Provincial employment laws may apply to your organization

Do you work at a First Nations organization? If so, do you know if your organization falls under provincial or federal jurisdiction when it comes to employment issues?

Most people would automatically answer federal.

But since November 2010, the answer is no longer simple.

For years, Federal Courts and tribunals held that if an organization’s operations are influenced by First Nations’ culture or values, then its labour and employment matters fall within federal jurisdiction. This understanding was based on Sec. 91(24) of the 1867 Constitution Act, which states that “Indians and Lands reserved for the Indians” are covered by federal jurisdiction.

However, in November 2010, the Supreme Court of Canada released two decisions rejecting this view: the first decision was NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union and the second decision was Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto.

The result has been a major shift in how to determine the employment jurisdiction of First Nations organizations.

Previously, unions seeking to certify a bargaining unit (a group of employees) at a First Nations organization may have been able to bring their application to the Canada Industrial Relations Board. But now that application could be rejected and required to apply at the Ontario Labour Relations Board instead.

And organizations that used to comply with the provisions in the Canada Labour Code may now be required to comply with Ontario’s 2000 Employment Standards Act and may be held legally liable for failing to do so.

Turning to the facts of the NIL/TU,O case, NIL/TU,O is a child welfare agency that was provincially incorporated by seven First Nations communities in British Columbia. Its purpose is to provide culturally appropriate child welfare services to relevant First Nations communities. Its offices are located on reserve land and Aboriginal employees provide the majority of its services on reserve land to Aboriginal clients. NIL/TU,O operates under authority delegated to it from the provincial government, pursuant to a tripartite agreement between the seven First Nations communities, the province and the federal government. The provincial Child, Family and Community Service Act authorize this delegation of authority.

Sixty-five percent of NIL/TU,O’s funding comes from the federal government and the rest comes from the provincial government.

The Supreme Court of Canada held that the labour relations of NIL/TU,O fell within provincial jurisdiction. Its on-reserve location, federal funding, Aboriginal employees, clients, and mandate to provide culturally appropriate services did not alter the Court’s view.

Instead, the Court adopted what it refers to as the ‘functional’ test. This means that we must look at an organization’s function in order to determine its applicable jurisdiction.

‘Function’ refers to the nature of an organization’s operation, including its habitual activities or daily operations.

For example, NIL/TU,O’s function is to provide child welfare services, a matter that falls within the provincial sphere. So, accordingly, NIL/TU,O falls under provincial jurisdiction.

If the functional test is inconclusive, then we must find out if provincial regulation of the organization’s labour relations would impair the “core” of the “Indians, and Land reserved for the Indians” federal head of power. In other words, would provincial regulation of the organization’s labour relations affect issues such as Indian status, registration as an Indian and membership in a band, the right to participate in the election of chief and band councils or reserve privileges? If the answer to these questions is yes, then the organization would fall within federal jurisdiction.

The facts of the second decision, Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, are very similar to those of NIL/TU,O.

Managers and executives of First Nations organizations should take note that even if their organization has been under federal jurisdiction for years, they may now fall under provincial jurisdiction if their situation is sufficiently similar to that of the child welfare agency in the NIL/TU,O case.

To determine whether your workplace falls within provincial or federal jurisdiction, please feel free to contact Karen Drake at (807) 345-1213 or kdrake@erickson-law.com.

Karen Drake is a proud citizen of the Métis Nation of Ontario and a lawyer with Erickson & Partners in Thunder Bay practicing in the areas of Aboriginal legal issues, labour and employment law, and human rights. Erickson & Partners is a progressive law firm that focuses on Aboriginal legal issues, civil litigation, and corporate and commercial law. For more information, visit www.erickson-law.com.