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The Women?s Court of Canada: Native Women?s Association of Canada v. Canada

By Mary Eberts, Sharon McIvor, and Teressa Nahanee

TheCourt.ca is very pleased to reproduce the decisions of the Women’s Court of Canada. In 2004 this group of feminist / equality Charter activists, lawyers, and academics, decided to do something about what they saw as the sorry state of equality jurisprudence under s. 15. The solution, rewrite the key decisions of the Supreme Court of Canada in this important area. The first six judgments of the Women’s Court of Canada have now been published in Volume 18 of the Canadian Journal of Women and the Law.

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The Women?s Court of Canada reconsiders the 1994 case of Native Women?s Association of Canada v. Canada, in which the Supreme Court of Canada upheld the federal government?s decision to exclude the Native Women?s Association of Canada (NWAC) from constitutional negotiations concerning the Aboriginal right to self-governance. The Women?s Court reviews the backdrop to the constitutional negotiations, and highlights the generally egalitarian role of women in Aboriginal societies historically. This position has been eroded by Canadian legislation and policy, in which the patriarchal structure and discrimination imposed by the Indian Act continues to influence the activities of ??Indian?? bands. Considering the full meaning of sections 35.1, 37, and 37.1 of the Constitution Act, 1982, the Women?s Court finds that Aboriginal women are “aboriginal peoples” with the right to be consulted on constitutional change. Given that no group chosen by the government had a willingness to represent the interests of Aboriginal women, the failure to include women?s representative organizations in the constitutional talks is a breach of sections 35.1, 37, and 37.1. In light of the NWAC?s differing position on the application of the Charter to Aboriginal governments, the federal government?s actions amount to a restriction on Aboriginal women?s expression, contrary to sections 2(b) and 28 of the Charter.

The claimants? rights under section 15 of the Charter were also violated by the federal government. Aboriginal women?s exclusion from the constitutional discussions cannot be explained by any lack of capacity or ameliorative purpose, and individual dignity and worth is closely linked to the ability to take an active and autonomous part in the governance of one?s community. By similar reasoning, the exclusion also amounts to a violation of Aboriginal women?s equality rights in section 35(4) of the Constitution Act, 1982. The Women?s Court holds that these violations cannot be justified, as the federal government did not offer a sufficiently significant objective for the exclusion of the NWAC from the constitutional talks, and the deleterious effects of excluding the NWAC outweigh any purported advantage. The Women?s Court orders Canada to reconvene the constitutional conferences held pursuant to sections 37, 37.1, and 35.1, inviting the NWAC as a full participant.

Le Tribunal des Femmes du Canada réexamine la décision de 1994 de la Cour suprême du Canada dans l?affaire Association des femmes autochtones du Canada («AFAC») c. Canada en vertu de laquelle la Cour a entériné la décision du gouvernement fédéral d?exclure l?AFAC des négociations constitutionnelles avec les autochtones concernant l?autodétermination autochtone. Le Tribunal des Femmes retrace l?historique des conférences constitutionnelles et met en relief le rôle égalitaire que les femmes ont traditionnellement joué dans les communautés autochtones. Cette position a été sapée par la loi et la politique du Canada, dont le caractére patriarcal et discriminatoire imposé par la Loi sur les Indiens continue d?exercer une influence malheureuse sur les activités des bandes « Indiennes ». En donnant pleinement effet aux articles 37, 37.1 et 35.1 de la Loi constitutionnelle de 1982, le Tribunal des Femmes juge que les femmes autochtones sont des « peuples autochtones du Canada » ayant le droit d?être consultés en cas de changement constitutionnel. Étant donné qu?aucun groupe de´signé par le gouvernement fédéral n?était prêt a` représenter les intérêts des femmes autochtones, le défaut d?inclure des groupes de femmes autochtones viole les articles 37, 37.1 et 35.1. Les gestes posés par le gouvernement fédéral constituent des contraventions à la liberté d?expression des femmes autochtones en vertu de l?alinéa 2 b) et de l?article 28 de la Charte, puisque l?AFAC pro?nait une interprétation différente de l?application de la Charte aux gouvernements autochtones.

Le gouvernement fédéral a également porté atteinte aux droits de la demanderesse prévus à l?article 15 de la Charte. L?exclusion des femmes autochtones ne peut s?expliquer par un manque d?espace ni par un but améliorateur; de plus, la dignité et le mérite d?une personne est étroitement liée à la possibilité de prendre une part active et autonome dans le gouvernement de sa propre communauté. Pour les me?mes raisons, l?exclusion viole également les droits des femmes autochtones en vertu du paragraphe 35(4) de la Loi constitutionnelle de 1982. Le Tribunal des Femmes juge que ces violations ne peuvent se justifier étant donné que le gouvernement fédéral n?a pas fait la preuve d?un objet suffisamment important pour exclure les femmes des négociations constitutionnelles et les effets ne´fastes de l?exclusion des femmes l?emportent sur tout avantage pre´tendu. Le Tribunal des Femmes ordonne au gouvernement fédéral de convoquer a` nouveau une conférence constitutionnelle conformément aux articles 37, 37.1 et 35.1 de la Loi constitutionnelle de 1982, en y invitant l?AFAC en qualité de participante a` part entiére.

Reconsideration of Native Women?s Association of Canada v. Canada, [1994] 3 S.C.R. 627 (judgment of the Supreme Court of Canada reversed).

The decision of the Women?s Court of Canada was delivered by:
MARY EBERTS, SHARON MCIVOR, AND TERESSA NAHANEE

I. Introduction

1. This is a reconsideration of the decision of the Supreme Court of Canada in Native Women?s Association of Canada v. Canada, [1994] 3 S.C.R. 627 (NWAC SCC). There are four questions before the Women?s Court of Canada on this reconsideration, the first originating in this court and the other three arising directly from the decision of the Supreme Court of Canada. The questions are:

1) Does the phrase ??representatives of the aboriginal peoples of Canada?? in section 35.1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, include female representatives of the Aboriginal women of Canada in their own right?

