ASI Complaint Investigation Report PUBLIC SUMMARY

ASI Complaint Investigation Report PUBLIC SUMMARY Grand Council of the Crees (Eeyou Istchee)/ Cree Regional Authority (GCCEI/CRA) complaint against Rainforest Alliance Regarding: Rainforest Alliance s decision to close Major non-conformance #25/12 At RA-FM/COC-005956 7 APRIL 2014 1/11

Table of Contents 1 Summary... 3 2 Background... 3 3 Investigation... 5 4 Conclusions... 11 5 Follow up... 11 For inquiries about this report, please contact: Angeline Robertson, Compliance Coordinator a.robertson@accreditation-services.org ASI Accreditation Services International GmbH Friedrich-Ebert-Allee 69 53113 Bonn Germany/ Deutschland T +49 (0) 228 227 237 34 F +49 (0) 228 227 237 30 info@accreditation-services.com www.accreditation-services.com Geschäftsführer/Director: Guntars Lagūns Sitz der Gesellschaft/Registered Office Bonn, Germany Handelsregister/Commercial Register: Bonn HRB 13790 2/11

1 SUMMARY This ASI complaint investigation report (public summary) responds to a formal complaint lodged by Mr. Bill Namagoose of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority (GCCEI/CRA) against the evaluation of the certification body Rainforest Alliance (RA) of their forest management certificate holder in Québec, Canada on certificate # RA-FM/COC-005956. ASI examined GCCEI/CRA concerns against the National Boreal Standard (FSC-STD-CAN-03-2004) and the FSC accreditation requirements (FSC-STD-20-007 V 3-0) to determine if Rainforest Alliance was in compliance in their assessment and decision-making. After reviewing information supplied by both the complainant and Rainforest Alliance, ASI found that Rainforest Alliance did not draw the proper conclusions from their evaluation of Principle 3 1, criteria 3.1 2, indicator 3.1.2 3 of the National Boreal Standard in their assessment. 2 BACKGROUND In this complaint, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority (GCCEI/CRA) dispute Rainforest Alliance s decision to close major non-conformance #25/12 in their Corrective Verification Audit Report (CVA MAR 2013). This major non-conformance is against indicator 3.1.2 of the National Boreal Standard. Major non-conformance #25/12 was originally issued on 28 Sept. 2012 because Cree values were not being taken into account in forest operations in the Mistissini height of land. It was issued in response to an earlier GCCEI/CRA complaint about Rainforest Alliance s decision to award FSC certification on the FMU. This objection was specifically in relation to forest harvesting in forest management unit 025-51, which includes the Mistissini height of land. This region covers approximately 20% of the forest management unit, or 550,776 ha. The GCCEI/CRA claim land and use rights in this region and had previously given consent to forest practices there so long as they conformed with the Baril-Moses Agreement. This agreement, forged in 2002 as part of the Paix de Braves Agreement, outlined an adaptive forest management regime designed to protect Cree trap lines from over harvesting. Cree Consent to forest practices in the region were withdrawn in January 2012 on the suspicion that forest harvesting was negatively impacting Cree values and operating in violation of the Baril-Moses Agreement. The crux of the Cree complaint to Rainforest Alliance was there should be no FSC certification without first obtaining the free and informed consent of the Cree, which includes mitigating the negative impacts of forest harvesting on Cree values. In the Forest Management Certification Assessment Report for RA-FM/COC-005956 of 30 May 2012 (hereafter referred to as the main assessment), Rainforest Alliance also issued minor non-conformities #01/12, #03/12, and #04/12 in relation to First Nations engagement and consultation in forest management planning. Minor non-conformance #01/12 cites indicator 3.1.2 and asserts non-conformance with this 1 Principle #3: Indigenous Peoples Rights states The legal and customary rights of indigenous peoples to own, use and manage their lands, territories, and resources shall be recognized and respected. 2 Criterion 3.1 states Indigenous peoples shall control forest management on their lands and territories unless they delegate control with free and informed consent to other agencies. 3 Indicator 3.1.2 states The applicant obtains agreement from each affected Indigenous community verifying that their interests and concerns are clearly incorporated into the management plan. Such agreement will also include: A description of the roles and responsibilities of the parties; The interests of the parties; A description of appropriate decision-making authorities for all parties; A dispute resolution mechanism; and Conditions under which consent has been given and under which it might be withdrawn, if any 3/11

