Executive Summary
This comment on the three recent announcements from the B.C. government is not intended to disparage what has been or could potentially be achieved through the BCCFM, the Tripartite Agreement, the BEHF, or the pursuit of their respective goals, but rather to point out clearly what steps remain to be taken and the issues that still need to be addressed by Canada, B.C., the First Nations of British Columbia and other parties in order to accomplish the stated goals and the actual implementation of the measures contemplated in these announcements, including fully committed and budgeted funding, firm timelines for the anticipated new conservation initiatives, and a clear commitment to legislative action following the upcoming election in British Columbia.
The BCCFM
There are significant uncertainties on what will be actually achieved through the BCCFM, and in what timeframe.
It is apparent that the B.C. government is still not prepared to commit to the immediate implementation of Recommendation No.6 in the report of the Old Growth Strategic Review Panel (“OGSRP”) released more than 3 years ago, or the specific recommendations of the Old Growth Technical Advisory Panel (“OGTAP”) released more than two years ago respecting the immediate protection from logging of all the 2.6 million hectares of high-priority at-risk old growth forest areas identified, delineated and mapped by the OGTAP pursuant to Recommendation No.6 of the OGSRP.
It is also apparent that the B.C. government is not prepared to immediately commit to, budget and disburse public funding for the permanent protection of the high-priority at-risk old growth forest in B.C. within a clear timeline, and that it intends to make any actual B.C. government funding commitments contingent on the raising of matching money from the general public and private donors.
The B.C. government clearly signals that the BCCFM may be used in the future not just for old growth forest protection and conservation projects, but also for yet to be determined “low carbon economic opportunities”.
The B.C. government has the ability to move quickly with actual legislation to address without any further delay the protection from logging of all the high-priority at-risk old growth forest areas without impinging on the rights and interests of First Nations in B.C., or disregarding B.C.’s Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), as proposed in the outline of a Bill attached to this comment in the Appendix.
The Tripartite Agreement
The Tripartite Agreement is a statement of non-binding general intentions by the three Parties (Canada, B.C., and the First Nations Leadership Council [“FNLC”]), one of which (the FNLC) cannot bind First Nations, and which any of the three Parties can end at any time by notice to the other Parties.
Despite the fact that the Tripartite Agreement is clearly non-binding on the three Parties, the language used throughout this agreement is vague, putative, and non-binding as well.
The actual public funding contemplated by both levels of government in furtherance of the Tripartite Agreement over its target term of 6 years and 5 months is neither firmly committed nor budgeted at this time, nor is there any deadline set for this to happen.
The terms and conditions, matching fund mechanism, funding criteria, and timetable for actual funding by both levels of government, third parties and the private sector have yet to be determined and agreed upon by the Parties.
The terms of reference, actual composition, and appointment of members for the setting up of an interim Tripartite Nature Committee to coordinate activities under the Tripartite Agreement have yet to be determined and agreed upon by the Parties, and other organizations may be formed at an undetermined time in the future to assist with the implementation of the agreement.
Other interested parties, organizations, and the general public should insist on the need for firm commitments by the Parties respecting transparency, accountability, and public reporting on nature conservation initiatives to be pursued in the future within the ambit of the Tripartite Agreement, the sources of their respective funding from public and private sector contributors, their respective terms and conditions, and their actual progress over the duration of the Tripartite Agreement.
The Tripartite Agreement also does not include a firm commitment by the B.C. government on a clear timetable or deadline to actually implement Recommendation No. 6 of the OGSRP report published more than 3 years ago, or the interim or permanent protection from logging of all the 2.6 million hectares of high-priority at-risk old growth forest in British Columbia, as recommended and mapped in the OGTAP report more than 2 years ago.
The Tripartite Agreement raises significant new concerns with respect to the listing, legal protection and enforcement measures that will be available going forward with respect to species at risk and their habitat in B.C. under federal law (SARA).
The Draft BEHF
The draft BEHF heralds yet another multi-step non-binding pathways approach that involves general objectives and intentions with no set timeframe or deadlines for their implementation or legislative action.
While published twelve days after the signing of the Tripartite Agreement by the B.C. government, the draft BEHF does not mention any of the objectives contemplated in the Tripartite Agreement with respect to habitat and ecosystem conservation and protection, habitat enhancement and restoration, and species at risk protection and recovery. This omission is particularly significant with respect to Part 8.0 of the Tripartite Agreement, which heralds an intention to dilute the existing federal law (SARA) respecting the listing, protection, and enforcement measures for the protection of species at risk and their habitat in B.C.
Also omitted in the draft BEHF is the impact of the most damaging practices of the resource extraction industries on biodiversity and ecosystem health in B.C., and the urgent necessity to change them, including the continued timber harvesting by the forest industry of high-priority at-risk old growth forests, which are a vital and irreplaceable habitat for species at risk such as the Marbled Murrelet and the Spotted Owl.
