Native Women’s Association of Canada v. Canada
In Native Women’s Assn of Canada v. Canada, the Supreme Court of Canada upheld the federal government’s decision to exclude the Native Women’s Association of Canada (NWAC) from constitutional negotiations concerning the Aboriginal right to self-governance.
The Women’s Court of Canada decision finds that in the context of political representation, Aboriginal women’s equal right to speak requires that they not be compelled to do so through men or bargain with male dominated organizations, from a position of unequal power, for the expression of their concerns.
Summary
In Native Women’s Assn of Canada v. Canada, the Supreme Court of Canada upheld the federal government’s decision to exclude the Native Women’s Association of Canada (NWAC) from constitutional negotiations concerning the Aboriginal right to self-governance.
The Supreme Court concluded that the government was justified in inviting only male dominated Aboriginal groups to take part in the Constitutional review because it was merely selecting policy advisors.
The Women’s Court of Canada decision critiques this reasoning, finding that in the context of political representation, Aboriginal women’s equal right to speak requires that they not be compelled to do so through men or bargain with male dominated organizations, from a position of unequal power, for the expression of their concerns.
In an unfortunate parallel with the Persons Case, the court permitted the duty “to consult with Aboriginal peoples of Canada” to include men only, rather than requiring that “Aboriginal peoples” must necessarily include Aboriginal women, as well.
Prior to European contact, Aboriginal societies were egalitarian and women had an equal voice within their communities. However, this position has been eroded by Canadian legislation and policy. The historical preference within Western democracies of having men represent the views of all people has been imposed on Aboriginal people through the Indian Act.
This resulted in the long denial to Aboriginal women of any political or civil rights within their communities and continues to influence the activities of native bands and severely limit Aboriginal women’s democratic representation within their communities today. Indeed, none of the male-dominated groups chosen by the government to participate in the constitutional talks was willing to represent the interests of Aboriginal women.
As a result, The Women’s Court of Canada finds the government’s failure to include women’s representative organizations in the talks to be a breach of the Constitution and a restriction on Aboriginal women’s expression, contrary to the Charter. We hold that these violations cannot be justified, that the federal government did not offer a sufficiently significant rationale for excluding the NWAC from the constitutional talks, and the damaging effects of excluding the NWAC outweigh any supposed advantage.