I am attending the 40th Annual Yukon Geoscience Forum this week and having a great time meeting old and new friends and learning about deposits. I gave a talk on Best Practices when the mineral industry is establishing a working relationship with Yukon FIrst Nations and wanted to make it available to all that are interested.
Yukon Geoscience 2012: A New Traditional Management System
Thank you to Yukon Chamber of Mines for inviting and supporting me in giving this presentation.
SLIDE 1 A New Traditional Management System sounds like an oxymoron, but to Yukon First Nations it makes perfect sense to have traditional and modern aspects existing at the same time. They are in the unique situation of having citizens who have lived with a traditional value system and they now all live in the current value system. Every day they find ways to be both.
If I was to give one “hot tip” for working with First Nations it would be for companies to take a two world view as well. With a one world view you are making assumptions, often unconscious, that only work in one world. When you have a two world, or two perspective, view you have the ability to make choices, which is a much more comfortable and powerful position.
In 1993 the first land claim agreements became law and YFNs gained constitutionally protected right with respect to the management of land and resources. This was a really unique situation with many of its own challenges. The land they manage is divided up into three kinds of jurisdiction (Cat A, Cat B and Non-Settlement Land) and Settlement Land exists as island surrounded by Non-Settlement where they have some shared management roles. In addition, the First Nation Governments are very small. All the people in the Heritage, Renewable Resources, Lands, Economic Development, and Special Projects branches could sit around a Boardroom table. And finally, they have their roots in a cultural tradition that held very different values from those of today. YFNs are not frozen in time, trying to go back to the old ways. But they have the benefit of knowing another way of being in the world and they are tasked with translating that way of being into modern management systems.
I was hired to work with CAFN to develop a mineral management system. We were sitting around the table talking about the current regulatory system and the difficulties in replicating it for CAFN. Then Lawrence Joe said, “even if we could become another YTG style of government, I wouldn’t want that job.” This is when it struck me that this is not a capacity issue. There are huge advantages to the size of YFN governments, and their traditional knowledge. The challenge is to develop a system that is compatible with the YG/Federal regulatory system, but it doesn’t have to be the same.
We began by developing a Best Practices Code for Non-Settlement Land which was completed in 2007 along with a compilation of the UFA clauses that speak to CAFN shared management on Non-Settlement Land (available on the CAFN website at cafn.ca Programs and Services – Lands Branch). Then we looked at developing a system for Category B SL which is now the CAFN Mineral Industry Code (MIC) which I have draft copies of with me today. We also made a compendium of clauses from the CAFN Final Agreement (FA) and CAFNs Traditional Activities Protection Act and Lands Act that the mineral industry needs to be aware of (also on website).
Today I am not going to walk you through all the details of the Code. Instead I want to give you some theoretical insights as to why the system is set up the way it is.
SLIDE 2 As a primary Best Practice, it is always useful to get to know the government structure of the FN you will be working with. They are all slightly different in department names and set ups but have a lot of similarity. CAFN has an Annual General Assembly during which Chief and Council, and the Administration report on the initiatives of the previous year. Members also give direction through resolutions to Chief and Council. Chief and Council in turn meets with the Administration to develop strategies for the upcoming year and allocates funding and sets priorities for carrying through on the year’s resolutions. As a separate track, there is the ongoing implementation and management of CAFN laws. These are the responsibility of CAFN Administration in accordance with the laws, policies and Best Practices of CAFN. All permitting is done through the Administration. It is also worth noting the important role FN citizens play in FN government through the GA. FN Citizens have a lot of agency in their government system.
SLIDE 3 One recurrent direction that the GA has given to CAFN government is to find ways to incorporate traditional values into current government practices. This is the direction from a 2009 Resolution that was also the number one goal in the 2011 strategic plan. We will have a vibrant cultural tradition and incorporate Elder’s knowledge and our culture into government.
I really liked this challenge and set out to research what it means to be an oral culture. Doing this taught me a lot about what it means to be a literate culture that I hadn’t really thought about before, which was really interesting and valuable because it illuminated the assumptions associated with being literate.
SLIDE 4 I set out to compare Orality and Literacy. It looks like I had to make up a word to compare the two. At first I wrote Literate vs Illiterate cultures, which makes not being literate sound like a deficiency. But orality is actually a word. Through my research I found that Marshall McLuhan was right in his phrase “the medium is the message”. The medium conveys fundamental messages that are more important than the details of what is being said. Words are only 7% of the communication value when communication is face to face.
There was a time thousands of years ago when dominantly oral cultures were contemplating becoming literate. I was fascinated to learn Plato argued vigorously against becoming literate because he felt too much of the value of being human would be lost.
