Author: Robert Hamilton

BA (St. Thomas University), JD (University of New Brunswick); LLM (York University); PhD (University of Victoria). Associate Professor.

The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

By Robert Hamilton

On November 20, 2020

In Aboriginal, Administrative Law

By: Howard Kislowicz and Robert Hamilton

PDF Version: The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

This is a two-part post that examines the potential impact of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) on the Crown’s duty to consult and accommodate (DTCA) Indigenous peoples. Part 1 deals with statutory rights of appeal. Part 2 deals with applications for judicial review. Other ABlawg contributors have touched on related questions; Nigel Bankes’ “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response” is particularly relevant, as is Shaun Fluker’s post “Vavilov on Standard of Review in Canadian Administrative Law.”

The Supreme Court’s decision in Vavilov (and the Vavilov-trilogy as a whole) was intended by the Court to provide much needed clarity to Canadian administrative law. The impact of the decision is clear: it has been cited by no fewer than 1500 lower court decisions in less than a year. Despite the Court’s attempt at comprehensive refinement of the doctrine, however, Vavilov left considerable uncertainty concerning the applicability of the new rules in the context of the Crown’s DTCA Indigenous peoples. Two things lead to this uncertainty. Vavilov changes the standard of review analysis in two kinds of cases: (1) where a court reviews an administrative decision under a statutory appeal mechanism, and (2) where a court reviews an administrative decision through an application for judicial review. The first uncertainty arises in relation to statutory appeals. Under Vavilov, the standard of review on statutory appeals follows the case law on appeals: questions of law will generally be reviewed on a correctness standard and questions of fact or mixed fact and law will be reviewed on the palpable and overriding error standard (Vavilov at para 37; Housen v Nikolaisen, 2002 SCC 33 (CanLII)). In the context of the DTCA, uncertainty attends the application of this framework, as it appears to secure greater judicial deference to decision-makers on issues of fact and mixed fact and law. Because of this, it appears to be possible for a legislature to ensure greater judicial deference for executive action (such as ministerial decisions) where it anticipates issues with the DTCA through the inclusion of a statutory right of review. This seems contrary to Vavilov’s reasoning that statutory appeals are indications that the legislature prefers less, rather than more, deference. It is not clear that the court contemplated this possibility and, if so, whether it considered it an acceptable consequence of the doctrinal refinement.

Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

By Robert Hamilton

On November 1, 2019

In Aboriginal

By: Robert Hamilton and David V. Wright

PDF Version: Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

Matter Commented On: Secession by Alberta or Western Provinces

Talk of western alienation has been on the rise over the past year, reaching a point where notions of secession by one or more western provinces is a daily focus of headlines (see e.g. here and here) and social media threads. Most recently, this is visible in the #wexit hashtag that has been circulating since the re-election of the Liberal government. While the specifics around secession are thin, a reasonably representative version can be found in an op-ed penned by Dr. Jack Mintz in the Financial Post late last year. His version of Alberta separatism is a decent starting point for analysis of the matter, though we note that his focus was on “Albexit” as opposed to “Wexit”. Dr. Mintz was riding the prevailing winds at that time, which have only seemed to intensify. His argument, put briefly, is this: Alberta would benefit significantly from secession and, while Alberta leaving the federation may seem unlikely, so too did Britain leaving the EU until it voted to do so. If it happened there (in principle), he reasoned, what’s to say it can’t happen here. We ask, then, is this a tenable argument? Setting aside complications apparent in the final Brexit steps, does the Wexit or Albexit idea withstand scrutiny?

Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult.

By Robert Hamilton

On September 10, 2018

In Aboriginal, Energy

By: Robert Hamilton

PDF Version: Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult.

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

In a highly anticipated decision on the proposed Trans Mountain Expansion Project (“TMX”), the Federal Court of Appeal (“FCA”) quashed federal approval of the project. The Court did so on two grounds.

First, it held that, while the National Energy Board’s process and findings were largely acceptable, the Board made a “critical error” in not including “Project-related tanker traffic” as a formal part of its environmental assessment under Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012). As a result, “the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest” (Tsleil-Waututh, at para 5). For more on this aspect of the decision, see Martin Olszynski’s post.

Second, the FCA held that the federal government failed to discharge its constitutional obligation to consult and accommodate Indigenous peoples. At ‘Phase III’ of the consultation process, the FCA held, the government failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns” (Tsleil-Waututh, at para 6).

This post focuses on the consultation aspect of the judgment. The decision is helpful insofar as it illustrates important limitations of the duty to consult doctrine. I address two of those limitations, which I argue are closely linked: 1) the lack of a legal obligation to obtain Indigenous consent for development projects and 2) the ongoing uncertainty created by the doctrine of the duty to consult..