What is the influence of principles applicable to the interpretation of modern treaties, if any, on the Court’s approach to the review of a Minister’s decision?

Par Rosine Faucher, avocate

What standard of review applies to a Minister’s decision taken according to a modern treaty between Indigenous Peoples and the Crown? The decision Makivik Corporation v. Canada (Attorney General), 2021 FCA 184 provides an answer. Correctness is the standard that should apply to the Minister’s decision on matters of treaty interpretation, scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 and procedural fairness. Decisions not pertaining to these categories call for applying the reasonableness standard.

Context

Note: More parties and agreements were involved in this case than those mentioned below. We however focus on the following for the sake of discussion.

On October 19, 2016, the Minister of Environment and Climate Change Canada (Minister) made the decision, under the Nunavik Inuit Land Claims Agreement (NILCA or treaty), to vary the Nunavik Marine Region Wildlife Board’s decision regarding the Southern Hudson Bay polar bear subpopulation within the Nunavik Marine Region. The Minister’s decision reduced the Total Allowable Take from 28 to 23 polar bears and established non-quota limitations for their harvesting. The Minister’s decision was the first of its kind under NILCA.

NILCA is a treaty between the Nunavik Inuit, represented by the Appellant Makivik Corporation, and the Government of Canada. Among other things, NILCA provides a decision-making regime for wildlife management. Rights granted by NILCA to the Nunavut Inuit are constitutionally protected by section 35 of the Constitution Act, 1982.

Makivik Corporation brought an application for judicial review of the Minister’s decision in the Federal Court. The application was dismissed. Despite finding fault with the Minister’s decision, Favel J. did not grant declaratory relief because he deemed premature for the Court to intervene in the relationship between the parties following the principle of judicial forbearance applicable in such treaty context (Makivik Corporation v. Canada (Environment and Climate Change), 2019 FC 1297). Makivik Corporation et al. appealed the Federal Court’s decision.

Decision

The Federal Court of Appeal (Court) allowed Makivik Corporation’s appeal in part, declaring that the Crown had failed to interpret and implement the decision-making process provided for in NILCA to determine the total allowable take and non-quota limitations for the Southern Hudson Bay subpopulation of polar bears in accordance with the honour of the Crown.

The Court explores many facets of the aforementioned decision process through its decision. We focus below on its discussion regarding the standard of review applicable to the Minister’s decision.

The application judge concluded that whether the Minister adhered to the decision-making process under NILCA called for the application of the correctness standard while the Minister’s decision as a whole should be analyzed according to the reasonableness standard.

The appellate Court’s methodology to analyze the applicable standard of review departs from the application judge’s since the latter was made prior to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. It concludes that correctness is the standard that should apply to the Minister’s decision on matters of treaty interpretation, scope of aboriginal and treaty rights under section 35 and procedural fairness. However, decisions outside these categories call for applying the reasonableness standard.

The Court’s position, it writes, is consistent with Vavilov as matters pertaining to the scope of Aboriginal and treaty rights under section 35 and procedural fairness fall under the correctness standard according to this Supreme Court decision. The Court also reminds the parties that Vavilov does not edict applicable standard of review solely in the context of administrative matter. Rather, because treaties between Indigenous Peoples and the Crown are aimed to bring Aboriginal and non-Aboriginal relations in the mainstream legal system, which includes administrative law, administrative law too can be used to give full weight to Indigenous Peoples’ constitutional interests.

Further, applying the standard of correctness in this context is consistent with First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 in which the Supreme Court also applied this standard. The Court goes on to write that considering the reconciliation vocation of modern treaties, the meaning brought forward by one of the treaty parties cannot determine how the treaty should apply to all parties or the rights it confers:

[81] As the Supreme Court stated in Nacho Nyak Dun, “modern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership”: at para. 33. Deferring to one “partner’s” view of the meaning of or compliance with the treaty would be inconsistent with the nature of that relationship [our emphasis].

The Court ends its standard of review discussion by making a determination on a related issue brought forth by the parties, affirming that the Minister can vary or reject the Nunavik Marine Region Wildlife Board’s decision, and that its ability to do so is not restrained to when the Board’s decision is unreasonable or unlawful.

Commentary

Although the Honour of the Crown principle is not specifically mentioned in this section of the decision, the Court alludes to the role courts should play in the context of the application of modern treaties between Indigenous Peoples and the Crowns. Both the application judge and the appellate Court reiterate the principle set out by the Supreme Court in First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 that courts should practice judicial forbearance from closely supervising the conduct of parties to modern treaties established between Indigenous peoples and the Crown.

The appellate Court however also suggests being mindful that in order for courts to ensure constitutional compliance, judicial forbearance should not come at the expense of adequate scrutiny of the Crown’s conduct. This may explain why, unlike the application judge, it felt more comfortable granting declaratory relief.

The full decision can be found here.

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