Understanding “Co-Management” Under B.C.’s Proposed New Treaties: Is This The “Land Act Amendments” All Over Again?

Overview

Co-management provisions in the proposed K’ómoks,¹ Kitselas,² and Kitsumkalum³ treaties (the “Proposed Treaties”) bear striking similarities to the proposed 2024 amendments to the Land Act to enable First Nation co-decision-making under provincial law. The Proposed Treaties contemplate government and First Nations entering into agreements that could (among other things) make the First Nation a joint decision-maker under provincial laws in respect of matters within the First Nation’s traditional territory. These provisions are, however, broader in that they could apply not only to tenures under the Land Act, but also to laws related to forestry, energy, mines, and other matters.

In the event government and the First Nation cannot agree on whether to enter into a Co-Management Agreement or on the terms of such an agreement, the matter would go directly to binding arbitration. The arbitration would be conducted in the context of another treaty provision that says the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) is an “authoritative source for the interpretation” of the treaty.

The combined effect of applying arbitration to disputes about the “good faith” requirement to negotiate and the interpretive lens of UNDRIP is extremely difficult to predict.

None of the treaties previously signed in Canada (modern day or historic) contain such terms.

Co-Management chapters in the Proposed Treaties

Each of the Proposed Treaties contains a chapter entitled “Co-Management”.

These chapters appear to have been added late—at Stage 5 of the BC Treaty Commission process where the “agreement in principle” developed at Stage 4 is to be set in legal text. That is to say, none of the Agreements in Principle for these specific treaties has such a chapter on Co-Management, or indeed any reference to Co-Management.

No previous treaty in Canada has included such a chapter, though modern-day treaties often contain lesser forms of cooperative engagement regarding management of Crown land and resources.

Each Co-Management chapter beings with a “Principles” section which states:

1. The development of a Co-Management Agreement in accordance with this chapter will be based upon:
   1. implementation of the United Nations Declaration on the Rights of Indigenous Peoples, including aiming to secure the free, prior and informed consent of [the First Nation] for land and resource decisions within the [First Nation] Traditional Territory;
   2. [First Nation] Exercisable Section 35 Rights; and
   3. recognition of [First Nation’s] Aboriginal rights and title, including the inherent right to self-government, in accordance with this Agreement.

Substantively, the Co-Management chapters provide that “[a]ny Party may propose to the other applicable Parties that they collaboratively develop a framework respecting a Co-Management Agreement within the [First Nation’s] Traditional Territory”. They may be in respect of a broad range of matters including forestry, energy and mines, lands, parks, water, and archaeological resources.⁴ There is nothing the excludes private land from being subject to a Co-Management Agreement. Nor is there any express right of private landowners or tenure holders that may be impacted by a Co-Management Agreement to be consulted in its development.⁵

Once proposed, the parties⁶ must “in good faith… make efforts to collaborate on the development of a framework respecting the matters to be addressed in the Co-Management Agreement.”

If the parties reach agreement on a framework, they must then negotiate and attempt to reach agreement on the Co-Management Agreement itself. A decision-making process to be established under a Co-Management Agreement may result in, among other things:

• collaborative management processes or boards;
• replacement of an existing decision-maker with an agreed to joint body or joint decision-makers;
• consensus recommendations to a decision-maker;
• consent based decision-making; or
• any other arrangements agreed to by the parties.

How does this compare to the 2024 Land Act proposed amendments?

The Co-Management Agreements contemplated by these Proposed Treaties are very similar to the consent-based decision making proposed under the Land Act in 2024.⁷ Those were intended to dovetail with agreements under section 7 of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), which provides for First Nation “consent” or “joint” decision making, but they were controversial and government eventually decided not to proceed with them after public concern.⁸

The K’ómoks proposed treaty also includes a direct obligation to enter into a Land Act agreement in the K’ómoks Estuary. Chapter 16 states:

17. On the Effective Date, British Columbia and K’ómoks will enter into a K’ómoks Estuary Consent Agreement relating to the exercise of certain statutory powers under the Land Act within the K’ómoks Estuary as defined in Appendix J.

