IV.

Agency Jurisdiction Over the Charter

441

whether the tribunal has the power to decide questions of law arising under the challenged
provision.140 These powers typically reside in tribunals with adjudicative functions, but
Gonthier J. made it clear that the presence or absence of adjudicative authority is not necessarily determinative.
If the legislation does not expressly grant jurisdiction to consider questions of law, the
jurisdiction may still be present implicitly and inferred from a series of factors: the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to
fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and
practical considerations, including the tribunals capacity to consider questions of law.141
The guiding principle that informs the application of these factors (save perhaps practical
considerations) is whether the legislature intended the tribunal to have jurisdiction to decide questions of law.
The presence of such an intent does not, however, end the inquiry; it merely establishes
a rebuttable presumption that the agency has jurisdiction to apply the Charter. The presumption can be rebutted, Gonthier J. said, by pointing to an explicit or implied statutory
withdrawal of authority to determine constitutional questions.
Despite the Courts unequivocal recognition of agency jurisdiction to hear Charter challenges, some tension remains. The tension arises from the requirement of legislative intent
and one of its immediate consequences: legislatures can amend and enact law to withdraw
tribunal jurisdiction over the Charter. Various provincial legislatures have omnibus legislation that insulates their statutes from agency scrutiny of constitutional matters. For example,
in 2004 British Columbia passed the Administrative Tribunals Act,142 a comprehensive justice
reform measure that expressly denies most provincial administrative tribunals jurisdiction
over Charter issues. The attorney general of British Columbia justified the jurisdiction-
depriving sections of the Act on several grounds.143 In his second-reading speech to the
legislative assembly, he claimed that courts are more expert than most tribunals with respect
to complex and far-reaching Charter questions. He also worried that permitting agencies to
resolve these questions would require laypersons to hire (costly) legal counsel where they
would not otherwise have to do so. He expressed concern over the drain on resources and
140 Ibid. at para. 37.
141 Ibid. at para. 41. For an insightful discussion of the explicit/implicit distinction in Martin, and possible uncertainties regarding its application, see J.M. Evans, Principle and Pragmatism: Administrative Agencies Jurisdiction Over Constitutional Issues in G. Huscroft & M. Taggart, eds., Inside and Outside Canadian Administrative
Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press, 2006) at 377-420.
142 S.B.C. 2004, c. 45, ss. 43-45. The Labour Relations Board and the Securities Commission are exceptions to
the rule and can decide Charter questions. Other B.C. tribunals can determine constitutional issues related to
federalism, but cannot apply the Charter. Yet others cannot determine any constitutional issues. Alberta has
passed similar legislation: Administrative Procedures Amendment Act, 2005, S.A. 2005, c. 4. In Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, the Supreme Court reaffirmed
that legislatures can preclude tribunals from considering Charter questions through clear legislation, though
the bar in that case was specific to the relevant statute.
143 British Columbia, Legislative Assembly, Official Report of Debates, vol. 25, no. 15 (18 May 2004) at 11193 et
seq., as cited in Deborah K. Lovett, Administrative Tribunal Jurisdiction Over Constitutional Issues and the
New Administrative Tribunals Act (2005) 63 Advocate 177 at 191-92.

442

Chapter 12 The Charter and Administrative Law

the additional time required to settle Charter challenges at the agency level. These resource
and access to justice problems, he said, would be exacerbated by the non-binding nature of
tribunal decisions over Charter issues, because similar questions would have to be decided
anew in subsequent proceedings.
Both proponents and critics of agency jurisdiction over the Charter claim that their policy is the one that, overall, minimizes the expense and time required to settle an administrative dispute involving a Charter challenge. No one denies that if the tribunal does not
have jurisdiction to hear a Charter challenge, separate judicial review proceedings must be
launched. Critics of agency jurisdiction reply that these constitutional issues are likely to
come before the courts in any event, and thus addressing them in the tribunal adds considerable cost and time to the final resolution of the matter. As yet, no comparative empirical
studies examine similar cases before similar tribunals in which one jurisdictions tribunals
have competence to consider Charter issues while the others do not. Studies of this nature
are needed to advance this aspect of the debate past the current speculation.
The unchallenged doctrinal assumption that merits further reflection is that agency
jurisdiction to apply the Charter depends on legislative intent. Recall that the idea underlying this assumption is that tribunals have no inherent jurisdiction to decide questions of
law (including constitutional questions), and so all such jurisdiction must issue from the
legislature. However, the mere fact that tribunals rely on the legislature for jurisdiction to
decide questions of law does not imply that the legislature has authority to deprive them of
jurisdiction to apply the Charter to their enabling legislation.
Arguably, respect for the supremacy of the Constitution requires agencies to have due
regard for the Charterindependently of legislative intentwhenever they interpret ordinary legislation to decide questions of law. Otherwise, tribunals are not treating the Constitution as the supreme law with which all other law must conform. Put another way, a plausible
interpretation of the principle of constitutional supremacy is that the legislature cannot
confer on agencies the authority to decide questions of law without necessarily conferring
on them the authority to apply the Charter. This is entirely consistent with the idea that
tribunals have no inherent jurisdiction and so must receive all their legal powers from statute. The issue is whether those legal powers can be exercised without regard for the Charter.
At the level of decision-making where Charter rights are at stake, we have seen in section III
that the Slaight framework to review directs tribunals to evaluate their prospective decisions
in light of both the Charter and its analytical framework. To require tribunals to assess provisions of their enabling statutes in the same light is simply asking them to do at the general
level that which they are already doing in particular cases, regardless of legislative intent.
Yet, as we shall now see, the legislative-intent basis of agency jurisdiction over the Charter
became more deeply entrenched in the Supreme Courts most recent ruling on agency jurisdiction to grant remedies under s. 24(1), R.v. Conway.144

