Vavilov and the Duty to Consult – Q&A

At the end of 2019, the Supreme Court of Canada issued their decision in Vavilov v. Canada (Minister of Citizenship and Immigration) and the combined companion cases of Bell Canada v. Canada (Attorney General) and NFL v. Canada (Attorney General). In these cases, the Court created a new framework for determining the standard of review in administrative law. The standard of review is something that is used by the courts when they are asked to review the decision of an administrative body (like the Canada Energy Regulator, formerly the National Energy Board, or the CRTC) that tells the Court how to approach their review of the decision. Vavilov determined that there is a presumption of “reasonableness” review for most administrative decisions, but that there are certain categories to which a “correctness” review applies. In a correctness review, if a decision-maker makes a mistake, the Court will supply its own view of the correct answer instead. In a reasonableness review, the decision-maker is given more leeway and the Court instead focuses on whether the reasons given for a decision are logical and adequately support it. The Court also restated the principles relating to reasonableness reviews, bringing past approaches together in one place. This post will address how Vavilov might impact a judge’s approach to the duty to consult in future cases in this contested area of Aboriginal law and some new opportunities it provides Indigenous groups challenging an administrative decision for failing to discharge their duty to consult.

Q. Hang on, what is the duty to consult?

A.  The duty to consult is a duty the government owes to Indigenous groups to discuss certain decisions with them. The duty to consult was created by the Supreme Court in 2004 in the Haida Nation v. British Columbia (Minister of Forests) case. The Haida are an Indigenous group in B.C. who have claimed the island of Haida Gwaii as their traditional territory for over 100 years. The dispute in the case was about the B.C. provincial government’s transfer of tree farm licenses to a company called Weyerhaeuser for large portions of the island of Haida Gwaii off the B.C. coast. They did this without consulting the Haida and despite their specific objections to the renewal and transfer of these licenses.

In the case, the Supreme Court held that both the provincial and federal governments have a duty to consult an Indigenous group if three requirements are met:

1. The Crown has knowledge, actual or constructive, of a potential Aboriginal claim or right.

2. The Crown is contemplating conduct.

3. The contemplated conduct might adversely affect the Aboriginal claim or right.

 Q.  What does the government have to do to fulfill the duty to consult?

A.  The Court also stated that what this duty entails falls on a spectrum. At the low end, the government must do no more than provide notice of the contemplated action to the Indigenous group, as well as information about the project and its potential impacts. At the high end of the spectrum, deep consultation would require participation in the process, funding to do so, and written reasons given to the Indigenous group demonstrating that their concerns were heard, understood, and accommodated when possible. Where a particular situation falls on the spectrum is determined by two things:

1. The strength of the claim on a preliminary assessment; and

2. The seriousness of the potential adverse impact on the claimed right or title.

Q. Wait a minute… this is all about Aboriginal rights, what does administrative law have to do with it?

A.  While the Court has repeatedly stated that the duty to consult stems from the honour of the Crown and the constitutional protection given to Aboriginal rights under section 35 of the Constitution Act, 1982, they needed to find a way to assess whether the government has discharged its duty to an Indigenous group in a given situation. Because B.C. doesn’t have a process for assessing this type of consultation (neither does any other province), the Court decided to turn to administrative law principles for guidance on how to review these processes and their related decisions.

Q.  So, how does a court use administrative law when analyzing the duty to consult?

A.  The Court made two important statements about using administrative law concepts when reviewing whether a government has fulfilled its duty to consult. First, they stated that a government’s assessment of where on the spectrum their duty to consult in a particular situation falls will be judged on the standard of correctness. This means that if the government makes a mistake in assessing the seriousness of the claim or the seriousness of the potential adverse impact, the Court will substitute its own determination of the right answer for the government’s. However, the Court also held that the facts underlying this question are subject to the reasonableness standard. A reasonableness standard means more leeway is given to the decision-maker and the Court won’t substitute their own view of what the correct answer is. Second, they stated that, if the government was correct about the scope of the duty owed to the Indigenous group, the adequacy of the process they followed in the consultation would also be assessed on a reasonableness standard. 

Q.  Alright, administrative law matters in the duty to consult.  How does Vavilov change things?

A.  Well, right now, it’s a little unclear exactly how courts will apply Vavilov in the duty to consult process. In the rest of this post, I will outline a few things Vavilov may have clarified (or not). First, I’ll explain how Vavilov might impact correctness reviews of government decisions on the scope of the duty to consult and reviews of the findings of fact underlying those decisions. I’ll also talk about how some of the principles the Court discusses for reasonableness reviews in Vavilov can help guide Indigenous groups in framing their arguments when they are challenging a government for failing to adequately discharge their duty to consult for a particular decision.

Q.  OK, so what did Vavilov do for government decisions on the scope of the duty?

A.  While the Court has held that the government’s assessment of where on the spectrum a duty falls is assessed on a correctness standard, in practice it wasn’t always quite so simple. There were a couple of issues that cropped up in cases where the duty to consult was considered. First, sometimes the reasonableness review of the facts underlying a decision on the scope of the duty bled into that decision, with courts reluctant to impose what they saw as the correct answer in the place of a government’s decision. Vavilov might have helped with this. In its decision, the majority of the Court held that constitutional questions “including the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts" and so require a correctness standard. This indicate that the scope of the duty should be determined on a correctness standard. But the "final and determinate answer" part makes the certainty of that a bit questionable because the scope of the duty to consult has to be determined on a case-by-case basis. At the very least, it’s another tool Indigenous groups can use to argue for a correctness standard on government decisions about the scope of the duty.

