Native Women's Association of Canada v. Canada

Authors' Note

The decision by the Women's Court of Canada to recruit us to write the judgment in Native Women's Association of Canada v. Canada was taken in full knowledge that we had played a significant role in the original case, leading to the Supreme Court of Canada decision from which this "reconsideration" is taken. Sharon McIvor was one of the individual applicants. Teressa Nahanee was a key constitutional advisor to the Native Women's Association of Canada (NWAC) and was instrumental in its work throughout the early 1980s to secure Aboriginal women's equality in self-government. She and Sharon McIvor were among the major architects of the NWAC strategy in this period. Mary Eberts was retained by the NWAC to represent it in the original application to compel Canada to fund it and allow it equal participation, and she represented the NWAC throughout all of the stages of this case and through the subsequent application for an injunction to quash the national referendum on the Charlottetown Accord.

As authors of this Women's Court of Canada decision, we have thus been given an opportunity that no other litigants and counsel may possibly ever have—writing the decision in one's own case. In doing so, we have revisited the questions at issue in the original proceeding and added one more—a consideration of the meaning of "representatives of Aboriginal peoples" in section 35.1 of the Constitution Act, 1982, which is considered only peripherally by some, but not all, of the judges who gave reasons in the original case. Developments since the Supreme Court of Canada's decision in the NWAC case, particularly the increasing occurrence of discussions, negotiations, and consultations between governments and Aboriginal peoples, have heightened interest in this issue of representativeness.

Our role as the Women's Court of Canada bench in this appeal does, we acknowledge, defy the conventions of judicial impartiality and disinterestedness, as does the composition of other benches in the Women's Court of Canada project. More significantly, our involvement in this judgment illustrates the combination and recombination of roles that women's equality advocates must undertake in the struggle to achieve substantive equality. Women from the grassroots are fundraisers, litigants, and participants in consultations to develop arguments in test cases and are instrumental in creating and maintaining the non-governmental political organizations that both lobby and litigate in the search for equality. Women academics create knowledge that is used in women's litigation and, in doing so, undermine old "knowledge" that has been used to confine women. They step out of the classroom into the courtroom, non-governmental organizations, and government lobbies and then back again to write, teach, and lecture, mentoring and inspiring new generations of equality advocates. Barristers, too, create and destroy knowledge and fashion arguments in collaboration with women from the grassroots and the academy. Given the magnitude of the task, achieving equality does not permit any woman to play only one role.

Transcending all of these roles is the daily practice of the equality seeking that women do in our families, our workplaces, and our communities. As illustrated so vividly by the experience of Aboriginal women during the constitutional debates of 1980 to 1987 and beyond, this daily practice of equality is not risk free and can require enormous courage.

Working Together

The office of the National Speaker was upstairs at the NWAC office on Melrose Avenue in Ottawa. We spent so many hours and days there over the years working on this case and the successor case that challenged the referendum. Gail Stacey-Moore, Sharon, and Teressa would tell stories about Mary Two-Axe Early, running the blockade in the Oka crisis, the Women's March from New Brunswick to Ottawa, and other cases. Gail once said that she was sure the women were going to prevail in their struggles—if not in her lifetime, then in her children's, or their children's. They would just keep going. The stories were sometimes humorous, and, in spite of the crisis conditions in...