C. Remedies Under Section 24(1)

Section 24(1) provides that anyone whose Charter rights have been infringed may apply to
a court of competent jurisdiction to obtain a remedy that is appropriate and just in the
144 2010 SCC 22, [2010] 1 S.C.R. 765 [Conway].

IV. Agency Jurisdiction Over the Charter

443

circumstances. In Conway, Abella J., writing for the Court, built on the rationale in Martin
to develop a new approach for determining when a board or tribunal can grant a specific
remedy under s. 24(1).145 There is a sense in which Conway is to s. 24(1) what Martin is to
s. 52(1): in both cases, the Court relaxes the prior test for determining whether a board or
tribunal has jurisdiction to grant the relevant remedy.
Conway has spent most of his adult life in mental health institutions. In 1984 he was
found not guilty by reason of insanity of sexual assault with a weapon. In 2006 he complained of various abuses and Charter rights violations. He sought an absolute discharge
under s. 24(1) before the Ontario Review Board. After an eight-day hearing, the board rejected Conways request for discharge, finding that he was an egocentric, impulsive bully
with continued paranoid and delusional ideation, and that he would pose a risk to public
safety if released.146
On review, Abella J. held that the board had jurisdiction to grant Charter remedies generally, but not the remedy of an absolute discharge. The first stage of the analysis, she said,
is to determine whether the board is a court of competent jurisdiction within the meaning
of s. 24(1). Whereas the prior case law, originating with Mills v. The Queen,147 called for an
inquiry into whether the agency had jurisdiction over the particular s. 24(1) remedy sought,
Abella J. held that the time had come to ground the initial inquiry on a more general and
institutional question: Does this particular tribunal have the jurisdiction to grant Charter
remedies generally?148 She held that the test for resolving this question is precisely the test
from Martin, which asks whether the tribunal has jurisdiction to decide questions of law,
and if so, whether that jurisdiction has been removed by the legislature. The advantage of
this approach, Abella J. said, is that it attributes Charter jurisdiction to the tribunal as an
institution, rather than requiring litigants to test, remedy by remedy, whether it is a court of
competent jurisdiction.149 If the board is found to be a court of competent jurisdiction,
then the inquiry moves to whether the board has jurisdiction to grant the remedy sought.
This issue is to be determined by legislative intent, as discerned from the boards statutory
mandate, structure, and function.150
In Conway, the Court found that the board was a quasi-judicial body authorized to decide questions of law in relation to persons detained for wrongful acts for which they were
not criminally responsible (NCR patients). The board is established by, and operates under,
part XX.1 of the Criminal Code.151 Section 672(1) of the Criminal Code provides for appeals
from the boards decisions on questions of law. So, as a general matter, Abella J. found the
board to be a court of competent jurisdiction for purposes of s. 24(1). She then had to determine whether the remedy of an absolute discharge was available to Conway in light of the
145 Ibid. at para. 18.
146 Ibid. at para. 13.
147 [1986] 1 S.C.R. 863.
148 Conway, supra note 144 at para. 22.
149 Ibid. at para. 23.
150 Sometimes the legislature makes this task easy by expressly excluding authority to consider Charter questions.
See, for example, s. 45 of the B.C. Administrative Tribunals Act, supra note 142.
151 R.S.C. 1985, c. C-46.