2) Did the government of Canada violate the equal right to freedom of expression of the individual appellants or of Aboriginal women represented by the appellant Native Women?s Association of Canada (NWAC), as guaranteed by sections 2(b) and 28 of the Canadian Charter of Rights and Freedoms, by denying them the equal right to participation and funding in the constitutional amendment discussions?

3) Did the Government of Canada violate the equality rights of the individual appellants or of Aboriginal women represented by NWAC, as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982 by denying them the equal right to participation and funding in the constitutional amendment discussions?

4) Did the government of Canada violate section 35(4) of the Constitution Act, 1982, by failing to recognize existing Aboriginal and treaty rights, which are guaranteed equally to male and female persons?

2. In our reconsideration, we formulated question 1 because of our view that no examination of the role of Aboriginal women?s organizations in constitution making that affects Aboriginal peoples would be complete without attention to the proper interpretation of section 35.1 of the Constitution Act, 1982. Section 35.1, which was added by the Constitutional Amendment Proclamation, 1983, SI/84-102, provides as follows:

s. 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

3. Although question 1 arose originally in the context of the constitutional discussions in 1991 and 1992, known as the Canada Round, it has an importance well beyond that phase in Canada?s constitutional history. The Charlottetown Accord, which was produced in the Canada Round and defeated in a national referendum held 26 October 1992, recognized in Article 29 that the Aboriginal peoples of Canada have the inherent right of selfgovernment within Canada and recognized the governments of the Aboriginal peoples of Canada as constituting one of three orders of government in Canada. It provided for continuing negotiations between Canada, the provincial and territorial governments, and the Aboriginal peoples of Canada for the implementation of the right to self-government (draft legal text, based on the Charlottetown Accord, 28 August 1992 and 9 October 1992, Article 29, at 37-43). Although these and related provisions were lost with the defeat of the accord, Canada and the provinces and territories continue to engage in discussions and negotiations with Aboriginal peoples about a range of matters of enormous significance.

4. In 1995, Canada issued a policy guide outlining its approach to implementation of the inherent right to self-government and the negotiation of self-government agreements (Canada, Federal Policy Guide: Aboriginal Self Government (Ottawa: Minister of Public Works and Government Services, 1995)). In British Columbia, a six-stage treaty process was incorporated into the British Columbia Treaty Commission Agreement of 1992. There are now fifty-seven First Nations participating in the BC treaty process (British Columbia Treaty Commission Agreement Six-Stage Treaty Process, found here, accessed 2 July, 2007; and Negotiation Update, accessed 2 July, 2007). Canada and the Assembly of First Nations have entered an accord on the recognition and implementation of First Nation governments (A First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments, 31 May 2005). In none of these processes do Aboriginal women negotiate through Aboriginal women?s organizations. Nor is there yet any authority in Canadian law that mandates consultation with women through women?s organizations when the duty to consult Aboriginal peoples is placed before governments making decisions that affect their rights (see, for example, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada (Minister of Canada Heritage), 2005 SCC 69; and Metis National Council of Women and Sheila D. Genaille v. Attorney General of Canada, 2005 FCA 77).

5. By the time the NWAC case was heard by the Supreme Court of Canada in 1994, the Canada Round and the Charlottetown Accord were well past, but the Supreme Court of Canada dismissed an application to declare the appeal moot. We agree with this determination, particularly in light of the continuing resort to negotiations and consultations as a way of recognizing the rights and addressing the needs and the future of Aboriginal peoples. The NWAC case deals with fundamental and far-reaching issues about which “representatives of Aboriginal peoples” are to be included in constitutionally mandated constitutional discussions that transcend the particular fact situation in this appeal. The principles governing constitutionally mandated discussions will, in turn, have an important impact on the issue of representation in other negotiations, discussions, and consultations.

6. Section 35(1) of the Constitution Act, 1982 provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Aboriginal women?s rights are also constitutionally entrenched in section 35(4), which states that “aboriginal and treaty rights… are guaranteed equally to male and female persons.” Finally, it was section 37.1 that constitutionally mandated first ministers to consult the Aboriginal peoples in four national meetings called for that purpose after the passage of the Constitution Act, 1982 (Constitutional Amendment Proclamation, 1983, supra, repealed 18 April 1987). The Supreme Court of Canada and the lower courts erred in law by not considering the full meaning of these sections, which, in our view, together signify that “Aboriginal peoples” includes Aboriginal women and gives them the right to be consulted on constitutional change. We find that the refusal by first ministers and the prime minister to accord the NWAC and its constituents the right to be consulted first-hand was such a fundamental error that the meetings mandated under section 37.1 should be deemed not to have taken place. In the absence of women representing their own interests at the section 37.1 constitutional talks, the prime minister and first ministers are deemed to have not consulted with Aboriginal peoples ? a term that includes “women.”

II. Constitutional History

A. Aboriginal Rights in the Canadian Constitution 1981?7

7. Before describing the judicial history of this case, we set out the background to the constitutional amendment process that gave rise to it. Establishing the historical context for any litigation involving Aboriginal peoples is critical to a complete understanding of the perspective they have on their rights and the interpretation of those rights. Since the enactment of section 35(1), the Supreme Court of Canada has set out the need to contextualize Aboriginal rights as they were practised in the pre-contact period and how they ought to be interpreted today.

8. The version of section 35 of the Constitution Act, 1982, as originally entrenched in 1982 included only two subsections:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

9. These two subsections were hard won. The original model for Aboriginal rights in the proposed new Constitution Act, 1982 was the undeclared rights model, whereby a saving provision (eventually section 25 of the Charter) would specify that the guarantee in the Charter of certain rights and freedoms should not be construed as denying the existence of other rights and freedoms, including “any rights or freedoms pertaining to the native peoples of Canada.” The National Indian Brotherhood (NIB), which later became the Assembly of First Nations (AFN) opposed patriation without the entrenchment of Aboriginal and treaty rights. The NIB, the Native Council of Canada (NCC), and the Inuit Committee on National Issues (a predecessor of the Inuit Tapirisat of Canada (ITC)) appeared before the Special Joint Parliamentary Committee in December 1980 with specific proposals for the entrenchment of rights. In January 1981, the government of Canada produced a new version of the Constitution Act, 1982, recognizing and affirming the Aboriginal and treaty rights of the Aboriginal peoples of Canada, who were defined as including the Indian, Inuit, and Metis peoples.

