Long-form census issue goes back to court

The Conservative government's decision to eliminate the mandatory long-form census is being challenged again in court.

Lawyers for a coalition of aboriginal organizations and chiefs from Atlantic Canada will argue on Monday in Federal Court in Halifax that the decision violates their constitutional rights, including their right to equality under the Charter of Rights.

The Harper government cut the mandatory long-form census over the summer and replaced it with a voluntary survey.

The Tories argued they were striking a balance between the need for reliable data and the right of Canadians to refuse to divulge personal information.

The 2011 short-form census — with its basic questions about gender, date of birth and language — will remain mandatory, with the threat of fines for non-responders.

Hundreds of organizations and municipalities, and some provinces, have decried the move on the long-form census and warned the voluntary nature of the questionnaire will skew the data. They specifically pointed to the loss of information about certain groups that were least likely to fill out the forms, including low-income Canadians and aboriginals.

The court application by the Atlantic aboriginal groups emphasizes that point. Several reserves refused to take part in the last census in 2006.

"Aboriginal peoples, and in particular traditionally marginalized groups such as off-reserve and non-status Aboriginal Peoples, are less likely to complete the voluntary survey due to lower levels of literacy, distrust of the government and other factors," reads the court application.

Without that reliable data, the lawyers will argue, the government will not be able to properly discharge its constitutional duty to aboriginals.

The Conservatives have said repeatedly they will actively encourage response rates to the voluntary survey. They have also rejected the premise that the long-form census is the only reliable source of data available to policymakers.

Another key complaint of the aboriginal complainants is that questions about ethnicity and ancestry were changed in the 2011 long questionnaire.

Balk at term 'First Nations'

The new National Household Survey uses the term "First Nations" when asking whether a person is aboriginal: "Is a person an Aboriginal person, that is, First Nations (North American Indian), Métis or Inuk (Inuit)?"

It goes on to ask whether a person is a member of a "First Nation/Indian Band."

The complainants balk at the use of the term "First Nations," viewing this as an attempt to lower the number of respondents who identify as aboriginal by subtly excluding those who live off-reserve.

They say the changes suggest "that the government is primarily interested in enumerating only status Indians. This appears to be an extension of the original policy of the Indian Act, which was to extinguish or assimilate Aboriginal Peoples into the general population."

The aboriginal groups would like the court to issue an injunction stopping the new National Household Survey.

They ask that the court direct the government to reinstate the long-form census, or else insert the 2006 questions about aboriginal ancestry into the mandatory short-form census.

The Conservative government bent once to pressure over its census change by inserting questions about official languages in the 2011 short census.

A previous request for a Federal Court judicial review by a francophone organization failed when a Federal Court judge ruled against the argument that the long-form census was the only reliable source of information about minority French-speaking communities.

During those hearings, the government submitted information suggesting census and survey materials were going to the printers in mid-October.

The organizations represented in Federal Court on Monday are the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council, the Native Council of Prince Edward Island and the Maritime Aboriginal Peoples Council.

Three Atlantic chiefs are also part of the court application.