444

Chapter 12 The Charter and Administrative Law

boards mandate and function. At its annual review hearings of NCR patients, the board is
required under part XX.1 to weigh and consider the publics interest in protection from
dangerous persons, the patients mental condition, and the patients liberty interest and
other needs. If the NCR patient poses a significant risk to the public, the board is barred by
statute from granting the individual an absolute discharge. Because the board found that
Conway continued to pose a risk to public safety, it could not grant him an absolute discharge under s. 24(1) of the Charter. Nor could the board grant Conway specific treatment
orders and ameliorative detention conditions, as he had requested in the alternative, because these too lay beyond the boards statutory authority. In the result, the Court denied
Conways application for s. 24(1) remedies.
While the new approach from Conway is intended to avoid forcing litigants to test,
remedy by remedy, whether [the board] is a court of competent jurisdiction,152 its method
still forces litigants to test, remedy by remedy, whether the board has jurisdiction with respect to the remedy sought. Because this has always been the critical question at issue in
s.24(1) cases, in practice the new approach may turn out to be old wine in new bottles.153
It is also unclear whether the new approach will result, as it is intended to do, in a lessening
of the bifurcation of proceedings. Boards and tribunals after Conway, when petitioned for a
s. 24(1) remedy, are not to begin with an assessment of the Charter claim that there has been
a rights violation. At no point in Conway does the Court consider this matter. The inquiry
is directed solely to the availability of the remedy. Presumably, if the remedy were available
in Conway, a consideration of the merits would have been necessary. But because the remedy is unavailable, the board would never get to the merits of the case, and so Conway
would have to go to court if he wished to have a public institution determine whether his
Charter rights had been violated.
Less clear still is the content of s. 24(1), as a constitutional remedial provision, given that
provisions strict dependence on the boards statutory scheme. The Court could have read
s.24(1) as conferring on all courts of competent jurisdiction a statute-independent jurisdiction to do whatever is appropriate and just in the circumstances to remedy a Charter
violation. As with all administrative action, exercise of this jurisdiction would be subject to
judicial review. But by grounding jurisdiction over s. 24(1) on the statutory scheme alone,
rather than on the statutory scheme and the Charter considered as a power-conferring enactment, it appears that applicants are entitled to petition boards for only those remedies
and orders that are already available under the statute. Additional cases will be needed to
determine whether agency jurisdiction to grant remedies under s. 24(1) has any independent substance.

152 Conway, supra note 144 at para. 23.

153 Lorne Sossin & Andrea Hill, Social Rights and Administrative Justice in Reconceiving Human Rights Practice
for the New Social Rights Paradigm, research project, online: Social Rights in Canada <http://socialrightscura
.ca>; see also: Steve Coughlan, Tribunal Jurisdiction Over Charter Remedies: Now You See It, Now You
Dont (2010) 75 C.R. (6th) 238.

V. Conclusion

445

V. Conclusion
The relationship between administrative law and the Charter is sometimes uncertain, but
important. As we have seen, there are significant areas of overlapnotably s. 7 of the Charter and the requirements of procedural fairnessbut also generally with respect to the constitutional role of the judiciary reviewing executive action. As a result, there is significant
cross-pollination such that developments in one area will often, and even necessarily, give
rise to changes in the other.
Cases involving judicial review of administrative action that may affect Charter rights are
common. The courts have had numerous occasions to address such issues in a diversity of
circumstances. Their approach, however, has been less than constant, in particular with respect to whether, when, and how to evaluate administrative decisions under s. 1 of the
Charter. The courts recent decision in Dor is a strong indication that the future will be
more stable than the past. While there was considerable uncertainty as to when a traditional
s.1 analysis would be engaged, the court has now identified a vast area of decision making
that engages Charter rights where the Oakes analysis will not be relied on. The Court has
prudently reserved the challenges of determining precisely how this will play out for later
cases.
Finally, the scope of authority of administrative tribunals to apply the Charter is increasingly clear and arguably more generous. The authority of administrative tribunals to grant
remedies under s.24 of the Charter is also better defined and possibly more extensive than
it ever has been. Although it is too early to say, this may give rise to an increase in applications for such relief before administrative tribunals, which in turn will give the Court occasion to determine whether s.24 can ground remedies not already available under the tribunals enabling statute.

administrative with reserve

Charter

Chamberlain (LeBel J.)

Multani (Charron J. +4)

hybrid administrative
andCharter

administrative

Chamberlain
(McLachlin C.J. +5)

Chamberlain
(Gonthier, Bastarache JJ.)

both

Trinity Western
(LHeureux-Dub J.)

administrative

Charter

Little Sisters (Iacobucci J. +2))

Trinity Western
(Iacobucci, Bastarache JJ.)

