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creates the space necessary to understand indigenous law as a political as well as a cultural
phenomenon.19
From such starting points, we move away from the concern for the aboriginality of the
practices and principles of administrative justice in Aboriginal governments, as directed by
the Aboriginal rights jurisprudence,20 to consider how the systems of administrative justice
that are adopted or continue to be in place within Aboriginal governance meet the needs and
aspirations of Aboriginal communities and facilitate relationships with the Canadian state.
The incorporation of indigenous law and values in the approach to administrative justice
within Aboriginal self-governance remains critically important to the self-governance aims
of Aboriginal communities but difficult to achieve. One difficulty is identified by Paul
Nadasdy, who points out that participating in land claims and self-government processes
involves discourses of governance that are foreign to indigenous practices and lifestyles and,
consequently, can transform indigenous governance.21 Although transformation and
change should not be presumed to produce negative outcomes,22 Aboriginal communities
and critical scholars have earned their skepticism regarding the assimilative nature of the
interaction and the potential to reinscribe the harms of colonial impositions. A second challenge is drawing on legal traditions that support decentralized, non-state governance to
inform governance institutions that parallel or share jurisdiction with the institutions of the
Canadian state. Val Napoleons work on Gitksan law and legal theory, for example, illustrates
the decentralized nature of Gitksan government and the lack of specialized decision-makers
but also a tradition rich in mechanisms of transparency, accountability, and accessibility.
Such values are demonstrated in the requirement that most community businesswhether
decisions about access or ownership of resources, changes in leadership, or resolving disputes within a house (the main governance institution)be conducted openly in the feast
house. Moreover, such decision making is supported by extensive consultation with those
affected by the issue beforehand, as well as the formal appointment of individuals to witness
the proceedings, thereby creating a public record and ensuring that the decisions reached
are accessible to all.23 Witnesses are selected from guests at the feast whose lineages are un-

19 For discussion, see ibid. at 289-90.

20 See e.g. Lamer C.J.C.s statement in R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 20, that [t]he task of this
Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which
does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. The Court must define the scope of s. 35(1) in a way which capture both the aboriginal and the rights
in aboriginal rights (emphasis in original). For comment and criticism, see John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 60, and Mark D.
Walters, Promise and Paradox: The Emergence of Indigenous Rights Law in Canada in Indigenous Peoples
and the Law, supra note 10 at 47.
21 Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge and Aboriginal-State Relations in the Southwest
Yukon (Vancouver: UBC Press, 2003). For related concerns, see Christie, supra note 5.
22 For discussion, see Twining, supra note 17 at 232 and 237 and Nicole Roughan, The Association of State and
Indigenous Law: A Case Study in Legal Association (2009) 59 U.T.L.J. 135.
23 Napoleon, supra note 18, especially the cases outlined in chapter 3 and at 309, where she defines public
witnessing and accountability as a general working principle of Gitksan legal theory and the steps involved
in managing disputes among the Gitksan.

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457

related to the hosts and are given roles and degrees of responsibilities that depend on their
relationship to the host group.24
As the Gitksan example demonstrates, some indigenous approaches to the administration
of government that could, with due care and attention, inform the conduct of business in
more centralized government structures arrived at through negotiations. However, as the brief
overview of administrative justice within the different types of Aboriginal self-government
that follows illustrates, the challenges of implementing such approaches through governance institutions are formidable.

A. Participation in Public Government, Co-Management, and

SharedManagement
Public government models rely on demographics and Aboriginal participation to achieve
Aboriginal self-government aspirations. Co-management and shared management boards
involve Aboriginal participation on administrative bodies outside Aboriginal communities,
whose decisions affect those communities. Reservations concerning both of these approaches to self-government reflect the critique from critical legal scholarship noted above
that transplanted legal instruments have a limited capacity for transformative political
change. Can such regulatory and administrative settings provide the space necessary for
adaptation that can transform regulation to reflect local values? What other measures and
concerns should inform our assessment of the success of such approaches?
Canadas most ambitious instance of indigenous self-government to datethe Nunavut
Land Claims Agreement (NLCA)established the Territory of Nunavut in 1999. The NLCA
specifies that the number of Inuit employed in the public service be representative of Inuit
in Nunavut society.25 This figure was set at 50 percent for April 1, 1999, and was intended to
slowly increase to 85 percent to reflect the fact that Inuit comprise the overwhelming majority of Nunavut residents. The structures of the Nunavut government, on the other hand,
are familiar Canadian governance institutions. Apart from the consensus nature of the
Nunavut legislature, government is organized into line departments and central agencies
(such as the Department of Finance), with hierarchical leadership and specialized bureaucracies.26 Inuit values and political aspirations were thus intended to be achieved through
their strong demographic majority and participation in the territorial government.27 While
the success of Nunavut as an expression of a distinctly Inuit form of self-governance is hotly

24 Ibid. at xv, citing Richard Overstall, Encountering the Spirit in the Land: Property in a Kinship-Based Legal
Order in John McLaren, Andrew R. Buck, & Nancy E. Wright, eds., Despotic Dominion: Property Rights in
British Settler Societies (Vancouver: UBC Press, 2004) 22 at 28.
25 Nunavut Land Claims Agreement Act, S.C. 1993, c.29, s.23.2.1.
26 See, generally, Graham White, Governance in Nunavut: Capacity vs. Culture? (2009) 43 J. Can. Stud. 57.
27 The establishment of a separate land claims organization, Nunavut Tunngavik Incorporated (NTI), representing the Inuit beneficiaries of the claim, also has an important role and influence on governance in Nunavut
(ibid. at 60-61). Natalia Loukacheva explains that the public governance model does not preclude the Inuit
from pursuing separate, self-government institutions within Nunavut in the future (The Arctic Promise: Legal
and Political Autonomy of Greenland and Nunavut (Toronto: University of Toronto Press, 2007) 49.

