T-627-92
Native Women's Association of Canada, Gail
Stacey-Moore and Sharon McIvor (Applicants)
v.
Her Majesty the Queen (Respondent)
and
The Native Council of Canada, The Métis
National Council and The Inuit Tapirisat of
Canada (Intervenants)
INDEXED AS: NATIVE WOMEN'S ASSN. OF CANADA V. CANADA
(TD.)
Trial Division, Walsh D.J.—Ottawa, March 25 and
30, 1992.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of expression — Government funding of
four male-dominated national aboriginal groups whose posi
tion Charter should not apply to aboriginal self-government,
without funding applicants, aboriginal women's group and
pro-Charter groups, not infringement of Charter, s. 2(b) (free-
dom of expression) — Many opportunities for applicants to
express views — Holding freedom of expression creating uni
versal right to participate in constitutional amendment discus
sions would paralyze process.
Constitutional law — Charter of Rights — Equality rights —
Government funding offour male-dominated national aborigi
nal groups whose position Charter should not apply to aborigi
nal self-government, without funding Native Women's Associa
tion and pro-Charter groups, not discrimination based on sex,
contrary to Charter, ss. 15, 28 — Government exercising dis
cretion in deciding - rightly or wrongly - national aboriginal
associations representing men and women.
Judicial review — Prerogative writs — Prohibition — Appli
cants seeking prohibition to prevent further disbursement of
funds to national aboriginal groups, whose position Charter
should not apply to aboriginal self-government, until appli
cants receiving equal funding and representation at constitu
tional discussions to promote pro-Charter views — Funding of
male-dominated groups and failure to recognize aboriginal
women as separate group not breach of duty to act fairly —
Decision national aboriginal associations represent both sexes
not unfair because arguments to contrary rejected — Declara-
tion not available where dispute speculative — Loss of Charter
protection speculative — Formulation and introduction of bill
part of legislative process with which courts will not interfere.
Native peoples — Native Women's Association seeking pro
hibition against Government disbursing funds to aboriginal
organizations said to be male dominated, opposed to applica
tion of Charter to native self-government — Seeking funding,
participation in constitutional conferences to promote equality
of aboriginal women — Applicants relying on Charter ss. 2(b),
15, 28 — Alleged unequal treatment of aboriginal women by
aboriginal men not issue for consideration herein — Organiza
tions in receipt of funding may intervene as having . financial
interest to protect, ability to furnish information Crown could
not have provided — Government position that aboriginal
associations representing both men and women — Position of
native organizations vis-à -vis Charter reviewed — Applicants
not denied opportunities to express views — Not discriminated
against on sexual basis in that Government not recognizing as
separate group — Applicants' concerns merely speculative as
outcome of constitutional discussions uncertain.
•
Practice — Parties — Intervention — Application for prohi
bition to prevent further disbursement of funds under /991
Contribution Agreement to aboriginal groups not named as
respondents — Motion to intervene allowed, but without costs
as interventions marginally useful — Factual material availa
ble to intervenants might be helpful to Court — Decision might
affect rights under present, future agreements.
This was an application for prohibition to prevent the Gov
ernment from further disbursing funds under the 1991 Contri
bution Agreement until it has provided to the Native Women's
Association of Canada (NWAC) funds equal to the amounts
provided to each of four national aboriginal groups pursuant to
that Agreement, and until NWAC has been granted equal rep
resentation at constitutional amendment discussions. The appli
cants contended that the recipient groups are male dominated
and do not adequately represent the aboriginal women's views
in constitutional discussions. They contended that by financing
the four recipient groups, the Government is assisting the prop
agation of the view that the Charter should not apply to aborig-
final self-government activities. The applicants and other
aboriginal women's groups require similar funding and partici
pation in the discussions to promote their view that the Charter
should continue to apply in order to safeguard and promote the
equality of aboriginal women. By disbursing funds to the four
recipient groups without providing equivalent funds for the
expression of opinion by the applicants and other pro-Charter
aboriginal women's groups, the Government is allegedly
infringing Charter, paragraph 2(b) (freedom of expression),
section 15 (equal treatment before the law and equal protection
and benefit of the law without discrimination based on "ethnic
origin" or "sex") and section 28 (guaranteeing Charter rights
equally to male and female persons). It was also submitted that
the Government was violating the Constitution Act, /982, sub
section 35(4), which guarantees existing aboriginal and treaty
rights equally to male and female persons.
The issues were: (1) whether the unequal disbursement of
funds was a violation of the Charter; (2) whether the Court
should intervene by way of prohibition to set aside a discre
tionary decision of an administrative nature relating to dis
bursement of Government funds; and (3) whether the Court
should exercise its discretion to prevent a mere recommenda
tion from being made.
