Supreme Court of Canada –  3 S.C.R. 627
The Native Women’s Association of Canada asked to be treated in the same way as other native organizations in terms of financing and constitutional consultation.
The Court rejected its request, in part because women were also represented by the other organizations, and because NWAC does not represent all aboriginal women. The Court also noted that section 35 of the Constitution Act, 1982 does not give Aboriginals a right to be consulted in constitutional negotiations.
Does the Charter create an obligation for the federal government to allocate funding to Aboriginal women’s groups, equal to that given to their male-dominated counterparts, and is the federal government violating the Charter if it does not include a group representing Aboriginal women in the negotiations on constitutional reform?
The Charter does not impose the federal government to finance the Native Women’s Association the same way it does for other native organizations, and it does not have to include NWAC in constitutional negotiations either (unanimous decision).
Between: the Crown of Canada
And: Native Women’s Association of Canada, Gail Stacey-Moore and Sharon McIvor
Interveners: Inuit Tapirisat of Canada, Native Council of Canada, Métis National Council and Assembly of First Nations
The Native Women’s Association of Canada (NWAC) was created in 1974. Numerous Aboriginal women felt that national and provincial Aboriginal organizations were not representing their views after the latter supported the federal government’s arguments in Lavell.
In 1991, to support members of First Nations’ participation in the constitutional negotiations of Charlottetown, the federal government set out to endow four national Aboriginal organizations, the Assembly of First Nations (AFN), NCC, MNC and the Inuit Tapirisat of Canada (ITC), with $10 million through contribution agreements. As part of the agreements, the four organizations had to earmark part of this sum for women’s issues. AFN and NCC each paid $130,000 to NWAC. NWAC also received funding from the federal government for a study of the Charter ($300,000). Sharon McIvor was named NWAC representative to the AFN Constitutional Commission.
In February 1992, NWAC made a request for funding and asked to participate in the negotiations. Out of concern for Aboriginal women’s equality, NWAC defended the idea that any form of self-government chosen for the amendment should meet the requirements of the Charter, an approach that was not always shared by national Aboriginal organizations. The demand was rejected on the basis that the organizations already at the negotiation table represented the interests of both Aboriginal men and women and were already funded through the Contribution Agreements.
In March 1992, the minister Responsible for Constitutional Affairs and the four national Aboriginal organizations (AFN, NCC, ITC and MNC) held meetings to discuss the constitutional amendments concerning Aboriginal people. NWAC was not part of those meetings; only McIvor acted as the Association’s representative to the AFN.
NWAC initiated proceedings against the federal government in Federal Court in order to obtain an order prohibiting it from allocating more funds through the contribution agreements until it was given equal funding and a seat at the constitutional table on the grounds that the unequal disbursement of funds was discriminatory to Aboriginal women.
NWAC: The government policy of funding the four national organizations, which were male-dominated groups, and the subsequent failure to provide NWAC with equal funding, were violations of their freedom of expression and right to equality.
The Crown of Canada: The allocation of funds does not prevent groups from expressing their views. In addition, they maintained that the decision not to fund NWAC does not constitute a discriminatory action.
The Interveners (NCC and MNC intervened in Federal Court and in the Federal Court of Appeal; AFN intervened only in the Supreme Court): They provided factual information. MNC and ITC argued that NWAC does not represent and speak for Métis and Inuit women. NCC argued that they were favourable to the application of the Charter to Aboriginal self-government, but that the question should be left to each Nation. AFN argued that they rejected the application of the Charter to future Aboriginal self-government, not because it protected sexual equality, but because it contained no protection of First Nations’ languages, cultures and traditions.
Federal Court, Trial Division (1992): There was no violation of NWAC’s freedom of expression because the organization has had opportunities to raise Aboriginal women’s issues to the public, to policy-makers and to the four national Aboriginal organizations. Freedom of expression does not include the right for every individual to be present during constitutional discussions; if it did, negotiations would be paralyzed. There was no discrimination based on sex on the part of the federal government in its funds allocation procedure, even though NWAC had received a disproportionate share. NWAC’s concern about the non-application of the Charter to Aboriginal governments was purely speculative. The action is dismissed.
Federal Court of Appeal (1992): The government’s funding policy was contrary to the Charter because it gave the views of the male-dominated Aboriginal groups a favourable position as they were the only ones at the negotiation table; therefore, the Aboriginal women’s freedom of expression was restricted. Nevertheless, NWAC’s action was be dismissed because a violation of the Charter does not necessarily mean that equal funding should be allocated, and, also, the federal government was no longer at the negotiation stage.
