Changes made to Alberta’s forest laws in May 2021 but has anything really changed?

28 Oct Changes made to Alberta’s forest laws in May 2021 but has anything really changed?

Earlier this year, changes were made to the Forests Act, to some regulations and to a couple of forest standards. What do these changes mean? And do these changes reflect the fundamental shifts in understanding forests as ecosystems which have occurred since the 1970s (the date of the current Forests Act)? How can Alberta’s laws and policies be changed to manage for the numerous environmental, cultural, social, and recreational values of forests rather than primarily managing for a sustainable timber yield?

What changed earlier this year?

Late in 2020, the government introduced Bill 40: Forests (Growing Alberta’s Forest Sector) Amendment Act which introduced a number of changes to the Forests Act, many of which came into force on May 1, 2021 (see our blog about Bill 40 here). It should be noted that the additions and changes to sections 5, 16, and 77 – which relate to the requirement for standard clauses in all new forest management agreements – have not yet been proclaimed into force.

The changes to the Forests Act which have come into force include the addition of preambles to the legislation and some definition changes. As well, it will now be possible for timber quota holders to harvest without requiring a license (previously both a quota and a license were required). Many of the changes to the Forests Act seem concerned with streamlining timber dispositions especially timber quotas.

In conjunction with the changes to the Forests Act, there were changes to some regulations. Effective, May 1^st, the Timber Regulation (which set out some forms and fees to be used for forestry operations) and the Scaling Regulation (which addressed the measurement of timber harvested, primarily for the calculation of charges and dues) were repealed.  The Scaling Regulation was effectively replaced by the Forests (Ministerial) Regulation.

As well, numerous amendments were made to the Timber Management Regulation (TMR). These amendments include changes to timber quotas to align with new Forests Act provisions, some changes to the language around community timber permits, and new schedules outlining rates of timber dues.  As well, changes were made to section 100 of the TMR which is the provision that broadly sets out the rules for timber operations (i.e. must comply with approved annual operating plan and rules established by the Minister). The changes to section 100 set out additional requirements for submission of plans and providing records/document, and to use timber in accordance in accordance with the timber disposition utilization standard (previously, section 100 required only avoiding excessive waste). The former requirements to cut timber progressively and to cut all timber at height not more than 30cm above ground level have been removed from section 100.

In addition to changes to the Forests Act and some of its regulations, there were some changes to the Reforestation Standard of Alberta and the Scaling Standards of Alberta effective May 1, 2021. With respect to the Reforestation Standard of Alberta, this document is subject to frequent modification and a summary of historical changes is provided in Section 1 (pages 19 to 34). The Scaling Standards of Alberta is a document that sets out the technical requirements and standards for measurement of harvested timber (and the changes effective May 1, 2021 update the previous version from 2006).

Do any of these changes reflect a shift to understanding forests as ecosystems?

Not really.

Although one of the new preambles to the Forests Act mentions promoting “healthy ecosystems”, this is not carried through the provisions of the Act or its regulations. The primary focus of Alberta’s forest laws and policies remains managing forests to achieve a sustainable timber yield. This does not mean there is absolutely no consideration for other values (such as water) but the primary focus historically has been and remains sustainable timber yield.

Despite the recent amendments, there remains significant discretion in determining Annual Allowable Cuts, setting standards and requirements, and making other decisions relating to forest management.  The only guidance provided by the Forests Act is the concept of sustainable forest management which, in practical terms, has been interpreted to mean management to ensure a sustainable timber yield.

What is ecosystem-based management in forestry?

EBM is a fundamental shift in forest management from a primary focus on sustaining timber supply to recognizing the value of forests as ecosystems. The overarching goal of EBM is to maintain ecological integrity with the specific goals of maintaining viable populations, ecosystem representation, protecting the evolutionary potential of species and ecosystems, and accommodating human use in light of the foregoing goals. This differs from the current forest management approach which is focused on maximizing goods and products for human consumption.

The components of EBM can be distilled into 3 key points:

• The primary goal of management is ecological health and integrity.
• Science-based decision-making – including the adoption of adaptive management and the precautionary principle – is crucial.
• Natural ecosystem dynamics should be used as a template for management.

Because humans and our activities are part of the forest ecosystem, EBM also requires meaningful public consultation and participation; indigenous consultation, participation and management; and opportunities for community management. As well, effective monitoring and enforcement tools are important aspects of managing forests.