10. At the November 1981 First Ministers? Conference on the Constitution, a new accord was reached that withdrew this recognition of Aboriginal rights. A series of public protests and other actions were undertaken by the Aboriginal Rights Coalition, a group including the NCC, the Inuit Committee on National Issues, the NWAC, the Dene Nation, the Council for Yukon Indians, the Nishg?a Tribal Council, and the National Association of Friendship Centres. These protests led to the inclusion of sections 35(1) and (2) in the Constitution Act, 1982 three weeks after the November first ministers? meeting (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Volume 4: Perspectives and Realities (Ottawa: Royal Commission on Aboriginal Peoples, 1996) at 70-71, here, [RCAP Final Report] accessed 2 July, 2007). However, right up until patriation in April 1982, the NIB and various provincial Aboriginal organizations, tribal councils, and individual chiefs pursued a vigorous lobby strategy in the United Kingdom, including representations to Westminster and the filing of legal action (see James Youngblood Henderson, I.P.C., First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society (Saskatoon: Native Law Centre, University of Saskatchewan, 2006) at 25-34).

11. Section 37 of the Constitution Act, 1982 obligated the prime minister of Canada to convene a constitutional conference within a year of the act coming into force and to include in the agenda of that conference an item respecting constitutional matters that directly affected the Aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada. Section 37(2) required the prime minister of Canada to invite representatives of the Aboriginal peoples of Canada to participate in the discussions on that item.

12. The first ministers? conference mandated by section 37 was held in March 1983, and a constitutional accord was signed by the government of Canada, all provincial and territorial governments except Quebec, and by the representatives of the Aboriginal peoples who attended the meeting. This accord, later proclaimed as the Constitutional Amendment Proclamation 1983, supra, added two new subsections to section 35:

(3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provisions of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

13. The Constitutional Amendment Proclamation, 1983 also added section 35.1, described earlier, and section 37.1. Section 37.1 required the convening of at least two more first ministers? conferences on the Constitution, at which constitutional matters that directly affected the Aboriginal peoples of Canada would be on the agenda. The prime minister was obligated to invite to these conferences “representatives of the Aboriginal peoples of Canada.” Section 37.1 was repealed on 18 April 1987 by section 54(1) of the Constitution Act, 1982, which had also been added by the Constitutional Amendment Proclamation, 1983.

14. Three more first ministers? conferences on Aboriginal issues were held in 1984, 1985, and 1987, but there was no agreement reached on any matters, including the crucial right of self-government. The representatives of Aboriginal peoples who attended the first ministers? conferences between 1983 and 1987 were four national Aboriginal organizations: the AFN, NCC, the Metis National Council (MNC), and the ITC. The first ministers? conferences held under section 37.1 were ??closed meetings,?? meaning that no one had access to the meetings except those who were invited to attend. Each of the recognized national Aboriginal organizations held two seats at the constitutional table and could have as many as twelve to twenty advisers in the meeting room, as could the first ministers. The NWAC was not a recognized national Aboriginal representative organization for the purposes of invitation
to these constitutional talks, which meant no direct participation by the NWAC ? it had to await the invitation of one of the recognized Aboriginal organizations. In 1983, the NWAC received an invitation to attend through the NCC, and, in 1985, an invitation was extended through the AFN. However, the NWAC delegate was not permitted to address the full range of agenda items. In 1984, the premiers of Quebec and New Brunswick invited one or two Aboriginal women to attend, including Mary Simon, an Inuit leader, and Sandra Lovelace, a Maliseet.

15. When the Constitution of Canada was patriated in 1982, there existed a number of national Aboriginal representative organizations that received core funding from the federal Secretary of State Department dating from the 1970s. The Aboriginal peoples of Canada had organized themselves nationally in 1969 in response to the federal government?s Statement of the Government of Canada on Indian Policy (The White Paper, 1969, here, accessed 2 July, 2007). Under the white paper, then minister of Indian and northern affairs, the Honourable Jean Chretien, proposed to turn over responsibility for Indians to the provinces, contrary to section 91(24) of the Constitution Act, 1867, which gave the Federal Parliament jurisdiction over Indians and lands reserved for Indians. Their vehement opposition to the white paper caused Aboriginal people to form the National Indian Brotherhood (NIB). Its membership comprised, in the main, chiefs of the approximately 633 bands formed under the Indian Act, R.S.C. 1985, c. I-5. The NCC, later called Congress of Aboriginal Peoples (CAP)) came into existence in this same period, to represent non-status and off-reserve Indians.

16. Around this same time, Aboriginal women in Canada formed their own national Aboriginal representative organizations to advocate on their behalf. These included the Inuit Women?s Association (Pauktuutit), the Metis Women?s Association (MWA), and the Indian Rights for Indian Women (IRIW). The IRIW was formed by a large gathering of status and non-status Indian women meeting in Ottawa to give their support to Jeanette Lavell in her case to end sex discrimination in the Indian Act, R.S.C. 1970, c. I-6. Made up of volunteers from across Canada, the IRIW formed for the sole purpose of seeking civil rights for Indian women, including repeal of section 12(1)(b) of the Indian Act. Section 12(1)(b) took Indian status away from registered Indian women who married non-Indians, while, under section 11 of the Act, Indian men marrying non-Indian women gave their wives Indian status. This political activism of Aboriginal women paralleled efforts in the courts to have section 12(1)(b) declared contrary to the Canadian Bill of Rights, S.C. 1960, c. 44, in the cases of Yvonne Bedard and Janette Lavell launched at the trial level in 1969 (AG. Canada v. Lavell; Isaac v. Bedard, [1974] S.C.R. 1349).

17. Following an organizational period from 1971 to 1973, the NWAC was incorporated in 1974 with a broad mandate to promote the rights of Aboriginal women in Canada in all social, health, economic, civil, and political matters. It worked on repeal of section 12(1)(b) and has also done considerable advocacy work on status and membership issues since the passage of Bill C-31, An Act to Amend the Indian Act, S.C. 1985, c.27. The NWAC advocates on behalf of status, non-status, and Metis women.

