Simon's Legal Resources

Judicial Review - SoR - Exception - Indigenous

. Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks)

In Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks) (Div Court, 2022), Corbett J in the Divisional Court (writing in a dissent but here concurring), stated JR standards of review for the government's duty to consult with indigenous people and related matters:

Jurisdiction and Standard of Review

[6] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[12]

[7] Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties.[13] Thus if the Crown misconceives the seriousness of a claim or the impact of an infringement, this will be reviewable on a standard of correctness.[14] That said, “scoping” the duty to consult can involve questions of fact and, where it does, the Crown’s factual findings are reviewed on a standard of reasonableness.[15]

[8] The “effect of good faith consultation may be to reveal a duty to accommodate.”[16] The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.[17]