The four recipient groups were not joined as respondents.
Three of them moved to intervene at the commencement of the
hearing.
Held, the application should be dismissed.
Fundamental justice required that the three recipient groups
be made parties because they had a fundamental financial
interest in the Contribution Agreement which was being
attacked in the proceedings, notwithstanding that two of the
groups had already received the full amounts allotted to them
under the 1991 Contribution Agreement. Furthermore, the pro
spective intervenors could supply factual information to the
Court, which the respondent could not have provided. How
ever, since the interventions were only marginally useful, the
intervenants should not be awarded costs.
The applicants had not been deprived of freedom of speech.
Although the more money at their disposal, the louder their
voice could be heard, they have had and will continue to have
many opportunities to express their views. To hold that free
dom of expression creates a right for everyone to have a voice
in the discussion of proposals for constitutional amendment
would paralyze the process.
With respect to discrimination as to sex, the disproportionate
funds provided for the NWAC results not from the fact that
they are women, but from the Government's unwillingness to
agree that they be recognized as a separate group within the
aboriginal community. This is not discrimination on the basis
of sex.
Although the Court has jurisdiction to issue a writ of prohi
bition in this case, it should not exercise that right. There was
nothing unfair or contrary to natural justice in the selection of
the groups considered to be broadly representative of the
aboriginal peoples as a whole to represent the aboriginals in
the discussions. The decision not to recognize the NWAC as
"distinct" was not unfair or contrary to natural justice simply
because it did not accept the arguments made to the contrary.
The NWAC had been heard and a decision was made—
whether right or wrong—that the national aboriginal associa
tions did represent both men and women. There was no breach
of any regulation in making the funding and representation
decisions, these being matters within the discretion of those
making them.
The loss of Charter protection is speculative as it will only
occur if the participants in the constitutional discussion accept
the submissions of those advocating that the Charter not apply
to aboriginal self-government and if subsequent resolutions to
that effect are adopted. The applicants will have further oppor
tunities to express their concerns before any such changes
become law. A declaration could issue to affect future rights,
but not where the dispute is merely speculative. The discus
sions are only part of the legislative process in which courts
should not intervene. The formulation and introduction of a
bill are part of the legislative process. It is outside the jurisdic
tion of the courts to interpose further procedural requirements
in the legislative process.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2(b), 15, 28.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 35 (as am. by SI/84-102, s. 2).
Federal Court Rules, C.R.C., c. 663, R. 1602 (as am. by
SOR/92-43, s. 19).
Indian Act, R.S.C., 1985, c. I-5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33
N.R. 304; Martineau v. Matsqui Institution Disciplinary
Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385;
50 C.C.C. (2d) 353; 13 C.R. (3d) I; 15 C.R. (3d) 315; 30
N.R. 119; Operation Dismantle Inc. et al. v. The Queen et
al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Reference re
Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525;
(1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58
B.C.L.R. (2d) 1; 127 N.R. 161.
CONSIDERED:
Federation of Saskatchewan Indians Inc. et al. v. The
Queen et al., Krever J, judgment dated March 29, 1985,
not reported.
REFERRED TO:
Canadian Wildlife Federation Inc. et al. v. Canada (Min-
ister of the Environment) and Saskatchewan Water Corp.
(1989), 26 F.T.R. 241 (F.C.T.D.); Pacific Salmon Indus
tries Inc. v. The Queen, [1985] 1 F.C. 504; (1984), 3
C.P.R. (3d) 289 (T.D.).
AUTHORS CITED
Canada. Report of the Special Joint Committee on a
Renewed Canada. Ottawa, Canada Communication
Group—Publishing, Supply and Services Canada, 1992
(Joint Chairpersons: Hon. Gérald A. Beaudoin, Senator
and Dorothy Dobbie, M.P.).
APPLICATION for prohibition to prevent further
disbursement of funds under 1991 Contribution
Agreement. Application dismissed.
COUNSEL:
Mary Eberts for applicants.
Graham R. Garton for respondent.
Ian G. Scott, Q. C. for intervenant The Native
Council of Canada.
John D. Richard, Q.C. for intervenant Métis
National Council.
Dougald E. Brown for intervenant Inuit Tapirisat
of Canada.
SOLICITORS:
Tory Tory DesLauriers & Binnington, Toronto,
for applicants.
Deputy Attorney General of Canada for respon
dent.
Cowling, Strathy & Henderson, Ottawa, for
intervenant Native Council of Canada.
Lang, Michener, Honeywell, Wotherspoon,
Ottawa, for intervenant Métis National Council.