Charter

Little Sisters (Binnie J. +5)

administrative

Charter

Slaight (Beetz J.)

Baker (LHeureux-Dub J. +4)

both

Charter

hybrid administrative
andCharter

Slaight (Lamer J.)

Slaight (Dickson C.J. +3)

Dor

Case

Administrative analysis,
Charter, both, or hybrid?

n/a

unreasonable

reasonable

unreasonable

reasonable

unreasonable

n/a

n/a

unreasonable

n/a

unreasonable

n/a

reasonable

If administrative analysis,
wasthe decision reasonable?

yes

n/a

n/a

n/a

decision

n/a

both

decision

n/a

decision

decision

decision

decision

Was a Charter right infringed

by the legislation or
thedecision?

Different Approaches to Reviewing Administrative Decisions That Engage Charter Rights

no

n/a

n/a

n/a

no

n/a

no

no

n/a

no, both

one yes, one no

yes, both

yes, reasonable decision

Justified under s. 1?

446
Chapter 12 The Charter and Administrative Law

Charter

Charter, but with deference s.1

Lake (LeBel J. +8)

PHS (McLachlin C.J. +8)

Charter, not all factors of s.1

hybrid administrative
andCharter

Multani (LeBel J.)

Multani
(Abella, DeschampsJJ.))

Case

Administrative analysis,
Charter, both, or hybrid?

n/a

unclear

n/a

unreasonable

If administrative analysis,
wasthe decision reasonable?

both

both

decision

n/a

Was a Charter right infringed

by the legislation or
thedecision?

Different Approaches to Reviewing Administrative Decisions That Engage Charter Rights

legislation yes, decision no

yes

no

n/a

Justified under s. 1?

V. Conclusion
447

448

Chapter 12 The Charter and Administrative Law

SUGGESTED ADDITIONAL READINGS

BOOKS AND ARTICLES

Choudhry, S., & K. Roach, Racial and Ethnic Profiling: Statutory Discretion, Constitutional
Remedies, and Democratic Accountability (2003) 41 Osgoode Hall L.J. 1.
Evans, J.M., Principle and Pragmatism: Administrative Agencies Jurisdiction Over Constitutional Issues in G. Huscroft & M. Taggart, eds., Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto: University of Toronto
Press, 2006) 377-420.
Evans, J.M., The Principles of Fundamental Justice: The Constitution and the Common
Law (1991) 29 Osgoode Hall L.J. 51.
Leckey, Robert, Prescribed by Law/Une rgle de droit (2007) 45 Osgoode Hall L.J. 3 at
571-620.
Lovett, D.K., Administrative Tribunal Jurisdiction Over Constitutional Issues and the New
Administrative Tribunals Act (2005) 63 Advocate 177.
Van Harten, G., G. Heckman & D. Mullan, Administrative Law: Cases, Text, and Materials,
6th ed. (Toronto: Emond Montgomery, 2010) 276-80.
Sossin, Lorne, Discretion Unbound: Reconciling the Charter and Soft Law (2002) 45 Can.
Public Admin. 465.
CASES

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3
S.C.R. 134.
Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44.
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
Conway, R. v., 2010 SCC 22, [2010] 1 S.C.R. 765.
Dor v. Barreau du Qubec, 2012 SCC 12.
Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761.
Mills v. The Queen, [1986] 1 S.C.R. 863.
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256.
Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury
Board), 2011 SCC 62.
Nova Scotia (Workers Compensation Board) v. Martin; Nova Scotia (Workers Compensation
Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504.
Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177.
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
Wareham v. Ontario (Ministry of Community and Social Services), 2008 ONCA 771.

CHAPTER THIRTEEN

In Search of Aboriginal
Administrative Law
JANNA PROMISLOW*
Faculty of Law, Thompson Rivers University
LORNE SOSSIN**
Osgoode Hall Law School
I. What Is Aboriginal Administrative Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Developing Administrative Justice for Aboriginal Self-Government . . . . .
B. Applying Administrative Law to Aboriginal Decision-Makers . . . . . . . . . .
C. Respecting Aboriginal Rights and Jurisdictions:
The Duty to Consult and Accommodate . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Developing Administrative Justice for AboriginalSelf-Government . . . . . . . .
A. Participation in Public Government, Co-Management, and
Shared Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Self-Management and Self-Administration . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Self-Government and Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. Applying Administrative Law to Aboriginal Decision-Makers . . . . . . . . . . . . .
A. How Do We Assess Independence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Is the Canadian Ideal of Independence Applicable in
Aboriginal Contexts? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Appropriate Level of Deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Respecting Aboriginal Rights and Jurisdictions: The Duty to Consult
and Accommodate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Overview of the Duty to Consult and Accommodate . . . . . . . . . . . . . . . . . .
B. Standard of Review: Procedure, Substance, and
Specialized Decision-Makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

450
452
453
453
455
457
459
460
463
463
465
466
467
467
475

* Thanks are due to Colleen Flood and Arthur Wilson for their helpful comments and to the other authors for
their enthusiastic support of this chapter. I am also grateful to Albert Peeling for our many conversations on
the subject.
** Some of the ideas in this chapter are adapted from L. Sossin, Aboriginal Administrative Law (2011) U.B.C.
L. Rev. (forthcoming). I am grateful to Andrea Hall for her excellent research assistance.

