BUILDING CONSULTATION FROM THE BOTTOM UP:
A CASE STUDY OF THE NORTH YUKON

By

Robin Urquhart
B.A.H., Queen's University, 2005

THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR
THE DEGREE OF MASTER OF ARTS
IN
NATURAL RESOURCES AND ENVIRONMENTAL STUDIES

THE UNIVERSITY OF NORTHERN BRITISH COLUMBIA
August 2009
©Robin Urquhart, 2010

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2

Supervisor: Dr. Annie Booth
Associate Professor, Ecosystem Science and Management (ESM) Program,
University of Northern British Columbia
Committee Member: Cindy Dickson
Executive Director, Arctic Athabaskan Council, Whitehorse, YT
Committee Member: Dr. Greg Halseth
Professor, Geography Program, University of Northern British Columbia
Committee Member: Dr. Michael Murphy
Associate Professor, Department of Political Science,
University of Northern British Columbia

3

Abstract
The Canadian north is a land of Sparse human population and a wealth of natural
resources - both renewable and non-renewable. Global demands for such
resources create a dynamic where exploitation in its many forms brings powerful
forces to bear on small northern communities and indigenous governance bodies.
Consultation, in a general sense, is the means for bringing divergent interests
together to resolve resource management issues and ensure that development is
conducted with the community's best interest in mind. In a legal sense, consultation
protects First Nations from potential aboriginal or treaty right infringement.
Consultation as defined in legislation is too broad to direct a meaningful and
adequate process. It is necessary for First Nations to define consultation in their
own terms. This thesis outlines and discusses the principles and procedures for
guiding consultation in Old Crow, YT.

4

TABLE OF CONTENTS
Acknowledgement
1 Introduction
1.1 Research Topic

7
8
8

1.2 Research Question

10

1.3 Rationale

11

1.3.1 Lack of Definition

11

1.3.2 Context

12

1.3.3 Rationale Summation

18

1.4 Site Selection

18

2 Literature review
2.1 Introduction
2.1.1 Public Participation v. Consultation

19
19
20

2.2 Legal Precedents for Consultation

22

2.3 Deliberative Democracy

30

2.4 Public Participation

35

2.4 Principles of Public Participation in Environmental/Resource Management... 42
2.5 Consultation Procedure in Environmental Assessments and Resource
Management
48
2.5.1 Example of community specific guideline
2.6 Processes related to approval, monitoring and review of research and
resource extraction in the Yukon

51
52

2.6.1 The Umbrella Final Agreement (UFA)

54

2.6.2 Conducting Research in the Yukon

55

2.6.3 Oil and Gas Rights Disposition Process

58

2.6.4 Yukon Environmental and Socio-Economic Assessment Act (YESAA)... 62
2.7 Theoretical considerations
3 Methods

68
70

5

3.1 Old Crow and Vuntut Gwitchin First Nation

70

3.1.1 Consultation activities in Old Crow......

73

3.2 Case Study Method and Rationale

82

3.3 Data Collection Methods and Management:

83

3.3.1 Scoping

83

3.3.2 Focus Groups

84

3.3.3 Semi-Structured Interviews

87

3.4 Insider/Outsider Status

88

3.5 Participant Selection

90

3.6 Data Analysis

93

4 Results
4.1 Vuntut Gwitchin First Nation Resource Application Referral Processes

95
95

4.1.1 Natural Resources/Lands

96

4.1.2 Heritage

97

4.1.3 Summation of Current VGFN Processes

99

4.2 Principles of Consultation

100

4.2.1 Information

100

4.2.2 Trust and Respect

108

4.2.3 Representation

114

4.2.4 Openness and Timing

117

4.2.5 Capacity

121

4.3 Conclusion
5 Discussion

126
128

5.1 General Principles and Procedure

130

5.2 Current processes for resource management consultation in Old Crow

131

5.3 Implications for project development of consultation principles

133

5.3.1 Implications of timing:

133

5.3.2 Implications of openness - deliberative mechanisms:

135

6

5.3.3 Implications of information:
5.3.4 Implications of representation

137
..:

138

5.3.5 Implications of capacity

139

5.3.6 Implications of trust and respect

141

5.4 Legislated Definition

145

5.5 Consultation within a community

148

5.6 Conclusion

150

5.7 Future Research

153

6 Works Cited
List of Appendices

155
162

Appendix A: Mitchell and Parkins' comparison of deliberative mechanisms

162

Appendix B: Old Crow Community Layers

163

Appendix C: Chief and Council Resolution

164

Appendix D: Information letter to Participants- Focus Groups

165

Appendix E: Information Letter to Participants - Semi-structured Interviews

169

Appendix F: Semi-structured interview and focus group questions

173

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Acknowledgement
I would first like to acknowledge the Vuntut Gwitchin First Nation and community of
Old Crow, where I conducted the research for this thesis. It is at times a difficult
topic given the past examples of consultation; however, community members and
VGFN employees were open and willing to discuss it and help wherever they could.
I especially thank all the research participants who shared their knowledge and
insights. Thank you to Dr. Annie Booth my supervisor whose calm and level-headed
advice and insights kept me on track. I thank my committee members - Dr. Halseth,
Dr. Murphy and Cindy Dickson - for their time and effort in providing direction,
painstaking edits and sharing their expertise in this field. A special thank you must
go to Cindy Dickson and the Arctic Athabaskan Council without whom this thesis
would not have been possible. The Arctic Athabaskan Council (AAC) helped fund
this project and provided logistical and expert support. I humbly recognize the
contribution the AAC has made throughout Northern Canada in its representation of
Athabaskan peoples and also to the development and completion of my thesis.
Thanks to my father, Doug, for his wealth of knowledge and expert advice and
editing and to my mother, Judy, for her support, editing and positive attitude.

8

1 Introduction
1.1 Research Topic
The Canadian north is a land of sparse human population and a wealth of
natural resources - both renewable and non-renewable. Global demands for such
resources create a dynamic where exploitation in its many forms brings powerful
forces to bear on small northern communities and indigenous governance bodies. In
the Yukon, the land claims settlement has created a patchwork of semi-autonomous
First Nation governments which, together with the communities (native and nonnative) in their traditional territories, bear the brunt of resource exploitation
proposals. The demands on the communities and First Nations of ensuring their
involvement in resource development activities are often overwhelming yet the
environmental, cultural and economic stakes are of such a high degree that they
cannot afford to abstain from assessment processes.
In the midst of such considerations, consultation, however defined, is the
vehicle for bringing diverse interests together to reach mutual agreements on how to
proceed with respect to resource development. It is the crux of resource
management and yet, paradoxically, consultation methods directed at communities
are wholly inappropriate in many cases. Instead of an agreement being reached, the
consultation process is often mismanaged so badly that an impasse develops.
Failure to reach an agreement, in the absence of fundamental, irreconcilable
differences, is usually seen as a failure of the consultation process. If such a failure
results in canceling a project the consequences are felt most by the proponents as

9

the following passage from the Canadian Association Petroleum Producers (2003)
"Guide for Effective Public Involvement" indicates:
No one debates the value of good relations between the petroleum industry
and its stakeholders. Misunderstandings, disagreements or opposing views
can affect business, resulting in cost increases, project delays, and regulatory
censures... (p. 2)
Conversely, the only recourse for a community or First Nation to an approved
project, predicated on poor consultation, is a court challenge. This becomes a
serious financial burden for all involved (especially at the community level),
engendering a lasting animosity with an industry that might have returned far greater
benefits had an amicable agreement been reached. Improving the consultation
process may improve relations between community, government and industry and
consequently produce a more cooperative stewardship of the land.
The purpose of this thesis is to examine consultation within the microcosm of
a small, Yukon community with a strong, First Nations component. I will examine the
current processes for administering resource development in the Yukon, the special
connection First Nations have with their environment, the role industry plays in
Yukon's economy and the affect of land claims and self-government agreements. A
preliminary concept of consultation (principles and procedure) will be developed from
extant literature as a foundation upon which to build a community definition of
consultation. The community definition will be arrived at through a combination of
semi-structured interviews and focus groups. Themes will be highlighted from the

10

data that affect the concept of consultation. These themes will then be discussed indepth to ascertain their function and implications for the consultation process in Old
Crow, YT.
1.2 Research Question
The thesis will develop a community oriented definition/concept of natural
resource consultation using the community of Old Crow as a case study to help
create the definition1. The prime objective of this research is to produce an
operational overview that can be used by Vuntut Gwitchin First Nation to assess
their current resource management consultation processes, and where appropriate,
improve the consultation process.
Specific research questions are:
•

What are general principles and procedures for consultation?

•

What are the current resource management application and consultation
processes for Old Crow?

•

What principles and procedures for consultation are important to Old Crow?

•

What are the implications of these principles and procedure for developing a
consultation process?

For examples of case studies see Van Velsen 1967; Rosenblatt 1981

11

1.3 Rationale

1.3.1 Lack of Definition
Definitions of consultation, as will be discussed below, embrace a large
variety of situations, each with a different arrangement of principles and processes.
There is no one definition for consultation and, as a result consultation lacks a
prescriptive set of criteria by which to be guided (Sharvit, Robinson and Ross 1999,
Marsden 2005). The courts in Canada argue that consultation is fit-for-purpose;
each situation is unique, with different stakeholders and interest groups, specific
legislation and political relationships, all requiring hand tailored processes and
regulations (Taku River Tlingit First Nation v. British Columbia 2004; Mikisew Cree
First Nation v. Canada 2005). The courts have thus opted to evaluate the adequacy
of consultation on a case-by-case basis. Recognizing this, any legislation that
employs the term 'consultation' is crafted with an intentionally vague definition to
cover all possible situations on one hand, while not prescribing actions that could
prove detrimental on the other. While the logic of not setting limits on consultation
can be appreciated, the lack of definition can work to the detriment of all parties
involved.
Due to the vagueness of the definition, project proponents legitimately
seeking direction are the recipients of unclear instructions. An example is the
Yukon's Umbrella Final Agreement's direction to "consult with First Nations" (UFA
1995, section 5). Several questions immediately arise after reading the UFA's
definition of consultation contained in the agreement: does this mean a meeting with

12

Chief and Council? Does it mean special meetings with all the citizens of the First
Nation? Are not all these people also Yukon residents and, therefore, why does a
public meeting not suffice? Must there be house to house consultation for First
Nation citizens but not for other residents in the region?
The lack of a clear definition of consultation severely handicaps proponents
by leaving them in a dubious position on how to proceed. If the courts are unwilling
to prescribe a definition, and definitions in current resource management processes
are overly vague so as not to provide clear direction, it falls to the First Nation and/or
community to define consultation on their own terms. This thesis is a first step in
that direction for the Vuntut Gwitchin First Nation and the community of Old Crow.
1.3.2 Context
Specific circumstances serve to contextualize the issue of consultation in the
Yukon, which in coming to terms with the general picture of consultation deserve
further examination. They are:
1. Yukon First Nations and their traditional lifestyles,
2. the mining industry's role in the Yukon economy, and,
3. land claims settlement status in the Yukon.
1.3.2.1 Yukon First Nations and the need for culturally appropriate
consultation
In 2006, First Nations people, as recognized by the federal government,
comprised almost 25 percent of the Yukon population. This number is especially

13

significant compared to Canada's national average of approximately four percent
(Statistics Canada 2006). Both the medium and high population projections by the
Yukon Bureau of Statistics (2008) show that the First Nation population will continue
to grow in size and as an overall percentage of the Yukon population.
Consultation by proponents, which are generally based in southern Canada,
is designed for southern demographics. There is little or no awareness or
inducement for proponents to embrace Yukon First Nations' particular world views
and cultures (Sharvit, Robinson and Ross 1999). The emotional, spiritual and, to
some extent, the practical daily lives of many First Nations people are closely bound
to the land - a fact that is often overlooked in resources related consultation
(McKillop 2002). First Nations are ensnared by management regimes that "overlook
traditional approaches and undermine local stewardship and harvesting interests"
(Sherry 2002 p.37). McKillop (2002) further notes that "current consultation
approaches are inappropriate for the way Aboriginal people perceive and categorize
cultural resources, do not give equal weight to traditional ecological knowledge and
western scientific methods, and do not reflect or acknowledge the special suite of
rights that Aboriginal people possess" (p. 2). She adds that recognition of First
Nations' special connection to the environment should appear throughout the
consultation process.
A prime example of First Nations' continued connection to their land base is
their use of traditional foods. Wein and Freeman (1995) compared the frequency of
traditional food use between four communities in the Yukon: Whitehorse, Teslin,

14

Haines Junction and Old Crow. They looked at two factors: 1) estimated annual
frequency of traditional food use per household; and 2) frequency of traditional foods
in daily diet as recalled by participants. Results showed Yukon First Nation
households used traditional foods over 400 times per year on average, with Old
Crow ranking highest. The study concluded that traditional foods - especially moose,
caribou and salmon - remain extremely important in the contemporary diets of
Yukon First Nation people.
The daily consumption of traditional foods and associated activities such as
hunting, fishing, gathering, meat and preserve preparation, feasting and planning,
binds Vuntut Gwitchin people to the land and reinforces their culture (Sherry &
VGFN 1999). The extent and nature of Vuntut Gwitchin First Nation's inherent
cultural connection to the surrounding environment, and how that connection affects
consultation processes, remains to be determined. There is a significant knowledge
gap in ascertaining the consultation needs and desires of citizens of Old Crow
without taking this connection into consideration. It is therefore necessary to receive
information first-hand from persons who feel this connection and to determine what
principles and procedure are important for them in the consultation process.
1.3.2.2 Industry's role in Yukon economy
The history of economic development in the Yukon portrays a roller coaster
economy driven almost exclusively by discoveries and closures of mines (Coates
and Morrison 1988). Resource extraction continues to play a major role in the

15

Yukon economy, accounting for the highest percentage of the Yukon's GDP outside
of government services (Department of Economic Development 2008).
According to the Government of Yukon's economic report for 2008, mining will
continue to provide economic growth for the Territory in the longer term, including
benefits for First Nations' economies (Department of Economic Development 2008).
The Arctic Climate Impact Assessment (2004, p. 7) suggests that a warming climate
and technological advances will lower the high costs of resource extraction in the
Yukon. This will make resource developments more economically feasible. Such
factors will ensure continued and likely increasing interest in petroleum and mineral
resources in Canada's North (North Yukon Planning Commission 2007). Given the
likelihood of accelerated economic growth in the Yukon, it is vital that consultation
becomes better attuned to Yukon society in general and First Nations in particular.
1.3.2.3 Land Claim Agreements in Yukon
The Umbrella Final Agreement (UFA) (1993) sets out land claims for eleven
of the fourteen First Nations in the Yukon. The First Nations who signed the UFA
gave up their constitutionally entrenched aboriginal rights and title in favour of those
provided in the UFA. The UFA provides a suite of rights and benefits, including land,
cash compensation, harvesting rights, resource rights and co-management
opportunities and protection for traditional lifestyles and heritage. It sets out a
framework for individual First Nations in the Yukon to create specifically tailored
Final Agreements that prescribe the rights and benefits mentioned above. In tandem
with the land claims agreements came self-government agreements. Yukon is one

16

of the few places in Canada where First Nations are self-governing. Selfgovernment under the Yukon First Nations Self-Government Act gives Yukon First
Nations law-making authority over internal management, land use and wildlife
harvesting, business licensing and taxation of First Nations citizens. The First
Nation governments can enact laws concerning language, culture, health care,
education and social welfare (Werret 1999).
Each First Nation that signs a Final Agreement is granted land and certain
rights to that land. There are two main types of settlement land classification that
have an impact on resource development: Category A and Category B lands. First
Nations have surface and sub-surface rights over Category A lands, while only
maintaining surface rights for Category B lands. Land that is considered part of a
First Nation's traditional territory, but not part of the settlement land, is administered
by the Yukon Government as Crown Land. Under the strictest interpretation of the
agreement, the Yukon Government is not obligated to consult with First Nations on
the disposition of Crown Land unless it can be shown that there is the possibility of
treaty right infringement from the proposed development (Little Salmon/ Carmacks
First Nation v. Yukon Government 2008). Rights associated with the two major
categories of settlement land, over which consultation is likely to occur, are as stated
in the UFA (section 5.4, p. 45):
5.4.1 A Yukon First Nation shall have by virtue of this chapter:
5.4.1.1 for Category A Settlement Land,

17

a) the rights, obligations and liabilities equivalent to fee simple excepting
the Mines and Minerals and Right to Work the Mines and Minerals, and
b) fee simple title in the Mines and Minerals, and the Right to Work the
Mines and Minerals;
5.4.1.2 for Category B Settlement Land,
the rights, obligations and liabilities equivalent to fee simple reserving
there from the Mines and Minerals and the Right to Work the Mines and
Minerals but including the Specified Substances Right.
The implications for consultation are significant. A First Nation
government has sole discretion over developments on Category A lands. The
Yukon Government reserves the right to administer Mines and Minerals and the
Right to Work the Mines and Minerals for Category B and Fee Simple
Settlement Lands (which, for the intents and purposes of this thesis, are the
same). This means that on Category B lands the responsibility to ensure
meaningful consultation rests with the territorial government, since they
ultimately decide whether or not a project can go ahead, and on Category A
lands the responsibility lies with the First Nation. In either scenario, the First
Nation government is responsible for consulting with its constituents. The
difference is that on Category A lands they are held directly accountable by
their constituents, whereas on Category B lands they are one step removed
from the responsibility as the territorial government makes the final decisions.

18

1.3.3 Rationale Summation
The above factors provide the background and framework for consultation in
the Yukon. A thorough understanding of this environment is requisite to crafting an
effective consultation process that serves the interests of all the relevant parties.
To date the existing methods of consulting with Yukon First Nations on
resource development matters has not been comprehensively studied. This thesis is
an effort to partially fill that gap by highlighting problems and successes in the
system in relation to the attendant processes and regulations in administering
resource activities on Yukon lands. Lessons learned through this research may be
instructive to other First Nations finalizing land claim settlements and developing
self-governing agreements.
1.4 Site Selection
Old Crow, YT, was selected as the study site based on several conditions and
contributing factors. The conditions for the study site were necessary in order to
receive information appropriate to the topic area and research questions. Old Crow
was selected as the study site based on several factors; Yukon community, land
claim settlement, isolated community, and experience with consultation. Old Crow is
a self-governing First Nation that has signed a comprehensive land claim agreement
as per the Umbrella Final Agreement and thus fulfilled the second criterion of site
selection. It was determined that a remote community would be most representative
since the majority of communities in the Yukon are isolated. "Isolated" is by its
nature a relative term. For the purposes of this research, isolation in community

19

terms is defined as a small community (<800 citizens) at least 150 kilometres from a
large community (>800 citizens). Although the community of Old Crow is isolated,
Old Crow has extensive experience with consultation due to the sheer volume and
diversity of projects that have started in the within the community and traditional
territory over the last few years (for more information see Section 3.1.1). I was able
to witness this experience firsthand through my involvement with the Arctic
Athabaskan Council led 'Climate Change Risk Assessment and Final Agreement
Analysis - North Yukon.' It was through this project that we noted the deficiency in
directions for how to consult with the community. Several community members
communicated to us that they were discontented with the current standard of
consultation.
After the site had been selected it was imperative for the success of the
project that the community be willing to participate in the study. It was necessary to
receive permission and support from the First Nation government and community
prior to the conduct of the thesis research.

The research was approved and

encouraged through two resolutions: the first from chief and council and the second
from the Old Crow General Assembly.

2 Literature review
2.1 Introduction
There is a dearth of literature concerning consultation theory. Many
academics/researchers investigating the issue of meaningful and adequate

20

consultation must appeal to other forms of association or bodies of theory. Theorists
borrow from the field of public participation (Giesbrecht 2003; Mitchell and Parkins
2005; Marsden 2005; Lee 1999; Lackey 1998; Smith et al. 1999) and the literature
on deliberative democracy (Mitchell and Parkins 2005) to close the ideological gaps
identified in the term 'meaningful consultation.' Such gaps include the overall goal of
consultation, various levels of public involvement, the principles and procedure of
public engagement, the deliberative mechanisms available, and the link between
knowledge and participation.
The term 'consultation' is widely applied to resource management processes.
Its application often refers to deliberative mechanisms usually associated with high
levels of public participation, such as community panels and oversight committees.
Consultation can also apply to the use of surveys, questionnaires, focus group
meetings, public meetings and house visits. In light of this fact it is necessary to
make a careful distinction between public participation and consultation. For the
purposes of this paper, public participation refers to the spectrum of activities for
involving the public in decision making processes from low levels (informing,
questionnaires) to high levels (citizen juries, community panels). The definition of
consultation remains much more nebulous.
2.1.1 Public Participation v. Consultation
The distinction between public participation and consultation is understandably
confusing. Both are types of public involvement, but represent different degrees of
involvement. Most public participation spectra include consultation as one level in

21

the spectrum, one with moderate involvement and expectations. The distinction
between the two terms, as noted by Roberts (1995), relates to the ability of those in
the process to share in and control the decision making process. Consultation is
associated with informing and, sometimes, negotiating, whereas public participation
brings the public directly into decision making processes (Arnstein 1969). Roberts'
distinction is overly simplistic and does not take into account the common usage of
the term consultation, which can refer to a variety of public involvement processes
and deliberative mechanisms.
In Canadian courts the duty to consult arises when there is a possibility of
aboriginal or treaty right infringement (R. v. Sparrow 1990). As the courts will not
provide a detailed definition of consultation (Taku River Tlingit First Nation v. British
Columbia 2004; Parker 1996; Booth and Halseth 1999), other pieces of legislation
are forced to define the term, such as the Umbrella Final Agreement, the Oil and
Gas Act and the Yukon Environmental and Socio-Economic Assessment Act.
Consultation is also invoked when describing any sort of communication
between project proponents and/or government and community that provides
information regarding a project with the aim of soliciting feedback. Consultation
does not occur if the sole purpose of the communication is information dissemination
with no recourse to accepting feedback on the information.
The term consultation takes on many meanings depending on the context.
The courts have ensured this fuzziness so the processes would remain flexible to
individual circumstances. It is thus important, and the raison d'etre of this thesis, to
define consultation from the bottom up.