The B.C. government should commit in principle to tabling before the Legislative Assembly of British Columbia the following Bills within a specific timeline following the next provincial election:
a Bill for the protection of biodiversity, ecosystem health, species at risk and their habitat under provincial law;
a Bill for the immediate and permanent protection from logging of all the high-priority at-risk old growth forest areas identified, delineated, and mapped by the B.C government’s own experts in the report of the Old Growth Technical Advisory Panel publicly released on November 3, 2021, as well as the most intact watersheds for each region and ecosystem identified on Map 6 in this report;
a Bill to formally recognize and give effect to Tribal Parks, Indigenous Protected and Conserved Areas (IPCAs), and First Nation Guardianship under provincial law;
a Bill to consolidate and modernize the forests statutes of British Columbia, including specifically the Forest Act3, the Forest and Range Practices Act4, and the Ministry of Forest and Range Act5; and
a Bill to enact the statutory mandate of the Ministry of Water, Lands and Resource Stewardship with a duty and the necessary powers to protect biodiversity, ecosystem health and nature conservation in British Columbia.
Getting the Outstanding Issues Addressed During the Provincial Election Year
In our democratic system of government, outstanding public policy issues have to be addressed through a clear legislative agenda, with the tabling of Bills to amend existing laws and to pass new laws required to make the necessary changes and actions happen. The actual preservation of primary and old growth forests remaining in British Columbia, ecosystem health, natural carbon sinks, intact watersheds, biodiversity, the natural habitat of species at risk, and genuine reconciliation with First Nations still lies in the balance.
1. Introduction
In its most recent instalment of media releases respecting further action on old growth forest protection in British Columbia, the B.C. government announced on October 26, 2023, the launching of a provincial made-in-B.C. conservation tool called the B.C. Conservation Financing Mechanism (“BCCFM”) (https://news.gov.bc.ca/29736). It was followed on November 3, 2023, with an announcement by the B.C. government on the conclusion of a tripartite framework agreement on nature conservation between Canada, British Columbia, and the First Nations Leadership Council (FLNC) for British Columbia (“Tripartite Agreement”) (https://news.gov.bc.ca/29800), and with a further announcement by the B.C. government on November 15, 2023, on a draft biodiversity and ecosystem health framework (“BEHF”) (https://new.gov.bc.ca/29861).
Although these three announcements, released between October 26 and November 15, 2023, do not all involve the same parties or initiatives, they are interrelated, and they share some common characteristics (a basic framework, statements of general intentions, non-binding goals and objectives, pathways, approaches, multiple steps, and open timeframes with no firm deadlines). They have been generally welcomed as a positive development for strengthening conservation efforts provincewide in British Columbia, heralding a new approach to consultation and cooperation between Canada, B.C., and First Nations on nature conservation initiatives and funding, promoting reconciliation with First Nations consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), and supporting the achievement of Canada’s national goals to protect 25% of terrestrial areas by 2025 (“25 by 25”) and 30% of terrestrial areas by 2030 (“30 by 30”).
These announcements show however a growing web of interrelated non-binding general frameworks, pathways, approaches, and multi-step processes, with implementation plans, committed government funding, and legislation to be further explored and developed at some undetermined time in the future.
Our comment on these three recent announcements from the B.C. government is not intended to disparage what has been or could potentially be achieved through the BCCFM, the Tripartite Agreement, the BEHF, or the pursuit of their respective goals, but rather to point out clearly what steps remain to be taken and the issues that still need to be addressed by Canada, B.C., the First Nations of British Columbia and other parties in order to accomplish the stated goals and the actual implementation of the measures contemplated in these announcements, including fully committed and budgeted funding, firm timelines for the anticipated new conservation initiatives, and a clear commitment to legislative action following the upcoming election in British Columbia.
2. The BCCFM
Overview
The BCCFM announced by the B.C. government on October 26, 2023, involves the creation of a matching fund between funds to be provided by the province up to $150 million, and funds to be raised by the BC Parks Foundation (“BCPF”) from non-government sources up to $150 million, for a potential total of $300 million over the duration of this funding mechanism, which has yet to be specified.
The media release states that “Together, this $300 million will be used to fund new conservation measures that are led or supported by First Nations, lasting environmental protection measures, capacity building for First Nations, stewardship and guardian programs, and support for low- carbon economic opportunities”. The scope of this initiative and related funding target is therefore significantly broader than the protection from logging of high-priority at-risk old growth forest areas in B.C.
The fund will be managed by the BCPF and “... overseen independently from government by a special committee made up of experts, half of whom will be First Nations”. The actual size of this committee, its mandate, powers, and appointees have yet to be determined and publicly announced.
The BCPF is a private not-for-profit society constituted under the laws of British Columbia. It is not a part of B.C. Parks or a B.C. government ministry. It has already started soliciting donations from the general public and other potential donors from the private sector through its website6 but it has not as yet publicly reported on the terms of its agreement with the B.C. government for the BCCFM, its fund-raising targets and milestones, the aggregate amount of donations that it has received, or the sources of these donations.
The media release characterizes the creation of the BCCFM as “... one of B.C.’s actions underway to accelerate old-growth protection, as recommended by the Old Growth Strategic Review”. It states that the BCCFM “... joins new Forest Landscape Planning that is replacing existing forest stewardship plans and establishes clear objectives for the long-term management of old growth, biodiversity, climate change and wildfire risk”. It also states that “New forest landscape plans reflect the generational shift in forestry, where we can depend on a strong and sustainable industry that also safeguards biodiversity and long-term ecosystem health”.
