The Duty to Consult and the Standard of Review: A Suggestion
In a pair of well-written posts last year (here and here), Howard Kislowicz and Robert Hamilton considered the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 on the standard of review of decisions relating to the duty to consult and accommodate Indigenous peoples as a matter of Canadian public law. The current position seems to be that whether the duty to consult arises is reviewed on the correctness standard and that whether the resultant consultation was adequate is reviewed for reasonableness. But Kislowicz and Hamilton argue that the adequacy of consultation should not be assessed on the reasonableness standard but, rather, should be subject to correctness review.
In their view, the duty to consult raises core questions of sovereignty which are analogous to those questions relating to the division of powers and separation of powers which attract correctness review in the Vavilov framework:
In other words, correctness review is justified for division of powers and separation of powers questions not only for the sake of consistency, but also by the need to ensure that legislatures and executive actors exercise only the amount of sovereignty allocated them by the Constitution. Though there is no reasoning in Vavilov on this point, this justification supports the inclusion of section 35 issues in the exception to the presumption of reasonableness review. The “scope of Aboriginal rights” ought to be understood as stemming from the same concerns that arise from the division of sovereignty among the legislatures and among the branches of government. Aboriginal rights are sourced, as the SCC has recognized, in the prior occupation of the territory by organized societies with their own laws; in other words, Aboriginal rights stem from Indigenous peoples’ “pre-existing sovereignty over the territory of Turtle Island” (Richard Stacey, “Honour in Sovereignty: Can Crown Consultation with Indigenous Peoples Erase Canada’s Sovereignty Deficit?” (2018) 68:3 UTLJ 405 at 408). Section 35, the SCC has held, represents a promise to “reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty” (Haida at para 20).
The “rights” that section 35 recognizes and affirms reflect pre-existing Indigenous sovereignty and law. They are shaped by the body of intersocietal law – both customary and positive – that developed through the interaction of these pre-existing systems with incoming European legal systems (see R v Van der Peet, 1996 CanLII 216 (SCC),  2 SCR 507 at para 31). At common law, Indigenous legal orders survived the assertion and acquisition of Crown sovereignty through the doctrine of continuity. As such, they act as a limit on Crown sovereignty, both by protecting a sphere of activities from legislative and executive encroachment and by recognizing a variety of distinct legal orders that the Crown is constitutionally bound to respect.
The result is that correctness review is appropriate on questions relating to the adequacy of Crown consultation:
Given this, the stakes of adequate consultation are high: it is one process through which constitutional authority and jurisdiction are worked out, and it plays a legitimating function in seeking to mitigate the effects of the most colonial features of Canada’s Constitution. Further, it is a direct instantiation of the honour of the Crown which attaches to all exercises of Crown authority. It is, in short, a process through which the Crown’s legally and morally dubious assertion of sovereignty over Indigenous peoples can, hopefully, be put on the road to rehabilitation in a reformed constitutional order. What does this mean, then, for the standard of review in respect of the adequacy of consultation? The distinction between correctness and reasonableness is described in Vavilov as whether the Court would substitute its own decision for that of the administrative decision-maker. The Court should be able to substitute its own decision on the adequacy of consultation given the high stakes and consultation’s role in mediating constitutional disputes. It may well be that a court has ample room on a reasonableness review to ensure adequate consultation has occurred, but the signals the judiciary sends through the choice of standard of review are important, particularly when the decision-maker is not a delegated body, but the Crown itself. In such cases, the executive is in the position of assessing the adequacy of its own consultation. There, deference on questions of adequacy can give the appearance of permitting unilateral Crown decision-making, undermining the Court’s position as a neutral arbiter, and raising questions of constitutional legitimacy.
I take a different view from Kislowicz and Hamilton on the scope of Vavilov’s correctness categories and leave it to the reader to determine whether their rebuttal is persuasive.
But it seems to me that there is an alternative avenue to (more or less) the destination Kislowicz and Hamilton seek.
