On November 24, 2022, legislative changes to the Judicial Review Procedure Act (the “JRPA”) brought section 22 into effect. This section allows for decisions of an Indigenous governing body concerning whether or not to give consent pursuant to agreements made under the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) to be judicially reviewed in Canadian courts.

DRIPA affirms the application of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) to the laws of British Columbia (section 2(a)), contributes to the implementation of UNDRIP (section 2(b)), and supports the affirmation of Indigenous governing bodies (section 2(c)). Relevant to the JRPA amendments, sections 6 and 7 of DRIPA contemplate agreements between British Columbia and Indigenous governing bodies as mechanisms for the exercise of joint, statutory decision making.

Through the recent amendment, the JRPA now applies to an Indigenous governing body’s “decision whether to give consent as if that decision were a statutory power” or “a statutory power of decision”, where that consent is required under an enactment to be sought or obtained pursuant to a section 6 or 7 agreement. An “enactment” in the phrase “If under an enactment” in section 22 means any enactment that implements a section 6 or 7 agreement.

By way of example, if an Indigenous governing body has entered into a section 7 agreement for the environmental assessment of a project and ultimately decides to not consent to that project, an affected party, such as the project proponent, could bring an application for judicial review of the Indigenous governing body’s decision pursuant to section 22. 

Many questions about section 22 remain unanswered and, as we explore below, it is uncertain whether section 22 will ultimately support or undermine legal pluralism and Indigenous rights of self-determination and self-governance.

What is a judicial review?

A judicial review is a process in which a court reviews a decision made by an administrative decision maker and is typically brought by those directly affected by the decision. A wide variety of entities or individuals are considered administrative decision makers, including tribunals, commissioners, boards, and agencies. In the context of Indigenous peoples, decision making bodies like band councils and election boards have historically been considered by colonial courts to be administrative decision makers whose decisions are subject to judicial review. (We note, however, that many Indigenous peoples continue to refuse to unquestioningly accept the courts’ jurisdiction over their decision-making bodies and processes.)

Importantly, the purpose of judicial reviews is to ensure that administrative decision makers are exercising their delegated authority in a manner consistent with what the legislature intended. In other words, judicial review is a court oversight mechanism – a check and balance on delegated authority aimed at upholding the rule of law.

Who is an Indigenous governing body?

There is no universally accepted definition of “Indigenous governing body”. Section 1 of the JRPA states that “Indigenous governing body” has the same meaning as in DRIPA, which, in turn, defines an “Indigenous governing body” as “an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982”. What or who ‘authorizes’ such an entity to act – or what entities are or are not captured in the concept of a rights-holder – remains unclear.

It is possible that this ambiguity is beneficial for Indigenous peoples and aligned with the right of self-determination and self-governance. Article 3 of UNDRIP affirms the right of Indigenous peoples to self-determination. By virtue of that right to self-determination, Article 4 affirms the right to self-governance and Article 5 affirms the right of Indigenous peoples to constitute themselves politically. These rights imbue the remaining articles of UNDRIP, including the repeated requirement that states’ consultation and cooperation with Indigenous peoples take place “through their own representative institutions” or “through representatives chosen by themselves in accordance with their own procedures” (see, for example , Articles 18, 19, 30, 32).

From the standpoint of self-determination, an Indigenous governing body is, quite simply, the leadership and organizational structure lawfully chosen and maintained by a particular Indigenous group in accordance with their laws, legal orders, traditions, and customs. In our experience, and for the purposes of a shared understanding between the provincial government and an Indigenous community, it is likely that whether that community’s chosen leadership and organizational structure will be considered an “Indigenous governing body” pursuant to provincial legislation is often determined on a case-by-case basis. Although this may give rise to frustrations, it avoids the trap of pan-Indigenizing political and government structures within Indigenous communities.

Consent and Indigenous legal orders

By entering into section 6 and 7 agreements pursuant to DRIPA, and exercising consent-based decision making, Indigenous governing bodies are not simply making political decisions. Rather, they are implementing Indigenous legal orders through legitimate legal processes in arriving at legally binding decisions. Upholding the rule of law requires recognition of such.