The media release further states that “As a result of significant collaboration between First Nations, the forest industry and the Province, deferrals have now been implemented on approximately 2.4 million hectares of old growth in B.C., including 1.23 million hectares of the most at-risk old growth identified by the Old Growth Technical Advisory Panel”.
Finally, the media release states that “As recommended in the Old Growth Strategic Review, logging deferrals are a temporary measure to prevent irreversible biodiversity loss, while developing the new, long-term approaches to forest management through Forest Landscape Plans”.
Key Elements Missing in the Media Release
There is no specific mention in the media release of the OGSRP’s Recommendation No. 6, which clearly states the following:
“Until a new strategy is implemented, defer development in old forests where ecosystems are at a very high and near-term risk of irreversible biodiversity loss”7.
Also, there is no specific mention in the media release of the OGTAP’s recommendations. The OGTAP report8 states the following:
“In principle, all old growth forest is irreplaceable in a human timeframe, and possibly in any timeframe given the climate crisis. However, some types of old growth forest (see Appendix 1 for details) currently face higher near-term risk. These types are most important to defer. All the forest types recommended and mapped for deferral are rare, at-risk, and irreplaceable.” (Page 3) (emphasis by the authors of the report).
In furtherance of Recommendation No. 6 of the OGSRP, the OGTAP report clearly states the following:
“To support urgent conversations between Provincial and First Nations governments, we recommend the following:
• Defer harvest (i.e. no development or harvesting) in all mapped highest-priority at- risk old forests (priority big-treed old growth, ancient forest, remnant old ecosystems) while development of a new approach to forest management is underway. Unprotected highest-priority at-risk forests cover approximately 2.6 million ha:
Ensure no new logging permits are approved in priority areas and no planning for future harvesting occurs until the new management system identifies what can be logged and how it can be logged. Some of the identified at-risk old forests already have some form of conservation designation. Where harvest is prohibited or generally prohibited ensure such prohibition is maintained. Avoid deferring harvest where forests are not at-risk to ensure meaningful deferrals. • Defer harvest in the most intact watersheds for each region and ecosystem. Deferral of harvest in intact watersheds is critical to maintain or recover landscape resilience (Map 6). Smaller intact areas should be identified in highly impacted areas of the province, as large areas are unavailable.” (Page 5) (emphasis by the authors of the report).
The OGSRP report was sent to the B.C. government on April 30, 2020, well before being made public on September 11, 2020. The OGTAP report was sent to the B.C. government in October 2021 and made public on November 3, 2021.
The B.C. government has subsequently decided that temporary old growth forest protection may be pursued through a variety of means, including short-term logging deferral orders on designated areas under the authority of B.C.’s Forest Act, temporary forbearance from the advertising and issuance of timber sales licences by the Ministry of Forests pursuant to the BC Timber Sales program (“BCTS”), and temporary logging deferral commitments to be concluded with individual First Nations and forest tenure holders on a case-by-case basis and on a voluntary basis.
The B.C. government has yet to provide comprehensive, detailed, and up-to-date information on which old growth forest areas are actually protected temporarily, their location and extent, how they intersect with the high-priority at-risk old growth forest areas mapped by the OGTAP, the type of protection involved, or the duration of this protection for each area concerned. This lack of comprehensive, detailed, and up-to-date information continues with the general statement contained in the media release that “As a result of significant collaboration between First Nations, the forest industry and the Province, deferrals have now been implemented on approximately 2.4 million hectares of old growth in B.C., including 1.23 million hectares of the most at-risk old growth identified by the Old Growth Technical Advisory Panel”.
The media release includes a fudging factor, with claimed logging deferrals for 1.1 million hectares of additional “old growth” that is admittedly not high-priority at-risk old growth mapped by the OGTAP. When aggregated with the claimed logging deferrals for the high- priority at-risk old growth component of 1.23 million hectares, this unspecified additional old growth component makes up for the total of 2.4 million hectares claimed by the B.C. government to be subject to logging deferrals, still short of the aggregate number that the OGTAP has identified and mapped specifically and only for high-priority at-risk old growth forest areas.
Meanwhile, clearcut logging activities continue to take place in high-priority at-risk old growth forest areas, as evidenced through the reporting tool set up by the Stand.earth NGO, using satellite imagery, remote sensing, and government data to detect logging and road-building in the most rare and at risk old growth forests.
The B.C. government decided to table without prior public consultations and to speedily pass Bill 2310 through the Legislative Assembly of British Columbia on November 25, 2021 in order to substantially amend the Forest and Range Practices Act (“FRPA”), with a view to providing for the gradual replacement of forest tenure holders’ forest management plans by new forest landscape plans (“FLPs”) on new forest landscape areas (“FLAs”) over a period of 8 to 10 years. The implementation of these amendments requires a lengthy case-by case process controlled and managed by the Minister of Forests and the Chief forester, and there are no binding obligations or deadlines set in the FRPA, as amended, for the conclusion of agreements between the B.C. government and the governing bodies of individual First Nations respecting the adoption of these new plans.