Sopinka, Lamer, La Forest, Gonthier, Cory, Iacobucci, Major, L’Heureux-Dubé, McLachlin
Sopinka (Lamer, La Forest, Gonthier, Cory, Iacobucci and Major): The non-allocation of funds to NWAC and the refusal to grant it a seat at the negotiation table do not constitute a breach of the freedom of expression. The Charter does not create a positive duty on the part of the government to fund and consult anyone. The notion of equal access to government through freedom of expression does not impose a particular choice of advisors on the government or a requirement that it open the discussion to every individual wanting his or her point of view to be heard.
The only limitation set by the Charter concerning access to government is that if the government decides to allocate funding, the funding cannot be distributed in a discriminatory fashion. In this case, there is no evidence to that. There is no evidence that NWAC speaks for all Aboriginal women. Their viewpoints can be represented efficiently by the four national Aboriginal organizations because some of them (MNC, ITC and, to an extent, NCC) were also in favour of the application of the Charter to Aboriginal self-government. Furthermore, NWAC was a participant in the negotiations by contributing to the parallel process, by its seat on the AFN Constitutional Commission and by the opportunities it had to discuss its group’s views on the constitutional amendment with representatives of the four national organizations.
Furthermore, section 35 of the Constitution Act, 1982 does not protect aboriginal peoples’ right to participate in constitutional negotiations. It does not apply.
L’Heureux-Dubé: When the government gives to some the means to express themselves, it should do so in a non-discriminatory way. In this case, it is true that NWAC’s freedom of expression was not breached.
McLachlin: The government has the freedom to choose and fund its advisors on matters of policy any way that it sees fit. It is not subject to the Charter based on the doctrine that The King can do no wrong.
The Charlottetown Accord was defeated in a country-wide referendum in 1992, which means that the amendment concerning Aboriginal self-government never became law, but there was a silver lining. This was the first time that Aboriginal organizations were participating in constitutional negotiations on the same footing as provincial and federal premiers and prime ministers. By agreeing to this amendment, the two levels of government were recognizing, in some way, Aboriginal people’s inherent right to self-government.
NWAC was one of the 2,097 interveners before the Royal Commission on Aboriginal Peoples (RCAP), where it raised issues important to Aboriginal women: poverty, violence, discrimination, etc. In 1996, the RCAP issued its final report, and the fourth volume, Perspectives and Realities, specifically addressed Aboriginal women’s issues. Through consultations, the Commission outlined the most important effects of Indian policy on women and the main concerns of Aboriginal women (Genin-Charette, 2009).
In 1995, the federal government adopted the Federal Plan for Gender Equality. In accordance with the goals set by the Federal Plan of bridging the gap between men and women by implementing gender-equality analysis in the Department of Indian and Northern Affairs, the Office of the Senior Advisor on Women’s Issues and Gender Equality was created in 1998. Its mandate was to put into effect in the Department a gender-equality analysis policy relating to Aboriginal peoples, the Department of Indian Affairs and Northern Development’s Policy on Gender Equality Analysis.
To determine the appropriate approach, the Office worked with Justice Canada, Human Resource Development Canada, Status of Women, the Canadian International Development Agency, the AFN Women’s Secretariat and NWAC. After its creation, the Office continued to work closely with the AFN Women’s Secretariat, NWAC and Pauktuutit (an organization representing Inuit women) (Indian and Northern Affairs Canada, 1999). As of today, the policy is still in place (Indian and Northern Affairs Canada, 2009).
Indian and Northern Affairs Canada Department of. 1999. Gender Equality Analysis Policy. On-line. http://dsp-psd.pwgsc.gc.ca/Collection/R72-274-1999E.pdf. Consulted July 21, 2009.
Indian and Northern Affairs Canada Department of. 2009. Indian and Northern Affairs Canada’s GBA Policy. On-line. http://www.ainc-inac.gc.ca/ai/gba/plc-eng.asp. Consulted July 21, 2009.
Genin-Charette Anne-Marie. 2009. La Commission royale d’enquête sur les peuples autochtones (unpublished).
Hogg Peter W. 2008. Constitutional Law of Canada, Student Edition 2008. Scarborough: Thomson Carswell.