Crownland Use reformOpportunity Abounds
Opportunity
abounds we need only to pursue it. The present state of crownland use in
British Columbia has as its biggest hallmark, waste. Crownland management has regressed to “the
war of the woods era”. Government
action has become arbitrary. Please, read what is offered here, it is a way
forward.
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The writer, having been born
in British Columbia in 1958, and having spent his life working on or in
relation to the land in every major industry in the interior of British
Columbia, is eager to see Crownland be managed for the greater good. My purpose
here is to draw on my experience in land use and land management, comment on
various factors affecting the effective use of Crownland and offer suggestions on the same.
Land use in British
Columbia can be characterized as “underperforming”. The relative state of land
use to, approximately, the mid-seventies to late nineties, has degraded. Throughout history there has been undulation in land use/management performance,
at no point, however, has the management of crown land been optimal. The
optimization of economic, social, and environmental elements of land use has
eluded us.
Any given area of land is
best managed holistically. With a management horizon that is commensurate with
the resource's specific requirements, primary site recreation land for 20 to 50
years, agricultural crops for 1 to 5 years, soil for 100 years, forest
interests for 40 to 100 years, geophysical alterations (mining) 50 to 100
years. The means by which the government now manages tenure precludes accessing
a management regime that optimizes outcomes over time; we “permit” people to go
take things, rather than, providing tenures that encourage the long and
productive use of the land. For several reasons, the government has been
reluctant to provide tenure regimes that see to the land resource in its
entirety or to optimize the use of any single resource.
The result of the present
land use realities in BC is, that lands are undermanaged or unmanaged, vast
tracts of lands lay latent, the outcomes of forest and other resource
management is suboptimal to destructive, dominant actors on the land are
negatively affecting other users and the greater good is failing to be served.
We need to find a better means of accessing the latent wealth that resides in
our province’s crownland and harmonize the access to that wealth with the
environment and the interests of British Columbians. We need a global plan. A
plan that extends beyond and supersedes the damaging effects of the four-year
election cycle. A plan that sets the long-term objectives for land use. A plan
that puts a regulatory framework in place that is simple, streamlined,
predictable, decisive and attends to the multitude of interests related to the
use of crownland. A plan that puts the highest and best use of Crownland over
the appropriate management horizon.
The crownland management
regime now tends to be heavily “captured” the result being land management with
the interests of major industries satisfied at the cost of overall
optimization. Most tenure reviews I’ve examined tend to go to the established
land users for input, while it seems obvious this would be the case, it further
exacerbates negative elements of land use in the province. Tenure and land
management regime design needs to begin with a futuring exercise that
determines the potentiality of all land uses and then, off the foundation of
clear knowledge of the benefit of each potential use, a plan is developed, and
tenure is issued that suits each respective use. What we have now has evolved
into being leaving in place historical baggage, it is time to take what’s
evolved into being and bring knowledge and intention to creating an optimal
regime.
The LRUP / LRMP process
facilitated participation by anyone with an interest in any given LRUP area,
they could walk into the process and be heard. All users and interests were at
the table or could be. In the instance of the LRUP I attended in relation to
the operation of a wilderness fishing lodge, the local First Nation was a
regular participant – because of that process, other interfaces with the First
Nation took place, I purchased hay from them for example. If there was an issue
related to another user in your operating area, the LRUP process provided the
contact required, most often concerns were addressed between the two parties
absent any need for arbitration. Further, as people sat at the table they
gained insight into other’s interests, a process that tended to moderate
variations in perspectives.
The writer submits that
since the end of the various planning tables in the province, the LRUP, and the
LRMP structure, what land management that has taken place has become arbitrary.
The writer has been made aware of several instances where roads are closed
absent proper consultation with other user groups. The writer was made aware of
logging taking place in the Likely area that negatively affected a tourism
operator and the operator had a difficult time seeking recourse; his experience
sounded eerily reminiscent of the 1970s when Shelly Lake Lodge’s operating area
was logged absent any consideration to the tourism operation effectively ending
their business.
While the LRUP and LRMP
processes were cumbersome largely due to the reality that ministry staff were
mandated to bring the table to full consensus – as a result, the processes tend
to become drawn out. With a few modifications, the planning tables could work
effectively – staff would need to be mandated to seek agreement or arbitrate
disagreement. Absent a free and unfettered process that brings parties together
in relation to a given piece of crownland, animosity grows, discord grows, and
we regress into the 1980 War of the Woods mindset.
