Living in Perfect Harmony: Harmonizing Sub-Artic Co-Management through Judicial Review

To foster the participation of Aboriginal peoples in resource governance, the Government of Canada has recently restructured a number of administrative regimes, converting them into institutions of comanagement. Despite this restructuring, the degree to which Aboriginal peoples’ participation can influence the regulatory output of co-management boards remains uncertain in law. This article deconstructs one interpretive method that can impact participation in co-management regimes: harmonization. Drawing on a trilogy of cases, I argue that recent judicial efforts to harmonize the Mackenzie Valley Resource Management Act with its predecessor, the Canadian Environmental Assessment Act, can limit the regional interpretive differences that Aboriginal peoples’ participation in treaties and co-management is intended to foster. This outcome is problematic to the extent that it frustrates the participatory goals of the legislation and the substantive goals of contemporary treaties. In light of this problem, I advocate a cautious approach to statutory interpretation in which administrative boards tasked with ensuring Aboriginal participation in decision making can be expected to produce rules, decisions, and interpretations that differ from those produced under other regimes.