22

2.2 Legal Precedents for Consultation
Section 35(1) of the Constitution Act, 1982, states: "The existing aboriginal
and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed." This article ensures that aboriginal peoples' rights must be taken into
consideration in any developments that may have an impact on them. Through a
line of legal precedents stemming from R. v. Sparrow, the courts have placed a
fiduciary obligation on government to consult with First Nations in the event of
possible aboriginal or treaty right infringement (R. v. Sparrow 1990; Delgamuukw v.
British Columbia 1991; R. v. Jones 1993; R. v. Sampson 1995; R. v. Jack 1995; R. v.
Little 1995; Klahoose First Nation v. British Columbia (Minister of Forests) 1995,
Haida Nation v. British Columbia 2004, Taku River Tlingit First Nation v. British
Columbia 2004, Mikisew Cree First Nation v. Canada 2005). Failure to abide by the
requirements of the constitution could render any tenure, permit or license, to the
extent that the legislation is inconsistent with the constitution, "of no force or effect"
(Section 52(1) Canadian Constitution Act 1982; Sharvit, Robinson, Ross 1999, p. 1).
The courts find it "impossible...to provide a prospective checklist of the level
of consultation required instead preferring to decide on a "case by case" basis (Taku
River Tlingit First Nation v. BC 2004, p. 1). The reasoning behind this is obvious:
each situation is different and to define consultation could impose unnecessary and
debilitating requirements on industry, government and First Nations.
As stated by the presiding justice in R v. Sampson (1995):

23

The word 'consultation' is one that is in general use and that is well
understood. No useful purpose would, in my view, be served by
formulating words of definition. Nor would it be appropriate to seek to
lay down the manner in which consultation must take place

If a

complaint is made of failure to consult, it will be for the court to
examine the facts and circumstances of the particular case and to
decide whether consultation was, in fact, held. Consultation may often
be a somewhat continuous process and the happenings at one
meeting may form the background of a later one.
The definition of consultation remains unclear. However, both Haida and
Taku were influential in developing a better idea of what comprises adequate
consultation (Marsden 2005). Haida emphasized the fiduciary obligation of the
Crown to consult First Nations prior to proving their title and rights (Haida Nation v.
British Columbia 2004). Taku went further by outlining a process that could satisfy
the legal duty to consult for at least that specific situation (Marsden 2005). However,
this process is situation and region specific and it should be noted that, although the
Taku River Tlingit First Nation was successful in getting the Courts to acknowledge
the fiduciary obligation of Government to consult with First Nations, they eventually
lost their case.
The Mikisew Cree case extended the duty to consult to treaty areas, whereas
previous precedents had been set only in non-treaty areas. The Mikisew Cree case
centred on the construction of a 118-kilometre winter road that would cross

24

traditional hunting and trapping areas of the Mikisew Cree. The Mikisew, who fall
under Treaty 8 (1899), argued that they were not consulted prior to the approval of
the winter road and consequently took the the government of Canada to court over
the issue (Mikisew Cree v. Canada 2005).
A recent court case manages to bridge the divide between the specific legal
circumstances of the Yukon Territory and the legal circumstances in the rest of
Canada with regards to the 'duty to consult' (Little Salmon/Carmacks First Nation v.
Yukon Government 2008). It is worth discussing this case and its aftermath in detail
as it has far reaching implications for the duty to consult in the Yukon. It has also
never been cited in consultation literature to this point.
Eleven of fourteen First Nations signed on to the Umbrella Final Agreement,
which provides a framework for resolving land claims in Yukon. By signing on to the
Final Agreement, the First Nations extinguished their aboriginal title pursuant to
Section 35(1) of the constitution in exchange for the rights incorporated into the Final
Agreement (UFA 1993). As such, meaningful consultation must be decided based
on the rights provided in the Umbrella Final Agreement. As with the Mikisew Cree
case, this assertion had never been tested. The case of Little Salmon/Carmacks
First Nation v. The Government of Yukon (2008) created a bridge between
precedents set in treaty and non-treaty areas outside of the specific legal
circumstances in Yukon.
The issue centred on an agricultural land grant application for 65 hectares of
Crown Land. The application was also in the area of Johnny Sam's trapline. Mr.

25

Sam's trapline comprising of 21 435 hectares had been recently damaged by forest
fires and other natural disturbances. Mr. Sam holds a commercial trapping
concession as per the Wildlife Act (2002, c. 229), that allows him to exclusively trap
in the area. The Little Salmon/Carmacks First Nation (LSCFN), on Johnny Sam's
behalf, complained that they were not notified of the land grant application and
review process and consequently were unable to provide input. LSCFN submitted
that the proposed agricultural and timber harvesting would be to the detriment of
Johnny Sam and other trappers in the area and their ability to pursue traditional
activities enshrined in the Final Agreement. The Yukon Government issued a letter
to the effect that, under the LSCFN Final Agreement, there was no duty to consult in
the disposition of Crown land. While this is true, it ignores the rights in the Final
Agreement guaranteeing the sustainability of harvesting and other traditional
activities (UFA Section 2.2.4 1995). It also ignores aboriginal rights to traditional
areas for harvesting as enshrined in the Constitution. The chambers judge, Veale,
decided in favour of LSCFN, thereby revoking the issuance of the land grant, on the
basis that the duty to consult applied to the situation and was not met by the Yukon
Government.
In the application of the duty to consult, the chambers judge invoked Supreme
Court of Canada decisions and applied them to the Yukon case. In paragraph 66 he
states,
/ conclude that the duty to consult and accommodate arises from the
concept of honour of the Crown and is an implied term of every treaty.

The court clearly states that "the honour of the Crown also infuses
every treaty and the performance of every treaty obligation. It is a
corollary of section 35 of the Constitution Act, 1982. It is also
significant that the duty arises in the Mikisew Cree case even where
the Crown had the right "to take up"land because consultation is
required in advance of interference of existing treaty rights.
Judge Veale follows the reference to the Mikisew Cree case in
paragraph 80,
It may be that the parties to the Final Agreement did not contemplate
the common law duty as it is expressed in the Mikisew Cree case.
However, in section 2.2.4, the parties did contemplate and expressly
permit the First Nation "to exercise, or benefit from, any existing or
future constitutional rights for aboriginal people that may be applicable
to them.
In the final decision the chambers judge rejected the Yukon
Government's submission that the duty to consult does not apply in the
disposition of Crown Lands. He argued that the Final Agreement does not
provide a process for Crown Land disposition and where the Agreement is
silent, the common-law duty to consult must be invoked, as it was in the
Mikisew Cree case. The duty was not met and the chambers judge then
revoked the agriculture land grant.

27

The Yukon Government immediately appealed the decision and the year after
it was made, the decision was overturned. The appeal focused on two issues:
1. That the duty to consult does not apply to the Final Agreement where the
agreement does not explicitly state that the Yukon Government must consult;
that it is not, in effect, an implied term, and,
2. That if there is a duty to consult it is not owed to an individual, in this case
Johnny Sam, and that the consultation, considering the degree of right
infringement, would be at a low level.
Addressing the first issue, the appeals judge states in paragraph 90,
However, as I have noted, the honour of the Crown and the correlative
duty to consult are constitutional duties for the reasons expressed in
Haida Nation, Taku River Tlingit, and Mikisew. They exist outside and
infuse the treaty and govern Yukon's dealings with Yukon First
Nations. In my opinion, the duty to consult does apply to the
interpretation and implementation of the Final Agreement and is not
precluded from application by the terms of the treaty. In my view, such
a finding does not render the Final Agreement uncertain or open to
unending renegotiation. It simply means that Yukon must be cognizant
of potential adverse impacts on First Nations' treaty rights when Yukon
proposes to dispose of Crown lands, and, when treaty rights may be
affected, Yukon must seek consultation with First Nations. The

28

degree of consultation will be a function of potential impact, (emphasis
added)
The appeals judge states that the duty to consult is not a constitutional right,
thus article 2.2.4 of the Final Agreement (see Veale paragraph 80) does not apply to
the situation. However, the appeals judge recognizes that the duty to consult, as per
Haida, Taku and Mikisew, does represent a constitutional duty based on the honour
of the Crown. In so doing, the appeals judge creates a link between rights enshrined
in the constitution and treaty rights set forth in Yukon First Nations' Final
Agreements. As the appeals judge states (paragraph 95); "Yukon must be cognizant
of potential adverse impacts on First Nations' treaty rights...and...must seek
consultation with First Nations."
The appeals judge decided in this case that the consultative requirement,
though invoked, was low and sufficiently met through the various processes initiated
by the Yukon Government. Thus, the appeal was sustained and the original
judgment overturned; however, the duty to consult was upheld. This decision raises
other, consultation specific issues. For example, what is the appropriate method of
consultation? What constitutes low-level consultation as opposed to high-level
consultation? And what is the degree of impact required to prompt each level?
It is important to reiterate that, while the original ruling was overturned, legal
precedents throughout Canada with regards to the duty to consult now apply within
the Yukon and First Nation Final Agreements. This means that there is a fiduciary
obligation on Yukon government to consult with First Nations in the event of any

29

possible treaty right infringement, regardless of the specific wording within the Final
Agreement.
Treaties define rights and often extinguish aboriginal rights in favour of the
rights incorporated in the treaty. Prior to the Mikisew Cree case it was unclear
whether aboriginal rights, as enshrined in the constitution, would still apply to
treaties. The decision of the presiding justice Binnie was to the effect that the
honour of the Crown and the duty to consult and accommodate in the case of
possible aboriginal right infringement exists independent of treaties and also applies
in the interpretation of treaties (Little Salmon/Carmacks First Nation v. Yukon
Government 2008). This has important implications for Yukon First Nations who
have signed treaties.
While it is understandable that the courts will not prescribe a checklist of
criteria for consultation (Taku River Tlingit First Nation (TRTFN) v. BC 2004) this
unfortunately places both resource companies and First Nations in an awkward
position. It is common practice for government (federal or provincial/territorial), while
unable to divest itself of its fiduciary obligation to consult, to delegate its consultation
responsibilities to the resource companies (Sharvit, Robinson, Ross 1999; Marsden
2005; TRTFN v. BC 2004). However, most resource companies do not have the
capacity, either financially or professionally, to consult with small communities often
resulting in poor consultation (Sharvit, Robinson, Ross 1999). The First Nation, the
recipient of poor consultation, often has no choice but to pursue a legal injunction to
stop the industry's project, citing a lack of meaningful consultation (Sharvit,

30

Robinson, Ross 1999; Marsden 2005). A better conception of consultation must be
developed as a step towards resolving these disputes. Unless land use conflicts are
mitigated or resolved through a consultative process that is focused on equality and
effectiveness, litigation will continue and may even escalate (Natcher 2001).
2.3 Deliberative Democracy
Mitchell and Parkins (2005) state that participatory practices are informed by
deliberative democracy. An examination of deliberative democracy helps one to
better understand the goals behind public participation (in the form of consultation) in
resource management. With these goals in mind it will be easier to determine the
principles and procedures for adequate resource management consultation.
The term 'deliberative democracy' is too large to have a definitive set of
statements to describe it. It is much like 'liberalism' in that its proponents do not
entirely agree on the required form of the democratic association (Macedo 1999).
This section will outline some of the core values of this theory as stated by its major
proponents and how it can inform the consultation process.
The word deliberative is formed from the latin 'librare' - to balance or weigh,
and the prefix 'de' - meaning 'entirely'. Democracy is a conglomerate of the Greek
words 'demos' - 'people' - and 'kratos' - 'rule.' The term deliberative democracy
etymologically means rule by the people in a way that gives due consideration to all
points of view.
Deliberative democracy is rooted in the ideal of democratic association.
Cohen (1999) outlines five principle parts of that association: (1) that the association

31

is ongoing and independent; (2) that it provides the framework for the results of the
deliberation; (3) that there is a clear link between deliberation and outcome; (4) that
it is pluralistic; and (5) that members recognize one another as having the ability to
participate effectively (Cohen 1999, p. 72/73).
Gutmann and Thompson (1996) take a slightly different view from Cohen in
their work, Democracy and Disagreement.

Here they outline four basic principles of

a deliberative democratic system: reciprocity, publicity, accountability and utility.
'Reciprocity' is the idea of mutual acceptance and the desire to justify a particular
preference to others (p. 53). 'Publicity' grounds the process in accountability,
practicality and, above all, mutual gain (p. 97). Accountability is the idea that each
participant is accountable to every other participant for the decisions arrived at in a
deliberative process (p. 112) Utility states that in considering everyone's viewpoint
and in arriving at mutually beneficial decisions, the greatest good will be provided to
the greatest number (pp. 165-166).
Gutmann and Thompsons' principles mirror Cohen's core values, although
there are some distinct differences. Cohen proposes as a core principle that the
participants' "terms of association provide the framework for the results of their
deliberation" (Cohen 1999 p. 72). Terms of association can differ and must be set
before the deliberative process begins. Cohen's principle goes well beyond
Gutmann and Thompsons' 'scope of accountability', by providing a formal system to
ensure that results are linked to deliberations. A formal system ensures that all
parties recognize the purpose of deliberation and commit to the results derived

32

through the process. This is further corroborated by Urquhart and Alfred (2002),
who recommend developing terms of agreement prior to any deliberations. Cohen
(1999, p. 73) also stresses that all participants should have equal deliberative
capacity Gutmann and Thompson do go beyond Cohen in their 'promise of
utilitarianism.' In this principle, Gutmann and Thompson provide a context and
rationale for participants' open discussion of reasons behind their preferences
(Gutmann and Thompson 1996).
Cunningham (2002), agrees with Gutmann and Thompson's and Cohen's
assertion that deliberative processes require a commitment to providing rationales in
order to be effective. In his view, "reasons must be publicly given and exchanged in
forums suitable for this purpose and participants must be able freely and equally to
arrive at informed preferences and to acquire and exercise the abilities required for
effective participation in the forums" (p. 37). Cunningham also argues that a
deliberative democracy only works when parties enter into it with the willingness to
modify their viewpoints, preferences and goals and expect the same of the other
parties. It is not enough simply to give reasons for one's preferences; one must
consider changing his or her own reasons as well. If one is unwilling to budge on his
or her position no compromises can be reached and the success of the deliberative
activity will be severely hampered.
The issue of 'rationale' anticipates the most serious criticism leveled at the
deliberative process viz., that it has difficulty managing irreconcilable differences
(Cunningham 2002). Gutmann and Thompson (1996) call this problem 'persistent

33

difference' and devote an entire chapter to it in their work. In the ideal situation all
parties would recognize the need to come to a consensual decision and would make
concessions to achieve this goal. However, participants may have views that cannot
be compromised, which means that other measures may be required in order to
move forward the deliberation. In such a case a vote may be necessary, which
should not be considered a failure of the deliberative process, but only a reflection of
the fact that the parties may have contradictory and non-negotiable terms that
cannot be resolved through discussion (Sharvit, Robinson, Ross 1999).
Bohman (1996), a deliberative democrat, outlines other considerations for
deliberative democracy which, if left unaddressed, will hamper its functioning. There
is a large degree of cultural pluralism in modern society, which can produce deep
and persistent moral conflicts. Social inequality is also prevalent and only getting
worse, which hampers the ability to participate on equal terms in the democratic
process.
These are serious criticisms that the deliberative democratic process cannot
seem to fully resolve. However, Mitchell and Parkins (2005) contend that, by placing
deliberative democracy within the context of resource management consultation, one
can avoid some of the short-comings found in larger institutions by providing a small
and artificial environment where it can work effectively. Moreover, social inequality
can be mitigated through the provision of adequate financial and other resources to
ensure that participants have equal ability to participate in the process.

34

Cultural pluralism, however, will not disappear in the consultation process and
will have to be recognized and considered. Monique Deveaux (2000) argues that
moral and ethical convictions are a key part of the deliberative process and a part of
politics (p. 175). She states further in her approach, 'reasoning and deliberation are
conceived in terms of the actual communication of agents' positions and beliefs, thus
shifting the attention to actual processes of moral argumentation (p. 177). Contrary
to Bohman's criticism that pluralism will hinder the process of deliberative
democracy, Deveaux shows that it is a necessary part of the democratic process
and that deliberative democracy is the most suitable means of incorporating
pluralism into decision making.
The above theorists - Sharvit, Robinson and Ross, Guttman and Thompson,
Cohen, Bohman, Deveaux and Cunningham - are useful in developing principles to
guide public participation in resource management. The ultimate goal of any
deliberation is to discuss and resolve specific issues and then identify a way forward.
There must be a clear link, as Cohen (1999, p. 72) explicitly states, between the
deliberative process and outcomes. Borrowing from Gutmann and Thompson (1996.
p.112), participants must be accountable to one another. The only way for this to
work is for the results of deliberation to be clearly linked to the process. The issue of
rationales, specifically the need for participants to provide reasons for their
preferences, was mentioned most directly by Gutmann and Thompson (1996. p. 53)
and Cunningham (2002, p.37). This is a very important component of deliberative
democracy, since understanding another's position will allow participants to work
through issues and come up with compromises. In the event of irreconcilable

35

differences, a vote may be necessary (Sharvit, Robinson and Ross 1999).I think that
a vote, if clearly explained at the outset of the deliberative process, can be a means
of moving forward while maintaining Guttman and Thompsons' call for utility.
2.4 Public Participation
Throughout the literature, resource management theorists focus on the role of
public participation in the success of a project or plan. Lee (1999) calls public
participation the keystone of any management system or project development,
without which the whole structure will collapse. Morghan et al. (2006) argue that
management plans will have limited success without adequate public involvement
due to pressure on government or the administrative authority in charge of
implementing the plan from stakeholders that were not effectively included in the
planning process.
Smith, McDonough and Mang (1999), in a study of the public participation
component of the Northern Lower Michigan Ecosystem Management Project,
recognized that broad public involvement was the most effective way to foster
cooperation and highlight public needs and desires. The results of his study showed
that the public wanted to be listened to, and to have an impact on decisions, but was
dissatisfied and distrustful of the current participation system. There was a high
level of agreement between natural resource professionals and public participants
that more and better public participation was needed for the success of resource
management.

36

Public participation theory informs much of consultation theory. Many public
participation theorists list 'consultation' as a category in the public participation
spectrum (Arnstein 1969; Commission on Resources and Environment 1995;
Vanderwal 1995; International Association for Public Participation 2006). However,
consultation, in the context of the courts, is not necessarily the same consultation
listed in public participation theories. Most public participation theory builds a ladder
or spectrum of participation ranging from the least onerous type (public information
sessions, posters, etc.) to full citizen participation (joint decision boards, oversight
committees, etc.). Consultation is often placed in the low to middle areas of the
public participation spectrum (Arnstein 1969; Commission on Resources and
Environment 1995; International Association for Public Participation 2006).
However, the consultation discussed in this paper, and as observed by the courts, is
undefined and may contain many of the features only seen in higher levels of the
public participation spectrum.
Arnstein, in her seminal 1969 thesis, outlines a ladder of citizen participation.
This deserves an in-depth explanation as it informs much of the public participation
theory that came after it (Marsden 2005).

37

Figure 2.1) Arnstein's Ladder of Citizen Participation (Arnstein 1969)

8 Citizen Control
7 Delegated Power

V

Citizen Power

V

Tokenism

V

Non-Participation

6 Partnership
5 Placation
4 Consultation
3 Informing
2 Therapy
1 Manipulation

Arnstein (1969) calls 'citizen participation' or 'public participation' a categorical
term for citizen power. Her concern is predominantly the citizenry's role in
government. Arnstein argues that the highest level of citizen participation in
government "is the means by which they can induce significant social reform which
enables them to share in the benefits of the affluent society" (p. 216). With regards
to resource management, adequate consultation is the means by which the
community affected is enabled to share the benefits of development while minimizing
adverse impacts.

38

The top category, grouped under the heading 'citizen power,' encompasses
three parts. The first rung is partnership. Partnership occurs through negotiated
agreements to form joint policy boards, planning committees, oversight committees,
etc. Arnstein makes the point that partnership works best when properly resourced
and held accountable to the community. Delegated power is next up the ladder and
is evidenced by citizens forming groups and associations that hold considerable
control and have responsibility for a program or project. An example of this, though
not common in resource management, would be a contract or sub-contract granted
to a group to design and deliver a program or project (Marsden 2005). The top rung
of the ladder is citizen control, which still relies on government funding but is not
required to spend the funding in any specific way. In a resource management
context, citizen control could take the form of a community incorporating itself to
extract or participate in the extraction of a certain resource such as coal-bed
methane gas or timber (Marsden 2005).
Consultation has often been associated with tokenistic measures aimed at
placating communities while offering them no guarantee that their input will be taken
into account (Arnstein 1969). This form of consultation often takes the form of public
hearings, questionnaires and focus groups (Marsden 2005, 17). Arnstein (1969, p.
218) argues that partnerships are most meaningful when leaders are accountable to
constituents, and when financial and technical resources are available. Arnstein's
perspective on public participation is very hierarchical. From her choice of
terminology (placation, tokenism, manipulation) it is obvious that Arnstein feels that
the only way the public can have an effect on policy or decision making is to be

39

involved in the highest echelon of her ladder. Her argument is largely
unsubstantiated and she shows no evidence of why focus groups or public meetings
cannot be a guaranteed means of citizen power.
The International Association for Public Participation (IAP2) (2006) outlines a
similar Participation Spectrum (Table 2.1). IAP2's table provides more information
than Arnstein's ladder. Included in IAP2's spectrum are the goals, responsibilities
and mechanisms associated with each level of participation. The major difference
between IAP2 and Arnstein is that IAP2 does not place a value judgment on the
various levels of participation. Whereas Arnstein argues that for public participation
to be meaningful it must reside in the top three rungs of the ladder, IAP2 recognizes
that all levels of participation are useful if placed within the appropriate context. By
providing the goals and responsibilities associated with each level, IAP2 explains
when each level is a useful component of public participation. For example, the
category 'consult' is characterized by low public impact and the promise of the
consulting body to acknowledge concerns and show how these concerns affect
public policy. Often this is the form that consultation will take in communities and
with First Nations, since the ultimate decision making power rests with the territorial,
provincial or federal government. However, in treaty areas the decision making
power often rests with the First Nation and the term consultation can connote a wide
range of mechanisms from the public participation spectrum.

40

Table 2.1) IAP2 Public Participation Spectrum (IAP2 2006):
INCREASING LEVEL OF PUBLIC IMPACT
+•

•

INFORM

CONSULT

INVOLVE

COLLABORATE

EMPOWER

Public
Participation
Goal:

Public
Participation
Goal:

Public
Participation
Goal:

Public
Participation Goal:

Public
Participation
Goal:

To provide the
public with
balanced and
objective
information to
assist them in
understanding
the problem,
alternatives,
opportunities,
and or solutions

To obtain public
feedback on
analysis
alternatives
and/or decisions

To work directly
with the public
throughout the
process to
ensure that public
concerns and
aspirations are
consistently
understood and
considered

To partner with the
public in each
aspect of the
decision including
the development of
alternatives and the
identification of the
preferred solution.

To place final
decision making
authority in the
hands of the
public

Promise to
public:

Promise to
public:

Promise to
public:

Promise to public:

Promise to
public:

We will keep you
informed.

We will keep you
informed, listen
to and
acknowledge
concerns and
aspirations, and
provide feedback
on how public
input influenced
the decision.

We will work with
you to ensure
that your
concerns and
aspirations are
directly reflected
in the alternatives
developed and
provide feedback
on how public
input influenced
the decision.

We will look to you
for direct advice and
innovation in
formulating solutions
and incorporate your
advice and
recommendations in
to the decisions to
the maximum extent
possible.

We will
implement what
you decide.

Example
techniques to
consider:

Example
techniques to
consider:

Example
techniques to
consider:

Example
techniques to
consider:

Example
techniques to
consider:

•
•
•
•

Fact sheets
Web sites
Open houses

•
•
•

Public
comment
Focus
groups
Surveys
Public
meetings

•
•
•

Workshops
Deliberate
polling

•
•

Citizen advisory
committees
Consensus
building
Participatory
decision-making

•
•
•

Citizen juries
Ballots
Delegated
decisions

41

The Commission on Resources and Environment (CORE) produced a similar,
though not as detailed, document in 1995, describing the various levels of
consultation and the deliberative mechanisms incorporated at each level. It
highlights the link between expectations and commitment with the various
mechanisms of consultation (CORE 1995). The higher you are on the spectrum, the
more expectations and commitments there are between the consulting body and the
consulted. The CORE document harmonizes with IAP2 in recognizing that each
level of participation is positive in the appropriate context.
Yukon, due to its complicated legal landscape, must remain open to a variety
of forms of public participation. In a legal sense the duty to consult requires low
public involvement, public impact on policy and expectations and commitment
(Arnstein 1969, Commission on Rsources and Environment 1995, International
Association for Public Participation 2005). Consultation will often take this form in
the Yukon, as in cases where the territorial or federal government is the ultimate
decision making authority. However, in the case of land claims settlement areas,
where the First Nation maintains control over surface and subsurface rights to that
land, consultation may take on a very different form. In these cases, consultation is
undertaken in partnership with the affected community and reflects higher levels of
public involvement, expectations and commitment. The precise form of this type of
consultation is unclear. It often involves the project proponent and the First Nation
office (chief and council) both consulting community members and land claims
beneficiaries to understand their views on the matter.

