Native Women's Assn. of Canada v. Canada: A Question of Positive Obligations

Updated: Oct 25

Ulfa Ismail

[1994] 3 SCR 627

Terms

Section 2(b): A section of the Canadian Charter of Rights and Freedoms which states that the freedom of thought, belief, opinion and expression, are fundamental freedoms, including when communicated through media.

Section 28: A section of the Canadian Charter of Rights and Freedoms which states that all rights outlined by the Charter are to be applied equally to male and female persons.

Section 15(1): A section of the Canadian Charter of Rights and Freedoms which declares that every individual, irrespective of their race, national or ethnic origin, colour, religion, sex, age, or mental or physical ability, has the right to equal treatment and protection under the law.

Section 35: A section of the Canadian Charter of Rights and Freedoms that recognizes and affirms existing aboriginal and treaty rights. In legal terms, “Aboriginal” refers to Inuit, Métis and First Nations persons in Canada who are entitled to registration.

BackgrounD

At Native Women's Association of Canada ("NWAC"), Gail Stacey-Moore was the chief elected officer, and Sharon Donna McIvor was an executive member for the West Region as well as the representative to the Assembly of First Nations Constitutional Commission. Both Stacy-Moore and McIvor did work advocating for the rights of Aboriginal women.

In September 1991, as per the Canada Round, the Canadian government outlined 28 proposals, one being the amendment of the Constitution in order to legislate the right to Aboriginal self-governance. Subsequently, members from the Senate and House of Commons were appointed to the Beaudoin-Dobbie Committee, a group tasked with analyzing and making recommendations to Parliament regarding the proposals.

To finance Aboriginal participation in constitutional negotiations, the federal government funded four Aboriginal groups; the Assembly of First Nations (AFN), the Native Council of Canada (NCC), the Metis National Council (MNC) and the Inuit Tapirisat of Canada (ITC).

Of the cumulative total of $10 million from the federal government, some portion was required to be directed towards women’s issues. Hence, although the Native Women's Association of Canada (NWAC) was not one of the four groups listed, the AFN and NCC each paid $130 000 to the NWAC. Additionally, the federal government provided $300 000 to the NWAC under a separate agreement unrelated to constitutional matters.

In the constitutional meetings that took place, the NWAC was never invited to participate. With this, the NWAC, expressed that the four Indigenous groups, particularly the AFN, are male-dominated. As a result, they believed that the male-dominated groups were unlikely to argue in favour of including the NWAC as a group that could have the Charter right to self-governance. The Canadian Minister Responsible for Constitutional Affairs disagreed, stating that the four associations represented both men and women.

Procedural Posture

The NWAC took the case to the Trial Division of the Federal Court in 1992. The primary question investigated by the trial judge was whether or not the unequal distribution of funds by the federal government violated the Charter. Additionally, the judge sought to determine if it was within the court’s jurisdiction to make decisions regarding government funds in this circumstance.

The trial judge held that although the NWAC had received a disproportionate amount of funding, the association’s constitutional freedom of speech had not been violated. Additionally, the NWAC’s s.15(1) Equality Charter rights, which outlines that everyone has the right to be equal under the law and free from discrimination, had not been violated in the disproportionate funding they received. Rather than an act of sex-based discrimination, the federal government's funding decisions were based on their opinion that the NWAC was not a separate group within the Aboriginal community.

The trial judge found the NWAC’s fears of losing Charter protections were speculative and that the association would continue to have opportunities to engage in future legislative consultations. Hence, the NWAC’s case was dismissed.

Federal Court of Appeal

At the Federal Court of Appeal, it was concluded that courts did not have jurisdiction to interfere in the government's constitutional review process in this case given that it could be categorized as policy development rather than implementation. Although the Government of Canada could decide which associations to fund, they must do so as per the Charter. Despite the NWAC qualifying to claim a Charter violation, they lacked evidence that the Charter right of Aboriginal women having equal freedom of expression granted them the right to equal funding. Despite these circumstances preventing the Federal Court from issuing any orders, it was held that the federal government had restricted the freedom of expression of Aboriginal women in violation of ss. 2(b) and 28 of the Charter.

Supreme Court Holding and Reasoning

A number of potential Charter rights violations were investigated once the Government of Canada made an appeal to the Supreme Court of Canada.

S. 2(b) and s. 28 of the Charter, when combined, grant the freedom of expression to the individual representatives of the NWAC as well as Aboriginal women at large. With this, the Supreme Court of Canada sought to determine if the Government of Canada violated these rights by funding and engaging in constitutional discussions with four associations, failing to engage equally with the NWAC.

Additionally, the Supreme Court was tasked with determining if the Government of Canada violated equality rights and existing treaty rights by their funding and constitutional engagements. This argument was made in reference to s. 15(1), which establishes equal treatment under the law, regardless of traits such as one’s sex and s. 35 of the Charter, which recognizes and affirms existing Aboriginal treaty rights.

The majority held that the Government of Canada’s appeal should be allowed and that the Federal Court of Appeal’s declaration of violated Charter rights should be set aside. The federal government was not held to a positive obligation, that is, they were not constitutionally required to engage with the NWAC under s. 2(b) in the same way they had with the four associations they had selected. It was noted that the NWAC was not barred from engaging in constitutional discussions, whether it be through the four selected associations or directly. Additionally, the NWAC lacked evidence that the funded groups had or would advocate for a form of self-governance that was male-dominated. Furthermore, existing Aboriginal and treaty rights under s. 35 did not include any rights to participation in constitutional discussions. Consequently, it could not be argued that the treaty rights of women had been violated.

Implications

At the heart of the case of Native Women's Assn. of Canada v. Canada is the question of positive obligations. A positive obligation refers to the obligation a party has to take a certain action or set of actions. On the other hand, a negative obligation is the responsibility a party has to not engage or participate in a certain action, such as the obligation for a government to refrain from limiting freedom of expression.

Ultimately, the Native Women’s Association’s argument that the Government of Canada had a positive obligation to fund and include them in a manner similar to the four selected associations was not held in court.

The Supreme Court’s 1994 decision set a precedent which indicated that the Canadian government is not obligated to engage in constitutional discussions with specific representative organizations such as the NWAC. Outside of this case, it is important that organizations which gain access to constitutional consultations are representative of the intersectionality that exists within a community. In this case, it was important that the NWAC had the opportunity to reach the Government of Canada in some form. The consequences of legislative neglect, stemming from organizations not having access to constitutional consultations, are important to acknowledge and address.