18. The Inuit were organized under two national umbrella organizations. The ITC was formed largely to deal with land claims issues within their traditional territories, and Pauktuutit, the Inuit Women?s Association, formed in the same time period as the NWAC to deal with social, health, economic, civil, and political rights of Inuit women in Canada, regardless of their place of residence.

19. The Me´tis of Canada had been subsumed in their beginnings within the NCC. However, prior to the 1983 first ministers? conference pursuant to section 37(1) of the Constitution Act, 1982, the MNC was formed to represent the interests of the Metis of western Canada, who claimed a distinct culture. The MNC sought in a court case to compel the prime minister to invite it to the first ministers? conference or, in the alternative, to prevent the meeting. The case was settled out of court, with the MNC permitted a seat at the conference (Richard Dallon, “An Alberta Perspective on Aboriginal Peoples and the Constitution,” in Menno Boldt and J. Anthony Long with Leroy Little Bear, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto, 1985) at 88-89). With this settlement, the MNC joined the AFN, the NCC, and the ITC as the four national groups funded by the government of Canada to represent Aboriginal peoples at subsequent meetings called under section 37.1 The Metis women of Canada had organized nationally and provincially prior to the creation of the MNC. When the MNC was invited in its own right to the 1983 first ministers? conference, the MNC disregarded the existing Metis women?s national organization, the MWA, and formed its own Metis National Council of Women (MNCW). Neither of the two Metis women?s organizations, nor Pauktuutit, nor the NWAC participated in their own right at the constitutional talks held in 1983 and after.

B. Constitutional Process, 1987?92

20. The Meech Lake Constitutional Accord, formulated by the governments of Canada and the provinces in 1987, was not ratified within the required three-year time limit. The Meech Lake Accord and its defeat in the Manitoba legislature are significant to the Aboriginal movement in Canada because Aboriginal peoples were not invited to the meetings leading up to the accord, and Aboriginal issues were not on the table for discussion. Aboriginal leaders believed that because their issues had not been resolved in the mandated section 37.1 meetings, Aboriginal rights should be on all constitutional agendas until these rights were resolved, particularly the right to selfgovernment. The defeat of the Meech Lake Accord in the Manitoba legislature was achieved by a single negative vote cast by the Indian member of the Legislative Assembly, Elijah Harper, on 23 June 1990. The Meech Lake Accord went down to defeat not only in Manitoba but also in the rest of Canada.

21. Late in the summer of 1990, after the failure of the Meech Lake Accord, Quebec established the Belanger-Campeau Commission, which concluded that the National Assembly should adopt legislation establishing a process by which Quebec would determine its political and constitutional future. In June 1991, the National Assembly enacted a law requiring the Quebec government to hold a referendum on Quebec sovereignty in June or October of 1992 (see James S. Frideres and Rene´ R. Gadacz, Aboriginal Peoples in Canada: Contemporary Conflicts, 6th edition (Toronto: Prentice Hall, 2001) at 330-4; Lilianne E. Krosenbrink-Gelissen, Sexual Equality as an Aboriginal Right: The Native Women?s Association of Canada and the Constitutional Process on Aboriginal Matters, 1982?1987, Nijmegan Studies in Development and Cultural Change Saarbrucken, Germany: Verlag Breitenbach Publishers, 1991) at 146-215; and Lilianne E. Krosenbeck-Gelissen, “The Canadian Constitution, the Charter and Aboriginal Women?s Rights: Conflicts and Dilemmas” (1993) 7-8 International Journal of Canadian Studies 207).

22. Working within the timeframe established by Quebec, the government of Canada also took a number of constitutional initiatives in this period, establishing in November 1990 the Citizens? Forum on Canada?s Future, chaired by Keith Spicer, and, in January 1991, the Special Joint Committee on the Process for Amending the Constitution of Canada. The Spicer Committee reported in 27 June 1991, and the Special Joint Committee on the Amending Process reported on 20 June 1991. In June 1991, the Special Joint Committee of the Senate and House of Commons on a Renewed Canada was established for the purpose of soliciting Canadians? views on the constitutional renewal package being prepared by the government of Canada. This special joint committee, chaired by Senator Gerard Beaudoin and Member of Parliament Dorothy Dobbie, reported in February 1992.

23. The prime minister tabled Canada?s constitutional proposals, called Shaping Canada?s Future Together, in the House of Commons on 24 September 1991. One of the proposals, entitled Aboriginal Peoples, Self-Government, and Constitutional Reform, noted that Aboriginal peoples identified recognition of the right to self-government as their highest priority and reported that up to that point it had not been possible to achieve agreement on a constitutional amendment embodying self-government. The document made several proposals on self-government and other outstanding issues and stated that Aboriginal involvement in the current constitutional discussions would continue through the four organizations recognized and involved in previous discussions: the AFN, the NCC, the MNC, and the ITC.

24. These four organizations were involved in the consultation process of the Beaudoin-Dobbie Commission, which spent a day with each one. The Beaudoin-Dobbie Commission also received a written submission from the NWAC and agreed with its position that the Charter should apply to Aboriginal self-government (Canada, Parliament, Special Joint Committee on a Renewed Canada, Report of the Special Joint Committee on a Renewed Canada. (Ottawa: Queen?s Printer, 1992)).

C. Aboriginal Constitutional Process, 1991?2

25. The summer of 1990 saw not just the failure of the Meech Lake Accord. A confrontation took place in and around Oka, Quebec, which lasted almost three months. The town of Oka had proposed to extend a municipal golf course over land held sacred by the Mohawks of Kahnesetake. The Canadian army was deployed against the Mohawk protesters. The events around Oka, and elsewhere in Canada triggered by Oka, highlighted the need for serious attempts to address fundamental issues of Aboriginal rights.

