Native Women's Assn. of Canada v. Canada [1994] 3 S.C.R. 627: -- Federal government funding four national aboriginal associations alleged to be male-dominated and inviting them to participate in constitutional discussions -- Aboriginal women's association not provided with equal funding and rights of participation to express its views -- Whether aboriginal women's freedom of expression infringed -- Whether federal government obliged under ss. 2(b) and 28 of Canadian Charter of Rights and Freedoms to provide equal funding and participation to aboriginal women's association

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law -- Charter of Rights -- Freedom of expression -- Federal government funding four national aboriginal associations alleged to be male-dominated and inviting them to participate in constitutional discussions -- Aboriginal women's association not provided with equal funding and rights of participation to express its views -- Whether aboriginal women's freedom of expression infringed -- Whether federal government obliged under ss. 2(b) and 28 of Canadian Charter of Rights and Freedoms to provide equal funding and participation to aboriginal women's association.

Constitutional law -- Charter of Rights -- Equality rights -- Sex discrimination -- Federal government funding four national aboriginal associations alleged to be male-dominated and inviting them to participate in constitutional discussions -- Aboriginal women's association not provided with equal funding and rights of participation to express its views -- Whether aboriginal women's equality rights infringed -- Canadian Charter of Rights and Freedoms, s. 15(1).

Constitutional law -- Aboriginal and treaty rights -- Constitutional reform -- Right of Aboriginal people of Canada to participate in constitutional discussions not derived from any existing aboriginal and treaty rights protected by s. 35 of Constitution Act, 1982.

Courts -- Federal Court of Appeal -- Jurisdiction -- Declaratory relief -- Whether Federal Court of Appeal had jurisdiction to grant declaratory relief when applicants sought order of prohibition in Trial Division.

During the constitutional reform discussions which eventually led to the Charlottetown Accord, a parallel process of consultation took place within the Aboriginal community of Canada. The federal government provided $10 million to fund participation of four national Aboriginal organizations: the Assembly of First Nations ("AFN"), the Native Council of Canada ("NCC"), the Metis National Council ("MNC") and the Inuit Tapirisat of Canada ("ITC"). The Native Women's Association of Canada ("NWAC") was specifically not included in the funding but a portion of the funds advanced was earmarked for women's issues. As a result, AFN and NCC each paid $130,000 to NWAC and a further $300,000 was later received directly from the federal government. The four national Aboriginal organizations were invited to participate in a multilateral process of constitutional discussions regarding the Beaudoin-Dobbie Committee Report. The purpose of these meetings was to prepare constitutional amendments that could be presented to Canada as a consensus package. NWAC was concerned that their exclusion from direct funding for constitutional matters and from direct participation in the discussions threatened the equality of Aboriginal women and, in particular, that the proposals advanced for constitutional amendment would not include the requirement that the Canadian Charter of Rights and Freedoms be made applicable to any form of Aboriginal self-government which might be negotiated. This fear was based on NWAC's perception that the national Aboriginal organizations are male-dominated so that there was little likelihood that the male majority would adopt the pro-Charter view of NWAC. In response to a letter from NWAC, the Minister responsible for Constitutional Affairs indicated that the national organizations represent both men and women and encouraged NWAC to work within the Aboriginal communities to ensure their views are heard and represented. Despite the fact that they participated in the parallel process set up by the four national Aboriginal organizations, NWAC remained fearful that they would be unsuccessful at putting forward their pro-Charter view and commenced proceedings in the Federal Court, Trial Division against the federal government, seeking an order of prohibition to prevent any further disbursements of funds to the four Aboriginal organizations until NWAC was provided with equal funding as well as the right to participate in the constitutional review process on the same terms as the four recipient groups. NWAC alleged that by funding male-dominated groups and failing to provide them with equal funding, the federal government violated their freedom of expression and right to equality. The application was dismissed by the Trial Division. The Federal Court of Appeal also refused to issue an order of prohibition. It made a declaration, however, that the federal government had restricted the freedom of expression of Aboriginal women in a manner that violated ss. 2(b) and 28 of the Charter.

Held: The appeal should be allowed and the declaration made by the Federal Court of Appeal should be set aside.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Although NWAC merely sought an order of prohibition at the Trial Division, the Federal Court of Appeal had jurisdiction in the circumstances to make a declaration. It cannot be said that the appellant was taken by surprise or prejudiced in any way since the declaration granted hinged on the violation of Charter rights that was specifically argued at the Trial Division. The inclusion of a "basket clause" requesting "such other relief as to this Honourable Court may seem just" in the prayer for relief permits a court to exercise its discretion to grant a declaration even though it was not specifically pleaded. Moreover, s. 18.1 of the Federal Court Act now provides for a uniform procedure of an application for judicial review in order to obtain the remedies available in s. 18 of that Act.
The federal government's decision not to provide equal funding and participation in the constitutional discussions to NWAC did not violate their rights under ss. 2(b) and 28 of the Charter, since s. 2(b) does not generally guarantee any particular means of expression or place a positive obligation upon the government to fund or consult anyone. Even assuming that in certain extreme circumstances, the provision of a platform of expression to one group may infringe the expression of another and thereby require the government to provide an equal opportunity for the expression of that group, nothing in this case suggests that the funding or consultation of the four Aboriginal groups infringed NWAC's equal right of freedom of expression. NWAC had many opportunities to express their views both directly to the government, through the Beaudoin-Dobbie Commission, and through the four Aboriginal representative organizations. No evidence supports the contention that the funded groups were less representative of the viewpoint of women with respect to the Charter or that the funded groups advocate a male-dominated form of self-government. Nor was there any evidence with respect to the level of support of NWAC by women as compared to the funded groups. The four Aboriginal groups invited to discuss possible constitutional amendments are all bona fide national representatives of Aboriginal people in Canada and, based on the facts in this case, there was no requirement under s. 2(b) of the Charter to also extend an invitation and funding directly to NWAC.

The refusal to fund NWAC and to invite them to be equal participants at the round of constitutional discussions does not violate their rights under s. 15(1) of the Charter. The lack of an evidentiary basis for the arguments with respect to ss. 2(b) and 28 is equally applicable to any arguments advanced under s. 15(1).

The right of the Aboriginal people of Canada to participate in constitutional discussions does not derive from any existing Aboriginal or treaty right protected under s. 35 of the Constitution Act, 1982. Therefore, s. 35(4), which guarantees Aboriginal and treaty rights referred to in s. 35(1) equally to male and female persons, has no application in this case.

Per L'Heureux-Dubé J.: Although general agreement with Sopinka J.'s reasons was expressed, the outcome of this case should not be interpreted as limiting Haig. Haig does not establish the principle that generally the government is under no obligation to fund or provide a specific platform of expression to an individual or a group. Rather, it stands for the proposition that, while s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion. The circumstances in which a government may be held to a positive obligation in terms of providing a specific platform of expression depend on the nature of the evidence presented by the parties. Here, the evidence demonstrates that the NWAC was not prevented from expressing its views and therefore, on its facts, this case does not give rise to a positive obligation analogous to the type referred to in Haig since not providing NWAC with the funding and constitutional voice requested did not amount to a breach of its freedom of expression.
Per McLachlin J.: The freedom of governments to choose and fund their advisors on matters of policy is not constrained by the Charter. It is unnecessary to determine whether the evidence was capable of demonstrating a violation of NWAC's rights under s. 2(b) or s. 15 of the Charter.

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