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debated and continually evaluated,28 Paul Okalik, the first premier of Nunavut, offers his
perspective as follows: What we sought and attained in our land claims negotiation was a
legislated guarantee that Inuit would participate in a meaningful way in the decision-
making process in our territory. In Nunavut, we were able to guarantee the rights of self-
government within a public governance structure.29
The emphasis in Paul Okaliks comments is on meaningful participation in decision
making, an aim that is behind the establishment of co-management boards that are part of
the NCLA as well as other claims. Sari Graben has explored how such participatory processes have led to the adaptation of regulatory instruments that are, for all intents and purposes, a transplanted form of Aboriginal self-governance.30 Using the Mackenzie Valley
Environmental Impact Review Board (MVEIRB) case study, a co-management board in the
Northwest Territories that was mandated by land claim agreements in the Gwichin and
Sahtu territories,31 she describes how Aboriginal communities provided input into the
guidelines used by the board and the impact of this participation. Furthermore, Graben
finds those guidelines, in part because of the incorporation of Aboriginal governance principles, have proved instrumental in fostering private negotiation between indigenous communities and industry as a central feature of environmental assessment.
One further context in which co-management processes are becoming more common is
in British Columbia, through reconciliation agreements.32 Called shared and joint decision making in this context, the structures established in these reconciliation agreements
are notable for several reasons. The Haida Gwaii Management Council (HGMC), for example, was established by the joint operation of the Haida Gwaii Reconciliation Act33 and a
resolution of the Haida Nation, pursuant to the Kunstaa Guu-Kunstaayah Reconciliation
Protocol, signed by the Haida Nation and British Columbia in 2009. Similar to the land
claims boards established through the land claims and subsequent legislation, the HGMC
consists of two members of the Haida Nation appointed by resolution after consultation
with British Columbia, two members appointed by the lieutenant governor in council after
consultation with the Haida Nation, and a chair appointed by resolutions of each party.34
28 For two perspectives, see Loukacheva, ibid., and White, supra note 26.
29 Paul Okalik, Nunavut: The Road to Indigenous Sovereignty (2007) 2 Intercultural Human Rights Law Review 11 at 14.
30 Sari Graben, Writing the Rules of Socio-Economic Assessment: Adaptation Through Participation (paper
presented at the annual meeting of the Law and Society Association, Renaissance Chicago Hotel, Chicago,
IL, May 27, 2010, Osgoode CLPE Research Paper 23/2010).
31 See Preamble, Mackenzie Valley Resource Management Act, S.C. 1998, c. 25.
32 For reconciliation agreements reached to date, see online: British Columbia <http://www.newrelationship
.gov.bc.ca/agreements_and_leg/reconciliation.html>, and supra note 14.
33 S.B.C. 2010, c. 17, s.3 [HGRA].
34 British Columbia Board Resourcing and Development Office, Directory of Agencies, Haida Gwaii Management Council, online: British Columbia <http://www.fin.gov.bc.ca/BRDO/boardView.asp?boardNum
=215137> [BRDO document]. In contrast, the members of the MVEIRB are all appointed by the federal
minister of Aboriginal Affairs and Northern Development. There is an equal number of nominations from
the federal and territorial governments on the one hand, and from Aboriginal land claimant organizations
on the other hand. Nominations for the chair generally come from other Review Board members (online:
Mackenzie Valley Review Board <http://www.reviewboard.ca/about>).

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459

HGMC members are required to adhere to natural justice, impartiality, and procedural fairness in their work, but also function on consensus decision-making model, where the consensus of four of the five members demonstrates a sufficient degree of consensus.35 A key
difference from the northern land claim context is the functions of these bodies. MVEIRB
is an environmental assessment board; other northern co-management boards have responsibilities such as permitting decisions with respect to land and water use. By contrast, the
HGMCs mandate is to make strategic policy decisions dealing specifically with forest resources and heritage sites.36 Significantly, the HGMC has been created outside the strictures
of the B.C. treaty process, which has proven unacceptable to several B.C. First Nations. The
joint Haida Nation and B.C. authorities relied on to establish the HGMC demonstrate the
possibility of a different, non-hierarchical relationship between the First Nation and the
province.37 Although it is too early to evaluate the HGMC or other shared management
structures created through recognition agreements, there will be much to learn from the
experience, including the application of administrative law principles in structuring the
work of such joint bodies bridging indigenous and Canadian governments.