How to incorporate ecosystem-based management into Alberta’s law and policy?

Obviously shifting the forest management focus from sustaining timber supply to maintaining ecological health and integrity will need to be reflected in Alberta’s forest law and policy. How can this be accomplished?

The primary goal of management is ecological health and integrity

The current Forests Act makes reference to “sustainable forest management” and to “establishing, growing and harvesting timber in a manner designed to provide a yield consistent with sustainable forest management principles” (Forests Act, preamble and section 16). Although a few forest policy documents and requirements reveal some ecologically-based requirements, the legislated and primary goal of forest management in Alberta is a sustainable timber supply. To shift to EBM, the Forests Act should be amended to expressly state that the goal of forest management is to allow timber harvesting only in a manner that maintains the ecological integrity of Alberta’s forests. Administration of the Act, as well as decision-making under the Act, should be guided by a requirement to maintain ecological integrity of the forest. Furthermore, the Forests Act should be amended to include a definition of ecological integrity and EBM.

Science-based decision-making is crucial

In deciding how forests should be managed, knowledge of the ecological and biodiversity of forests and associated values that are intended to be sustained play a major role. This means science-based decision-making is essential for effective EBM. Where knowledge is limited, the concepts of adaptive management and the precautionary principle play a role in EBM by addressing scientific uncertainty.

Adaptive management is a structured process of learning by doing and adapting based on those lessons.  As understanding increases, management strategies and decision-making are adjusted. It is important to note that this is NOT a matter of trial and error but rather is a structured process with clearly articulated objectives, close monitoring, and feedback into decision-making. It is important to note that an adaptive management approach is not appropriate for all management decisions (for instance, where there is little uncertainty as to the impact of a particular management decision).

Another principle for lack of scientific knowledge is the precautionary principle which provides that the absence of full scientific certainty should not be used as a reason to postpone decisions where there is a risk of serious or irreversible harm.

The Forests Act should be amended to include a provision requiring administration and decision-making under the Act to adhere to the principles of scientific integrity, honesty, objectivity, thoroughness, and accuracy. Further, both adaptive management and the precautionary principle should be adopted in the Forests Act as guiding management principles to achieve ecological health and integrity in Alberta’s forests. This requires a degree of discretion to allow flexible decision-making (although such discretion needs to be bounded by the other principles of EBM, and the goal of maintaining ecological health and integrity) and recognition that adaptive management may result in reduced timber yield in order to address ecosystem concerns.

Natural ecosystem dynamics should be used as a template for management

Human activity on the landscape impacts the natural dynamics of an ecosystem. This is especially obvious where there are large-scale changes to the landscape through industrial logging. In order to accommodate human activity but still achieve ecological health and integrity, many EBM principles centre on the idea of using natural ecosystem dynamics as a template for management. These include connectivity, retaining complex habitats, setting liner and spatial thresholds, ensuring soil and watershed protection, protecting species at risk, maintaining a natural range of variation, and respecting ecological boundaries.

Each of these principles should be incorporated into legislation as guidance for decision-making and planning. In practical terms, these need to be implemented in detail via regulation, standards and other policy documents. For each of these principles, specific goals and measurement parameters need to be set.

As an example, with respect to species at risk, the importance of forests as habitat for species at risk should be expressly acknowledged in the Forests Act. Further, management, conservation, and recovery of species at risk should be integrated into forest management planning and decision-making. Forestry operations should be required to adhere to habitat-related requirements in both federal and provincial recovery plans, recovery strategies, action plans, conservation plans, and management plans. It should be required that roads and harvesting activities avoid sensitive and critical habitat, as well as areas prone to soil loss and difficult to reforest.

Humans are part of the Ecosystem

Recognizing the role humans play in ecosystem is an integral part of EBM. This means that things such as meaningful public consultation and participation; consultation with Indigenous communities; and opportunities for community management should be incorporated into the Forests Act.

Currently, the Forests Act does not require public participation in decision-making around forest tenure, forest management, or forest operations (although there is some scope for participation in forest management planning in the Planning Standard).  Nor does the Forests Act expressly acknowledge the provincial government’s constitutional duty to consult with Indigenous peoples in the context of forest management decision-making.  In this regard, the Alberta Government should consult Indigenous peoples to determine the content of the Forests Act including its appropriate reflection of treaty and Indigenous rights.  The possible forms of tenure are limited with no express provision for Indigenous management or community-based tenure and management.  These shortcomings should be addressed with amendments to the Forests Act.