indicator for all affected Aboriginal communities in the territory, meaning that there was some level of agreement with some the First Nations at the time of the audit, but not all. The Cree had not indicated agreement or satisfaction with process towards agreement. The Cree submitted evidence in April 2013 that substantiated their claims that forest harvesting was negatively impacting their trap lines. The Cree found that some of their trap lines were being harvested over the 40% threshold stated in the Baril-Moses Agreement. Rainforest Alliance reviewed the case and found that because of new evidence supplied by the Cree that verified the breach of the Baril-Moses Agreement, the Forest Management Enterprise (FME) operating RA-FM/COC-005956 was in non-conformance with indicator 3.1.2. At that point, Rainforest Alliance issued major non-conformance #25/12 with the requirement to mitigate the negative impacts on Cree values by adapting forest management practices to better protect Cree resources until a new and more permanent forest management plan was elaborated. After efforts were undertaken by the FME to mitigate these impacts, and considering various aspects of this complex issue, Rainforest Alliance concluded in March 2013 that the FME was in again in conformance with indicator 3.1.2. The GCCEI/CRA disagreed with this decision and submitted a complaint to ASI. A key part of resolving this complaint is understanding the root cause of the non-conformance. In the case of the major non-conformance #25/12, the root cause is lack of agreement (covered under indicator 3.1.2). Rainforest Alliance initially issued a minor non-conformance against the FME on indicator 3.1.2 in the main assessment regarding lack of agreement with the Cree- the same root cause as major non-conformance #25/12. In RA s Complaint Investigation Audit Report issued 28 September 2012, Rainforest Alliance defend their decision to issue a minor non-conformance on indicator 3.1.2 instead of a major, giving the following reasons: 1) The intent box on Criteria 3.1 allows for best efforts to achieve consent to be considered in the audit in lieu of formal agreement. 2) The FME s discussions with other First Nations whose traditional territory covers 100% of forest management unit 025-51 were resuming and the First Nations showed support for the FME s forest management practices. 3) This First Nation was not in agreement with the Cree over the forest practices outlined in the Baril- Moses Agreement because the agreement called for small mosaic clear cuts that favor moose habitat while the Quebec Ministry of Natural Resources, the FME, and the First Nation prefer an ecosystemic approach outlined in the Loi sur l'aménagement durable des forêts that minimizes impact on woodland caribou. Rainforest Alliance believes that this latter approach is also more aligned with Principles 6 and 9 of National Boreal Standard. 4) The Cree were not involved in much of the assessment process although they were invited to participate and present concerns. Thus, they did not present their concerns in a manner that allowed the auditors to fully grasp the extent and nature of the problem. Specifically, Rainforest Alliance asserts that evidence that the FME s forest practices did not align with the Baril-Moses Agreement was not supplied to Rainforest Alliance until very late in the audit process (see Appendix 1: Chronology of the Case). 5) RA received legal advice from the Quebec Ministry of Natural Resources that cast doubt on the legal validity of the Baril-Moses Agreement and therefore the extent to which the government and THE FME needed to accommodate the provisions outlined therein. 6) RA saw evidence that despite the conflict over forest management practices between the Baril- Moses Agreement and the new forestry regime, the FME and the Quebec Ministry of Natural Resources were trying to accommodate some of the provisions of the agreement, specifically related to decreasing logging around Cree trap lines. The Cree disagree with the reasons stated above. Overall, the GCCEI/CRA see the case as (1) the FME has failed to adhere to provisions of the Baril-Moses Agreement, (2) adherence to all provisions of the Baril- Moses Agreement is a precondition of the Cree s free and informed consent, (3) recent amendments made to the current management plan are meeting some, but not all provisions of the 2002 Baril-Moses 4/11

Agreement and thus (4) free and informed consent has not been given by the Cree, and therefore the FME is not in compliance with the National Boreal Standard in the following areas: A) Principle 1: A violation of Criteria 1.1 in that local laws and administrative requirements were not respected, A violation of Criteria 1.3 in that binding international agreements were ignored (citing several articles of the United Nations Declaration on the Rights of Indigenous Peoples), and A violation of Criteria 1.4 in that without legal resolution of the applicability of the Baril-Moses Agreement there is a conflict between laws and regulations and FSC Principles and Criteria. B) Principle 4: A violation of Criteria 4.4 in that the FME did not adequately consult with the Cree C) Principle 3: A violation of indicator 3.1.2 in that no agreement has been obtained from each affected Indigenous community. 