Jurisdictional Issues In The Aboriginal Workplace

More documents

Recommendations

Info

Introduction Band Councils are assuming more and more responsibility in administering the affairs of Bands. The expansion of their role in governing Bands has had a direct impact on the scope of operations and the number of persons employed by Band Councils. Moreover, an unprecedented number of First Nations individuals are exerting a presence in the Canadian business community today. As such, Band Councils and First Nations’ employers are affected by the labour and employment legislation. For these reasons, it is crucial for First Nations’ employers to be aware of the constitutional and jurisdictional issues with respect to the legislation, as well as how the realization of Aboriginal self-government will affect the Aboriginal workplace in British Columbia. Jurisdiction Over Labour Relations The General Rule The source of jurisdiction over labour relations in Canada is the Constitution Act 1 , and the jurisprudence that has been created. As a general rule, labour relations falls within the exclusive jurisdiction of the provincial legislatures. Section 92(13) of the Constitution Act states that provinces may exclusively make laws in relation to Property and Civil Rights. Most labour relations and employment relationships are subject to provincial legislation. In Reference re Industrial Relations and Disputes Act (the “Stevedoring case”) 2 , the Supreme Court of Canada noted that there are exceptions to the general rule of exclusive provincial jurisdiction over labour relations. At page 564, Justice Estey explained, There is a jurisdiction in the Parliament of Canada to legislate with respect to labour and labour relations, even though these relations are classified under Property and Civil Rights within the meaning of s. 92(13) of the B.N.A. Act and, therefore, subject to provincial legislation. This jurisdiction of Parliament to so legislate includes those situations in which labour and labour relations are (a) an integral part of or necessarily incidental to the headings enumerated under s. 91; (b) in respect to Dominion Government employees; (c) in respect to works and undertakings under ss. 91(29) and 92(10); (d) in respect of works, undertakings or businesses in Canada but outside of any province. Page 1 The first area identified in Mr. Justice Estey’s list is relevant in determining jurisdiction over labour relations and operations involving First Nations. Section 91(24) of the Constitution Act provides that Parliament has primary legislative authority with respect to “Indians and Lands Reserved for Indians.” Thus, if an operation touches on an integral part of, or is necessarily incidental to, “Indians or Lands reserved for Indians,” the operation will be governed by federal legislation. In determining jurisdiction regarding labour relations in a particular case, the focus should not be on who the employer is, who the employees are or where the activity is taking place. In other words, First Nations employees and employers, and operations taking place on a reserve are not automatically governed by federal labour law. Instead, at issue is the nature of the activity concerned. In Canada Labour Relations Board et al v. Yellowknife, 3 a case concerning the jurisdiction to regulate the labour relations of municipal employees, the Court clarified at p. 736 that “jurisdiction over labour matters depends on legislative authority over the operation, not over the person of the employer.” The traditional approach for determining whether any business or other enterprise falls within federal or provincial jurisdiction in relation to the regulation of its labour relations was concisely summarized by the Supreme Court of Canada in Northern Telecom v. Communications Workers 4 at p. 363: (1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule. 1 Constitution Act, 1867, 30 &31 Vict., c. 3 (U.K. ) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), ss. 91(24), 92(13). 2 Reference re Industrial Relations and Disputes Act (the Stevedoring case), [1955] S.C.R. 529. 3 Canada Labour Relations Board et al v. Yellowknife, [1977] 2 S.C.R. 729. 4 Northern Telecom v. Communications Workers, [1980] 1 S.C.R. 115
(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject. (3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence. (4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one. (5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation. (6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a “going concern”, without regard for exceptional or casual factors; otherwise the Constitution could not be applied with any degree of continuity and regularity. The Functional Test The Supreme Court of Canada applied these principles to determine whether federal or provincial law regulated First Nations’ operations in Four B Manufacturing v. United Garment Works of America and Ontario Labour Relations Board et al. 5 Four B was an Ontario corporation, carrying on the business of sewing shoe uppers under contract for a shoe manufacturing company. The business of Four B was located and conducted on an Indian reserve. All of the corporation’s issued shares were held by four brothers, each of whom were members of the Band. The Band Council in no way owned or controlled the company, nor did it share in the company’s profits. Four B received both grants and loans from the Government of Canada pursuant to programs of the Department of Indian Affairs and Northern Development. The programs were designed to promote cooperation between Indian and non-Indian businessmen in order to assist First Nations in developing Page 2 and expanding viable businesses and to create jobs for Indians, both on and off reserves. The company employed 68 people, the majority of whom were Band members. At issue in the case was whether provincial labour relations legislation governed the activities of Four B. The company argued that the Ontario Labour Relations Board did not have the jurisdiction to certify the respondent union as bargaining agent for employees of the manufacturing plant. The Supreme Court of Canada disagreed. In its reasons for judgment, the Court began by summarizing the established principles relevant to the issue of legislative competence over labour relations at 1045: Exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses. . . . The functional test is a particular method of applying a more general rule namely, that exclusive federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object. After applying the law to the facts in the Four B case, the Court concluded that there was nothing about the company which might allow it to be characterized as a federal business. At p. 1046, the Court noted: The sewing of uppers on sport shoes is an ordinary industrial activity which clearly comes under provincial legislative authority for the purposes of labour relations. Neither the ownership of the business by Indian shareholders, nor the employment by that business of a majority of Indian employees, nor the carrying on of that business on an Indian reserve under a federal permit, nor the federal loan and subsidies, taken separately or together, can have any effect on the operational nature of that business. By the traditional and functional test, therefore, the Labour Relations Act applies to the facts of this case, and the Board has jurisdiction. 5 Four B Manufacturing v. United Garment Works of America and Ontario Labour Relations Board et al, [1980] 1 S.C.R. 1031 [hereinafter Four B].
Page 1 and 2: Jurisdictional Issues in the Aborig
Page 3: Table of Contents Introduction ....
Page 7 and 8: it was intended that the facility g
Page 9 and 10: It is important to note, however, t
Page 11 and 12: includes rules regarding the extent
Page 13 and 14: How has the commitment to Aborigina
Page 15 and 16: Treaty Negotiations in British Colu

Jurisdictional Issues In The Aboriginal Workplace

Create successful ePaper yourself

Delete template?

Save as template?