26. In May and June 1991, Canada established the Royal Commission on Aboriginal Peoples (RCAP), which conducted hearings across Canada and undertook a comprehensive program of research. The RCAP?s final report was released in 1996 and stated that in its judgment, the right of Aboriginal governments to exercise authority over all matters relating to the good government and welfare of Aboriginal peoples and their territories is an existing Aboriginal right and is therefore recognized and affirmed by the Constitution (RCAP Final Report, supra, Volume 2: Restructuring the Relationship, recommendations 2.3.4-2.3.6). The report recommended that the Charter apply in the context of self-government and that Aboriginal governments should be able to access the “notwithstanding clause” on the same basis as the federal and provincial governments (at part 1.3).

27. The RCAP made it clear, however, that self-government cannot countenance the denial of equality to women because of their protection under section 35(4). The RCAP report specifically states that it is inconceivable that Aboriginal women?s civil, political, and property rights would not be included in the Aboriginal rights recognized and affirmed in section 35. The RCAP found no convincing argument that Aboriginal women?s rights had been extinguished before 1982, despite their treatment under the Indian Act. The RCAP declared: ??[O]ne of the challenges facing Aboriginal nations will be to give full effect and recognition to the rights by according Aboriginal women equal participation in designing and implementing self-governing structures and in creating Aboriginal law and policy?? (RCAP Final Report, supra, Volume 3: Gathering Strength, at 94).

28. In 1991?2, Canada also established and funded a separate constitutional process involving the four national Aboriginal groups that it recognized. This process operated parallel to the processes that Canada had set in motion through the various commissions and parliamentary committees that were soliciting the views of the general public on constitutional reform (the Canada Round). The Aboriginal Constitutional Review Program of the Department of the Secretary of State was funded by means of parliamentary appropriations (see Appropriations Act, S.C. 1991, c. 53 and S.C. 1992, c. 7). Under this program, the AFN, the NCC, the MNC, and the ITC shared $10,000,000 pursuant to contribution agreements signed between each organization and the government of Canada. The resources available to the NWAC were found by the lower courts to be approximately 5 per cent of those given to the other four organizations. The NWAC received $130,000 from each of the NCC and the AFN, taken from the funds available to them under their contribution agreements, and a further direct grant of a little over $200,000 from the Secretary of State Women?s Program, to fund a study of the Charter and its application to Aboriginal governments.

29. Using funding from its contribution agreement, the AFN organized a parallel process of consultation, headed by its constitutional commission, the First Nations Circle on the Constitution. The First Nations Circle consisted of seven male and three female commissioners, one of whom was nominated by the NWAC. It conducted hearings from coast to coast between October 1991 and March 1992 and compiled a report from those hearings called To the Source (AFN, To the Source: The First Nations Circle on the Constitution (Ottawa: AFN, 1992)). The AFN also established a Constitutional Working Group (CWG) of twenty-four individuals, mostly chiefs and vice-chiefs. Three of the CWG members were women, including one representative from the NWAC.

30. The representatives from the NWAC occupied a severe minority position in those bodies associated with the AFN parallel process, and there were no NWAC representatives or participants in the processes of the other three organizations. This pronounced minority position was repeated at the government of Canada-sponsored Aboriginal Conference on the Constitution, which was held in Ottawa on 12-25 March 1992. Of 184 delegates, the NWAC had only eight official seats, and it also had four observers at the conference. The 184 seats were divided among the delegates of Canada, the provinces, the territories, and the four recognized Aboriginal organizations (sixteen bodies). While the NWAC had some representation in the room, it had no voice. The only constitutional amendments put forward on Aboriginal rights came from the national chief of the AFN who obtained his mandate from the chiefs
in the AFN. The NWAC had no status within that group except as an invitee with no voice. The NWAC could suggest wording for a constitutional amendment to guarantee women?s rights but, if this recommendation was not endorsed by the chiefs, the women?s amendment could not be proposed at the constitutional table. Failing to get the chiefs? approval did leave the NWAC the alternative of seeking a supporter from among the provinces or their delegates, but these delegates were lobbied by constitutional advisers of the AFN to not speak to, or propose wording suggested by, Aboriginal women. Whether the NWAC was in the room or shut from the room made no difference ? effectively, they had no voice, could propose no amendment, and had no vote or representation.

31. The government of Canada refused to provide direct funding and representation to the NWAC. The minister responsible for constitutional affairs, the Right Honourable Joe Clark, told the NWAC that it must put its position forward through the other national associations and seek funding from these four associations and not the government of Canada. Clark told the president of the NWAC, Gail Stacey-Moore, on 16 March 1992 that he would not intervene in the internal decision making of these four organizations although he knew of the problems the NWAC was having securing its own voice and funding. He refused to provide direct representation and funding, suggesting instead that the NWAC hire a media consultant and engage in a press briefing (Supplementary Affidavit of Gail Stacey-Moore, sworn 24 March 1992, paras. 9 and 10).

32. The factual record before us clearly establishes that the NWAC was excluded from the discussions of the Canada Round, which created the Charlottetown Accord. As we will discuss later in this decision, expressing oneself on street corners with placards, or in the media, as suggested by Clark, cannot be considered equivalent to participation at the table with the other four national Aboriginal associations.

III. Judicial History

A. NWAC?s Application

33. The NWAC and the two individual appellants made an application for judicial review of the decision by the government of Canada to fund only the AFN, the MNC, the NCC, and the ITC to take part in the process leading to development of the Charlottetown Accord. They sought an order of prohibition to prevent the government from disbursing the next installments of the groups? funding under the contribution agreements.

34. The NWAC argued that the four funded national Aboriginal groups were male-dominated and did not represent Aboriginal women. The male-dominated groups were opposed to application of the Charter to Aboriginal self-government, while the NWAC supported its application, in particular, the Charter?s sex equality provisions. The NWAC claimed the government funding provided to anti-Charter male-dominated groups infringed women?s freedom of expression under section 2(b) of the Charter and violated their sex equality rights under sections 15 and 28 of the Charter and subsection 35(4) of the Constitution Act, 1982.

35. The individual appellants, Gail Stacey-Moore and Sharon McIvor, are both Aboriginal women and were respectively the president and vice-president of the NWAC when this application was brought. Gail Stacey-Moore is a Mohawk of Kahnawake, Quebec, and Sharon McIvor is Nle?kepmxcin of Merritt, British Columbia. The NWAC, a non-profit organization incorporated in 1974, has a Board of Directors comprised of Aboriginal women representatives from all provinces and territories.