Nelligan/Power, Ottawa, for intervenant Inuit
Tapirisat of Canada.
The following are the reasons for order rendered in
English by
WALSH D.J.: Applicants move for:
1. An order of prohibition against the Government of
Canada, acting through the Department of the Secre
tary of State, from making any further disbursements
of funds under the 1991 Contribution Agreement
Governing Funds under the Aboriginal Constitutional
Review Program (the "Contribution Agreement")
until,
(i) it has provided to the Native Women's Associa
tion of Canada an amount of funds equal to that
provided to the Assembly of First Nations, the
Native Council of Canada, the Métis National
Council, and the Inuit Tapirisat of Canada ("the
four recipient groups") pursuant to that Agreement,
and on the same terms and conditions; and
(ii) it has provided to the Native Women's Associ
ation of Canada rights to participate in the consti
tutional review process on the same terms and in
the same way as the four recipient groups, includ
ing participation in any First Ministers' Meetings
or Conferences to discuss constitutional renewal
which take place in the next two years.
The grounds for the motion are set out at some
length therein and will be considered in dealing with
the argument. They can be summarized by saying
that applicants believe that the Government of
Canada proposes to make a disbursement of funds
under the Contribution Agreement to the four groups
before April 1, 1992 resulting in providing resources
for them to further their participation in the constitu
tional renewal discussions now under way in Canada
among various governments and that some of the
four recipient groups have taken the position that the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44]] should not apply to aboriginal
self-government activities under any proposed recon-
figuration of the Canadian Constitution. It is con
tended that by financing the four recipient groups in
the constitutional renewal discussions under way the
Government of Canada is assisting some of them to
propagate the view that the said Charter of Rights and
Freedoms should not apply to aboriginal self-govern
ment activities, whereas applicants and other aborigi
nal women's groups require similar funding and par
ticipation in said discussions as they consider that it
is essential that the said Charter should continue to
apply in order to safeguard and promote the equality
of aboriginal women. It is contended that the Govern
ment of Canada has exhibited an historical preference
for the views of male-dominated aboriginal groups
on issues relating to women's equality and that by
disbursing funds to the four recipient groups without
providing equivalent facilitation for the expression of
opinion by the applicants and other pro-Charter
aboriginal women's groups, the Government of
Canada is infringing the Charter, by which it is
bound, contravening section 28 which states that
Charter rights are guaranteed equally to male and
female persons, by depriving the unfunded groups of
a comparable opportunity to win public opinion to
their views. It is also contended that this violates sub
section 35(4) of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44 (as am. by SI/84-102,
s. 2)] which under the heading Rights of the Aborigi
nal Peoples of Canada states that, existing aboriginal
and treaty rights of the aboriginal peoples of Canada
which are recognized and confirmed in subsection (1)
are guaranteed equally to male and female persons.
Section 15 of the Charter which, inter alia, bars dis
crimination based on sex or national and ethnic ori
gin, is also invoked as guaranteeing their equality
under the law, which allegedly is violated by dis
bursements which further advocacy aimed at securing
the removal of rights and freedoms guaranteed by the
Charter. Applicants' argument concludes that the
actions of the Government of Canada in disbursing
these funds are unconstitutional and, as it lacks juris
diction to disburse them, an order of prohibition is
sought to prevent this.
The application is supported by two well-drawn
affidavits of Gail Stacey-Moore, Chief Elected
Officer of the Native Women's Association of
Canada, and Sharon McIvor, an Executive Member
of the Native Women's Association of Canada for the
West Region, having been involved in the Native
Women's movement since 1978. Both applicants are
exceptionally well qualified to make these affidavits
and, in particular, the voluminous affidavit of Gail
Stacey-Moore is practically a history of the aborigi
nal Indian Movement in Canada, outlining, well doc
umented by exhibits, the perceived inequities of the
Indian Act [R.S.C., 1985, c. I-5] as applied to women
and the unequal and unfair treatment they receive at
the hands of Indian males in the various bands.
At the outset of the hearing the Court made it clear
that the issue of alleged unequal and unfair treatment
of aboriginal women by aboriginal men is not a mat
ter to be considered in the present proceedings, which
must be limited to the constitutionality of the said
unequal distribution of funds as between male-domi
nated aboriginal groups and groups representing
aboriginal women, and whether this constitutes a
breach of the Charter of Rights and Freedoms, so that
the argument on this issue will therefore proceed on
the basis that, even assuming and accepting that
aboriginal women are not in many cases treated
equally with aboriginal males in aboriginal society
and therefore wish to retain the protection given
those by the Charter of Rights to equal treatment,
does this unequal disbursement of funds constitute a
violation of the Charter?
