The case of Native Women’s Association of Canada (NWAC) v. Canada can be considered unusual as it did not involve the typical actions that could restrict the freedom of expression. It is also notable that the claims were based on the Charter of Rights and Freedoms. In this paper, however, the case is reviewed based on the principles of administrative law. The report discusses the actions that violated the duty of fairness, the principles of discretion and credibility, and the duty to give reasons. In the paper, the decisions of the Minister are reviewed to outline the cases of violation of the mentioned principles. A possible decision based on administrative law issues is suggested. The paper concludes that the process did not comply with the principles of fairness and was not valid.
Administrative Law Principles and Issues
The case of the NWAC v. Canada involves several administrative law principles (NWAC v. Canada, 1994). The issue was raised due to improper distribution of funds by the Government of Canada, which provided financial support to four national organizations, including the Native Council of Canada (NCC), the Assembly of First Nations (AFN), the Metis National Council (MNC), and the Inuit Tapirisat of Canada (ITC).
At first, the NWAC did not receive funding directly from the government, although $10 million of all funding sources were earmarked for women’s issues (NWAC v. Canada, 1994). However, even after the Government of Canada granted NWAC $300,000 under a separate agreement, the total funding of the organization accounted for only 5% of the money received by four other organizations (NWAC v. Canada, 1994).
Moreover, the NWAC was not invited to the meetings regarding the Beaudoin-Dobbie Committee Report. The organization stated that the exclusion threatened the equality rights of Aboriginal women. As a result, the NWAC claimed that sections 2, 15, and 28 of the Charter of Rights and Freedoms were violated (NWAC v. Canada, 1994). Most of the claims were rejected; however, the Federal Court of Appeal declared that the federal government restricted Aboriginal women’s freedom of expression, which violated sections 2 and 28 (NWAC v. Canada, 1994).
The first issue related to administrative law is the duty of fairness. In the presented case, the duty of fairness is required as the court’s decision was administrative and had an impact on the rights, privileges, and interests of the organization (Cowan, 2018). It is evident that the duty of fairness was not achieved as the NWAC was not provided with an opportunity to fully express its views because it was not invited to participate in constitutional decisions (NWAC v. Canada, 1994). The organization was concerned that its pro-charter position would not be considered by male-dominated organizations. Although the court stated that the NWAC had other opportunities to express their views and ideas, it was not invited in the key discussion on constitutional reform, which did not allow for their full participation in the decision-making process.
Another significant administrative issue is the principle of discretion, which, in this case, was not properly exercised. Discretion is associated with decisions that do not have particular guidelines dictated by law and those in which decision-making parties have several options. In this case, the NWAC was excluded from the direct funding, which means that the use of discretion principle was improper (NWAC v. Canada, 1994). The Minister did not have a right not to exercise the jurisdiction that was assigned to him; moreover, discretion, in this case, was neither in the public interest nor the organization’s one.
It is crucial to mention the principle of credibility, which should be examined to understand why the NWAC did not receive the funding while other organizations did. It is possible to say that the government assessed the association’s credibility based on the accuracy and relevant background of its statements to decide whether it has a right to receive funding. As the decision not to provide financial support was made, the organization was deemed not credible.
However, the NWAC was not notified about the Minister’s concern about its credibility and did not have an opportunity to discuss the problematic issues. Moreover, no information on the background of such a decision was provided, which means that the organization could be deemed not credible based on the Minister’s personal perspectives. It is evident that such a decision-making process is not fair; its legitimacy is questionable.
Finally, the duty to give reasons is significant for this case. This principle is vital as it allows the parties involved in the court process to see that their arguments are accepted and considered. Moreover, it shows that the decision-makers are accountable, and their actions can be scrutinized (Beck, 2017). Finally, the duty to give reasons allows for creating a basis for decisions made in future cases. As mentioned above, the Minister provided no reasons for his choice, which violates this principle of administrative law. It means that there was no significant reasoning not to allow the NWAC to participate in the meeting and not to receive the funding directly.