42

It is the aim of this thesis to describe principles of consultation that are
important for both scenarios, whether the territorial government is the decision
making authority or the First Nation retains that power. The rationale is to develop
an idea of consultation from the bottom up that ensures the consultation is
appropriate for the community members of Old Crow. Designers of consultation
process may choose from a variety of mechanisms with which to consult
(questionnaires, surveys, public meetings, focus groups, oversight committees,
citizen panels, etc.) keeping in mind how these mechanisms can be made
appropriate to the community. Before gathering data on the principles and
procedure for consultation from research participants it is important to develop a
general understanding of principles that guide public participation.
2.4 Principles of Public Participation in Environmental/Resource
Management
The purpose of this section is to describe general principles of consultation as
derived from the literature on public participation in environmental and resource
management. I will develop a complete a list of principles as evidenced in relevant
literaturehighlighting commonalities and differences between the various theorists. It
is not the aim of this section to critique the principles provided by the authors. This
section is simply a description of general principles for consultation with the aim of
informing a more complete definition provided by the community of Old Crow.
Vanderwal (1995) outlines eight important principles of consultation.

43

Table 2.2) Criteria for Public Participation: Participation and Knowledge (Vanderwall
1995)
Knowledge

Participation

Clear reason to
participate.

Clarity of purpose

Clear research objectives.

Form of public
involvement seen as
appropriate.

Appropriateness of
methods

Objectives and methods
accepted in the scientific
and lay communities.

Inclusiveness, equal
opportunity to participate
and process self-design.

Openness

Clear communication of
information, openness to
other kinds of knowledge.

Credibility of "third party".

Institutional credibility

Credibility of technical
institutions.

Accountability of
participants to process,
constituencies.

Accountability

Accountability of technical
studies to process.

Process timeline takes
information collection into
account.

Time limits

Research timeline takes
public participation into
account.

Agreement on policy.

Consensus decision
making

Agreement on research
results.

Commitment to
implementation.

Implementation

Effective ongoing learning
and monitoring.

Marsden (2005) also outlines what she determines to be the 'principles of
meaningful consultation' (see below). Marsden derived her principles of consultation
by examining the principles of public participation in extant theory. Her principles are
derived fromfrom consultation as defined by the province of British Columbia, legal

44

principles as established by the Supreme Court of Canada, and the perspective of
First Nations on past consultation. Each group has a specific rationale and
understanding for each principle, according to Marsden (Table 2.3). In my research I
found Marsden's table to be the most complete account of the principles guiding
consultation in Canada.
Though listed differently in Marsden's account, many of her principles
coincide with those highlighted by Vanderwal. Her specific additions to Vanderwal's
principles are: pro-action, respecting the right of non-participation and the provision
of financial resources. Pro-action suggests that Government should initiate the
consultation process before going very far along the development stage. Respecting
the right of non-participation takes into account groups that might be affected by the
development, but have not partaken of the consultation process for reasons that may
include, but are not limited to; distrust, lack of time, lack of capacity and inability to
understand the information. The provision of financial resources suggests that
government has a responsibility to ensure all parties have appropriate financial
capacity to engage in the consultation process (Marsden 2005).

45

Table 2.3) Principles of Meaningful Consultation (Marsden 2005 pp. 35/36)
Relationship-building
Pro-active, not Re-Active
Representation
Continuous cycle of consultation
Ability to modify decision
Respecting the right of non-participation
Financial resources
No unilateral changes
Two-way process
Equal value of inputs
Balance of substantive and process-based approaches
Sound research
Legitimate decision making

Sharvit, Robinson and Ross (1999), in Resource Developments on Traditional
Lands: The Duty to Consult, outline what they see the information requirements to
be for consultation. Sharvit, Robinson and Ross focus on rights infringement and
what rights are at stake in resource development. An important point omitted in both
Vanderwal's and Marsden's theses is the duty for government to inform itself of what
aboriginal rights might possibly be infringed upon. Another requirement is the
principle of 'reasonableness' - that the party being consulted must only make
reasonable demands for information as accepted by the scientific, academic or
professional communities. Sharvit et al. also stress the issue of timing, specifically
the provision of appropriate timelines for First Nations or other communities to

respond. Vanderwal (1995) also discusses timing with a focus on the consultation
process designing timelines appropriate for both research and public participation.

Table 2.4) Information Requirements (Sharvit, Robinson and Ross 1999 pp. 1214)
Timing

Both government and aboriginal peoples should be provided with
enough information to ensure that unjustifiable infringement of
rights is avoided.

Rights

Government must inform aboriginal peoples onwhat rights will be
affected and why.

Duty to become
informed

The government has a legal duty to inform itself of what possible
Aboriginal or treaty rights might be infringed by the proposed
development.

Funding/resources

Although not a fiduciary duty, government should assess the
funding and resources required for the community to participate in
the consultation process and provide assistance where
appropriate.

Reasonableness

The community cannot make demands for information that are
unreasonable. There is always the possibility of conduting another
study or collecting more information. Where these demands
surpass accepted scientific, academic or professional practices
they may be deemed unreasonable.

Mitchell and Parkins (2005), in A Practitioner's Guide to Public Deliberation in
Natural Resource Management, outline three major considerations for the
consultation process. The first corroborates previous calls for openness, while the
other two are important additions to the principles discussed above. Mitchell and
Parkins (2005) argue that consultation should be responsive to different social
settings and modes of communication and that the methods must be straightforward

47

and repeatable to be adopted for future use without requiring the presence of social
scientists or communication experts.
The discussion of methods brings up the issue of deliberative or consultative
mechanisms. Mitchell and Parkins (2005, p. 3) state that "no perfect protocol exists
for public deliberation." Following this idea, Mitchell and Parkins systematically detail
the most common deliberative mechanisms used in public participation. Besides
being a very practical guide on how to set up community dinners, discussion panels
and advisory committees, one of the most important results of their work is a table
which compares various deliberative mechanisms (Appendix A). This table is
important because it does not seek to provide a definite course of action but admits
that different mechanisms will be appropriate at different times and under different
circumstances.
I have created a table outlining the various principles of consultation and
public participation examined in the literature. Beside the explanation of each
principle I have bracketed the work from which the principle is derived.
Table 2.5) General Principles of Consultation
Open

To participants from all sectors of a selected
community or region (Vanderwal 1995; Mitchell and
Parkins 2005)

Responsive

To differing needs for outputs and inputs, ie.
storytelling, plays, science, etc. (Mitchell and Parkins
2005; Marsden 2005))

Equal

All participants should have equal input (Cohen
1999; Marsden 2005; Mitchell and Parkins 2005)

Representative and

Representatives should be accountable to those they

Accountable

represent, and all groups should be represented.
(Cohen 1999; Gutmann and Thompson 1996;
Marsden 2005)

Pro-active

Government/Industry should engage in consultation
before proceeding too far into the development stage
(Marsden 2005).

Continuous

A constant cycle of consultation that should not
cease entirely as soon as the project begins
(Marsden 2005).

Multi-lateral

No party can unilaterally change the agreement
(Vanderwal 1995; Marsden 2005)

Funding

All parties should be cognizant of funding and
resource capacities and effort should be made to
ensure all participants can participate fully and
effectively (Sharvit, Robinson and Ross 1995;

Timely

Deadlines and timelines should reflect the
administrative capacities of the parties involved
(Vanderwal 1995;

Co-development

All parties should be included at the earliest possible
stage, before the project has been fully designed
(Marsden 2005).

Rights

All parties should be aware of the rights at stake in
the potential development. This includes
government becoming informed and informing others
(Sharvit, Robinson and Ross 1999).

Impiemen ta tion

Clear commitment and plan to implement the results
of the deliberation (Cohen 1999; Gutmann and
Thompson 1996; Vanderwal 2005)

2.5 Consultation Procedure in Environmental Assessments and
Resource Management
It is important to identify a general procedure for consultation process. As
consultation needs guiding principles, so it needs guiding procedures to ensure it

49

meets the requirements of all involved. Procedural elements have been derived
from extant literature on environmental assessment, environmental management
and resource management. The aim of this procedural account is descriptive not
analytical. It is simply to supply a general understanding of how consultation should
proceed according to major authors in this field. It is noted that the process is linear
whereas in many human interactions, consultation not excluded, the process is often
recursive containing adaptive and evaluative components. It is recognized that the
linear process may be subject to change and recursion as the consultation process
unfolds.
Richard Roberts (1995, pp. 32-35) divides the consultation process into five
stages: early consultation, initial planning, and development of a public involvement
action plan, implementation and follow-up. In the first stage participants and issues
are identified, information gathered and communications networks established.
Planning determines the consultation process itself, and as well as strategies to
inform and explain the process to the public. It is clear that when Roberts refers to
the consultation process, he refers to a specific process beyond the five stages he
outlines in general. After the consultation process is developed the methods of
participation are chosen for the public involvement action plan and resources are
allocated where appropriate. The plan is then implemented and afterwards followed
up.
Roberts' depiction of the consultation process is top-down. It is interesting to
note that the public, or the consulted body, is not involved in developing the process.

50

Instead they are informed of what the process is to be. Roberts also does not give
any explanation as to what he means exactly by determining the 'consultation
process.' Arguably that is what the five stages are about, yet he sets the process
aside as something different.
Lamont (2006), based on two case studies and extant literature, outlines eight
steps for public participation in resource management. His steps are similar to
Roberts, but with important differences. Lamont takes an admittedly 'top-down'
approach, delineating the physical, constitutional and legalistic boundaries within
which stake holders make decisions. One important difference is Lamont's (2006, p.
8) invitation of stakeholders prior to the development of a terms of reference. It is
assumed that stakeholders are a part of the development of the terms of reference
that will guide deliberation. A terms of reference (unmentioned in Roberts) is similar
to the deliberative democratic precept called, by Cohen (1999) the 'terms of
association'. In this regard, I think the development of terms of reference is an
important addition to Roberts' stages.
Consistent with Roberts (1995) and Lamont (2006), Mitchell and Parkins
(2005, pp. 17-19) outline specific stages in the consultation process. They divide the
consultation process into three main categories; pre-deliberative, deliberative, and
post deliberative. Marsden (2005) identifies similar stages of consultation: preconsultative scoping, joint development of the consultation process, consultation,
and post-decision follow-up. Again with Mitchell and Parkins, a top-down approach
is taken where participants are identified by the consulting body and informed of the

51

selected deliberative (consultation) process. Of special note in Mitchell and Parkins
consultation process is the attention to building trust and good relationships and
ensuring that participants are cared for and fed. Mitchell and Parkins introduce a
human element that in my opinion is missing from the previous authors. Following in
this vein, Mitchell and Parkins recommend encouraging shared learning and
understanding and assessing information requirements, noting that information may
have to be presented differently to different participants.
The procedural outlines provided by Roberts, Lamont, Marsden, and Mitchell
and Parkins are important in developing a holistic perspective on the consultation
process. The above information is provided as background for the analysis of
adequate and meaningful consultation. The principles and procedures derived
above will be used in coding the information received from research participants.
The authors all have points of agreement, but also important differences. By
including both the commonalities and the differences it is possible to develop a
general consultation procedure from which specifically tailored processes can be
crafted. An example of such crafting is the document entitled How to Consult in
Selkirk Traditional Territory (Alfred and Urquhart 2002).
2.5.1 Example of community specific guideline
How to Consult begins to bridge the gap between esoteric theory and on-theground application. In this document there are thirteen specific recommendations.
These recommendations are addressed specifically to the Selkirk First Nation and
are based on information gathered from Selkirk community members. Many of the

52

recommendations reflect principles discussed in other public participation works.
This is an important document for resource management consultation in the Yukon
as it anticipates and vindicates the need for the development of similar documents
by all fourteen First Nations groups. The document's major additions to the literature
already examined are of a practical nature. It suggests the creation of a steering
committee to develop the consultation process, the use of Northern Tutchone
wherever appropriate and the use of a variety of deliberative mechanisms, including
house visits, to ensure broad participation.
It is important as demonstrated by this guide to keep in mind that communities
are all different from one another and that the consultation process should be
designed to reflect and accommodate these differences. It follows that if the courts
are to decide consultation disputes on a case-by-case basis due to the specific
nature of each situation, individual communities should be defining their own
consultation protocols specific to their region and cultural values.
2.6 Processes related to approval, monitoring and review of research
and resource extraction in the Yukon
Approval, monitoring and review of research and resource extraction in the
Yukon can be very complicated. It is important for one to familiarize oneself with
common terminology in order to better understand the various restrictions and
regulations incumbent on research and development in the Yukon. I have provided
a list of terms below to aid the reader in comprehending the discussion of these
processes.

53

Table 2.6) Glossary of terms
Deliberative Event

Any organized event designed to inform the community or receive
feedback or both (questionnaires, focus groups, public meeting, etc.)

Proponents

The proponent(s) of any project (oil and gas, mineral, research)

First Nation

In general, refers to any one of the First Nations in the Yukon.

VGFN
VGFN territory

Refers specifically to the Vuntut Gwitchin First Nation government
Encompasses all categories of land as set out by the VGFN Final
Agreement as well as VGFN Traditional Territory. In a simplified
sense, it is any land in which VGFN has a vested interest.

Consult;
Consultation

Consult(ation) with a capital ' C refers to the legal duty to consult. The
Consultation is determined by the definition in the specific legislation.
The term 'consult(ation)' with a lower case 'c' denotes informal
communication with the design of providing information and receiving
feedback. The process is undefined.

The Yukon is a rich and diverse environment where resource management
and related research are concerned. With four orders of government potentially
involved in any undertaking, legislated processes and related policies abound to
monitor and enforce resource developments such as oil and gas exploration and
extraction, agriculture and mineral extraction. Similarly, research initiated from
beyond Yukon borders is also vetted through processes designed to ensure
relevance, political and cultural awareness and environmental protection. In all of the
above, consultation, either mandated or implied, is vital to ensure positive outcomes.
To discover where opportunities for effective consultation lie, it is necessary to
understand how the major extant processes work and what they are intended to
achieve.
The processes detailed here do not represent all current regulative processes
with respect to resource management in the Yukon. The Umbrella Final Agreement,

54

the Oil and Gas Act, the Scientists and Explorers Act, and the Yukon Environmental
and Socio-Economic Assessment Act were chosen for examination in this research
as they are the major regulative processes that affect VGFN and Old Crow. Other
regulative processes will be mentioned in the text where appropriate.
While this thesis is concerned primarily with consultation in regards to resource
activities, the processes for outside research will also be explained. The link
between research and resource development is that, on the ground level, the
mechanisms employed by each for informing and receiving feedback from the
community are very similar, if not, in many cases, identical. The past examples of
research consultation conducted in Old Crow serve to further contextualize and
provide a base for the community's principles and procedures for adequate
consultation.
2.6.1 The Umbrella Final Agreement (UFA)
The Umbrella Final Agreement (UFA) is the framework for land claims
settlement in the Yukon. From this document, each First Nation (signatory)
constructs a Final Agreement specific to its individual requirements. To date 11 of
the 14 Yukon First Nations have become parties to the UFA. In so doing they
extinguished their previous aboriginal rights in favour of those set forth in the UFA
and their respective Final Agreements (Umbrella Final Agreement 1993, section
2.2.3).
Over the past several years debate within the Yukon has been mounting over
the 'duty to consult' with respect to the Final Agreements. Key to this controversy is

55

the following UFA definition for consultation which set the stage in the Yukon for all
subsequent interpretations and practical applications:
'Consult' or 'Consultation' means to provide:
a) to the party to be consulted, notice of a matter to be decided in
sufficient form and detail to allow that party to prepare its views on the
matter;
b) a reasonable period of time in which the party to be consulted may
prepare its views on the matter, and an opportunity to present such
views to the party obliged to consult; and
c) full and fair consideration by the party obliged to consult of any
views presented. (UFA 1993 Definitions p. 2)
The Umbrella Final Agreement proactively attempts to establish a mode for
consultation with First Nations in the Yukon.The lack of a more prescriptive definition
has led some to argue in favour of each community defining consultation in their own
terms (Dawson District Renewable Resources Council 2003; Alfred and Urquhart
1999).
2.6.2 Conducting Research in the Yukon
Anyone entering the Yukon to undertake scientific research must have a
permit pursuant to the Yukon Scientists and Explorers Act (2002), with the exception
of archaeological research which is permitted through a different body of legislation
(Guidebook on Scientific Research in the Yukon 2008). Beyond the Scientists and

56

Explorers Permit, various permitting processes might come into effect. Examples of
lands that require specific permits are conservation areas, territorial parks, national
parks and special management or habitat protection areas. Research involving the
harvesting or capture of wildlife requires another permit pursuant to the Wildlife Act
(Guidebook on Scientific Research in the Yukon 2008). The Heritage Resources
Unit of the Yukon Government forwards all Scientists and Explorers Act applications
to the appropriate department of the affected First Nation government. Research
originating in the Yukon does not need a Scientists and Explorers Permit (Guidebook
on Scientific Research in the Yukon 2008).
The Yukon Government is required to consult with a First Nation before issuing
a permit at an historic site as per the Yukon Historic Resources Act (Best
Management Practices for Historic Resources 2006). the Yukon Government is not
obliged to consult with the First Nation in whose territory the research is to take
place if the research does not take place at an historic site.2 This puts the onus on
the researcher to contact the First Nation and receive feedback. As an unregulated
and unlegislated process there is no legal definition to guide the required
consultation.
The Guidebook on Scientific Research in the Yukon (2008) "provides updated
information for scientists and researchers planning to conduct studies in the Yukon.
Furthermore, it outlines the permits and licenses or consent that must be obtained
from Canada, Yukon and First Nation governments in order to carry out such work"
2

Research that does not affect physical land does not have to go through the Yukon Environmental and SocioEconomic Assessment process. This process will be described in-depth in a subsequent section, but is
important to note here to avoid confusion.

57

(1). The Guidebook is not an exhaustive account of how to conduct research in the
Yukon. The introduction states that while researchers are encouraged to consult
communities prior to making an application, "the formal requirements for community
consultation will depend on the nature and location of the project" (2).
The Yukon Government requires that any research project occurring on Yukon
First Nation settlement land must obtain permission from the appropriate First Nation
before the application will be reviewed (Scientists and Explorers Act). To be
included with the application are details of any community consultation, scoping,
protocols or terms of agreement signed with the First Nation. Furthermore, any
research involving information from Yukon residents must have written confirmation
that the community, the First Nation, special interest groups and residents have
been informed of, and had input into, the research project. The source and
authenticity of such confirmation is not specified and from personal experience it is
enough simply to specify that the First Nation and community have been contacted
and have agreed to participate in the research.
The Guidebook is deficient in its discussion of consultation between
researchers and communities/First Nations. The Yukon Government does not set
out any comprehensive framework, principles or procedures to guide the
consultation process, stating only that it will depend on the location and nature of the
project. Principles and procedures for consultation are only mentioned in reference
to timing and language. The considerations highlighted in the Guidebook are: 1) to
give adequate time for discussion and meetings, and 2) to be aware that certain

58

times of the year may be better than others, and 3) to use simple, non-technical
language (Guidebook on Scientific Research in the Yukon 2008, 2). It also mentions
that the elected council should be notified as a courtesy in the event of major
potential community impact (5).
The fact that the Yukon Government places the consultative responsibility on
the researcher has two important implications. First, the researcher must be
proactive in procuring information about the affected community and about how best
to consult with it. The onus is solely on the researcher to contact the community.
Second, the First Nation can be subjected to inappropriate forms of consultation in
lieu of a set of criteria either specified by itself or the Yukon Government. It does, on
the other hand, make sense that the responsibility for consulting the community is
placed on the researcher rather than the territorial government. If the territorial
government were to be involved in the initial stages of every project the system
would become unstable. A proponent would take an idea to the government and
then could divest itself of the responsibility of contacting the First Nation and
community. The real problem lies in not providing the proponents with adequate
guidance on how to carry out their duty to consult.
2.6.3 Oil and Gas Rights Disposition Process
2.6.3.1 Rights Disposition
Oil and gas exploration and development are carefully managed by the Yukon
Government according to the Oil and Gas Act and the Oil and Gas Disposition
Regulations. Disposition rights for oil and gas are granted by the Minister of Energy,

59

Mines and Resources (Yukon Government) through a competitive two-step process
(Oil and Gas Acf\ 996; Oil and Gas Disposition Regulations 1998).
The first step of the process is a 'Request for Postings' (RFP) [Yukon Oil and
Gas Licensing Process 2001). In response to this, companies submit Locations3 of
interest for oil and gas exploration. At the termination of the RFP a 60-day review
process of the requested Locations is initiated. This allows time for First Nations,
Yukon Government agencies and departments, and members of the public to submit
statements regarding of environmental, socio-economic and surface access
concerns. Notices are published in local newspapers inviting Yukon Government
departments, agencies and the public to comment. Postings are also referred
directly to each First Nation on whose traditional territory the proposal is located
(First Nation Settlement Lands are excluded from the process). It is up to the First
Nation government to consult with its citizens and relay any concerns to the
Department of Energy, Mines and Resources. Based on responses received from
the Review Process, the head of the Oil and Gas Division (Energy Mines and
Resources) reports to the Minister with recommendations regarding the inclusion of
proposed Locations in the 'Call for Bids' (CFB) which is the second step of the
process.
Companies interested in a Location must submit a bid during the CFB and the
highest bidder is awarded the exploration rights to that area. Prior to publishing the
CFB, the Minister of EMR, according to the 0/7 and Gas Act (Section 14:1), must

3

Location/s is capitalized to reflect its status as a legal term. Where location/s is not capitalized it defers to its
general definition as unspecified geographic area.

60

also confidentially consult4 with the affected First Nation if any part of the project
occurs within its traditional territory. A further provision states that the Minister must
consult only if the First Nation has a reciprocal law obligating it to consult with the
Minister before publishing a CFB with regards to Settlement Land. If no such law
exists, the Minister waves the obligation to consult with the First Nation until it enacts
the required legislation.
Beyond the single provision in the Oil and Gas Act there is no other reference
to consultation with First Nations regarding oil and gas exploration and development
in the Yukon. Moreover, since the definition of consultation mirrors the one in the
UFA, it is subject to the same deficiencies with no further clarity provided. This form
is maintained throughout subsequent stages of permitting for oil and gas
development and production.
2.6.3.2 Oil and Gas Operations and Activities
The oil and gas disposition process grants rights to specific Locations within
the Yukon for exploration and related operations. However, prior to any activity on
the site, additional authorizations and other processes come into effect. All winning
bidders must obtain a permit or lease under the Oil and Gas Act. Most permits
trigger further assessment through the Yukon Environmental and Socio-Economic
Assessment Board which, in turn, requires further Consultation with the affected First
Nations.