SLIDE 4 When you communicate through written instruction the system becomes technical. It gives up all the human meaning that is added to information through setting, tone, facial expression, and body language. It also creates a one way flow of information making the recipient more passive. Face to face dialogue encourages an interactive process. The CAFN MIC has created a system based on a Pre-season and a Post-season meeting in order to re-introduce the values of dialogue into the system.
Slide 6 Another problem with written directive is that it has to predict all scenarios and give directives. It is driven by the assumption that things are predictable even if they are complicated. It also sets up an authoritative stance that requires the recipient to do certain things to avoid penalty. The focus becomes when do I trigger a consequence. This can have some problems. For example, CAFNFA 188.8.131.52 says
A person who accidentally discovers a Heritage Resource on CAFN Settlement Land shall take such steps as are necessary in all circumstances to safeguard the Heritage Resource…
A person has no reason to consider heritage resources until it can be proven they recognized a Heritage Resource. This assumes the heritage resource is obvious. I was on a hike to Hutshi and we came across some logs lying in a square pattern. Shiela Quock pointed it out with guarded excitement and marked it on the map as a place to return to in case it was an old camp. Finding these possible sites is extremely important to CAFN because the elders who know the use and meaning of them are very old now and there is no written record.
Because of the one-way technical nature of regulations, there are opportunities that are lost. If proponents knew how to recognize a heritage interest they could contribute to a very significant initiative of FN governments. There is a ten year golden opportunity to contribute to an issue that is very important to FNs which is to find sites while there are still elders who can explain them. Being proactive in finding heritage points of interest would be a powerful step towards developing a good working relationship with FN governments and citizens.
Furthermore, assessing the heritage values in an area can be a very time consuming process when the locations are unknown. Proponents could become partners in the process of finding possible places of interest for very little extra cost and potentially save time in later regulatory processes.
CAFN intends to ask proponents to become partners in the understanding of heritage resource through the pre and post season meetings. They plan to offer a Heritage 101 type class at the beginning of each field season where field workers can learn to notice what might be of interest, record a location, maybe take a picture, and pass that information on to CAFN Heritage.
SLIDE 7 Another feature of a Literate culture is that they do studies. Studies gather data that can be analyzed and developed into models that can be applied more broadly. Oral cultures don’t conduct studies because everything is memorized. Models attempt to be predictive through an understanding of cause and effect relationships. First Nations traditionally depend on direct experience and local knowledge. They remember the overall patterns in an area and adjust their behaviour to respond to its changes. This system of pattern recognition is optimal for understanding cumulative effects because it allows for the fact that two components may interact in different ways each time.
CAFN seeks to have information collected at all stages of exploration allowing as much property specific data to be used in all modelling. For example water data, including information from drill intersections with aquifers could greatly improve the accuracy of hydrological modeling (more data driven than assumption driven). Also recording observations to the overall patterns to wildlife as well as water will enable the recognition of a cumulative effect. CAFN would like to shift to a data driven process which requires information to be gathered incidental to exploration programs to get a good sense of natural fluctuations over time.
SLIDE 8 As I mentioned, the CAFN Pre-Season and Post-season meetings are an integral part of their regulatory process. This is an intention to re-introduce the benefits of interaction between people before issuing a written permit. These permits have the ability to incorporate common sense, develop more proponent buy- in which will decrease potential compliance issues, and to be customized to the needs of a particular project making it much less bureaucratic.
SLIDE 9 I went through the Final Agreement and pulled out all the clauses that have an effect on mineral management. They amount to 14 pages of clauses (available on the CAFN website). We considered how we were going to implement these laws with regulations. It became clear very quickly that some key features would be incredibly complicated to develop universal language on how it would be regulated. For example:
- 18.4.1 says …any person having a New Mineral Right on Cat B … or Non-Settlement Land has a right of access… to cross and make necessary stops without the consent of the FN if:
– the access is casual and insignificant
– the route is generally recognized and being used on a regular basis, or
– (18.4.2) …if the exercise of the right of access does not require the use of heavy equipment of methods more disruptive than hand methods.
I remember the debate over the language of casual and insignificant during the land claim negotiations. We decided to leave it up to the regulators to determine the details. One of CAFN’s goals in creating a mineral management system was to not create cumbersome regulations. Defining casual and insignificant alone in regulatory language for every possible scenario was onerous. The YESAB exclusion list attempts to do this and has its own inherent difficulties. The problem with written directives is that there is freedom of action where you don’t give a directive, so you try to cover everything.
CAFN does not consider all the items on the exclusion list to be outside of their permitting authority given the FA is paramount legislation. Storage of 2000 liters of fuel might be casual and insignificant depending on where it is located. Is cutting a 5m wide swath for half a kilometer casual or insignificant? It is almost comic to suggest that use of 1000 kg of explosives and removal of 500 tonnes of rock every 30 days is casual and insignificant provided you use hand methods but there might be a scenario where it is.
