Case Analysis: Native Women’s Association of Canada v. Canada
Based on the Native Women’s Association of Canada v, Canada case, the court ruled that section 2 (b) did not impose on the government a positive duty to consult particular groups or offer funds to these groups for the purpose of enabling them to participate in formal discussions. The government funded for Aboriginal groups to enable them to represent the aboriginal individuals in responding to the government’s 1991 constitutional proposals; consequently, the Native Women’s Association of Canada (NWAC) that was representing native women sought an order in the federal court asking for equivalent funds and consultation from the government. The NWAC claimed that by offering only the male dominated group’s funds and denying them equal funds, the state was violating their liberty of expression and the right to fairness. However, their application was dismissed by the trial division court refused to give an order of prohibition. The administrative law principles and issues that arise in this case include, the principle of equality and non-discrimination. The core issue in this case is the demise of positive liberty (NWAC v. Canada case, 1994).
Generally the government is not responsible to sponsor or provide a particular platform of expression to a specific person or a group and intentionally leaving out other similar groups. However, there are particular situations that the government may be required to engage in positive actions for the purpose of making freedom of expression meaningful. In circumstance where the government provide such platform, it is required not to do so in a discriminatory manner. According to Sopinka J, inefficiencies and cost may arise if the state assumes positive obligations under section 2(b) of the charter. He declared that it is not reasonable that the when the government of Canada decides to give fundings or consult a particular group, thereby providing a platform for the purpose of conveying particular views, it is required also to give fundings to a group purporting to represent the opposite point of view. If this is the main objective of section 2 (b) of the charter, then the government spending would certainly be extended (The demise of positive liberty? NWAC v. Canada, 2011).
The government acting positively could be inefficient for the reason that it would probably result in a flood of inefficient obligations upon the state. The government should be free to decide when and how to act positively towards the general public. The state should be free to consult whomever it pleases. Because the government decides to offer fundings to a particular group, it does not imply that it is also necessary that it gives funding to a group purporting to represent the opposite point of view (Journal of National Association of Administrative law Judiciary). Sopinka J.’s majority opinion in NWAC tend to negate the claim that, the state has a weak positive obligation to promote freedom of expression under section 2 (b) of the charter. By emphasizing that “it will be unusual that the provision of a platform or funding to a particular group or several groups will have the effect of suppressing another’s freedom of expression,” Sopinka retreats from the claims made in Haig v Canada case. Referring to Haig v. Canada case, there is no judicial claim whereby a positive right to freedom of expression is considered as restricting the democratic function of the government (Haig v Canada case).
Generally a state that chooses to consult or fund one group does not essentially violate the freedom of another group to express an opposite opinion. The Native Women Association of Canada in this case was free to voice its opinion. However, this claim is inefficient because it pays no attention to the unequal effect the state actions may have on the other groups. By strengthening the right of expression of a particular group and ignoring the other group, the state treats the group unequally and potentially violates the right of the ignored group to express itself. The guarantee of freedom consists of protection from indirect forms of authority that the government may exert in favor of specific groups. The indirect favor is normally obvious when a state chooses to assist some groups express their views and ignoring others.
There may be still a weak conception of positive liberty that may exist under the section 2 of the charter which may be premised upon three interrelated concerns: the social conditions that precede the state’s grant of benefit to a deprived group and how the other groups are affected, the social effect of the funding to the group. Referring to the Native women, the state is at liberty to benefit the native organization that represents the native groups in general. However, the government is not allowed to do so when the effect is to worsen the disadvantage of the native groups (The demise of positive liberty? NWAC v. Canada, 2011).
If I were the judge I would rule based on the efficiency and inefficiency of the state actions. According to the NWAC v. Canada case, the federal court is not supposed to oblige the government to embark upon inefficient action. The government has the capability of deciding when its actions are efficient or inefficient. In assessing selective government funding I would assert on the fairness of the government actions and not displacing the idea of efficiency. Fair allocation of funding does not essentially imply equal funding. Fair allocation of funds is a question of facts and not judicial jurisdiction. What should be put into consideration is whether organizations such as the Native Women Association of Canada represents a voice of difference, that the group being denied funds is a subject to discrimination. It is important to balance positive liberty against administrative efficiency in considering the rights of the government against its obligations within a disparate society (The demise of positive liberty? NWAC v. Canada, 2011).
Based on the analysis of the case regarding the Native Women’s Association of Canada v. Canada, the Native Women’s Association of Canada were granted an opportunity to express themselves as the national organizations represented both the men and women. This way the government acted effectively as it ensured that the women were also heard. They were persuaded by the Minister who deals with the constitutional Affairs to work within the Aboriginal communities to make sure their opinions are heard and considered too. Appropriate guiding principles were followed and the charter privileges of aboriginal women represented by the organization were not offended (Fairness and efficiency in governmental decision making). There was no clear evidence that the government acted in a way that violated the freedom of the NWAC to express their views, however, it can be said that it acted inefficient by ignoring the unequal effect the state actions may have upon the Native Women’s Association group; not granted funds. For this reason, the NWAC remained fearful that they may not succeed in expressing their pro-charter view, despite the fact that they were able to contribute in the parallel process that was established by the four national Aboriginal organizations that received funds from the government (NWAC v. Canada case, 1994).
Solomon, D. Fundamental Fairness, Judicial Efficiency and Uniformity: Revisiting the Administrative Procedure Act. Retrieved from http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1545&context=naalj
Trakman, L. (2011). The Demise of Positive Liberty? Native Women’s Association of Canada v. Canada. Retrieved from https://ejournals.library.ualberta.ca/index.php/constitutional_forum/article/view/12022/9222
Native Women’s Association of Canada v. Canada. (1994). Retrieved from file:///C:/Documents%20and%20Settings/maurine/My%20Documents/Downloads/16340693_Native_Womens_Assn._of_Canada_v._Canada_1994_3_S.C.R._627_2%20(3).pdf