The media release on the BCCFM shows that the B.C. government intends in practice to continue delaying the actual implementation of the key recommendations made by its own independent experts with respect to the immediate protection from logging of all the high- priority at-risk old growth forest areas remaining in British Columbia. It also confirms that the B.C. government’s overriding strategy is to implement its new multi-year case-by-case forest landscape planning system without actually committing to the temporary or permanent protection from logging of all the high-priority at-risk old growth forest areas in British Columbia identified and fully mapped by its own experts more than two years ago.
As mentioned above, the B.C. government signals in the media release that with the new forest landscape plans, “... we can depend on a strong and sustainable industry that also safeguards biodiversity and long-term ecosystem health”. This should be seen as a continuation of the old industry reliance model for B.C. forestry, which has allowed the continued extraction of old growth forest timber in British Columbia through clearcutting over the last two decades.
Given the speedy enactment of Bill 2311 and Bill 2812 in November 2021, and more recently the speedy enactment of Bill 4113, it should be noted that the B.C. government has the ability to move with lightning speed on legislative changes on forestry matters when it chooses to do so, instead of the glacial speed at which it continues to approach the permanent legal protection of the remaining high-priority at-risk old growth forest areas in British Columbia.
With the necessary political will, the B.C. government can and should table a Bill in the next session of the Legislative Assembly of British Columbia following the upcoming provincial election to be held in 2024. Such a Bill would actually establish the Old Growth Nature Fund with committed B.C. capital funding to be budgeted in the province’s next fiscal year, incorporate by reference all the high-priority at-risk old growth forest areas already identified, delineated and mapped by the B.C. government’s experts in the OGTAP report published more than two years ago, and provide for First Nations to opt-in on the permanent protection of these areas within their respective traditional territories in return for financial compensation from the B.C. government. An outline of a Bill to achieve this urgently needed result is attached as an Appendix.
The upcoming provincial elections in 2024 provide an opportunity for all political parties and all individuals running for elected office as MLAs to commit in principle to such a Bill and to state their position on how it should be drafted, tabled, discussed, and voted upon during the first session of the newly elected members of the Legislative Assembly of British Columbia.
Conclusions
There are significant uncertainties on what will be actually achieved through the BCCFM, and in what timeframe.
It is apparent that the B.C. government is still not prepared to commit to the immediate implementation of Recommendation No.6 in the report of the Old Growth Strategic Review Panel (“OGSRP”) released more than 3 years ago, or the specific recommendations of the Old Growth Technical Advisory Panel (“OGTAP”) released more than two years ago respecting the immediate protection from logging of all the 2.6 million hectares of high-priority at-risk old growth forest areas identified, delineated and mapped by the OGTAP pursuant to Recommendation No.6 of the OGSRP.
It is also apparent that the B.C. government is not prepared to immediately commit to, budget and disburse public funding for the permanent protection of the high-priority at-risk old growth forest in B.C. within a clear timeline, and that it intends to make any actual B.C. government funding commitments contingent on the raising of matching money from the general public and private donors.
The B.C. government clearly signals that the BCCFM may be used in the future not just for old growth forest protection and conservation projects, but also for yet to be determined “low carbon economic opportunities”.
The B.C. government has the ability to move quickly with actual legislation to address without any further delay the protection from logging of all the high-priority at-risk old growth forest areas without impinging on the rights and interests of First Nations in B.C., or disregarding B.C.’s Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), as proposed in outline of a Bill attached to this comment in the Appendix.
3. The Tripartite Agreement
The full text of the Tripartite Agreement can be found on the website of the government of Canada.
The stated purpose of the Tripartite Agreement is to “...establish a framework to achieve a more integrated and collaborative landscape-based approach to ecosystem health and biodiversity conservation...”.
The Tripartite Agreement is structured along seven broad principles to guide further work and the implementation of future initiatives, seven goals to guide the implementation of the Agreement, and four objectives to achieve these stated goals, which are habitat and ecosystem conservation and protection, habitat enhancement and restoration, species at risk protection and recovery, foundational knowledge, and information sharing.
The Tripartite Agreement is not legally binding and therefore does not create legal rights or obligations. It will remain in force until March 31, 2030, unless terminated earlier by any Party 90 days after providing written notice to the other Parties.
Preamble N states that “The FNLC is not a title or rights, or treaty rights, holder and cannot engage in processes to establish and provide free, prior, and informed consent on behalf of individual First Nations, and engagement with the FNLC under this Agreement does not in any way fulfill, replace, or displace Canada or B.C.’s obligations to consult and cooperate with First Nations title and rights holders”.
Preamble X states that “This Agreement does not define the legal status, nature, scope, content or geographic extent of any particular First Nation’s rights, including title and self-government, or how those rights co-exist with those of the Crown or other First Nations”.
Preamble Y states that “Nothing in this Agreement alters or supersedes any Party’s obligations under existing legislation, treaties, agreements, or other constructive arrangements, nor does it alter or replace any ongoing negotiations on the recognition and implementation of rights between First Nations, Canada, and B.C., or preclude new nature-related initiatives that may be initiated outside the scope of this Agreement. Furthermore, references to specific federal and provincial legislation, programs and policies does not imply their approval or endorsement by FNLC or First Nations”.
