Behrendt, Larissa --- "Native Women's Association of Canada, Stacey-Moore & McIvor v The Queen (The Native Council of Canada, The Metis National Council & The Inuit Tapirisat of Canada intervening)" [1992] AboriginalLawB 46; (1992) 1(58) Aboriginal Law Bulletin 14

• Native Women's Association Of Canada, Stacey-Moore &Amp; Mcivor V The Queen (The Native Council Of Canada, The Metis National Council &Amp; The Inuit Tapirisat Of Canada Intervening)

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Native Women's Association of Canada, Stacey-Moore & McIvor v The Queen
(The Native Council of Canada, The Metis National Council & The Inuit Tapirisat of Canada intervening)

Federal Court of Appeal, Canada;

Mahoney JA, Stone JA and Gray DJ,

20 August 1992.

Casenote by Larissa Behrendt

The Native Women's Association of Canada (NWAC), a grassroots organisation founded and led by aboriginal women, brought an action to prohibit funding to other aboriginal organisations which were male-dominated, until equal funding was given to the NWAC. The NWAC is a recognised voice of, and for, aboriginal women.

Native women, as a class, remain doubly disadvantaged in Canadian society by reason of both race and sex, and disadvantaged in some aboriginal societies (especially on Indian reservations) by reason of sex.

The claim stemmed from a Canadian Government decision to amend the Constitution to entrench a right to aboriginal self-government. As part of the consultation process the government had given money to certain aboriginal organisations to enable them to participate in discussions with the Government on constitutional matters which directly affected them.

The concern of the NWAC was that there needed to be a mechanism (such as a Charter of Rights) to protect women from discriminatory actions by the self-government body that was developed. However, the Assembly of First Nations (AFN), which was not one of the intervening organisations, had not wanted the Charter of Rights imposed on their communities and had consistently and vigorously resisted the struggle of native women to rid themselves of gender inequality by intervening in Parliamentary and legal proceedings.

Aboriginal women felt they were being offered no protection from the social problems which they faced. These included a high rate of child sexual abuse, incest and domestic violence.

The NWAC claimed that their rights under the Charter had been breached by the funding decisions, specifically:

• the right to freedom of expression (S2(b)) because they were not given a chance to contribute to the consultation process (p.12);
• that rights under the Charter had not been conferred equally on men and women (contra to s28) because women had not had the same amount of funding and same level of input as men (p.12);
• the right to be free from discrimination on the grounds of sex (s15) (p.11); and
• that existing aboriginal and treaty rights had not been recognised equally for men and women (contra to s35(4)) (p.10).

The aboriginal organisations that intervened in the case contended that:

• they did not object to the Charter of Rights being applied to self-government (p.15);
• that aboriginal women had had an opportunity to have input into the process of constitutional change (p.15);
• they were not male dominated organisations (p.15);
• the NWAC did not represent all aboriginal women (p.15); and
• there had been no breach of the Charter of Rights in the way the NWAC had been treated (p.15).

The Court's decision was handed down by Mahoney JA, with Stone JA and Gray DJ concurring.

The claim that aboriginal and treaty rights had not been recognised equally for men and women was dismissed by Mahoney JA held that the complaints concerned a constitutional review process, not a treaty right.

The claim concerning an alleged breach of the right to be free from discrimination was also dismissed. The Court concluded that until a breach of the Charter occurs, a court is powerless to act, although it acknowledged that aboriginal women should be worried about the consequences of proposed changes where they would not get the protection of the Charter of Rights (p.11). The Court cannot interfere where a merely hypothetical consequence is concerned.

The Charter did not provide for a right to be present at discussions concerning constitutional changes and did not provide a right as to funding.

The Trial Judge, in relation to the claim of denial of the right of expression, had stated that NWAC had still been able to express their views. More funding would merely have given them a louder voice. He held that the reason that their organisation had received less funding than the other aboriginal organisations was not because they were women but because the Government had decided that the NWAC should not be considered as a separate group within the aboriginal community.

The NWAC claimed that the amount of funding for male-dominated aboriginal groups had given those groups a stronger position from which to promote an anti-Charter approach, thus eroding the protection of the rights of indigenous women.

On this issue, the Federal Court held that it did:

... not agree that a male dominated organisation is, in fact, necessarily incapable of advocating gender equality on behalf of its female members.(p.14)

But the action of the Government in its funding structure had restricted the native womens' freedom of expression by giving the male-dominated organisations a preferred position.

The Court held that although there was no violation of ss15 and 35(4), there had been a breach of ss2(b) and 28.

At the time of the judgment, the constitutional review process had proceeded beyond the stage of consultation. The policy-making had now proceeded to the implementation stage, so the Court could not grant a remedy to interfere with the legislative process.

The Court decided that since it did not have the power to stop the present funding arrangements, or grant the NWAC an opportunity to participate in the review process since it had now proceeded past the consultation stage - the remedy it could provide was to declare that the AFN had "proved to be adverse in interest to aboriginal women." Also, by excluding the NWAC from input into the constitutional changes, the Federal Government had restricted the freedom of expression of aboriginal women in a manner offensive to ss2(b) and 28 of the Charter.