An interview with Lesley McCullough
Lesley McCullough has extensive legal and policy experience in governance and Aboriginal rights. She has worked for the Government of Yukon since 1992. Before becoming acting Assistant Deputy Minister of Courts and Regulatory Services, she held a variety of positions at the Government of Yukon's Land Claims and Implementation Secretariat, including legal counsel to the Government of Yukon in the negotiation of the Umbrella Final Agreement and Yukon First Nation Final and Self-Government Agreements, and director of mandate and policy. Lesley is a graduate of F.H. Collins Secondary School in Whitehorse, Yukon and has a Bachelor of Arts (Honours) from the University of Alberta and a law degree from Queen's University.
LESLEY MCCULLOUGH: I'm Lesley McCullough. I moved to the Yukon as a young teenager. I've lived in the Yukon almost all of my life. I'm a lawyer by training, and right now I'm the Assistant Deputy Minister – I'm an Assistant Deputy Minister of Justice. And during, I guess, the late 80s and the 90s, into the 2000s, I worked variously as a legal counsel and then as director of mandate and policy and sometimes as a negotiator for the Yukon Government in the Yukon land claims – comprehensive land claim negotiation process.
MEAGAN PERRY (VOICE OVER): Lesley McCullough started her work with the Government of Yukon in 1985 when Yukon's groundbreaking approach to aboriginal self-government was just a germ of an idea. Years later, she helped to negotiate the Umbrella Final Agreement. That document, often called the UFA, laid the foundation for what exists in the Yukon today with 11 self-governing First Nations working in cooperation with the federal and territorial governments.
LESLEY MCCULLOUGH: Watching the agreement being signed is a huge – it's a huge boost. It's so exhilarating because really what it is is two things. It's the culmination of all the work that's gone before. It's the culmination of the objectives, of the dreams that people have had, all the incredible amounts of work that they've put into it, and at the same time it's a new step into really a change, a difference. The agreements change our society, and just to know that you've had the opportunity to be a part of that is hugely gratifying. It's exciting.
MEAGAN PERRY (VOICE OVER): I'm Meagan Perry and early in 2011, 18 years after the signing of the Umbrella Final Agreement, Lesley McCullough invited me to her office. We sat down to talk about self-government implementation in the Yukon and the way the agreements have come to life over the last 25 years.
MEAGAN PERRY: For listeners who might not have a good picture of politics in the Yukon, why do you think the Yukon Government was willing to develop a cooperative model for aboriginal self-government? It's the only place in Canada that's really done that in the way the Yukon has.
LESLEY MCCULLOUGH: I think there were a lot of sort of historic reasons for that in that the Yukon is anomalous in Canada. And at that particular moment in time things came together, it was synchronicity. I think there were a lot of visionary First Nation leaders, and there have been for a long time in the Yukon, as we know, right back – records right back from the gold rush of – we've known of First Nations leaders pressing their people's claims, and that was consistent. And I think in the 1980s you got a number of really smart, really dedicated leadership in the First Nations that said this is our time to do it. This is the time we can make it happen.
At the same time you also got a government that had campaigned on the basis of addressing land claims. That was really a central tenet of what their platform was at the time. A lot of people were surprised that they were elected. They didn't have a big margin of victory and I believe that they thought at the time, you know, if we're going to make a difference, if we're going to make this a better place, we've got to move now. And let's – we can do something big. The Yukon is a small place. The Yukon is – it can be our lab, our medium for really changing the world in which we live. And luckily it was also the time where for a variety of reasons – legal and I'm sure political – Canada was willing to entertain discussions about a different type of model of land claims and self-government. And I don't think they had been before and maybe not afterwards either.
MEAGAN PERRY: Now talk to me about that model. What is it that makes the Yukon model for land claims and self-government unique?
LESLEY MCCULLOUGH: Well I think that there are a number of things. It's unique in its – the land claims agreement, the whole framework of negotiations was, I think, unique in its overall process, and really responsive to the way the Yukon worked. We have an Umbrella Final Agreement and what that means is we have, basically, a template. And the provisions of that template are found in each of the 11 Yukon First Nations Final Agreements, although those First Nations Final Agreements also contain provisions that are unique to the First Nation. So what I think we did was we reflected the fact that we're a small jurisdiction. Everything can't be different. You're going to cross many traditional and territories, go through municipal lines; you're going to be dealing with a lot of governments, with a lot of First Nations. You need to have some sort of consistency. So having the Umbrella Final Agreement as a consistent base assists in that.
But then we also recognize that First Nations are different, communities are different, people will want different things and different ways of addressing maybe the same issues. And we allowed for that as well. So they're not cookie-cutter agreements at all. There is a level of consistency between them, but there is also a lot of room within our model for provisions that really reflect the objectives of the First Nation. And I think that was a really important thing.
MEAGAN PERRY: So what's an example of one of these specific provisions that you were talking about?
