IN THE SUPREME COURT OF CANADA (ON APPEALFROM THE FEDERAL COURT OF APPEAL)

Transcription

1 IN THE SUPREME COURT OF CANADA (ON APPEALFROM THE FEDERAL COURT OF APPEAL) Court FOe No BET WEE N: HER MAJES1Y THE QUEEN Appellant - and - NATIVE WOMEN'S ASSOCIATION OF CANADA GAIL STACEY-MOORE and SHARON McIVOR Respondents FACTUM OF THE INTERVENER INUIT TAPIRISAT OF CANADA JOHN C. TAIT, Q.C. Deputy Attorney General of Canada Department of Justice Ottawa, Ontario, KIA OH8 Tel.: (613) Fax: (613) Graham Garton Solicitor for the Appellant B~ROBERTSON,CHADWICK and RITCHIE 70 Gloucester Street Ottawa, Ontario, K2P 0A2 Tel:. (613) Fax: (613) Jennifer MacKinnon Ottawa Agents for the Respondents GOWLING, STRATHY& HENDERSON Barristers & Solicitors 160 Elgin Street Ottawa, Ontario KIP lc3 Tel.: (613) Fax: (613) Brian A Crane Solicitors for the Intervener Inuit Tapirisat of Canada SCOTT & AYLEN 60 Queen St. Ottawa, Ontario KIP 5Y7 Tel: (613) Fax: (613) Peter Doody Solicitors for the Intervener Assembly of First Nations

2 INDEX Pal:e No. PART I STATEMENT OF FACfS 1 PART II POINTS IN ISSUE 7 PART ill ARGUMENT 8 PART IV ORDER REQUESTED 17 PART V TABLE OF AUTHORITIES 18 APPENDIX I ORDER GRANTING LEAVE TO INTERVENE TAB A

3 PART I - STATEMENT OF FACfS 1. This factum is submitted by the Intervener Inuit Tapirisat of Canada (!litc") which was granted leave to intervene in this appeal pursuant to the order of Cory J. dated August, Order of Cory J., Appendix I, page For the purposes of this appeal ITC accepts the facts in the. factum of the Attorney General of Canada except for par~graph 13 which describes the position of the Aboriginal organizations with respect to Aboriginal self-government. The facts with respect to this issue are set out below. 3. ITC is a national organization which represents Canadian Inuit from the Northwest Territories, Northern Quebec and Labrador. Inuit women have their own organization, Pauktuutit (Inuit Women's Association of Canada), a non-profit organization incorporated in 1984 to represent all Canadian Inuit women. The Native Women's Association (NWAC) does not represent Inuit women. Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, page 558 Affidavit of Martha Greig, Case on Appeal. Volume 3, page The mandate of Pauktuutit is to foster a greater awareness of the needs of Inuit women and to encourage their participation in community, regional and national concerns in relation to social, cultural and economic development. Among the aims and objectives of Pauktuutit are the following: (a) (b) (c) to act and be recognized as the official representative for Inuit women; to work towards better conditions for all Inuit women; to motivate Inuit women to realize their potential as individuals and as a group;

4 2. (d) (e) (f) (g) (h) to promote self-confidence and reliance among Inuit women; to promote the rights of Inuit women and children; to promote the equality of Inuit women in all levels of Canadian governmental and non-governmental structures; to encourage the involvement of Inuit women in all levels of Canadian society; to encourage communication between Inuit women and all Aboriginals. Pauktuutit's Aims and Objectives, Case on Ap-peal.Volume 3, page ITC has represented the Inuit in constitutional discussions with the Government of Canada. Pauktuutit was represented in these discussionsthrough ITC. Affidavit of Rosemarie Kuptana, Case on Appeal, Volume 3, page Constitutional negotiationswere the responsibilityof an ITC Committee called the Inuit Committee on Constitutional Issues. At the time of the application before the Trial Division, the Committee consisted of seven members, three of whom were women. The President of Pauktuutit is a full member of this Committee and staff and consultants from Pauktuutit participate in technical working groups. Pauktuutit did not seek separate funding from the Government of Canada but participated in the constitutional process through ITC. As stated by Martha Greig, the Vice-President of Pauktuutit: "Inuit women will have a full opportunity to express their views on constitutional reform and Inuit self government through their full participation on the Inuit Committee on Constitutional Issues and with the assistance of the constitutional funding provided to it by the I.T.C.". Affidavit of Martha Greig, Case on Appeal, Volume 3, page 562, paras. 6-8; page 563, para. 9; Affidavit of Rosemarie Kuptana, Case on ApJ>eal.Volume 3, page 559, paras.5-6

