24 Feb Who Deserves to Be Heard?
Native Women’s Association of Canada v. Canada
Who Deserves to Be Heard?
Native Women’s Association of Canada v. Canada
Who Deserves to Be Heard?
In 1991 the Canadian government set-up the Beaudoin-Dobbie Commission to investigate proposals for Constitutional reform. The main proposal was aboriginal right to self-government. The government funded four national Aboriginal organizations and invited representatives to participate in the Committee’s discussions. The request by N.W.A.C for equal funding was denied.
In the Native Women Association v. Canada case three main issues were under scrutiny. These were representation, gender equality and positive versus negative liberty. The N.W.A.C claimed that the government denied them their right to representation, as guaranteed by s. 2(b) of the Charter. They also contended that the government denied them their right to equality, which s. 28 of the Charter guaranteed them. The N.W.A.C argued that the government had a duty to enforce positive rights of freedom of expression and equality and to demonstrate this by economically supporting groups purporting to do so. The government held that it could not economically support every group that claimed to support these rights. Without providing funding, the government claimed that it demonstrated support for equality and expression by not limiting it and thereby relying on the perception of negative liberty.
The government argued that it did not restrict the N.W.A.C’s right to expression in contravention of s. 2 (b) of the Charter. Also, the government held that the right to equality as stated in s. 28 was not infringed. Lastly, the government argued that it only had a negative obligation to not limit the liberty of the N.W.A.C., but had no responsibility to positively promote those rights.
The N.W.A.C argued that if the government chose to fund an anti-Charter, male-led aboriginal organization, then it had a duty under the Charter to do so equitably and in accordance with the Charter. The government responded by explaining that if it chose to fund a women’s organization to study an issue specific to women, then it would not be obligated to equally fund men to argue against them. The N.W.A.C. held that the government had a positive duty to secure their right to freedom of expression. The government responded highlighting that it only had a negative duty to not interfere with or restrict their right to freedom of expression, Negative and positive duties were issues of democracy.
The N.W.A.C might have assumed that Canada was founded on principles of liberal democracy. If liberal democracy had been utilized in the application of justice in Canada, the government might have endeavored to fulfill the goal of liberalism.
But liberalism itself might have been flawed because it focused on an individual outlook that led it to neglect communal interests. The N.W.A.C. was concerned with communal interests as they related to their right to be heard on issues that concerned them.
In support of their case, the N.W.A.C. advanced the idea that “Individuals find themselves members of groups or associations which not only influence their conduct but also shape their loyalties and sense of identity” (Kukathas, Minorities;1992:101). The majority in the Supreme Court decision held that the case law conceptualized freedom of expression in terms of negative entitlements. The government argued that that was not its job to meddle in internal matters of communities. If there was instability in Aboriginal communities it was solely an Aboriginal problem. But Native Women claimed that they needed the support of the government to be able to unite and express their views collectively.
The Supreme Court held that expression should not be restricted. People, however, should not be compelled to express themselves. The free will of people to express their views should not encounter interference. The government argued that persons or groups who wanted to express themselves were allowed to do so, with or without funding. The Charter stated that all people were guaranteed the right to express their views.
The N.W.A.C. , however, were not solely concerned with being recognized as an indigenous people. Rather, they contended that as Aboriginal women they were not given an equal opportunity to express their views. They supported the view that “Group formation is the product of environmental influences, among these environmental factors are political institutions” (Kukathas, ibid). The N.W.A.C. argued that they were placed into a larger group as part of a sweep together of Aboriginal groups. The struggle of the N.W.A.C. was not specific to native people; it was the championship of the feminist cause.
Their cause continued to be a difficult one and on that might have always encountered opposition, because “Laws and systems of polity always begin by recognizing the relations they already find existing between individuals” (J.S.Mill). The government knew that men strove to dominate women, especially in cultures where their existed an established hierarchy. Aboriginal people are a subjugated and disenfranchised group. Women who would want to speak out for their rights within this group would face a great challenge.
