“Forest and Range Agreements are interim agreements between the Ministry of Forests and eligible First Nations designed to provide for “workable accommodation” of aboriginal interests that may be impacted by forestry decisions during the term of the agreement, until such time as those interests are resolved through treaty. These agreements provide the Ministry with operational stability and assist First Nations to achieve their economic objectives by providing revenue and direct award of timber tenure” (Source: BC Government)
The Supreme Court of Canada has held that under Section 35 of the Constitution Act, 1982, Aboriginal Rights and Title are recognized and affirmed and that this Title is an interest in the land itself. Furthermore the Supreme Court of Canada has held that from this Title flows the Crown’s duty to consult with First Nations and accommodate their interests when making land-use management decisions within their claimed territories.
In 2002 in order to accommodate First Nation interests, the provincial government enacted the Provincial Policy for Consultation with First Nations to be used in conjunction with the Ministry of Forests Strategic Policy Approaches to Accommodation (2003). The MoF Strategic Policy outlined criteria for accommodation in order to develop further policy surrounding timber and revenue sharing. From this document emerged the template for the Forest Range Agreement (FRA). The Forest Range Agreement was conceived as negotiated interim measures between the Ministry of Forests and First Nations in order to accommodate the economic component of Title interests through revenue sharing and access to timber volumes.
This policy approach to accommodation and consultation has been met with opposition from First Nations. On February 11 2005 in Huu-Ay-Aht First Nation v. Ministry of Forests the court ruled in favour of the HFN, stating that FRA’s do not represent meaningful consultation and accommodation and therefore do not satisfy the Crown’s constitutional duty. In her ruling Madam Justice Dillon asserted that the reasoning for her decision was largely based on the fact that the FRA uses a fixed per-capital formula to calculate revenue sharing and timber allocation. Justice Dillon therefore ruled that the FRA did not represent meaningful consultation as it did not give consideration to the strength of the First Nations claim or degree of potential infringement.
In March 2005 BC Premier Gordon Campbell, along with the First Nations Summit, the Union of BC Indian Chiefs, and the BC Assembly of First Nations signed ‘The New Relationship’. The overriding principle of The New Relationship is a commitment by all parties to work towards the reconciliation of Aboriginal and Crown titles and jurisdictions. In accordance with this agreement are promises to revisit and restructure FRA’s as well as to create new opportunities for First Nations to participate in the forestry sector.
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