The Standard of Review and The Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov?
Following the Supreme Court of Canada’s landmark decision in Vavilov, an especially relevant issue in Canadian jurisprudence is how courts have applied Vavilov’s new standard of review framework. This article seeks to answer how the Vavilov framework affects decision-making regarding the duty to consult and accommodate. While Vavilov establishes a general presumption of reasonableness review for administrative decisions, it also carves out several exceptions to that presumption where the standard of correctness applies. The exception for section 35 Aboriginal and treaty rights under the Constitution Act, 1982 is relevant to the discussion in this paper, including what that exception means for cases involving the duty to consult and accommodate. Most cases involving duty to consult and accommodate questions regarding “trigger’ and “scope” have been reviewed on a correctness standard, while all other issues have been reviewed on a reasonableness standard. The authors argue that the logic in Vavilov suggests that a broader range of issues should be subject to the correctness standard than is currently the practice.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.