5 3. 7. Of the constitutional funding that ITC received in the fiscal year, approximately $170,000was turned over to Pauktuutit for research and other work related to constitutional issues. At the time this matter came before the Trial Division, it was expected that ITC would continue to turn over a significant portion of such funds to Pauktuutit to work on constitutional matters. Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, page 559, para. 6 Affidavit of Martha Greig, Case on ApJ)eal.Volume 3, page 562, paras The only direct evidence with respect to the position of ITC in the constitutional negotiations are the affidavitsof Rosemarie Kuptana and Martha Greig which were filed in the Trial Division. There was no cross-examination on these affidavits. 9. Both Rosemarie Kuptana and Martha Greig stated that ITC was not a male dominated organization. At the time of the trial both the President and the Secretary- Treasurer of ITC were women. The President of Pauktuutit, Martha Flaherty, was a full voting member of the Board of Directors of ITC by virtue of her position as President of Pauktuutit. Affidavit of Martha Greig, Case on Appeal. Volume 3, page 563, para. 5 Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, page 559, para. 4. Rosemarie Kuptana stated with respect to the position of ITC on the application of the Charter to Aboriginal self-government: "7. The Inuit Tapirisat is willing to consider the application of the Canadian Charter of Rights and Freedoms to Inuit self government arrangements which may be negotiated between the Inuit and the Government of Canada."

6 4. This is the only evidence in the record with respect to the position of ITC on this matter. Affidavit of Rosemarie Kuptana, Case on AP.veal.Volume 3, page 560, para ITC received funding from the Government of Canada under the 1991 Contribution Agreement. As noted above, the work of Pauktuutit in relation to constitutional matters was funded by ITC from monies received from this Contribution Agreement. Any curtailment of such funding from the federal government would impact directly on the ability of Pauktuutit to participate effectively in the constitutional review process. Affidavit of Martha Greig, Case on Appeal. Volume 3, pages , paras.7-11 Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, page 559, para This matter was brought on before the Federal Court, Trial Division on an. urgent basis. The Originating Notice was dated March 17, 1992 and the matter was heard by Mr. Justice Walsh on March 25, Applications to intervene were made by the Metis National Council (MNC), the Native Council of Canada (NCC) and ITC. The Assembly of First Nations (AFN) did not apply to intervene in the proceedings. The interventions were opposed but Mr. Justice Walsh granted the applications. 14. The position of the NCC with respect to the application of the Charter was set out in the affidavit of Ron George: "Since its establishment in 1972the Native Council of Canada has worked to protect the Aboriginal and treaty rights of all Indian and Metis people, male and female. As the above paragraphs (sic) show it has participated actively in the process to remove discrimination against women contained in the Indian Act. The Native Council of Canada has also worked activelyto ensure