36. The NWAC argued in its application to the Federal Court Trial Division that where the government provides funding to male-dominated groups, section 2(b) in combination with section 28 of the Charter obliges the government to provide equal funding to an association representing the interests of Aboriginal women so that it can represent the views of women in those discussions. Alternatively, it argued that the equality guarantees of section 15 or the provisions of section 35(4) of the Constitution Act, 1982 compel this result.

B. Federal Court Trial Division, [1992] 2 F.C. 462, [1992]

37. The NWAC?s application for judicial review was heard by Deputy Justice Allison Walsh on 25-30 March 1992. There were three intervenors: the MNC, the NCC, and the ITC.

38. The NWAC?s application was dismissed on 30 March 1992. Walsh D.J. held that the applicants? section 2(b) rights had not been violated and that to guarantee a right for ??everyone?? to be present at constitutional discussions would ??paralyze the process?? of constitution making (NWAC FCTD at para. 36). 39. Walsh D.J. also held that the reason Aboriginal women?s groups were not funded was because the government was unwilling to recognize them as a separate group within the Aboriginal community. The court found that this was not discrimination based on sex (NWAC FCTD, at para. 38).

40. Further, Walsh D.J. found there had been nothing unfair or contrary to natural justice in the selection of groups considered to be representative of Aboriginal peoples. The government was entitled to conclude that the maledominated groups represented the views of Aboriginal women as well as men. Walsh D.J. held that it was speculative to assert that the anti-Charter views of the Aboriginal men?s groups would prevail. If and when that became a reality, the NWAC could make its views known at that time.

41. The court concluded that it did not have jurisdiction to impose its views on the legislative process such as consulting on constitutional amendments: “It is not the place of the courts to interpose further procedural requirements in the legislative process” (NWAC FCTD, at para. 49, citing Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 559 (per Justice John Sopinka)).

C. Federal Court of Appeal, [1992] 3 F.C. 192, [1992]

42. The appeal of the Trial Division?s decision was heard on 11 June 1992 and was decided by Justices of Appeal Patrick Mahoney and Arthur Stone and District Justice W. Gibson Gray on 20 August 1992. Again, there were three intervenors: the MNC, the ITC, and the NCC.

43. Writing for the court, Justice Patrick Mahoney described the AFN as an organization of Canada?s 633 chiefs, of whom sixty were women in 1992. Mahoney J.A. noted that the AFN “has vigorously and consistently resisted the struggle of native women to rid themselves of the gender inequality historically entrenched in the Indian Act” (NWAC FCA, at para. 16). Further, the court noted that the AFN opposed the repeal of section 12(1)(b) of the Indian Act when section 15(1) of the Charter came into force, and it opposed the addition of section 35(4) to the Constitution Act, 1982 (at para. 16).

44. In noting the NWAC?s concerns that the Charter may not apply to Aboriginal self-government as it was being negotiated by the male-dominated organizations funded by Canada, Mahoney J.A. held it was in the best interests of Aboriginal women to continue to enjoy protection of the Charter under self-government. The court was unwilling to leave Aboriginal women with less protection vis-a-vis Aboriginal governments than was available vis-a-vis other governments under sections 15 and 28, considering that to do so would violate “the norms of Canadian society as a whole” (NWAC FCA, at para. 27).

45. Mahoney J.A. concluded that, by inviting and funding the participation of those organizations in the current constitutional review process and excluding the equal participation of NWAC, the Canadian government has accorded the advocates of male-dominated aboriginal self-government a preferred position in the exercise of an expressive activity, the freedom of which is guaranteed to everyone by paragraph 2(b) and which is, by section 28, guaranteed equally to men and women. It has thereby taken action that has had the effect of restricting the freedom of expression of aboriginal women in a manner offensive to paragraph 2(b) and section 28 of the Charter. In my opinion, the learned Trial Judge erred in concluding otherwise (NWAC FCA, at para. 28).

46. The Federal Court of Appeal held that the right to participate in constitutional discussions did not emanate from the existing Aboriginal and treaty rights provisions of section 35 of the Constitution Act, 1982, but from the sections dealing specifically with constitutional negotiations (sections 37 and 37.1). Accordingly, section 35(4) was found to be inapplicable because this section refers only to equality as it relates to section 35.

47. The Court of Appeal disagreed with the Trial Division by holding that it “would not be interfering in a legislative process if it were to grant… an appropriate remedy” (NWAC FCA, at para. 43). Instead, the court characterized the Charlottetown Accord process as “integral to policy development rather than implementation” (ibid.). The court held that if the government of Canada chooses to provide funding, it must do so according to the dictates of the Charter. A decision to fund one group, but not another, should be justified by the government under section 1 of the Charter. The Court of Appeal rejected the “floodgates” argument that allowing the NWAC to be funded and participate equally would require allowing in all other kinds of voices. In the end, the court granted a declaration that the appellants? Charter rights were violated by the government.

D. Supreme Court of Canada, [1994] 3 S.C.R. 627 [NWAC SCC]

48. The government?s appeal to the Supreme Court of Canada was heard on 4 March 1994. There were four intervenors: the MTC, the NCC, the ITC, and the AFN, which was intervening in the proceedings for the first time. By this stage, the Charlottetown Accord had been defeated in a national referendum, and there were no constitutional discussions taking place.

49. In the majority decision of Justice John Sopinka, on behalf of himself, Chief Justice Antonio Lamer, and Justices Gerard La Forest, Charles Gonthier, Peter Cory, Frank Iacobucci, and John Major, the Court held that the NWAC?s sections 2(b) and 28 rights under the Charter had not been violated “since s. 2(b) does not guarantee any particular means of expression or place a positive obligation upon the government to consult anyone” (NWAC SCC, at para. 73). The majority held that the NWAC had many opportunities to express their views to the multilateral Aboriginal process operated by the funded Aboriginal groups and to the Beaudoin-Dobbie Commission of Parliament, a process for all Canadians, even if they were not funded to do so.