449

450

Chapter 13 In Search of Aboriginal Administrative Law

C. The Constitutional Nature of the Obligation . . . . . . . . . . . . . . . . . . . . . . . . .

D. The Legislative Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Other Possibilities and Points of Cross-Fertilization . . . . . . . . . . . . . . . . . .
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Suggested Additional Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

479
481
485
486
486

I. What Is Aboriginal Administrative Law?

Aboriginal administrative law is about the intersection of three bodies of law: administrative
law (referring to Canadian administrative law, as discussed in the rest of this text), indigenous law (referring to the internal law of indigenous peoples),1 and Aboriginal law (referring
to Canadian law about the states relationships with Aboriginal peoples and Aboriginal
peoples rights). Described as an intersection, we start from the assumption that none of
these bodies of law exists in isolation from the others and understand that these bodies of
law have a mutual influence upon each other. Thus the name Aboriginal administrative
law is meant to capture the interaction of the legal principles from each of administrative,
indigenous, and Aboriginal law.
In addressing the interaction of these bodies of law as part of administrative law,2 this
chapter builds upon the work of the Royal Commission on Aboriginal Peoples (RCAP) in
recognizing Aboriginal governments as one of three orders of government, and the work of
scholars who claim that indigenous law, along with the common law and civil law, are the
founding legal traditions of Canada.3 Each has an autonomous existence in Canada, but it
is fair to say that what makes Canadian public law a distinct, if not unique project, is the
meaningful relationships between legal traditions as well as different spheres of law. Interactions between different spheres and systems of law have many parallels in Canadian
public law. For example, the founding of Canada required interaction between principles of
statutory and constitutional interpretation, and later, the adoption of the living tree approach to Canadian federalism. The introduction of the Canadian Charter of Rights and
Freedoms 4 similarly led to intermingling between common law and fundamental rights,
such as grafting common-law procedural fairness as one of the principles of fundamental
justice under s.7 of the Charter. Indigenous laws and perspectives have been acknowl 1 Although in many contexts, the international language of indigenous peoples may be preferable, we will
refer to indigenous peoples as Aboriginal peoples, following the language of s. 35 of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, thus signalling that First Nations, Inuit,
and Metis peoples are included in this term.
2 It is worth noting that the intersection of legal spheres and traditions that we address might also be addressed
as part of the discussion of indigenous legal traditions and Aboriginal law.
3 John Borrows, Canadas Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 113-18 [John
Borrows, Indigenous Constitution]; Report of the Royal Commission on Aboriginal Peoples (Ottawa: The
Commission, 1996) [RCAP], Governance, vol. 2, c. 1, online: Indian and Northern Affairs Canada <http://
www.collectionscanada.gc.ca/webarchives/20071211052559/http://www.ainc-inac.gc.ca/ch/rcap/sg/sh2_e.
html#2.%20Governance>; James [skj] Youngblood Henderson, Empowering Treaty Federalism (1994)
58 Sask. L. Rev. 241; and, related, Brian Slattery, The Organic Constitution: Aboriginal Peoples and the
Evolution of Canada (1996) 34 Osgoode Hall L.J. 101.
4 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