7 5. that the rights of all Indian and Metis people, male and female, are protected by amendments (sic) to the Constitution of Canada. Furthermore, the Native Council of Canada has not advocated and does not support any lessening of the rights enjoyed by all Indian and Metis people, male and female, under the CanadUmC.harter of Ri~ts and Freedoms." Affidavit of Ron George, Case on Appeal. Volume 3, page 470, para. 7; Cross-Examination of Ron George, Case on Ap-peal.Volume 3, pages The NCC provided some funding to NWAC for the study of women's issues. During 1991/92 the sum of $1,000was provided to NWAC by NCC. The NCC also assigned four of its seats. at the March 13-15, 1992 Aboriginal Conference on the Constitution to NWAC. Cross-Examination of Ron George, Case on Appeal. Volume 3, page Furthermore, NCC set up a Constitutional Review Commission in order to study the constitutional proposals. NWAC participated in the work of the Constitutional Review Commissionwhich held sixregional assembliesacross Canada. The executive of the Commission consisted of six people, three of whom were women. Cross-Examination of Ron George, Case on Appeal, Volume 3, pages Ron Rivard stated that MNC supported the retention of the Canadian Charter Rights and Freedoms, includingsection 15. Further, MNC had supported the constitutional entrenchment of gender equality between Aboriginal men and women as set out in Section 35(4) of the Constitution Act Affidavit of Ron Rivard, Case on Ap-peal.Volume 3, page 505, paras.6-7; Cross Examination, Case on Appeal. Volume 3, pages 5-543

8 A number of other native women's organizations including the Alberta MetiS Women of the Metis Nation of Alberta, Metis Women of Manitoba Working Group, Metis Women's Association of Saskatchewan, and the National Metis Women of Canada were referred to in the evidence of Mr. Rivard. Affidavit of Ron Rivard, Case on Ap'peal. Volume 3, pages , paras.9-14 Cross-Examinationof Ron Rivard, Case on Ap'peal.Volume 3, pages ; pages

9 7. PART II - POINTS IN ISSUE 19. The followingare the points in issue in this appeal. Points Raised by the Appellant (1) Whether the declaratory judgnient of the Federal Court of Appeal was made without regard to the evidence before it. (2) Whether the subject matter of the declaratory judgment was non-justiciable. (3) Whether the Charter of Rights and Freedoms was inapplicable in the circumstances. (4) Whether the Respondents' claims of Charter infringements were of a merely speculative nature. (5) Whether the Respondents have established that their rights and freedoms had been infringed. Point Raised by the Individual Respondents (6) Whether the appeal is moot.

10 8. PART III - ARGUMENT. The Intervener ITC makes submissions on the followingpoints: (a) mootness; (b) (c) characterization of ITC in the courts below; infringement of the Charter. Mootness 21. This appeal is not moot. The Federal Court of Appeal issued a declaration which will be applicable to future federal funding of Aboriginal groups. The judgment therefore can have a direct future impact upon Aboriginal groups in relation to the funding of constitutional consultations. This is made clear from the following passage in the reasons. of the Court of Appeal: "Parliament has the right to provide funding or not as it chooses but, in choosingto fund, it is bound to observe the requirements of the Charter. The government, in exercising a discretion to fund that Parliament has given it, must be equally bound. Generally, I should think a decision to fund will be made on the basis of need to permit effective and informed expression by an otherwise handicapped and particularly concerned interest group. A proper decision to fund one group but not another should be readilyjustifiable under s.l of the Charter. The floodgates argument would be entirely without foundation if the conditions of entitlement to funding were prescribed by law, that is Act of Parliament or regulation, so that s.l might be invoked. The floodgates argument is, in the present circumstances, essentially an argument of administrative convenience which ought not to prevail when a constitutionally guaranteed right or freedom has been proved to have been infringed."