The N.W.A.C. as part of the feminist cause, tried to force off the chains of oppression from women, as collective. They claimed that the government had prevented them from achieving this objective. The countered by asserting that the N.W.A.C. was being paranoid. Comparison could be made with Kukathas’ point that the “The National Aboriginal Consultative Committee established by the Australian Commonwealth government were often suspected by their people of succumbing to white patronage, even when they were innocent” (Kukathas, ibid). Favoritism could have been imagined. The government could have contended that the N.W.A.C. erred in contesting their perceived fair distribution of funds to all qualifying representative groups.
The N.W.A.C. argued that they deserved special protection under the law. “According to Kymlicka, cultural communities are entitled to special protection under the law when their integrity is threatened by outside forces…Kymlicka grounds his theory on individual autonomy” (Lever, 2012). The government failed to realize that the N.W.A.C. desired to be recognized not as part of a larger group, but as a separate group. They wanted to be seen as individuals not as a subset of a larger group. The government, however, did not view the N.W.A.C. as a separate group. Instead they perceived them as Aboriginal persons. The N.W.A.C. perceived the governments’ actions to indicate that men and would should be group together, at least as far as where Constitutional issues were concerned.
The N.W.A.C. argued that the government erred in funding exclusively the four Aboriginal groups to which it did supply grants, because they were generally perceived to be male-led groups. The Supreme Court, however, held that the funded groups did not advocate a male-dominated from of self-government. Rather, those groups represented native people collectively. Madam Justice L’Heureux-Dube’ agreed with the decision of the majority, but also held that non-interference guaranteed the fullest functioning of ideas.
The government held that “Indeed race is a family” (Appiah). This might have been the central failure of the government. This, however, might have been a reasonable assumption on its part. How else could a group be viewed, except as a whole? Could it reasonably be argued that colored persons should be classified according to their individual ancestries? This would be illogical as there could not be a set criterion for so determining with certainty the actual origins of each subset for the entire grouping. Or could Semitic peoples or Gypsy’s reasonably be categorized according to their geographical derivations? The N.W.A.C. perceived that the government tended to view indigenous people as a whole and did not distinguish male from female members of the society. The government failed to view indigenous people as a society comprised of distinct ranks of membership constituted by both proud men and women. Where political liberty was concerned the government did not properly allocated rights to all of the aboriginal groups in a legal way.
According to the N.W.A.C. the government had a positive duty to secure their right to freedom of expression. The N.W.A.C., however, was not really arguing about funding. Their argument was not against the contemporary Party in power. Rather, their dispute was with the application of representative democracy in Canada. The failure of the government to maximize the guarantees of liberal democracy was the problem and issue with which the N.W.A.C. was most concerned.
Liberal ideology, however, is not inclined to ‘break up reservation, destroy tribal relations, settle Indians on their homestead, incorporate them into the national life and deal with them not as nations or tribes but as individual citizens, ‘despite the fact that many Indians do not want to be integrated into mainstream society (Kukathas, ibid).
The government argued that it had a negative duty to not interfere or restrict the right to freedom of expression. According to the government, the N.W.A.C. was not prevented from voicing their opinion on the right to aboriginal self-government. The Supreme Court, however, held that the ruling Party did attempt to suppress the N.W.A.C.’s right to freedom of expression with respect the Constitution. But the N.W.A.C. should have realized that they were not restricted from speaking out on this issue. They just were not encouraged to do so or given funding towards that end. The N.W.A.C. argued that the government had discriminated against their group.
Nevertheless, “Individualism ‘combined with the usual stress on personal merit,’ tend to be destructive of minority cultures because the schools argued that the government attempted to deprive them of their individuality. They contended that their right to be recognized as an individual group was guaranteed by s. 2(b) of the Charter. Autonomy, not individuality, might have been an underlying issue in this case.
Autonomy might be taken as a given in liberal democracy. But in Canadian history women were traditionally not recognized as equal citizens under the law because of the systemic male dominant culture within Canada. Women were considered things “…women play a central role in the development of men” (Postow, 253). Women’s opinions, however, were not considered to exist. Their views and beliefs were categorized with those of men. According to the feminist perspective women had no purpose except to cater to men and to support them. “Sexism makes no distinction between proper behavior toward women who want sexist roles and those who do not” (Postow, 253).