Important subsidiary arguments are whether the
Court should intervene by way of prohibition to set
aside a discretionary decision, of an administrative
nature relating to disbursement of Government funds,
and a third issue as to whether, even if the Court has
discretion to issue such an order, it would be exer
cised when it appears that the motive for seeking it is
to prevent a possible recommendation adverse to
their interests being made as a result of the constitu
tional renewal discussions about to commence, which
recommendation, even if it were made, would in no
way be a final decision until and unless subsequently
adopted and legislated—in other words, to prevent at
the outset such a recommendation from being made.
This is an attack on funding which allegedly will
assist in arguments leading to such a possible recom
mendation (or agreement to recommend it, if agreed
to by the participants in the discussions), and is
clearly made on a "quia timet" basis.
INTERVENTIONS
The motion did not join as respondents the Assem
bly of First Nations, the Native Council of Canada,
the Métis National Council, or the Inuit Tapirisat of
Canada, although the order sought is to prevent any
further distribution of funds to them under the 1991
Contribution Agreement Governing Funds under the
Aboriginal Constitutional Review Program until
funds are provided to applicants under the same
terms and conditions. Clearly, therefore intervenants
have a financial interest to protect.
As a consequence, motions seeking leave to inter
vene were introduced at the commencement of the
hearing on behalf of three of them: the Native Coun
cil of Canada, the Métis National Council and the
Inuit Tapirisat of Canada. The Assembly of First
Nations did not present such a motion. These inter
ventions were opposed by applicants.
Prior to recent amendments to the Federal Court
Rules [C.R.C., c. 663], the leading authorities on
interventions were to the effect that it is not merely
sufficient that the intervenant has a real interest in the
outcome but that it can also bring a different point of
view or perspective from that which will be brought
to the attention of the tribunal by parties already in
the record. See in this connection Canadian Wildlife
Federation Inc. et al. v. Canada (Minister of the
Environment) and Saskatchewan Water Corp. (1989),
26 F.T.R. 241 (F.C.T.D.), at page 243, which also
referred with approval to Pacific Salmon Industries
Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.), at
page 510. In the present case it is abundantly clear
that respondent will oppose vigorously the order
sought by applicants not to distribute further funds to
the groups in question, which is of course what the
would-be intervenants will also be opposing so there
might well be an unnecessary duplication of argu
ment.
The attention of the Court was directed to the
recent amendment to Federal Court Rule 1602 effec
tive February 1, 1992 [SOR/92-43, s. 19], subsection
(3) of which states "Any interested person who is
adverse in interest to the applicant in the proceedings
before the federal board, commission or other tribu
nal shall be named as a respondent in the notice of
motion". This article deals with applications for judi
cial review, however, of decisions by a federal board,
commission or other tribunal, and respondent, Her
Majesty the Queen, cannot be so considered. I am
aware that there is jurisprudence to the effect that in
naming Her Majesty as a respondent, this may never
theless encompass ministers of the Crown but
whether this extends to unnamed federal boards,
commissions or other tribunals, or whoever entered
into the Contribution Agreement distributing the
funds, so as to make Rule 1602 applicable would
appear doubtful. It is not necessary for me to decide
whether this Rule applies here, since an additional
argument by counsel for the Native Council of
Canada points out that even without such a rule, fun
damental justice requires that they be made parties.
Applicants refer to agreements made with them
which they seek to have stayed but although appli
cants served copies of the material on them, they did
not add them as parties. The jurisprudence to which I
was referred dealt with third parties which had an
interest in litigation between others, and not with a
party which has a fundamental interest of its own
which is being attacked in the proceedings.
The Inuit Tapirisat in seeking to intervene contend
that they have factual evidence to submit different
from that of the others, to the effect that applicants do
not represent them as their women have their own
association, that they are not seeking separate fund
ing, and that in their society women are not disadvan
taged and do not contend that they are.
Finally it was pointed out by counsel for applicants
that respondent had not submitted any affidavit mate
rial but merely a written memorandum of law and
fact which must necessarily be based on the material
submitted by applicants as to the facts and should not
now be allowed to take advantage of the affidavits as
to facts and arguments advanced by the would-be
intervenants, or cross-examination which had already
taken place on these affidavits. I am satisfied that the
prospective intervenants are in a position to supply
factual information of use to the Court in deciding
this matter, in many cases containing information
which respondent could not have provided, and that it
is therefore in the interest of justice that the interven-
ors be allowed, and the affidavits, exhibits, and cross-
examination on affidavits be filed in the record.