The rule of law is not a concept exclusive to Western legal traditions. On the contrary, Indigenous legal systems and orders consider the rule of law as a “fundamental guiding principle”.[1] Indeed, Indigenous legal orders are “concerned with the same human concerns as Canadian law including community safety, fairness, and accountability.”[2] Accordingly, we must start from the proposition that the exercise of consent-based decision making by Indigenous governing bodies is done in accordance with, and is aimed at upholding, the rule of law.

Thus, agreements made under section 6 and 7 decisions are best understood not as the exercise of a statutory power delegated by a provincial enactment, but rather, much more fundamentally, as legally binding agreements that span two parallel and equal legal orders: provincial and Indigenous. After all, “Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land.”[3] In fact, Canadian courts are now prepared to “recognize the existence of a rule of Indigenous law when it is shown to reflect the broad consensus of the membership of a First Nation.”[4] Recognizing and respecting the role of Indigenous legal orders in consent-based decision making fortifies the rule of law for all. 

What does this mean for Indigenous governing bodies?

British Columbia says that the changes to the JRPA are part of the implementation of DRIPA, and “will provide transparency and clarity for judicial reviews of decisions made under consent-based decision-making agreements with Indigenous Peoples”.

However, it is not clear what the ultimate outcomes of this legislative change will be for Indigenous peoples. Moreover, there are several fundamental and unanswered questions arising from this amendment:

• Are Indigenous governing bodies exercising inherent or delegated authority? Currently, under the Indian Act, persons can challenge the result of band elections and actions of council. The courts have traditionally treated Indigenous decision makers as actors exercising authority delegated by the Canadian government. However, the underlying assumption that Indigenous governments derive authority from colonial governments is fundamentally flawed and no longer widely accepted. Therefore, the question becomes: if, in making consent decisions, Indigenous governing bodies are exercising inherent rights of self-government and self-determination, is this reality compatible with the concept of delegated authority that is inherent in the purpose and process of judicial review?
• Do (and should) colonial courts have jurisdiction over the exercise of consent by Indigenous governing bodies? If Indigenous governing bodies are exercising inherent rights when making consent decisions, is it consistent with co-jurisdiction and self-determination to subject such decisions to judicial oversight?
• What is consent? If the consent decisions of Indigenous governing bodies can be judicially reviewed by colonial courts, what does consent actually mean and require?
• How will colonial courts determine whether an Indigenous governing body’s consent-based decision making was procedurally fair and what should the standard of review be? Will courts try to impose colonial concepts of fair procedure on Indigenous governing bodies’ processes for consent-based decision making? And, if courts do review the exercise of Indigenous governing bodies’ consent, how much deference will be afforded?
• How will the amendments to the JRPA interface with amendments to other provincial enactments? It is unclear how section 22 will impact or interact with newer amendments to the Child and Family Community Services Act (“CFCSA”)and the Adoption Act, both of which refer to the use of section 6 and 7 agreements (see Part 7, Division 1 of the CFCSA, and Part 6, Division 1 of the Adoption Act – see our previous blog on these amendment here).

We don’t currently know the answers to these questions – as with many legislative changes, it’s a waiting game to see how section 22 will be implemented. In the meantime, Indigenous governing bodies engaged in section 6 and 7 agreements should be mindful of documenting their consent-based decision-making processes and providing rationale for their decisions in the event that such decisions are judicially reviewed. However, more fundamentally, we should be questioning the ability to judicially review the exercise of consent-based decision making by Indigenous governing bodies – particularly when we properly understand consent as both a procedural and substantive element of Indigenous law and legal orders.

Want more?

Our team at MT+Co. works collaboratively in DRIPA and UNDRIP implementation to provide our Indigenous clients with the best possible representation and service. If you have any questions or comments relating to what we discussed above, feel free to reach out to Joelle Walker  or Hannah Park Roche from our Indigenous Law Group and our Litigation Group.

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[1] Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at ch 3. See also Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship (Ottawa: Minister of Supply and Services Canada, 1996) vol 2 at 119.

[2] Val Napoleon, “What is Indigenous Law? A Small Discussion”, University of Victoria (2016) at 3.

[3] Pastion v Dene Tha’ First Nation, 2018 FC 648 at para. 8.

[4] Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732 at para 32.