Principle – Society accepts responsibility for sustainability.

Criterion- Recognition and respect for Aboriginal roles in sustainable forest management (Aboriginal Rights, Treaty Rights and aboriginal values).

Indicator – Extent to which forest planning and management processes consider and meet legal obligations with respect to duly established Aboriginal and treaty rights.

Box B: Definition:

This indicator measures the extent to which forest planning and management activities are conducted in accordance with legal obligations of Aboriginal people specifically with respect to Aboriginal rights and Treaty rights.

This indicator refers to legal or constitutional rights while other indicators refer to Aboriginal values. Aboriginal and treaty rights are defined by law, by treaty, or as a result of land claims negotiations or treaty renegotiations. ‘Aboriginal rights’ refer to general rights, typically defined by Constitution or federal legislation (e.g., Section 35 Canadian Constitution Act Amendment, 1982), ascribed to First Nations or Aboriginal people. ‘Treaty rights’ are specific rights that are associated with individual Aboriginal groups or First Nations that are derived through treaties or land claim processes.

In some jurisdictions, Aboriginal rights or Treaty rights include the right to subsistence or commercial fishing, hunting, trapping, gathering or harvesting timber. In addition, these Rights can include the right of consultation. On Crown land in British Columbia, for example, the Protection of Aboriginal Rights Policy requires consultation with Aboriginal communities impacted by resource activities (Canadian Council of Forest Ministers, 1996). This means that logging plans and other licensee development plans under the jurisdiction of the Ministry of Forests must contain an Aboriginal consultation or referral process.

Box D: Applicability to Different Landowners.

In the U.S., this indicator is applicable only to federal lands and not to state or private lands (industrial or non-industrial). In Canada, the indicator applies across federal and provincial land but is similarly not applicable on private land.

Box E: Overlap:

CIFOR 1.1.3 3.2.1

CIFOR – BAG 2.2 2.1.2 2.1.3 2.2.4 2.2.2 2.2.3 1.1.3 2.3.1

CCFM 6.2.1 6.2.2 6.2.3 6.2.4

Notes:

As with the notion of the applicability of Aboriginal rights and Treaty rights to different landowners, this indicator functions at almost every geo-political scale. Aboriginal rights at the global level are protected by an international agreement on the rights of indigenous peoples. However, given the focus on forest management at the FMU level and the constraints regarding applicable of aboriginal rights and treaty rights on to federal land only in the US and federal and provincial land in Canada, the forest management unit is the more appropriate scale to examine this indicator.

Notes: This indicator is descriptive of the current conditions associated with Aboriginal peoples. Some trend data may be available from some organization such as the Canadian Forestry Service or the National Aboriginal Forestry Association. The presence of trend data would enable this indicator to be used in a more predictive fashion.

Box I: Underlying Concepts:

CIFOR-BAG notes that with respect to ownership and use rights (although not specifically Aboriginal or treaty rights), "clarity and agreement on ownership and use rights to resources, especially those that respect pre-existing claims, will increase local people’s feeling of security regarding the local resources." In addition, "people’s rights being acknowledged and respected is relevant from the perspective of justice, which forms a part of human well-being (CIFOR, 1998, p. 4)."

Aboriginal rights and treaty rights are legal rights that must be upheld. In some countries (e.g., Canada), some of these rights are Constitutional, engendering an even greater degree of protection than legislation affords.

Aboriginal peoples are recognized to be distinct from other forest actors in recognition of their sovereign rights. A suite of indicators that addresses sustainability issues with respect to Aboriginal peoples is a recognition that these peoples are "Not Just Another Stakeholder" (National Aboriginal Forestry Association, 1995).

Box J: Relevance to Sustainable/Unsustainable Management:

In Canada, more than 80% of Aboriginal communities lie in the productive forest zones of Canada. Similarly, in the US and Mexico, many aboriginal groups are forest peoples. Aboriginal use of forest land – be it subsistence or commercial fishing, hunting, trapping or gathering – affects forest management and thus, forest management planning. Where Aboriginal peoples have rights for traditional, ceremonial, subsistence, or commercial harvest of timber, the relevance to sustainable forest management is also clear. As sustaining human well being is one important aspect of sustainability, respecting aboriginal and treaty rights is an important first level in assessing sustainability. For Canadian forest managers, this indicator is a test of a commitment made by Canada at the 1992 United Nations Conference on the Environment and Development – to recognize the role of Aboriginal peoples in forests, traditional use, knowledge and ways of life (CCFM, 1997).

