Indigenous self-government and the future of administrative law.

• Author: Sossin, Lorne

1. WHAT IS ABORIGINAL ADMINISTRATIVE LAW?

   A great deal of advocacy, adjudication, and analysis has focused on the Aboriginal right to self-government under the Canadian Constitution. (1) Very little attention, by contrast, has been devoted to what happens the day after self-government is achieved, when the focus shifts to implementing rather than achieving self-government. For example, will the institutions and mechanisms of executive government in an environment of Aboriginal self-government look similar to executive governments in other Canadian settings (municipal, provincial, and federal)? Will Aboriginal communities be governed by an executive divided into an elected and politically accountable leadership, and an independent and expert career public service? Alternately, will these communities be governed by some variation on this liberal democratic theme, or by an entirely new political and legal system (or by a revival of a customary political and legal system)? Will those people who are adversely affected by administrative and regulatory decisions by Aboriginal governments have the same recourses to the same kinds of bodies as in the rest of the country (that is, will Aboriginal agencies, boards, and commissions emerge as a parallel structure to the federal and provincial agencies, boards, and commissions)?

   To these questions, I offer an administrative law perspective. I leave it to scholars of Aboriginal law to provide an Aboriginal law perspective on these shared questions. (2) In my study, I embrace John Borrows' claim that Aboriginal law, along with the common law and civil law, are the founding legal traditions of Canada. (3) Each has an autonomous existence in Canada, but it is fair to say that what makes Canada a distinct, if not unique project, is the meaningful relationships between spheres of law. For example, the founding of Canada required interaction between principles of statutory and constitutional interpretation (and the adoption of the "living tree" approach to Canadian federalism). The introduction of the Charter of Rights and Freedoms (4) similarly led to intermingling between common law and fundamental rights (for example, the grafting of common law procedural fairness as the "principles of fundamental justice" under section 7 of the Charter). Aboriginal law and custom have been incorporated to some extent into the rights recognized through section 35 of the Constitution. Borrows is most concerned in his study with constitutional traditions. In this article, I explore the development of an autonomous Aboriginal administrative law and its relationship to Canadian administrative law, rooted in common law rights to fair and reasonable decision making on the part of executive officials.

   The term "Aboriginal administrative law" is meant to capture the mutually reinforcing aspects of Aboriginal and administrative legal principles. In the context of this discussion, it is presented as a distinctive branch of administrative law that is capable of responding to and incorporating concepts of fairness, independence, and accountability from Aboriginal governance contexts and institutions. Aboriginal administrative law is discussed as a pan-Aboriginal concept, encompassing sufficient flexibility to respond to differences in Aboriginal governance traditions and institutions. As well, reference to the achievement of self-government might involve "recognition" of self-government in current negotiation contexts, an affirmation of historic self-government activities, or achieving "negotiated" self-government that promises better recognition and implementation within Canada.

   With this context and these caveats in mind, I take the sphere of Aboriginal administrative law to capture at least three interrelated ideas.

   The first idea underlying Aboriginal administrative law relates to how Canadian administrative law principles and doctrines should be applied in Aboriginal settings (if at all). At first glance, the flexibility and contextual nature of the doctrines and principles of Canadian administrative law appear well-suited to adaptation by First Nations governance, and some of these principles and doctrines, by inertia or by choice, already have come to define early experiences with self-government. For example, the Nisga'a Lisim Administrative Review Tribunal looks like many other administrative tribunals throughout the country, as discussed below. Also, as a matter of Canadian administrative law, Aboriginal band decision making taken pursuant to the Indian Act (5) or other statutory powers are covered by administrative law doctrines, so in that sense, applying Canadian administrative law to Aboriginal decision making is a long-standing feature of the governance of Aboriginal peoples (explored in the discussion of the Matsqui decision below in section 2, "Independence").

   Further, the hallmark of Canadian administrative law is arguably its ability to develop approaches to questions of fairness, independence, and accountability to apply in disparate settings within the administrative state (for example, government departments, hospitals, prisons, universities, regulatory agencies, and adjudicative tribunals, to name a few of these settings).

   Do Aboriginal communities present a particularly distinct administrative setting in which to apply conventional administrative law doctrines, or do such communities require different doctrines altogether? An understanding of what constitutes a reasonable apprehension of bias developed in the context of a utility board (where, for example, a member makes public statements relating to the issue during hearings and may be perceived to have decided the issue before hearing all of the evidence) (6) may not be applied in the same way in the context of immigration decision making (where, for example, an immigration officer must consider the best interests of children in making a deportation decision and may be biased when expressing views contrary to a child's best interest). (7) Yet the same principles are held to govern each under Canadian administrative law.

   Principles of institutional independence forged in the setting of liquor regulation (8) are often applied in the setting of securities regulation. (9) Justice Louis Lebel once wrote that

   not all administrative bodies are the same. Indeed, this is an understatement. At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate. (10) Is there any difference in grafting similar approaches developed through the review of liquor and securities regulators to the governing institutions of First Nations, or must a framework be developed that is consistent with customs, traditions, spiritual beliefs, and historical realities of Aboriginal peoples? In other words, a discussion of Aboriginal administrative law necessarily engages the limits of pluralism in public law. It reveals the tension between those features of administrative law with a claim to universality, and those which may be reduced, ultimately, to a particular culture's view of justice at a particular time in its history.

   The second idea animating Aboriginal administrative law involves the kinds of administrative justice which should be developed by Aboriginal communities as they assume control over their own public institutions through mechanisms of self-government. Consider, for example, the analogous experience of Canada's most ambitious instance of indigenous self-government to date--the Nunavut Land Claims Agreement (NLCA)--out of which the territory of Nunavut was established in 1999. The NLCA specifies that the number of Inuit employed in the public service be representative of Inuits in Nunavut society. (11) This figure was set at 50 percent for 1 April 1999, and was intended to slowly increase to 85 percent to reflect the fact that Inuit comprise the overwhelming majority of Nunavut residents. As a result of the NLCA, the government of Nunavut is unique in its ability to make decisions in certain areas of jurisdiction typically reserved for the federal government in Canada's other territories. (12)

   Another way Aboriginal administrative law has been understood is through Aboriginal participation on administrative bodies outside Aboriginal communities, but whose decisions affect those communities. In Canada, comanagement boards represent an example of this phenomenon. Reservations about whether comanagement arrangements permit Aboriginal values to impact decision making echo the concerns of critical legal scholarship that transplanted legal instruments have a limited capacity for transformative political change. Can such regulatory and administrative settings, however, provide the space necessary for adaptation that can transform regulation to reflect local values?

   Sari Graben has explored how participatory processes have led to the adaptation of regulatory instruments that are, for all intents and purposes, a transplanted form of Aboriginal governance. (13) Using the case study of the Mackenzie Valley Environmental Impact Review Board, a comanagement board in Northern Canada, she describes how Aboriginal communities have provided input into the guidelines used by the Board and the impact of this participation. Furthermore, Graben finds those guidelines have proved instrumental in fostering private negotiation between Indigenous communities and industry as a central feature of environmental assessment.

   The third idea relates to the relationship between Aboriginal and Canadian systems. To take a familiar concept from administrative law, what level of deference should apply when Aboriginal decision making is impugned in...