LESLEY MCCULLOUGH: OK, for example, there are general Umbrella Final Agreement provisions speaking to economic development in all of the agreements. But some of the agreements use that provision as a bit of a springboard for, say, provisions in specific provisions in respect of a guaranteed right to parcels of land as development takes place in the traditional territory. Some of the agreements use it as a springboard to an obligation for public, government, and the First Nation to work together if there is resource development – that type of thing. So the sort of springboard provision from the UFA may be the same, but the way that it's represented speaks to what was really important to the First Nation at the time. Similarly all the First Nations Final Agreements have provisions for selecting members of the Renewable Resources Council or other boards in commission. The process whereby the parties work together to come up with those names differ from agreement to agreement. So in some each just puts forward a slate and chooses a certain amount of people. In others the parties agree to work cooperatively so that they are all on side with all of them. And really it's a reflection of the way individual First Nations wanted to work with government.
MEAGAN PERRY: So that's land claims. Now talk about self-government.
LESLEY MCCULLOUGH: Our self-government agreement is unique in Canada and there are a lot of reasons for that. But I would say the primary one is that I think alone amongst negotiated self-government agreements it actually gives a First Nation really substantive law-making powers that are not necessarily subjective to those of the other governments. In the Yukon we have what we've often called the “displacement model”. So if a First Nation makes a valid law dealing with a specific matter, the Yukon's law no longer operates to the extent that the two laws deal with the same matter. In other jurisdictions the First Nations law operates if it's more stringent than or has tighter provisions than the public government's laws. But in Yukon it's actually a displacement model. And when we were negotiating that we actually thought, you know, we, being Yukon Government, is this what we want? Are we willing to take that risk that the First Nations will have laws that we don't like and don't want – we don't want to see them have? And we just came to the conclusion that, you know, that's what happens when you deal with another government. You're not always going to agree. And governments have the right to make laws in respect of their people and in respect of their land that make sense for them, even if it's not what we might want.
Now practically speaking I don't think that has been the situation. What it's done is it's meant the First Nations have focused on making laws that are important to them, pouring their energy – and their money, because it takes money to put a law together – into the laws that are the most important to their people. They haven't used laws to make rhetorical points that they feel safe making because they'll never come to pass. They know that they have authority. They know that they have power. And that means that when First Nation governments work with public governments and they work cooperatively, in a great deal of cases it's not because they have to. It's not because they have no choice but to work within the public government system. It's because they think there are benefits to doing so and that there are benefits in acting cooperatively.
MEAGAN PERRY: Now I want you to go back and I want you to talk to me about how you started your work on self-government and land claims agreements. Was there a personal connection to negotiation and implementation for you?
LESLEY MCCULLOUGH: There actually were a lot of connections, both personal and professional. As I said, I grew up in the Yukon and it was clear to me, going to junior high and high school here, that there was a lot of discrimination against First Nations people. Maybe not as bad as in other places, but it was a real thing. And the history of discrimination in the Yukon had had a really adverse impact on people. And even when I was a teenager I remember thinking when I would hear about Elijah Smith and the then Yukon Association of Non-Status Indians merging with the Yukon Native Brotherhood, I remember thinking that's a good thing. I mean those types of equality issues were really important to me and the idea that people would have equality of opportunity.
When I was older I went and worked for the then Premiere of the Yukon and that was a central tenet of his platform, although I should say that I think that that really tapped into something that a lot of Yukoners were thinking because land claims has been supported by every government of every stripe since then. But for me it was a chance to make a better society. It was the chance to be part of something that is bigger than you and bigger than your own self interest. And being part of a movement that is a progressive, a good movement is a wonderful, wonderful thing. And as a lawyer it was just really, really interesting as well. How do you negotiate something like this? So that was really exciting to come up with different ideas.
MEAGAN PERRY: What was it like when the idea of self-government was percolating at the Government of Yukon? What kinds of things did you hear about it, and did anyone envision the model that developed here?
LESLEY MCCULLOUGH: I think at the very start the model that we have wasn't really envisaged. Just because of the negotiation process I'm pretty sure that neither First Nations nor public government envisaged what it would look like. We probably all thought it would be much more contractual. We thought it would be cleaner. We certainly thought it would be easier. Although it became pretty clear pretty quickly – you know, you say: we're going to negotiate self-government. And then you start thinking: well what do we think self-government is? What will we go to the table – what are we prepared to agree to? What are we not prepared to agree to? What are the interests out there that we feel have to be protected, and is there any way when another party comes and says to us, well, OK, we want this, and our first reaction is: well, wait. That threatens those interests we have to protect. Is there any other way to protect them? And it really was a huge push and there were a lot of negotiators at the time that I really have to sort of take my hat off to, starting with the Yukon's negotiator Barry Stuart, but others – and certainly Karyn Armour who is still in the land claims and Implementation Secretariat – who were enormously creative and were able to put aside the preconceptions of: we can't do that, we won't do that, and look and see: OK, if this is our objective, how do we get there?
MEAGAN PERRY: It sounds so exciting.
LESLEY MCCULLOUGH: It was exciting. What can I say? You know what? Sometimes I think – sometimes everybody thinks, you know, when you hear about people in the 60s and people who were part of great movements and you think wow, that would have been so great to be a part of that but I was too young. And then I think sometimes: but you know, my name is on these agreements. Like I signed them. I was part of a change, and if I'm part of a change, you know, everybody in the Yukon is part of a change. And it really sort of helps you reflect on how your day-to-day work, your day-to-day life actually changes things, what kind of different world you can have.