CIFOR-BAG notes that: clarity and agreement on ownership and use rights to resources, especially those that respect pre-existing claims, will increase local people’s feeling of security regarding the local resources (in other words, their level of confidence that resources will not be taken from them or their children). This is relevant to sustainable management because when people feel some security of access, it appears that they are more likely to take a longer term view toward resource management. They may even make decisions, which result in long-term conservation despite short-term sacrifice. In addition, acknowledgement of rights is relevant from the perspective of justice, which forms a part of human well-being (which is, in turn an element of human sustainability) (CIFOR, 1998; Prabhu et al., 1996).

Box K: Measurement Methods:

CCFM notes that measuring the extent to which forest planning and management processes consider and meet legal obligations with respect to Aboriginal and Treaty rights is difficult because of the changing interpretations of those rights and the evolving forms of co-management between Aboriginal and treaty rights is difficult because of the changing interpretations of those rights and the evolving forms of co-management between Aboriginal peoples and provincial governments. At this point, measurement entails an overview of provincial legislation and regulations and a best-practices or case-study approach (CCFM, 1997).

At any given point in time an inventory of Aboriginal and Treaty rights and obligations can be listed for a specific jurisdiction and an assessment completed of the extent to which the forest manager has met these obligations could be conducted. This comparison could be completed in the following ways:

• 1) Litigation or complaints of violations of these rights;
• 2) Forest manager assessments of the extent to which obligations have been upheld;
• 3) Aboriginal groups assessments of the extent to which obligations have been upheld;
• 4) An assessment of the forest manager’s awareness of obligations
• 5) Maps or documents available to the forest manager that outline these obligations;
• 6) A screening or approval process set in place by the agency to prevent violation of the obligations.

Box L: Data Required:

Data Needs

• Maps of Indian Reserves, Aboriginal Harvesting areas, Land Claims Settlement areas
• Descriptions of obligations associated with Indian Reserves, Aboriginal Rights and Treaty Rights.
• Descriptions of forest management policies related to Aboriginal and Treaty rights and associated screening or approval processes.

Data Availability

In Canada, Aboriginal and Treaty rights are changing almost daily. Most of this data is, however, readily available particularly in Western and Northern Canada where Treaty Negotiations and Land Claims processes are exceptionally active.

This information should not be confidential if treaties and land claims have been concluded. In some jurisdictions, overlapping claims or rights are possible making the data difficult to decipher. This data should generally be reliable, however, it may be difficult to understand as the interpretation of Aboriginal and Treaty rights is typically left to the courts.

Box M: Data Used for the North American Test:

Obligations Associated with Indian Reserves, Aboriginal Rights and Treaty Rights

Sources of information consulted included

• USDA-FS. 1997. Forest Service National Resource Book on American Indian and Native Relations. USDA-Forest Service. FS-600.

• Hanes, R.C. 1995 (DRAFT). American Indian Interest in the Northern Intermontane of Western North America. Social Assessment Report for the Interior Columbia Basin Ecosystem Management Project. ICEBEMP.

• Reed, Will. Forest Archeologist, Boise National Forest. Interview
• Map of Judicially Established Indian Land Areas (1978) (US)

Box N: Example Results:

Treaty Rights and the Boise National Forest

The 1978 Map of Judicially Established Indian Land Areas indicates that no Indian Lands are designated that overlap the Boise National Forest. However, consultation with the BNF archaeologist noted that claims could likely be supported for this area by the Shoshone-Bannock peoples. While there are currently no Indian Lands in this area there are rights associated with fishing (and potentially with other activities) in the BNF. In the past, on years of good fish runs, the Shoshone-Bannock peoples have taken a portion of the fish in the BNF for Treaty Rights.

