Federal Court rejects native concerns over changes to national census
OTTAWA - The Federal Court of Canada has rejected a native group's claim that recent changes to the census were unconstitutional, concluding the group failed to show that an aboriginal right was at stake.
The coalition of Maritime groups, which represents off-reserve Indians, had asked the court to force the federal government to abandon its plans to scrap the mandatory long-form census in favour of a similar, voluntary survey.
The group argued the voluntary nature of the 2011 national household survey would produce skewed data about Canada's 300,000 off-reserve natives, leaving them at a disadvantage.
Roger Hunka, director of intergovernmental affairs with the Maritime Aboriginal Peoples Council, said the umbrella group was "disheartened" by the decision.
"I have to talk to the lawyers to see if we pursue an appeal," he said from his office in Truro Heights, N.S.
The federal cabinet decided last year to drop the mandatory, long-form census, saying they wanted to strike a balance between the need for reliable data and the right of Canadians to refuse to divulge personal information. The mandatory short form will remain in use.
However, the new voluntary survey has been slammed as statistically inadequate by hundreds of organizations, municipalities and some provinces.
Last month, the aboriginal group's lawyer, Anne Smith, told the Federal Court that about 98 per cent of the mandatory long forms were filled out and returned during the 2006 census, but only about 40 to 50 per cent of voluntary surveys are ever returned.
She said the consequence of the change would be shoddy data from a smaller sample size, which would compromise the programs and services available to aboriginal peoples, particularly those who live off-reserve.
The coalition argued that the changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, and will result in the federal government being unable to fulfil its duties under the Statistics Act.
But Federal Court Judge Russel Zinn said the native coalition failed to establish the existence of an aboriginal right that might be adversely affected by the changes.
"The applicants have not suggested that there is any treaty right at issue and they have failed to point to a possible aboriginal right that has been infringed," he wrote in his 36-page judgement.
"Instead, they rely on the general duty of the 'honour of the Crown' to ground their claim that there has been a violation of a constitutional right."
Smith had argued that aboriginals enjoy a special relationship with the federal government through a concept known as the honour of the Crown. That concept means Ottawa has a duty to consult when implementing legal changes that could affect native peoples, she said.
But the judge rejected that argument, too.
Hunka said the judge's interpretation was too narrow, saying honour of the Crown covers aboriginal people in general, not just aboriginal treaties and rights.
He took exception with Zinn's conclusion that even if the voluntary survey produces skewed results, Statistics Canada has the option of tossing out the data and conducting another survey.
"Obviously, his interpretation is that it doesn't really matter if you don't count aboriginal people, that's OK," Hunka said in an interview.
Since 1971, Statistics Canada has used two census forms. About 80 per cent of households receive a mandatory short-form census containing eight basic questions about age, sex, marital status and mother tongue.
The remaining 20 per cent had received a mandatory long-form census that contained the same eight questions, as well as 53 questions on education, ethnicity, income, employment and dwellings.
The replacement for the long form contains most of the questions in the original long form, but there have been some alterations.
The next census will be conducted in May.