The Oil and Gas Act employs the same definition of consultation as does the UFA

61

A document entitled Oil and Gas Best Management Practices (OGBMP)
(2006) is provided by the Yukon Government to guide appropriate courses of action
for exploration and development. In addition to providing logistical information for
applications and permits, the OGBMP focuses largely on physical impacts and
managing archaeological and heritage resources. Conspicuously, there is no
mention of consultation with First Nations in the OGBMP.
EMR has developed several initiatives to improve consultation between
resource companies and communities/First Nations. The department (according to
their website) is working on assembling information from other regions regarding
First Nation engagement - specifically British Columbia, with the aim of including a
webpage on Community/First Nation Engagement for the Yukon
(www.emr.gov.yk.ca). A recently produced webpage under EMR, entitled "First
Nation Land Claims," contains a section on "Key Considerations for Consulting with
First Nations." The 'key considerations' are not a prescriptive set of steps for
consulting First Nations, but rather six points to be aware of when engaging a First
Nation; the last of which states,
"Initiate meetings to exchange information between the company president
and the chief, director of lands and resources or other senior official(s) (First
Nations Land Claims 2008)."
The above directive, the only one that seems to move beyond common sense,
does not move the project developer any closer to providing a consultation process
tailored to the individual First Nation or community to be consulted. Rather, it

62

places that burden on the First Nation, which must determine what constitutes
'adequate consultation' according to its own principles and standards, or in lieu of
such a determination, suffer the consequences of uninformed and often inadequate
arrangements.
Consultation between the developer and the First Nation/community occurs at
many stages before oil and gas activities can actually take place. As noted above,
the Yukon Government manages the process pursuant to various acts of legislation.
However, since the legislation is largely silent on consultation, the onus for ensuring
its adequacy devolves to the First Nation During the RFP Review, all RFPs are
referred to the appropriate First Nation and it is the responsibility of the First Nation
to consult its constituents with regards to the suitability of these lands for exploration
and development (Yukon's Oil and Gas Rights Disposition Process 2008). Where
the Yukon Government is required to consult with the First Nation, the Oil and Gas
Act employs the Umbrella Final Agreement's definition of consultation, which in
VGFN's case is insufficient so far as intergovernmental consultation is concerned. It
should be noted that apart from responding to a notification via the government
website there is no provision for 'consultation' between the Government of Yukon
and the public or interest groups in the RFP review. For Old Crow this is
accomplished through VGFN's own consultation process.
2.6.4 Yukon Environmental and Socio-Economic Assessment Act (YESAA)
The Yukon Environmental Socio-Economic Assessment Act (YESAA) came
into effect on May 13, 2003. It provides a clear, regulated system for assessing

63

projects and development within the Yukon Territory. YESAA is designed to
integrate resource management through a forum where economic, environmental
and societal concerns can be registered and, hopefully, harmonized. In looking
closely at the inter-relationship(s) among these three factors, the assessment
process seeks input from various government agencies, First Nations and the
general public. However, the assessment process falls short in its delineation of the
consultation process required. The reasons for this shortfall are examined below by
providing the process which applications must undertake.
Any party undertaking a project or development that will affect land, water or
other natural resources in the Yukon will require (as noted in "Oil and Gas Rights
Disposition" section) a government permit or license and, usually, an assessment of
the socio-economic and environmental impacts of the project. The Yukon SocioEconomic Assessment Board established under the Act operates at arm's-length
from the Yukon Government to conduct these assessments.
The assessment is initiated by an application for assessment from the
proponent. The assessor, either one of YESAB's six designated offices, the
executive committee or the board panel, reviews the project, with input from
government agencies, First Nations and the public (Energy Mines and Resources
Assessment Guide 2008). The assessor then provides a report to the 'Decision
Body' which is the federal, Yukon or First Nation government depending on the
location of the project. The report recommends whether a project should proceed or

not. In the former case, conditions are usually attached. The Decision Body then
accepts or rejects the recommendation (EMR Guide 3).
Beyond the purposes of ensuring an efficient, standardized system, YESAA
strives to include First Nations' and the public's experience and values in conducting
the assessment. It clearly states in section 5 that the purposes of YESAA are:
(g) to guarantee opportunities for the participation of Yukon Indian persons—
and to make use of their knowledge and experience —in the assessment
process;
(h) to provide opportunities for public participation in the assessment process;
(i) to ensure that the assessment process is conducted in a timely, efficient
and effective manner that avoids duplication; and
(j) to provide certainty to the extent practicable with respect to assessment
procedures, including information requirements, time limits and costs to
participants.

YESAA employs a four-part definition of consultation, essentially the same as
in the Umbrella Final Agreement. Thus, wherever references to consultation occur
in YESAA, the exercise of that function is accomplished:
(a) by providing, to the party to be consulted,
(i) notice of the matter in sufficient form and detail to allow the party to
prepare its views on the matter,

(ii) a reasonable period for the party to prepare its views, and
(Hi) an opportunity to present its views to the party having the duty to
consult; and
(b) by considering, fully and fairly, any views so presented.

Since YESAA was negotiated as a follow-up from chapter 12 of the UFA, it is
not surprising that it conforms to the same definition of Consultation. The result,
however, is that a more definitive procedure for conducting adequate consultation is
not provided. A document entitled, "Public Participation in Assessments" (2005)
published by YESAB reaffirms YESAA's commitment to public participation in the
assessment process. The document states (p. 1),

Opportunities for public participation will vary significantly depending
on the type of assessment under our Act. For instance the opportunities
for public participation

will be significantly

Committee

than

screening

for

a

greater for an

Designated

Office

Executive
evaluation.

Opportunities for public participation will also vary from project to project
based on the scale of the project, the environmental sensitivity to the type
of development and the concerns raised by the public. Timelines for
public comment may be extended at the discretion of the assessor within
the time periods prescribed by YESAB's Rules of Practice and Procedure.

66

Public meetings

may be held to provide

further

opportunities

for

participation.

While YESAA makes provisions guaranteeing First Nation input and
opportunities for public participation, nowhere in the Act or in "Public Participation in
Assessments" does it state in what form this inclusion will take place. The YESAA
assessor simply needs to contact the affected First Nation government according to
the criteria for consultation listed above. How this contact is translated into
meaningful consultation with the citizens of the First Nation becomes the
responsibility of the First Nation government. Throughout the YESAA assessment
process, concerned Yukon citizens, government agencies and First Nations must be
proactive in informing themselves and providing their respective viewpoints on a
given project under assessment.

R7

Figure 2.2: Land Rights Disposition Process- Non-settlement land (Public
Participation in Assessments 2005)
1. Proponent inquires about land
availability and submits land
application to Lands Branch with fee

2. Lands Branch pre-screens
application for completeness and
acceptability.

No. Project rejected

3. Lands Branch determines whether
proposal is subject to YESAA.

5. Proponent submits YESAA Project
Proposal with lands application to
Designated Office.

EMR REVIEW PROCESS

I
6. Assessor seeks input on Project
Proposal from government, other
agencies and public and conducts
assessment up to 30-60 days from
time of submission.

7. Assessor concludes assessment,
produces report with
recommendation and sends to YG
Decision Body up to 14 days.

8. YG Decision Body issues Decision
Document accepting, varying or rejecting
assessor's assessment recommendation
up to 30 days.

9. Lands Branch makes decision
based on land application

T

No. Project rejected

10. Surveying and subdivision approval

11. Agreement of Sale issued

The lack of a prescribed consultation procedure for the above processes
places a First Nation in a double-bind: it must adequately consult its constituents,

68

but it can only do so if it is adequately consulted itself. The Heritage Department of
Vuntut Gwitchin First Nation has a research application similar to the Scientists and
Explorers Permit application, but slightly more-tailored to VGFN's specific situation.
However, no guidelines or protocols are available from VGFN to assist the project
developer in the consultation process. Consequently, as this paper demonstrates,
the various mechanisms employed to regulate research and resource projects within
VGFN territory are inefficient and unreliable as a guide to consultation.
In order to examine how the community wants consultation to proceed, and by
what principles consultation is to be guided, it is important to understand the current
consultation processes in Old Crow. The second section of the results chapter will
elaborate the current communication lines, procedures and obstacles in Old Crow.
2.7 Theoretical considerations
The literature review has shown that the term 'consultation' can take on many
meanings. The courts have mandated it as a term to be used whenever there is the
chance of aboriginal or treaty right infringement. This makes the term 'consultation'
of supreme importance in guaranteeing aboriginal or treaty rights in Canada.
Conversely, public participation literature has relegated 'consultation' to a low place
on the participation spectrum, one that focuses on simply providing information and
receiving feedback with no commitments to using that feedback or guaranteeing a
relationship between the consulting and consulted parties beyond this exchange.
Given the above two understandings of consultation, one that makes it an all
important word for guaranteeing the preservation of aboriginal or treaty rights and

69

one that ranks it as 'tokenistic,' users are in a tenuous situation. If we maintain the
traditional public participation definition of consultation we are invoking a grossly
inadequate means of protecting aboriginal peoples' rights in Canada.
There can be little argument that this is not what the courts had in mind when
they made 'consultation' a fiduciary obligation for the federal and provincial/territorial
governments, nor is at all what the courts mean when they specify the duty to uphold
the honour of the Crown. It is thus important to push out the theoretical
considerations of the term 'consultation' from its meager position in the public
participation literature. It is imperative that a more comprehensive understanding
emerges that takes consultation's current legal use into account. Adequate and
appropriate consultation methods can never be successful if operating under the
antiquated understanding manifest in public participation literature.
Consultation is the means by which communities, government and industry
come to decisions on how to manage resources. Each region or community has
unique circumstances that must be taken into account when designing the
consultation process. The community must define for itself the level of consultation
and the principles and procedure that such consultation must follow (McKillop 2002,
Marsden 2005).
It is in the attempt to broaden the understanding of consultation, to make it
more responsive, open and appropriate to the situations in which it will be used and
the parties who will be subject to its implementation, that the research for this thesis
was undertaken. The first step in understanding the wider meaning of consultation is

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to understand the parties who are going to be consulted; how do they view
consultation, what principles or procedural elements are important to them? By
exposing the perspective held by the community of Old Crow, consultation theory will
move towards a more complete understanding of the topic. It can be hoped that this
effort may spur on other First Nations to also examine the issue of consultation in
their communities.

3 Methods
3.1 Old Crow and Vuntut Gwitchin First Nation
Old Crow is a geographic area encompassing approximately 300 inhabitants
in the North Yukon (Longitude = 139° 49.8' West, Latitude = 67° 39' North) (Old
Crow Official Website). It is situated in Vuntut Gwitchin Traditional Territory at the
confluence of the Crow and Porcupine Rivers. VGFN Traditional Territory is biozoned as interior sub-Arctic (Christian and Gardener 1977). The summers are short
and hot while the winters tend to be long and cold. The tree vegetation is
predominantly spruce, dwarf birch and alder, birch and willow.
Many Vuntut Gwitchin beneficiaries (those listed as VGFN citizens under the
VGFN Final Agreement) live outside Old Crow. For the purpose of this essay and
the purposes of adequate consultation, these beneficiaries are considered part of the
community of Old Crow. As will be seen below, they are defined as non-local
interest-based community members.

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The Gwitchin rely on the Porcupine Caribou Herd, which traverses the area
on its way to calving grounds on the North Slope (Alaska), for a great part of their
food and subsistence. People have maintained a seasonal round of activities that
tied them economically, spiritually, socially and politically to each other and to the
land (Sherry 2002).
In 1993 the Vuntut Gwitchin signed the VGFN Final Agreement with the
Government of Yukon and Canada (Vuntut Gwitchin Final Agreement). In the
agreement is stipulated the dimensions of their territory as well as their rights to
directly manage that land. The settlement includes a land base of approximately
7,744 square kilometers and monetary compensation of $19, 161, 859 CAD (VGFN
Final Agreement).
Individuals in Old Crow signed on to the Vuntut Gwitchin First Nation Final
Agreement and became beneficiaries of this agreement. While the vast majority of
people residents of Old Crow can be categorized as Vuntut Gwitchin, this term can
be misleading. The Vuntut Gwitchin First Nation is the government that was
established by the Vuntut Gwitchin First Nation Final Agreement. Beneficiaries are
recipients of the benefits incurred from this land claim and are also responsible for
electing local government and providing leadership directives and often simply
identify as Vuntut Gwitchin. However, Vuntut Gwitchin beneficiaries also identify
with other groups such as the Dagoo and Tetlit.
Old Crow has only existed as a permanent centre since the early 1900s,
before that time First Nations were settled all over what is now Vuntut Gwitchin

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Traditional Territory. For example the Dagoo people, according to Alfred Charlie, an
Elder in the community, were spread out from Crow Flats all the way to Eagle Plains.
In the summertime they would travel as far south as Dawson to trade and fish before
returning in the fall for the hunting season (Charlie N.D.). Similarly, other groups or
even families strongly identify with particular regions. This has important
implications for the consultation process.
The fact that community members identify with certain groups and certain
regions means they will have different preferences or feel differently than other
community members about activity in the traditional territory. It is important to note
that the homogeneity implied by the term Vuntut Gwitchin is in fact much more
diverse. It is all the more important for consulting parties to consult with a broad
section of the community of Old Crow in order to touch on these various sub-groups
within the Vuntut Gwitchin appellation. I found very little mention of the Dagoo, Tetlit
or Vuntut peoples in the extant literature on this region. It is enough for consultation
to note the diversity of peoples in Old Crow and act accordingly; however, this is an
area that may provide fruit for anyone wishing to study it.
All beneficiaries can take part in the annual General Assembly, where policy
directives are provided to the elected leadership. At the General Assembly the
Vuntut Gwitchin First Nation government reports on finances, activities and issues
over the previous year. The community also often receives presentations from other
groups associated with Old Crow, such as the International Polar Year or the Arctic
Athabaskan Council. The beneficiaries make resolutions in the last day of the

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General Assembly to direct the government's actions for the next year. This is an
important event for consultation as it is an excellent means of getting community
input and direction on specific projects or issues. While there have been complaints
of late that too many non-beneficiaries are speaking at the General Assembly, there
is an opportunity for consulting parties to have their issue raised through other
avenues. For example this project received a resolution from the General Assembly
encouraging it to be developed.
3.1.1 Consultation activities in Old Crow
The community of Old Crow has extensive experience with consultation, both
in its legal form and its more nebulous information sharing and communication role.
In 2008, over 30 research projects were active in Old Crow and Vuntut Gwitchin
Traditional Territory (VGFN Project Registry 2009). As will be examined later in this
thesis, all research projects must pass through a rigorous screening process both
with the territorial government, in the form of a Scientists and Explorers Permit, and
Vuntut Gwitchin First Nation government. VGFN vets incoming projects for cultural
and environmental appropriateness and sensitivity, relevance and methodology.
Particularly sensitive projects are further screened by the heritage review committee,
which is an advisory body made up of community members. Once through the
screening a project must sign an agreement with VGFN that delineates the
requirements for reporting, timelines and procedure. The agreement does not
specify how or in what form consultation should take place with community
members. Its only stipulations are on when and how interim reports should be
submitted (VGFN Template Research Agreement 2008).

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The research projects currently listed in the VGFN project registry range from
a project studying the hydrology and limnology of Old Crow flats, to a master's thesis
examining the role of traditional Gwitchin hymns in Anglican services. Other projects
of note include a "Heritage Resources Impact Assessment" conducted on behalf of
Northern Cross limited, an oil and natural gas exploration and development
company, and a project entitled "Experiential Learning in an Indigenous context:
Praxis of place, experience and criticality" (VGFN Project Registry 2009). The foci of
projects in Old Crow and the surrounding territory determines how much interaction
researchers will have with community members and how much consultation may be
required. While there are no specific criteria to guide consultation of this nature, it is
obvious from the number of projects listed in the VGFN registry and from the nature
of many of these projects that significant interaction between researchers and
community members is taking place.
From my own experience in working with a climate change risk assessment
project (led by the Arctic Athabaskan Council) in Old Crow, I understand the need for
appropriate consultation with community members to ensure project success and
cultural appropriateness. I detail below an example of community consultation that
occurred as a result of the project activities in Old Crow. The aim of this account is
not to make value judgments on what worked well and what did not, but simply to
describe the process in the attempt to give readers of this thesis better contextual
information on the community of Old Crow's familiarity with research projects in their
area and their interaction with researchers. The project began in August 2006 and
was completed in the spring of 2008.

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The first stage in the consultation process was a thorough scoping of the
community's interests in the topic area and preliminary input on how the community
would like to see the project progress. The project was first pitched to Chief
Linklater and other Council members to ascertain the degree of support from local
government. Upon affirmation of the project's significance from Chief Linklater, the
project was proposed to the Old Crow General Assembly. A resolution encouraging
the development of the project was granted by the General Assembly. Throughout
this first visit to Old Crow, the project team members were querying members of the
community on their ideas for the project's development. Communication lines were
kept up in the coming month and a focus group meeting to further define the project
framework was organized.
The second stage involved project development. A one day focus group
meeting was held with selected members of the community to define project steps,
instruments, goals and timeline. The project has been fundamentally developed by
the community with assistance and support from the project team members. During
this focus group meeting a research plan was devised, a timeline established and
the instrument for data collection defined. Follow-up from the focus group involved
sending the research plan and all of its parts back to the focus group members for
comment and approval. After approval from the focus group the research plan then
began its implementation phase.
The third stage was project implementation. A questionnaire (and list of
indicators), defined by the focus group, was filled out by 25 community members.

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The information was then compiled by the project team and analyzed (coded) for
common themes. A public meeting was held to present back to the community the
information that had been collected and to solicit comment/feed-back on the data.
The project team employed a community member to facilitate the meeting.
Participants at the meeting also gave feedback and further insight into the research
plan and consequent steps of the project.
It was the aim of this project to ensure meaningful participation through codevelopment with the community of Old Crow. All facets of the project were
developed from community input. After each stage was developed it was taken back
to the community for approval and further comment. Every effort was made to
involve as broad a range of community participants as possible.
In the period April 2006 to August 2009, 24 projects in Vuntut Gwitchin First
Nation territory have initiated processes mandated by the Yukon Environmental and
Socio-Economic Assessment Act (Yesab Online Registry 2009). The projects range
from water license amendments to summer oil drilling programs. In every case the
community must be informed of proposed activities and given opportunity to submit
concerns or feedback. The consultation process is not clearly delineated, but proof
must be shown by the project proponent that the community has been contacted,
informed and given adequate time to respond to the proposed activity.
I detail below an account that focuses on Northern Cross Incorporated's
consultation with the community regarding its oil exploration in Eagle Plains.
Northern Cross is an oil and natural gas company that has been operating in the

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north Yukon for almost twenty years. Eagle Plains is approximately 800 kilometers
east of Old Crow and within VGFN Traditional Territory. The right for disposing of
this land lies with the Yukon Government; however, many community members,
especially those identifying as Dagoo and Tetlit, have a strong connection to the land
in and around Eagle Plains. The aim of this account is not to make a value judgment
on Northern Cross's consultation process, but simply to explain the process initiated
by the company in order to contextualize the community of Old Crow's familiarity
with large scale project operations and consultation processes.
A phone interview with Northern Cross Vice President of operations, Gregory
Charlie, elicited information regarding public outreach and consultation processes
initiated by the company. Mr. Charlie is a long-time resident of Old Crow and also a
member of Vuntut Gwitchin First Nation. His roles and responsibilities include
managing the processes mandated by the Yukon Environmental and SocioEconomic Assessment Act, negotiating a benefit agreement with Vuntut Gwitchin
First Nation, under the Oil and Gas Act and making interim reports to Vuntut
Gwitchin First Nation government, including Chief and Council and the Natural
Resources department. I have corroborated information provided by Mr. Charlie with
Shel Graupe, the director of Natural Resources for Vuntut Gwitchin First Nation.
The first step in the consultation process was for the Board of Directors of
Northern Cross to work with the community to develop a program of consultation and
activity. This was achieved through multiple meetings with the director of the Natural
Resources Department and a public meeting with the community. The role of the

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public meeting was to provide the community with opportunity for public comment
and discussion of the strategic plan.
The next step was to discuss economic opportunities for the community of
Old Crow with the Vuntut Gwitchin Development Corporation. The VGFN
Development Corporation stands at arm's length from the government and oversees
development programmes in Old Crow and the traditional territory. The Corporation
has come under scrutiny of late for containing a high proportion of government
officials in its board of directors, thereby calling into question its arm's length status.
As a result of discussion with the Development Corporation a benefit agreement was
signed between VGFN government and Northern Cross.
Northern Cross keeps in regular contact with Vuntut Gwitchin First Nation
government and is always open to public inquiries. While, the Natural Resources
department maintains an open door policy, they defer questions about Northern
Cross operations and management to Mr. Charlie. To date there have been 13
public meetings to discuss development at Eagle Plains. The public meetings are
usually well attended, according to community members queried on the subject, and
provide dinner and door prizes to all meeting participants as is standard practice in
Old Crow. At the terminus of every meeting there is a question and answer period
with the community members, VGFN government and community members.
Community members admitted very little knowledge of current Northern Cross
operations in Eagle Plains, when queried in focus groups and semi-structured
interviews. Despite Northern Cross's consultation efforts, the majority of participants

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who spoke on the matter showed significant distrust for the company and their work.
One participant voiced the concern that Northern Cross was not forthcoming with
information about their operations and that even if something went wrong he did not
feel that Northern Cross would inform the community [FG 5]. Many participants
wished to have more information from Northern Cross and felt it was up to VGFN
government to ensure the community was kept up to date on any developments.
The issue was raised in the 2009 General Assembly meeting. Mr. Charlie, VP of
operations for Northern Cross, admitted that more work will have to be undertaken to
ensure adequate consultation with the community.
It is apparent from the above accounts that the community of Old Crow has
substantial experience with consultation processes in their many forms. The fact
that in the last three years over 54 projects were active in Old Crow and VGFN
traditional territory suggests that the community is well versed in consultation
processes or the lack thereof. It is a fair conclusion to state the community of Old
Crow stands in an officious position from which to speak on the theory of
consultation and how it would like consultation to proceed in the future. The
essence of communication with community members, through public meetings,
focus groups, interviews, questionnaires or other means are common to all
consultation processes. It is the aim of this thesis to elucidate the community's
perspective on consultation, a perspective that is grounded in extensive experience
with previous and current processes.

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While there is a strong case for Old Crow's experience with consultation and
outside project activities, there has not been a lot of large-scale resource
development in Old Crow or within VGFN Traditional Territory, with the exception of
Northern Cross Incorporated's activities. Advancing technology, global climate
change, and world demand for resources will likely change this scenario (Hassol
2004, p. 8). It is thus important for the community of Old Crow to formulate a
definition or criteria for consultation on their own terms. The manifest distrust for oil
companies is predicated in part by a history of poor consultation. It is important to
overcome hurdles such as these in order that history does not repeat itself.

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Figure 3.1) Traditional Territories of Yukon First Nations and Settlement Areas of
Inuvialuit and Tetlit (Yukon Government 2008; Old Crow official website 2007)

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3.2 Case Study Method and Rationale
The case study, in its most basic form, is "an examination of a specific
phenomenon such as a program, an event, a person, a process, an institution, or a
social group" (Merriam 1998, p.9). Creswell (1994) defines a case study as an
attempt to understand a single phenomenon or entity, temporally, spatially and
procedurally bound, in which the researcher collects detailed information though
various data collection procedures, over a sustained period of time. DeMarrais and
Lapan (2004, p. 218) state that case studies "seek to answer focused questions by
producing in-depth descriptions and interpretations over a relatively short period of
time, perhaps a few weeks to a year." Case studies should be selected based on a
balance between maximizing time and resources and what can be learned in the
period of time available (Tellis 1997). Multiple case studies do not necessarily
ensure better or more applicable results (Yin 1984, Feagin et al. 1991, Flyvbjerg
2006).
Yin (2003) argues that the size of the sample (whether two, ten, or 100 cases)
does not always lead to a better understanding of a particular situation; rather, the
number of cases selected should be guided by the goal of the study. The goal of the
current research is to improve the understanding of what consultation principles and
procedures are important to the community of Old Crow and how they can be
implemented in a meaningful way. The inherent differences among communities,
manifested in individual land claims settlements and self-governements, suggest that
results obtained from other communities may not apply to the Old Crow situation.
While a comparative analysis would be interesting between communities in the

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Yukon, no such studies exist and it is beyond the scope or goal of this research to
conduct multiple studies.
3.3 Data Collection Methods and Management:
Data collection was divided into three distinct stages: scoping, focus group
interviews and semi-structured interviews. Two methods were used, namely: focus
groups and semi-structured interviews. The use of multiple methods assures a
deeper understanding of the topic or subject (Frankfort-Nachmias and Nachmias
2000; Denzin and Lincoln 2005). The strengths of each method are utilized to
ascertain information and collect data, thereby improving the quality of research and
information collected (Babbie 1987). The process was iterative, in that it involved
returning to the community for verification and validation after every stage.
Ethics approval was obtained for 2006-7 and 2007-8 from the University of
Northern British Columbia and Vuntut Gwitchin First Nation. A Scientists and
Explorers permit was issued by Yukon Government for both years.
3.3.1 Scoping
Scoping was undertaken prior to data collection. I met with community
members and Elders in Old Crow, consultation experts with experience in Old Crow,
and the Vuntut Gwitchin First Nation Chief and Council. I made a presentation to the
community on the projected work and received a resolution from the General
Assembly encouraging the research to go ahead. A similar resolution was obtained
from Chief and Council to the same effect (Appendix C). Two weeks, spread over
two discrete visits, were spent in the community of Old Crow prior to data collection.

