Co-Management: The Legal Impact of Participatory Governance on Administrative Decision-Making in the Mackenzie Valley

This dissertation offers a legal perspective on the dynamics of Indigenous participation in administrative institutions, with a specific focus on co-management boards. Co-management is a participatory governance arrangement used for resource management in Canada. In the Mackenzie Valley, some of the land claims are settled, jurisdiction is established, and the authority to determine the development of settled lands rest with Indigenous governments. What remains uncertain are the perspectives of Indigenous peoples on the risks and benefits of development and how much control they have over its terms. Co-management is expected to address these uncertainties. However, there are questions as to whether participatory governance arrangements can achieve the political objectives that precipitated co-management. This dissertation is concerned with the relevance of the law to the increased participation of Indigenous peoples in resource management. To this end, it provides an empirical analysis of how participatory governance is constructed by statute and conceived through the administration of co-management. It provides a detailed examination of how law is used to support or detract from co-management arrangements as a participatory initiative. It also offers a legal perspective on the dynamics of participatory governance within administrative institutions. In explaining the role of the administrative agency, this thesis concludes that it is possible for co-management boards to successfully account for Indigenous perspectives in regulation. The dissertation makes the case for this conclusion through analysis of agency discretion over statutory interpretation, rulemaking, and ministerial recommendations. This finding suggests two claims. The first is that co-management boards can promote participatory governance through the exercise of discretionary authority. The second claim is that regulation deriving from co-management may be better explained by an administrative theory that relies on participatory governance, rather than a procedural conception of participation. In addition, it suggests that where participation is foundational to the agency, greater import should be paid to its regulatory output. Thus, this thesis builds on the recognition that Aboriginal rights are not only developed and affirmed through the courts. Rights can also be developed as a product of Indigenous participation in public administration.