Reconciling Administrative Law with Indigenous Sovereignty? Bastien v. Jackson, 2022 FC 591
To mark the National Day of Truth and Reconciliation, I thought I might highlight Grammond J’s fascinating decision in Bastien v. Jackson, 2022 FC 591, which prompts questions about the relationship between the principles of administrative law and the sovereignty of Indigenous peoples.
B and J were councillors of the Piikani Nation. B brought a petition to have J removed as a councillor under s. 10.05.02 of the Piikani Nation Election Bylaw, 2002. The grounds include bribery, corruption and “fail[ing] to act in accordance with the principles of PIIKANISSINI”. The term is not further defined but means “the values, principles and way of life of the Piikani Nation” (at para. 1). An internal review board dismissed the petition. The board adopted J’s definition of Piikanissini:
Piikanissini, an ancient principle, is something that speaks to a person’s heart and is their moral guide. It is a subjective construct that only the person him or herself can measure. In other words, one person can not tell another person that he or she is in violation of Piikanissini. It is for the person to decide whether he or she has acted in a manner which does not accord with Piikanissini. Piikanissini is closely related to a person’s way of life and moral guide. Again, one person can not hold a yard stick up to the actions of another and tell them that they have fallen short of the standards prescribed by Piikanissini.
The board went on to find that J had acted in what he subjectively believed to be the best interests of the nation and that he had thus not acted contrary to piikanissini.
B sought judicial review in Federal Court. Amongst other things, B alleged that the board had taken an unreasonable view of piikanissini. Grammond J saw no basis for intervention.
He began by putting the reference to piikanissini in context:
By referring to piikanissini, the Bylaw incorporates unwritten Piikani legal concepts in what is otherwise a written election code. The Bylaw conspicuously refrains from defining piikanissini. Rather, sections 20.03.03 and 21.03.03 of its companion Regulations state that members of the Election Appeals Board and Removal Appeals Board must be“of Blackfoot origin.”Members of these boards are thus assumed to be familiar with piikanissini. The same is true of participants in the proceedings before these boards, who are necessarily members of the Piikani Nation (at para. 25).
As such, the members of the Nation were in a privileged position relative to the Federal Court in terms of interpreting the concept. This prompted a “high degree of deference” to any findings of the board on this issue (at para. 26). Indeed, Grammond J was not sure that the board was required to explain its findings in terms that the Federal Court could understand:
While there may be debates among the Piikani Nation regarding the precise contents of piikanissini or what it requires in specific circumstances, it is for the Board to make a decision in this regard. Moreover, in rendering its decision, the Board is not required to provide a degree of explanation that would make the nuances of piikanissini accessible to non-Blackfoot persons (at para. 27).
Moreover, to the argument that the board had deviated from past Federal Court decisions interpreting piikanissini, Grammond J responded in similar terms:
I must first say that this Court’s decisions should not be taken as binding with respect to unwritten Indigenous law. The manner in which the Bylaw incorporates piikanissini evinces an intention not to allow non-Blackfoot people to make pronouncements regarding the substance or application of piikanissini. The autonomy of the Piikani Nation in defining its own law would be jeopardized if this Court’s decisions were to acquire the force of binding precedent with respect to piikanissini (at para. 29).
In any event, Grammond J held, B had misunderstood the Federal Court jurisprudence (at para. 30).
Yet in other areas subject to the general principles of administrative law, reasonableness review requires decisions to be justified, transparent and intelligible, to the satisfaction of the courts. There is no special dispensation for those who can claim expertise in particular areas: Ministers cannot rely on their political accountability to excuse gaps in justification; and technocratic bodies need to justify their conclusions in terms outsiders can understand (here, at pp. 303-305).
Grammond J’s reasoning in Bastien v. Jackson suggests that Indigenous law might sit apart in this respect, its autonomy requiring it to receive special treatment, with the principles of Canadian administrative law playing a rather different role than they play in other areas.
This content has been updated on September 30, 2023 at 07:57.