18 Nov Still can’t see the forest for the timber
Still can’t see the forest for the timber:
Bill 40: Forests (Growing Alberta’s Forest Sector) Amendment Act
In late October, the Government of Alberta introduced Bill 40: Forests (Growing Alberta’s Forest Sector) Amendment Act which proposes some changes to the current Forests Act. Bill 40 has been introduced to the Legislative Assembly and undergone second reading. This means that it is not yet law. If passed as proposed, Bill 40 will come into force on May 1, 2021.
While it has undergone some amendments since its initial enactment, Alberta’s current Forests Act dates from the early 1970s (and retains the tenure and quota framework from an even earlier date). Since that time, there have been fundamental shifts in understanding forests as ecosystems rather than as mere stands of timber. Scientific knowledge and management practices have made significant progress. Do the amendments in Bill 40 do anything to modernize our legislation and move from regulation of timber extraction to ecosystem management of our forests? Can we see the forest despite the timber?
Alberta’s Current Forests Act
As it currently stands, the Forests Act and its regulations are designed to regulate timber extraction. The Act prohibits the cutting, damage or destruction of forest growth on forest lands (i.e. public lands covered with forest growth) unless otherwise authorized under the Act or its regulations. Authorization to obtain Crown timber (i.e. cut and remove trees on Crown land) is granted via one of three types of dispositions:
- forest management agreements,
- timber licences issued to timber quota holders, or
- timber permits.
A forest management agreement (FMA) allows a person to “enter forest land for the purpose of establishing, growing and harvesting timber in a manner designed to provide a yield consistent with sustainable forest management principles and practices” (section 16). These are long term agreements – typically 20 years which can be renewed – between the government and a forest company.
A timber quota allocates either a volume or area of timber (either coniferous or deciduous) which may be harvested by a forest company. This allocation is done via a timber quota certificate which may be issued for up to 20 years (which can be renewed). The holder of a timber quota certificate may not commence harvesting timber until they have been issued a timber licence. Several conditions – including providing a security deposit to ensure performance of obligations – must be met prior to issuance of a timber licence.
Timber permits can take one of three forms: commercial, local or forest product tags. These are short-term dispositions, ranging from 30 days to 5 years. As well, these dispositions allocate relatively small volumes or areas of timber, generally no more than 5,000 m3.
The Forests Act does make some references to “yield consistent with sustainable forest management principles and practices” (section 16). As well, the Act imposes various security, reforestation and other requirements on disposition-holders. However, these requirements reflect a focus on timber management (i.e. ensuring timber supply is renewed for the future) rather than a focus on ecosystem management of forests.
Overview of Bill 40
The introduction of Bill 40, along with the Forest Jobs Action Plan and recent increases to the Annual Allowable Cut, continues along the path of viewing forests primarily as a source of timber. The proposed amendments include addition of preamble statements, changes to definitions, and some changes affecting forest management agreements and timber quotas.
The proposed preamble statements are:
- Alberta’s vast and abundant forests are an important part of the province’s diverse ecosystem that contribute to biodiversity and clean air and water for the benefit of current and future generations of Albertans, including Indigenous peoples.
- Alberta is a world leader in environmentally sustainable forest policies and practices that are grounded in science and based on the principles and practices of sustainable forest management.
- The forest industry is a significant contributor to Alberta’s economy, and the Government of Alberta and the forest industry work together to ensure that the forest industry remains innovative, productive and competitive.
- Security of access to a sustainable timber supply is the basis of the forest industry’s ability to contribute to Alberta’s economic prosperity.
- Government of Alberta recognizes the threat from a changing climate to Alberta’s forests, including the increased risk of wildfires and pests, and the potential of forests to mitigate climate impacts.
- Alberta seeks to manage threats from forests from wildfires and pests, to find opportunities to reduce risks from wildfires to human life and communities, and to promote healthy ecosystems.
While preamble statements may be helpful in the interpretation of a piece of legislation, they do not have legal effect in the same way as provisions in a piece of legislation. In other words, statements in the preamble about “environmentally sustainable forest policies and practices that are grounded in science and based on the principles and practices of sustainable forest management” can help to resolve ambiguities in the legislation. But a legislative provision requiring “environmentally sustainable forest policies and practices that are grounded in science and based on the principles and practices of sustainable forest management” actually mandates that these principles be incorporated into timber dispositions, regulations, planning and so forth.
Changes to definitions include:
- A new definition for timber dues, a new definition for timber quotas, changing the name of management units to forest management units, and eliminating the distinction between coniferous and deciduous timber quotas.
- Changes to the definition of timber disposition to include timber quotas (previously it was only forest management agreements, timber licences and timber permits).
- Language throughout the Act is changed to reflect the above changes in the definitions.
Other changes include requiring standard clauses for all new forest management agreements (section 16(1.1)), and allowing the Minister to cancel or reinstate forest management agreements without Cabinet approval as is currently required (section 25).
Another change is allowing a quota holder, with approval, to harvest without obtaining a licence as is currently required (section 17(5) and 17(6)). New quota harvesting periods of 5 or 10 years are proposed (section 18(5)), currently only 5 year harvesting periods are allowed.