MEAGAN PERRY: So obviously implementation is still ongoing and that's a process that requires long-term commitment from all the parties – the Yukon and Canada and Yukon First Nations. From your perspective how has the focus of First Nations, Yukon and Canada evolved from the time of negotiations through to putting self-government and land claims agreements into practice? What have you seen?
LESLEY MCCULLOUGH: Oh yes, what I would say is I have seen a real shift in terms of the types of issues that our focus is on from what is essentially a legal-type relationship to what is a practical relationship. So at the start of the negotiations the issues that we spent a lot of time on – and that were essential and had to be dealt with – were big legal, conceptual issues like aboriginal title. I mean what does that mean? Like certainty. What is certainty? And then as we moved into negotiations with the First Nations, each of the First Nations at their First Nation Final Agreement table, the issues became different. The hard issues became things like trap lines or gravel because those are the things that are really important to people's working lives, their ability to make a living, their ability to keep their car from sinking down in the driveway. They were much more practical, you know? How many trap lines would the First Nation have the allocation authority in respect of as opposed to government? Those types of questions. And I think as we move it to implementation and continued implementation, what we find is that really it's a constant process of refining that working relationship.
I think we have created much more of a government-to-government relationship. And I know that sounds kind of trite and we say that all the time, but I think that's really what a working relationship is because it's born of a mutual respect for one government for the others. And it's also a process of ups and downs in terms of relationship and I guess from my perspective that's kind of normal because governments – no governments get on well all the time, but I guess hopefully you want to have enough strength in the relationship that when you disagree on an issue, that doesn't tip the whole relationship over, that you're able to maintain a working relationship and move – progress for the benefit of all your citizens together on those other issues.
MEAGAN PERRY: Now was there ever a time in the course of your work where you felt that self-government had made a breakthrough – you know, you've been doing this a long time – when you could clearly see that the work you were doing had a positive effect on the lives of Yukoners?
LESLEY MCCULLOUGH: Well there's two things. One, before I could see it, when the Champagne & Aishihik First Nations ratified its agreement and the elation that members of the Champagne & Aishihik First Nations in the room felt at doing away with the Indian Act, to me that was a surprise. The level and the extent to which they looked upon the Indian Act as a cage, a burden, a limitation. To me that was an eye-opener and a wonderful eye-opener. Just shows how much you don't think about the lives and worlds of other people until you come directly – you're directly confronted by it.
At a more practical basis, I actually think about, whenever I see legislation from First Nations, whenever I'm at meetings with First Nation officials and they're talking about their policies, about what they do, how they're planning to meet their objectives, and the sheer normalcy of it is great. I mean it's really a confidence thing because quite frankly we heard a lot about: are First Nations ready for self-government? Will they have enough trained people? That type of thing. And yes, these are issues that you want to think about but you can let yourself be crippled by it. You have take the chance and interest people. And from my perspective that chance has been, that trust has been borne out.
MEAGAN PERRY: It's important for all Yukon citizens to understand the Umbrella Final Agreement and the Yukon First Nations final agreements and self-government agreements and land claims agreements. But they're complicated documents. So how do you explain them to Yukoners? When people ask you about them, do you have a simple explanation that you give?
LESLEY MCCULLOUGH: Well I have an explanation. It doesn't give details, but what I say is that it's the agreement whereby Canada and Yukon address the outstanding legal, moral and equitable claims of First Nations. And we did so in a way that benefited all people in Yukon. We did so in a way that gives certainty where there hadn't been any before, that created cooperative processes – and not just cooperative processes, but grassroots processes for all Yukoners, give everyone a chance to have a greater say in the way our government makes decisions. And so yes, it sets out rules and you have to go and look things up from time to time. But you can find things in there. It's not an impenetrable document. There's a lot of resources. And really the fact that there is somewhere that you can go and answer your questions is a huge thing.
MEAGAN PERRY: When you look back on the years you've worked to develop self -government and land claims in the Yukon, what do you think about it?
LESLEY MCCULLOUGH: I think I was so lucky. I was there at the right time. I had the opportunity to work with great people from all governments – really creative, visionary, generous, funny people – people who I would never have met otherwise. I had the chance to go into communities that I might have just, you know, driven through before. I had the chance to think of concepts and think of ways to do things and ways to work out processes that would help people. The chance just to be part of something big, that was my movement.
MEAGAN PERRY: Thanks for talking to me today.
LESLEY MCCULLOUGH: Thank you.
MEAGAN PERRY (VOICE OVER): That was Lesley McCullough, a lawyer with the Government of Yukon who has been working toward implementing a cooperative model of aboriginal self-government since 1992. This interview is intended to deepen public understanding of the history of land claims and self-government implementation in the Yukon. The ideas and opinions expressed in this interview are those of the interviewee alone. This series of podcasts was produced by the Implementation Working Group, a cooperation between the Council of Yukon First Nations, Government of Yukon, Government of Canada, and Self-Governing Yukon First Nations.