11 9. -Reasons for Judgment of the Court of Appeal, Case on AppeaL Volume 4, pages Formal Judgment of the Court of Appeal, Case on Appeal, Volume 4, page Characterization of ITC in the Courts Below 22. The trial judge described the position of ITC as follows: "The Inuit Tapirisat in seeking to intervene contend that they have factual evidence to submit different-from that of the others, to the effect that Applicants do not represent them as their women have their own association, that they are not seeking separate funding and that in their societywomen are not disadvantaged and do not contend that they are". Reasons of The Trial Judge, Case on Appeal, Volume 4, page It is submitted that there was no evidence before the trial judge that in Inuit society ''women are not disadvantaged and do not contend that they are". Furthermore, a fair reading of the "Aimsand Objectives of Pauktuutit" demonstrates that Inuit women are seeking equality of opponunity and equality of representation so that in the future they will not be disadvantaged. Motion to Intervene, Case on Appeal, Volume 1, page 15 Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, page 558 Affidavit of Manha Greig, Case on Appeal, Volume 3, page 561 Aims and Objectives of Pauktuutit, Case on Appeal, Volume 3 page The trial judge noted that ITC was willing to consider the application of the Charter to Inuit self-governmentand that Pauktuutit would participate in any discussionwith respect to the application of the Charter. The trial judge further stated that the position of NCC was "somewhat more equivocal"since NCC took the position that the Charter should apply to "Indian Act Governments" but also that self-government activities fell within the

12 U " UL U Ui L~.I"'~p~"'L U].l"U'l'l, WW\.:ll auvucales a contrary result, nor by the ambivalence of NCC and ITC." Reasons of the Court of Appeal, Case on Ap-peal,Volume 4, pages u." "p "'L4LUi)'~UUUULL~U Wen 1L1~wa\.:\.:w'att: tu cnaraclenze me posluon ot ITC in relation to the application of the Charter as "ambivalence". The only evidence in the record as to ltc's position is the statement,in the affidavit of Rosemarie Kuptana that as of March 24, 1992 ITC was willing to consider the application of the Charter to arrangements for Inuit self-government to be negotiated in the future. At that time the constitutional negotiations were just beeinning. Furthermore, the Charter is not the only avenue for the protection of the rights of Aboriginal women. Amendments to Section 35 and an Aboriginal Charter of Rights.have also been advocated. Affidavit of Rosemarie Kuptana, Case on Appeal, Volume 3, page 560, para The evidence is that Inuit women were represented through their own organization, Pauktuutit, which was an active participant in the constitutional process through the Inuit Committee on Constitutional Issues. As stated by both Martha Greig, the Vice-President of Pauktuutit, and Rosemarie Kuptana, NWAC did not represent Inuit women. Affidavit of Rosemarie Kuptana, Case on Appeal. Volume 3, pages Affidavit of Martha Greig, Case on Appeal, Volume 3, pages ITC represented Inuit women in the constitutional consultations and did not purport to put forward positions on behalf of NWAC. Rather, ITC put forward positions in conjunction with Pauktuutit on behalf of Inuit women. Further, ITC was open to considering the application of the Charter to Inuit self-government.

13 12. The Charter. The Court of Appeal held that any right to equal participation in constitutional consultations was not an existing Aboriginal or treaty right recognized and affirmed by Section 35(1) and that the gender equality right under Section 35(4) was inapplicable. Reasons of the Court of Appeal, Case on Appeal. Volume 4, page The Court of Appeal also held that the equality rights guaranteed by Section 15 of the Charter did not appiy, since there was no present denial of a Section 15 right:. ''The individual Appellants fear losing that equality if Aboriginal selfgovernments, unbound by the Charter. are created. I accept that most, if not all, individual members of NWAC very likely share that fear. Most should, again applying the norms of Canadian society as a whole. The threat, however, is not itself a present denial of a right under s.15. If, as and when the feared result is realized, it will be by means of a constitutional amendment to whichthe federal government and Parliament and the required number of provincial governments and legislatureswill have been party. Such an outcome of a future legislative process cannot be predicted. Such a "merely hypothetical consequence"is no basis for the Court interfering in the current constitutional review process." Reasons of the Court of Appeal, Case on ApJ>eal.Volume 4, pages It is also submitted that in consulting with AFN, ltc, MNC and NCC, government was not acting contrary to the equality principles expressed in Sections 15 and 35(4). The national Aboriginal organizations do represent the first peoples of Canada and all are democratic in nature. In fact, women participate in their decision making and, in the case of ltc, that participation was shown to be significant. It is submitted that there is no gender discrimination in the action of government in this case.

