Native Council Of Nova Scotia

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...

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