I. What Is Aboriginal Administrative Law?

451

edged and incorporated into the rights recognized under s.35 of the Constitution Act, 1982,
although this interaction has been fraught with debate and criticism.5
The idea of Aboriginal administrative law also emerges from the ongoing evolution of
Aboriginal self-government in Canada. A great deal of advocacy, adjudication, and analysis
has focused on the Aboriginal right to self-government under the Canadian Constitution. In
contrast, very little attention has been devoted to what happens the day after self-government
agreements are achieved, when the focus shifts to implementing, rather than seeking, recog
nition of self-government rights. Administrative law is an important component of implementation, as well as part of the design and structure of Aboriginal governments.6 It is also
an important mechanism through which the decisions of Aboriginal governments will be
recognized and integrated into Canadian public law. Self-government negotiations in comprehensive land claim processes have begun to answer questions regarding the institutions
and mechanisms of Aboriginal government outside of statutory frameworks (for example,
the Indian Act),7 such as how indigenous governance traditions are or are not reflected in
the elected and executive arms of governments, and the jurisdictions they will exercise.
Even these answers lead to more questions: How will courts and governments treat the laws
and decisions made by Aboriginal governments? How will Aboriginal governments deal
with questions of procedural justice in their decision-making processes? Will people who
are adversely affected by administrative and regulatory decisions of Aboriginal governments
have the same recourses to the same kinds of bodies as the rest of the country such that Aboriginal agencies, boards, and commissions will emerge as parallel structures to the federal
and provincial agencies, boards, and commissions? Or might Aboriginal governments find
alternative institutional forms to express and protect administrative justice?8
Against this backdrop, in this chapter we present Aboriginal administrative law as an
emerging, distinctive, and perhaps unique, branch of administrative law that is capable of
responding to and incorporating concepts of fairness, independence, and accountability in
Aboriginal contexts. We discuss it as a pan-Aboriginal concept, encompassing sufficient
flexibility and generality to respond to differences in Aboriginal governance traditions and
institutions, much as administrative law already encompasses a diverse range of governance
contexts. Within this concept, we include at least three separate but related contexts.9
5 See e.g. Kent McNeil, Aboriginal Title and the Supreme Court of Canada: What is Happening? (2006) 69
Sask. L. Rev. 281-308; Gordon Christie A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw
and Haida Nation (2005) 23:1 Windsor Y.B. Access Just. 17-53; and Minnawaanagogiizhigook (Dawnis Kennedy), Reconciliation Without Respect? Section 35 and Indigenous Legal Orders in Law Commission of
Canada, ed., Indigenous Legal Traditions (Vancouver: UBC Press, 2007) 77-113.
6 For a discussion of other aspects of implementation, see Stephanie Irlbacher-Fox, Justice Authorities in SelfGovernment Agreements: The Importance of Conditions and Mechanisms of Implementation in John D.
Whyte, ed., Moving Toward Justice (Purich Publishing & Saskatchewan Institute for Public Policy, 2008) 130-41.
7 R.S.C. 1985, c. I-5.
8 For an example of a governance approach from an Aboriginal point of view, see John Borrows, Constitutional Law From a First Nation Perspective: Self-Government and the Royal Proclamation (1994) 28 U.B.C.
L. Rev. 1 [Borrows, Constitutional Law].
9 Another context in which to contemplate Aboriginal administrative law is in relation to how institutions and
processes intended to further reconciliation and settle past grievances with Aboriginal peoples should be
designedfor example, the Specific Claims Tribunal (online: the Specific Claims Tribunal <http://www.sct-

452

Chapter 13 In Search of Aboriginal Administrative Law

A. Developing Administrative Justice for Aboriginal Self-Government

The first context involves the development of administrative justice by Aboriginal communities as they assume control over their own public institutions through mechanisms of selfgovernment. To begin this discussion, we first need to clarify what is encompassed within
our discussion of Aboriginal self-government.
Aboriginal self-government is evolving through a number of different approaches, processes and instruments. Importantly, this field is not characterized by a linear move from
statutorily defined governmental powers under the Indian Act to negotiated self-government
achieved through land claims or self-government negotiations. Instead, evolutions toward
greater self-government are occurring through changing legislative frameworks as well as
negotiations to define government-to-government relationships on specific issues and to
redefine Aboriginal governments outside the confines of the Indian Act. To facilitate our
discussion, we refer to Shin Imais helpful delineation of four non-exclusive types of Aboriginal self-government:
1. sovereignty and self-government, which involve recognition of the inherent authority of an indigenous government to govern over a defined territory, as illustrated by
comprehensive self-government agreements like the Nisgaa agreement;
2. self-management and self-administration, under which Aboriginal communities
exercise powers that derive from the state, such as Indian Act band councils or Metis
settlement councils under Albertas Metis Settlements Act;
3. co-management and joint management, which describe Aboriginal participation in
land and resource management through Aboriginal representation in decisionmaking institutions, as illustrated by the Mackenzie Valley Environmental Impact
Review Board in the Northwest Territories; and
4. participation in public government, as illustrated by the government of Nunavut over
which Inuit control is, at least for now, secured by the demographics of the territory.10
The discussion below encompasses all four of these types of self-governance, recognizing
that elements of more than one type may be present in a given context.
Regardless of the approach to self-government, administrative justice is significant to
achieving self-government structures that meet the self-determining aims and needs of Aboriginal communities. Addressing both the structures of accountability and decision making within Aboriginal governments as well as the principles of administrative justice that
may guide the work of those institutions and their partnerships with state institutions, administrative justice is an expression of societal values. As we explore in this chapter, administrative justice in Aboriginal governance contexts may be informed by both indigenous law

