests and the people and wildlife that depend on them. The FSC has roots in the NGO community. FSC Canada is revising its standards as of This paper will look at the drafted revision, as it represents what FSC certification will be in Canada. It is more useful to review this than look at standards that will be replaced soon. FSC Canada Forest Management Standards are going to be national and not specific to each region of Canadian forests, in an effort to unify the standards across the country. The final version of FSC Canada National Forest Management Standards is planned to be approved in 2018 (FSC, 2016). The FSC Canada National Forest Management Standards is divided into principle, criteria, and indicators. Principle 1deals with the compliance of laws and in this section the customary rights of Indigenous people are recognized as law that forest management must comply with. 18

20 FSC recognizes that Canadian federal and provincial laws are not supreme and that distinct Indigenous customs and rights are to be adhered to (FSC, 2016). In Principle 3, Indigenous peoples rights are depicted on a legal and customary basis. Six criteria in Principle 3 are I. acknowledgement of topics of traditional knowledge use and protection; II. protection of sites of special (cultural, ecological, religious, or spiritual) significance; III. recognition of customs and culture; IV. binding agreements that are or will be made with FPIC; V. uphold legal and customary rights; VI. and all interactions must be executed through FPIC, as the newest draft of FSC instills the articles of UNDRIP within its principles, criteria, and indictors (FSC, 2016) Sustainable Forest Initiative The Sustainable Forest Initiative (SFI) is a North American forest certification standard non-profit organization. SFI began as an industry led initiative. The SFI Standards and Rules are revised and updated every five years in order to incorporate the latest scientific information and to respond to emerging issues (SFI, 2015). The current SFI Standards and Rules in use and referred to in this paper are SFI principles mention the importance of including Indigenous peoples in Principle 11 and Objective 8. SFI Principle 11 seeks to broaden the practice of sustainable forestry through community involvement, socially responsible practices, and recognition and respect of Indigenous peoples rights and traditional forest-related knowledge (SFI, 2015). SFI s Objective 8 seeks to address the recognition and respect of Indigenous peoples rights and complies with federal and provincial laws and regulations. There are performance measures within this Objective in order to guide its execution. 6. Analysis 6.1 Federal Legislation Constitution Act, 1982 s.35 Criterion one, social sustainability, Section 35 strictly includes different Indigenous groups such as First Nations, Metis, and Inuit. The rights apply to both men and women. However, this legislation is not actively moving toward social justice. Section 35 reaffirms rights, which have mostly been fought for in courts to clarify what is meant in this document. Also, in terms of reconciliation, Section 35 acknowledges rights, but not the laws of different Indigenous communities and by outlining Indigenous rights in this document, there can never be a true nation-to-nation relationship because outlining these rights in Canadian law is acknowledging itself to be supreme law and is in that sense a form of colonialism brought into modern time. Criterion two, maintains and enhances socio-economic benefits that meet the needs of societies (i.e. socially, economically, culturally, heritage, etc.) is partially met in Section 35. While this Section does not enhance benefits to Indigenous people, it does maintain them. Any rights 19

21 afforded in Section 35 as well as those clarified by Supreme Court Decisions, are supported by law nation-wide. Criterion three, FPIC before adopting/implementing legislation that will affect the Indigenous people, is not met in two ways. Section 35 was made without consultation or consent, as well, this section that outlines Indigenous people s rights for other legislation that affects them does not require consent for those that will affect Indigenous peoples. Criterion four, allows Indigenous people to maintain or strengthen their distinctive spiritual relationship with their traditional land, is complicated. While it is not specifically mentioned, court cases have demonstrated that in many instances this is a part of Section 35. However, with reasonable justification the government can override this right. Criterion five, allows Indigenous people to own, use, and control their lands, territories and resources. (As established by traditional ownership, traditional occupation or use, or those otherwise acquired), is not adequately met. In Section 35, there is specific mention to land claim agreements, meaning that Indigenous people have the right to use and control their land, territories, and resources only if there is a land claim. The issue with this is that it can be a lengthy and resource intensive process to verify land claim. Further the standard for proving a land claim is set out by the federal government, which inherently reinforces this as supreme law and therefore is not aligned with achieving a nation-to-nation relationship. Criterion six, Indigenous people have the right to protect, conserve, or develop (to the extent of their choosing) their land, is not met. By not affording veto power on Indigenous people s lands, territories, or resources; there is no way to have full control over what will take place on their land and to the extent of their choosing. Criterion seven, enables Indigenous people to maintain, control, protect and develop their cultural heritage, traditional knowledge, and traditional cultural expressions, is not mentioned. This is an issue because if all rights flow from this overarching legislation than not including it leads to inadequate recognition of these particular rights. However, the issue of using traditional knowledge and protecting it has been defined in court cases. This is especially consequential in forestry, where traditional knowledge can be used in management. Criterion eight, Indigenous people are given opportunity to determine and develop priorities and strategies for development or use of their lands/territories/resources, is not met. There is no mention of this in Section 35. Criterion nine, FPIC is granted prior to approval of any project affecting their lands/territories/resource- forest, is also not included and leads to similar issues brought up with Criterion three. This is where veto power is not afforded and there is no control given over whether Indigenous people want projects on their lands, territories, and/or resource. Working to instil the principles of UNDRIP into Section 35 of the Constitution Act, 1982 has the ability to affect legislation, norms, and practices which will reverse colonial and paternalistic approaches and promote the inclusion of Indigenous people. By incorporating having Indigenous rights in the Canadian Constitution, it is a way of acknowledging it as supreme law, and thus not a 20