14 or ~ecnon..:::;~ D) ana ~ecuon ~ ot the Cbarter: "In my opinion, by inviting and funding the participation of those organizations in the current constitutional review process and excluding the firyb~~i~8~ar'ann~~si&e tch~ Y:'1fi~ireeQomo(wntcnis-guaranteed to everyone by s.2(b) and which is, by s.28, guaranteed equally to men and women. It has thereby taken action which has had the effect of restricting the freedom of expression of Aboriginal women in a manner offensive to ss.2(b) and 28 of' the Charter. In my opinion, the learned trial judge erred in concluding otherwise." Reasons of the Court of Appeal, Case on Apj>eal.Volume 4, page The formal judgment expressed this slightly differently: "IT IS DECLARED 1HA T the Appellants' freedom of expressionguaranteed them by Sections 2(b) and 28 of the Canadian Charter of Ri~ts and Freedoms was infringed by the Government of Canada denying the Native Womens' Association of Canada equal participation to that accorded the Intervenants and the Assembly of First Nations in the constitutional review process initiated by its publication of the document entitled Shaping Canada's Future Together - Proposals." Formal Judgment of the Court of Appeal, Case on Apj>eal.Vol. 4, pages It will be seen that the Court of Appeal reached its conclusion by the followingreasoning. (a) Participation in the constitutional review process, in a manner equal to that of the other Aboriginal organizations, constituted the exercise of "an expressive activity"the freedom of which was guaranteed by the Charter;

15 _ (b) NWAC's views were not represented by the other Aboriginal organizations; the advocates of male dominated Aboriginal self-governmentwere placed in a preferred position. (c) By excluding NWAC from equal participation in this process, Canada unlawfullyrestricted the freedom of expression of Aboriginal women contrary to Sections 2(b) and 28 of the Charter. 36. The Respondents can only succeed if this Court finds that NWAC had a constitutional right to participate in the process of constitutional consultation with government. It is submitted that NWAC had every right to advocate its position in the press and by petitioning the government and, in fact, it fully exercised these rights.- But NWAC did not have a constitutionally protected right to participate in consultations which were organized and funded by government. 37. It is submitted that the Government of Canada is obliged as a matter of constitutional law to invite representatives of the Aboriginal peoples of Canada to participate in constitutional conferences relating to their rights, an obligation which is based upon s.35.1of the Constitution Act. 1982and on the fiduciary duty of the Crown. However, so long as representatives of the Aboriginal peoples are invited to such conferences, the Crown is not obligated to invite a particular sub-group, such as NWAC, to participate. Constitution Act s.35; s.35.1 Mary Ellen Turpel, "Indigenous Peoples' Rights of Political Participation and Self Determination: Recent International Legal Developments and the ContinuingStrugglefor Recognition"25 Cornell International Law Journal 599 (1992). 38. This is not a case where government failed to consult with Indian, Inuit and Metis peoples. Rather, government agreed that such consultationswould take place through AFN, ltc, MNC and NCC. For the past few years, the four national Aboriginal

