Proving Ethnicity: Aboriginal Rights and Administrative Process

Members of Canada's First Nations have, if they can satisfy the significant evidentiary thresholds, potentially broad rights to engage in traditional practices such as hunting and fishing. At issue in L=Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12 was the administrative structure erected by the province of Alberta to regulate the issuing of fishing licences to members of First Nations. In particular, the provincial government's policy provides that recognition as a member of a First Nation does not automatically entitle an individual to exercise the aboriginal rights protected by s. 35 of the Constitution Act, 1982.

Medical Marijuana and Fettering Discretion

One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:

1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.

These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

Administrative Policies Must be Reasonable

Administrative agencies are generally entitled to develop policies. Doing so assists agencies in discharging their statutory mandates in a coherent and consistent manner. Those who come into contact with agencies also benefit: it ought to be easier to predict the application of a general rule than the exercise of discretion.

From the Court of Appeal of Saskatchewan comes a reminder that the power to develop policies is not unlimited. In particular, policies must be consistent with the statutory provisions they purport to implement.