The situation that has
emerged in relation to wildfires where provincial officials find themselves in
conflict with land users needs attention. Proper process would help alleviate
many of these conflicts through prior association – any given land use area
would have the provincial wildfire personnel at the table with the result being
wildfire contingencies would be put in place through consultation rather than
edict.
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Whereas First Nations progress is reliant on the balance of British Columbians' goodwill, anything
the government does to attend to its obligations to First Nations should be
absolutely necessary and should avoid fomenting discord.
Whereas our government’s
history with the First Nation’s peoples is marred by tragedy causing a reduced
living circumstance for First Nations people relative to the rest of the
population, every effort should be made to effect benefit toward the First Nation
peoples to effect parity of living standards with the general population.
Whereas, the oversight of
land management needs to be done objectively, no single interest group can be
permitted access to arbitration of disputes, and the final authority in any
land use decision must be an objective arbiter appointed by the government or a
political actuary.
Whereas, accessing
applications to use Crownland for industrial or other uses must be consistent,
processes related to reviewing applications for land use need to be the same
across the province, rather than ad hoc processes as indicated by government literature.
The writer has witnessed
a negative reaction to the adoption of the United Nations Declaration of the
Rights of Indigenous People by a large segment of the population general and
then again toward the proposed introduction of the Declaration of the Rights of
Indigenous Peoples Act. Has this initiative furthered the interests of First
Nations peoples? Over the course of the past 50 years, the writer has observed a
growing recognition of the wrongdoings toward the First Nations peoples and a
greater degree of empathy toward their cause. This is a fragile development.
One needs to take care to ensure that the public’s desire to better the lot of
the First Nations peoples is maintained and enhanced – these recent initiatives
in of themselves and the way they were forwarded may have been detrimental to
the cause of improving the First Nation peoples relative standing in our
province.
The regime that has
emerged out of Canadian legislation and related jurisprudence has moved us to a
humane place. Our legal framework has generated a circumstance that is similar
to the UNDRIP and yet in no way forfeited our traditional paramountcy
environment. In a circumstance wrought by emotion, it may have been better to
let sleeping dogs lie and gently moved forward in our own way.
One begins a discussion
related to the First Nation people and land use in British Columbia recognizing
that their history here has been extremely difficult, that their present
circumstance has their living standards below the norm and that there needs to
be a concerted effort to bring them to par. As the First Nation population
affected by provincial concerns is less than 4% of the provincial population,
there is plenty of room to extend more opportunities directly to the First
Nation peoples. The First Nation peoples also require a generally vibrant
economy so the other 96% of us can support their transition to par. Our futures
are inextricably linked, they are effectively one future.
In the document published
in 2019, Modernized Land Use Planning: A Guide to Effective Stakeholder
Engagement Review, the following is offered as direction to ministry staff.
3.3 Clarify Roles and Responsibilities
While provincial and Indigenous governments may have different
mandates, responsibilities, and interests, they can play complementary roles in
planning-related stakeholder engagement. Come to agreement at an early stage as
to how the responsibilities related to planning, conducting, tracking and
reporting out on the engagement process will be shared.
One important item that should be resolved at the outset is
whether engagement will be led by both the Province and partner First Nation
with shared accountabilities, or if engagement will be provincially led with
co-participation as determined by the partner First Nation. The provincial-led
model may be better suited where processes include multiple First Nations, but
this should be discussed and agreed upon by all planning partners.
One recognizes that every
First Nation is entitled to self-government and that there will be variations
between First Nation governance structures. There should be resistance to
provincial staff and First Nations developing site-specific processes. That is
to say, the process can be consistent even though the participants differ. The
LRUP planning structure provided a forum where if there was an application to
use a piece of land, everyone at the table had an opportunity to communicate
their interests as they related to the proposal. In a forum such as this, where
a First Nation is at the table, they are free to negotiate for their interests.
Inherent in an open forum
facilitated by the province is the attendance to requirements related to a
distinctions-based approach. Every first nation will bring their idiosyncrasies
to the planning table. The participants’ interests can change within a consistent
process.
From the writer's
perspective, two concerns arise out of a First Nation taking an
“administrative” position on the use of crownland. There are international
conventions to thwart corruption that would preclude a company from being able
to “reward” or financially involve a First Nation who holds executive
decision-making capacity on the part of the government. If the final decision
on land use lies with the government, then First Nations are unimpaired in
their interface with an applicant, by way of example, perhaps an international
mining company. Decisions need to fall to a final authority, at some point in
the process, there must be a government entity that says yes or no. At no point
in any process should there be a circumstance where the final authority is
unclear or is unobjective?