CAFN will define the terms casual and insignificant, generally recognized and give terms for activities not using hand methods specifically for each project after an interactive discussion at a Preseason meeting. This Pre-season meeting can be in person, through a video conference call, or even by phone. After a discussion, a permit will describe the activities that fulfill the Final Agreement requirements for class 1 activites.
Proponents will have the opportunity to give input into the permit conditions, a chance to ask questions which will make the terms more memorable and suggest property specific solutions based on common sense. This process allows the parties to consider alternatives, share resources, and gain an understanding of the issues that are important to each other. This becomes really valuable when decisions are made around unanticipated situations in the field. Those decisions are informed by broader messages of what is valued by the parties thanks to the human process of a face-to-face meeting. There is also a connection made to a person at a Pre-season meeting, making it easy to call to confer on a course of action during the summer, particularly around heritage interests.
SLIDE 10 Let’s look at another impact of being a literate culture. Writing things down gives you the advantage of looking at the past, analyzing it, and applying that learning to shape a desired future. This creates a style of thinking that is very direction oriented. When you approach a FN there is a focus on getting the permit as a step in the direction of doing certain work.
In an oral culture there is much more focus on now. What is remembered is important and by extension, what is meaningful is remembered. When you think about it, oral cultures place a high value on stories which are training grounds for finding the meaning in things. The details of how the meaning is conveyed can vary but we always recognize a story by its message.
It is therefore valuable for proponents to stop and consider the message you are delivering when you approach a FN. Focusing on a direction gives you a goal and everything that stands between you and that goal becomes an obstacle to overcome. The inadvertent meaning conveyed when approaching a FN with a direction focus might be that a FN is an obstacle to furthering your goal which may not get you started on the best footing.
There may also be an imbedded meaning that the land is here for our use, and development is highly valuable because it brings jobs and royalties. This meaning is a contradiction to the traditional belief that the relationship between people and the land is one of caretaking. Again, FNs are not frozen in time. Some FNs will believe mineral activity in their TT caries both values and seek to strike a balance between these two views. Some members will agree a project is mostly beneficial and some will feel the role of caretaker is most important.
Remembering how important the opinions of the citizens are given their role at a GA, it becomes clear how important it is to keep the Branches well informed of your activities so they can answer citizen questions and to form relationships with the community in order to build trust and understanding.
SLIDE 12 There might also be an implicit meaning in promoting development that we all are on a quest for prosperity, otherwise known as Abundance. This may be true but it is not the only way of looking at it. .
SLIDE 13 In an Oral culture there is actually more of a focus on the concept of Enough. This is a foundation of the Potlatch system. It sends the message that when we share what we have, there is enough. When we care for the land it will care for us and we will have enough. A gift giving culture is sending the message that if I give what is excess to me others will give to me when I am in need.
SLIDE 14 The CAFN vision statement says We shall promote a healthy, unified and self-reliant people while conserving and enhancing our environment and culture. Embedded in this statement is a belief in enough. As an interesting aside, psychological studies have shown that abundance will bring you a sense of well-being in the form of comfort and safety. It is the belief in enough that gives a person happiness. On some level we all hold both values. We want comfort and safety and we want happiness.
The point is there may be differences in meaning that could affect how you work together. When working with FNs it is important to consider both the direction and the meaning of your interactions. Ask what the project would mean to a FN. Find out what is meaningful to them and consider how you could design the project to be in line with those values. Without asking these questions you may be sending the message “our value system is better” or “I know what is best for you so I don’t have to ask questions and listen,” without intending to. When you find out what the central value is that give a FN a sense of enough you can have a dialogue around it. If living with caribou, hunting, using the skins to make clothing and in these practices teaching children your traditions connecting everyone, then focus on caribou enhancement early in your relationship.
In conclusion, I would recommend the following best practices when working with FNs:
- Learn the government structure of a FN
- Appreciate the importance of face to face communication
- Discuss work proposals to FNs in the planning stage
- Plan to include collection of heritage, water and wildlife information at all project stages
- Listen to find out what is meaningful
YFNs are not frozen in time. They have the advantage of coming from an Oral tradition that maximizes human potential. They face the challenge of translating that knowledge into a modern context. I have copies of the CAFN Mineral Industry Code for anyone who is interested. We appreciate your thoughts before we finalize it. To provide comments contact Graham at CAFN (867-456-6886 email@example.com) or me (firstname.lastname@example.org 867-668-6771).
YG and YFNs governments both employ a combination of literate and oral processes. The difference is that YFNs have the ability to create a system that leans much more heavily towards the oral system and create a regulatory system that is rooted in common sense, is less bureaucratic, offers more opportunity for creative solutions, and is more responsive to cumulative effects.