trp.ca/hom/index_e.htm>) and the Truth and Reconciliation Commission (online: Aboriginal Affairs and
Northern Development Canada <http://www.ainc-inac.gc.ca/ai/rqpi/trc/index-eng.asp>). This exploration,
however, is beyond the scope of this chapter.
10 Shin Imai, Indigenous Self-Determination and the State in Benjamin J. Richardson, Shin Imai, & Kent
McNeil, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford and Portland:
Hart Publishing, 2009) 285.

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453

as well as Canadian law, but arriving at an appropriate mix of indigenous and Canadian
traditions in the administration of self-government demands attention.

B. Applying Administrative Law to Aboriginal Decision-Makers

The second context in which Aboriginal administrative law plays out is in relation to how
existing administrative law principles and doctrines are applied to Aboriginal decision-
makers. The starting point for this discussion is that decision making by Indian Act band
governments (or Metis settlement councils under the Alberta Metis Settlements Act) is typically reviewable by Canadian courts on administrative law grounds.11 Applying administrative law to Aboriginal decision making is thus a long-standing feature of the governance
of at least First Nations peoples. Should new forms of Aboriginal self-government alter this
relationship?
This question points to the need to examine what may be different about Aboriginal
governments, and whether administrative law principles with respect to concepts such as
independence and deference may be inadequate to accommodate judicial review of Aboriginal decision-makers. As discussed above, there are many different forms of self-government
that differ in their sources of authority, governance structures, and incorporation of indigenous law and governance traditions. A key issue then, is how the particular type of
decision-maker and the nature and context of the decision should be taken into consideration in applying administrative law to Aboriginal decision-makers. By the same token, we
need to question what approaches and concepts developed by Aboriginal decision-makers
(for example, related to concepts of fairness, impartiality, and independence) will have implications in other administrative law settings.
Following the available jurisprudence to date, our attention in this section of the chapter
is focused on the move from judicial review of Indian Act bands to the accountability of
decision-makers under the authority of governments formed through modern treaty
processes.

C. Respecting Aboriginal Rights and Jurisdictions:

The Duty to Consult and Accommodate
The third and most-developed context in which to consider Aboriginal administrative law
centres on Canadian governments. Against a history of governments not implementing commitments made to Aboriginal peoples and delayed settlement of their claims, the Supreme
Court has insisted that Aboriginal peoples be consulted and accommodated, as appropriate,
regarding both proven and unproven Aboriginal rights.12 In developing the scope and content of these constitutional duties, the courts have borrowed heavily on administrative law
principles, processes, and remedies. This convergence between procedural justice and Aboriginal law is enough to bring it within the scope of a distinctive Aboriginal administrative

11 Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.), aff d [1980] 2 F.C. 792 (C.A.); Sparvier v. Cowessess Indian
Band No. 73, [1993] 3 F.C. 142, 13 Admin. L.R. (2d) 266 (T.D.) [Sparvier].
12 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 [Haida Nation].

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Chapter 13 In Search of Aboriginal Administrative Law