The subjection of women might have been the root cause of the concerns raised by the N.W.A.C. “The legal subordination of one sex to the other – is wrong in itself, and now one of the chief hindrances to human improvement; and ought to be replaced by a principle of perfect equality” (Mill, ibid). In this case the burden of proof was on the N.W.A.C., because they argued that government infringed their rights. The N.W.A.C. held that the government infringed their right to freedom of expression and equality under and before the law. They further contended that the Supreme Court allowed their rights to be infringed and paved the way for a precedent. The N.W.A.C. believed this precedent would degrade the importance of their right’s and those of minority women overall. As a result women’s rights might not be properly recognized in a seemingly free and democratic society.
In his book, The Subjection of Women, Mill argued
In every respect the burden is on those who attack an almost universal opinion. They must be very fortunate as well as unusually capable if they obtain a hearing at all. They have more difficulty in obtaining a trial, than any other litigants in getting a verdict. If they do extort a hearing, they are subjected to a set of logical requirements totally different from those exacted from other people. (Mill, 120).
The N.W.A.C. would have agreed that this position demonstrated their plight. For no other reason, than that their case involved too many issues that contrasted with those held by the general and narrow-minded opinion. This might have been why their case had as much difficulty as it did at trial and throughout the judicial process. Even the Supreme Court was clear. The Court did not want to deal with this issue at that time. The majority apologized for being unable to undo the plight of the N.W.A.C. But the specific requirements to prove a violation of Charter rights were not satisfied.
It could be argued that the Court had an obligation to treat the N.W.A.C. as it would any group or person who brought a case before it. In this case the Court failed to recognize that “the law should be no respecter of person, but treat all alike, save where dissimilarity of treatment by positive reasons is required either by justice or polity” (Mill, ibid). In this case an equality policy would have required that the government fund the N.W.A.C. as it did the other aboriginal groups. The positive enforcement of the guarantee to the right of freedom of expression should have been furthered. The government held that it only had the obligation to not restrict expression, but in this particular case the guarantee of equality before and under the law required positive enforcement of these rights.
This case was not only about the governments’ treatment of the N.W.A.C. Actually it was about the treatment of women in Western society collectively. Women have waited a long time to be recognized as citizens under the law. Women overall have fought a difficult battle. Historically women were not considered to be human by the male dominated society of the Western World.
But Mill argued:
…those who deny to women any freedom or privilege rightly allowed to men, having the double presumption against them that they are opposing and recommending partiality, must be held to the strictest proof of their case, and unless their success be such as to exclude all doubt, the judgment out to go against them. (Mill, 121)
Mill was not alone in his support of women’s rights. He argued that women were subjected to inferior treatment, especially in the political realm. Men as gender were perceived as being sexist. “There is no getting around the fact that the positive self-esteem of men has been centrally tied to their being sexists” (Thomas). In contrast, the Canadian government followed Thomas’s argument that “…men are supposed to protect women and provide them with the comforts of life” (Thomas).
There was another side to this case. The government argued that it could not fund every group that desired representation or assistance to facilitate freedom of expression. If the government funded the N.W.A.C., after having offered the native community as a whole the opportunity to elect their own representatives, than special interests group would surface from all sides asking for funding. Danley argued that “Kymlicka’s liberalism, then, fails to account for the morally significant differences between aboriginal and non-aboriginal cultural minorities” (Danley). Disabled persons and gay and lesbian rights groups could also claim, along with Semitic peoples and other minorities that the government likewise owed them compensation for past injustices. Further, they could have claimed that they needed funding to ensure equal representation in Canada, which is predominantly Catholic and Protestant country.
The government and the N.W.A.C. focused on different political objectives. The government’s case was based mainly on political obligations balanced against the economic actualization of their position. It was not certain that the government could have solved all the injustices affecting Native Peoples or those of women in general or any and all racial or political faction by compensating them.
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