Counsel for applicants contended that if the inter
ventions are allowed the Crown should be asked to
pay the costs of them, as by admitting them evidence
was being introduced which respondent had failed to
do. Bearing in mind that had they been named as
respondents in the first instance no motion to inter
vene would have been necessary weakens the thrust
of this argument. However, since I find the interven
tions were only marginally useful, although no blame
is attributed to intervenants for bringing them, and I
would have reached the same conclusions in dispos
ing of applicants' motion even if there had been no
interventions, it may not be fair to award the substan
tial costs of them against the applicants herein, the
Native Women's Association of Canada. I therefore
exercise my discretion and allow the interventions
but without costs.
The style of cause will be changed accordingly to
reflect these interventions.
FACTS
The facts giving the background for this applica
tion are found in various affidavits, exhibits and other
documents in the record and are for the most part not
contested by the parties.
A Government of Canada document dated Septem-
ber 24, 1991 entitled Shaping Canada's Future
Together—Proposals states "the Government of
Canada proposes an amendment to the Constitution
to enrich a general justiciable right to aboriginal self-
government in order to recognize aboriginal peoples'
autonomy over their own affairs within the Canadian
federation". In the next paragraph it is stated "such a
right would provide for recognition of the differing
circumstances and needs of the different aboriginal
people in Canada, and would be exercised within the
Canadian constitutional framework, subject to the
Canadian Charter of Rights and Freedoms". [Empha-
sis added.]
The report of the Special Joint Committee on a
Renewed Canada dated January 24, 1992 (the Beau-
doin-Dobbie Committee) refers to several aboriginal
organizations who are developing their own charter
with a different balance of collective and individual
rights more attuned to their particular traditions, but
states that the processes are on-going and their final
positions are still to be determined. It states "the
Committee heard from the Native Women's Associa
tion of Canada, who strongly supported the continued
application of the Charter. They also proposed that
aboriginal self-government should be entrenched in a
way that ensures its equal application to men and
women. We recommend that the fundamental rights
and freedoms of all Canadians, including the equality
of the rights of men and women, ought to receive full
constitutional protection."
On January 24, 1992, the Rt. Hon. Joe Clark, Min
ister of Constitutional Affairs, wrote Ms. Stacey-
Moore in reply to her letter outlining the position of
the Native Women's Association of Canada on this
question. He states "The Government of Canada has
always taken the position that the Charter of Rights
and Freedoms should apply to Aboriginal govern
ments". He adds "the federal government's proposals
reiterate our intention in this regard".
On February 19, 1992, in answer to the same letter
from Ms. Stacey-Moore, the Prime Minister, the Rt.
Hon. Brian Mulroney reiterates the view "the Gov
ernment of Canada has consistently taken the position
that the Charter of Rights and Freedoms should apply
to Aboriginal governments".
A supplementary affidavit by Gail Stacey-Moore
casts doubt on the Government's intention to express
applicants' point of view at the forthcoming constitu
tional conference. In a letter to her dated March 2,
1992 the Rt. Hon. Joe Clark refers to a discussion
with her about representation at the conference table
and states "the concerns you have raised, like those
raised by others must be addressed within the aborig
inal community itself. They will not be rectified
through the addition of another seat to the constitu
tional table".
He states that the national aboriginal associations
do represent both men and women in their communi
ties and urges her to work with them to ensure that
the Native Women's Association of Canada views are
heard and represented through them. He adds that it
is for that reason that the funding agreements signed
by the national aboriginal associations require that
they specifically direct portions of their funding to
aboriginal women's issues and in addition the gov
ernment has provided some project funding in sup
port of specific activities and future funding will be
determined by the nature of the process.
Needless to say this letter was far from reassuring
for applicants who contend that the aboriginal
associations within their communities are dominated
by males so they cannot count on them to make ade
quate representations reflecting the aboriginal
women's views in the forthcoming round of constitu-
tional discussions, and that the portion of the funding
allocated to them by these groups is minuscule in
proportion to the amounts these groups have
received.
Facts supporting these contentions are that at an
Aboriginal Conference on the Constitution held in
Ottawa on March 13-15, 1992, out of 184 delegates,
Native Women's Association of Canada had only
eight seats and four observers. To get the eight seats
which had not originally been allocated, four were
obtained from the Native Council of Canada, and the
rest from the Government of Canada complement.
On funding, out of $10,000,000 allocated to the four
interest groups under the Contribution Agreement the
Native Women's Association of Canada received
$130,000 from each of the Assembly of First Nations
and Native Council of Canada, or a total of $260,000.
It is conceded that core funding is also received from
the Secretary of State to run its office and provide for
four employees, but none of these is devoted to con
stitutional purposes, and that a grant was also
received from the Secretary of State to fund a study
of the Canadian Charter of Rights and Freedoms.