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3.3.2 Focus Groups
3.3.2.1 Overview
Focus groups ranged in size from 4-9 persons. Meetings lasted
approximately one hour for each group. All meetings were audio recorded, and an
official note-taker was arranged. Participation in the focus group was voluntary, and
confidentiality outside the group was guaranteed. Participants were advised that
they could withdraw from the group at any time, and, wherever possible, their
information would be stricken from the record. All participants read, or were read an
information sheet, and signed the attached focus group consent form (Appendix D).
A translator (Lorraine Peter) was present to address any confusion. The focus group
was conducted entirely in English. All focus group participants were paid honoraria
of $150 CAD.
Participants were given, at the beginning of the focus group session, the
general list of consultation principles derived from the literature to introduce the topic
and to help guide discussion. A set of questions and prompts was used to guide
discussion. No participants withdrew from the focus groups. All audio tapes will be
destroyed at the termination of this project to ensure anonymity.
3.3.2.2 Focus Group Adaptations
It was necessary to adapt the focus group interviews to changing
circumstances. The first attempt at focus group interviews was postponed due to a
death in the community. It was necessary, in reorganizing, to take two additional
factors into consideration: concurrent projects and maximization of resources. The

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community of Old Crow has undergone and continues to undergo much study. With
this in mind, three projects combined resources in order to share resources and
provide a more efficient means of sharing information. These projects were: the
Arctic Athabaskan Council led 'Climate change risk assessment' (mentioned above),
a joint VGFN, Council of Yukon First Nations and University of Northern British
Columbia 'Food security' project (as yet untitled), and the research for this thesis.
Focus group meetings were set at 3.5 hours. Each project was guaranteed
one hour of discussion time per focus group. The Climate Change Risk Assessment
took the first hour, 'Building Consultation' the second, and Food Security was
discussed in the third hour of the focus group. Clear lines of demarcation were
drawn between each project, including a reiteration of the purpose of the project
about to be discussed to ensure differentiation. The preliminary results for 'Building
Consultation,' showed no crossover in topic areas. Participants were able to make a
clear distinction among projects and limited themselves to the topic area under
discussion. It was determined that data integrity was maintained and no special
qualifications were made.
The presence of Lorraine Peter throughout all focus group meetings did not
seem to affect data. I believe that her presence lent credibility to this research and
also helped to instill trust in the process. Mrs. Peter is a well-respected community
member and has served as the Member of the Legislated Assembly for Old Crow.
Her services as translator were not utilized; however, she opened all focus group
meetings, provided distinctions between the three projects being discussed and

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closed the meetings. From this experience it seems very important to have a person
from the community coordinate and administer focus group and public meetings.
3.3.2.3 Focus Group Feedback Mechanisms
Feedback was provided to the participants of each focus group in the form of
a detailed summary report. A summary report was chosen to maintain anonymity.
Several focus group members, after the focus group meeting, expressed concerns
over information sensitivity and a full transcript was deemed high risk. Relevant
quotations were included in the summary report; however, no direct attributions were
made. The summary report is consistent with the literature in that themes were
derived from the original transcript and detailed in the report. Participants were then
able to comment on the themes and attendant quotations. As information was not
used from the focus groups outside of the summary reports, I believe information
integrity was maintained. Summary reports were mailed to focus group participants
with a pre-paid, self-addressed envelope included for feedback responses, phone
number and email address. A deadline of 1.5 months was set for response past the
mail-out date. In addition, I made personal visits to collect feedback from
participants. This feedback was included in the data analysis phase. Audio files
were not shared with focus group members. The summary report was the primary
document for data analysis.

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3.3.3 Semi-Structured Interviews
3.3.3.1 Overview
Semi-structured interviews were chosen as the primary interview technique.
This allowed for a high degree of freedom in the interview and avoided
stimulus/response modeling recognized in survey techniques (Neumann 2004).
Specific questions initiated discussion (Bryman and Teevan 2005); however, the
interviews took on a depth interviewing approach (Hakim 1987). As described by
Hakim, this form of interview is
"of variable length...and may be extended into repeat interviews at later
dates. Although the interviewer guides the discussion enough to focus on the
topic of interest, the depth interview provides enough freedom for
respondents also to steer the conversation, for example to bring in all sorts of
tangential matters which, for them, have a bearing on the main subject"
(Hakim 1987, p. 26-27).
Fifteen semi-structured interviews were conducted over a span of two weeks.
Interview times ranged from 25 minutes to an hour (average time approximated 43
minutes). Interviews took place in person, usually at the interviewee's place of
residence, or in some cases that of the researcher. All interviews were audio
recorded and notes were made of important points deserving of further discussion in
the interview. A series of 14 questions were asked of each interviewee; following the
interviewee response, various prompts were used to elicit further discussion and
information. All interviewees read or were read an information sheet explaining the

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project and advising the participant that all information would remain confidential and
anonymous and that participation was voluntary and the participant could withdraw
at any time (Appendix E). All participants signed the attached consent form. Notes
were taken by the researcher post-interview to further contextualize comments.
3.3.3.2 Interview Feedback Mechanisms
Feedback was provided to interview participants in the form of an interview
transcript. Participants could also obtain a digital audio file of the interview upon
request. The transcripts were mailed out to all participants with a prepaid, selfaddressed envelope included for feedback purposes. Participants could also
provide feedback via email or telephone. A deadline of 1.5 months was set past the
mail-out date for feedback. Feedback was included in the data analysis phase.
Interview transcripts were the primary document for data analysis. I transcribed all
interviews.

3.4 Insider/Outsider Status
The position of the researcher within this project merits discussion of insider
versus outsider status. The insider/outside distinction is an oversimplification in
most instances (Page 1999: Eppley 2006). Miles and Crush (1993) argue that the
interviewee/interviewer dynamic is not reducible to an insider/outsider definition.
The insider/outsider relationship is better viewed as existing over a continuum rather
than as a binary (Griffith 1972). The researcher's position exists somewhere within

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this continuum. Positionality will affect relationships, data gathering and the
expression of research data (Griffith 1972).
Positivistic thinkers have tried to minimize positionality by reducing the
interaction between the researcher and those being researched (Maxwell 1996).
Post-positivistic methodologies, in contrast, argue that all knowledge is socially
constructed (Di Leonardo 1991). Di Leonardo argues that positivistic methodology's
effort to 'minimize' bias ignores the true positionality of the researcher, thereby
compromising information integrity. Instead, recognizing one's positionality is the
key to good research methodology, data gathering and analysis (Alcoff 1994).
Identities and attendant power relations are defined and transformed in
dynamic and interactive ways (Griffith 1972). Mullings (1999, p. 341) argues that
uncertainty will always be present in the evaluation and analysis of research data
and that naming these uncertainties is "an important step towards not only
establishing rigor in the research process, but also to displacing the indomitable
authority of the author."
I continually reflected on my positionality along the continuum between insider
and outsider in order to assess how it would affect the data (Merton 1972).
Positionality fluctuated throughout the project due to circumstances, timing and the
project's various stages. There was a great fluidity throughout the process. My
position could even fluctuate within interviews depending on the content of the
conversation. At some points I was a Northerner, just like they were, and at other
times I was a Southern academic. The elements and issues with respect to

90

positionality are infinite, though it may prove helpful to list some of the more common
ones. Contributing factors to the insider pole were mutual interests, common
experience (hunting, trapping, wildlife, etc.), place of residence and family affiliation.
Contributing factors to the outsider pole were difference in vocabulary and diction,
skin colour, education, divergent interests and differing experience.
3.5 Participant Selection
Interest groups were defined by Cindy Dickson (Executive direction (Canada)
of the Arctic Athabaskan Council Chair, and citizen of Vuntut Gwitchin First Nation),
Darcie Matthiessen (former Director of the Old Crow Renewable Resource Council),
Lorraine Peter (former MLA for Old Crow and owner of Destiny Consulting - Old
Crow and citizen of Vuntut Gwitchin First Nation) and me. It was important to
include Ms. Peter and Ms. Dickson, both who grew up in Old Crow and who are
intimately familiar with it, and Ms. Matthiessen who, while being familiar with the
community, only spent two years living there. I felt that by getting the insider and
outsider input we would be able to better characterize the community and its interest
groups. Interest groups were categorized by gender, family affiliation, specialinterest, age and experience (Appendix B). Community members often belonged to
more than one interest group. Names of community members were listed under
each group as appropriate. Interest groups were then analyzed according to
number, respective ages, and relative proportions of men and women. Criteria for
selecting members from each group to participate in focus groups and semistructured interviews were based on representativeness of the larger group (drawing
from a variety of ages and maintaining relative proportions of men and women),

91

representativeness of all groups (ensuring that at least one member from all
categories participated), and willingness to participate. If a selectee declined
participation, the next most suitable candidate was selected based on the above
criteria. Every effort was made to ensure that selectees only participated in one form
of data collection (focus group or semi-structure interview) and were not selected for
more than one instance of either method.
In total, 29 community members were contacted regarding the study and 26
agreed to participate. Two individuals declined to participate in the study. Reasons
were not cited at the time for their refusal to participate. Participants ranged in age
from 19 to 75, with the highest concentration of participants in the 30-50 year old age
bracket. Twelve women and fourteen men participated in the study.
Focus group size and number were first determined by the needs of the
study. Four factors contributed to size determination: the number of questions, the
required time for each question, the format of the focus group session and the
duration of the session (Tang and Davis 1995, p. 474). The ideal focus group
number was set at 6-12 members (Lindlof 1995; Brown 1999), however; it was
determined that focus group numbers could drop as low as 4 members without
compromising data integrity, due to the homogeneity of the groups (Brown 1999).
The number of focus groups was set at three due to time and financial constraints;
however, had each focus group presented new themes, it would have been
necessary to use more focus groups. The repetition of themes within the focus

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groups suggested that three groups was an appropriate number (Glaser & Strauss
1967, Strauss & Corbin 1998).
Focus groups were set up with the three numerically largest interest groups in
Old Crow: men, women and youth. The community of Old Crow is numerically
small, so the rationale behind using the three largest numerical groups was to
ensure appropriate focus group size (between 4-12 persons).

An effort was made

to reduce intra-group clumping - the phenomenon of smaller interest groups being
included in a larger group. To this end, participants were selected so as to ensure
that a wide-range of other groups were included, such as different families,
occupations, etc. The backgrounds of individual participants in the focus groups was
acquired and noted to better contextualize comments. VGFN employees (Chief and
Council and department heads) were not involved in the focus groups to avoid any
conflict of interest in the discussion forum. VGFN employees' data was gathered
through semi-structured interviews.
Semi-structured interview participants were selected from the above 'interest
group' criteria in an effort to include groups that were not part of the three focus
groups. Fifteen interviews were conducted. Two individuals declined participation
and the next most suitable candidate in both cases was contacted and agreed to
participate. In three other cases, the selected individual was not present in Old
Crow. Given the time-frame and logistical situation, the next most suitable individual
was selected and agreed to participate in all three cases.

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Overall, 26 community members participated in the project. The population of Old
Crow is 256 people (Yukon Bureau of Statistics 2007). Approximately 11 percent of
the population participated directly in the project. All interviewees were paid
honoraria of $50 CAD per interview, as recommended by the VGFN researcher
agreement.
3.6 Data Analysis
The method for analyzing the focus group information was modeled on
Fereday and Muir-Cochrane's discussion of a hybrid approach to coding (Fereday
and Muir-Cochrane 2006). Fereday and Muir-Cochrane describe a methodological
approach that integrates data-driven codes with theory-driven ones. A hybrid
approach was used to ensure a complete coding of the data and also to differentiate
between new information generated by the focus group and themes stemming from
the principles of consultation provided for the meeting.
The data went through three rounds of analysis. In the first round, a codebook was used. Due to the reliance on deliberative democratic theory and public
participation theory to inform discussion, it follows that use of an a priori, theorydriven template would elicit information directly pertaining to extant theory (Crabtree
and Miller 1999). Fereday and Muir-Cochrane (2006) describe how when using a
template, a researcher defines the template (or codebook) before commencing an
in-depth analysis of the data. The codebook is sometimes based on a preliminary
scanning of the text, but for this study, the template was developed a priori, based
on the research question and the theoretical framework. The template used for the

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data analysis in this thesis replicated the 'Principles for consultation' derived from the
extant literature.
In the second round of analysis, themes were identified (coded) that captured
the qualitative richness of the discussion prior to an interpretation of the data (Babbie
1987). The themes from both rounds of analysis were combined. Often the same
data was grouped under multiple themes. In total, there were twenty-two themes
identified. In the third round of analysis the relationships between patterns were
identified (Bryman & Burgess 1994; Humerman & Miles 1994; Powell and Renner
2003; Neuman 2004) and grouped into five meta-themes. The data was then
recoded according to these five themes. Original coding was also maintained. An
example of what the data looked like after the three rounds is included below. Code
A refers to themes arising from the code-book, code B refers to themes arising
without the code-book and code C refers to the meta-theme.
"The Chief and those big guys up there. They are the ones that let them
come in here. They are the ones that look after us." [A3 - representative and
accountable] [B6 - consultation responsibility] [B8 - community
representatives] [B9 - trust] [C2 - trust and respect] [C3 - representation]

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4 Results
The following sections, 4.3 and 4.4, are results of on-site research. Quotes
have been employed to maintain the qualitative richness of the data. Section 4.3
details VGFN's resource application referral process. All data in section 4.3 was
collected through semi-structured interviews with VGFN employees. Section 4.4
details principles or themes of consultation as identified by research participants in
both semi-structured interviews and focus groups.
4.1 Vuntut Gwitchin First Nation Resource Application Referral
Processes
The Natural Resources Department (NRD) of VGFN is responsible for land
management as per the Vuntut Gwitchin Final Agreement. The NRD is divided into
two sections; Natural Resources/Lands, and Heritage. Land based activities are
administrated by the NRD Director and the Land Manager. Outside projects not
directly impacting the land are assigned to the Heritage Manager who reports
directly to the NRD Director. For example, this thesis, although it concerns natural
resource management, was coordinated through the Heritage section because it
does not directly affect the land.
The two sections have similar but distinct project review processes. Often,
due to issues of capacity, one will assist the other by coordinating meetings or
arranging other logistics. The processes for reviewing lands applications by each
section are presented below based on interviews with VGFN employees. It should
be noted that the terms 'Natural Resources' and 'Lands' are used interchangeably in
the text and by interview and focus group participants quoted in the following
sections.

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4.1.1 Natural Resources/Lands
The bulk of information regarding applications for land exploration or
development is received by VGFN through the YESAA process, which posts all
project applications on a public access registry. Emails notify VGFN employees
when a project is proposed that may affect the community or VGFN lands. A project
proponents' first point of contact is chief and council. Chief and council vet all lands
and resources applications. If appropriate, chief and council contact the Natural
Resources Department (NRD) to arrange a public meeting.
"There is no standard protocol to follow. It is all about building relationships
and the first step is getting in touch with Chief and Council and getting the
email addresses of the people they should be in contact with and the ball
starts rolling from there." [S3]
"/ don't know why it [Lands] doesn't have a concrete process for them
[projects] and it would make sense to develop one." [S1 ]
Public meetings are the primary deliberative mechanism employed by VGFN.
Employees generally recognized that participation has depended on the project
under discussion. Any meeting to do with oil and gas had good attendance;
however, employees noted that other project meetings were not as well attended. It
is the lack of attendance that has prompted discussions on how to improve
communication between VGFN and the community.
"We have had some conversations internally in our department about what
other options are available to get feedback; to have more involvement, higher

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involvement, to put mechanisms in place to make the community feel
comfortable and able to provide their feedback." [S2]
A meeting will usually decide whether a project will go ahead and in what
form. Projects are expected to report back on their progress at appropriate times,
though no regulative mechanisms (such as ensuring reports are made, site
inspections, environmental monitoring, etc.) is in place to monitor current projects.
4.1.2 Heritage
The primary information source for the Heritage Department differs from that
of Lands, though there may be overlap in the event that an exploration or other lands
project will have implications for VGFN heritage. There is no formal process in place
for contacting the Heritage section so the means of initial contact vary.
"It [Heritage] has a Vuntut Gwitchin researcher application so they [project
proponents] often contact the department first. There is a contact point on the
website that is for researchers and media or they call [Heritage] or [Heritage]
will get an application through the Scientists and Explorers Act process and
[Heritage] then asks the researcher to put in a Vuntut Gwitchin application."
[S1]5
There is no information provided to researchers on how to appropriately
consult with the community, either through the Scientists and Explorers Act or the
VGFN Research Agreement. It was noted by two VGFN employees that it would be

5

Codes are assigned to participants to maintain anonymity. The numbers were assigned to individual
participants randomly. The S and F substitute "semi-structured interview participant' and 'focus group
participant' respectively.

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beneficial to make an information package available to researchers about how best
to carry out research in Old Crow [S4, S10].
Once contact has been made, the project is reviewed internally for community
sensitivity and may go through another review process by the Heritage Review
Committee. If the application is approved, Heritage completes a research
agreement with the researcher based on a template adjusted to each project. The
template covers reporting requirements and other basic information sharing
provisions. There is also a provision that the researcher must consult with either
Heritage or the NRD Director or the Lands Manager if appropriate; however, the
form of consultation is not specified [S4].
If a community member is interested in acquiring more information on current
projects in Old Crow there are few options at their disposal. A VGFN employee
stated that the principal means is directly from the researcher.
"Often the researcher is required to come to the community to do a
presentation rather than relying on their interim reports, so that is the primary
means [of gathering information on projects]." [S3]
VGFN maintains a central registry of all past and current projects in Old Crow. The
registry is only accessible by the employees of the NRD.
"[Heritage] will often do a printout of all the researchers that can be expected
in the year so the people can know who is coming." [S1 ]

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The printout was not mentioned by any other interviewee as a means of
acquiring information on current projects in Old Crow, suggesting that it has minimal
communication impact. One employee observed that it would be beneficial if the
central registry could be made more accessible to the community.
Both the Natural Resources/Lands and the Heritage sections agreed that
consultation works best when the project is not already completely defined. One
employee stated,
"Good consultation is when you haven't already set up the project or the act
[territorial legislation] and there is genuine input." [S2]
4.1.3 Summation of Current VGFN Processes
VGFN employees were knowledgeable about current Yukon Territorial project
assessment processes. Employees were able to accurately outline the path a project
must follow in order to be granted permission to conduct exploration, development or
research. However, though employees were proficient in their responsibilities,
specific problems with VGFN's current resource management processes hinder
adequate consultation.
Heritage has a template agreement that it provides to project developers
conducting research on VGFN lands. However, the template agreement does not
specify how, or in what form, the project developer should inform and receive
feedback from the community. Lands does not have a template or protocol to
instruct project developers on how to consult with the community. The result of both
scenarios is that the project developer may not have adequate resources (financial

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and/or personnel) or adequate knowledge to consult effectively with the community
of Old Crow. The community may, as a result, be subjected to inadequate
consultation. As will be noted further in this chapter, participants place responsibility
on VGFN to ensure project developers have the requisite information and capacity to
provide adequate consultation.
Another problem is that it is very difficult for community members to obtain
information on past or current projects in VGFN lands. The central registry is not
open to the public. No participant mentioned the registry printouts of incoming
projects, which suggests that it has no communicative value to the community. It
was noted by employees that the primary means of obtaining information is from the
researcher, often at a public meeting. However, the fact that community members
are expected to make a decision on a project in the same meeting as they are
presented with information about the project is problematic. Community members
do not have time to discuss the project and prepare their views. This situation will be
discussed later in this chapter, but is worth mentioning here as it directly pertains to
VGFN's current processes. The NRD employees' are always willing to receive
feedback at any time from the community and have instituted an "open door" policy.
It can be argued that this is not the most efficient means of disseminating
information, though laudable in its manifest concern for the community.

4.2 Principles of Consultation
4.2.1 Information
Results from the focus groups and semi-structured interviews showed that
quality of information is a crucial factor in the consultation process. Participants

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raised three issues with respect to information: quantity, presentation and community
comprehension. These three factors are interrelated. For example, the quantity of
information must be coupled with appropriate presentation otherwise it will not be
understood by most of the community. However, the presentation can be good and
the community may understand the information presented, but the quantity is
insufficient to inform decisions. While it is recognized that quantity, presentation and
comprehension are inter-related, the results will be presented separately for each
factor and linkages to the other two factors will be discussed where appropriate.
4.2.1.1 Information quantity
The majority of participants stated they were not receiving adequate amounts
of information regarding new and current projects in VGFN territory. Responsibility
in this situation was placed on VGFN for not providing enough information on current
projects and activities. Responsibility was also placed on project proponents to
provide interim updates to VGFN and the community on their activities. Participants
suggested a number of improvements in communication lines to ensure that
appropriate amounts of information were being provided by both VGFN and
proponents to the community.
Eighty-five percent of participants felt they were not receiving sufficient
information on current or proposed projects in Old Crow. Ninety-one percent of
those who raised the issue of insufficient information quantity placed the
responsibility on VGFN. The general feeling from participants who spoke on the
matter was that VGFN could be doing more to inform the community on current and
upcoming projects. Focus group participants (FG participants) were more outspoken

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regarding VGFN's communication with the community than semi-structured interview
(SSI) participants. FG participants generally agreed that VGFN was not doing
enough in this regard and expressed significant frustration with the current situation.
"There should be more information provided from our government to our
people about what is really happening instead ofjust getting a few words with
blanks here and there. I think those blanks need to be filled in." [S8]
Participants did not blame VGFN exclusively for a lack of information and
recognized the need for proponents to provide interim updates on their projects and
for VGFN to subsequently make them public. Seventy-eight percent of participants
also placed the responsibility for information on project proponents. FG participants
generally agreed that a meeting at the beginning and the end of a project is
insufficient.
"The project manager from that project should keep in touch with a manager
here and they should keep the community informed through meetings like as
it progresses through the internet—keeping in touch." [S5]
Participants suggested a variety of means to improve communication
between VGFN and the community. I have tabulated the suggestions below (Table
4.1); the bracketed numbers reflect the number of participants who made the specific
suggestion. Some participants suggested more than one improvement.

