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Indigenous - Judicial Review and Appeals. Attawapiskat First Nation v. Ontario [SOR - JR]
In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court considered standards of review as applicable to indigenous judicial reviews (correctness for law):[43] This court has jurisdiction over this application for judicial review by virtue of ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[44] On judicial review, questions of law are reviewable on a standard of correctness. Questions of fact are reviewable on a standard of reasonableness. Questions of mixed fact and law will generally involve some deference towards the decision-maker, based on the extent to which the issue is one of fact or one of law: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, paras. 60-63; Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, 2010 SCC 53, para. 48; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.
[45] 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: Haida Nation, para. 63; Ka’A’Gee Tu First Nation v. Canada (A.G.), 2012 FC 297, para. 89; Nunatsiavut v. Canada (A.G.), 2015 FC 492. Thus, if the Crown misconceives the seriousness of a claim or the impact of infringement, this will be reviewable on a standard of correctness: Haida Nation, para. 63; Enge (North Slave Métis Alliance) v. Mandeville, 2013 NWTSC 33, para. 26. That said, “scoping” the duty to consult can involve questions of fact, and where it does, the Crown’s factual findings are to be reviewed on a standard of reasonableness: Haida Nation, para. 61.
[46] The “effect of good faith consultation may be to reveal a duty to accommodate” (Haida Nation, para. 47; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025; R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, para. 54). The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness: Haida Nation, para. 61-62; Enge v. Mandeville, para. 27.
[47] Process decisions of the Crown may be revisited in light of new information or circumstances. The standard of reasonableness will generally require the Crown to keep the First Nation advised of process changes and reasons for process changes so that the process is coherent and systematic and is seen to be fair and not arbitrary: Saugeen Ojibway Nation v. Ontario, 2017 ONSC 3456, para. 136 (Div. Ct.). . Attawapiskat First Nation v. Ontario [fresh evidence]
In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court set out the fresh evidence rule as applicable to native judicial reviews:[53] On an application for judicial review, the record is generally restricted to what was before the decision-maker at the time the decision was made. A judicial review is not a de novo hearing. Nonetheless, fresh evidence may be admitted in certain circumstances, including where it is relevant to the scope and content of the duty to consult and accommodate and whether the duty was fulfilled: Liidlii Kue First Nation v. Canada (Attorney General), 2000 CanLII 15881 (FC), [2000] 4 C.N.L.R. 123 (F.C.), at paras. 31-32; Sipekne’katik v. Nova Scotia (Environment), 2016 NSSC 260; Chartrand v. The District Manager, 2013 BCSC 1068, at paras. 112-117, varied on other grounds, 2015 BCCA 345.
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