B. Self-Management and Self-Administration

The nature of the powers of Indian Act band councils has long been a point of confusion.
Specifically, courts have not always recognized that these councils may exercise powers
derived from inherent rights of self-governance in addition to, or as interfered with, by the
powers delegated through the Indian Act.38 To understand the nature of Indian Act band
councils and their powers, one must be aware of the colonial history and policies that have
intruded upon and reshaped First Nations governments.39
Two areas in which amendments to the Indian Act have permitted First Nations to develop laws based on band custom are in relation to band elections and band membership.
The control over membership was introduced in 1985 when Bill C-31 was introduced as part
of a package to correct the legacy of Indian status rules that discriminated against women.40
35 BRDO document, ibid. The MVEIRB has well-developed rules of procedure, as mandated by statute, in
which the application of the common-law duty of procedural fairness is confirmed, online: Mackenzie Valley
Review Board <http://www.reviewboard.ca/upload/ref_library/MVEIRB_RulesofProcedure_0505.pdf>).
36 HGRA ss.1, 4, 5, and 7.
37 For a discussion of the significance of non-hierarchical structures in the association of indigenous and state
law, see Roughan, supra note 22.
38 See Walters, supra note 20 at 31, where he favours the approach taken in Bone v. Sioux Valley Indian Band
No.290, [1996] 3 C.N.L.R. 54 (F.C.T.D.) (authority from inherent governance powers; context of a dispute
regarding custom election code) over the approach in Heron Seismic Services Ltd. v. Muscowpetung Indian
Band, [1991] 2 C.N.L.R. 52 (Sask. Q.B.) (authority from statute; context of a dispute over an account for work
done drilling wells on reserve).
39 See Walters, supra note 20, and Hamar Foster, Canada: Indian Administration from the Royal Proclamation
of 1763 to Constitutionally Entrenched Aboriginal Rights in Paul Havemann, ed., Indigenous Peoples Rights
in Australia, Canada and New Zealand (Auckland and New York: Oxford University Press, 1999) 351.
40 The rules implemented through Bill C-31 in 1985 (An Act to Amend the Indian Act, S.C. 1985, c. 27) have
since also been found to be discriminatory against women: McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153.

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The default position with respect to both electoral and membership codes is that the rules
set out in the Indian Act apply until a First Nation initiates a process to adopt its own codes.
Aboriginal Affairs and Northern Development Canada reports that of the 617 recognized
First Nations in Canada, 341 have implemented community or custom election codes41
while Kirsty Gover reports that 243 First Nations have adopted membership codes.42
Although administrative law should foster respect for band customs, those customs must
also be approached with caution, particularly for Indian Act band custom rules, which
claim to be representative of Aboriginal communities but can involve substantial subjective
discretion. Through seeking this balance, Aboriginal administrative law can seek to develop
a more nuanced approach in dealing with the complexities of Aboriginal governance and
intra-band disputes.43

C. Self-Government and Sovereignty

The RCAP suggested three models of Aboriginal government: the nation government model,
the public government model, and the community of interest model. In each of these models,
an Aboriginal government, would have powers and authorities in respect of law making
(legislative); administration and policy making (executive); and interpretation, application
and enforcement of law (judicial).44 The legislative component, may resemble historical
structures, existing structures (a council) or government structures common to other Canadian governments (such as a legislative assembly).45 Likewise, the executive may be composed of individuals, such as chiefs, bodies, or councils. Finally, judicial powers will most
likely rest with those Aboriginals seen as providing good counsel and wisdom, such as
elders and women.46 In the end, the RCAP provides a useful point of departure but surprisingly little in the way of specific models that might inform Aboriginal administrative law. As
with so much in the field of Aboriginal and constitutional law, the focus has been on achieving recognition of Aboriginal self-government, rather than on what happens the day after.
It should not be surprising that Aboriginal approaches to justice under self-government
show similarities to the Canadian model given the nexus of history and culture. One example of this can be seen in the Nisgaa Administrative Decisions Review Board. The Nisgaa
Lisims Government is defined in Chapter 1 of the Nisgaa Final Agreement to mean, the
government of the Nisgaa Nation described in the Nisgaa Constitution. Chapter 11 of the
Nisgaa Final Agreement describes in some detail the powers of the Nisgaa Lisims Government, and the relationship of those powers to those of the federal and provincial governments. Section 16 of Chapter 11 provides that the Nisgaa Lisims Government will create
41 Online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/
1323193986817>.
42 Kirsty Gover, Tribal Constitutionalism (Oxford: Oxford University Press, 2011) 74.
43 For a discussion regarding custom elections, see Val Napoleon, Aboriginal Discourse: Gender, Identity, and
Community in Indigenous Peoples and the Law, supra note 10, 233 especially at 248-52.
44 RCAP, Models of Aboriginal Government: An Overview, supra note 3, vol. 2, c. 3.
45 Ibid.
46 Ibid.

II. Developing Administrative Justice for Aboriginal Self-Government

461

appropriate procedures for the review of administrative decisions of Nisgaa Institutions.

