New Brunswick Aboriginal Peoples Council v. Bruce, 2003 FC 1181

                                                                                                                                             Date: 20031010

                                                                                                                                        Docket: T-1872-02

                                                                                                                                 Citation: 2003 FC 1181

Between:

                                              THE NEW BRUNSWICK ABORIGINAL

                                                                PEOPLES COUNCIL

                                                                                                                                                       Applicant

                                                                              - and -

                                               BRIAN D. BRUCE Q.C., an Adjudicator

                                       pursuant to s. 243(1) of the Canada Labour Code,

                                                                 and GAIL BROWN

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a decision by Brian D. Bruce, Q.C., an adjudicator (the "adjudicator") appointed pursuant to section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the "Code"), dated October 18, 2002, wherein he found that labour relations between the applicant and its employees fall within federal jurisdiction as an integral part of the primary federal jurisdiction over Indians or lands reserved for Indians.

[2]         The applicant is a society incorporated under provincial legislation as a nonprofit organization negotiating on behalf of people of aboriginal ancestry, some of whom have status under the Indian Act, R.S.C. 1985, c. I-5 (the "Act"). In 2002, the respondent Gail Brown ("Ms. Brown"), brought a complaint of unjust dismissal against the applicant pursuant to the Code. At the adjudication hearing, the applicant raised a preliminary objection that the adjudicator did not have jurisdiction to hear the matter because jurisdiction over labour relations between the applicant and Ms. Brown is provincial rather than federal.

[3]         The adjudicator found that labour relations between the applicant and its employees fall within federal jurisdiction.

[4]         The relevant provision of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), reprinted in R.S.C. 1985, Appendix II, No. 5 (the "Constitution") reads as follows:

[5]         I agree with the parties that on the basis of Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 1222, the standard of review in this matter is that of correctness.

[6]         The starting point in the determination of jurisdiction in a case such as this has been set out by the Supreme Court of Canada in [1980] 1 S.C.R. 1031">Four B Manufacturing Limited v. United Garment Workers of America et al., [1980] 1 S.C.R. 1031 at 1045-1047:

In my view the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, 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: the Stevedoring [[1955] S.C.R. 529">[1955] S.C.R. 529] case.

[7]         Following this reasoning, the applicant argues that its labour relations fall under the exclusive authority of the province of New Brunswick because the applicant is not engaged in activities of a federal nature. In addition, the applicant cites Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, where the Supreme Court of Canada applied Four B, supra, and found that "[v]alid provincial legislation may apply to Indians, so long as it is a law of general application and not one that affects their Indianness, their status, or their core values." According to the applicant, the provincial labour legislation does not affect its employees qua Indians, as it does not strike at the core of Native values and culture.

[8]         The respondent, on the other hand, argues that Four B is distinguishable from the facts of the case at bar, since that case involved a private business operating within the province of Ontario, which properly fell under the jurisdiction of provincial legislation. According to the respondent, the more relevant case is Sappier v. Tobique Band Council (1988), 87 N.R. 1, where the Federal Court of Appeal found that a federally funded agency extending social services to Indian children and families was concerned with the welfare of Indians and provided social services to Indians and, therefore, fell under federal jurisdiction. The respondent submits that, following the reasoning of that case, where an agency is concerned with the welfare of Indians and provides social services to Indians or, in other words, is related to their "Indianness", its labour relations are governed by federal legislation, as Desjardins J.A. states at paragraph 14:

. . . The social services delivered by the Agency relate to the welfare of Indians of the Tobique Band in the same way as medical services or education. They deal with Indians qua Indians. They are related to "Indianness" (per Beetz J. in Four B, supra, at 1047 S.C.R.). The Agency is concerned not only with the welfare of the children but more specifically with the welfare of the Indian children: see section 5 of the Agreement. Both the physical and cultural integrity of the youngsters are taken into consideration. For that reason, the social services form an integrated part of the primary federal jurisdiction over Indians (subsection 91(24) of the Constitution Act, 1867). The labour relations of the Agency follow the same course since the Agency is a creature under the authority of the Band Council devoted exclusively to Indians and Indian welfare on the reserve. This notwithstanding the fact that the Agency may, by delegation, carry out all or some responsibilities of the Minister of Social Services under the Child and Family Services and Family Relations Act ([1952] 2 S.C.R. 392">P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392; [1968] S.C.R. 569">Coughlin v. The Ontario Highway Transport Board, [1968] S.C.R. 569; [1972] S.C.R. 359">The Queen v. Smith, [1972] S.C.R. 359).

[9]         Contrary to its submissions, I am convinced that the applicant in this case is engaged in activities of a federal nature. The applicant's activities clearly relate to the "Indianness" of its members, even though many of those members are not status Indians. The applicant's objectives, as stated in its Constitution and By-Laws, read:

2. The aims, goals and objectives of the society are:

A.            To aid and assist people of Aboriginal Ancestry (Indigenous people of North America) in New Brunswick to form a local organization for the purpose of advancing their general living conditions.

B.            To work with all levels of government, public, and private agencies and private industry to improve social, educational and employment opportunities for people of Aboriginal Ancestry of New Brunswick.

C.            To foster and strengthen cultural identity and pride among people of Aboriginal Ancestry of New Brunswick.

D.            To inform the general public of the special needs of the people of Aboriginal Ancestry of New Brunswick and their efforts to achieve full participation in economic, social and political life of the Province.

E.             To co-operate with all other Aboriginal Organizations whose aims are similar to those of this society.

F.             Above all to work together toward reaffirmation of our Aboriginal Rights as Aboriginal People of New Brunswick.

[10]       One of the main goals of the society is, as stated at page 8 of the adjudicator's decision, "to fight for treaty rights and status for those currently disenfranchised under the Indian Act." I am in agreement with the adjudicator's conclusion that this objective, combined with the applicant's primary position that members of aboriginal ancestry are entitled to similar benefits as are those with status under the Act, and the fact that the applicant is primarily funded by the federal government, means that the applicant's primary function falls under the federal jurisdiction over "Indians, and land reserved for Indians".

[11]       For the reasons given above, the application for judicial review is dismissed, with costs.

       JUDGE

OTTAWA, ONTARIO

October 10, 2003

                                   FEDERAL COURT

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                T-1872-02

STYLE OF CAUSE:                       THE NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL v. BRIAN D. BRUCE Q.C., an Adjudicator pursuant to s. 243(1) of the Canada Labour Code, and GAIL BROWN

PLACE OF HEARING:              Fredericton, New Brunswick

DATE OF HEARING:              September 16, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          October 10, 2003

APPEARANCES:

Devin W. Maxwell                      FOR THE APPLICANT

Jamie C. Eddy                         FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Burchell Green Hayman Parish         FOR THE APPLICANT

Halifax, Nova Scotia

Patterson Palmer Law                  FOR THE RESPONDENTS

Fredericton, New Brunswick