Throughout Canadian
jurisprudence related to First Nations peoples, the courts have consistently
indicated that the federal government and or provincial governments hold final
authority in accord with their respective jurisdictions.
The
constitutional recognition afforded by the provision [section 35], therefore,
gives a measure of control over government conduct and a strong check on
legislative power. While it does not promise immunity from government
regulation in a society that, in the twentieth century is increasingly more
complex, interdependent and sophisticated and where exhaustible resources need
protection and management, it does hold the Crown to a substantive promise. The
government is required to bear the burden of justifying an(y) legislation which
has some negative effect on any aboriginal right protected under section 35(1).
10
Sparrow, supra, at 410
To
justify overriding the Aboriginal title-holding group’s wishes on the basis of
the broader public good, the government must show: (1) that it discharged its
procedural duty to consult and accommodate; (2) that its actions were backed by
a compelling and substantial objective; and (3) that the governmental action is
consistent with the Crown’s fiduciary obligation to the group: Sparrow.
Tsilhqot’in Nation v. British Columbia,
2014 SCC 44 Para 77
These are two examples
where the courts indicate that final authority lies with the Federal and Provincial
governments; there are many more. Retaining final authority in land use
management is critical to ensure that interband relations can be managed and
decision-making can be timely. Further, it is the Canadian courts where
disputes will be resolved.
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Participation in anything
as profound as crownland management demands that one can enter the process due to
an interest in a given Land Use Area (LUA). If it is perceived that any entity
with an interest effects excessively broad participation, then elected representatives
to a board are required – direct participation or elected participation – to do
otherwise is undemocratic.
The LRUP / LRMP processes
permitted a healthy level of participation by relevant actors on a given LUA.
As a fishing lodge operator, I was able to attend to my interests at a LRUP, as
a director of the Fishing Resorts Association and High-Country Tourism I was
able to attend to the interests of my industry. In these processes, a forum was
provided to interface with the government and other stakeholders in a given LUA.
The challenge with the
LRMP process was, that staff were instructed to find consensus, and consensus was
defined in the broadest of terms. This reality did facilitate a thorough
review of interests, however, the process dragged on. It was effectively
process without final authority – it succeeded in some cases (60% of the time),
however, even in the case where it succeeded it was cumbersome.
LRUPs and LRMPs should be
reinstated with modifications to the process. The process facilitators should
inventory the interests, solicit the standing of the “group” and make a
decision – an arbitrated decision if need be. In instances where arbitration is
necessary effectively, the matter would move to a tribunal. Process timelines
must be clearly defined. People entering the process must be able to ascertain
the cost and time it will take. Regardless of how the specific project's
furtherance is arrived at, there must be certainty in the decision.
Province-wide consistency
is important. The writer’s personal experience indicates that applications for
using Crownland vary, or perhaps enthusiasm for Crownland use varies. Having
applied in the Prince George region receiving a warm welcome, I was surprised
that in the Kamloops region, it was difficult to even talk to someone.
The
advisory group for any given area (LRUP – where project specific interests are
likely to be managed) should never be "selected" by government
employees, participation should be determined by whether a group, or individual
has an interest in the area of concern. An advisory group is in no way
equivalent to a LRUP table, and "advisory" is a lot different than
having been given a "vote" or "say" in the outcome of a
given table. For the process to be
legitimate, all people with an interest in a specific LUA need a means to
participate.
“There are different
ways planning partners can establish stakeholder advisory groups. Planning
partners should explore various options and determine the best approach for
each project early in the engagement planning process. For example, planning
partners may invite stakeholders to put forward someone to represent their
interests in the advisory group. If a stakeholder interest is selecting its own
representative, encourage them to choose someone who is a good listener and
works well with others. Alternatively, planning partners may develop a process
where individuals are evaluated by the project team based on a set of criteria
and review of references from those who are familiar with the individual for
their experience working with them (see Section 5). The method selected by the
planning partners must be clear, transparent, and consistent.”
How can
land use application process be consistent if it can vary by project, by region
and by indigenous participation or by multiple indigenous governance
imperatives? The LRUP / LRMP structure
permits full participation and accommodates variations in interests under a single structure.
There
is one certainty if you generate a circumstance where every acre of crownland
is meeting its potential economically while attending to environmental/social
imperatives, then the societal benefit will be greater than it is now, so that
is where the focus should be in land use policy. In essence, then, take care of the long-term
production interests of the crownland asset and you take care of the people
relying on it.
