Harmonizing Through Judicial Review: Statutory Interpretation and Participation in Sub-Arctic Resource Management

Abstract

This article describes how statutory interpretation by the courts can impact the effectiveness of co-management initiatives in Canada. Canada has recently undertaken a massive restructuring of the administrative regimes that license and permit resource development across the country to better incorporate Indigenous participation. These co-management boards now take part in governing resource use across Canada and most recognizably in parts of British Columbia, the Yukon Territories, the Northwest Territories and Nunavut. Nevertheless, the degree to which Indigenous participation may impact the regulatory output of co-management boards remains uncertain in law. This article uses one co-management statute in Canada, the Mackenzie Valley Resource Management Act, to explore the complexities of accounting for participation in resource management in the sub-Arctic. The article argues that construction by the courts of the Mackenzie Valley Resource Management Act as similar to its predecessor, the Canadian Environmental Assessment Act, has the effect of construing the former statute as a procedural tool, which effectively divorces participation from the regulatory output of co-management boards. While by no means settled, this trend towards participation as a procedure of co-management is construed from a reading of the legislation as a legal transplant and its concomitant harmonization by the court with other statutory schemes. This article thus analyzes how the effectiveness of co-management is impacted by assumptions that the meaning of law can remain unaltered despite stakeholder participation.