3 Investigation 3.1 Evaluation of Principle 1 of the National Boreal Standard Did Rainforest Alliance evaluate the criteria listed under Principle 1 correctly and did they draw the right conclusion from the evidence that was collected? The legal validity of the Baril-Moses Agreement The question of the legal validity of the Baril-Moses Agreement was a consideration in RA s decision to close major non-conformance #25/12. Their rationale was that the validity of the agreement was up to the courts to decide and therefore precluded assessment under Principle 1. They base this on two major points: i) Incompatibility of the requirements between the Baril-Moses Agreement and the provisions of the Loi sur l'aménagement durable des forêts 4 : Principle 1 requires that all applicable laws be respected. If we assume that the Baril-Moses Agreement is law, then this is a legal question that falls under the purview of the court system and not the FSC system. ASI finds that Rainforest Alliance was correct in this assessment. ii) Legitimacy of the Baril-Moses Agreement in the eyes of other First Nations with overlapping traditional territory: This is also a topic for high-level negotiations between First Nations and provincial and federal governments. The FSC system cannot prioritize the rights of one indigenous group over another. Under the FSC system, the certificate holder is ultimately responsible for compliance with the standard. In an ideal world, agreements would be in place between indigenous groups prior to certification as part of the free and informed consent process. Barring that situation, the certificate holder should be assessed as to their ability to consider all values in their forest management plans. Rainforest Alliance assessed the FME in the latter manner when they issued NCR #25/12. However, given that the legal validity of the Baril-Moses Agreement was a major consideration in RA s decision to close major non-conformance #25/12 5, there is concern with the efforts that Rainforest Alliance undertook to collect evidence in this regard. Namely, Rainforest Alliance consulted the Quebec Government for expertise on the legal status of the Baril-Moses Agreement but could not share this legal 4 This new law changes the direction of forestry to an ecosystemic approach that is not aligned with the provisions of the Baril-Moses Agreement. What follows is a breakdown in the implementation of the Baril-Moses Agreement by the FME and the Quebec Ministry of Natural Resources. 5 Rainforest Alliance concluded in the CIA Report of April 5, 2013 that It is clear that what the Cree require to give consent is no longer allowed by law 5/11

opinion with the GCCEI/CRA. Additionally, Rainforest Alliance did not seek an independent legal opinion with expertise in aboriginal law in Canada to confirm or deny the conclusions of the government. The Government of Quebec is one side of ongoing government-to-government negotiations with the Cree Nation and therefore their opinion in the matter, while informed and important, cannot be taken without further evidence. Rainforest Alliance should have sought independent legal advice if they wanted to consider the question of the legal validity of the Baril-Moses Agreement in a balanced way. Furthermore, the intent of Principle 1 also covers the degree to which an applicant is living up to the terms of other types of agreements, such as memoranda of understanding and agreements with Indigenous peoples and other customary or traditional land users, and administrative requirements for consultation. Throughout this principle, emphasis will be placed on both published statements of intent and actions that have been undertaken. This suggests that despite the questions regarding the validity of the Baril-Moses Agreement as a legal agreement, there is space in the standard to consider it as an MOU or an agreement with indigenous peoples and assess the intent and actions of the certificate holder against the provisions of that agreement. In this case of the legal agreement argument, the agreement was made between the Quebec Ministry of Natural Resources and the GCCEI/CRA, and not with the FME. The degree to which the FME is therefore responsible to uphold that agreement is related less to the requirements of Principle 1 and more to how the FME and the Cree considered it an agreement between them that qualified as free and informed consent under Principle 3. The lack of such an agreement is the focus indicator 3.1.2. See section 3.3 for more discussion. Consultation and partnership- building activities There is evidence that the FME followed the Baril-Moses Agreement until 2010 when the Loi sur l'aménagement durable des forêts came into effect. At that point, the Cree claim they were unaware of the impact that this new law would have on their agreement and were not notified of any risks to their values. However, the FME claim that they notified the Cree of the changes affecting the management plan and discussed accommodations starting in 2010. Letters from the FME to the Cree (see Appendix 1: Chronology of the case) show that the FME contacted the Mistissini Cree in December 2010 notifying them of plans to pursue FSC certification (14 December 2010) and also that the current Forest Management Plan (2008-2013) for forest management unit 025-51 was being updated (21 December 2010). They provided a window of 24 days for Cree to give input. The short length of the window to comment on the update and the fact that it was over the holiday season are not best practice for consultation over changes to the forest management plan that would have a direct impact on Cree values. ASI finds that there is some evidence to the Cree claim that the impacts to their values were not properly disclosed and that the FME did not show an appropriate level of consultative and partnership-building activity. Indicator 1.1.6 covers this issue and the relationship of 1.1.6 to indicators 3.1.1 and 3.1.2 is stated plainly in the standard 6. Rainforest Alliance claims that issues of consultation and partnership building were picked up in the audit under the minor non-conformities on Principle 3 because the root cause was the lack of agreement (3.1.2). ASI agrees with RA s assessment. See the section 3.3 for more discussion. United Nations Declaration on the Rights of Indigenous Peoples Regarding Criterion 1.3, the United Nations Declaration on the Rights of Indigenous Peoples is not a binding international agreement in the sense of 1.3. This Declaration was supported in Canada in 2010 and certificate holders are required to meet the provisions of the declaration through compliance with Principle 3 of the National Boreal Standard. In the case at hand, Criterion1.3 is not violated. Conflicts between laws and regulations and the FSC Principles and Criteria 6 Indicator 1.1.6 states The applicant s performance record demonstrates an appropriate level of consultative and partnership-building activity. (Indicators 3.1.1 and 3.1.2 are complementary to 1.1.6.) 6/11

As far as Criterion 1.4 is concerned, this criterion applies when there is a conflict between laws & regulations and the FSC Principles and Criteria. Where there is an inconsistency between an FSC Principle or Criterion and an applicable law, regulation, or other requirement, the intent of 1.4 states that the applicant is expected to obey the legal requirement and note the conflict for FSC to take action on. FSC may choose to take action promptly to initiate negotiations with the appropriate government or other organizations to harmonize the legal system and the FSC standard, or FSC may build up a case file before proceeding. In the case at hand, Criterion 1.4 is not violated as the conflict is between the Baril-Moses Agreement and the Loi sur l'aménagement durable des forêts neither of which are FSC Principles and Criteria. 3.2 Evaluation against Criterion 4.4 Did Rainforest Alliance evaluate the indicators under Criterion 4.4 and did they draw the right conclusion from the information they collected? Consultation and proper disclosure In their complaint to ASI dated May 15, 2013, the GCCEI/CRA maintain that although forest management consultations with the Cree did occur on occasion between 2002 and 2007 for this FMU (025-51), there has been little interaction between the FME, the Government of Quebec, and the Cree since then. The seriousness in this breakdown of communication is exemplified by the Quebec Ministry of Natural Resources failure to notify the GCCEI/CRA of its authorization of forest management plans prepared by the FME that were in breach of provisions of the Baril-Moses Agreement sometime between 2008 and 2010. By the GCCEI/CRA account, the lack of communication or consultation with the Cree regarding this conflict continued until late 2010 when the FME began preparing for its FSC pre-audit. Renewed communications in the form of 5 meetings on the issue of adapting the Baril-Moses Agreement to accommodate the Loi sur l'aménagement durable des forêts occurred from January- April of 2011- showing the FME to be willing to seek solutions with the Cree and, by RA s assessment, the GCCEI/CRA showed willingness to find a solution to this issue as well (CVA Report MAR 2013). Communication broke down by the end of 2011 because the Cree suspected that their trap lines in the Mistissini Height of Land were being negatively impacted by the FME s forest operations. The Cree withdrew their participation in the audit and stopped negotiations on the protocol for engagement in January 2012 because they lacked a proper portrait of the impact of forest harvesting on their trap lines (see Appendix 1: chronology of the case). These circumstances indicate a minor non-conformance with indicator 4.4.3 7. While the FME s engagement with other First Nations in the certified area was satisfactory, the state of the FME s engagement with the Cree does not suggest that significant efforts were made to contact Indigenous forest users and communities affected by or interested in forest management in the area under certification, which is a requirement of indicator 4.4.3. Lack of proper disclosure played a significant role in the inflation of the issues in this complaint. Rainforest Alliance indicated that this was handled in the minor non-conformance #01/12 on indicator 3.1.2 and ASI accepts that the lack of agreement is a root cause for issues with proper disclosure. See section 3.3 for further discussion. 7 Indicator 4.4.3 states The applicant shall demonstrate through documentation that: Significant efforts were made to contact Indigenous forest users and communities affected by or interested in forest management in the area under certification; Efforts were made to work with Indigenous forest users and communities to become involved in identifying and addressing forest-related issues; That Aboriginal and treaty rights were recognized consistent with the requirements of Principle 3; and, Agree that Indigenous Peoples' participation will not prejudice those rights. 7/11

