Introduction
The case of the Native Women’s Association of Canada v. Canada is an exemplary one as it can provide insights into the application of the administrative law. The case can help reveal certain procedural issues that are quite common in public administration.
The decision made by the court was based on the Charter of Rights and Freedoms (such sections as 2, 12, and 28) and the court decided against the claim of the Native Women’s Association of Canada (NWAC). However, important procedural issues were left without attention. It is necessary to note that the application of administrative law can help consider such issues as discretion, credibility and the duty to give reasons.
Concepts of Administrative Law
Discretion
One of the central concepts within the administrative law is discretion. Discretion is the power of an agency (government, any institution) to make a decision based on their reasoning. In other words, any institution can make a decision that can hardly be regarded as right or wrong in an objective way. For instance, an organization can make a decision to accept an individual as a member and reject another person.
Likewise, the government funds institutions in accordance with their discretion right. The present case shows that this procedural aspect was not taken into account by the NWAC. It is possible to note that the concept was taken on board by the court as they decided that s.2 of the Charter does not stipulate that the government has to fund any organization. Clearly, the government is free to choose the beneficiaries and allocate funds to institutions they choose.
Credibility
Another important concept within administrative law is credibility. The concept implies sufficient evidence provided to make a fair decision. Thus, by section 15 of the Statutory Powers Procedure Act, credible evidence is any testimony or document as well as thing that is relevant to the matter of the case. It follows that to make a decision on policy (as well as funding), it is important to consider a scope of credible evidence.
This can be certain sections of law and statutes. At the same time, these can be documents (and oral testimonies) that deal with the process of decision-making concerning funding. In other words, administrative law implies the use of a wide range of evidence that can be used to support reasoning and decision-making.
The Duty to Give Reasons
One of the concepts within administrative law central to the present case is the duty to give reasons that are closely connected with the duty of fairness. This concept includes the right of a person to know the reasons for making this or that decision. In the present case, this concept was totally ignored by the parties. However, it is important to understand the reasons why the decision not to fund and to exclude the NWAC from the discussion was made.
The NWAC has the right to know these reasons. More so, the governmental body should provide specific criteria used to include organizations in the discussion (as well as criteria used to start funding). This would make the procedure transparent and fair. The set of criteria could also be credible evidence during the hearing.
It is also important to note that the concept of the duty to give reasons is closely connected with the concept of being unbiased. Thus, any administrative policy (as well as decision) has to be unbiased and the possibility to consider reasons that were used to make a decision can help to make sure that the decision is unbiased in any respect.
Legitimate Expectation
Another important concept within the administrative law is the legitimate expectation. The concept implies that a person expects that an organization, which represents the rights of certain groups, can advocate his/her rights. In the present case, native women can expect the NWAC advocates their rights and contributes to the development of truly democratic and equal (in all respects) society.
At the same time, the concept can also be related to the expectation of the organization that expects the government to support it. It is possible to assume that the NWAC has certain expectations that the government will help it as these two entities (NWAC and government) aim at assisting native women in obtaining equal opportunities and play an active role in the Canadian society.
A Decision Based on the Administrative Law Principles
Scenario One
There can be two scenarios when applying administrative law principles. First, the judge could decide that the government should allocate equal funds to all the five organizations mentioned in the case (including the NWAC). This decision would primarily base on the principle of fairness, legitimate expectations and the duty to give reasons.
The judge could ask the governmental body to provide the reasons they had not to fund the organization and to exclude it from the discussion. There are chances that the governmental body would be unable to provide such information, as there could be no credible reason for such actions. According to the administrative law, the policy would be regarded as biased and unfair and, hence, impossible to implement.
All policies have to be fair and the policymakers have to make sure that their decisions are unbiased and take into account the interests of all stakeholders involved. They should also take into account that there are people who count on the NWAC and, hence, the organization may need funding to meet the needs of these people.
This could lead to the decision that the claim of the NWAC was justified and the government should provide equal funding for all organizations as well as include the NWAC into the discussion. The judge could also provide a recommendation for the government to provide reasons for making any decision to avoid such situations in the future. Therefore, it is possible to note that such principles of the administrative law as the duty to give reasons and credibility would make the judge come to this decision.
Scenario Two
Nonetheless, there could be specific reasons for the government not to provide funding to the NWAC. The use of such principles as discretion, legitimate expectation and credibility could lead to another decision. As far as credibility is concerned, the government could provide specific documents or testimonials to support reasons for their decision.
For instance, the lack of budget funds could be a credible reason. Apart from that, there can be a particular policy on funding organizations, and there can be a certain sequence. In other words, the NWAC could get the funding later the same year or next year. It is also possible that the NWAC failed to provide the necessary documentation to obtain the funding.
As far as the principle of discretion is concerned, it is possible to note that the organizations like the Assembly of First Nations (AFN), the Native Council of Canada (NCC) and the Metis National Council (MNC) claim that they address the needs of native people (including native women).
Therefore, the government could decide which organization could better respond to the needs of native people and could allocate funds effectively. The principles of discretion and credibility would be manifested if the government could provide these reasons along with credible evidence. In that case, the judge would decide against the claim of the NWAC, as the decision made by the government would prove to be fair and well-reasoned.
Nonetheless, the judge would still provide particular recommendations on the way to add transparency to the policy-making as organizations have the right to understand what kind of support they can get and when and under what circumstances.
Conclusion
To sum up, it is possible to note that the case of the Native Women’s Association of Canada v. Canada is quite illustrative in terms of characteristics of the administrative law. The judge based on the charter and decided against the claim of the NWAC. At the same time, the judge ignored many principles of administrative justice. When applying such concepts of administrative justice as credibility, discretion, the duty to give reasons, fairness and legitimate expectations, there could be two scenarios in that case.
Thus, applying such principles as credibility, the duty to give reasons, legitimate expectations, and fairness, the judge could support the claim of the NWAC if the government failed to provide sufficient (and credible) reasoning. However, focusing on the same principles would result in the decision against the claim of the NWAC if the government could not provide the necessary evidence on the reasoning not to fund the organization.