Date: 20131220
Docket: T-2141-12
Citation:
2013 FC 1276
Ottawa, Ontario, December 20, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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FOX LAKE CREE
NATION
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Applicant
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and
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DENIS ANDERSON
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Fox Lake Cree Nation [FLCN] challenges a
decision of A. Blair Graham, Q.C., who was appointed by the Minister of Labour
as an adjudicator and referee pursuant to the Canada Labour Code, RSC
1985, c L-2 [Code] to determine claims made by Denis Anderson, for
unjust dismissal and recovery for unpaid overtime and vacation pay. The FLCN
challenges Mr. Graham’s decision that he had jurisdiction over the claims
because the employment relationship between the FLCN and Mr. Anderson was
federally and not provincially regulated.
Background
[2]
The FLCN is an Indian Band as defined by the Indian
Act, RSC 1985, c I-5 [Indian Act]. It consists of approximately
1,000 members, 500 of whom reside in or around Gillam or Bird, Manitoba, while the others reside in various communities inside and outside Manitoba.
[3]
In or around 2000, the FLCN established an office
near Winnipeg, Manitoba, to negotiate contracts on behalf of the FLCN with
Manitoba Hydro [Hydro] with respect to significant hydro-electric projects on
the Churchill, Nelson, Rat, and Burntwood river systems, and the development of
the Lake Winnipeg Regulation System north of the 53rd parallel. The
office was referred to as the Keeyask Project Negotiations Office [Negotiations
Office] and at the time of its creation, was considered an “internal”
consulting office. It was not incorporated as a separate legal entity. Prior
to setting up the Negotiations Office, the FLCN had used an outside consulting
firm to negotiate with Hydro on its behalf.
[4]
There were six categories of issues being
negotiated with Hydro: Business opportunities; training and employment;
project development; environment and resources; adverse effects; and commercial
terms.
[5]
The initial responsibility of the Negotiations
Office was to negotiate an Impact Settlement Agreement with Hydro to address
the adverse effects of past hydro-electric development on the FLCN community.
This agreement was concluded in May 2004.
[6]
Since 2004, the Negotiations Office has
conducted extensive negotiations regarding the Keeyask Project (a
hydro-electric project around the Gull Rapids) including the following:
Interests in a Limited Partnership, anticipated adverse effects of the Keeyask Project
on the FLCN, and the impact of the Keeyask Project on the exercise of
Aboriginal and treaty rights by the FLCN and its citizens arising from the
development and operation of the Keeyask Project. These agreements were
entered into in May 2009.
[7]
The Negotiations Office also has an ongoing
mandate from the FLCN to oversee all matters affecting negotiations with Hydro
respecting the Keeyask Project and the Conawapa project (a separate
hydro-electric project).
[8]
The Negotiations Office eventually became
profitable by passing on operation costs to Hydro at a mark up of the actual
cost of operation. Eventually, the Negotiations Office also opened a second
negotiations office in Gillam, Manitoba.
[9]
Mr. Anderson was employed as a member of the Negotiations
Office. He has been a member of the FLCN all of his life. His employment was
terminated by the Chief and Council of the FLCN. On October 10, 2010, Mr.
Anderson filed his complaints under the Code.
[10]
On May 13, 2011, the Minister of Labour of
Canada appointed Mr. Graham as an adjudicator to hear and determine the unjust
dismissal complaint. On May 24, 2011, an Inspector issued an order pursuant to
the Code, ordering the FLCN to pay $25,328.70 representing overtime pay,
general holiday pay, and termination pay [the Wage Order]. On June 3, 2011,
the FLCN appealed the Wage Order. On July 20, 2011, the Minister appointed Mr.
Graham as a referee to hear and determine the Wage Order appeal.
[11]
On November 2, 2011, Mr. Graham was served with
a Notice of Constitutional Question pursuant to section 57 of the Federal
Courts Act, RSC 1985, c F-7, challenging his jurisdiction as an adjudicator
and a referee appointed under the Code to hear and determine the unjust
dismissal complaint and the unpaid wages complaint respectively. The basis for
the challenge was that the subject matter of the complaint and the appeal are
within provincial and not federal jurisdiction. The FLCN took the position
that Mr. Anderson was not an employee of the FLCN generally, but of the Negotiations
Office located in Winnipeg, which office was provincially regulated. The
Attorney General of Manitoba intervened as of right.
[12]
Mr. Graham determined that he had jurisdiction
to hear both the unjust dismissal claim and the appeal of the Wage Order. Mr.
Graham applied the functional test mandated by the Supreme Court of Canada in NIL/TU,O
Child and Family Services Society v BC Government and Service Employees' Union, 2010 SCC 45, [2010] 2 S.C.R. 696 [NIL/TU,O], and determined
that a functional analysis of the Negotiations Office’s primary activities led
to the conclusive result that it was engaged in a federal work, undertaking, or
business as defined by section 2 of the Code. Mr. Graham found that the
Negotiations Office was engaged in negotiations with Hydro:
for and on behalf of
the FLCN itself, for the benefit of the community at large, and the individual
members of the FLCN. Conducting negotiations with respect to agreements which
are ultimately entered into by an Indian Band for the benefit of that Indian
Band and its members, who are Indians, is not an activity within the
exclusive legislative authority of the provinces. (emphasis original).