18. The K’ómoks Estuary Consent Agreement will:

a. identify the area within the K’ómoks Estuary where the agreement applies;
b. identify the statutory powers under the Land Act to which the agreement applies;
c. set out the consent-based decision-making process that British Columbia and K’ómoks will implement in relation to the exercise of the statutory powers identified under paragraph 18.b).

19. For greater certainty, as long as the K’ómoks Estuary Consent Agreement is in effect, British Columbia will not exercise the statutory powers referenced in b) without the consent of K’ómoks, unless otherwise set out in the K’ómoks Estuary Consent Agreement.

What happens if a Co-Management agreement is proposed but the parties cannot reach an agreement?

While the Proposed Treaties do not specifically require parties to reach agreement, they do contain significant provisions to deal with allegations that a party may not be negotiating in good faith. Specifically, the Proposed Treaties provide for arbitration of such disputes, and such disputes go straight to binding arbitration without first having to go other stages of dispute resolution as most other disputes under the Proposed Treaties would need to.⁹

Implications

It is not clear what an Arbitral Tribunal might ultimately rule in a case where the dispute relates to whether one party is negotiating toward a Co-Management Agreement in good faith. This is particularly true given that the proceeding will occur in the context of another treaty provision which says UNDRIP is an “authoritative source” for interpretation of the treaty, and where the Co-Management chapter itself states “[t]he development of a Co-Management Agreement in accordance with this chapter will be based upon: a) implementation of the United Nations Declaration on the Rights of Indigenous Peoples, including aiming to secure the free, prior and informed consent of [the First Nation] for land and resource decisions within the [First Nation] Traditional Territory.”

As a result, the key question that emerges is whether Arbitral Proceedings under the Proposed Treaties (relying on UNDRIP) could result in unexpected rulings and implications, much as occurred when the BC Court of Appeal held that the BC Mineral Tenure Act was inconsistent with UNDRIP based on the terms of DRIPA and s. 8.1 of the Interpretation Act.¹⁰

Any businesses with interests in, or which are considering investing in, the areas covered by these Proposed Treaties should examine the terms carefully, as they represent a significant departure from the approach taken in prior treaties and may, in respect of co-management issues (among others),¹¹ raise new uncertainties.

Footnotes

1. K’ómoks Treaty – Ratification Version.
2. Kitselas Treaty – Ratification Version.
3. Kitsumkalum Treaty – Ratification Version.
4. Each chapter also contains provisions stating specific interests of the First Nations, but the rights under the Co-Management Chapter are not limited to them. See e.g. K’ómoks Final Agreement, Chapter 2, section 16.
5. This is less than the Declaration on the Rights of Indigenous Peoples Actwhich, while it does not require public consultation in developing a co-decision-making agreement, does in section 7(3) require government to “make public a summary of the local governments and other persons the member intends to consult before or during the negotiation.”
6. In the case of matters involving only the First Nation and one of BC or Canada, the treaty text provides that the Co-Management Agreement can be developed with the relevant government. There is no requirement for tri-partite approval in all cases.
7. See for example, Vaughn Palmer: NDP quietly consult on sweeping changes to managing public lands | Vancouver Sun.
8. See for example, B.C. NDP backs away from Land Act, blames opposition, critics | Vancouver Sun.
9. See e.g. K’ómoks Final Agreement, Chapter 2, section 15.
10. Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430. The Court of Appeal held that s. 8.1(3) of the Interpretation Actimposes a presumption of consistency between BC law and UNDRIP, and that s. 3 of DRIPA imposes a positive obligation on the Crown to take action to resolve any such inconsistency in consultation and cooperation with Indigenous peoples, and to implement those measures.
11. See also Do Recent Treaty Agreements Address The Uncertainties Created By The Cowichan Tribes And Gitxaala Cases? – McMillan LLP.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025