Diagnosing Administrative Law: A Comment on Clyde River and Chippewas of the Thames First Nation

Abstract

This paper examines the current state of administrative law and the law on the duty to consult in Canada, as revealed through the Supreme Court of Canada's 2017 decisions of Clyde River and Chippewas of the Thames. It argues that these two decisions are not only influenced by broader trends in public law, but also reveal new concerns with those trends that are significant for the future of consultation and of administrative law more generally.

To make this argument, this paper proceeds in four parts. It first points to three shifts in the public law jurisprudence that disclose a narrative of confidence in the administrative state. Second, it shows how Clyde River and Chippewas of the Thames continue, and indeed advance, this narrative of confidence. Third, it contends that Clyde River and Chippewas of the Thames expose some of the concerns with judicial confidence in the administrative state for broader issues of public law. It focuses on two concerns: (1) distraction from the role and responsibilities of all state institutions, including the legislatures, in reconciliation, statecraft, and institutional design; and (2) the pathologies of continued reliance on categories of question in the standard of review analysis. The paper concludes by arguing that confidence in the administrative state must be accompanied by a healthy vigilance and skepticism or else it risks substituting confidence with idealism. The Court's reasoning in Clyde River and Chippewas of the Thames reveal the importance of a demanding expectation for reason-giving by administrative actors in avoiding such an idealistic age of administrative law.

Keywords: Administrative Law, Duty to Consult, Regulatory State, Standard of Review, Duty to Give Reasons, Rule of Law