16 39. Nor did Aboriginalwomen lack representation. Their viewswere put forward through AFN, ltc, MNC, and NCC and these views were reflected in the final text. Respondents' Factum, page 31, para. 91 Appellant's Factum, page 26, para. 54 AFN Factum, pages -14,paras The development of a political consensus on any subject involves choices as to the method of political consultation. Government will fail to consult at its peril because political forces could weaken any consensus that has been built, but the process of consultation should not be constrained by judicial control. Native Women's Association of Canada v. Canada [1993] 1 F.e The consultationswhichtook place at a governmental or an intergovernmental level are not part of a legislativeprocess as such, but they are part of a process of political consultation leading to legislation with which the courts should not interfere. Penikett v. The Queen, (1987) 45 D.LR. (4th) 8; [1988] 2 W.W.R. 481 (Y.T.e.A.) Sibbeston v. Canada, (1988) 48 D.LR. (4th) 691 (N.W.T.C.A) Native Women's Association of Canada v. Canada [1993] 1 F.C The individual Respondents have conceded that Section 2(b) of the Charter does not provide a right to a particular means of expression and that government is not constitutionally required to devote public resources so that persons or groups may exercise their freedom of expression.

17 16. Respondents' Factun1,pages -31, para. 90 Haig v. Canada [1993]2 S.C.R While there is a right under Section 2(b) to express views in public using recognized forms of communication, this right does not extend to participation in consultation meetings or other private gatherings in which government is involved. As was said in Haig with respect to the right of the individual to participate in the constitutional referendum: "In my view, though a referendum is undoubtedly a platform of expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its. citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expressionto anyone. let alone to evetyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law."(emphasis in the text) Haig v. Canada [1993]2 S.C.R. 995, per L'Heureux-Dub6 J. at 41 ommittee for the Commonwealth of Canada v. Canada [1991] 1 S.C.R. 139,228 Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) Re B -Law No. R of the Re.onal Munici ali Wentworth (1986) 54 O.R.(2d) 21 (ant. Div.Ct.) of Hamilton Re Allman and mmissioner of he N rthwe t Territorie (1983) 8 D.LR. (4th) 2, 236 (N.W.T.C.A) 44. It is respectfully submitted that NWAC's freedom of expression rights were not infringed in this case. Government may not have consulted with NWAC, or more accurately did not consult to the extent that NWAC felt necessary, but participation by a particular group in such a process is not guaranteed by Section 2(b) of the Constitution. There being no infringement of Section 2(b) there is no infringement of Section 28.

18 45. It is submitted that the appeal be allowed and the judgment of the Federal Court of Appeal set aside. ALL OF WInCH IS RESPECfFULLY SUBM1Tn:~;D Of Counsel for the Intervener Inuit Tapirisat of Canada

19 18. LIST OF AUTHORITIES 1. Committee for the Commonwealth of Canada v. Canada [1991] 1 S.C.R. 139, Minn 465 U.S. 271 (1984) 3. Native Women's Association of Canada v. Canada [1993] 1 F.C Perukett v. The Oueen. (1987) 45 D.L.R. (4th) 8; [1988]2 W.W.R. 481 (Y.T.CA). Re Allman and Commissioner of the Northwest Territories (1983) 8 D.L.R.. (4th) 2, 236 (N.W.T.CA) 6. Re By-Law No. R83-U'1 t gt (1986) 54 O.R.(2d) 21 (ant. Div.Ct.) 7. Sibbeston v. Canada. (1988) 48 D.L.R. (4th) 691 (N.W.T.CA)

20 BETWEEN: 1\D D t:"~ii'i T V T ON WEDNESDAY, THE ~TH DAY OF AUGUST,_~~~3 HER MAJESTY THE QUEEN, AND: NATIVE WOMEN'S ASSOCIATION OF CANADA, GAIL STACEY-MOORE AND SHARON MCIVOR, ORDER RESPONDENTS UPON APPLICATION by counsel on behalf of the Inuit Tapirisat of Canada for an Order granting leave to intervene in this appeal and upon reading the Affidavit of Chesley Andersen; IT IS ORDERED that the Inuit Tapirisat of Canada be granted leave to intervene in this appeal; AND IT IS ORDERED that the Inuit Tapirisat of Canada be granted leave to file a page factum; AND IT IS FURTHER ORDERED that the Inuit Tapirisat of Canada be granted leave to present minutes of oral argument on the appeal.