Vavilov and Indigenous self-government

There has been op­ti­mism that Pastion v Dene Tha’ First NationPastion v Dene Tha’ First Nation, 2018 FC 648. makes space for Indigenous self-gov­ern­ment with­in Canada’s ad­min­is­tra­tive state.I acknowledge that this optimism is necessarily limited by the fact that the government structures that are afforded power through the administrative state are still Canadian-created and controlled. See Chelsea Vowel, “The myth of the cor­rupt chief and band coun­cil (Part I)”, âpi­htawiko­sisân (15 February 2016). See also Catherine Bell & Robert Paterson, eds, Protection of First Nations Cultural Heritage: Laws, Policy, and Reform (Vancouver: UBC Press, 2009) (“even when Western law is used as a tool to em­pow­er [I]ndige­nous peo­ples, it cap­tures their law” at 14). Post-Vavilov, courts will be re­view­ing the rea­sons of de­ci­sion-mak­ers with height­ened scruti­ny. Could this cut into the sphere of def­er­ence carved out by Pastion for Indigenous de­ci­sion-mak­ers? I think it does not.

The Court in Vavilov lists var­i­ous fac­tors that in­form the scopeAlthough, not literally a range. of what is rea­son­able: the statu­to­ry scheme, com­mon law, in­ter­na­tion­al law, ev­i­dence, sub­mis­sions, past prac­tice, etc. While Pastion rec­og­nized a man­date to give “def­er­ence to­wards Indigenous de­ci­sion-mak­ers tasked with ap­ply­ing Indigenous laws,” Indigenous law is not men­tioned by the Court at all in Vavilov. But I think Vavilov leaves the hold­ing in Pastion un­touched.

First, the Court did not claim to be pre­sent­ing an ex­haus­tive list of fac­torsCanada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“[i]t is un­nec­es­sary to cat­a­logue all of the le­gal or fac­tu­al con­sid­er­a­tions that could con­strain an ad­min­is­tra­tive de­ci­sion mak­er in a par­tic­u­lar case” at para 106). and em­pha­sized that “each de­ci­sion must be [justified and eval­u­at­ed] in re­la­tion to its own par­tic­u­lar con­text.”Ibid at para 90.

Second, courts are also not to as­sume that they are the tar­get au­di­ence of the rea­sons. “[T]he de­ci­sion must... be justified... to those to whom the de­ci­sion ap­plies... [E]xer­cise of pub­lic pow­er must be justified, in­tel­li­gi­ble and trans­par­ent, not in the ab­stract, but to the in­di­vid­u­als sub­ject to it.”Ibid at paras 86, 95.

And last, para­graph 93 of Vavilov echos para­graph 22 of Pastion:

An ad­min­is­tra­tive de­ci­sion mak­er may de­mon­strate through its rea­sons that a giv­en de­ci­sion was made by bring­ing that in­sti­tu­tion­al ex­per­tise and ex­pe­ri­ence to bear. In con­duct­ing rea­son­able­ness re­view, judges should be at­ten­tive to the ap­pli­ca­tion by de­ci­sion mak­ers of spe­cial­ized knowl­edge, as de­mon­strat­ed by their rea­sons. Respectful at­ten­tion to a de­ci­sion mak­er’s de­mon­strat­ed ex­per­tise may re­veal to a re­view­ing court that an out­come that might be puz­zling or coun­ter­in­tu­itive on its face nev­er­the­less ac­cords with the pur­pos­es and prac­ti­cal re­al­i­ties of the rel­e­vant ad­min­is­tra­tive regime and rep­re­sents a rea­son­able ap­proach giv­en the con­se­quences and the op­er­a­tion­al im­pact of the de­ci­sion. This de­mon­strat­ed ex­pe­ri­ence and ex­per­tise may also ex­plain why a giv­en is­sue is treat­ed in less de­tail. (Vavilov at para 93.)

Many forms of knowl­edge may be grouped un­der the head­ing of “ex­per­tise.” Indigenous de­ci­sion-mak­ers are ob­vi­ous­ly in a bet­ter po­si­tion than non-Indigenous courts to un­der­stand Indigenous le­gal tra­di­tions. They are par­tic­u­lar­ly well-placed to un­der­stand the pur­pos­es that Indigenous laws pur­sue. They are also sen­si­tive to Indigenous ex­pe­ri­ence gen­er­al­ly and to the con­di­tions of the par­tic­u­lar na­tion or com­mu­ni­ty in­volved in the de­ci­sion. They may be able to take ju­di­cial no­tice of facts that are ob­vi­ous and in­dis­putable to the mem­bers of that par­tic­u­lar com­mu­ni­ty or na­tion, which this Court may be un­aware of. Indeed, for many Indigenous peo­ples, a per­son is best placed to make a de­ci­sion if that per­son has close knowl­edge of the sit­u­a­tion at is­sue. (Pastion at para 22.)