The
prospect of people using Crownland to generate opportunities should be met with
enthusiasm, it should be facilitated. Presently, the process of accessing
Crownland is difficult to negotiate, even when civil servants are eager to be
helpful. This reality leaves massive amounts of opportunity latent.
It
is a concern that 95% of our province is crown land; land managed in a manner
that is isolated from long-term concerns that one would see in a fee-simple
ownership regime. By contrasting the way, a farmer manages their land and
its effects and the manner that provincial crownland tenure in conjunction with
extractive management perspective and its effects, one realizes the need to
tie today’s land management with tomorrow’s outcomes in a manner similar to fee
simple tenure does.
In
British Columbia, Canada over actually, we are witnessing the de-ruralization
of our society, people are moving away from the land, away from natural
systems, away from the Kadence of life that brings into visual relief the true
realities of stewardship. This trend is placing rural British Columbia into a
state of decline. Further, the voting population which is primarily urban and
now out of touch with rural realities, is suppressing effective use of
crownland. Effective allocation and use of crownland by the government is an
opportunity to revitalize rural British Columbia.
The
various tenure formats outside the forest industry seem functional. The
challenges arise in the application process and gaining approval in many cases.
The government has an opportunity to promote various uses by soliciting
participation, by in effect identifying viable locations and preapproving them.
There
is a reluctance on the part of the government to develop cottage developments on
wilderness and semi-wilderness lakes for example. In Kamloops, if you scribe a
50-mile radius around the city that radius will encompass about 500 hundred
lakes. If 20 - 50 of these lakes were dedicated to Cottage or full-time home
use, there would be substantive and extended economic benefits to the region. If
managed correctly, with little or no negative impact on the environment.
Perhaps most importantly, it would place a large number of “stewards” on the
land with a vested interest in their surroundings. As a lodge operator, I took
an interest in my operating area because my livelihood relied on it, we
actively managed the fishery in a manner that the government could not and
would not. The area and the fishery are better for it.
Issuing
area-based tenure, by way of example, a woodlot, still permits other uses to
occur. A hunting guide territory is an area-based tenure that excludes other
commercial hunting operations and yet permits logging, mining and First Nation traditional uses. In the cases of the hunting territory and the woodlot, the
users have a vested interest in the long-term health of their resource – they
want to manage it to provide a constant income over their operating horizon and
have a viable asset to sell when they choose to sell.
Area-based tenure are favourable when contrasted with extractive permits, due to the
reality that extractive permitting offers no incentive to manage for the
long-term. The forest tenure regime in British Columbia is, in the main,
extractive and has effected a circumstance where someone cuts down trees, takes
the fibre they want, burns the rest and then a year or two later someone comes
and plants trees and then leaves. This means our forests are effectively
unmanaged, the harvesting is done absent the proper degree of care being provided
to fulsome and the most effective use of the resource – the waste is
appalling.
If
you are a woodlot owner, fire means your livelihood is gone. Under the volume-based or extractive permitting model, a fire means some public forest is gone.
In the first instance, the degree of attention to preventing fire is far
greater than in the second instance. This exemplifies the superiority of the
area-based tenure regime, attention to all forest management areas gains more
intensive attention due to there being a benefit to the tenure owner; there is a
tight accountability loop. I have read government documentation that quantifies
the benefits of certain forest management practices, and yet, the government
fails to do them. We have watched billions of cubic meters of wood destroyed by
fire, much of which could have been saved with proper management.
The
writer once attended a conference on land use, the Dean of Forestry from UBC,
formerly a citizen of the United Kingdom, offered the statement “British Columbia
could produce the same volume of timber on 25% of the land base as we were
using at the time”. One may quibble over the degree this is true, there is no
debate that it is true. The Chinese government extended long-term tenure,
effectively fee simple property rights, to its farms and tripled agricultural
production in three years. Perhaps we should take a page from this policy
initiative.
Management
for a given land use should focus on the best outcome for a given land area.
This seems an obvious statement, however, it has been my observation that
interests other than the well-being of the land and maximal economic benefit for
any given industrial footprint are often overridden by other interests. By way
of example, in managing a forest, one needs to ensure that every acre of land
dedicated to the task is managed to optimize production in a manner that is
maximally beneficial to the province. Again, by example, every tree harvested
should be harvested at the optimal time in relation to its biology and its
highest and best use in relation to the market. Continuity of employment and
security of milling assets are a distraction from optimal asset utilization.
