vavilov-and-pastion.html.pm

#lang pollen

◊define-meta[page-title]{◊@{◊em{Vavilov} and Indigenous self-government}}
◊define-meta[short-title]{◊@{◊em{Vavilov} and ◊em{Pastion}}}
◊define-meta[original-date]{2020-01-12}
◊define-meta[edited-date]{2020-01-19}
◊define-meta[snippet]{How Vavilov does not undercut Indigenous self-government}

◊declare-work[#:id "Vavilov" #:type "legal-case" #:title "Canada
(Minister of Citizenship and Immigration) v. Vavilov" #:citation "2019
SCC 65" #:short-form "*Vavilov*" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18078/index.do"]

◊declare-work[#:id "Vowel" #:type "magazine/news" #:title "The myth of
the corrupt chief and band council (Part I)" #:publication
"âpihtawikosisân" #:author "Chelsea Vowel" #:date "15 February 2016"
#:url
"https://apihtawikosisan.com/2016/02/the-myth-of-the-corrupt-chief-and-band-council-part-i/"]

◊declare-work[#:id "Bell" #:type "book" #:author "Catherine Bell"
#:author2-given "Robert" #:author2-family "Paterson" #:editors? "yes"
#:title "Protection of First Nations Cultural Heritage: Laws, Policy,
and Reform" #:year "2009" #:publisher "UBC Press" #:publisher-location
"Vancouver"]

◊declare-work[#:id "Pastion" #:type "legal-case" #:title "Pastion v
Dene Tha' First Nation" #:citation "2018 FC 648" #:url
"https://www.canlii.org/en/ca/fct/doc/2018/2018fc648/2018fc648.html"
#:short-form "Pastion"]

There has been optimism that ◊em{Pastion v Dene Tha' First
Nation}◊note-cite["Pastion"] makes space for Indigenous
self-government within Canada's administrative state.◊note[#:expanded
"yes"]{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["Vowel"] ◊see-also["Bell" #:parenthetical "\"even
when Western law is used as a tool to empower [I]ndigenous peoples, it
captures their law\"" #:pinpoint "14"]} Post-◊em{Vavilov}, courts will
be reviewing the reasons of decision-makers with heightened
scrutiny. Could this cut into the sphere of deference carved out by
◊em{Pastion} for Indigenous decision-makers? I think it does not.

The Court in ◊em{Vavilov} lists various factors that inform the
scope◊note{Although, not literally a ◊em{range}.} of what is
reasonable: the statutory scheme, common law, international law,
evidence, submissions, past practice, etc. While ◊em{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 ◊em{Vavilov}. But I think
◊em{Vavilov} leaves the holding in ◊em{Pastion} untouched.

First, the Court did not claim to be presenting an exhaustive list of
factors◊note[#:expanded "yes"]{◊cite["Vavilov" #:pinpoint "para 106"
#:parenthetical "\"[i]t is unnecessary to catalogue all of the legal
or factual considerations that could constrain an administrative
decision maker in a particular case\""]} and emphasized that "each
decision must be [justified and evaluated] in relation to its own
particular context."◊note-cite["Vavilov" #:pinpoint "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."◊note-cite["Vavilov" #:pinpoint
"paras 86, 95"]

And last, paragraph 93 of ◊em{Vavilov} echos paragraph 22 of
◊em{Pastion}:

◊q{ 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. (◊em{Vavilov} at para 93.)}

◊q{ 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. (◊em{Pastion} at para 22.)
}