Respondent refers to total grants direct from the Gov
ernment of $300,000 in addition to the $260,000
given out of the $10,000,000 awarded to the four
funded groups. In any event, it is not disputed that
5% funding they received in proportion to the
amounts awarded to the four funded groups referred
to in the application herein is comparatively trivial,
especially as it is alleged that women represent 52%
of the aboriginals.
Respondent points out that a great many issues are
to be considered at the forthcoming Conference, of
which the continuing application of the Charter to
aboriginal governments in the event that aboriginal
groups should be given a measure of self-government
is only one, whereas the Charter issue is the only one
which appears to concern the applicants herein, or on
which they wish to express a view which may be
opposed to that of at least some of the four groups
funded to represent aboriginals, and that this would
explain the disparity in the funding. Native Women's
Association of Canada representatives counter that
there is nothing limiting their participation to the one
issue, as they are entitled to consider all issues which
will be under discussion. It is of interest to note that
when the funding agreements with the four groups
were signed to provide funds for the four groups in
question for participation in studies and conferences
relating to constitutional renewal (which agreements
were not produced) this was many months before
when, on or about March 11, 1992 it was recom
mended that aboriginal peoples be invited to be full
participants in the constitutional process agreed upon.
It cannot he said therefore that the funding was pro
vided expressly for participation in the forthcoming
Conference.
In any event, any consideration of the adequacy of
the funding or representation must depend on the
determination of the legal issues as to whether there
is any infringement of the Charter if Native Women's
Association of Canada is not recognized as a distinct
group, having interests which are not fully repre
sented by the four funded groups, and entitled to
equal representation and funding.
During discussion of the applications for leave to
intervene the Native Women's Association of Canada
pointed out that two of the groups—the Assembly of
First Nations and the Métis National Council—have
already received the full amounts allotted to them
under the 1991 Contribution Agreement, and there
fore have no interest in intervening in this motion,
but that the Native Council of Canada and the Inuit
Tapirisat still have funds to receive by virtue of the
Agreement. (It will be recalled that the Assembly of
First Nations has not sought to intervene.) While full
consideration was given to this argument at that stage
of proceedings, all interventions were allowed since
it was felt that the factual material they might submit
would be helpful and moreover a decision made on
this motion might well affect the rights of all four
groups in distribution of funds under future agree-
ments, including that for the 1992-1993 fiscal year
now being discussed.
This is a double-edged argument in any event,
since, if two of the groups have already received all
the funding allowed under the 1991 Contribution
Agreement one might ask why applicants seek this
order against them. It is evident, and I believe appli
cants would admit, that what is of primary concern to
them and what they seek is a finding that they are
really a fifth group legally entitled to receive equal
funding to each of the four groups similar to funding
provided for the said groups which they claim are
male dominated and do not adequately represent
them, and also to equal representation at conferences
concerning proposed constitutional amendments
affecting aboriginals and in particular aboriginal
women. Such a finding would then be applicable
when future Contribution Agreements are under dis
cussion.
With respect to the positions which applicants
expect the four groups in question to take at the forth
coming Conference, it is primarily the position of the
Assembly of First Nations which they fear. That
group is alleged to be strongly of the view that the
Canadian Charter of Rights and Freedoms should not
apply to aboriginal self-government. It has expressed
interest in establishing an aboriginal Charter of
Rights and objects to any Charter being imposed on
them by others.
The Métis National Council supports the retention
of the Canadian Charter.
The Inuit Tapiri sat is willing to consider the appli
cation of the Canadian Charter of Rights and Free
doms to Inuit self-government arrangements which
may be negotiated between them and the Government
of Canada, and their women's group will fully par
ticipate in any discussion with respect to its contin
ued application.
The Native Council of Canada's position is some
what more equivocal. It takes the position that the
Canadian Charter of Rights and Freedoms should
apply to Indian Act governments but that with respect
to self-government activities that is the sole domain
of the aboriginal governments in question. It does not
suggest that the Charter should not apply, but that
this is up to the nations themselves.
Without in any way attempting to predict what dis
cussions will take place at the Conference, on the
Charter of Rights issue, or the contents of same, it is
apparent from these statements of fact that the issue
of maintenance of the Canadian Charter of Rights
and Freedoms notwithstanding whatever recommen
dation may be made about aboriginal self-govern
ment will be one of the subjects discussed and sup
ported by at least some of the participants, including
most probably the representatives of the Government
of Canada, although some doubt may have been cast
on the position they will take with respect to the
Charter by the recent letter of the Rt. Hon. Joe Clark
of March 2, 1992, to which I have already referred, in
which he suggests that the Native Women's Associa
tion of Canada's issues must be addressed within the
aboriginal community itself, stating that the aborigi
nal associations do represent both men and women
from their communities and that the Native Women's
Association of Canada should work through them to
ensure that their views are represented and heard.