As a matter of settled doctrine, the duty to consult is a procedural obligation, not a substantive one: it creates no veto over Crown development projects, only a duty to engage in appropriately meaningful consultation. Of course, as with any legal doctrine straddling the process/substance divide, this position is contestable (see e.g. Mary Liston). Accepting it, however, opens up the following analytical avenue.
If the duty to consult is procedural, not substantive, it is not subject to the Vavilov framework at all. Vavilov is concerned with judicial review of the merits of decisions, not the consideration of the substance of decisions (Vavilov, at para. 23). Just as procedural fairness is assessed under Baker and related frameworks (Vavilov, at para. 77), the duty to consult could be assessed under the framework set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  3 SCR 511 and subsequent cases.
In this framework, the courts would have the ‘last word’ on whether consultation was adequate in all the circumstances, just as they determine whether a given procedure respected the duty of procedural fairness. In addition, a “degree of deference” (Haida Nation, at para. 61) could be given to the decision-maker on matters it is better placed to assess than the courts (as is also the case with procedural fairness: Mission Institution v. Khela, 2014 SCC 24,  1 SCR 502, at para. 89).
The advantage of this approach is that it enhances judicial oversight of the adequacy of consultation without disrupting the Vavilov framework. Kislowicz and Hamilton are not enamoured of the Haida Nation framework (especially the reference to deference) but if the duty to consult were separated out from Vavilov, I suspect the Haida Nation framework would be easier to overhaul.
Regardless of one’s views on Haida Nation and subsequent cases, there are three analytical or doctrinal advantages to treating the duty to consult as falling outside the scope of the Vavilov framework.
First, the duty to consult would be assessed similarly regardless of whether a consultation issue was raised on judicial review or by way of appeal.
At present, it is possible for the duty to consult to be considered on judicial review (where adequacy falls to be assessed on the reasonableness standard) or on appeal (where adequacy would fall to be assessed on the palpable and overriding error standard, or correctness if there is an extricable question of law).
These different frameworks could conceivably lead to different outcomes even in substantially similar cases, depending on whether there is a statutory right of appeal.
Of course, one might think that there is no difference between reasonableness and palpable and overriding error, but the general view is that there is a significant difference, with reasonableness review less deferential than its appellate equivalent and, moreover, the record and the scope of participation for the purposes of an appeal might be more extensive than on judicial review.
In any event, treating the duty to consult as procedural rather than substantive would avoid any divergence between the duty to consult/appeals and the duty to consult/judicial review.
Second, the Supreme Court of Canada’s decisions in Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40,  1 SCR 1069 and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41,  1 SCR 1099 have the effect that administrative decision-makers will often (a) engage in consultation and (b) assess the adequacy of their own consultation.
Applying reasonableness review in such circumstances is somewhat awkward. What decision-maker will ever say that its own attempts to engage in consultation were inadequate? And one might wonder whether an unduly deferential standard of review will make it difficult for a reviewing court to assess the adequacy of consultation, because the judicial review exercise post Vavilov focuses on reasons, not the underlying Crown conduct.
Perhaps these concerns are overblown: precedent on the duty to consult will be a significant factor on reasonableness review, as will the foundational importance of the duty to consult, such that the legal and factual constraints on the decision-maker will be relatively tight.
Nonetheless, again, these concerns can be addressed by treating the duty to consult as procedural rather than substantive. Inasmuch as decision-makers may have something useful to say about the adequacy of their consultation processes, the “degree of deference” mentioned in Haida Nation can be applied to their findings of fact, assessments of evidence or application of settled law to facts, with the reviewing court retaining the ‘last word’ on the adequacy of the consultation.
Third, placing the duty to consult outside the Vavilov framework better fits with the current conception of the duty as procedural rather than substantive, a “right to a process, not to a particular outcome” which is not a “veto over development” (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54,  2 SCR 386, at para. 83).
In my view, there are solid doctrinal and analytical reasons to place the duty to consult outside the Vavilov framework. It will be interesting to see whether Kislowicz and Hamilton’s careful analysis spurs debate on this important issue
This content has been updated on October 25, 2021 at 18:44.