law, but the duty to consult is also importantly linked to self-government, the focus in the
other two contexts of Aboriginal administrative law identified above.
The duty to consult and accommodate arises most commonly in relation to decisions
about the management of land and resources, picking up where self-government and the
mechanisms of negotiated forms of government-to-government interaction have not been
defined (or where there are gaps in a negotiated agreement and its implementation, as was
the case in Little Salmon/Carmacks).13 Aboriginal communities may claim full or shared
jurisdiction over the land and resources in issue, and thus consultation and accommodation
can be understood as a decision-by-decision bridge to more stable forms of interaction
between Aboriginal communities and governments. In the context of unsettled land claims,
negotiated consultation protocols and shared decision making on resource management
have been employed as a step toward modern treaties or as a way to arrive at governmentto-government relationships without resolving the underlying land and rights claims.14 In
the context of historical treaties, joint decision-making models and land-use planning efforts are also beginning to be developed, which may assist in implementing consultation
obligations in a predictable framework that is respectful of Aboriginal rights and jurisdictions.15 Nevertheless, the case-by-case consideration of a duty to consult and accommodate
does not address governance relationships directly, and the administrative law approach to
consultation often falls short of respecting Aboriginal rights and jurisdictions. Is this administrative law borrowing up to the Aboriginal law task of reconciliation? How are administrative law principles being adapted in the context of Aboriginal law obligations? And how will
this borrowing impact administrative law outside of Aboriginal law obligations? Can, and
how can, administrative law tools be adapted to serve the aims of broadening of Canadian
public law to encompass indigenous legal traditions and governments?
13 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 [Little Salmon/
Carmacks].
14 One example is the Consultation Interim Measures Agreement from July 27, 2009 between Ontario, Canada,
and the Algonquins of Ontario (online: Ontario Ministry of Aboriginal Affairs <http://www.aboriginalaffairs
.gov.on.ca/english/negotiate/algonquin/algonquin.asp>) regarding a claim that dates back to 1983, and the
parties are nearing an agreement in principle (see Mohammed Adam, Algonquin Land Claim Deal Near,
Lawyer Says, Ottawa Citizen, 14 February 2012). A second example is found in the reconciliation agreements
between British Columbia and the Haida Nation, the Coastal First Nations, and the Haisla Nation, respectively.
They are committed to establishing shared decision-making structures in relation to land and resources
within particular geographic boundaries without resolving the land and rights claims of these nations (online: British Columbia <http://www.newrelationship.gov.bc.ca/agreements_and_leg/reconciliation.html>).
15 For example, Ontarios Far North Act, 2010, S.O. 2010, c. 18, establishes a framework under which joint bodies may be established. The statement of purpose in this Act (s. 1) uses the terminology community based
land use planning, shying away from recognizing Aboriginal jurisdictions but still indicating its purposes as
conducting land-use planning in a manner that is consistent with the recognition and affirmation of s.35
Aboriginal and treaty rights, including the duty to consult. The Far North Act has been much criticized by
Ontario First Nations, particularly the Nishnawbe Aski Nation, as well as other commentators. See Penelope
Simons & Lynda Collins, Participatory Rights in the Ontario Mining Sector: An International Human
Rights Perspective (2010) 6 McGill J.S.D.L.P. 177 at 202-4 (First Nations powers limited and inconsistent
with international commitments); contrast Bruce Pardy & Annette Stoehr, The Failed Reform of Ontarios
Mining Laws (2011) 23 J. Envtl. L. & Prac. 1 at 8, 9 (process as cumbersome, unpredictable/too discretionary, and giving too much power to First Nations with regard to land use).

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We pursue these questions by considering the duty to consult and accommodate alongside
the duty of fairness, identifying and questioning the appropriateness of both commonalities
and differences between the two in light of the underlying purposes of both administrative
and Aboriginal law.
The remainder of this chapter addresses each of these three contexts in turn, providing an
introduction and overview of the concepts in an emerging and complex area of administrative law. More time is devoted to the duty to consult and accommodate, in part because this
context is the most developed, and in part because this aspect of Aboriginal administrative
law has already had far-reaching impacts on government decision making, particularly in
the lands and resource sectors, affecting the practice of administrative law far beyond Aboriginal law specialities.
An overarching theme in this chapter is the expectation that developments in Aboriginal
administrative law will reverberate in administrative law more generally. Particularly apparent in relation to duty to consult and accommodate, we view the adaptation of principles
and institutions from one area of public law to another, and between indigenous and Canadian legal traditions, as part of the dynamic of administrative law more generally. Introducing Aboriginal administrative law demonstrates this dynamic and encourages both
students and practitioners to think creatively and flexibly about administrative law. Equally
important, the concerns underlying Aboriginal lawrespecting Aboriginal peoples and
reconciliationsuggest some limitations and cautions with respect to the extension of administrative law into the three contexts identified above. Thus, this chapter is intended to
contribute to a thoughtful and principled approach to the development of Aboriginal administrative law.

II. Developing Administrative Justice for

AboriginalSelf-Government
As in other parts of this chapter, our presumption is that the boundaries of legal systems are
porous; that both Canadian and indigenous law have been and will continue to be affected
by the other. This characteristic of law is emphasized by John Borrows in relation to indigenous law, which he describes as living, adaptable, and imperfect traditions that have
ancient roots [but] can also speak to the present and future needs of all Canadians.16 Canadian law (and western systems of law more generally) can be similarly characterized as
open and affected by diverse influences and processes of diffusion.17 As Val Napoleon suggests, it may be that the most crucial process that a people must consider in seeking to
understand their own legal order and the legal orders of others is how laws change over
time.18 Understanding indigenous legal systems, and indeed all legal systems, as adaptable,
16 Borrows, Constitutional Law, supra note 8 at 10.
17 See e.g. William Twining, Social Sciences and the Diffusion of Law (2005) 32 J.L. & Socy 203.
18 Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD thesis, University of Victoria, Faculty of Law, 2009) [unpublished] at 290.