Native Women's Association of Canada v. Canada

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

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