3.3 Evaluation of the Indicator 3.1.2 Did Rainforest Alliance evaluate indicator 3.1.2 correctly and did they draw the right conclusions from the information they collected? Cree participation in the audit By RA s own admission (RA Complaint Investigation Audit Report, issued 28 September 2012): Because of their nonparticipation throughout most of the original assessment, Cree issues were not at the forefront of the audit team's conclusions. However, it is clear that the GCCEI/CRA communicated to both the FME and Rainforest Alliance in January 2012 and again in March, April and May of 2012 that they were unable to participate in the audit. This was precisely because they felt that it would not be informed participation so long as they lacked confirmation that the Baril-Moses Agreement had been upheld and would be upheld in future management plans. The GCCEI/CRA communicated that they had firm suspicions that forestry practices in the region had not been conforming to the provisions of Baril-Moses Agreement and that this would continue to happen under the next Annual Forest Management Plan (in 2014) though data needed to confirm this was lacking. The GCCEI/CRA formally requested the data needed to confirm or deny their suspicions from the Quebec Ministry of Natural Resources in December 2011, but they didn t receive this data until April 2012. The data confirmed the GCCEI/CRA suspicions. By then, the audit had occurred and the opportunities for the Cree to be consulted on the case were much reduced. The GCCEI/CRA presented the evidence to Rainforest Alliance in an email on April 19 th, 2012. They requested consultation on May 4 th, 2012, in light of the new information, and stated that they felt the FME was not in compliance with Principles 1 and 3 of the National Boreal Standard. RA s response was that the GCCEI/CRA had an opportunity to participate before but chose not to, and that Rainforest Alliance could not embark on an in-person consultation at that point in the assessment (early May 2012). They felt that the issues put forward by the Cree were reflected in the minor non-conformance #01/12 that they had already issued. They also considered that negotiations between the GCCEI/CRA and the Quebec Government were working to change forest management plans to keep harvesting below the 40% harvesting threshold in order to mitigate the potential negative impact on Cree values. The Cree responded that while they were open to forestry on trap lines where harvesting was below the threshold, neither the amount nor the method of cutting had been agreed to and thus there was so far no agreement. ASI believes that the evidence presented showed that the GCCEI/CRA were diligent in communicating that they were withholding free and informed consent and gave valid reasons why this was the case prior to the audit of February 2012. As well, the Cree provided evidence to substantiate their claims prior to the completion of the audit report in June 2012. The National Boreal Standard states that free and informed consent is key to maintaining the essential dignity and individual/community s right to choose and that includes the right to withdraw: Informed consent involves explicitly and accurately informing a participant in the process, of its potential benefits and risks, the alternatives to participating, and the right to withdraw from the process at any time. Indigenous peoples are not normal stakeholders. When they withdraw from a process and withhold consent it should not be used as grounds for a justification of a minor non-conformance instead of a major. CABs have the responsibility to uphold the essential dignity of the right to choose by recognizing that First Nation s right to withdraw does not negate the requirement of free and informed consent, especially when consent had been granted in the past (as in this case) and there is willingness on the part of the First Nation to come to a new agreement. While some First Nations in this case said yes and some said we are in process the Cree definitely exercised their right in the National Boreal Standard to say no to consent and to participation when they felt their rights were not being recognized and their issues were not being meaningfully considered. While ASI recognizes that Rainforest Alliance attempted to consider the issue, the conclusion the auditors 8/11