As with any regulatory system, effective monitoring and enforcement tools are important aspects of EBM of forests. Currently, the focus of monitoring and enforcement under the Forests Act is on reforestation and regeneration to sustain the timber supply.  There should be requirements to monitor ecosystem components beyond timber such as water, soil and biodiversity. As well, monitoring should be designed within the context of adaptive management to allow planning and operational decisions to be responsive to monitoring results. Other mechanisms such as third-party audits and monitoring should be adopted to ensure EBM principles are being adhered to in forestry operations.

The Moose Lake Access Management Plan, a promising model?

While not necessarily intended to be a comprehensive EBM plan for a specific ecosystem, the  Moose Lake Access Management Plan, which was completed earlier this year, has elements which reflect an ecosystem approach. The plan is intended to be incorporated in the Lower Athabasca Regional Plan as a subregional plan for the larger Moose Lake watershed and, in the interim, has been adopted as policy. The plan applies to all Crown lands in a specified Moose Lake 10km zone (referred to as the 10KZ) and includes portions of the Birch Mountains Wildland Provincial Park and portions of the Red Earth Caribou Range.

While the primary activity in the 10KZ and surrounding area is bitumen extraction, forestry operations are also important (there is an FMA with an embedded conifer timber quota that covers 48% of the 10KZ).   The plan limits the total amount of buffered footprint for industrial resource development to 15% (15,537 ha) with disturbance limits allocated by resource sector. Developers are required to manage their development footprints within acceptable parameters by measuring interior habitat along with sector-specific components of land and footprint management actions with interior habitat being the percentage of native terrestrial and aquatic cover that is a specified distance from development footprint (i.e. specified distance is the buffer).

The forestry industry is allocated a 1,500 ha buffered footprint within the 10KZ.  Within each sector, individual companies are granted an allocation during the application stage.  There is an overage credit of 2,303 ha for the sectors of forestry, oil and gas, and aggregate combined (overage credit is defined as the “additional hectares of buffered footprint allocated to a company from the unallocated pool if its allocation is insufficient to proceed with its project”).  The overage credit may be allocated to a sector by Alberta Environment and Parks which determines whether overage credits can be allocated, how much a sector can receive, and the duration for which credits are allocated.

Aside from the buffered footprint allocation, there are specific requirements for the forestry industry within the 10KZ:

1. Accountable for forest harvest areas and related roads (i.e. used to calculate the footprint under the disturbance limit). Forest management activities not related to timber harvest (such as forest health and fire prevention) are not counted toward the sector allocation.

• Footprint associated with forest harvest will not be attributed to forestry where it overlaps with buffered footprint from more permanent activities (like persistent access roads).
• Must adhere to management objectives identified in the applicable forest management plan.  As well, commercial forest harvesting must align with the forest management plan’s spatial harvest sequence, general development plans, and the Northeast Alberta Timber Harvest Planning and Operating Ground Rules.
• The forestry operators must engage with overlapping and/or adjacent energy sector companies during the oil sands planning phase to align operations, manage footprints, and ensure effective use of merchantable timber that will be removed for oil sands operations.

The plan sets out recovery milestones and as they are met, the buffer is reduced and eventually the footprint is removed.  This is meant to incentivize reclamation and recovery by giving new footprint to work into.  For the forestry industry, the recovery milestones are:

1. Reforestation complete as per Reforestation Standard of Alberta = 50% buffer reduction.
2. Establishment survey complete as per Reforestation Standard of Alberta =100% buffer reduction.
3. Performance survey complete as per Reforestation Standard of Alberta = footprint removal.

The approach taken in the Moose Lake Access Management Plan is promising, seeming to reflect an intention to manage on an ecosystem basis. The plan manages the variety of activities that may occur within a particular ecosystem and addresses disturbance footprints on a cumulative basis which is one proxy for measuring ecosystem health (in particular, habitat and its relationship to biodiversity). Outcomes and management actions for other ecosystem components within the 10KZ: air quality, water quality and quantity, wetland abundance and health, and fish and wildlife management are also established in the Moose Lake Access Management Plan, as are governance and implementation requirements. This plan contrasts with the standard approach of regulating and managing activities in a discrete manner which tends to fail at managing cumulative effects and does not consider the ecosystem as a whole.

The ELC’s forest project has been made possible through the support of the
Arnie J. Charbonneau Foundation and the Edmonton Community Foundation.

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