Also, the Preamble clearly states that the Tripartite Agreement is concluded by the Parties
“...without prejudice to their respective powers and authorities”.
Despite the fact that the Tripartite Agreement is clearly non-binding on the three Parties, the language used throughout this framework agreement is generally vague, putative, and non- binding as well.
Finance and Funding
The Tripartite Agreement contemplates public funding to be directed respectively by Canada and the province of British Columbia to support future initiatives in furtherance of the agreement. The funding model to be pursued is however not only based on the matching of funds between the two levels of government, but also on the leveraging of matching funds from the private sector.
Both levels of government are contemplating the creation of a new Old Growth Nature Fund (“OGNF”), with matching fund contributions of $50 million each and potential funding from third-party organizations. The federal government proposed its $50 million matching fund contribution target over two years ago, but the B.C. government had not contemporaneously confirmed its own matching fund contribution target. Federal-provincial negotiations ensued until the signing of the Tripartite Agreement on November 3, 2023. It appears that federal- provincial negotiations are still on-going with a view to setting up the actual matching fund mechanism and the terms and conditions for the oversight, operation, management, and funding criteria for the new OGNF.
The media release states that “To support the commitments in the Tripartite Framework Agreement on Nature Conservation (the Framework Agreement), the Government of Canada is investing up to $500 million over the life of the Framework Agreement, which matches commitments from the Government of British Columbia”.
The up to $500 million overall public funding target contemplated by Canada for the anticipated 6-year and 5-month duration of the Tripartite Agreement encompasses not only the new OGNF, but also several already existing federal funding programs.
The media release states in the “Quick Facts” section that “B.C. is supporting the implementation of the Framework Agreement with matching investments through existing programs and conservation initiatives that are advancing the province’s commitment to protect at least 30 percent of terrestrial areas by 2030, ecosystem health and biodiversity, and better outcomes for wildlife and species at risk including Modernized Land Use Planning, Forest Landscape Planning, Old Growth Strategic Review, Species at Risk Recovery, Together for Wildlife, Collaborative Indigenous Stewardship Framework, Indigenous Guardian programs, and the Province’s creation of a new Conservation Financing Mechanism”.
However, there is no mention of the specifics in the Tripartite Agreement for the overall $500 million matching target of the B.C. government and its components listed in the “Quick Facts section of the media release, other than the $50 million B.C. target contribution to the OGNF, and the creation of the provincial-scale conservation financial mechanism announced previously on October 26, 2023.
The Parties intend to seek “... alignment with contributions of funding flowing through this Agreement to leverage provincial and third-party investments into conservation financing”. This general statement in the Tripartite Agreement indicates that the funding structure contemplated by the Parties is essentially based on three-way matching requirements between the two levels of government and the private sector without specifying the matching formula, terms and conditions, and milestones at this time. It indicates that matching funding from the two levels of government will essentially come from a broad spectrum of existing programs. Finally, for the B.C. government’s part, the existing programs apparently include previously ongoing run-of-the mill activities of various government Ministries.
The transfer of government funds from Canada and from B.C. in furtherance of the Tripartite Agreement is expressly made subject to actual commitments and conditions being set in future contribution agreements to be signed by Canada and B.C. The agreements and partnerships to support the implementation of the Tripartite Agreement through the raising of funds from third parties and the private sector have yet to be explored in the future.
Administration
The Tripartite Agreement contemplates the establishment of an interim Tripartite Nature Committee comprised of representatives from each of the three Parties to coordinate activities under the Agreement. The Terms of Reference for this interim committee are to be developed within 12 months of signing (i.e. presumably by November 2, 2024). There is no indication of a timetable for the actual appointment of the members of this interim Committee, their expertise, or who they will represent, nor is there any indication of the composition of, and timetable for, a more definitive oversight Committee. The Tripartite Agreement mentions a general intention to pursue the creation of as yet undefined further mechanisms and bodies complementary to the role of the interim Committee.
Information and Data Sharing, Accountability and Reporting
Part 9.0 of the Tripartite Agreement dealing with First Nations foundational knowledge and information sharing between the Parties introduces the concept of “First Nations data sovereignty” and the upholding of this concept by the Parties. The origins, scope and legal effect of this concept are not detailed or explained in the Tripartite Agreement.
Canada and B.C. declare their intention to “... assume an approach that values all forms of knowledge and ways of knowing, applying them in a manner that builds from the strengths of each towards a harmonized system of stewardship. Canada and B.C. will also work to ensure that federal and provincial data related to this Agreement are openly accessible to First Nations to support them in this partnership.
The Tripartite Agreement provides that “The Parties acknowledge that data and information collected by the Parties could be subject to legal requirements respecting disclosure of that data and information, such as the federal Access to Information Act or the provincial Freedom of Information and Protection of Privacy Act, and that data and information pertaining to or generated by First Nations will be handled in a manner consistent with the principles of ownership, control, access and possession OCAP)30, with a footnote stating that these are First Nations principles, without referring however to where these principles are stated and can be consulted by interested parties and the public.
