Co-Management and Canada’s Changing Environmental Regulatory Landscape

Over the past year and a half, the federal government has been conducting a process to review and revise Canada’s environmental laws, including the laws that govern Canada’s environmental assessment process.  In 2016, the government formed an Expert Panel to consult with the public and indigenous people on how to best restore trust and confidence in Canada’s environmental review processes.

After months of consultation with communities and indigenous groups, the Expert Panel released a lengthy report. One of the findings of the Expert Panel was in relation to co-management with Indigenous people:

Recognition of and support for Indigenous laws and inherent jurisdiction should be built into IA [impact assessment] governance and processes. IA should not be a process designed and imposed from afar; Indigenous Peoples should have the ability to adapt the process to reflect their own traditions, customs, law and aspirations. Ideally, for many parts of the country, there will be co-management of IA processes and natural resources between Indigenous Groups and the federal government. It is in Canada’s national interest that IA facilitates reconciliation.[1] [emphasis added]

Following the release of this report, I attended a conference on the changing landscape of environmental laws where representatives from the federal government spoke about Canada’s ongoing revision of its environmental regulatory regime.  Once again, the term co-management was mentioned on more than one occasion, and by more than one government representative.

However, the federal representatives were unable to provide any detail with respect to what a co-management regime might look like in the context of Canada’s environmental laws. Moreover, the Government of Canada’s discussion paper, which outlines its proposed approach to changing the environmental and regulatory processes, doesn’t give any indication of what co-management might look like.

This raises the question: what does co-management mean, particularly in the context of environmental management?

Unfortunately, the answer to this question is not particularly clear, as there is no definitive definition of co-management.  Rather it is used to describe a variety of decision-making arrangements between government and First Nations and the degree to which the parties have equal authority at the management table varies widely.

In some cases, co-management refers to a situation where different actors representing different groups sit on a management body with decision-making authority and responsibility, and decisions are made together.

Sometimes, decisions are made by majority vote, in which case the composition of the decision making body will matter greatly.  In other instances, decision-making bodies are required to make decisions by consensus, in which case the power that can be exercised by any single party or is clearly increased.

An example of this type of arrangement is the co-management agreement between the Haida Nation and the government of Canada over the Gwaii Haanas National Park Reserve.  The Reserve is governed by the Archipelago Management Board (AMB), which is made up of an equal number of members representing the government of Canada and the Haida Nation.  The AMB makes decisions by way of consensus – neither party can manage or develop the park without the consent of the other.  If disagreement arises between the members of the AMB, the decision will be referred to the council of the Haida Nation and the Government of Canada to attempt to negotiate and reach an agreement.  However the board must reach agreement before it can proceed with any action.

However, co-management can also refer to a situation in which the co-management body doesn’t have decision making authority at all – rather the body is advisory in nature, and there is no requirement that the decision maker accept the co-management body’s recommendations.

This is the case for many of the co-management boards and councils that were formed under comprehensive land claims agreements in Canada’s north.  The co-management schemes formed under comprehensive land claims agreements typically include a network of different boards and councils which manage a wide range of land and resource matters.  In many cases, although with certain exceptions, the co-management bodies’ roles are advisory in nature – they make recommendations to the relevant Minister who holds ultimate decision making authority.

BC’s conservancy areas represent yet another type of co-management arrangement between the BC government, and a number of First Nations.  Many of BC’s conservancy areas are governed by comprehensive management plans that have been designed and agreed to by both BC and the relevant First Nation.  Once a management plan is formed, development of the conservancy must take place in accordance with it.

All of this is to say, there are many types of “co-management” arrangements that exist in Canada, and even more around the world.

While the Expert Panel has clearly indicated that co-management should be implemented moving forward, there has been no engagement on the topic, and there is no suggestion in the discussion paper that this is in fact the case.  As such, whether the government does adopt a co-management approach for impact assessment and natural resources, and what shape and form it will take, remains to be seen.

[1] Expert Panel Report Building Common Ground: A New Vision for Impact Assessment in Canada, s. 2.3.1