The above changes seem to be concerned with streamlining timber dispositions, particularly timber quotas. Under the changes proposed by Bill 40, timber quotas become a disposition in themselves eliminating the need for a timber licence (with approval of the director). The distinction between coniferous and deciduous timber quotas is also to be removed. While these changes may increase flexibility and expediency for the timber quota holder, it is removing a layer of regulatory oversight (although the pre-conditions for a timber licence mentioned above still apply).
Forest Jobs Action Plan
The GOA’s Forest Jobs Action Plan expresses a “commitment to sustainable, long-term fibre access for forest companies”. In this Plan, as immediate actions to support forest jobs and fibre access for the forest industry, the GOA indicates it will:
- Ensure a more expedient return of wildfire burned areas to productive forests.
- Award currently unallocated portions of approved Annual Allowable Cut through an open and competitive process;
- Explore the enhanced utilization of harvest waste and residual fibre;
- Use superior naturally-occurring seedlings that research indicates are better for the long-term health and resilience of the province’s forests; and
- Work with companies to ensure the best utilization of allocated timber in their forest management plans.
The GOA also indicates in this Plan, an intention for future stakeholder engagement to “help drive innovation and support future actions to support Alberta’s forest industry, forest jobs, and the use of sustainable forest management as a risk mitigation tool to benefit all forested lands”. This Plan references “sustainable forest harvesting practices, designed to mimic natural disturbance patterns” as a means to reduce wildfire risk and mountain pine beetle susceptibility. No other management practices are mentioned in this Plan and the primary focus is on forest jobs and access to fibre by the forest industry.
13% Increase in Annual Allowable Cut
The AAC is the annual amount of timber that can be harvested within a defined forest area. As the name suggests, the AAC is set on an annual basis and in May 2020, the GOA announced it was increasing the AAC by up to 13% (see the Press Release by GOA and summary of Alberta timber quotas).
The Press Release references the Forest Jobs Action Plan and restates the actions to be taken under that Plan. Interestingly, there seems to be some differences in the statements of actions 2 and 5 in the Plan versus the Press Release:
2. Increasing the AAC by harvesting in allocated portions of already approved areas; and
5. Restructuring forest management plans with foresters to better allocate timber.
As can be seen, the Plan did not mention increasing the AAC but that is what actually transpired (action 2). With respect to action 5, this seems to suggest there may be changes to allocations of timber rather than ensuring better utilization by forest disposition holders. This would be a process that would benefit from public input, not just consultation with foresters.
The Press Release also indicates that future stakeholder engagement, in coordination with Ministry of Parks and Environment, is slated to begin in 2021. As well, it states that the “forest management plans are being designed to align with work being done by the caribou sub-regional taskforce planning” (for more information on caribou see Shaun Fluker’s post).
How to see the forest despite the timber?
Forests are more than stands of timber and support more than just the forest industry. Forests are valuable for habitat, climate change mitigation (carbon sink), and numerous cultural, social and recreational values. Forests can be managed and regulated with these values in mind, not simply as timber stands, using ecosystem-based management.
Ecosystem-based management adopts science based principles and considerations such as connectivity, linear and spatial thresholds, species at risk, adaptive management, and incorporation of a range of management intensities from protected areas to areas for quiet recreation and low-impact uses to areas for timber management. As well, opportunities for meaningful public consultation and participation, mechanisms for community management, and effective monitoring and enforcement tools are important aspects of managing forests (as opposed to timber stands).
While Bill 40, as proposed, gives a small nod to forests as an “important part of the province’s diverse ecosystem that contribute to biodiversity and clean air and water for the benefit of current and future generations of Albertans, including Indigenous peoples” and “environmentally sustainable forest policies and practices that are grounded in science and based on the principles and practices of sustainable forest management”, it is a very small nod indeed. There are no new provisions proposed to require policies and practices grounded in science to integrate our knowledge of ecosystem function into determining timber supply and forestry practices; no requirements to consider biodiversity (or perhaps more concerning, species at risk), clean air and water prior to issuing timber dispositions; and no requirements to include Indigenous or community involvement in forest management. Bill 40 stays on the current path of looking at forests as stands of timber. It is time to step off that path to see the forest despite the timber.
The ELC’s forest project has been made possible through the support of the
Arnie J. Charbonneau Foundation and the Edmonton Community Foundation.
ABOUT THE ENVIRONMENTAL LAW CENTRE:
The Environmental Law Centre (ELC) has been seeking strong and effective environmental laws since it was founded in 1982. The ELC is dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in Alberta. The ELC’s mission is to educate and champion for strong laws and rights so all Albertans can enjoy clean water, clean air and a healthy environment. Our vision is a society where laws secure an environment that sustains current and future generations.
As a charity, the Environmental Law Centre depends on your financial support. Help us to continue to educate and champion for strong environmental laws, through tools such as our blog and all of our other resources, so that all Albertans can enjoy a healthy environment. Your support makes a difference.
Donate online today