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Table 4.1) Focus group suggestions for the improvement of communications
between VGFN
Suggestion

#

Sample comment

Newsletter

(10):

"There should be a newsletter in this community where
people can know what is going on all around town what's
happening what meetings when, what the meetings are
about." [S9]

Reports

(5):

"[VGFN] could produce reports" [S7]

Meetings

(4)

"/ think there should be more meetings, like once a
month updates with Chief and Council, or maybe every
two months. To keep people updated on what's going
on." [S9]

Radio

(3)

"The radio. A lot of people listen to CHON [FM] around
/?ere."[S11]

Information
book

(3)

"Yeah there needs to be a book somewhere listing all the
researchers, IPY and whatever other research that is
happening here in Old Crow" [S4]

Website

(3)

"Have an updates section on the website" [S5]

Video

(1)

"There should be a video on what's out there already,
what wells are already out there." [F1 ]

Messenger

(1)

"Get somebody to go through town and let the older
people know.. .because half the time 1 don't know what is
going on in town. That's the way long ago you know
send a messenger around, a guy running around camp,
and they are going to have meeting and that and they all
come together." [S6]

Toll free
number

(1):

"It would be nice to have a toll free number to call." [S5]

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A minority of participants (3/26) expressed the opinion that the community
was receiving adequate information from VGFN regarding projects in Old Crow. The
number of women doubled the number of men in this regard. This, in my opinion,
reflects their connection to activities in VGFN. All three participants, though not fulltime employees of VGFN, were employed at some point. Their perception of
information flow is influenced by better access (direct and indirect) to information at
VGFN through working on projects and being employed by the VGFN. Another
explanation may be that they did not want to speak poorly of their employer, though I
have no evidence to back up this assertion.
Two participants stated that the problem also lies with the community and that
community members are not actively seeking out information or attending all
information sessions. While there are a number of factors associated with lack of
participation, it is important to note in this section as it will certainly hinder any
quantitative improvements VGFN or proponents may make if community members
are not interested in taking in the information.
"Old Crow is just so...everybody just down they don't care no more it just
seem like, they just go home alone. The thing is that the general assembly,
remember when the old lady passed away and [the General Assembly]
started already so they had just had one day. Later on they had two days and
nobody showed up. So that is part of it." [F1 ]
4.2.1.2 Information presentation
Sixty-two percent of the research participants stressed the necessity of
presenting information in a way that was appropriate to the community. The criticism

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of inappropriate information presentation was leveled at project developers. There
was no mention of VGFN presenting information in a less than satisfactory way.
Participants recognized that the results of poor information presentation were
frustration and absenteeism from deliberative processes, to the detriment of the
community.
"Half the time I don't understand them what the heck. Half the time I make
out, eh. Depends on how they talk." [S6]
"A lot of that jargon., .is chaos and it is lost here. People get frustrated and
stay away. And at the end of the day it is [the community members] who are
being affected." [S9]
All research participants who spoke on the issue agreed on the solution simplify. Men were slightly more prominent than women (sixty-seven to fifty-four
percent) in their call for simpler presentations. Participants argued that project
developers must make an effort to present information in a simplified way, using
simple words and breaking complex ideas down into ones that can be more easily
digested by the community. Another solution mentioned by participants was the
creation of a coordinator position to assist in information presentation and logistical
arrangements.
"A lot of people really don't understand. Like if you sat down with

, and

you explain it in the simplest form and try to get them to understand what you
are doing, why, and take the time to explain to them, then they'll understand
it." [S9]

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"/ think it would be very challenging for an outsider who hasn't spent very
much time in Old Crow to try and come up here and arrange a meeting on
their own, because so many things happen just by knowing the right
person... "[S4]
While participants unanimously directed their suggestion for simpler
presentations to project proponents there are also examples of good presentation
techniques. For example, the various International Polar Year (IPY) projects
conducting research in Old Crow have coordinated their presentation efforts and
have shown some understanding of how to communicate with the community. In
addition to all IPY projects presenting on the same day, their presentations include
updates on work being conducted, preliminary results and a focus on how the
community may be affected. From my experience of the presentations they were
simple and contained excellent imagery. These projects serve as a good example of
how to present to the community, and are recognized as such by many community
members [S4, S12, S14, F2].
4.2.1.3 Community comprehension
The effectiveness of community comprehension is closely bound to the issue
of information presentation, but this alone is not sufficient. When asked what some
of the major obstacles to consultation are in Old Crow, almost thirty percent of the
SSI participants responded 'lack of education.' They felt that information could only
be simplified to a certain point beyond which the integrity of the idea becomes lost.
To facilitate comprehension, a degree of instruction is required and this should be

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delivered by proponents, researchers and VGFN in concert with the simplified
presentations.
"The problem is to get people more educated. If they were more educated on
what's happening in meetings, to ask the right questions. Because they
usually don't understand and then they don't know the right kind of questions
to ask. "[S11]
The importance of providing rationales for why participants hold certain
opinions was recognized by three participants [S11, F3, F6]. They believed
community members should have the ability to say why they do not support a
proposed development. This coincides with the insights of Cohen (1999), and
Guttman and Thompson (1996) who stress the necessity of providing rationales
behind given preferences in the success of the deliberative process. To this end,
participants suggested an education component of the consultation process to
improve the capacity of community members to provide reasons for their support or
lack thereof for a given project. Women were slightly more prominent than men
(forty-five to thirty-three percent) in their call for an education component.
"They have to be educated first so they can say why they don't want it to
come through."[S6]
It is an interesting reversal when considering that the men were more
prominent in their desire for simple presentations. The youth did not speak at all of
an education component, which I believe reflects the higher levels of education
among young people in Old Crow.

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4.2.2 Trust and Respect
The words trust and respect came up repeatedly when discussing issues
surrounding consultation. Another phrase often attached to these two words was
"relationship building". According to the participants in this study, the levels of trust
and respect are roughly proportional to the amount of time and effort put into building
a relationship with the community. The prevailing sentiment regarding new projects
was one of distrust. The distrust is explained most adequately by three factors: a
history of disrespect, a lack of information flow and no recognition of community
concerns. In addition there was a general distrust of the consultation process in
general. Consultation was viewed as an extension of powerful forces outside of Old
Crow that could manipulate them to suit their own interests. However, participants
recognized that it is possible for a project to build a strong relationship with the
community and thereby create mutual trust and respect.
Study participants were on the whole distrustful of oil companies. Men were
much more vociferous on this issue than women. Only one woman mentioned oil
companies whereas nine men commented strongly on them. Another interesting
breakdown is that all participants who self-identified as people who spend a lot of
time on the land were distrustful of oil companies. Participants cited a history of poor
consultation and poor environmental ethics as the primary causes for this antipathy.
Participants' concerns were concentrated on the protection of natural resources especially protection of the fragile ecosystem which the community relies upon for its
traditional way of life. Participants were adamant that oil companies were not taking
their ecological concerns into consideration. The community and oil companies are

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coming at the issue of development from drastically different perspectives: one
focused on environmental protection, the other focused on environmental extraction.
"If oil companies are saying "none of the waste is going into the rivers," can I
seriously believe that? No, I can't."[S7]
"An [oil] well could be leaking up there right now; they're not going to tell us."
"On one hand we are defending the land and the water; the environment.
And on the other hand there are these people that want to take, take, take.
So there has to be a compromise and build a good working relationship. And
I think consultation is something that really needs to be defined clearly too;
what is consultation and who do you consult?" [F3]
Past examples served as the basis for the general mistrust. One participant
in the men's focus group was an environmental monitor for an oil exploration project
and reported birds dying from eating poisoned soil which they had ingested to
replenish their gizzards [F3]. According to him, the company suppressed his report
and he never heard anything back about the issue. Whether the claims he makes
are true or not, I have no way of independently confirming, nor do I have any reason
to disbelieve them. The implications for the consultation process are the same
whether it is true or not, because the implications are based on community
perception. There is a distrust of oil development due to the perception of wrong
doing in the past. This is a problem that cannot be easily remedied.

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"You have to understand it is going to take a long time for the communities to
understand and be trusting of the oil companies because of all the trauma and
disrespect they did to their people twenty years ago." [S7]
While it was recognized that the consultation process should be a significant
factor in resource management decisions, there were distinct misgivings regarding
whether the process was effectively serving community interests and concerns.
Consequently, all participants who mentioned 'oil companies' believed them to be
untrustworthy when it came to negotiating and implementing best practices for
adequate resource protection. One participant voiced the general feeling.
"If we let them drill here, we're finished. They don't care what they do. If you
make a meeting, it won't stop them." [F4]
The same distrust and antipathy were mentioned regarding outside projects in
general. Another story was recounted to illustrate the lack of respect for the
community's opinion. The story had been mentioned to me before the focus group
interview from which I obtained the following version. People use it as a tag for poor
community involvement in projects, referring to it as 'like them moose collars.' While
I do not have the proponent's perspective on the story and cannot comment on the
veracity of the elements described, it serves two purposes; to illustrate participants'
general distrust for the consultation process and also as a good hypothetical
example of how not to go about consulting with the community.
"Spring there is some biologists, they want to go into Crow Flats and tag and
collar some moose and they have a meeting during the day and everybody is

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off working. [Community member name] was there [community member
name], and they could barely hear what was going on. Five/six people sitting
there. Why they have that meeting was to ask the public what they think
about doing that. And the elders in here, just a few, said "no, we don't want
you to do that." They have a big collar on the table and a good sized collar
you know for moose and a lady said, "you're not going to put that collar on a
moose, you've done that on the caribou for years and now you going to start
doing that to moose." I thought, why? I ask, "why are you having this
meeting?" Because they want to know if it is okay to do it. And think, with that
few people they still went ahead and do it anyway, because it was the day
before they were going. You have to have the company ...need ... one or two
people there it's not enough ...so they went and done it anyways. That's not
fair to me. Our leaders were supposed to be there." [F3]
There was a strong link between a lack of trust and poor implementation. The
feeling among many participants was that their involvement and input has not been
reflected in project development, resource management decisions or the
implementation of conservation measures. Convinced that their voices have little or
no influence, the participants had become at best apathetic and at worst hostile.
The solution suggested by participants who spoke on the issue is simple: make a
clear implementation plan, and show where information is coming from and how it
will be used in the future. The plan should also include regular community updates
to ensure the community can track how its input is incorporated into development.

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"The people just don't want to ...they don't think anything is being done.
Climate change, oil and gas, caribou; they hear about these over and over.
People get tired and they walk out. We can't just talk about it at every
[Gwitchin] Gathering, every General Assembly. That is not going to work.
What I'm hearing is why should I go to meetings, we just talk about the same
thing over and over. As soon as we talk about climate change or caribou they
just walk out."[SW]
While there was significant distrust of outside projects and the consultation
process in general, not everyone held such a negative view. Many participants,
especially women, spoke of the link between trust and respect in terms of the need
for outside interests to build a solid relationship with the community. Respect is a
highly ingrained social value in Vuntut Gwitchin culture. A story from the women's
focus group illustrates the place of trust in Gwitchin culture. It also touches on the
idea of implicit trust in the sharing of knowledge. Information sharing is done in the
expectation that such knowledge will not be misused. The give and take of trust and
respect on both sides is the essence of building strong and lasting relationships in
the community.
"You know, way back, in what we believed in, when non-First Nations first
came into our country you know our people always showed them great
respect. You know, we talked about this not too long ago. Where somebody
mentioned you know when they came into our own home you know we were
sitting at the table we would put them at the table and we would sit on the

113

floor. And that's how much respect that our people showed to people who
live in our community and we still kind of practice that and that's something
that is still ingrained in us, and especially the elders. And we had to work like
hell to get the information that we need to learn for ourselves... it is important
to share that information, because they're not really thinking about
themselves now, just they're thinking about generations ahead. And they
always trust that you're going to take that information and share it in a good
way, and that doesn't always happen. And so there is a lot of fine lines and
there is a lot of sensitivity that goes along with it and you and other people
who gather information from our people, you know there is a lot of trust put in
you and other people that come into our community." [F8]
More than thirty percent of participants expressed the belief that a trustful
relationship could be built between outside interests and the community. Women
outnumbered men seven to three in their belief that trustful relationships could be
created. The youth also manifested a belief that relationships could be built.
Activities such as visiting homes, boarding with community members, taking part in
traditional activities, eating traditional foods and spending appreciable amounts of
time in the community were highlighted as means to building good relationships.
Participants referenced the need to understand a more holistic view of the
community when trying to understand even a part of it.
"You have to have a genuine connection to the community. You have to
understand where the community is coming from. You just can't come in and

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say, 'oh we're going to meet and we're going to have steaks and potatoes and
a real good dessert and then we are going to share with you what we
proposed to do.'" [S15]
4.2.3 Representation
4.2.3.1 Decision making representatives - Community
Issues of representation were raised frequently throughout the research.
Participants highlighted two major issues: community representation and proponent
representation. Participants were somewhat divided on the question of who, if
anybody, should represent the community of Old Crow in the consultation process.
A minority of participants expressed the view that Chief and Council should
represent the community in resource decisions. The traditional role of a chief in
Vuntut Gwitchin culture may help explain participants' reticence at bestowing
decision making power on chief and council. With regards to representatives from
the proponent, participants were homogenous in their response.
The role of a chief in Vuntut Gwitchin, as described by one participant, was
very different prior to the inception of western style democratic institutions. The chief
was a provider and a leader, but did not make decisions for the whole community.
He was often the best hunter and would share food with others, making sure
everyone had equal amounts. He would also lead hunting activities, traditional
games and other cultural celebrations. An elected chief and council that makes
decisions on behalf of the community were instituted for the administrative
convenience of the Federal Department of Indian Affairs. This arrangement is
inconsistent with Vuntut Gwitchin tradition.

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Forty-six percent of research participants felt that chief and council should not
be solely responsible for making decisions on behalf of the community in relation to
resource management. Participants were more confident in limiting chief and
council's role than in supplying suggestions for how the community could take part in
the consultation. The women's focus group suggested that representatives from the
community should be elected to oversee project development. In this suggestion,
responsibility and accountability for the project were major considerations. However,
there was no clear consensus among participants as to what form representation
should take, or what exactly consulting the entire community would look like.
"Chief and council they are just the leaders, they are not Old Crow. Old Crow
is the whole community. You got to meet with the whole town." [S6]
"/ think that there should be that [election of oversight committee] process and
to monitor that [the project] is going according to what the agreement was."
[F7]
Contrary to the majority of participants who spoke on the issue, a minority of
participants (two women, one man) felt that chief and council should be authorized to
make decisions on behalf of the community because that was what they were
elected to do. In considering the option of consulting the entire community in
resource management decisions, a couple of participants noted the confusion that
this would create in practical application. It was suggested by three participants that
Vuntut Gwitchin First Nation should be the primary contact for consultation and then
it would be VGFN's responsibility to inform and receive input from the community.

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"Who are the people that you go to that you can truly say we consulted with
the community. Because with communities do you consult with the First
Nation [government], do you consult with the Elders, do you consult with the
community members, do you consult with the renewable resource
councils... ?"[S7]
"Chief and Council because they are supposed to be our leaders and they are
supposed to be working for us, the community. And if you are not in contact
with your community how do you know what their needs are or what they
want or what is happening in the community" [S6]
"Leadership needs to take responsibility, needs to take more responsibility
and make sure these people know exactly what is going on. They're our
leaders and it is their responsibility..."

[F3]

Another suggestion came from two VGFN employees who participated in the
research. They suggested that a Natural Resources Review Committee be
established similar to the Heritage Review Committee. The benefit of such
committees is that, being at arm's length from the government, they would have a
more direct connection to the community. The Renewable Resources Committee,
which is not a VGFN organization, takes on this role in part, and as per the UFA, is
empowered to make recommendations to all governments (federal, territorial, First
Nation) on issues related to fish and wildlife management. The suggestion of a
review committee is, in a sense, a compromise between those who feel the

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community should have the final say and those who feel that chief and council (and
VGFN) should make the decision.
4.2.3.2 Representatives - Proponent
Fifty percent of total research participants and all participants who spoke on
the issue agreed that proponents should be present at some stage in the deliberative
events. The women's focus group argued that representatives for the proponents
should be the decision makers for their project. This would ensure that an agreed
upon course of action would not be countermanded later by a higher authority. The
group also felt that if the proponent's representative was the ultimate decision maker
this person would be more conscientious about providing accurate information
because they would be directly accountable.
"/ think the representatives from the projects should be there too in case
VGFN can't answer the questions. The person that is running the project
[should be there] because there could be a lack of communication if you send
the wrong person [and] they might give the wrong information." [F5]
4.2.4 Openness and Timing
4.2.4.1 Openness
Openness describes the ability of community members to participate
comfortably in the consultation process, for example; a process that does not take
into account hunting and trapping schedules or day-care schedules is less open than
one that does incorporate these elements and acts accordingly. Another integral
factor in determining the openness of a consultation process is the use and quality of
deliberative mechanisms (meetings, focus groups, questionnaires, etc.). Public

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meetings were frequently referred to by participants as an example of what needs to
be considered when designing an open consultation process.
On the other hand, forty-two percent of research participants argued that
meetings were not an adequate forum for many community members to receive
information and express their ideas. Many of these participants expressed an
unwillingness to voice their concerns in a public meeting setting. Even participants
who self-identified as vocal members of the community recognized the reticence of
other community members to voice their concerns. The information presented at
meetings is sometimes overwhelming and incomprehensible to many community
members. There is also the added pressure of appearing uneducated or ignorant by
saying the wrong thing. Offending fellow community members is another factor to be
considered when voicing an opinion. In a small community, participants at a meeting
are not only stakeholders, but are also each other's family and friends.
"You know before the meeting sometimes people are afraid to talk. You
know, who wants to talk in a meeting? I mean it is overwhelming and then
people are scared and they don't really know what to say and they get up,
and then there's five boys around you and you don't want to be stepping on
those toes."[S7]
"/ don't think I have asked a question in public because I always think is that
an appropriate question to ask? Is that a good question? So I always second
guess myself." [S4]

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Participants recognized that those individuals who might not attend, let alone
speak, at meetings had as much right to input as any other community member.
One participant stated that an effort was required from the consulting body to include
these people. Other participants suggested the inclusion of a comment box where
meeting participants could ask questions anonymously. An idea outside of the
comment box came from the youth focus group that suggested having meetings in
more traditional settings. The youth argued that formal western-style meetings are
foreign to Vuntut Gwitchin and community members might feel more comfortable in
smaller groups around a fire, or out on the land [F6, F11, F13].
"If you have a big gathering and big meeting like that then there is a less of a
chance that a lot of these people will attend. Like a lot of the older people
don't go there. For one a lot of them have problems seeing, hearing and the
language is just like not their language so right away they are lost and they
get frustrated and go home and stay home." [S9]
In spite of the problems associated with public meetings, such as attendance,
comfort and comprehension, VGFN uses meetings as their primary means of
informing the community and receiving feedback. The public meeting does have
certain benefits associated with it such as the fact that it is a large, cost and time
effective forum for information dissemination and discussion. Also it brings the
community together as a whole on issues that may be of concern rather than
splitting the community up into various focus groups or individual interviews. It is

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unclear why another deliberative mechanism, such as house visits, is not used in
tandem with public meetings.
"There are so many more other people, the quieter ones like [community
member name]. You know some of the quieter people.. .go visit them, go ask
them questions." [S9]
4.2.4.2 Timing
The issue of timing came up frequently as a sub-theme of openness.
Deliberative events must be at times that are convenient for community members to
participate and the overall consultation process must be done on a timeline that does
not overly strain VGFN and community capacity. Participants expressed the need to
develop community-friendly timelines. Community members need time to receive
and digest information, as well as to formulate opinions and questions in order to
make informed decisions. Translators also need adequate time to ensure they can
understand and translate the issues being presented. Traditional activities should
also be taken into account. Participants said the worst time to have a meeting was
in August and September as that is when people are hunting caribou and fishing.
October was deemed a good time for a meeting as freeze-up prohibits much activity
on the river or traveling.
I learned from my own experience that untoward events, such as funerals or
deaths in the community, can seriously affect project timelines. It is Vuntut Gwitchin
tradition to cease work in order to honour the deceased. This extends to VGFN as
well: all work is delayed, including all deliberative events or other consultation
processes for up to one week after the death. In these cases there is little one can

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do to prepare. There is no simple solution to this problem, but it might be considered
by project designers and resources set aside in case of such an event.
4.2.5 Capacity
Capacity in the context of this research is described as the ability to effectively
manage the responsibilities and duties associated with one's role in the consultation
process. Participants described capacity in terms of human and financial resources.
I have further divided the theme of capacity into two subthemes: VGFN capacity and
community capacity. Capacity should be taken into account when designing any
consultation process as the lack thereof can be severely detrimental to all involved.
4.2.5.1 VGFN Capacity
There was much discussion about VGFN's ability to appropriately manage
their responsibility to the community. Thirty five percent of participants stated that
VGFN did not have adequate capacity to meet its responsibilities, including
consultation. Three of the five VGFN employees interviewed also pointed to a lack
of capacity, primarily a lack of personnel. Many employees must handle a variety of
tasks. Signs of wear are evident, both in terms of employee morale and other things
such as delayed project deadlines and products.
"Lately I don't keep track of anything. It is just too much. There is so much,
we go through so much. ..I don't know I can't remember. I am burning out."
[S4]

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"Sometimes the deadlines are a bit short, but that is due to capacity in the
office. We need more help there is no questions and it is getting good help
that is the problem."'[S2]
"The newsletter is not going forth anymore, lack of capacity." [S7]
From my own experience I can attest to the incredible strain put on certain
employees, especially to those in the Natural Resource Department. In one case, I
contacted an employee one month prior to a data gathering trip with the idea of
arranging a semi-structured interview. I again contacted the employee upon arriving
in Old Crow; however the employee was unable to guarantee a free time within the
next two weeks. A tentative time was set for the next week. Upon arriving at the
specified time and location, the employee informed me that we would have to
reschedule due to last minute circumstances. A time was set for the next day, which
again was deferred until later that day. In the end the interview was unfortunately
cut short due to time restrictions. The creation of a position to coordinate the various
projects in VGFN traditional territory may relieve some of the strain.
"It makes sense to have someone who is helping to coordinate all the
documentation and meetings and presentations, making sure researchers get
their reports in and applications and agreements done. Because once we get
to the point where we give them an agreement and ask them to sign it we're
full into the summer and we often don't have time to chase down whether
they've done it or not until the research is already over. "[S1]

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4.2.5.2 Community capacity
In addition to VGFN capacity, participants recognized a lack of capacity in the
community to adequately participate in the consultation process. Attendance at
public meetings, with the exception of oil and gas projects, is poor. There are many
reasons to explain the poor attendance at meetings, including a lack of information,
a lack of trust, and a lack of an appropriate forum. Another explanation indirectly
referred to by participants was a lack of community capacity to deal with the
deliberative mechanisms involved in consultation (e.g., questionnaires, meetings,
focus groups). Many community members either do not have the time (in one case
due to the lack of day care services) or the inclination to participate in much of the
consultation currently being undertaken in Old Crow. One participant suggested that
there is a serious risk of burning the public out with deliberative events.
"You know what I hear is historically people used to get dressed up to come
to the meetings, but now that has evolved to the necessity of serving food to
actually get them to come." [S3]
"If I have to do one more questionnaire, I am going to be sick." [S15]
"/ think another thing with public consultation too, and this is one of [the] big
issues, is trying not to burn the public out. We don't want to have meetings
that aren't necessarily important so we try to walk that line as well. If you
have too many then people are going to stop coming." [S10]
The community's lack of capacity to effectively participate in the various
deliberative mechanisms associated with public consultation has far-reaching

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implications. While it is true that Old Crow has been heavily studied in the past,
there is no sign that the number of projects in VGFN Traditional Territory will
decrease in the coming years. In fact, there are several prognostications that they
will increase in the Arctic generally, bringing the necessity for more consultation
(ACIA 2005, NYPC 2006).
4.2.5.3 Compensation
The subject of compensation comes up often when discussing capacity.
There are two basic sides to the issue of compensation. On one side are those who
believe that at least some, if not all, community members should be financially
compensated for their time spent in deliberative mechanisms. On the other side are
those who believe that no community members, unless it is their job to be there,
should get paid for their time in deliberative mechanisms. Participants were split on
the issue, though the majority of participants recognized the danger of setting
precedents in the community by providing compensation.
Thirty-three percent argued for compensation. There was general agreement
among these participants that it was necessary to compensate community members
who live a subsistence lifestyle and who do not receive income from other sources.
The youth were, with the exception of one, in favour of compensating community
members. One argument stated that VGFN employees, researchers and proponent
representatives all get paid for their time at the meeting so why should not
community members [S9]. One participant recognized that there can be many