[13]
He found that the presumption that labour
relations fell within provincial jurisdiction was ousted because an entity such
as the Negotiations Office, “which is either part of an Indian Band, or is
subject to its direction, and whose operations and habitual activities are
directed towards negotiating agreements for the benefit of that Indian Band and
its members, is engaged in a federal work, undertaking or business.”
[14]
Mr. Graham acknowledged but rejected the FLCN’s
argument that the Negotiations Office more closely resembles a private
consulting firm and is external to the FLCN. Mr. Graham noted that while the Negotiations
Office did earn profit, it did so by charging a mark-up to Hydro instead of a
consulting fee to the FLCN (its client). Furthermore, the profits earned by
the Negotiations Office were provided to the FLCN to finance some of its other
activities. Additionally, the Chief and Council of the FLCN always maintained
some degree of control over the Negotiations Office. The Negotiations Office
was therefore a part of the FLCN, despite being autonomous and independent in other
respects.
[15]
Mr. Graham also found that if he was wrong about
the result of the functional analysis and that it in fact yielded inconclusive
results, the second step of the NIL/TU’O analysis still led to the
conclusion that the Negotiations Office was a federal work, undertaking, or
business because Provincial regulation of the Negotiations Office’s labour
relations would impair the core of the federal power with respect to Indians
pursuant to subsection 91(24) of the Constitution Act, 1867 (UK), 30
& 31 Victoria, c 3 [the Constitution].
[16]
Mr. Graham based his conclusion on the fact that
the Hydro agreements contained important and extensive compensatory,
restitutionary, and mitigating provisions to address the adverse effects of the
hydro projects on the FLCN. There are references in the agreements to the impact
of the hydro projects on the collective rights and interests of, and the impact
upon the exercise of aboriginal and treaty rights, by the FLCN and its
citizens. Therefore, the activities of the Negotiations Office were found to
be integrally related to the federal responsibility for Indians and lands
reserved for Indians, and are involved in matters that go to the status and
rights of Indians; issues specifically reserved for Parliament.
Issue and
Standard of Review
[17]
The only issue in this application is whether
Mr. Graham has jurisdiction to hear the appeal of the Wage Order and the unjust
dismissal complaint.
[18]
The appropriate standard of review, as the
parties submit, is correctness. The Supreme Court of Canada in Dunsmuir v
New Brunswick, 2009 SCC 9 at para 58, explicitly held that constitutional
questions relating to the division of powers are “necessarily subject to the
correctness review because of the unique role of s. 96 courts as interpreters
of the Constitution.”
Analysis
[19]
Jurisdiction over labour relations has not been
explicitly delegated to either the provinces or Parliament; however, Canadian
courts have recognized that labour relations presumptively fall within the
exclusive jurisdiction of the provincial legislatures and that Parliament has
jurisdiction only by way of exception: NIL/TU,O at para 11. The
exceptions are those that fall within the meaning of section 2 of the Code,
i.e. labour relations of a “federal work, undertaking or business that is
within the legislative authority of Parliament.”
[20]
Accordingly, whether Mr. Anderson’s employment
falls under federal or provincial jurisdiction rests on whether the operations
of the Negotiations Office is properly characterized as being a federal work,
undertaking, or business within the meaning of s. 2 of the Code. If it
is, then the presumption that the province has exclusive jurisdiction over its
labour relations has been ousted.
[21]
Whether a particular entity can be classified as
a “federal work, undertaking or business” within the meaning of the Code
is a narrow question, to be determined according to the framework set out by
the Supreme Court of Canada in Northern Telecom Ltd v Communications Workers
of Canada, [1980] 1 S.C.R. 115 [Northern Telecom] and re-affirmed in NIL/TU,O.
[22]
There was a dispute before Mr. Graham, and this
Court, as to whether it is the FLCN or the Negotiations Office that is the
employer of Mr. Anderson. The FLCN says that the employer is the Negotiations
Office. Mr. Anderson and the Attorney General submit that the employer is the
FLCN and that “jurisdiction over [its] labour relations is clearly federal.”
[23]
Mr. Graham found that the FLCN was the employer
and that finding of mixed fact and law was one within his expertise;
accordingly, it is a finding that is entitled to considerable deference. Based
on the record, that is a reasonable finding that will not be reversed.
[24]
Notwithstanding that finding, Mr. Graham
observed that it was not determinative of the issue of jurisdiction because a
number of cases had been cited to him where, notwithstanding that the employer
was either a First Nation or an unincorporated entity that reported directly to
a First Nation, the regulation of the labour relations had been found to be
within provincial jurisdiction: See Re: Oneida of the Thames Emergency
Medical Service and CAW Canada, 2011 CIRB 564, [2011] CIRBD No 1 [Re:
Oneida]; and Re: Sanspariel, [2010] CLAD No 404 [Re: Sanspariel].
[25]
Contrary to the submission of the Attorney
General, the proper procedure is not to examine the operations of the FLCN as a
whole when considering jurisdiction; rather, as was stated by Mr. Graham, it is
to “consider the operations and habitual activities of the FLCN Band’s
operations which are the subject of the jurisdictional challenge, namely the
operations and habitual activities of the Negotiations Office.” This is
because a single employer may have both federally and provincially regulated
employees: NIL/TU,O at para 22; