"LEGALIZING" THE GREAT BEAR RAINFOREST AGREEMENTS: COLONIAL ADAPTATIONS TOWARD RECONCILIATION AND CONSERVATION.

• Author: Curran, Deborah

The Great Bear Rainforest (GBR) agreements are heralded as one of the most important conservation initiatives in the world. They are intended to result in the protection of eighty-five per cent of the coastal temperate rainforest landscape on the British Columbia coast and to see seventy percent of the rainforest returned to old-growth forest. A clear terrestrial environmental success, the negotiation process and agreements are equally important for their enlivenment of Aboriginal rights and the governance authority of the Indigenous communities of the central and north coasts within a colonial law context. After stakeholders wrangled largely over the details of ecosystem-based management, First Nations and the provincial government engaged in government-to-government negotiations that are yielding agreement on the exercise of Aboriginal rights across an intact landscape, funding and priority access for First Nations' ventures as part of a conservation economy, and enhanced roles in decision making. In the absence of treaties and in a common law Aboriginal rights and title context, these agreements are a robust example of the movement toward reconciliation. The purpose of this article is to describe how the protection of the GBR and the expression of Aboriginal rights in that process has manifested in colonial law, and to examine these agreements in the context of reconciliation in Canada. While unique and ongoing, as all reconciliation efforts will be, the GBR agreements locate land-based protection and governance at their core. As an applied, ongoing initiative, these agreements give life to the concepts of joint decision making and underscore the nation- and place-specific context of any reconciliation process that must adapt over time.

Les accords de la foret pluviale de Great Bear sont percus comme certaines des initiatives de conservation les plus importantes dans le monde. Ils cherchent a proteger 85% des forets temperees cotieres en Colombie-Britannique, et retourner 75% de cette vegetation a des forets anciennes. Les accords jouent egalement un role important dans la preservation des droits autochtones et la gouvernance des communautes autochtones au long des cotes centrales et nordiques dans un contexte colonial. Apres des debats entre diverses parties prenantes sur les details d'une gestion basee sur l'ecosysteme, les Premieres Nations et le gouvernement provincial ont commence des negociations intergouvernementales sur l'exercice des droits autochtones a travers un paysage intact, le financement et la priorite d'acces pour les initiatives des Premieres Nations dans le cadre de l'economie de conservation, et des roles plus etendus dans la prise de decisions. En l'absence d'un traite, et dans le contexte des droits et titres autochtones en common law, ces accords sont un exemple solide d'un mouvement vers la reconciliation. Le but de cet article est de decrire comment la protection de la foret pluviale de Great Bear et l'expression des droits autochtones dans ce processus se manifestent dans le droit colonial, et d'examiner ces accords dans le contexte de la reconciliation au Canada. Bien que les efforts de reconciliation soient en cours, ces accords maintiennent la protection et la gouvernance basees sur les terres. Cette initiative illustre le concept de prise de decisions conjointes et souligne le contexte specifique aux differentes Nations et a divers endroits auquel il faut s'adapter dans un processus de reconciliation.

Introduction I. Reconciliation in Canada II. Great Bear Rainforest A. Overview: Aboriginal Rights and Title Meet the Global Conservation Movement B. Ecosystem-Based Management 1. Conservancies 2. Biodiversity, Mining, and Tourism Areas 3. Ecosystem-Based Management Operating Areas C. Social Well-Being and the Conservation Economy 1. Conservation Investments 2. Carbon Offsets Sharing 3. Priority Tenures and Licenses D. Decision Making III. Reconciliation as Ecological Restoration and Adaptive Relationships Conclusion Introduction

The coastal inlets and valleys of the central and north coast of British Columbia encompass the largest tracts of intact coastal temperate rainforest in the world. Some six million four hundred thousand ecologically significant hectares in size, (1) these salmon-rich ecosystems support significant wolf and bear populations, including grizzly bear and the unique Kermode bear, (2) as well as monumental cedar, and other iconic ecological features. (3) This terrestrial diversity also sustains marine ecosystem health by spawning millions of salmon each year in the lakes and rivers of the region. (4)

Indigenous (5) communities have governed what is now known as the Great Bear Rainforest (GBR) for thousands of years. These communities are currently constituted, from south to north, as the Wuikinuxv, Heiltsuk, Nuxalk, Kitasoo/Xai'xais, Gitga'at, Haisla, and Metlakatla First Nations. (6) They have always challenged colonial Crown sovereignty, (7) and secured colonial courts' first acknowledgement of commercial Aboriginal rights. (8)

The First Nations of the GBR were engaged in conflicts over fisheries and forestry when environmentalists identified the GBR in the 1990s as the focal point of their next international ecosystem protection campaign. (9) Over the following fifteen years--and under the threat of an international boycott campaign against forest products from British Columbia--a distinctive core of environmental organizations affected forestry companies, First Nations, and the provincial government negotiated strategic land use, consultation, and carbon credit agreements to protect the ecological integrity of this coastal temperate rainforest and to move toward reconciliation between the Crown and Indigenous communities in the region. (10)

The process of coming to the GBR agreements was characterized by a deliberate (and controversial) two-tier structure. The primary stakeholders--the environmental organizations and logging companies--reached a consensus on land use details, and presented their joint recommendations to the province of British Columbia and to the First Nations of the GBR, represented in part by the coalition organizations Coastal First Nations and the Nanwakolas Council. (11) The provincial government and First Nations then considered these recommendations during government-to-government negotiations. (12) The end result shifted the ecological and jurisdictional landscape in British Columbia. As Merran Smith and Art Sterritt explain, "The 'strange bedfellows' approach was powerful: when historically polarized groups presented a solution they had agreed upon, government had virtually no choice but to endorse it and work to make it a reality." (13)

The resulting GBR agreements, some of the details of which are still under negotiation, represent a unique approach to ecosystem protection and reconciliation in Canada, and underscore a commitment to ecological conservation and Aboriginal rights. Based on ecosystem-based management, the GBR agreements have an overall conservation objective of returning seventy per cent of the landscape to old-growth forest through new land use designations and restrictions on logging. (14) The agreements also focus on creating a conservation economy by attracting conservation investments, a carbon credit scheme, and opportunities for First Nations to access forestry and other tenures. Finally, the GBR agreements include an Engagement Framework that sets out governance expectations, in particular a consultation and decision-making process for applications to the provincial government to undertake activities in the GBR landscape. (15)

These elements, agreed to over a fifteen-year time frame and codified in different documents, make up the evolving GBR agreements. Premised on ecosystem protection, they provide a detailed example of an ongoing negotiated reconciliation process in the context of continued, yet circumscribed, colonial management. They also reflect an evolving colonial legal framework surrounding reconciliation, as these same fifteen years spanned the Royal Commission on Aboriginal Peoples, (16) the doctrine of free, prior, and informed consent, (17) the acknowledgement of Aboriginal title in Tsilhqot'in Nation v. British Columbia, (18) and the Truth and Reconciliation Commission of Canada (TRC)'s intense treatise on reconciliation. (19)

The purpose of this article is to set out the colonial legal recognition of the GBR agreements in the context of the evolving definition of reconciliation. Colonial law (20) is understood as the common law and acts of the provincial legislature or of the federal parliament. Colonial law stands in contrast to Indigenous law, which encompasses the existing and evolving laws of each Indigenous community. (21) Keeping those definitions in mind, this article addresses how colonial law changes to bring legal life to agreements between Canada's three constitutionally acknowledged authorities--the provincial, federal, and Aboriginal governments. (22) Stated another way, how does the colonial legal apparatus adapt to "make legal" government-to-government agreements? (23)

The GBR agreements are a complex set of evolving government-to-government commitments and practices that manifest at different scales and between different political and governance entities. They straddle Indigenous and colonial law in that they operationalize a commitment to intertwined ecosystem-based management and shared decision making to a degree that goes beyond the provincial government making amendments to the natural resources, particularly parks and forestry, regimes.

While the GBR agreements and their ecological impacts are unprecedented, their role in reconciling Crown and Indigenous sovereignty is less certain. Part I of this article identifies some of the key themes in the reconciliation jurisprudence and literature, with a specific focus on the TRC's careful attention to...