That power has been exercised in the establishment of the Nisgaa Administrative Decisions
Review Board, pursuant to the Nisgaa Administrative Decisions Review Act, 2000.47
The Nisgaa Administrative Decisions Review Act sets out the authority and process of the
board. Apart from a provision authorizing translation of a hearing into the Nisgaa language
(though stipulating that the language of hearings, unless ordered otherwise, is English),48
there appears to be little in the legislation denoting that this tribunal is different than other
Canadian tribunals created to review executive decision making across the country.49 The
board has the power to set aside a government decision complained against if it is found to
have been made beyond the jurisdiction of the decision-maker, reached unfairly, or based
on an incorrect finding in law. In other words, the Act creates a board very much within the
Canadian administrative law tradition. Thus far, the board has received very few complaints
and has been concerned primarily with disputes relating to elections.50 In Azak v. Nisgaa
Nation,51 the B.C. Human Rights Tribunal found that the Nisgaa Lisims government and
the board fall under federal jurisdiction with respect to human rights. As such, the B.C.
Human Rights Code had no application to decisions of the board. This case demonstrates
the complexity of not just bijuralism, but also federalism, which is knit into the fabric of
Canadian and Aboriginal administrative law.
One of the important functions of Canadian administrative law is its role in ensuring the
accountability of government decision-makers. When considered in the context of Aboriginal self-government, vital questions arise as to who has the authority to monitor the accountability of Aboriginal decision-makers, and the standards against which accountability
should be judged in those circumstances. One concern is that when Aboriginal institutions
are subject to Canadian administrative review, traditional principles of administrative law
will not adequately account for these alternative structures of accountability. It is therefore
relevant to look at examples of how Canadian courts have assessed the accountability of
Aboriginal decision-makers and the structures within which they operate, considered here
in relation to Aboriginal decision-makers.
As Rothstein J. (as he then was) stated in Sparvier v. Cowessess Indian Band, in which the
election of a Band Chief under a custom election code was challenged by one of the unsuccessful candidates:
47 See Nisgaa Administrative Decisions Review Act, NLGSR 2000/04 (2008), online: Nisgaa Lisims Government
Wilp SiAyuukhl Nisgaa <http://nisgaalisims.ca/files/nlg/Nisga_a_Administrative_Decisions_Review_Act_-_
Unofficial_Consolidation__January_4_2008_.pdf>.
48 Ibid., s.14(2).
49 Although it is common to have tribunal members recite an oath of impartiality upon appointment, the Act
provides that in the case of the Nisgaa Administrative Decisions Review Board, that oath is taken before the
Council of Elders. The oath reads: Do you solemnly swear or affirm that you will faithfully, truly and impartially, without fear or favour and to the best of your judgment, skill and ability, perform the office of member
of the Nisgaa Administrative Decisions Review Board and that you will not, except in the discharge of your
duties, disclose to any person any of the evidence or other matter brought before the Board. Ibid. at 19.
50 This assessment is based on a conversation with Angela DElia and Jim Aldridge, counsel to the Nisgaa Lisims
Government, in the fall of 2009. The decisions of the board do not appear to be published.
51 [2003] B.C.H.R.T.D. No. 75 (QL).

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While I accept the importance of an autonomous process for electing band governments, in my
opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives
should not be quickly interfered with by the courts. However, members of bands are individuals
who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural
justice and procedural fairness are to be applied.52

A more recent illustration of the intersection of administrative law approaches to accountability and Aboriginal self-government occurred in Lafferty v. Tlicho Government.53
This case, occurring in the context of government structures recognized through a comprehensive claims process, involved three dissident chiefs who challenged a law enacted by the
Tlicho government. Under s. 13 of the Tlicho Constitution, the validity of laws enacted by
the Tlicho Assembly may be challenged by way of an appeal to that Assembly (at least until
the Assembly enacts laws creating a different appeal body). The dissident chiefs who used
this process, and participated both as appellants and members of the Tlicho Assembly, did
not obtain a favourable result, and so chose to dispute the law in the Canadian courts. Justice
Richard of the Supreme Court of the Northwest Territories struck out the chiefs claim as an
abuse of process because the claim had, already been adjudicated upon by the process chosen by the Tlicho in developing their Constitution.54 Justice Richard further affirmed Tlicho
self-government by holding that, [t]he most that could be said for the Applicants position is that there is concurrent jurisdiction,55 but the [c]ourt cannot simply ignore the
fact that the Tlicho Assembly has, under the Constitution, already ruled on the validity of the
impugned law.56 Overall, Justice Richard saw the applicants claim as disrespectful of the
newly established Tlicho self-government,57 even going so far as to override criticisms of the
Tlicho governments accountability. For instance, he observed that, [w]hile it may appear
an anomaly to have a legislative body re-constitute itself into an adjudicative body (the
Tlicho assembly under section 13.3) to hear a challenge to the validity of one of its own laws,
that is the process that the Tlicho people decided upon in adopting the Tlicho Constitution.58
The Tlicho case seems to confirm the autonomy of decisions made by Aboriginal governments, so long as adequate internal accountability exists. In the Tlicho example, it did not
matter that the accountability mechanism in question was unique to the Aboriginal context.

52 Sparvier, supra note 11 at para. 47.

53 Lafferty v. Tlicho Government, [2009] 3 C.N.L.R. 151 (N.W.T.S.C.), appeal dismissed on grounds of mootness,
2010 NWTCA 4 [Tlicho].
54 Ibid. at para. 42.
55 Ibid. at para. 41.
56 Ibid. at para. 42.
57 Ibid. at para. 38.
58 Ibid. at para. 23.

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463

III. Applying Administrative Law to Aboriginal

Decision-Makers
In this section, we explore the importance of Aboriginal decision-making contexts in the
development of administrative law in Canada.