Decision-Based on Administrative Law Principles
It is necessary to mention that if the case was framed on procedural fairness, not on the Charter of Rights, its outcomes would have probably been different. If I were the judge, my decision based on the identified administrative law principles would be the following. First, I would ensure that the duty of fairness is achieved. To do so, I would provide the reasoning for offering the NWAC a seat in constitutional meetings. I would insist that although some of the members of the NCC, the AFN, the MNC, and the ITC are women, these organizations are, indeed, male-dominated, which allows for their biased opinion.
Moreover, the NWAC could not express its views, unlike the other participants of the meetings, which is not in accordance with the duty of fairness. It is vital to mention that the inclusion of a female-dominated group would eliminate the lack of attention to women-related problems, which is beneficial for the government.
Second, I would ensure that the distribution of funds is fair or ask for the government’s detailed report on the existing funding plans to analyze the possible reasons for its financial decisions. I believe that the discrimination of the NWAC was not entirely intentional as $10 million were earmarked for women’s issues, which means that the government aimed to solve the existing problems related to female society (NWAC v. Canada, 1994). However, the money was not granted to the organization directly; thus, there was a lack of trust. The NCC, the AFN, the MNC, and the ITC were offered more power to distribute the funding, while the NWAC, which was potentially the most concerned about women’s issues, was deprived of this opportunity.
Third, I would ensure that the issue of discretion is properly exercised. To do so, I would analyze whether the Minister had a right to distribute the funding in the way he did. Moreover, I would ask the representatives of the government to provide the reasoning for not offering direct funding to the organization. I would insist that the documentation on the financial decision should show that the actions were made in the best public and the organization’s interests. If there were no significant evidence that the decision not to provide equal funding had reasonable grounds, I would state that the principle of discretion was violated.
Fourth, I would insist that the Minister should have informed the NWAC about his concerns regarding its non-credibility. I would also ask to provide the documentation and evidence of the lack of the organization’s capacity to participate in the decision-making process and receive equal funding. In case there was no evidence, I would insist that the Minister’s decision was biased and made according to his personal attitude, which is unlawful. Moreover, I would investigate whether the credibility of the organization was questioned only because the NWAC presented a minority group with low social status, which is commonly associated with little political influence and power.
Finally, I would ensure that the duty to give reasons is achieved. To do so, I would collect the Minister’s reports on each of the presented claims. The reports would include those on the NWAC’s actions that led to its exclusion from the meetings regarding the Beaudoin-Dobbie Committee Report and the organization’s improper distribution of assets in the past due to which the direct funding was not offered. Moreover, I would ask the Minister to provide significant reasoning for the inclusion of only male-dominated groups in the decision-making process to eliminate potential biased opinions and discrimination. The vital step would be to ensure that the Minister did not use his personal views to make decisions as it is unlawful.
Based on the results of my investigation and data collection, I would insist on the inclusion of the NWAC in the constitutional discussion, providing the organization with equal funding, and considering its pro-charter views in legal decisions. I would ensure that the organization is not excluded from the decision-making process due to insignificant and irrational reasons and that the potential bias in the Minister’s perspectives is eliminated. I would ensure that public interest is the government’s priority, which means that the needs of all groups of the population, including minorities and those of low social status, are considered. Thus, I would state that the process did not comply with the principles of fairness and was not valid according to the issues of the administrative law.
The analyzed case presents an example of the role of administrative law principles in the outcomes of proceedings. Although most of the claims of the NWAC were denied, the review of the administrative law principles shows that the process was not valid. The Minister failed to adhere to the duty of fairness, the principles of discretion and credibility, and the duty to give reasons. It means that the case should have been analyzed from the perspective of administrative law instead of the Charter of Rights and Freedoms.
Beck, L. (2017). The constitutional duty to give reasons for judicial decisions. University of New South Wales Law Journal, 40(3), 923-951.
Cowan, J. G. (2018). Administrative law in Canada. Web.
NWAC v. Canada, 3 S.C.R. 627 (1994).