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meetings in a year and this represents a significant amount of time for community
members, valuable time that could be spent doing other necessary activities [S11 ].
Fifty-seven percent argued against providing compensation. Semi-structured
interview participants unanimously derided the idea of compensation. On no other
issue was there such a distinction between the information gathered in the focus
group and the information derived from one-on-one interviews. SSI participants
widely agreed that community members should not be monetarily compensated for
their time at deliberative mechanisms. Instead these participants argued that meals
and door prizes were sufficient compensation for community members' time.
"I don't like that idea. I think people should come into meetings if they care
about what is happening to their land. Money should not be an issue; as long
as you give them a meal and door prize that should be enough." [F4]
Almost thirty percent of participants and a high proportion of women (forty-five
percent) feared that projects led by the community (with lower budgets) might not be
able to compensate community members and thereby would suffer because the
larger, outside projects have set a precedent of paying people for their time.
".../ don't think they should get paid, that is going too far; because they are
going to get used to it, because if I wanted you to interview me today I get you
to pay me 200 bucks. You have to be careful because you could set a
precedent." [S9]

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It is interesting to note that VGFN recommends outside projects provide an
honorarium to focus group and interview participants. Participants in this study were
all financially compensated for their time, and it was obvious that potential
participants showed greater interest in the work after hearing that there would be
financial compensation for their time.
4.3 Conclusion
The Yukon has many regulative processes to ensure that resource
development and outside research are conducted in an efficient and appropriate
way. The Umbrella Final Agreement is foremost in setting out how project
proponents are to conduct consultation with communities and First Nations. The
definition of consultation employed in the UFA is semantically replicated in
subsequent legislation, including, YESAA and the Oil and Gas Act. Other legislation
that does not replicate the definition simply defers to the original UFA three-part
definition of consultation. The UFA definition does not prescribe a criteria by which
consultation is to be undertaken. It does not provide a proponent with an
understanding of how to consult communities or First Nations in the Yukon. As
recognized above, this places both proponents and the affected First Nations and
communities in an awkward position.
It is evident from the results of this study that there are many opportunities for
community consultation throughout the regulative processes in the Yukon, both
territorial and VGFN. The lack of an operational concept for consultation both in the
legislation, guidebooks and best management practices places the burden to ensure

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adequate consultation on the affected First Nation. VGFN suffers not only from
being on the receiving end of poor consultation, but also from the capacity strain of
dealing with each project on a case-by-case basis.
The community of Old Crow notes specific problems with the current
consultation processes. The data gathered from the community is broken down into
five themes: information, trust and respect, representation, openness and timing,
and capacity. The theme delineation was my choice and I realize that another
researcher may have made different groupings. Nonetheless, the themes and
problems presented above give an accurate account of how consultation is
conducted in Old Crow and how the community is impacted by it.
Table 4.2: Numerical breakdown of participants by semantic statement
affirmation
Theme
Semantic statement:
Participant breakdown
#
#
#
Women Men Total

Information

Trust and
Respect

Representation

Not Receiving adequate information
regarding projects in VGFN territory
- VGFN responsibility
Project developer responsibility
Receiving adequate information
regarding projects in VGFN territory
Need for Simple presentations
Need for Education component
Trust and respect used in tandem
Distrust oil companies
Distrust other projects
Building relationships
Need for implementation
Chief and Council/VGFN should make
resource decisions on behalf of the
community
Community should make resource
decisions as a whole

9

14

23

9
8
2

12
10
1

21
18
3

6
5

10
5

16
10

1
0
7
3
2

9
7
3
6
1

10
7
10
9
3

6

6

12

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Openness/
Timing

Capacity

Communication between RRC and
VGFN has been poor in past
Proponents should be present at
deliberative events
Proponents meeting with the
community should be decision makers
Unwilling to voice concern in public
meetings
Do not speak public for fear of looking
ignorant
Inclusion of a comment box
Meetings are not appropriate for
Elders
Need to give community enough time
to understand and prepare views
Deliberative events must be at
appropriate times of year
Lack of VGFN Capacity
Lack of community capacity to
participate in all deliberative events
Non-VGFN employees should be
compensated for their time at
deliberative events
Non-VGFN employees should not be
compensated for their time at
deliberative events
Compensation will set a dangerous
precedent

0

2

2

6

7

13

6

7

13

7

4

11

2

0

2

2
7

3
6

5
13

5

8

13

11

15

26

4
8

5
8

9
16

6

3

9

6

9

15

6

2

8

5 Discussion
The results of this research describe a small First Nation community in the
Yukon with both a land claim and a self-government agreement. By virtue of the

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agreements the citizens of this isolated region and, by extension, their government,
possess considerable management authority over a patchwork of settlement lands
within their traditional territory. Through their semi-subsistence culture the
community retains close ties to the land and a strong sense of stewardship towards
it. Thus, resource development interests directed towards these lands are a constant
source of concern to them. Such interests are manifested as project proposals which
are presented to the community of Old Crow and the Vuntut Gwitchin First Nation.
Legislation developed in pursuance of the VGFN Final Agreement, specifically the
Yukon Environmental and Socio-Economic Act, calls for consultation on such
proposals; however, the exercise of this function is confounded by the lack of
guidance in the legislation.
The following discussion revisits the questions presented at the outset of this
research. The questions raised at the outset of this study had two: 1) to highlight the
consultation status quo in Old Crow, and 2) examine the community's perspective on
the current processes; obstacles and solutions.
The specific research questions are:
•

What are general principles and procedures for consultation?

•

What are the current resource management application and consultation
processes for Old Crow?

•

What principles and procedure for consultation are important to Old Crow?

•

What are the implications of these principles and procedure for developing a
consultation process?

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This 'discussion' chapter will directly address how the results of this study
pertain to the above-listed questions. The first two questions were addressed
originally in the literature review. The role of the 'discussion' with regards to these
questions then is to examine the implications of the answers and provide possible
suggestions for how to resolve perceived problems. I will recount the principles and
procedure for consultation derived from extant literature as they will be instrumental
in identifying gaps in data collected from research participants with regards to
consultation principles as well as presenting solutions to ameliorate these gaps.
The last two questions will be confronted directly in this discussion chapter. I
will discuss the implications of the principles for consultation derived from
participants and, on the basis of these principles, construct more complete
consultation guidelines that may help to direct future resource management
consultation in Old Crow.

5.1 General Principles and Procedure
In the literature review section of this paper, I examined the ideas of various
authors and theorists with the aim of developing a general framework of principles
and procedure to guide the consultation process. The literature did not provide, in
my opinion, a list of principles that adequately covers the consultation needs of Old
Crow. Many principles identified by research participants fell well outside the
bounds of the general principles derived from the literature. However, in some
cases, principles that are important to the consultation process were not mentioned

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by research participants, but were mentioned in the literature. I am speaking
specifically about the principles of funding and rights. Funding came up indirectly in
discussions of capacity, but it was from the literature that the attention to funding
was most explicit. Rights were not mentioned by research participants, yet as has
been noted in literature review, the legal concept of the 'duty to consult' is itself
based on aboriginal and treaty rights. Consultation in a sense is all about
addressing possible rights infringement, something the literature makes very clear.
The principles of funding and rights are important additions to the principles
identified by community members. It is also important to note that all of the other
principles derived from the literature (see Table 2.5) for a complete list) were
corroborated by research participants.
5.2 Current processes for resource management consultation in Old
Crow
In the literature review (section 2.6), I detailed examples of various processes
that regulate land use, land disposition and research activities in the Yukon and Old
Crow. There is often a requirement to consult the affected community or First Nation
in the regulatory processes. The problem does not lie in the lack of opportunity to
consult, but in the lack of direction those consultations should take. Current
resource project assessment processes do not provide an adequately operational
concept to guide proponents through the consultation process. This situation affects
all First Nation signatories to the UFA and [all?] communities in the Yukon,
prompting some to argue for the development of individualized consultation

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protocols or guidelines tailored to the needs of all of the relevant parties (Sharvit,
Robinson and Ross, 1999; Alfred and Urquhart 2002).
The creation of specific protocols or guidelines has the benefit of providing a
more fit-to-purpose definition of consultation. Each First Nation or community would
develop a guideline and provide it to any outside proponent wishing to do work in its
area. As an unlegislated definition of consultation, the drawback is that it may not be
adhered to by the consulting body. It would fall into the category of 'best-practices'
and have no legal force to back it up. One way to circumvent this problem is to
modify guidelines so that they take the form of a 'terms of agreement,' where each
party signs the document with the understanding that the document will perforce
direct the consultation process.
There are two major implications of such an agreement. First, the signing of a
'terms of agreement' would help reconcile the problem of an unlegislated definition of
consultation.

By signing the agreement, the proponent would be committing itself

to following the consultation criteria devised in the agreement. Second, the
proponent may have input into the terms of agreement, thereby improving the fit-topurpose aspect for the proponent as well as the First Nation. The terms of
agreement should not be viewed as an imposition on the proponent, but rather as a
mutual understanding of how consultation will be undertaken.

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5.3 Implications for project development of consultation principles
5.3.1 Implications of timing:
Research participants raised two issues with respect to timing: consultation
timelines and the specific timing of deliberative events. Their attention to timing as
an issue in the consultation process coincides with the observations of several
authors examined in the literature review (Vanderwal 1995; Sharvit, Robinson and
Ross 1999; Alfred and Urquhart 2002). Vanderwal, who borrows his framework from
the Commission on Resources and the Environment in which timing is mentioned,
stresses the need to develop appropriate timelines both in terms of information
collection and public participation. Alfred and Urquhart (2002, p. 10) suggested that
a steering committee elected from the community be responsible for developing the
consultation timeframe to ensure that it will adhere to community exigencies.
One area of significance focuses on the timing of deliberative events.
Participants stressed that meetings or other events should be organized at times that
are appropriate for the community. Many activities revolve around procuring
traditional foods. It is therefore inappropriate to arrange events during hunting or
trapping seasons, for example; participants mentioned that late-July to October as
the worst time to organize a meeting. The exception to this rule is VGFN's annual
General Assembly, which is held in August or September. The importance of this
meeting may override community members' interest in being on the land. However,
from my own observations, the General Assembly does not have high attendance.

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This is no doubt due to other factors in addition to timing, but timing may play a role
in audience participation.
Another significant issue raised by participants is the amount of time needed
to understand information and provide feedback. The major complaint was that
often the proponents of outside projects provide information during a meeting in
which they also want a decision or significant input on the information presented.
This does not leave enough time for the participants to feel comfortable in providing
well-developed feedback (see section 4.2.4.1 for more information). While in other
settings the method of presenting information in a meeting and immediately
receiving feedback may be acceptable, due to cultural differences and language
barriers, the consultation process may have to plan for a longer time frame in this
regard.
It would make sense, given that timing is a major factor in involving the
community in resource management decisions, that a body, representative of the
community, take on the responsibility of developing the consultation process
timeframe and timing for deliberative events as Alfred and Urquhart (2002) suggest.
Only community members will be able to determine how long the process will need
to take and when the best times to arrange deliberative events are. There are other
factors that I have noticed from my own experience that an outside proponent would
find very difficult to take into account when constructing a timeline. Such factors are
other large meetings outside Old Crow, sickness or death in the community, and
other concurrent projects placing additional strain on community capacity.

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5.3.2 Implications of openness - deliberative mechanisms:
The issue of deliberative mechanisms came up frequently both in the
literature review and among research participants. Arnstein (1969) details the
deliberative mechanisms associated with different levels of public participation. She
places meetings and questionnaires in the least participatory category of her
analysis. Contrary to Arnstein, Mitchell and Parkins (2005) highlight the benefits and
drawbacks of the most common deliberative mechanisms used in consultation.
Their argument follows the Commission on Resources and Environment's (1995)
idea that different mechanisms serve different purposes and that the process of
consultation should be designed to maximize the effectiveness of each mechanism.
I agree with the notion that different situations will require different deliberative
mechanisms. It is important for project proponents to understand the benefits and
drawbacks of all mechanisms for each community.
Research participants argued that the public meeting format is not the most
suitable mechanism for the community. However, according to Mitchell and Parkins
(2005, p. 11) and this is a view with which I agree: public meetings do have
significant advantages over other forms of deliberation, which include audience size,
cost effectiveness and time efficiency. It would therefore be a mistake to drop public
meetings as a deliberative event. Rather, the point to be made is that public
meetings should not be the only form of deliberation. Public meetings could be
augmented to improve their deliberative integrity (see section 4.2.4.1).

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Research participants argued that other mechanisms should be used in
conjunction with public meetings to ensure a broad array of participation. Elders
respond well to having information presented in a less formal setting. The
consultation process might consider conducting house visits with elders to explain
information and solicit feedback. In addition, feedback may come in a variety of
forms, from written statements to discussion to allegorical stories. The consulting
body should be open to accepting feedback, and providing opportunity for feedback,
in a variety of forms. Feedback will be improved if the consulting body organizes
other events such as focus groups, house visits, or questionnaires. Some
community members feel more comfortable in less formal settings than public
meetings and will be more open to accepting and providing information.
One mechanism that is never mentioned in the literature, but was suggested
by research participants, is to organize trips out on the land. VGFN has done this in
the past with seemingly successful results. There are three major benefits. First, it
provides an informal setting conducive to two-way information flow. Second, it
allows the proponent to understand the values and perspectives of the community in
a more tactile way. Third, it builds relationships: highlighting the importance of
partaking in community events and community life in order to build mutual trust and
respect with the community. I think this would be a very fruitful avenue should any
consulting bodies wish to pursue it.

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5.3.3 Implications of information:
Sherry (2002) highlighted the role of communication in resource management
decision making in Old Crow. Her study found that "[shared resource management
(SRM)] members must be dedicated to communication that generates a continuous
flow of information..." which will in turn "raise awareness and solicit feedback on the
performance, results and impacts of SRM" (p. 306). Little mention was made of
appropriate information forms in the examined literature on public participation and
deliberative democracy, although it can be considered an implied term in many
instances. For example, Cohen's (1999) principle of equality can only be realized if
all sides have access and capacity to understand all the pertinent information to
make decisions.
Research participants stressed that information should be presented, as with
all deliberative events, in a manner that is easily understood by community
members. Towards this end, the consulting body may want to consider keeping
language non-technical and at a level that is comprehensible to all community
members, include a translator, relate ideas to things the community already has
experience with and make use of multimedia throughout their presentations if
appropriate. In addition, supplementary information that can be left with community
members is also beneficial.
However, and it might in part explain the literature's ignorance of this issue,
appropriate forms of information and presentation will depend upon the audience
and the community. What may be appropriate for Old Crow may not be appropriate

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for another community in the Yukon. It is important to have a good understanding of
the level of education regarding the issue to be discussed prior to embarking on a
deliberative event. Determining appropriate information and presentation will require
connection with the community before organizing deliberative events.
5.3.4 Implications of representation
Research participants argued that in order to maintain information integrity
and accountability it would be preferable to have representatives from the project
proponents who were in a decision making capacity (see section 4.2.3.2 for more
information). This point is also raised in Cohen's (1999, p. 73) work on deliberative
democracy in which he states that participants should have equal deliberative
capacity. Guttman and Thompson (1996, p. 112) also state that each participant in
the process should be accountable to every other participant. One way to ensure
this equality and accountability is for all participants in the consultation process to
have decision making capacity.
The question of who represents the community is very complex and cannot
be resolved definitively here. The chief and council are elected in a western-style
fashion and with the ostensible understanding that they are authorized to make
decisions on behalf of the community. A significant portion of research participants
argued that chief and council could not speak on behalf of the community regarding
resource management or land development projects. Community members,
suggested other associations may be suitable for overseeing project development,
such as community elected committees or even the entire community. It may be a

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lack of communication that explains the disconnect between the roles of chief and
council and the perceptions of community members, or there may be a wish for more
direct involvement in decision making. I believe this is an issue that deserves more
scrutiny and more research.
5.3.5 Implications of capacity
Data collected from research participants suggested dividing the issue of
capacity into three sub-issues: VGFN capacity, community capacity and
compensation. Capacity also arises in the literature surrounding consultation and
public participation. Marsden (2005) recommends that proponents plan to contribute
finances or other resources to the First Nation being consulted if necessary. Sharvit,
Robinson and Ross (1999) do not make recommendations but stress that failure to
consider capacity constraints could halt the consultation process altogether.
VGFN showed signs of capacity strain. The multitude of projects being
conducted in their jurisdiction and the lack of personnel available to coordinate
VGFN's participation in these projects presents a significant hindrance to the
consultation process. Several suggestions were made to relieve the burden on
VGFN employees, including the creation of a project coordinator position, the
creation of a lands review committee and making the land application process more
efficient. I believe all suggestions have merit, but require significant organization
and resources. It may be that capacity will have to be developed over the long term
and with financial or personnel support from projects with which VGFN is involved.

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The research data suggests a strong link between VGFN capacity and
community capacity. Many community members are disheartened by the lack of
information flow from VGFN and the lack of visible implementation of community
concerns, resulting in a lack of trust that VGFN is operating in the community's best
interest. A partial solution to increasing community capacity may be increasing
VGFN's project management effectiveness and communication efficiency. The more
community members know about projects and the more they trust their involvement
will be meaningful the more they may be interested in participating.
The issue of burning the community out with deliberative events has profound
implications for developing consultation processes. The population of Old Crow is
small. As such, many of the same community members are involved in most of the
projects that come through. Additionally, these community members are involved
with various boards and the functioning of VGFN. The solution to community
burnout is not to create more incentives for community members to participate.
Rather the best solution is to limit or integrate deliberative events. In the two most
recent cases where it has been tried, the results have been successful. The projects
associated with the International Polar Year arrange their presentations and
community feedback sessions on the same day. The turnout has been good both
the years that it has been conducted. Another example is the research for this
thesis. The focus groups used in this research were also used for two other
projects, the Arctic Athabaskan Council led Climate Change Risk Assessment and
the University of Northern British Columbia led Food Security study. In this case the
projects were of widely different natures. Community members responded well and

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were able to differentiate and provide information to each project. The success of
these two examples could inform the organization of deliberative events that
conglomerate different projects.
Compensation was an issue that frequently came up in the research data.
There was no clear consensus among research participants as to whether or not
participants in deliberative events, such as public meetings, should be financially
compensated for their time. VGFN recommends that projects compensate
community members for deliberative events that require fewer people than meetings
and higher levels of expected participation, such as focus groups or questionnaires.
While I think there is a real threat of setting a precedent to the detriment of
community led projects with low budgets, there is a good argument for reimbursing
people for time that they could be spending on other things. In a subsistence
economy, cutting and drying meat is like working for pay, though people who do so
for their own consumption do not get paid. Western society often overlooks this fact.
It may be too onerous to insist on compensation for large meetings, but it seems
reasonable that for smaller deliberative events with a high level of interaction,
participants be paid for their time.
5.3.6 Implications of trust and respect
A theme that crosscuts all principles outlined by participants is that of trust
and respect. Principles will be discussed through the lens of this pervasive theme
and how it can affect the consultation process. Many obstacles in the consultation
process can be removed by focusing attention on trust and respect and, specifically,

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on building relationships. Trust and respect can be viewed as an umbrella under
which all the other principles of consultation reside. I will provide clear examples of
how encouraging the development of trust and respect can ameliorate many of the
other issues raised in the research and how in turn finding solutions to some
obstacles will increase trust and respect.
Participants recommended spending an appreciable amount of time in the
community. The point was so well encapsulated in the following statement that I
have chosen to replicate it from the Results chapter;
"I think one of the ways to build trust is just visiting around with people having
tea eating their food not acting like you are better than them. Just visit. So
many people love visiting. They'll tell you stories, they'll tell you pretty soon
how they would like to see things. Pretty soon they are involved in not only
this part of your work, but they are involved in building a relationship.

Pretty

soon it is building a rapport and helping you to do this [research] as well."
In essence, spending time with people, eating their food, being in their space
and listening to their stories is an effective way to begin building a relationship with
the community. The youth focus group also mentioned visiting people in a place
where they are comfortable. The idea of a large, indoor meeting with formal attired
outsiders at the front of the room is so alien to the everyday life of most community
members that it is no wonder they are intimidated and think, deliberate and speak
out. Community members want to share their culture and their ideas, but they want
to impart these things to somebody they know will understand them. Simply by

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sitting and listening to them in their own homes, experiencing their daily lives, one
can derive a great deal of information.
The first benefit, from a consultation perspective, in building relationships is
that it will significantly enhance the amount and quality of feedback, and include
participation from a broader array of society than simply a public meeting. Another
benefit is that it will make the communication of information much easier. Visiting
with community members prior to large public meetings will improve the
communication of information at the meetings themselves. The proponent will have
a better understanding of what the community as a whole knows what they do not
know. The proponent will know how to talk to the community and in turn the
community will know how to communicate with the proponent. The easiest way to
find a cultural middle-ground is through dialogue - getting to know one another.
One of the major problems with the consultation process is that community
members do not trust the players. A major reason is poor project management in
the past. Two examples were referenced in the Results chapter; moose-collaring
and dying birds. In the first example, the project's consultation amounted to nothing
more than an information session. In the second example, information was
deliberately suppressed regarding the environmental disturbance created by the
project. These examples and many others have left a poor, and ultimately
undeserving, image of outside projects in the minds of community members. Time
and ethically sound project practices will no doubt assuage the feelings of wrong-

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doing, but a more expedient means to rectify the situation is to build personal
relationships.
Other issues, such as information sharing and accountability are closely
related to trust and respect. Participants in the study did not feel like they were
receiving adequate amounts of information from VGFN on decisions being made on
the community's behalf. By sharing more information, and in a variety of media,
VGFN will do much to restore trust lost through opaque reporting processes.
Regular reports, meetings and newsletter will make VGFN more accountable to its
constituency. The increased levels of trust and respect, as a result of better
communication practices, will allow for a smoother functioning of the consultation
process. Open, transparent processes, especially manifested through information
sharing, will involve the whole community. The question will not be, 'What group
does one consult with?' because all groups will be informed about the proposed
project and will have input into any decision, through other complementary
mechanisms. It will help answer the question put forth by one participant,
"Who are the people that you go to that you can truly say we consulted with
the community. Because with communities do you consult with the First
Nation [government], do you consult with the Elders, do you consult with the
community members..."