A. How Do We Assess Independence?

It is perhaps a coincidence that the leading precedent from the Supreme Court of Canada
on the meaning of independence in administrative decision making arose in the context of
an Aboriginal tribunal: Canadian Pacific Ltd. v. Matsqui Indian Band.59 As discussed by
Laverne Jacobs in Chapter 8, Caught Between Judicial Paradigms and the Administrative
States Pastiche: Tribunal Independence, Impartiality, and Bias, Matsqui involved appeals
from tax assessments of real estate within reserves. The particular issue was whether lands
granted to Canadian Pacific by the Crown were, by definition, excluded from lands within
a reserve. Canadian Pacific lost at the tribunal level, so it applied to the Federal Court, Trial
Division for judicial review. Canadian Pacific argued that the provisions permitting band
members to sit on the assessment appeal tribunal raised a reasonable apprehension of bias.
Joyal J. struck out the application on the ground that the issues raised could be litigated
within the assessment appeal structure itself.60 Joyal J. did not deal with reasonable apprehension of bias. An appeal to the Federal Court of Appeal was allowed.61 The band appealed
to the Supreme Court of Canada, where Canadian Pacific argued that the assessment appeal
procedures were not an adequate alternative to judicial review because the appeal tribunals
themselves gave rise to a reasonable apprehension of bias, in part based on the tribunals
lack of independence. Lamer C.J. concluded that the judicial independence principles first
developed in Valente 62 apply to administrative tribunals on the basis of natural justice principles, but that the test for institutional independence may be less strict than for courts:
Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure,
financial security and administrative control) will depend on the nature of the tribunal, the
interests at stake, and other indices of independence such as oaths of office.
In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the immigration adjudicators), a more strict application of the Valente principles may be warranted. In this case, we
are dealing with an administrative tribunal adjudicating disputes relating to the assessment of
property taxes. In my view, this is a case where a more flexible approach is clearly warranted.63

59 [1995] 1 S.C.R. 3 [Matsqui].

60 [1993] 1 F.C. 74 (T.D.).
61 [1993] 2 F.C. 641 (C.A.)
62 Valente v. The Queen, [1985] 2 S.C.R. 673 [Valente]. This principle focused on three objective guarantees of
adjudicative independence: security of tenure, financial independence, and administrative independence.
63 Matsqui, supra note 59 at paras. 83-84.

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Although Lamer C.J. carried fewer judges on this point than Sopinka J. (who would have
preferred to see how the tribunal functioned in practice before resolving the independence
question),64 his view was nonetheless adopted by the Court in subsequent cases.
In considering the validity of the Aboriginal Bands Tax Assessment Review Committee,
the majority reasons of Sopinka J. made numerous references to Aboriginal self-government.
Justice Sopinka prefaced his analysis with the caveat that, [c]onditions of institutional independence must take into account their operational context,65 and then stressed that the
most significant contextual factor in this case was that the purpose of the tax assessment
scheme was to foster Aboriginal self-government.66 This led him to resolve that, before
concluding that the by-laws in question do not establish band taxation tribunals with sufficient institutional independence, they should be interpreted in the context of the fullest
knowledge of how they are applied in practice.67
The Court was split on whether the challenge should have been raised before the committee itself before being brought to Court, but the majority held that the committee lacked
sufficient administrative independence from the Band chiefs and councils. For example, the
committee members could be fired at any time and their compensation was left to the discretion of the Band. In his reasons, Chief Justice Lamer observed:
[W]hile I agree that the larger context of Aboriginal self-government informs the determination of whether the statutory appeal procedures established by the appellants constitute an
adequate alternative remedy for the respondents, I cannot agree with SopinkaJ.s conclusion
that this context is relevant to the question of whether the bands tribunals give rise to a reasonable apprehension of bias at an institutional level. In my view, principles of natural justice apply
to the bands tribunals as they would apply to any tribunal performing similar functions.68

After determining that members of the appeal tribunals perform adjudicative functions
not unlike those of courts,69 Lamer C.J. found that, under the By-laws, there is nothing to
prevent the Band Chiefs and Councils from paying tribunal members only after they have
reached a decision in a particular case, or not paying the members at all.70 In addition, he
found that tribunal members could be removed from their positions at any time by the
Band, which left open the possibility of considerable abuse.71
As already quoted above, in coming to this conclusion, Chief Justice Lamer did admit
that, the larger context of Aboriginal self-government informs the determination of
whether the statutory appeal procedures established by the appellants constitute an adequate alternative remedy for the respondents.72 Yet, he did not see how this was relevant
64 Ibid. at paras. 117-23.
65 Ibid. at para. 113.
66 Ibid. at para. 114.
67 Ibid. at para. 115.
68 Ibid. at para. 74.
69 Ibid. at para. 92.
70 Ibid. at para. 94 (emphasis in original).
71 Ibid.
72 Ibid. at para. 74.

III. Applying Administrative Law to Aboriginal Decision-Makers

465

to the question of whether the bands tribunals give rise to a reasonable apprehension of bias
at an institutional level. In other words, the Supreme Court simply grafted the test for judicial independence onto the context of administrative tribunals generally and an Aboriginal
dispute resolution tribunal specifically. Is Aboriginal decision making simply an additional
example of delegated statutory authority within the framework of Canadian administrative
law, and/or a parallel but distinct decision-making context with inherent sources of constitutional authority and an administrative law of its own?

