Deference and Legal Frameworks Not Designed By, For or With Us (Naiomi Metallic)
Naiomi Metallic holds the Chancellor’s Chair in Aboriginal Law and Policy at the Schulich School of Law and practices aboriginal law with Burchells LLP in Halifax
Owing to the work of the Truth and Reconciliation Commission (“TRC”), as well as to some high profile cases in the media of late, there is a growing realization that legal systems not designed by, for or with Indigenous peoples can perpetuate harms against them. Here, I argue that administrative law rules that have developed around deference tend to place Indigenous peoples at a disadvantage in judicial review proceedings.
There is a long history of conflict between Indigenous peoples and various government actors, including situations where such actors have neglected their obligations under treaties or laws, abused their power, or otherwise failed to fulfill legitimate expectations of Indigenous groups. The overall purpose of administrative law is to “assure the proper functioning of the machinery of government” (Martineau v Matsqui Institution) and hold government actors accountable to the “rule of law, … fundamental values of Canadian society, and the principles of the Charter” (Baker). Consequently, administrative law holds out a lot of promise for assisting Indigenous peoples in resolving disputes with public decision-makers.
Yet these lofty sentiments often seem to get lost in day-to-day decision-making in administrative law. Reviewing judges are accustomed to review based on a decision-maker’s adherence to their enabling statute. While Dunsmuir talked about the legal limits on decision-makers also including common law and the Constitution, a lot of the focus in judicial review tends to be on enabling statutes. Dunsmuir instructs that the review of the exercise of discretion under statute is reviewable on the standard of reasonableness.
But what if you are a Canadian that neither federal nor provincial governments have shown much interest in protecting under law? What if your people were pushed to the margins of society over the course of 150 years, dispossessed of your lands, resources, legal system and more, and federal and provincial legal frameworks facilitated that dispossession? And what if, with the exception of occasional modest tinkering in recent years, these frameworks continue ignore your peoples’ claims to lands, resources, legal systems and more?
The point I am making here is that these legal frameworks almost inevitably tend to be skewed to the interests and goals of settler Canadians over those of Indigenous peoples. The playing field is thus already uneven, and a starting point of deference can tip the imbalance even further. The problem is illustrated in Moldaver J.’s concurrence in Ktunaxa Nation v BC (Forests, Lands and Natural Resources Operations), 2017 SCC 54. (A description of the majority’s decision will be provided in Janna Promislow’s blog post later today and so here I focus only on Moldaver J.’s reasoning since he applies the Doré/Loyola test.)
Although prepared to find that development of the Jumbo Valley ski resort would drive out the Grizzly Bear Spirit from Qat’muk and infringe Ktunaxa Nation’s s. 2(a) rights, Moldaver J.’s application of the Doré/Loyola justification test reveals that a fair balancing for Indigenous people is difficult where legal frameworks vests all lands and control in the province. The relevant statutory objectives, supplied by British Columbia’s Land Act and the Ministry of Lands, Parks and Housing Act, were identified as the duties to administer and dispose of Crown lands in the public interest, as well as to encourage outdoor recreation. There is nothing in these laws calling on the Minister to consider or attempt to reconcile Indigenous groups’ title or Aboriginal rights claims in performing his duties under these acts. Thus, when it came to determining whether the Minister acted reasonably in approving the ski development on Jumbo Mountain, it is not surprising that the judge agreed that accommodating the Ktunaxa’s religious rights and protecting the mountain from development would undermine the Minister’s statutory objectives of administering Crown land and disposing of it in the public interest.
The Doré/Loyola test emphasizes that the focus is on the statutory objectives in carrying out the proportionality analysis (an approach recently criticized by Ontario Court of Appeal). Nothing in the applicable statutory framework in Ktunaxa called on the Minister to weigh Indigenous interests. Although one could argue that reconciliation as a value should inform the concept of “public interest” as including Indigenous interests (a point suggested in Clyde River at para. 40 but not revisited in Ktunaxa), or that reconciliation should inform a decision-maker’s interpretation of their home statute, on a deferential standard of reasonableness, it would be hard to argue that the Minister’s failure to interpret ‘public interest’ in this way—especially when the statutory framework is silent—constitutes an approach that falls outside the “range of reasonable alternatives.” In other words, although the Minister could have given more weight to Ktunaxa’s interests in his decision of what was in the ‘public interest’, courts will likely not quash his failure to do so absent an express requirement in the enabling statutory framework. And, as noted above, few if any existing laws expressly require consideration of Indigenous peoples’ claims as part of the public interest or otherwise. (Even supposing there is a constitutional imperative to interpret reconciliation as part of the public interest; it has been argued that the Supreme Court’s approach to ‘reconciliation’ often leads to settler interests prevailing over Indigenous interests.)