The Tripartite Agreement states that “Canada and B.C., in consultation and cooperation with First Nations, will develop and release a data and information collection plan within 12 months of signing this Agreement, that will provide the information necessary to evaluate and report upon the progress under this Agreement, and a data and information sharing agreement in support of Agreement implementation and annual reporting”. It further states that “Canada and B.C. will work together to implement and adhere to the principles of open government data, in consideration of First Nations data sovereignty, within this Agreement and publish data according to these principles32.
In Part 12.0 on reporting, engagement and communications, the Tripartite Agreement states that “To ensure public transparency and to support broad credibility, understanding and accountability regarding progress and outcomes of the Agreement, the Parties will develop a first joint report and agree on performance indicators within 12 months of signing the Agreement and thereafter annual reports. Public reporting practices will be streamlined, standardized, aligned, and integrated with existing reporting commitments to report sites in CPCAD33, and monitoring mechanisms”.
The Tripartite Agreement also states that “The Parties will strive to minimize reporting requirements related to this Agreement. Reporting metrics and performance measures will be designed to focus on progress toward conservation outcomes, greenhouse gas emissions reductions, and community benefits. It further states that “The Parties will jointly communicate on this Agreement and associated milestones, including with First Nations or other partners as appropriate”.
Nature conservation involves a broad spectrum of interested parties and organizations at the international, national, provincial, regional, and local levels, not just the government of Canada, the B.C. government, and the governing bodies of individual First Nations of British Columbia. In this regard, the Tripartite Agreement only states that “Canada and B.C. will also engage with local governments and stakeholders on opportunities for input and involvement in the implementation of the Agreement.
Other interested parties, organizations, and the public should therefore insist on the need for firm commitments by the Parties respecting transparency, accountability, and public reporting on nature conservation initiatives to be pursued in the future within the ambit of the Tripartite Agreement, the sources of their respective funding from public and private sector contributors, their respective terms and conditions, and their actual progress over the duration of the Tripartite Agreement. They should also be concerned with the shortcomings of the access to information process under federal and provincial legislation, which is known to be reactive rather than proactive, as well as often protracted and obfuscating, rather than forthcoming with timely, true, plain, and full disclosure pursuant to the objectives and requirements of that legislation.
Effect of the Tripartite Agreement on the Protection of High-Priority At-Risk Old Growth Forests in B.C.
Preamble P states that “B.C. has undertaken an Old Growth Strategic Review and intends to co- develop with First Nations legislation to prioritize ecosystem health and biodiversity as an overarching priority for all sectors”. As part of the objectives on habitat and ecosystem conservation and protection, Section 6.4.3 of the Agreement states that “Canada and B.C. will establish the Old Growth Nature Fund, with matching funding of $50 million each and potential funding from third-party organizations, and work in partnership with First Nations to permanently protect and conserve 4,000 to 13,000 km2 of high-priority at-risk old growth forests in the coastal western hemlock, coastal douglas-fir, or interior cedar-hemlock biogeoclimatic ecosystem classification (BEC) zones that overlap with biologically diverse and productive habitats for species at risk or migratory birds, and contribute to Canada’s commitment to protect 25% of terrestrial areas by 2025 and Canada’s climate target.”
There is no specific mention in the Tripartite Agreement of Recommendation No. 6 made in the OGSRP’s report sent to the B.C. government on April 30, 2020, and finally published on September 11, 2020, nor is there any specific mention or acknowledgement in the Tripartite Agreement of the recommendations in the OGTAP report sent to the B.C. government in October 2021 and published on November 3, 2021.
The Tripartite Agreement does not give any clear indication of the actual location and geographical extent of the 4,000 to 13,000 square kilometres (i.e. 400,000 to 1.3 million hectares) of old growth forest that would eventually be permanently protected, where and to what extent the areas considered for such protection overlap, or do not overlap, with the 2.6 million hectares (i.e. 26,000 square kilometres) of high-priority at-risk old growth forest areas already mapped by the TAP for urgent logging deferral, or where and to what extent these potential new protection areas overlap with “biologically diverse and productive habitats for species at risk or migratory birds” that “contribute to Canada’s commitment to protect 25% of terrestrial areas by 2025 and Canada’s climate target”, as no maps or links to maps with their location have been provided along with the announcement.
There is no indication in the Tripartite Agreement of the timetable for the setting up of the Old Growth Nature Fund. The transfer of funds by Canada and British Columbia of their respective matching funds of up to $50 million for the Old Growth Nature Fund is subject to sections 11.2 which states that “... contribution agreements are required to transfer funds”, “... More specific commitments and additional conditions for the transfer of funds may be anticipated”, and section 11.3 which states that “...contribution agreements will be subject to the respective priorities, authorities, and budgetary constraints of Canada and B.C.” Furthermore, the B.C. government has not clarified whether its eventual contribution of up to $50 million for the Old Growth Nature Fund is entirely distinct from, or included in whole or in part with, the money pegged for the creation of the BCCFM funding mechanism announced eight days earlier.
Effect of the Tripartite Agreement on the Conservation and Protection of Habitat and Species at Risk
The Tripartite Agreement contains three parts dealing respectively with habitat and ecosystem conservation and protection (Part 6.0), habitat enhancement and restoration (Part 7.0), and species at risk protection and recovery (Part 8.0).