B. Is the Canadian Ideal of Independence Applicable in

AboriginalContexts?
As stated in the introduction to this chapter, a tension exists between those features of administrative law with a valid claim to universality and those that are culturally, and perhaps
temporally, specific.
The desire that administrative decision-makers should be subject to statutory mandates
but insulated from political manipulation has become a central motif in Canadian administrative law. As examined by Laverne Jacobs in Chapter 8, from labour boards to liquor
control boards, or human rights tribunals to international trade tribunals, independence
has become one of the most common grounds on which to challenge administrative decisions. While the Supreme Court remains divided on the extent to which Aboriginal tribunals require modified administrative law principles in the context of independence, the
question remains whether such an ideal of independence resonates with Aboriginal traditions. According to John Borrows:
Aboriginal peoples need recognition of their own independent norms, and dispute resolution
mechanisms to ensure that accomplishments are consistent with stewardships. These mechanisms need not be courts, but they should possess an independence from band councils that
would enable them to act as a countervailing source of authority within the community.

Ironically, well-intentioned attempts to fix First Nations political structures by making

them more accountable may end up doing just the opposite: further entrenching top-down,
elected, hierarchical politics that has little respect for First Nations traditions of polyfunctional
decision-making and dispute resolution structures. If the proposals are implemented, they may
make it even more difficult to diffuse power throughout Indian communities in the future.
What is needed, before the creation of administrative law codes, are First Nations-designed
adjudicative or dispute resolution bodies that can independently review decisions of the executive and legislative bodies in the band. There must be bodies that can independently articulate
legal principles of stewardship and responsibility whenever a dispute arises.73

While Borrows was not referring specifically to Matsqui, the Supreme Courts approach
seems to fit with the hierarchical politics that Borrows discourages those in positions of
political and legal authority outside the Aboriginal context from doing. More broadly, the

73 John Borrows, Stewardship and the First Nations Governance Act (2003) 29 Queens L.J. 103 at 121 and 123
[Borrows, Stewardship].

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debate in Matsqui raises the question of which administrative law principles are culturally
specific and which are universally applicable. Arguably, rules against self-dealing and bias
arise in any public decision-making process conducted under the rule of law. Is the concern
for institutional independence similarly universal?
A hallmark of Canadian administrative law is arguably its ability to develop varying approaches to questions of fairness, independence and accountability to apply within disparate
settings within the administrative state (government departments, hospitals, prisons, universities, regulatory agencies, adjudicative tribunals, etc.). Impartiality, as discussed by Laverne
Jacobs in Chapter 8, is a good example. An understanding of what constitutes a reasonable
apprehension of bias developed in the context of a utility board (where, for example, a
member makes public statements relating to the issue during hearings and may be perceived
to have decided the issue before hearing all of the evidence74) may not be applied in the same
way in the context of immigration decision making (where, for example, an immigration
officer must consider the best interests of children in making a deportation decision and
may be considered biased when expressing views contrary to a childs best interests).75 Yet
the same principles are held to govern each body under Canadian administrative law. Do
Aboriginal communities present a particularly distinct administrative setting in which to
apply conventional administrative law doctrines, or do such communities require different
doctrines altogether?
Justice Louis LeBel once wrote:
[N]ot all administrative bodies are the same. Indeed, this is an understatement. At first glance,
labour boards, police commissions, and milk control boards may seem to have about as much
in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some
common features, but the diversity of their powers, mandate and structure is such that to apply
particular standards from one context to another might well be entirely inappropriate.76

The question is, can we construct a standard of review with respect to governing institutions of First Nations drawn from standards applied to Canadian administrative bodies, or
must a unique framework be developed that is consistent with the customs, traditions, spiritual beliefs and historical realities of Aboriginal peoples? In other words, a discussion of
Aboriginal administrative law necessarily engages the limits of pluralism in public law. It
reveals the tension between those features of administrative law with a claim to universality,
and those which may be reduced, ultimately, to a particular cultures view of justice at a particular time in its history.

C. Appropriate Level of Deference

To take a familiar concept from administrative law, what level of deference should apply
when Aboriginal decision making is impugned in applications for judicial review in Canad 74 See Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1
S.C.R. 623 [Newfoundland].
75 See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker].
76 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 158.

IV. Respecting Aboriginal Rights and Jurisdictions

467

ian courts? In what circumstances should those courts overturn Aboriginal government or
agency decision making? Where Aboriginal and Canadian regulatory jurisdictions apply to
a given matter or individual, which should take precedence and why? These areas of the
convergence of Aboriginal and Canadian administrative law principles remain largely unsettled. However, recent jurisprudence such as the Tlicho case77 (discussed above) suggests
that, for at least the foreseeable future, Canadian courts and doctrines of deference will
determine the scope left to develop administrative decision making consistent with Aboriginal values.

IV. Respecting Aboriginal Rights and Jurisdictions: The

Duty to Consult and Accommodate
Nowhere is the convergence of Aboriginal and administrative law more apparent than in the
duty to consult and accommodate. In this section, we provide an overview of the duty as
well as a comparison with the duty of fairness before exploring a few specific issues in
greater depth. This section also highlights the potential for growth and learning between
Aboriginal law and administrative law: the influence of administrative law on the duty to
consult is obvious, but influence goes both ways and the language of Aboriginal consultation obligations is already identifiable in other areas of public law.78

A. Overview of the Duty to Consult and Accommodate

In 2004, Haida Nation79 ushered new life into the procedural obligations relating to constitutionally protected Aboriginal rights. Aboriginal and treaty rights under s.35 of the Constitution Act, 198280 protect the collective rights of Aboriginal peoples and the special relationship
between the Crown and Aboriginal peoples, stemming in part from the colonial history of
Canada.81 Although an obligation to consult Aboriginal peoples in order to justify regulatory
infringements of their constitutional rights was already part of the s. 35 jurisprudence,82

