Native Womens Association of Canada v. Canada (NWAC) Case

Introduction

The Charlottetown Accord was developed as a result of the debates which occurred during the constitutional transformation. This led to the formation of another different consultation process which was hosted within the Canadian Aboriginal society. Four national organizations of Aboriginal people were provided with $10 million to fund their participation. These organizations included Native Council of Canada (NCC), Inuit Tapirisat of Canada and Assembly Council of Canada. Despite this funding by the government, Native Womens Association of Canada (NWAC) was left out on this arrangement. The NWAC was disappointed by the Federal government for its exclusion from participating in constitutional issues as well as failure to fund their participation. According to NWAC members, this discrimination was threatening the impartiality of the Aboriginal women. As a result, NWAC were prompted to seek to resolve the matter through the Canadian Supreme Court (Kealey, 2012).

Administrative Principles and issues in NWAC Case

In this case study, we are going to analyze the administrative principles and issues arising in the NWAC case.

The first issue regarding administrative law principle which arises in the case is whether the Federal government violated the NWACs rights under section 2b of the Charter. However, it emerged that the decision of the federal government not to fund NWAC equally and failure to allow them to participate in the constitutional debate did not violate their rights according to section 2 of the Charter. Although in the section it says that the government may be obligated to provide equal opportunities in certain circumstances it does not suggest that the consultation or funding of the other four Aboriginal associations breached the equal liberty of expression of the NWAC group. NWAC had numerous alternative ways to express their ideologies both directly and indirectly (Kealey, 2012). There was no tangible proof in favour of the argument that the associations funded the views of few women according to the Charter. There was also no adequate evidence that the groups which were funded were supporting male-dominated structure of self-government. In addition, there was no adequate evidence with respect to the amount of support for the NWAC group by the Aboriginal women. All the groups which were invited for debate on constitutional reforms were qualified countrywide representatives of the Canadian Aboriginal community. Basing this analysis on these facts, there was no reason under the section 2b of Charter to obligate the government to support or fund NWAC directly.

The second administrative prinicple arising in the case is that the right of the Canadian Aboriginal people to be involved in constitutional debates does not originate from any of the current Aboriginal or treaty freedoms protected by section 35 of the 1982 constitutional act. As a result, part 4 of section 35 which provides for equality and part 1 of section 35 do not apply to this NWAC case. According to Per McLachlin J., the government is constrained by the Charter on whom to select and fund regarding policy matters. It is, therefore, not necessary for the court to establish whether the amount of evidence provided is adequate enough to show that the rights of NWAC were violated under section 15 and 2b of the Charter (Kealey, 2012).

NWAC case against the federal government raises some issues which need to be addressed. First is issue raised is that of the degree to which the equality and liberty of expression are provided by the Charter. Sopinka J. raises this issue by saying that the government should provide funding to different groups so as to allow for the representation of various interests at the constitutional transformation debate, whereas the Canadian government funds certain groups considered to be male-dominated. She claims that the Charter obliges the government to fund associations equally regardless of whether they are male or female dominated. With regard to this issue, the NWAC case appeals for consideration on whether the Canadian government violated the Charter by its refusal to fund groups which are considered to be female dominated (Kealey, 2012).

The other issue which was also raised in the case was about the jurisdiction of the Federal Court to allow for the declaration of the remedy when it actually was requested at the trial division stage and the justiciability of the Charter issues.

I would like to make a deep analysis on the factual issues of the court of appeals jurisdiction as follows:

To begin with, the NWAC case is based on the consititutional debates referred to as the Canada Round which abruptly led to adopting the Charlottetown Accord. The Canadian government, on 24th September 1991, outlined 28 proposals on constitutional transformation. One of the proposals was to adjust the constitution to provide for a general justifiable freedom to the Aboriginal self-governance (Kealey, 2012). This resulted in the formation of a joint committee for both the House of Commons and Senate to come up with recommendations for the Legislative Chamber regarding constitutional reforms.

Also, during that period, it was established that different consultative groups or meetings should be organized within the Canadian Aboriginal community. This came as a result of the government funding of the 4 aboriginal groups leaving out the NWAC organization. The Federal State signed an agreement with the four groups so as to provide approximately $ 10 million to support their involvement in the constitutional amendment process (Kealey, 2012).

The NWAC organization was also not particularly incorporated in the funding by the Canadian government. Nevertheless, according to the contribution covenant signed, it was required that some amounts of the $10 million were to be used to fund women isses. In return, both NCC and AFN as well as the Canadian government gave $ 130,000 and $ 300,000 to NWAC and its respondents respectively (Goudreau, 2011). The whole funding obtained by NWAC from the case was approximately 5% of the whole funding that the Aboriginal groups were awarded. The government secretary also contributed about $457,000 annually to NWAC so as to fund its operations, although the money also covered constitutional issues.

Conclusions

In conclusion, if I were the judge I would make my decision based on the administrative principles presented above. According to the administrative principle of equality, it would be wrong for the NWAC groups to demand that their case be ruled by the Charter laws. This is because, even though it is not outlined in the constitution, it is the mandate of the government to fund this organization. No one should to force the government to fund them. The issue of equality which was also raised is very important in this case. In the Charter laws, there is no article which obliges the government to fund all the national organizations regardless of whether they are on the oposition or the ruling party side (Goudreau, 2011).

Alternatively, NWAC should also look for better legal channels to file their complaints and in order to be supported effectively. The only suitable way of dealing with the issue is to demand their rights and liberties rather than seek to obtain them through force and discrimination in a cort of law. The respondents in the above case argue that by providing financial support to the male dominated groups, the government fails to ensure just verdict on the matter. Through the governments action, it can effectively communicate with the Aboriginal women who are denied their rights hence creating a guarantee under section 28 of the equality shares within Canada (Goudreau, 2011).