Recognized Shortcomings with Addressing Treaty Rights

The 1997 Southwest Idaho Ecogroup Forest Plan Revision document entitled Preliminary Analysis of the Management Situation: Summary notes with respect to cooperation with Native Americans that:

"The Nez Perce, Shoshone-Bannock, and Shoshone-Paiute Tribes are recognized as sovereign nations. As a result, these tribes have unique relationships with federal government agencies. Forest Service policies and management activities should be carefully planned and implemented in ways that respect the tribes’ sovereignty, needs and rights. Collaboration with these tribes will focus on developing meaningful relationships to understand and incorporate tribal cultural resources, needs, interest, and expectations" (p. 1-11). The Summary document also notes that "intergovernmental treaties reserved rights for traditional uses such as hunting, fishing, and gathering forest products on unoccupied public lands." These "rights reserved by treaties take precedence over many federal laws". The 1997 document notes that "Forest Plans need to strengthen this language to meet the federal government’s trust responsibilities, to foster a better understanding of tribal concerns, to enhance relationships, and to develop shared goals in land management" (p. 2-38).

Recognized Shortcomings with Aboriginal Rights and Federal Legislation

The Summary notes that Forest Plans need to be revised to include recent direction regarding heritage/cultural sites. These recently released directions which the BNF is out of compliance with include:

• 1992 amendments to the National Historic Preservation Act to ensure consultation with appropriate Indian tribes for the management of religious and cultural properties (Section 101).

• The Native American Graves Protection and Repatriation Act of 1990 and 1995 implementing regulations that require the Forest Service to consult with Indian tribes when Native American human remains and certain cultural objects are identified in the agency’s archaeological collections or are discovered during the course of federal actions.

• 1996 Executive Order #13007 that requires federal agencies to protect and make accessible Indian sacred sites on public lands for Indian religious practitioners. This includes consultation with Indian tribes for the identification of sacred sites, and for when federal actions or policies may restrict access to or use of a ceremonial site, or may adversely affect the physical integrity of the site.

Box O: Assessing the Practicality:

This indicator can be measured repeatedly and tracked over time and in doing so can provide valuable information on the extent to which forest managers are meeting Aboriginal and Treaty obligations. The measure should be neither too costly or difficult to measure and would be relatively easy to track over the long term.

Box P: Assessing the Information Value:

By its very definition, this indicator provides a high information value about not just what Aboriginal and Treaty obligations exist but the extent to which these legal obligations are being met. Information obtained from this indicator could immediately change the course of forest management activities and that sense is immediately useable.

Box Q: Overall Assessment:

Accepted.

The strengths of this indicator are that it provides an assessment of the most basic and clearly defined Aboriginal and Treaty rights. An assessment of this indicator shows whether at this level, the forest management unit is addressing their fundamental obligations to Aboriginal peoples.

The weaknesses of this indicator are that Aboriginal and Treaty rights are fluid and point in time assessments may change quickly.

Box R: Did you rewrite or revise to a new indicator. If so what?

No

Box S: References:

• Canadian Council of Forest Ministers. 1997. Criteria and Indicators of Sustainable Forest Management in Canada. Technical Report 1997. Canadian Forest Service, Ottawa, ON.
• Canadian Council of Forest Ministers. 1996. Criteria and Indicators of Sustainable Forest Management in Canada. Technical Report.
• CIFOR. 1998. Criteria and Indicator Resource Book. Pg. 16. Bogor, Indonesia
• Hanes, R.C. 1995 (DRAFT). American Indian Interest in the Northern Intermontane of Western North America. Social Assessment Report for the Interior Columbia Basin Ecosystem Management Project. ICEBEMP.
• National Aboriginal Forestry Association. 1993. Forest lands and resources for Aboriginal people: An intervenor submission to the Royal Commission on Aboriginal peoples.
• National Aboriginal Forestry Association. 1995. Aboriginal participation in forest management: Not just another "stakeholder."
• National Aboriginal Forestry Association. 1996. Aboriginal forest-based ecological knowledge in Canada.
• Notzke, Claudia. 1994. Aboriginal peoples and natural resources in Canada. Captus University Publications.
• Prabhu, R., Colfer, C. J. P., Venkateswarlu, P., Lay, C. T., Soekmadi, R. and Wollenberg, E., 1996. Testing Criteria and Indicators for Sustainable Management of Forests: Phase I Final Report. CIFOR Special Publication, Bogor, Indonesia.
• USDA-Forest Service. 1997. Preliminary Analysis of the Management Situation: Summary. The 1997 Southwest Idaho Ecogroup Forest Plan Revision. USDA Forest Service.