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

In Beckman v. Little Salmon/Carmacks, Binnie J. observed that administrative law processes and remedies are sufficiently nimble and robust to account for the constitutional rights and interests of Indigenous Peoples. The comment, directed to a procedural issue, disclosed a faith in existing frameworks of Canadian administrative law to compel government actors to act honourably and respond meaningfully when Indigenous communities are, or could be, affected by government action. This faith was not intended to diminish or downplay the constitutional character of the honour of the Crown or the duty to consult and accommodate. Rather, it affirmed that this principle and these duties are not only matters of interest to constitutional law, but are also of particular concern for the law of good government decision-making; that is, for administrative law. There was no need therefore, in Binnie J.’s conception of Canadian state public law, to develop novel constitutional remedies to address failures of consultation or dishonourable public decision-making practices. Rather, the remedies of administrative law, with their capacities to declare, quash and compel, already offered mechanisms for substantial redress and the pursuit of reconciliation