50. The majority held that there was no evidence to support the contention that the funded groups were less representative of the viewpoint of women with respect to the Charter, or that the funded groups advocated a male-dominated form of self-government. Further, the majority found that there was no evidence with respect to the level of support of the NWAC by women as compared to the funded groups. The four Aboriginal groups invited to discuss possible constitutional amendments were all found to be bona fide national representatives of Aboriginal peoples in Canada and, based on the facts in this case, the majority found there was no requirement under section 2(b) of the Charter to also extend an invitation and funding directly to the NWAC.

51. The majority also held that section 15(1) of the Charter was not violated, citing again the absence of evidence supporting the NWAC?s contention that the funded groups were male-dominated and advocated an anti-Charter point of view.

52. With respect to section 35, the majority held that the right “of the Aboriginal people of Canada to participate in constitutional discussions does not derive from any existing Aboriginal or treaty right” (NWAC SCC, at para. 79). Therefore, section 35(4), guaranteeing the Aboriginal and treaty rights referred to in section 35(1) equally to male and female persons was found to have no application in the case (ibid.).

53. Sopinka J. did not comment on the finding of the Federal Court of Appeal that Canada had an obligation to consult Aboriginal peoples on constitutional amendments as mandated under sections 37 and 37.1. Nor did the majority comment on the Federal Court of Appeal?s finding that the NWAC?s right to funding and participation in constitutional talks with Canada was a constitutional right under sections 37 and 37.1.

54. In a concurring judgment, Justice Claire L?Heureux-Dube agreed with the majority but found that in certain circumstances “funding or consultation may be mandated by the Constitution by virtue of the fact that when the government does decide to facilitate the expression of views, it must do so in a manner that is mindful of the Charter” (NWAC SCC, at para. 88). However, she agreed that section 2(b) had not been breached by the government because she found that the NWAC was not prevented from expressing its views, even if it was underfunded and not allowed to participate in the formal constitutional talks.

55. Justice Beverley McLachlin (as she then was) held that the freedom of governments to choose and fund their advisors on matters of policy is not constrained by the Charter and characterized the discussions to which the AFN, the NCC, the MNC, and the ITC had been invited as mere “policy consultation” (NWAC SCC, at para. 91).

56. McLachlin and L?Heureux-Dube JJ., like their colleagues, did not deal with sections 37 or 37.1 or with section 35.1 of the Constitution Act, 1982.

IV. Factual and Legislative Context

57. All four of the questions on appeal require a consideration of the historical position of Aboriginal women in Canada, both before and after the passage of legislation by Canada and its pre-Confederation predecessors.

A. Traditional Roles of Aboriginal Women in Aboriginal Society

58. The Women?s Court of Canada accepts arguments by the appellants that the historical position of Aboriginal women differed from that of their European counterparts in that women enjoyed an equal or egalitarian position in most Aboriginal societies with respect to property, economics, political, and civil rights. They provided evidence, which we accept, that, historically, Aboriginal women played a prominent enough role in Aboriginal life prior to European contact that they would have been consulted within their community on important affairs of state.

59. We agree with the appellants? argument that, historically, Aboriginal women enjoyed an equal or egalitarian role in traditional Aboriginal societies, within the family, within traditional governments, and in spiritual ceremonies (see, for example, A.C. Hamilton and C. Murray Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba, Volume 1 (Winnipeg: Province of Manitoba, 1991) at 475). Aboriginal women, children, medicine men, and warriors were consulted by their communities, and women “played a predominant role in the consensual decision-making process of their communities” (at 479).

60. The central role of Aboriginal women within their pre-contact societies is evidenced in oral history. “In Ojibway and Cree legends, it was a woman who came to Earth through a hole in the sky to care for the Earth” (Hamilton and Sinclair, at 476). The report of the Manitoba Justice Inquiry supports the view that “Aboriginal men and women were equal in power and each had autonomy within their personal lives” (ibid.). It states that Aboriginal teachings and oral traditions emphasize “the equality of man and woman and the balanced role of both in the continuation of life?? (ibid.). Similarly, the Mi?kmaq Federation in Atlantic Canada recognized men and women as being equal and bound by a multitude of councils that began with the family unit and extended to regions and to the national level (see James Youngblood Henderson, “First Nations? Legal Inheritance” (Winnipeg: University of Manitoba, Faculty of Law, Canadian Legal History Project, 1991). Aboriginal women had a predominant economic, political, and legal role enshrined in the Iroquoian Constitution (see NWAC, Matriarchy and the Canadian Charter: A Discussion Paper (Ottawa: NWAC, 1992) at 2). Descent and inheritance were transmitted through the female line, and women controlled property. Clan mothers were involved in appointing political leaders and could also have them removed (Warren Lowes, Indian Giver: A Legacy of North American Native Peoples (Toronto: Canadian Alliance in Solidarity with Native Peoples, 1985).

61. The appellants argued that “Aboriginal societies were egalitarian and based on matriarchal systems, which clashed with patriarchal systems of Europeans who claimed to have discovered this continent” (citing Thomas Isaac and Mary Sue Maloughney, “Dually Disadvantaged and Historically Forgotten?: Aboriginal Women and the Inherent Right to Self-Government” (1992) 21 Manitoba Law Journal 453 at 454; see also Eleanor Leacock, “Women?s Status in Egalitarian Society: Implications for Social Evolution” (1978) 19(2) Current Anthropology 247). This position is confirmed by the findings of the RCAP: Many Aboriginal societies were more egalitarian before contact than they are today. Women had important roles in the social, economic and political life of their community. They were the wisdom-keepers. They selected chiefs. They taught their children about the nature and qualities of a leader. They were responsible for resolving internal disputes and healing their communities (RCAP Final Report, supra, Vol. 4, at 79).

62. The report of the AFN?s First Nations Constitutional Circle, To the Source, agrees with this account of the historical position of Aboriginal women. It states:

[W]omen and men may have played different roles and had different responsibilities, as has been true in virtually all societies in human history, but unlike European women, Aboriginal women were viewed as equals, not inferiors (To the Source, at 59).