[S7]

An interesting feature of the results was how gender was reflected in
participants' responses to the theme of trust and respect. In no other theme was
there such disparity between the responses of women and men. The men were far

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more distrustful of the consultation process, including the parties within it, whereas
the women were far more accommodating and focused on relationship building.
Men recognized the problem and the women recognized the solution. It is safe to
suggest that the polarity of this issue should be reflected in all VGFN consultation
processes through equal representation of men and women.
5.4 Legislated Definition
The above discussion has focused solely on the context and situation of Old
Crow. I feel it is important to step beyond the Old Crow example and recommend
changes to the consultation standard in the Yukon that might see benefits for other
First Nations under its jurisdiction. The justification for this extrapolation is based on
my experience, the general principles noted at the conclusion of the literature review,
the principles raised by the community of Old Crow and through discussions with
other facilitators in the Yukon. The most obvious starting point is the nebulous
definition of consultation contained in the Umbrella Final Agreement. There are two
reasons for the definition's lack of coherence. First, consultation had to be included
in the UFA to ensure that First Nation participation would be included in legislative
and resource management decisions. Second, the definition had to remain flexible
to different communities and situations. It is much the same rationale as that
employed by the courts in their decision not to prescribe definitive consultation
criteria.
However, in my opinion a more detailed definition of consultation is possible
without creating a situation that would hamper the consultation process. Of the

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major themes discussed in this research, the UFA definition only takes into account
three of them - information, timing and implementation - and even then it is a very
general treatment. It would not hurt the UFA definition to include many of the other
factors in the same general way that it treats the above three. To recap, the UFA
states;
'Consult' or 'Consultation' means to provide:
a) to the party to be consulted, notice of a matter to be decided in
sufficient form and detail to allow that party to prepare its views on the
matter;
b) a reasonable period of time in which the party to be consulted may
prepare its views on the matter, and an opportunity to present such
views to the party obliged to consult; and
c) full and fair consideration by the party obliged to consult of any
views presented. (UFA 1993 Definitions p. 2)
There is no mention in the UFA of appropriate representatives, deliberative
mechanisms or events, audience, extant consultation guidelines provided by the
First Nation, or issues to do with capacity; all of which are key issues raised by
research participants and in the literature. Consultation has evolved considerably
since the early 1990s, aided by legal precedents, increased attention from
academics and other theorists and First Nations' larger role in land use and

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stewardship. It is necessary to update the UFA'S definition to manifest the current
perception of what makes for adequate consultation.
It is not unreasonable to suggest that the definition of consultation provided
in the UFA should be revisited and updated. Definitions of consultation based on the
definition contained in the UFA, such as those contained in the Yukon Environmental
and Socio-Economic Assessment Act and the Yukon Oil and Gas Act, would also
need to be updated to reflect the new UFA definition. In an aim to show where
theory can inform practice, I have provided an example of a more complete definition
of consultation, based on research participant information and principles derived
from extant literature on public participation. Below each tenet, I provide a brief
rationale to explain the tenet's placement in the definition.
A more appropriate definition, taking a more holistic view of consultation, is:
'Consult' or 'Consultation' means to provide:
a) to the party to be consulted, notice of a matter in sufficient form and detail
to allow that party to prepare its views on the matter;
Rationale: As participants observed, any communication must be in a
'form' comprehensible to the community. Providing notice before a
deliberative event will allow the community time to discuss and prepare
initial views.
b) representatives from the consulting party whom are in a decision making
capacity;
Rationale: As suggest by participants, this principle would increase
equality and accountability in the process.
c) a variety of deliberative mechanisms to ensure a broad range of
participation;

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Rationale: As participants observed, public meetings are not a suitable
forum for many community members. A variety of deliberative
mechanisms will improve the quality and quantity of participation.
d) if available, full and fair attention to extant 'consultation guidelines'
produced by the consulted party;
Rationale: Sharvit, Robinson and Ross (1999, p. 7) stress that
consultation criteria will not be widely adhered to unless the courts make it
legally binding. The definition in the UFA, by referencing locally produced
guidelines, will make the guidelines a necessary part of the consultation
process.
e) recognition of the consulted party's capacity constraints, and willingness to
assist where possible;
Rationale: Research participants highlighted issues of capacity both in
VGFN and the community. A lack of capacity can hinder and possibly
even fatally undermine the consultation process. It is in the best interest
of the proponent to provide assistance where required to facilitate the
process.
f) full and fair consideration by the party obliged to consult of any views
presented;
Rationale: The wording for this tenet is taken directly from that already
contained in the UFA. Research participants consistently articulated the
feeling that they were not being listened to. Cohen (1999) argues that a
fundamental tenet of the deliberative process is equality. Marsden (2005,
p.36) goes further and states that the consultation process should be a
two-way flow of information and employ equal value of inputs.
g evidence of incorporation or expulsion of presented views in any further
decisions
Rationale: Research participants frequently raised the issue that their
input seemed to have no effect on project development. This sentiment
was used to explain, in part, poor participation in meetings and a lack of
trust in the consultation process. In order to increase participation and
trust it seems reasonable that clear implementation of community
concerns and input be shown or provision of a good reason(s) why their
input was not heeded.
5.5 Consultation within a community
Consultation may take many forms within a community and any
community/First Nation produced guidelines will need to take this fact into account.

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On VGFN Settlement Land community consultation is really community project
assessment. The community decides whether the project that affects their lands can
continue and, if so, under what conditions. YESAA must also have its say in any
land development, but ultimately the future of the project is up to the community. On
Traditional Territory land, the community does not have the same veto power.
Similarly, the community cannot restrict access to researchers who have obtained a
Scientists and Explorers Permit.
The community must define consultation in relation to what it wants out of the
process. Specifics to consider when defining the process are the degree of impact
on the community of a proposed project, the amount of information required to make
informed decisions and the amount of involvement necessary from the community
level to ensure the project is carried out in an appropriate and sensitive manner. A
lesson may be taken from YESAA, which provides three tiers of assessment. Each
tier has specific consultation requirements. Communities could implement
something similar to differentiate the consultation requirements among different
projects. One can easily see that a non-invasive research project, such as studying
traditional Vuntut Gwitchin hymns, has much less consultative responsibility than a
large-scale, land-altering project such as oil and gas exploration. It would be
inappropriate to assign both proponents equal consultation responsibilities.
Responsible personnel would be assigned the task of deciding where each project
fits in the consultation tier system, and consequently what information should be
provided to the proponent explaining how the community expects consultation to be
executed.

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The creation of a NRD Review Committee, as suggested by some research
participants, would reduce the strain on VGFN personnel to conduct the
prescreening of project applications and assign them to the appropriate tier. The
NRD Review Committee, as the executive committee is in YESAA, would be
responsible for administering and ensuring adequate consultation in high-tier
projects.
5.6 Conclusion
The above discussion attempts to answer the questions put forth at the outset
of this research. The research is a necessary addition to consultation theory and
public participation literature in a number of ways. As noted in the introductory
chapter, the special connection First Nations have to their surrounding natural
environment has important implications for consultation and, with the exception of
McKillop (2002) and Sherry (1999, 2002) has received little attention in this light.
Further, the important role of the resource extraction industry in the economy of the
Yukon ensures that development will continue and may even grow in the future.
First Nations who have signed land claims and have special jurisdiction over land in
the Yukon will face pressure from the resource industry in the form of applications for
exploration and development. It is important in this regard to conduct research and
better understand the issue of consultation.
Overarching legislation will not prescribe a definition for consultation. The
reason is that the definitions must be applicable on a broad level. They must be
flexible enough to deal with a variety of situations and circumstances and still remain

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valid and relevant. This is not a criticism of 'consultation' on the broad scale, but
rather a recognition of its place and its limitations. In being so general, big ' C
consultation as it has been termed (legally defined consultation) is insufficient in
guiding adequate and meaningful processes for First Nations in the Yukon.
This would not be a problem of course, if the courts had not placed a fiduciary
obligation on the government to consult with First Nations. Precedents beginning in
the early 1990s have produced an obligation for government (Federal, provincial and
territorial) to consult with First Nations in the event of possible aboriginal right or
treaty infringement. Recently, a bridge has been created between legal precedents
set outside of the Yukon to the specific circumstances surrounding the terms of the
Umbrella Final Agreement. The Government of Yukon has been given a directive by
the Territorial Supreme Court that it must consult with First Nation signatories in the
event of possible treaty right infringement. As noted above, consulting parties have
little direction on how to adequately engage First Nations and communities in the
Yukon.
Project proponents have the same difficulty as the governments in coming to
terms with adequate consultation. As noted, it is in the best interest of a resource
company to meaningfully engage with and maintain good relations with First Nations
and communities. While coming from different perspectives, there is no reason that
all parties cannot build trust and respect for one another and mutually benefit from
the arrangement. Consultation is the means by which these relationships and
projects are developed. It is thus very important for proponents to have a good

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understanding of how to consult with First Nations and communities on their own
terms.
There is a substantial need to develop consultation on a more specific scale,
a smaller scale, but also to push out the theoretical underpinnings of consultation. It
is imperative to develop a broader understanding of consultation, one that is more
appropriate to consultation in its legal context of ensuring appropriate and adequate
representation of consulted parties. The research presented in this thesis argues
that there are principles and procedures at the community level that are sufficient in
guiding an adequate and meaningful process. Added to the principles provided in
the literature are the themes derived from the research data: information, trust and
respect, representation, openness and timing, and capacity. Especially important
are the implications associated with those themes. It is these principles and themes
that are at the heart of what consultation efforts should focus on in Old Crow.
This research is the first step in beginning the process of better understanding
consultation on a more comprehensive scale. Consultation can no longer be
considered in its restrictive definition contained in the public participation literature,
which views it as tokenistic information sharing. This thesis has helped to expand
the theory of consultation by showing that the definition of consultation must take
into account principles such as trust, respect, adequate and appropriate timelines,
capacity, representation and openness.
The Vuntut Gwitchin First Nation and community of Old Crow will be able to
use the information provided here to potentially develop comprehensive consultation

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guidelines to direct further projects (both resource and research based). In lieu of
prescriptive legislated definitions for consultation, it falls to individual First Nations
and communities to develop their own guidelines. It can be hoped that adherence to
individualized guidelines will be reflected in future legislation.
5.7 Future Research
Following from this research it seems that more can be done in developing
and testing a comprehensive consultation guideline for Old Crow. Researchers
and/or administrators could use the findings presented in this thesis to begin the
construction of a comprehensive guideline. The guideline would then be taken
through a consultative process to receive feedback from community members. After
community ratification, it might be used for all future incoming projects.
Similar guidelines could be created for all eleven signatories of the UFA.
Case-studies could be conducted on what the First Nation and community want out
of consultation in their area. Guidelines could then be crafted based on the case
study research.
It would be interesting to do a comparison of similar case studies in the Yukon
once they are completed to discover if there is much overlap between First Nations
and communities when it comes to consultation. There are many implications for
significant overlap, not the least of which is incorporation into legislated definitions of
consultation. The similarities between case studies could also work towards
streamlining the process of developing consultation guidelines for the remaining First

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Nations and communities. They could use the overlap and differences as a base on
which to develop their own guidelines.
There are many possibilities for future research in resource management
consultation in the Yukon and the suggestions listed above are only a few of them.
As discovered through this thesis, research is simply not enough; there must also be
a clear plan for implementation.

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•

Fletcher v. Minister of Town and Country Planning, [1947] 2 E.R. 496

•

Haida Nation v. British Columbia (2004) BCSC 374

•

Klahoose First Nation v. British Columbia (Minister of Forests) (1995) 13
B.C.L.R. 59

•

Little Salmon/Carmacks First Nation v. The Government of Yukon (Ministry of
Energy, Mines and Resources) (2007), YKSC 28.

•

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, [2005] 3
S.C.R. 388, 2005 SCC 69

•

R. v. Jack, [1994] 2 S.C.R. 310

•

R.v.Jones, [1993] 1 S.C.R. 460

•

R. v. Sampson (1995) 16 B.C.L.R. 267

•

R.v. Sparrow, [1990] 1 S.C.R. 1075

•

Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director), [2004] 3 S.C.R. 550, 2004 SCC 74

162

List of A p p e n d i c e s
Appendix A: Mitchell and Parkins' comparison of deliberative mechanisms
Appendix B: Old Crow Community_l_ayers
Appendix C: Chief_and Council Resolution
Appendix D - Information letter to Participants,- Focus Groups
Appendix E: Information Letter to Participants- Semhstructured Interviews

Appendix A: Mitchell and Parkins' comparison of deliberative mechanisms
Deliberative Mechanism
Electronic
group
discussions

Key feature

Community
Dinners

Town hall
meetings

Focus
groups

Advisory
committees

Citizen
panels

Negotiated
rule making

Deliberative
polling

# People

<100

Several
dozen or
more

6-12

10-20

10-20

Several
dozen

Several
hundred

Up to 20

LOW

Low

Moderate

Moderate

High

High

High

Moderate

Degree of
Complexity

;

Representativeness

' Low to
; Moderate

Potentially
high

Low to
Moderate

Low to
Moderate

Potentia
I high

Potentially
high

High

Low to
Moderate

Deliberation
quality

Low to
: Moderate

Low to
Moderate

High

High

High

Moderate

High

High

Low to
Moderate

Moderate

Moderate

High

High

High

Low

Cost

Low

163

Appendix B: Old Crow Community Layers
Vuntut Gwitchin First Nation Citizens
Non-First Nations
Other First Nation Citizens
VGFN beneficiaries living outside Old Crow
Hunters/Trappers/Gatherers
Gwitchin Speakers
Elders/Spiritual leaders
Youth
Women
Familial Groups:
Charlie, Kyikavichik (Kaye), Moses, Frost, Tetlichi, Vitrikwa, Bruce, Netro,
Tizya, Njootli, Kassi, Nukon (Shaeffer), Lord, Able, Linklater, Blake, Peter,
Rispin, Josie, Thomas, Kendi, Benjamin
VGFN government
Chief and Council
Former government members
Former Chief and Council members
VGFN citizens who grew up outside Old Crow
VGFN citizens who grew up in Old Crow
YTG government employees
Boaters
House builders
Dog mushers
Conservatives
Liberals
NDPers

164

Appendix C: Chief and Council Resolution
Chief and Council Resolution:
We agree to the following provisions;
The understanding that research conducted will be used in a Master's thesis document to be
completed by Robin Urquhart and UNBC,
That the abovementioned thesis is by law a public document and will be made available to
the public as required,
The understanding that research will be conducted with persons of the Old Crow community
and that this participation is voluntary up to the conclusion of the interview,
That the section of this thesis, dependant on information from the community of Old Crow,
will be submitted to Vuntut Gwitchin First Nation for feedback and check for accuracy,
The understanding that if anonymity is granted to those persons requesting it, and that
research deemed harmful to the community will not be reflected in the thesis,
The understanding that full recognition and intellectual property rights will be granted to
VGFN and participants for the research conducted
The understanding that authorship recognition will be granted to VGFN if so desired,
And the understanding that a copy of the thesis document in full will be provided to VGFN
upon publication.

Originally Signed By:
Chief Joe Linklater
Councilors:
Kathy Nukon
Roger Kyikavichik
Esau Schaeffer

165

Appendix D: Information letter to Participants - Focus Groups
Operationalizing Consultation - The Community Perspective
Information letter to Participants - Focus Groups
The goal of this research is to provide more information on resource
management consultation by looking through the perspective of Old Crow. A subgoal is to provide the community of Old Crow with a functional definition of
consultation that can be used in further resource management deliberations. This
may be used as a model by other Yukon communities to similarly produce
consultation protocols tailored to their individual situations.
You were chosen to participate in this research as a community member of
Old Crow. Your unique experience and position in Old Crow will help to build the
overall community perspective on resource management consultation. You will be
asked to provide thoughtful insight into the topic of resource management
consultation through focus group discussions. Specific questions will range around
what are the ideal principles and procedure for consultation in Old Crow? Your
personal opinion is all that is required as participation in this project.
The community of Old Crow can potentially benefit from this study. It will be
provided with a better understanding of what the community desires in terms of
consultation principles and procedure. This will give the community more direct
access to resource management deliberations and potentially increase the benefit
received by the community in projects being conducted within VGFN territory. There
are no foreseeable risk in participating in this research.
Responses and information you provide are completely confidential and
anonymous. A report from the focus group meeting will be written and available
through the community steward/RRC Office for review, feedback and verification.
Unmarked prepaid envelopes are provided and addressed to Robin Urquhart. If you
have specific feedback or comments on the report coming from the focus group
please include them and your name in the envelope and drop it in the mail box.
Otherwise you may call Robin Urquhart directly; contact information is listed below.
The focus group meeting will be audio-recorded for note taking purposes only.
Robin Urquhart will retain sole possession of this recording and it will remain in his
safe possession in Whitehorse until project completion, whereupon it will be
destroyed (December 2008).
The information will be used in a Master's Thesis and a report to the
community of Old Crow. The Master's thesis is by law a public document open to
anyone interested. The report to the community of Old Crow will be available
through the First Nation office. With VGFN approval, this document may be sent out
to other Yukon communities to act as a model for developing similar consultation
protocols.

166

Your participation in this research will be completely anonymous and your
name will not appear on any public document associated with this research unless
you state otherwise. If you would like your name to appear on the final report and
Master's Thesis please check the appropriate box on the consent form. No
information will be specifically attributed to you, and you will be recognized as an
invaluable participant of this research and that your information has been used, in
part, to develop the community definition of consultation.
Participation in this research is completely voluntary and you may withdraw at
any time up to the publication of the report or thesis defense (December 2008). If
you withdraw, your information will be stricken from the record and immediately
destroyed. Your participation is for the benefit of the community of Old Crow and I
cannot offer remuneration for your work. You will be provided with a free copy the
report to the community of Old Crow.
To receive copies of research results please contact VGFN Government
Office. A copy of the thesis will be housed in the First Nation Office in addition to
more copies of the Report to the community of Old Crow.
For more information or if you have any questions please contact:
Robin Urquhart
61-13th Ave.
Whitehorse, YT
Y1A4K6
(867) 633 2493
Any complaints about the research project should be directed to:
Office of Research
University of Northern British Columbia
3333 University Way
Prince George, BC
V2N 4Z9
reb@unbc.ca
250 960-5650

Macee Cho,

Robin Urquhart

167

Resource Management Consultation Towards Developing an Operational Concept
Please check appropriate box
CONSENT FORM

Do you understand that you have been asked to be in a
research study?

• Yes

• No

Have you read or been read the attached information sheet?

• Yes

a No

Do you understand that the research meetings will be
recorded?

D

Yes

a No

Do you understand the benefits and risks involved in
participating in this study?

• Yes

a No

Have you had an opportunity to ask questions and discuss this
study?

• Yes

a No

Do you understand that you are free to refuse to participate or
to withdraw from the study at any time? You do not have to
give a reason

• Yes

• No

Do you understand all information is confidential and
anonymous unless you state otherwise?

• Yes

• No

Do you understand your information will be used in public
documents; including a Master's Thesis and Report to the
community of Old Crow?

• Yes

• No

168

Do you wish to have your name listed as a participant of this
research in public documents

•

Yes

a No

This study was explained to me by:
Print Name
I agree to take part in this study:
Date:
Signature of Research Participant

Printed Name of Research Participant
Date:
Signature of Witness

Printed Name of Witness
I believe that the person signing this form understands what is involved in the study and
voluntarily agrees to participate.
Date:
Signature of Investigator

169

Appendix E: Information Letter to Participants - Semi-structured
Interviews

Operationalizing Consultation - T h e C o m m u n i t y P e r s p e c t i v e
Information letter to Participants - Semi-structured Interviews
The goal of this research is to provide more information on resource
management consultation by looking through the perspective of Old Crow. A subgoal is to provide the community of Old Crow with a functional definition of
consultation that can be used in further resource management deliberations. This
may be used as a model by other Yukon communities to similarly produce
consultation protocols tailored to their individual situations.
You were chosen to participate in this research as a community member of
Old Crow. Your unique experience with consultation will help to build the overall
community perspective on resource management consultation. You will be asked to
provide thoughtful insight into the topic of resource management consultation
through interviews. Specific questions will range around what are the ideal
principles and procedure for consultation in Old Crow? Your personal opinion is all
that is required as participation in this project.
The community of Old Crow can potentially benefit from this study. It will be
provided with a better understanding of what the community desires in terms of
consultation principles and procedure. This will give the community more direct
access to resource management deliberations and potentially increase the benefit
received by the community in projects being conducted within VGFN territory. There
are no foreseeable risks in participating in this research.
Responses and information you provide are completely confidential and
anonymous. A transcript of the interview will be provided only to you for your review,
feedback and verification before information is used in any document. If you cannot
read the transcript, Robin Urquhart or another person who has signed a
confidentiality agreement, will read it to you. You may also obtain an audiorecording of the interview upon request.
The information will be used in a Master's Thesis and a report to the
community of Old Crow. The Master's thesis is by law a public document open to
anyone interested. The report to the community of Old Crow will be available
through the First Nation office. With VGFN approval, this document may be sent out
to other Yukon communities to act as a model for developing similar consultation
protocols.
Your participation in this research will be completely anonymous unless you
state otherwise. If you would like your name to appear on the final report and
Master's Thesis please check the appropriate box on the consent form. No
information will be specifically attributed to you, and you will be recognized as an

170

invaluable participant of this research and that your information has been used, in
part, to develop the community definition of consultation. If you do not state
otherwise, your name will not appear in any public document associated with this
research.
Participation in this research is completely voluntary and you may withdraw at
any time up to the publication of the report or thesis defense (December 2008). If
you withdraw, your information will be stricken from the record and immediately
destroyed. Your participation is for the benefit of the community of Old Crow and I
cannot offer remuneration for your work. You will be provided with a free copy of
your interview transcript, the report to the community of Old Crow and an audiorecording of your interview, should you request it. The transcript and audiorecording are your information. You may do as you see fit with them. Again,
participation is voluntary; you may withdraw at any time up to project completion.
All recordings, interview notes and transcripts, will be securely stored with
Robin Urquhart in Whitehorse. They will be destroyed at the thesis termination
(December 2008).
To receive copies of research results please contact VGFN Government
Office. A copy of the thesis will be housed in the First Nation Office in addition to
more copies of the Report to the community of Old Crow.
For more information or if you have any questions please contact:
Robin Urquhart
61 -13th Ave.
Whitehorse, YT
Y1A4K6
(867) 633 2493
Any complaints about the research project should be directed to:
Office of Research
University of Northern British Columbia
3333 University Way
Prince George, BC
V2N 4Z9
reb@unbc.ca
250 960-5650
Macee Cho,
Robin Urquhart

171

Resource Management Consultation Towards Developing an Operational Concept
Please check appropriate box

Do you understand that you have been asked to be in a
research study?

• Yes

D

No

Have you read or been read the attached information sheet?

• Yes

D

No

Do you understand that the research meetings will be
recorded?

• Yes

• No

Do you understand the benefits and risks involved in
participating in this study?

• Yes

• No

Have you had an opportunity to ask questions and discuss this
study?

• Yes

• No

Do you understand that you are free to refuse to participate or
to withdraw from the study at any time? You do not have to
give a reason

• Yes

• No

Do you understand all information is confidential and
anonymous unless you state otherwise?

• Yes

• No

Do you understand your information will be used in public
documents; including a Master's Thesis and Report to the
community of Old Crow?

• Yes

a No

172

Do you wish to have your name listed as a participant of this
research in public documents

• Yes

• No

This study was explained to me by:
Print Name
agree to take part in this study:
Date:
Signature of Research Participant

Printed Name of Research Participant
Date:
Signature of Witness

Printed Name of Witness
I believe that the person signing this form understands what is involved in the study and
voluntarily agrees to participate.
Date:
Signature of Investigator

173

Appendix F: Semi-structured interview and focus group questions
*ln some cases not all questions were asked. This was especially true if I felt the
interview had already covered the topic of a subsequent question. Various prompts
were also asked depending on the answer to the following questions to elucidate
more information.
1. Where is the first place you hear about new projects coming into Old Crow?
2. Is this or are these good methods of learning about projects?
3. How much do you feel you know about projects that are currently being
undertaken in Old Crow or in VGFN TT? Why, why not?
4. If you wanted to know more about a current or incoming project where could
you go to find more information?
5. Whose responsibility do you think it is to consult the community?
6. Do you feel like consultation has been adequate in the past? Why, why not?
7. What are the major obstacles (if any) to consultation in Old Crow?
8. What, in your opinion is the most important characteristic, or principle, for
successful consultation?
9. What are other characteristics, or principles, that are necessary for successful
consultation?
10. When is a good time to hold consultation events (meetings, door to door
visits, etc.)?
11 .What is the first thing an incoming project (be it researcher or exploration
company or anybody in between) should do in the community?
12. What other steps should an incoming project take?
13. How comfortable do you feel participating in consultation events? Why, why
not?
14. Do you feel community members should be compensated for their time in
consultation events? Why, Why not?