drew was incorrect. In RA s own words, The simple fact that the Cree are making it clear that there is no free and informed consent on their part, and that they support this claim with specific information on why this is the case (i.e. a large number of specific trap lines being threatened by more than 40% disturbance and not sufficient 3 meter residual forest being maintained) clearly represents a Major Non-Conformance with Principle 3.1 of the FSC standard (CIA Report, 28 September 2012). ASI agrees with this statement, but finds evidence that the information needed to come to this conclusion was available to Rainforest Alliance before the closure of the main assessment and not, as Rainforest Alliance claimed in the CIA Report, after that report was finalized. Furthermore, while the full responsibility of the Cree s sense of violation of this agreement is not the burden of the FME alone, they are required under Principle 3 to provide proper disclosure about the risks to Cree values stemming from their management plan. ASI finds that Rainforest Alliance should have acknowledged this better in their assessment of Principle 3. The National Boreal Standard asserts the importance of information and disclosure in free and informed consent: Free and informed consent also includes proper disclosure, particularly related to the risks involved to the right being protected. In the Baril- Moses Agreement, there existed a framework for identifying specific Cree values (e.g. trap lines) and assessing the level of disclosure necessary to ensure that Cree understood the risks to those values from forest management. The National Boreal Standard also states key to informed consent is the quality, timeliness and appropriateness of information used to decide consent. Informed consent also requires that the consenter have the capacity to fully understand and integrate the information provided. That the Cree found out after the fact that forest management was impacting their trap lines goes against FSC s concept of free and informed consent as it is embodied throughout Principle 3. Mosaic vs. ecosystemic forest management regimes Given the willingness of the Cree to find a resolution to the incongruence between the Baril-Moses Agreement and the intent of the Loi sur l'aménagement durable des forêts and given that they had in the previous 8 years (2002-2010) freely granted consent to forest management in the Mistissini height of land, ASI is under the impression that the FME has a good opportunity to get the free and informed consent of the Cree in a manner that would not violate species protection and high conservation values embodied in Principle 6 and Principle 9. The Cree are active in caribou conservation in other parts of their territory and express a willingness to apply their learning to concerted efforts in the Mistissini height of land as well. As far back as 2003, they were looking at forest management approaches and questioning the appropriateness for both moose and caribou (e.g. letter from the Council of the Cree Nation of Mistissini to the Minister of Forest, Wildlife, and Parks, Dec. 16 th, 2003). From this evidence, ASI finds that the failure of the Baril-Moses Agreement was fundamental in that it precluded more fruitful discussions that would have facilitated the Cree s continued consent and agreement with the FME s forest management activities. Cree s degree of interest in the forest management unit Finally, Rainforest Alliance state that the Cree claim in FMU 025-51 was only 20% of the land base and therefore their lack of consent is not systematic. This is of little consequence to this case, as that 20% represents over 550,000 ha. In absolute terms, this is a significant area of land for any forest company or First Nation. ASI finds that the relative size of the area claimed by the Cree in the FMU should not have been a measure of the Cree s degree of interest in the FMU or contributed to the decision to issue a minor instead of a major non-conformance. Overall, ASI believes that Rainforest Alliance should have issued a major non-conformance against 3.1.2 during the main assessment. This is based on the 4 points made above: 1. The Cree communicated that they were withholding consent and gave valid reasons why 2. The Cree provided Rainforest Alliance with evidence that their resources are threatened prior to finalization of the main assessment report 3. There is evidence that agreement was obtainable with the Cree, but hampered by lack of proper 9/11