Forest Tenure Reform
Sawmills
and timber processing facilities will exist in relation to the timber supply
regardless of whether sawmills and timber processing facilities hold tenure
over a forest or not. It is the coupling of the two operational modalities in
conjunction with the siloing of growing, harvesting and marketing timber that
is at the crux of mismanagement in the industry as a whole. The process of
growing and harvesting timber has no mandatory relation to processing timber
into a finished product. It is the job of the government in forging policy to
attack the challenge of forest management with the maximum outcome of the
committed land base and resource in mind. If the government does this, the
security of production assets will be inherent. Asserting that tying timber
tenure to production facilities is necessary so secondary producers can have
their assets secured is analogous to insisting that Cargill slaughter
facilities hold primary production for cattle rearing on a 1/3 of Alberta. What
secures assets is a supply of inputs and a market for outputs - timber tenure
is in no way an imperative to have fibre supply - the willingness to pay a fair
market price at any point in time is. What is key in policy reform is to remove
ourselves from the limitations associated with industry actors' perceived and
often short-term interests - and focus on maximizing the production of every
acre of forest land slated for forest activity.
The joy
in fragmenting the timber supply management is a 1000 flowers bloom; it is
errant to try to anticipate management outcomes to a specific degree, one needs
to realize that more actors mean more innovation. At present there is a
monolith called the BC Forest Service that manages the timber supply, by
fracturing the management of the forest new best practices will emerge more
often and in greater volume - it is the nature of large entities to have a low
degree of absorptive capacity.
One is
compelled to voice strong objection to the policy that would have tenure
allocation at the behest of government only and directed toward established
participants - we have stagnation now - what we need is to facilitate
disruption and dynamism. Disruption, innovation, fast timber growth - dynamism
will come from smaller area-based tenure - same tenure area, more wood faster,
needs to be the theme of tenure reform. There is no operational correlation
between forest farming and secondary production - there is no practical
rationale for continuing to attach the two in the policy. Fibre garnered through an
open log market and fibre garnered in the present modality is still fibre - the
difference is an open log market fed by a large number of area-based tenure
holders, will see the timbered land base more intensively managed to grow
timber and it will also align timber harvesting and marketing more intricately
with demand.
By
detaching primary and secondary production there is no compromise made in
primary production in the harvesting and marketing of timber to satisfy other
interests - the market is the best determinant of when and what to harvest. One
can be assured, however, that if policy is directed at maximizing resource
value in the context of market imperatives, the well-being of those dependent
on the industry will be better addressed - ultimately asset security and job
security are a function of a strong industry that is rationalized to the
marketplace.
If
policymakers have the courage to donate a significant portion of the land base
to the tenure profile suggested above, say 25 – 50 % of the annual allowable
cut, much benefit will be derived. Conventional actors will have a new partner,
the independent business operator – the tree farmer. Most important in relation
to the suggested tenure, however, is that the management perspective is
lengthened along the full forest growth continuum to harvest, there is a
steward that is intimately acquainted with a given acreage and the knowledge
that can only be garnered by close association with a given stand of timber;
will drive a stem-by-stem market execution.
One
would think that this would be an agreeable proposition for incumbent timber
companies; this proposal allows them to focus on their core capacities –
processing lumber and value-added products – and ensures unfettered and fair
access to fibre via a free and open market.
As a
byproduct of the writer’s life, he spends a lot of time in the woods. This
takes him by various logging operations throughout the province. By
observation, there is a substantive variation in the quality of operation across
the province. The present tenure regime permits a lot of waste by leaving
discretion in the hands of the forest companies as to what is viable or not –
as directed in part by a professional forester. This is fine, provided that,
what is left behind is offered to other operators to salvage, rather than being
put in slash piles and destroyed by fire.
The
present tenure process to salvage dead, downed or abandoned timber is very
cumbersome. There needs to be a process that allows people to salvage what is
left behind in the logging processes and what is wasting in the forest
generally. People should be able to apply for a salvage tenure that is
generally applicable to Crownland, rather than, going through a “cut block” by
“cut block” process that requires time and expense – time and expense that zaps
a marginal enterprise of precious margin.
A tenure
regime of this type would lend itself to firewood sellers, and small milling
operations and provide a circumstance where small operators could “mine the
tailings”.
It is
incumbent upon us to foster the prudent use of the province’s largest resource,
crownland. Prudent in stewardship, prudent in economic benefit. We are failing
to capture the full benefit of this incredible resource. We are wasting
opportunities. If we seek to capture the latent opportunities that await us
with good management of crownland, we have the financial resources to attend to
the punitive liability we carry to the First Nations peoples and bring a
general state of prosperity to all. If we stay on the course, we’re on,
investment leaves us, prosperity is thwarted and stagnation awaits us.