63. To the Source identifies the role of Canadian legislation and policy in constructing a view of Aboriginal women as subordinate, stating that the European view of women as subordinate to and owned by their men folk infected the First Nations of Canada in three ways. These were the Indian Act, which tied women?s identity and rights as Aboriginal people to those of their husbands; government policies that reinforced women?s status as dependents; and the deliberate disruption of traditional life.

B. Indian Act

64. The Indian Act was enacted under the federal government?s jurisdiction over “Indians and lands reserved for Indians” in section 91(24) of the Constitution Act, 1867. It establishes a governance regime for the persons subject to it, known as “Indians.” Those registered under the act as Indians are controlled in all aspects of their lives by the act, which deals with political structures, land tenure, property, economic life, residence, and a host of other matters. Many in Canada?s settler communities had intermarried into the various Indian tribes of Canada, and their offspring were children of mixed heritage: European and Indian. With the establishment of Indian reserves through treaty processes in the 1700s and 1800s, it was necessary to determine which “Indians” such lands were established for, and this required a legal definition. While initially broad and including any person living within the Indian territories or any person living among the Indians, the government gave the term “Indian” an increasingly narrow definition to restrict the number of persons living on what became established Indian reserves and to promote the assimilation of Aboriginal people (Mary Eberts and Beverly K. Jacobs, “Matrimonial Property on Reserve,” in Marylea Macdonald and Michelle K. Owen, eds., On Building Solutions for Women?s Equality (Ottawa: Canadian Research Institute for the Advancement of Women, No. 15, 2004) at 17-21).

65. An Act for the Gradual Enfranchisement of Indians (AGEI), S.C. 1869, c. 6, contained a number of features designed to hasten the assimilation of Aboriginal peoples, which would have a drastic and lasting negative effect on all of them but on women in particular. The first of these was the introduction of the rule that any Indian woman marrying other than an Indian would cease to be an Indian within the meaning of the act (at s. 6). The definition of “Indian” by the turn of the century came to mean any male Indian person and his male descendants. This was the class of “Indians” recognized in law for almost a century. Women early on in this history lost their Indian status or Indian recognition as soon as they married a non-Indian. Children of the marriage would not be recognized as Indians. This statutory exile of Indian women who “married out” and their children was in effect continuously for 116 years from 1869 to 1985, when Bill C-31, S.C. 1985, c.27, was passed and repealed the most recent version of the provision, section 12(1)(b) of the Indian
Act, R.S.C.1970, c. I-5. By contrast, white women continued to receive Indian status when they married status Indian men, as they had done since the first status legislation in 1850 (see An Act for the Better Protection of the Lands and Property of Indians in Lower Canada, S.C. 1850, 13 & 14 Vict., c. 42, s. 2). This entitlement did not end until 1985, 135 years after it had started.

66. The second relevant feature of the AGEI was the rule that an Indian woman marrying an Indian of another tribe or band would lose her own band membership and be assigned to that of her husband. Children of the marriage would be members of the husband?s band as well. This provision also continued in effect for 116 years until 1985.

67. Given the statutory rule that no one but an Indian could enter upon or reside on reserve lands, these provisions that stripped women of their status and band membership upon marriage made it impossible for them to live with their own families and communities. The exile was permanent: a woman did not regain her Indian status or band membership if she was divorced or widowed.

68. Other features of the AGEI were also decidedly patriarchal in nature. The act provided that chiefs of the nations or bands living on reserve would be elected by male members of the band who had reached the age of twenty-one years (at s. 10). Subsequent legislation introducing the Band Council and requiring governance by Band Council rather than traditional chiefs preserved this all-male electorate. Women did not receive the vote in Band Council elections until 1951, eighty-two years later (Indian Act, S.C. 1951, c. 29). Off-reserve band members, a large proportion of whom are women, did not become eligible to vote in Band Council elections until 1999, with the decision of the Supreme Court of Canada in Corbie`re v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.

69. The AGEI also laid out the details of the “location ticket” system of allocating parcels of land on reserve, a system that would continue until replaced by the certificate of possession system established by the 1951 Indian Act. It is very clear that the AGEI envisioned that land holding would be by Indian males. The act provided that the number of “locations” on a reserve would ordinarily be determined with reference to the number of heads of families and “male members not being head of families” who had reached fourteen years of age (at s. 17).

70. The first Indian Act, S.C. 1876, c. 18, was passed in 1876, consolidating all of the statutory provisions relating to Indians and lands reserved for Indians. This consolidation added yet another significant patriarchal dimension to the land management scheme. Until 1876, surrenders of Indian lands could be made by the chief or chiefs, tribe, or band summoned for the purpose. The 1876 Indian Act provided that surrenders could be authorized by a majority of the male members of the band who had reached twenty-one years of age. Women band members would not regain a role in land surrenders until 1951, eighty-two years later (for an historical oversight on the definition of ??Indian,?? see here, accessed 2 July, 2007).

71. By 1876, then, the exclusion of Indian women from Indian Act band governance was complete, and the male preference in the land holding regime was clear. The Indian Act also provided that only male status Indians could pass on Indian status to their children. A woman could not confer status on a child unless that child was born out of wedlock, and no one established his or her non-Indian paternity. Transmission of Indian status only through the male line was the statutory norm until 1985. To all intents and purposes, the status Indian woman was legally a non-person, made so by the Indian Act.

72. The Canadian government promoted the destruction of Aboriginal practices of family formation, governance, and land holding and use through the Indian Act but this was not the only policy instrument for accomplishing the dissolution and assimilation of Aboriginal societies. Forcible education of Aboriginal people in residential schools tore them as children from family and community and strove to inculcate them with disrespect and shame towards their own languages, cultures, and religious practices. These measures were deliberately aimed at destroying the social, political, and cultural power of women. To quote RCAP Final Report supra, Vol. 1: Looking Forward Looking Back, Part 2.10, at 61,

[p]erhaps the most appropriate term to describe that impact is “displacement.” Aboriginal peoples were displaced physically ? they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools ? which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.

C. Continuing Statutory Discrimination against Aboriginal Wo

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