CONCLUSIONS IN LAW
There is no issue, nor can there be, that the appli
cants herein are subject to all the rights set out in the
Canadian Charter of Rights and Freedoms including
paragraph 2(b) "freedom of expression" and, section
15 equal treatment before the law and equal protec
tion and benefit of it without discrimination based on
"ethnic origin" or "sex". Section 28 guarantees these
rights equally to male and female persons. Part II of
the Constitution Act, 1982 in subsection 35(4) guar
antees existing aboriginal and treaty rights of aborigi
nal peoples equally to male and female persons.
It is these undisputed principles which applicants
seek to apply to the facts of this case. It was argued
on the basis of accepting, for the purposes of this
motion but not as a conclusion, that in aboriginal
societies or at least a substantial number of them,
women are not treated by men as equals, are disad
vantaged with respect to them, do not share their
views on all issues and cannot rely on them to present
their viewpoint at Conferences such as that about to
take place. It was also accepted that they receive a
disproportionate amount of the Government funding
made available to the four groups which they contend
do not adequately represent their interests. (It should
be repeated here that at least one of the groups—the
Inuit Tapirisat—strongly disputes those assumptions
made even for the purpose of arguing this case,
pointing out that their society is totally different from
that of the other named aboriginal groups (or associa
tions), that women are not disadvantaged in it, and do
not seek separate funding or representation.)
Applicants argue that without being recognized as
a group with separate and distinct interests from
those of the male groups chosen to participate and
represent them, and accordingly being given
equivalent funding, their views cannot be properly
represented and that this is an interference with their
freedom of speech.
On the facts it is evident that the Native Women's
Association of Canada has had and will continue to
have many opportunities to express its views, both to
the appropriate political authorities, to the public and
even to the groups which will participate in the Con
ference, some at least of whom share the Native
Women's Association of Canada's concern respect
ing the continued application of the Charter to
aboriginal people. Undoubtedly the more money
placed at their disposal the louder their voice could
be heard, but it certainly cannot be said that they are
being deprived of the right of freedom of speech in
contravention of the Charter.
As counsel for respondent points out, reliance on
freedom of expression as a basis of the right to be
present at the discussion table is a claim that any
individual or interest group might make, and, in dis
cussion of proposals for constitutional amendment to
hold that freedom of expression creates a right for
everyone to have a voice in these discussions would
paralyze the process.
I do not conclude therefore that there has been any
infringement of applicants' Charter right of freedom
of expression.
With respect to discrimination as to sex, the dis
proportionate funds provided for the Native Women's
Association of Canada results not from the fact that
they are women, but from the unwillingness of the
Government to recognize that they should be consid
ered as a separate group within the aboriginal com
munity from the four named groups and treated
accordingly. Whether this is fair or contrary to natu
ral justice will be dealt with under another argument
respecting the issue of a writ of prohibition, but it
does not constitute per se discrimination on the basis
of sex in contravention of the Charter.
This leads to another issue to be examined—that of
the jurisdiction of the Court to issue a writ of prohibi
tion in these proceedings. On the facts and in the
absence of production of the Contribution Agree
ment, it is not too clear who made or makes the deci
sions respecting the distribution of funds. Apparently
they are provided under the auspices of the Depart
ment of the Secretary of State. It may not matter
whether the distribution is decided or made by a Fed
eral Cabinet Minister or ministers or by the Federal
Cabinet. The principle that there is no immunity for
orders in council unlawfully made was enunciated in
the case of Attorney General of Canada v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735 in
which, at page 748, Justice Estey noted:
Let it be said at the outset that the mere fact that a statutory
power is vested in the Governor in Council does not mean that
it is beyond review.
At page 752 in the same judgment it is stated:
It is not helpful in my view to attempt to classify the action
or function by the Governor in Council ... into one of the
traditional categories established in the development of admin
istrative law.
And again,
... in my view the essence of the principle of law here operat
ing is simply that in the exercise of a statutory power the Gov
ernor in Council, like any other person or group of persons,
must keep within the law as laid down by Parliament ....
It is not disputed that the Court has jurisdiction to
also review or set aside decisions of Cabinet minis
ters made in contravention of the law.