The situation is arguably even worse when there is no legislative framework and the government instead ‘regulates’ via policy. There are many instances where the federal government has declined to legislate over First Nations and instead exercises its jurisdiction through policy manuals. This includes in the areas of the provision of essential services on reserve and the negotiation of land claims (for more information, see our Chapter 3, “Realizing Aboriginal Administrative Law” in Administrative Law in Context, 3d ed.). Despite objections raised by the Auditor General of Canada that lack of legislative frameworks in these areas create “confusion about responsibility for funding [services] adequately”, “undermine[s] Parliamentary control” and ultimately “hinder[s] improvements in living conditions on reserve,” Canada has remained steadfast in its refusal to legislate in these areas for decades (except until very recently).
In cases where disputes have arisen between Canada and First Nations in these areas, the lack of a legislative framework has led some judges to question whether judicial review is even available. Even where disputes have been found to be reviewable, government lawyers often argue that the policy / discretionary nature of these non-legislated activities demand a heightened level of deference (see “Realizing Aboriginal Administrative Law” supra). Thus, Canada’s resistance to legislating gives it an undeserved advantage in administrative law of virtually insulating itself from review. Such a problem could be corrected by reviewing judges, provided they are willing to scrutinize the basis for the degree of deference claimed by the Crown; however, few lawyers or judges are sufficiently familiar with this area to even realize there is a problem.
The problems I have discussed here arise because Indigenous peoples have been largely excluded from having any say over the design of legal and policy frameworks that affect them. In its Final Report, TRC has underscored that this situation must end in order for there to be true reconciliation:
In Canada, law must cease to be a tool for the dispossession and dismantling of Aboriginal societies. It must dramatically change if it is going to have any legitimacy within First Nations, Inuit, and Métis communities. Until Canadian law becomes an instrument supporting Aboriginal peoples’ empowerment, many Aboriginal people will continue to regard it as a morally and politically malignant force. A commitment to truth and reconciliation demands that Canada’s legal system be transformed. It must ensure that Aboriginal peoples have greater ownership of, participation in, and access to its central driving forces. Canada’s Constitution must become truly a constitution for all of Canada. Aboriginal peoples need to become the law’s architects and interpreters where it applies to their collective rights and interests. Aboriginal peoples need to have more formal influence on national legal matters to advance and realize their diverse goals. (at 203)
To hasten this transformation, the TRC’s Calls to Action call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Part of the implementation of UNDRIP should involve every government reviewing their legal and policy frameworks to ensure consistency with UNDRIP. The federal government announced the creation of a Working Group of Ministers on the Reviews of Laws and Policies Related to Indigenous Peoples in February 2017. Similar processes need to happen within the provincial and territorial governments. Until there is such reform, administrative law’s call for deference to existing frameworks need to be questioned as to whether they unfairly advantage settler-Canadian interests above those of Indigenous people. This should not necessarily preclude a finding that a decision-maker may be owed deference; only that we should not accord blanket deference by presuming the decision-maker is an expert simply because she is interpreting her home statute or, on the other hand, because of the presence of discretion or policy decisions existing in the absence of statutory provisions.
Other potential interim solutions could be amendments to federal, provincial and territorial Interpretation acts to explicit read in a requirement that all decisions-makers carrying out their functions under legislation must balance their statutory duties with the requirement to achieve reconciliation with Indigenous peoples. Theses amendments should also provide a definition of ‘reconciliation’ and this should be consistent with how the term is defined by the TRC as “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country” (at 7-8). Such directives in legislation would make it beyond debate that decision-makers are required to consider Indigenous interests any time such interests are affected by administrative action.
This content has been updated on February 26, 2018 at 20:35.