Q.  You said a couple of issues, what’s the other one?

A.  The second issue arises when there is a challenge to the facts on which a decision about scope is based. Vavilov made a big shift in how the standard of review is determined by removing the expertise of the decision-maker from being a factor in choosing the standard. Instead, they shifted it over to play a role in how a court determines the reasonableness of the decision. How that will play into how a court analyzes a decision on the scope of the duty is unclear. As previously mentioned, it seems that the question about the scope of consultation required is analyzed on the correctness standard, where a court will substitute their own answer if they think the decision-maker made the wrong one. But the facts that the decision about scope is based on is assessed on a reasonableness standard, where more room is given to the decision-maker to justify their decision on its own terms. If that’s the case, then the expertise of a decision-maker in determining the strength of an Indigenous rights claim could be challenged, but an Indigenous group would probably need to demonstrate other issues with the decision to get the court to overturn it. If those issues could be linked to the lack of expertise it would be even more effective.

But, of course, there’s one more twist: Vavilov also held that one of the ways that the presumption of reasonableness is rebutted (a statutory right of appeal) is governed by the normal standards a court uses in assessing the decision of a lower court. In that case, findings of fact by the judge are only overturned if there is a “palpable and overriding error.” This is an even higher standard than reasonableness, meaning there must be absolutely no way the judge could have made that finding from the evidence in front of him. If this approach applies to all the cases where a correctness review applies, then it will be extraordinarily hard to challenge the findings of fact on which the decision about scope is based.

Q.  Y’know, none of this really sounds great, I thought you said Vavilov did some good things?

A.  It did! The most helpful part of Vavilov for Indigenous groups under the duty to consult is their description of what a “reasonable” decision looks like and some common problems with decisions that make them unreasonable. Vavilov didn’t rewrite the book for reasonableness reviews and reasonable decisions, but it brought together a bunch of common ideas and principles in one place and organized them in a way that the Court thinks is effective, which provides a great template for Indigenous groups challenging duty to consult decisions. This is most useful for decisions where reasons for the decision were provided, which is usually the case in duty to consult cases, especially at any courts above the lowest level.

Q.  OK, so what does a reasonable decision look like?

A.  Vavilov didn’t say anything new here but confirmed that a reasonable decision has three characteristics: Justification, transparency, and intelligibility. Justification means that a decision-maker must show how they got to their conclusion and that it makes sense in the legal and factual context it was made in. Transparency means that the decision maker’s reasons must be available to the affected parties so they can know how the decision was made. Intelligibility means that the way the decision-maker got to their conclusion has to be clear to the reader based on the reasons provided. Both of the potential flaws the Court outlines and the ways in which those problems may come up (which I’ll talk about next), involve a decision failing to have one of those characteristics.

Q.  And these common problems with decisions are?

A.  The Court identified two examples of common flaws with a decision that make them unreasonable. This doesn’t mean there aren’t others, these are just seen more frequently.  The first is a lack of “internally coherent reasoning,” and the second is a lack of justification related to the legal and factual context the decision was made in. I’ll expand a bit more on each of those below, but, before I do, I also wanted to mention that the Court was very clear to say that the person challenging a decision has the “burden” of demonstrating the flaw. That means they need to show a court where the flaw is in the decision and explain why it is a problem. They also note that these issues must be “central or significant” to the decision and not just something peripheral to or on the edges of it.

Q.  So, how do you show a decision doesn’t have internally coherent reasoning?

A.  The decision doesn’t provide as much guidance for this error as for the other, but there are a few things that Indigenous groups can look for in decisions to try to demonstrate that it fails to meet the bar for coherent reasoning. The key for this flaw is to demonstrate that a decision isn’t rational or logical. To show this, a decision must have what the Court calls a “rational chain of analysis.” This basically means that it must be possible for the reasons the decision-maker offers to explain their conclusion. While the Court says it’s not a “line-by-line treasure hunt for error,” groups can look for common reasoning problems in decisions to challenge.  Things like circular reasoning (B because A, and A because B), false dilemmas (A or B, but not both when it could be both), unfounded generalizations (All As are B with no explanation why), or absurd premises (A is actually Z). The main focus should be whether all the reasons given in the decision could add up to the conclusion the decision-maker made, not whether there were other possible conclusions from those reasons. 

Q.  That doesn’t sound super clear either, is a lack of justification more straightforward?

A.  It is, actually! That doesn’t mean it’s easy, but the Court provided more effective guidance in how to show that a decision isn’t justified in the situation it’s made in. In particular, the Court outlined some “contextual factors” that are important to consider in making a decision. They’re careful to say it’s not a checklist that must be mentioned in every case, but they are common things decision-makers should be considering, although their importance will vary from case to case. They include:

• The legislation that gives the decision-maker its power;

• Other legislation or common law (judge-made law) that might impact the situation;

• “Statutory interpretation (i.e., the interpretation of these piece of legislation);

• The evidence the decision-maker has before it;

• The arguments the parties make;

• Past practices and decisions; and

• The impact of the decision on the affected individual or group.

One factor that may be particularly helpful to Indigenous groups is the impact of the decision on the affected individual or group, especially when the duty to consult is at the high end of the spectrum. Past practices and decisions can also be helpful, especially if the government followed a better consultation process in the past in a similar situation.

Q.  Well, that was a lot!

A. Yes, the Court’s process for reviewing the duty to consult is challenging. Vavilov hopefully cleared some things up and definitely helped show how errors that make a decision unreasonable can be demonstrated. How the Court applies Vavilov will develop over time, and I will discuss their first attempt in a subsequent post!