There is also no dispute as to the duty of the deci
sion maker to act fairly and in accordance with natu
ral justice in making the decision. The Martineau-
Matsqui decision [Martineau v. Matsqui Institution
Disciplinary Board, [1980] 1 S.C.R. 602] and others
have gone beyond the former doctrine of "audi
alteram partem", extending it to the duty to act fairly,
and the demarcation line between quasi-judicial and
administrative decisions has all but disappeared.
To say that the Court has the right to issue a writ of
prohibition in this case is far from concluding how
ever that it should exercise that right. Applicants'
principal complaints about breach of the duty to act
fairly are first, the composition of the groups chosen
for funding and participation in the Conference, and
second the failure to recognize aboriginal women as
a separate group, distinct from the funded groups.
The disparity in funding is a consequence of this fail
ure to so recognize them.
It is true that on the first issue there is no evidence
in the record as to how the groups were selected, only
the explanation given in argument by respondent. It
should be noted, however, that neither is there any
suggestion by applicants as to what other groups
(other of course than themselves) would have been
more representative of the aboriginal people than the
broadly-based umbrella groups selected. Respon
dent's written submission states "it is evident that
governments have invited the four national Aborigi
nal organizations to participate fully in the discussion
because they consider these organizations to be
broadly representative of the Aboriginal peoples as a
whole not of some particular constituency". Refer
ence was made to the decision of Krever J. (as he
then was) in the unreported case of Federation of
Saskatchewan Indians Inc. et al. v. The Queen et al.
judgment dated March 29, 1985 in which he stated:
It is common ground that s. 37.1(2) of the Constitution Act,
1982 imposes a duty on the Prime Minister to invite represen
tatives of the aboriginal peoples of Canada to that First Minis
ters' Conference. That subsection cannot reasonably be inter
preted as requiring the Prime Minister to invite to the
Conference representatives of every special interest group
among the aboriginal peoples of Canada.
And again,
In the absence of a showing of bad faith, the determination of
the appropriate representatives of the aboriginal peoples is, in
essence, a political determination, that is to say, a determina
tion that cannot properly be made by the courts. To repeat,
there is no bad faith and it cannot be said that the Prime Minis
ter's selection of invitees frustrates the policy and objects of s.
37.1 of the Constitution Act, 1982.
To conclude on this issue I find nothing unfair or
contrary to natural justice in the selection of the said
four groups to represent the aboriginals at this confer
ence.
On the second allegation of unfairness—the failure
to recognize the Native Women's Association of
Canada as being "distinct"—the position of the
respondent is set out in the letter of the Rt. Hon. Joe
Clark of March 2, 1992 already referred to, in which,
after stating that their concerns raised like those
raised by others must be addressed within the aborig
inal community itself he said "The national Aborigi
nal Associations do represent both men and women
in their communities."
His statement may be accurate in theory, but possi
bly wrong in practical application in view of Native
Women's Association of Canada's assertions that
they often have different interests from those of the
males in their communities and are kept in a sub
servient and minority position. The Native Women's
Association of Canada representatives' position had
certainly been heard and considered however before
this letter was written, and a decision, whether right
or wrong, is not unfair or contrary to natural justice
because it does not accept the arguments made to the
contrary. There is no breach of any regulation in
making the funding and representation decisions,
these being matters within the discretion of those
making them.
One further issue should be dealt with, namely,
that the results which applicants hope to obtain in
their fear of loss of Charter protection is speculative.
This would only occur if the participants in the con
stitutional discussion accepted the position of the
Assembly of First Nations and others on this issue
and if subsequently resolutions to that effect were
adopted by Parliament and the legislatures. Appli
cants will have further opportunities to express their
concerns before any such changes become law, if in
fact any such changes will even be recommended. As
Dickson J. (as he then was) stated in Operation Dis
mantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441, at page 457 (although he was dealing with
declaratory judgments and injunctions):
As this Court stated in Solosky v. The Queen, [1980] 1 S.C.R.
821, a declaration could issue to affect future rights, but not
where the dispute in issue was merely speculative.
The purpose of the impending multicultural discus
sions on the Constitution is to "bring the Canada
Round to a successful conclusion". Success will be
measured by the level of agreement reached as to the
proposals for constitutional amendments to be incor
porated in draft parliamentary resolutions. The dis
cussions are therefore only part of the legislative pro
cess in which courts should not intervene.
In Reference re Canada Assistance Plan (B. C. ),
[1991] 2 S.C.R. 525, Justice Sopinka stated, at page
559:
The formulation and introduction of a bill are part of the legis
lative process with which the courts will not meddle ....it is
not the place of the courts to interpose further procedural
requirements in the legislative process.
This is another reason for refusing to issue a writ
of prohibition at this stage.
For all of the above reasons, applicants' applica
tion is dismissed with costs, if asked for.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.