77 Tlicho, supra note 53.

78 For discussion, see Lorne Sossin, The Duty to Consult and Accommodate: Procedural Justice as Aboriginal
Rights (2010) 23 Cdn. J. Admin. L. & Prac. 93-113 [Sossin (2010)] and David Mullan, The Duty to Consult
Aboriginal PeoplesThe Canadian Example (2009) 22 Can. J. Admin. L. & Prac. 107 [Mullan].
79 Haida Nation, supra note 12.
80 Constitution Act, 1982, supra note 1.
81 On the sources of the Aboriginal rights protected by s.35, see e.g. John Borrows, Indigenous Constitution,
supra note 3; Brian Slattery, The Generative Structure of Aboriginal Rights (2007) 38 Sup. Ct. L. Rev. (2d)
595 [Slattery]; Mark D. Walters, The Golden Thread of Continuity: Aboriginal Customs at Common Law
and Under the Constitution Act, 1982 (1999) 44 McGill L.J. 711; Kent McNeil & David Yarrow, Has Constitutional Recognition of Aboriginal Rights Adversely Affected their Definition? (2007) 37 Sup. Ct. L. Rev.
(2d) 177.
82 R. v. Sparrow, [1990] 1 S.C.R. 1075 [Sparrow]; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw], Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 178 D.L.R.
(4th) 666 [Halfway River]. See also Patrick Macklem & Sonia Lawrence, From Consultation to Reconciliation: Aboriginal Rights and the Crowns Duty to Consult (2000) 79 Can. Bar Rev. 252.

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Haida Nation, along with Taku River Tlingit83 and Mikisew Cree84 (the Haida Nation trilogy),
which followed shortly after, gave this obligation wider scope and force. The Haida Nation
trilogys key renovation of previous iterations of the Crowns obligation to consult Aboriginal peoples was the requirement that the Crown consult with Aboriginal communities both
before and after the proof or settlement of the Aboriginal or treaty rights at stake.85 In light
of the pre-proof nature of the Haida Nation duty, consultation obligations derive from the
honour of the Crown rather than the rights themselves.86
The honour of the Crown is damaged when the Crown undertakes or sanctions activities
with the potential to derogate from Aboriginal rights before those rights have been properly
recognized and accommodated through negotiations or otherwise. As the Court said in
Haida Nation:
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests
where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. To unilaterally
exploit a claimed resource during the process of proving and resolving the Aboriginal claim to
that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the
resource.That is not honourable.87

To preserve the Aboriginal rights and interests pending recognition and settlement, the
duty to consult and, if appropriate, accommodate thus arises where the claimed Aboriginal
right would potentially be negatively affected by proposed government conduct. Further
explored below, government conduct includes decisions such as permits and licences to allow
resource use or changes to decision-making structures that regulate the use of land and water.
Given the wide variety of government departments and agencies in which such decisions are
made, the evolving duty to consult and accommodate has had a significant impact on government decision-making processes, at least with respect to lands and resource management. 88
The Haida Nation trilogy made it clear that the renewed duty to consult and accommodate shares many concepts and techniques with the administrative law duty of fairness. In
Haida Nation, the Supreme Court stated that regard may be had to the procedural safe-

83 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R.
550 [Taku River Tlingit].
84 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388
[Mikisew Cree].
85 In Little Salmon/Carmacks, supra note 13, the Court clarified that the honour of the Crown also applies to
modern treaty settlements, allowing courts to supplement negotiated consultation requirements if the honour of the Crown so demands.
86 See, generally, Dwight G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Publishing, 2009) [Newman].
87 Haida Nation, supra note 12 at para. 25.
88 The emphasis on lands and resources in the duty to consult jurisprudence follows the lands and resources
focus of Aboriginal rights jurisprudence to date. This focus should not, however, be seen to preclude the
dutys potential application to other types of government decisions in areas such as education, health policy,
intellectual property, or other areas in relation to which treaty or Aboriginal rights may be credibly asserted.

IV. Respecting Aboriginal Rights and Jurisdictions

469

guards of natural justice mandated by administrative law in discharging the duty,89 while
Taku River Tlingit demonstrated that the duty could be carried out within regular administrative processes, such as environmental assessment. In Little Salmon/Carmacks, the Supreme Court again highlighted this relationship. In that case, the Court considered the
argument that administrative law principles, for all their tremendous value, are not tools
toward reconciliation of Aboriginal people and other Canadians.90 Writing for the majority,
Binnie J. rejected this argument, stating that [a]dministrative law is flexible enough to give
full weight to the constitutional interests of the First Nation.91
The close relationship between the duty to consult and accommodate and the duty of
fairness is evident in the analytic structure of the two duties. Both involve two steps: threshold and content. Within these steps, the duty to consult has its own, distinct tests. At the
threshold step, the duty to consult is triggered when government contemplates conduct that
might affect the exercise of an Aboriginal right. In Rio Tinto, the Supreme Court delineated
three elements within this trigger: Crown knowledge of an Aboriginal right; Crown contemplation of an action (or decision); and the possibility that the contemplated action may
adversely affect the exercise of the right.92 With respect to the first element, the nature of the
Crown knowledge required depends on the type of right in issue. Where treaty rights are in
issue, the Court has held that the Crown will always have notice of the rights contained in
the treaty.93 In other contexts, the knowledge element is satisfied by credible assertions of
rights and Crown knowledge of the potential existence of an Aboriginal right, a standard
that ensures that the duty arises before proof or recognition of such rights.94 Further, knowledge may be attributed to the Crown (constructive knowledge) when, for example, the
government is aware of an Aboriginal groups traditional occupation of an area.95
A preliminary question that has begun to receive some attention in the courts is identifying the appropriate Aboriginal consultation partners,96 a trigger issue relating to credible
claims that may also raise questions of standing. Little Salmon/Carmacks confirmed that
consultation proceeds with the Aboriginal community rather than a particular member of
the community, even when an individuals interest is particularly affected, as was the case