Part 6.0 on habitat and ecosystem conservation and protection sets the general tone for future measures respecting habitat and ecosystem conservation and protection in B.C. With respect to funding requirements, this part of the Tripartite Agreement includes a specific caveat of the B.C. government that, in addition to the free, prior, and informed consent of appropriate First Nations title and rights holders, B.C. Cabinet and Treasury Board approval will be required “... to address existing tenures and mitigate socio-economic impacts”. Also, Part 6.0 outlines eight general objectives, including the future establishment of the Old Growth Nature Fund (“OGNF”).
Part 7.0 on habitat enhancement and restoration is clearly focussed on ex post future restoration and enhancement measures, as opposed to ex ante effective protection measures before significant damage is done and restoration measures become necessary. The Tripartite Agreement is silent on the urgent necessity to change the most damaging current practices of the oil, gas, mineral, and timber resource extraction industries on wildlife habitat in British Columbia. Finally, it appears that Part 7.0 leaves mainly to Canada the financial responsibility to fund new habitat restoration activities in the future for the duration of the Tripartite Agreement.
Part 8.0 on species at risk protection and recovery demonstrates that the B.C. government continues to have no real plans to pass a provincial law for the protection of species at risk and their habitat in British Columbia. Advocates of effective legal protection for species at risk and their habitat in the province should be further concerned with the intent by both B.C. and Canada to “... help mitigate the need for regulatory orders under federal legislation”.
Also of significant concern is the stated objective that “Canada and B.C. will consult and cooperate with First Nations to take conservation actions early that address threats and may obviate the need for listing under the Species at Risk Act (SARA) and improve the prioritization of foundational knowledge to better inform federal listing decisions. This new objective, which heralds a dilution of the existing federal law respecting the listing, protection and enforcement measures for the protection of species at risk and their habitat in B.C., is amplified by another of the nine stated objectives, which provides that “Canada and B.C. will advance existing species listing and recovery pilots to ensure that listing decisions in SARA are fully informed with respect to First Nations knowledge and perspectives and socio-economic implications, and to explore recovery approaches where species are in decline due to broad scale cumulative impacts rather than localized habitat loss...”. This does not address the urgent need for change to the ongoing negative impact of the most damaging practices of the resource extraction industries in B.C., such as clearcutting.
These new objectives in the Tripartite Agreement come on the heels of the recent controversy surrounding the protection of the Spotted Owl’s old growth forest habitat in B.C. The federal Minister of the Environment and Climate Change recommended the issuance of a federal emergency order under the authority of SARA, which led to active lobbying by the B.C. government to have the proposed emergency order finally nixed by the federal cabinet. The alleged rationale for this controversial federal cabinet decision is reflected in another of the nine objectives in Part 8 of the Tripartite Agreement stating that “Canada will support B.C. and First Nations actions toward the recovery of Spotted Owl caurina including a SARA-compliant action plan, augmenting captive breeding capacity, control of competitive species, release of owls, and monitoring and adaptive management of both species (e.g., Spotted Owl and Barred Owl) and habitat protection, conservation, and recruitment of owls. There is no mention about limiting further old growth forest clearcutting in this endangered species’ habitat.
The Tripartite Agreement is silent on two significant pending legal actions seeking to compel Canada and B.C. to take protective and enforcement actions for species at risk listed in SARA and their habitat, and whether Canada and B.C. will continue to devote legal resources and government money to fight these actions. The Friends of Fairy Creek Society is seeking a declaratory judgement from the Supreme Court of British Columbia to confirm that Canada and B.C. are obligated to protect the natural old growth forest habitat of the Marbled Murrelet, a listed species at risk under SARA, pursuant to the Convention on Migratory Birds signed by Canada, the Migratory Birds Convention Act (Canada), and SARA46. The NGO Ecojustice, representing the Wilderness Committee and Sierra Club BC, applied to the Federal Court of Canada to seek a ruling that Canada is obligated to protect the critical habitats of at-risk migratory birds across Canada under SARA, including the Marbled Murrelet in B.C.
Conclusions
The Tripartite Agreement is a statement of non-binding general intentions by the three Parties, one of which (the FNLC) cannot bind First Nations, and which any of the three Parties can end at any time by notice to the other Parties.
Despite the fact that the Tripartite Agreement is clearly non-binding on the three Parties, the language used throughout this agreement is vague, putative, and non-binding as well.
The actual public funding contemplated by both levels of government in furtherance of the Tripartite Agreement over its target term of 6 years and 5 months is neither firmly committed nor budgeted at this time, nor is there any deadline set for this to happen.
The terms and conditions, matching fund mechanism, funding criteria, and timetable for actual funding by both levels of government, third parties and the private sector have yet to be determined and agreed upon by the Parties.
The terms of reference, actual composition, and appointment of members for the setting up of an interim Tripartite Nature Committee to coordinate activities under the Tripartite Agreement have yet to be determined and agreed upon by the Parties, and other organizations may be formed at an undetermined time in the future to assist with the implementation of the agreement.
