Native Council of Nova Scotia v. Canada (Attorney General), 2011 FC 72

Federal Court, January 25, 2011

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The applicants are three Chiefs and three self governing organizations representing off-reserve Aboriginal peoples, the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island. The applicants seek a declaration that the decisions of Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey are unconstitutional in that they infringe equality rights of Aboriginal people.

Preliminary Objection to Affidavit Evidence

The applicants argued that Rule 81(1) of the Federal Courts Rules confining affidavits to facts and personal knowledge must also be considered in light of established case law indicating there are only 2 limitations on admitting extrinsic evidence. The limitations are: (1) evidence that is inherently unreliable or offends public policy; and (2) evidence that is used to aid construction of the statute. The appellants also argued that the expert affidavit evidence is important to ensure there is a proper factual foundation when one is challenging legislation on Charter grounds.

The Court confirmed the requirement for a proper factual foundation, including expert evidence. Zinn J. rejected the claim of the respondent that the evidence on judicial review must be limited to materials before the decision maker. The Court then found for the respondents by rejecting those paragraphs beyond the experts personal knowledge and those paragraphs that contained opinion and speculation. The Court accepted the validity of the expert testimony — indicating that the Census was used for government decision making and that off-reserve Aboriginal people were less likely to complete a voluntary Census. However, Zinn J. went on to afford it little weight. The broader concern, that funding was inadequate to meet the needs off reserve, was found to be irrelevant.

S. 91(24), s. 35, Haida and the United Nations Declaration on the Rights of Indigenous Peoples

The respondent argued that the Crown should be accorded deference in its exercise of legislative powers. The Court rejected the argument and confirmed that no deference is owed the Crown in constitutional review. The applicants next argued that the new Census was contrary to the duty of the Crown to act honourably as derived from s. 91 (24) of the Constitution Act, 1867, s. 35 of the Constitution Act, 1982, the SCC decision of Haida and the spirit of the UN Declaration on the Rights of Indigenous Peoples (DRIP).

The Court took a more restrictive view of the honour of the Crown in the present case. Zinn J. held that the applicants had failed to establish an Aboriginal right and that the Honour of the Crown was not engaged. Rather than relying on the early case law holding that "the honour of the Crown was always at stake in its dealing with Aboriginal people” (Badger, Marshall) the Court indicated that the proper interpretation of Haida meant that the honour of the Crown only arises when there is a specific Aboriginal interest or right at stake in the Crown's dealings.

The Court agreed with the respondent that s. 91(24) assigned Canada jurisdiction but that it did not create a positive obligation to legislate on all issues concerning Aboriginal people.

S. 15 and Kapp

Applying the s. 15 equality analysis from the case of Kapp (R. v. Kapp, 2008 SCC 41) decision, the Court found that the applicants had failed to establish that the legislation created a distinction based on aboriginality or non-residence on reserve. Zinn J. concluded that the applicants were in effect alleging adverse effect discrimination, where the law is neutral but the changes to the Census have a discriminatory effect. The Court took the position that the lower Census response rates and the alleged decline in quality data for non-resident Aboriginal people was not distinct. It would affect all Canadians in the same way. There is no distinction in the law and no adverse effect, simply independent social realities.

The applicants further asserted that the change in language of the questionnaire from "North American Indian" to First Nation" also lead to undercounting of off-reserve populations. The Court declined to parse the terminology in the new Census and instead relied on the expertise and the conclusions of Statistics Canada from their objective language related testing.

On the questions of alleged discrimination under s. 40 of the Canadian Human Rights Act, the Court refused to exercise its discretion on judicial review before the matter had been property heard by the Canadian Human Rights Commission.

The Court also refused to apply the more stringent s. 15 constitutional analysis from the Kapp decision to the challenge under the legislative provisions of the Statistics Act. In the same way as the Court found that the applicants failed to meet the first branch of the s. 15 Kapp analysis, the court held that there was no violation of the Act on the basis of Aboriginal identity.

Finally, the Court held for the respondents and that the changes to the Census were not a failure to exercise jurisdiction under the Statistics Act. As previously agreed by the parties, the successful party (Canada) was awarded costs.