89 Haida Nation, supra note 12 at para. 41 (emphasis added).

90 Little Salmon/Carmacks, supra note 13 at para. 45.
91 Ibid. at para. 47.
92 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at para. 31 [Rio Tinto
Alcan].
93 Mikisew Cree, supra note 84 at para. 34. Given that treaty rights are not entirely determined by the text of the
historic treaties (R. v. Marshall, [1999] 3 S.C.R. 456), it is worth considering whether this presumption ought
to be limited to notice of at least the rights outlined in the text of the treaty.
94 Haida Nation, supra note 12 at para. 35.
95 Rio Tinto Alcan, supra note 92 at para. 40.
96 See the discussion in Newman, supra note 86 at 38-40, 70-72; Janna Promislow, Book Review of Newman, ibid.
(2010) 48 Osgoode Hall L.J. 183 at 187-88; and more generally, Brent Olthuis, The Constitutions Peoples:
Approaching Community in the Context of Section 35 of the Constitution Act, 1982 (2009) 54 McGill L.J. 1.

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for the affected trapline owner in Little Salmon/Carmacks.97 Beyond this point, however, the
issue quickly becomes complex and must be understood in relation to a history that involves
(among other features) Indian Act band membership rules that excluded many individuals
on the basis of gender and marriage or other criteria; high migration rates of First Nations
individuals from reserves to urban centres as a result of on-reserve conditions; the absence
of a legislative framework for the recognition of Metis communities or individuals outside of
Albertas Metis Settlements Act; imperfect recognition of First Nations under federal policies
leading to unrecognized bands and the splintering of larger national groupings into bandlevel First Nations; and poor recognition and knowledge of Aboriginal communities traditional territories. Against this history, identifying the appropriate consultation partners may
involve rights claims by more than one Aboriginal community or organization in respect of
the same geography and activities;98 rights claims by unrecognized or non-status Aboriginal communities;99 and issues regarding who may represent communities in consultation.100
The other two elements of the dutys triggerCrown conduct and the potential for adverse effects on the rightsare also defined broadly. While the common law duty of fairness
excludes preliminary decisions, meaningful consultation of a standard capable of upholding
the honour of the Crown may require that consultation occur early and throughout multistep government decision-making processes such as environmental assessments.101 The
duty also applies to decisions that may not have an immediate impact on Aboriginal rights;
for example, the development of strategic plans and decision-making frameworks such as
the water management plan in issue in Tsuu Tina Nation.102 The application of the duty to
consult to strategic and planning decisionsdecisions of a distinctly policy naturemeans

97 Little Salmon/Carmacks, supra note 13 at para. 35. Further comment on this issue may be forthcoming from
the Supreme Court in Moulton Contracting Ltd. v. Behn, 2011 BCCA 311, leave to appeal to the Supreme
Court of Canada granted, 2012 CanLII 17819 (S.C.C.). In that case, the Behn family is attempting to assert a
breach of the duty to consult as a defence in a civil claim for damages. The B.C. Court of Appeal denied the
family, as individual members of a First Nation, the standing to challenge the validity of government permits
based on a breach of the governments duty to consult in issuing those permits.
98 See e.g. Nlakapamux Nation Tribal Council v. Griffin, 2009 BCSC 1275, [2009] 4 C.N.L.R. 213 [Nlakapamux
Nation], varied on appeal on a different issue, Nlakapamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78.
99 See e.g. Campbell v. British Columbia (Forest and Range), 2011 BCSC 448.
100 See e.g. Newfoundland and Labrador v. Labrador Mtis Nation, 2007 NLCA 75, 288 D.L.R. (4th) 641, leave to
appeal to the Supreme Court of Canada refused (2008 CanLII 32711 (S.C.C.)). The Court of Appeal, at
para.46, found that Aboriginal communities with credible rights claims may choose their agents for consultation, including non-rights holding corporate bodies. The Court of Appeal, at para. 36, also found that it was
unnecessary for the claimant group to finally decide whether they were ethnically Metis or Inuit for the purposes of establishing a credible claim that triggers the duty to consult. For related concerns regarding the
definition of the class that may be certified to represent Aboriginal rights holders in a class action, see Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193.
101 See e.g. Dene Tha First Nation v. Canada (Minister of Environment), 2006 FC 1354, [2006] F.C.J. No. 1677
(QL) [Dene Tha], aff d in Canada (Minister of Environment) v. Imperial Oil Resources Ventures Ltd., 2008 FCA
20. See also, Newman, supra note 86 at 54-55.
102 Tsuu Tina Nation v. Alberta (Environment), 2010 ABCA 137, [2010] A.J. No. 479 (QL) [Tsuu Tina Nation].
See also Rio Tinto Alcan, supra note 92 at para. 44.