The case of Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627 came before the Canadian Supreme Court as a result of the Charlottetown Accord negotiations. The native people of Canada were widely represented by various interest groups and funded by the Canadian government. However, the Native Women’s Association of Canada (NWAC) was left out.
The argument in support of the cause was based on the provisions of Sections 2, 15, and 28 of the Canadian Charter of Rights and Freedoms. The argument was that the act of leaving the group out amounted to sexual discrimination. Moreover, the government of Canada had an obligation to fund all the participating interest groups in the negotiations to allow for the exercise of the freedom of expression. The Supreme Court, however, rejected an earlier decision of the Federal Court, stating that the government could not be taken to be guilty of subverting the freedom of expression, as it had no obligation to fund the various interest groups.
Administrative law principles and issues of the case
According to administrative law, procedural law is a principle that lies at the heart of the decisions that are to be made by a government (Cane 76). The principle of procedural fairness posits that the government, as an agent and a servant of the people, ought to make its decisions in a manner that is fair to all and reasonable to its people. It does not matter whether the fairness is exercised in the allocation of resources, the determination of disputes, or the provision of services.
Consequently, the actions of the government of Canada in the instant decision lacked fairness and justice for the different players and the participants of the Charlottetown Accord negotiations. Administratively speaking, it was the obligation of the government to ensure that all parties present at the negotiations were funded in a fair and equitable manner. This was the argument made by the NWAC. It was discriminative and against the principles of equity for the government to have left out the NWAC in its funding programme, as natural justice demanded that all parties be treated equally (Fox-Decent and Pless 407).
This principle was upheld in the decision of the Kioa v Minister for Immigration and Ethnic Affairs (West) (1985) 159 CLR 550. Justice Mason J said that the law had grown to the extent that a common law duty to act with fairness would be inferred from the fact that the government had an obligation to respect procedural fairness when arriving at decisions that would affect the rights, welfare and reasonable expectations of the public, subject to the clear demonstration of a differing intention.
As indicated above, the government, in opposition to the suit brought by the NWAC, argued that it had no obligation to fund the separate interest groups that participated in the negotiations. Indeed, this was correct bearing in mind that the government’s function is to address the needs of the public, rather than an individual or a group’s ambition. However, the moment the government-funded the activities of the other interest groups representing the aboriginal people in the said negotiations meant that it bound itself to the principles of administrative law, which demanded it does the same for the NWAC (Fox-Decent and Pless 407). In other words, the government under the law had complete discretion on whether to fund the various interest group representatives in the negotiations, but this discretion ended when it undertook to fund some of the groups.
This way, it was bound to fund all the groups in accordance with natural justice and equity. In the exercise of its discretion, the government had an obligation to respect the principles of natural justice that demanded equity for all the participants in the negotiations (Cane 45). Therefore, the NWAC had a cause of action under administrative law, and their plight ought to have been respected. Additionally, the government violated its duty to give proper reasons and explanations to the participants in the negotiations. Instead, it only sought to do so once the suit was instituted and it had to defend itself, where it stated that it had no obligation to fund the separate groups in the negotiations. The government, as a servant and trustee of the people, had an obligation to offer a reasonable explanation to the NWAC participants, explaining their lack of funding during the event.
A decision based on administrative law principles
As stated above, the decision of the Supreme Court of Canada that overturned the decision of the Federal Court was in utter disregard of the principles of administrative law and equity. The decision ought to have been rendered in favour of the NWAC, based on the principles of administrative law, due to the following reasons (Parpworth 98). First, it is apparently clear that the government is an entity that has enough resources.
In other words, it would be obnoxious, albeit ludicrous to argue that the government of Canada, with all its resources and strength, would have found difficulties in funding the simple activity that the NWAC was engaged in the negotiations. Having funded all the other groups in isolation of the NWAC lays testimony to this fact. Thus, a fair decision would have to take this into account in deciding the matter. Second, the government was under an obligation to fund the activity in its entirety, having funded part of it. As observed above, the government is a servant of all in matters of administration, with no differentiation or favour.
Principles of natural justice and equity demand that the government ensures fairness in rendering its decisions and equity in its distribution of resources (Parpworth 87). Resultantly, the government acted in disrespect of natural justice by secluding and favouring certain interest groups over others. As noted, the government initially had no obligation to fund the event, as it did not stay within its mandate to finance activities that were not part of the public utility. However, the government’s decision of kindness and philanthropy to fund some of the interest groups bound it to be fair and equitable enough to fund the entire initiative.
After funding the different interest groups in the negotiations, the government’s hands were tied by administrative law to do the same for the NWAC. Going with the decision of Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, where the court stated that administrative decisions ought to be made with judicial impartiality and detachment, the NWAC would have to receive its fair share of the funding. Additionally, an order of mandamus would have to be extended to the government to ensure that it complies with the decision of the court in line with the rule of law.
Works Cited
Cane, Peter. Administrative Law. Oxford: Oxford University Press, 2011. Print.
Fox-Decent, Evan, and Alexander Pless. “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” Administrative Law in Context. Colleen Flood & Lorne Sossin, Eds. Toronto: Edmond Montgomery, 2013: 407. Print.
Parpworth, Neil. Constitutional and Administrative Law. Oxford: Oxford University Press, 2012. Print.