disclosure 4. The assessment of the Cree degree of interest in the FMU was not a valid justification for only raising a minor non-conformance As well, ASI finds agreement with the Cree would have formed the basis for proper engagement and consultation in various aspects of the FME s forest management. It has already been established that lack of agreement was the root cause of issues in indicators 1.1.6 and 4.4.3. Furthermore, agreement underpins compliance with other areas of Principle 3, as well as consultation activities required in Principles 4, 8, and 9. In 2012, the FME was issued minor non-conformities #02/12 (indicator 3.1.4), #03/12 (indicator 3.2.2), and #04/12 (indicator 3.3.2) in Principle 3, as well as minor non-conformance #11/12 for lack of documented support from ENGOs and First Nations for the Protected Areas Network. Minor nonconformance #20/12 was issued similarly- the FME s engagement with interested parties (such as ENGOs and First Nations) on high conservation values consisted of informing them more than consulting with them, according to RA s assessment. ASI concludes that lack of agreement with the Cree is a systematic issue that suggests a fundamental failure in the application of free and informed consent and that the FME should have worked to resolve this as a pre-requisite for certification. A fundamental failure is indicated here because in 2012 when the minor was issued, lack of agreement was a persistent problem (continuing since 2010), it was a breakdown in free and informed consent that undermined Criterion 3.1, and was not adequately responded to by the client (as was demonstrated by the evidence provided by the Cree). This report recommends that Rainforest Alliance is in non-compliance with FSC accreditation requirements for decision-making (FSC- STD-20-007) when issuing a minor non-conformance on indicator 3.1.2 instead of a major. 3.4 Management of the complaints RA promptly responded to a complaint filed in 2012 by the GCCEI/CRA and issued major non-conformance #25/12. Rainforest Alliance performed a timely follow-up on the major non-conformance given some extenuating circumstances under which they could assess the non-conformance. There is no issue with RA s management of the complaint. 3.5 Closing major non-conformance #25/12 Accommodation and best efforts RA s decision to close major non-conformance #25/12 was the starting point of the complaint by the GCCEI/CRA to ASI. ASI only partially accepts RA s decision in this matter. Major non-conformance #25/12 was about mitigating the negative impacts on Cree values by adapting forest management practices to better protect Cree resources until a new and more permanent forest management plan was elaborated. Evidence that the FME accommodated specific Cree values in the Mistissini height of land was presented and shows progress in accommodating the protection of Cree values in forest management. However, the more permanent forest management plan has not been elaborated (although talks are underway) and evidence to show that harvest permits respect Cree rights was not provided. Most importantly, the arguments presented above in regards to minor non-conformance #01/12 reveal that lack of agreement is the root cause of negative impacts to Cree values and represents a fundamental failure. Therefore, the correct measure to close major non-conformance #25/12 is to have a new agreement in place or best efforts towards agreement that are satisfactory to the Cree. The Corrective Action Verification Audit Report (5 April 2013) shows little evidence of the Cree s satisfaction with the progress made in mitigating impacts to their trap lines. This report recommends that Rainforest Alliance is in non-compliance with the decision-making requirements in FSC-STD-20-007 when closing major non-conformance #25/12. 10/11

4 Conclusions ASI concludes not enough was done to ensure that the basic conditions for free and informed consent were respected and, where necessary, renegotiated prior to certifying forest management practices that put Cree values at risk. Furthermore, Rainforest Alliance has not appropriately addressed this issue during its evaluation process, as required by FSC accreditation requirements. 1) Rainforest Alliance stated that the situation clearly represents a major non-conformance with Principle 3.1 (Complaint Investigation Audit Report, 28 Sept 2012) and ASI agrees. This report has shown that the information Rainforest Alliance used to come to this conclusion was available to them before the finalization of the main assessment; therefore, should have been used by them at the time to assess a major nonconformance to THE FME against 3.1.2. 2) While the FME has taken actions to mitigate the negative impacts to Cree trap lines, there is no evidence that these actions have been discussed with the Cree and are now acceptable to the Cree. Without this acceptance, this ASI report finds that the RA s reasons for closing major non-conformance #25/12 are not sufficient - a more permanent solution is not in place, harvest permits were not reviewed to confirm the actions on the ground, and agreement (or even satisfaction with progress towards agreement and/or positive acceptance of the management plan) has not been communicated by the Cree. Taking account the all the information and evidence that ASI reviewed, this report recommends two nonconformities to Rainforest Alliance regarding decision-making under Section 8 of the FSC Accreditation Standard FSC-STD-20-007 V 3-0. 5 FOLLOW UP ASI Lead Assessor Paolo Tranquillini has reviewed the recommendations of this report and agrees with the conclusions of the investigation. Two major non-conformances have been issued to Rainforest Alliance. 11/11