Other interested parties, organizations, and the general public should insist on the need for firm commitments by the Parties respecting transparency, accountability, and public reporting on nature conservation initiatives to be pursued in the future within the ambit of the Tripartite Agreement, the sources of their respective funding from public and private sector contributors, their respective terms and conditions, and their actual progress over the duration of the Tripartite Agreement.
The Tripartite Agreement also does not include a firm commitment by the B.C. government on a clear timetable or deadline to actually implement Recommendation No. 6 of the OGSRP report published more than 3 years ago, or the interim or permanent protection from logging of all the 2.6 million hectares of high-priority at-risk old growth forest in British Columbia, as recommended and mapped in the OGTAP report more than 2 years ago.
The Tripartite Agreement raises significant new concerns with respect to the listing, legal protection and enforcement measures that will be available going forward with respect to species at risk and their habitat in B.C. under federal law (SARA).
4. The draft Biodiversity and Ecosystem Health Framework
The media release publishing the draft BEHF for comments on November 15, 2023, under the title “B.C. prioritizing ecosystem health, biodiversity” states that “The framework is another action the Province is taking as part of ongoing work to improve stewardship of B.C.’s lands, forests and water, to implement the recommendations of the Old Growth Strategic Review and to honour B.C.’s commitments under the Declaration on the Rights of Indigenous Peoples Act”. It further states that “The framework is expected to be finalized in early 2024, following consultation. B.C. will co-develop new or update existing legislation to achieve the vision and intent of the framework”.
The deadline for comments from members of the public, originally set for January 15, 2024, was extended to January 31, 2024. Our detailed submission on the draft BEHF dated January 30, 2024, is already on file with the Ministry of Water, Land and Resource Stewardship.
Conclusions
The draft BEHF heralds yet another multi-step non-binding pathways approach that involves general objectives and intentions with no set timeframe or deadlines for their implementation or legislative action.
While published twelve days after the signing of the Tripartite Agreement by the B.C. government, the draft BEHF does not mention any of the objectives contemplated in the Tripartite Agreement with respect to habitat and ecosystem conservation and protection, habitat enhancement and restoration, and species at risk protection and recovery. This omission is particularly significant with respect to Part 8.0 of the Tripartite Agreement, which heralds an intention to dilute the existing federal law (SARA) respecting the listing, protection, and enforcement measures for the protection of species at risk and their habitat in B.C.
Also omitted in the draft BEHF is the impact of the most damaging practices of the resource extraction industries on biodiversity and ecosystem health in B.C., and the urgent necessity to change them, including the continued timber harvesting by the forest industry of high-priority at-risk old growth forest trees, which are a vital and irreplaceable habitat for species at risk such as the Marbled Murrelet and the Spotted Owl.
The B.C. government should commit in principle to tabling before the Legislative Assembly of British Columbia the following Bills within a specific timeline following the next provincial election:
a Bill for the protection of biodiversity, ecosystem health, species at risk and their habitat under provincial law;
a Bill for the immediate and permanent protection from logging of all the high-priority at-risk old growth forest areas identified, delineated, and mapped by the B.C government’s own experts in the report of the Old Growth Technical Advisory Panel publicly released on November 3, 2021, as well as the most intact watersheds for each region and ecosystem identified on Map 6 in this report;
a Bill to formally recognize and give effect to Tribal Parks, Indigenous Protected and Conserved Areas (IPCAs), and First Nation Guardianship under provincial law;
a Bill to consolidate and modernize the forests statutes of British Columbia, including specifically the Forest Act, the Forest and Range Practices Act, and the Ministry of Forest and Range Act; and
a Bill to enact the statutory mandate of the Ministry of Water, Lands and Resource Stewardship with a duty and the necessary powers to protect biodiversity, ecosystem health and nature conservation in British Columbia.
5. Getting the outstanding issues addressed during the provincial election year
In our democratic system of government, outstanding public policy issues have to be addressed through a clear legislative agenda, with the tabling of Bills to amend existing laws and to pass new laws required to make the necessary changes and actions happen. The actual preservation of primary and old growth forests remaining in British Columbia, ecosystem health, natural carbon sinks, intact watersheds, biodiversity, the natural habitat of species at risk, and genuine reconciliation with First Nations still lies in the balance.
A provincial election must be called in 2024. In the circumstances, is should be expected that the incumbent provincial government will make various announcements to set public narratives on outstanding public policy issues while leaving all its options open and delaying any firm commitments. Yet, the provincial election provides a unique window of opportunity for constituents, organizations, First Nations, and the media to press for explicit, and binding commitments from the incumbent government, the provincial political parties, and all the individual candidates running for elected office as members of the Legislative Assembly of British Columbia.
We hope that our document will contribute to a better understanding and informed discussion of the public policy issues still outstanding in British Columbia with respect to the permanent protection of primary and high-priority at-risk old growth forest areas, biodiversity, ecosystem health, species at risk and their habitat, the effective conservation of 25% of the land base by 2025 and 30% of the land base by 2030, First Nations stewardship on their unceded traditional territories, and the provincial legislation that needs to be tabled, debated, and passed by the newly elected members of the Legislative Assembly of British Columbia following the provincial election to be called in 2024.
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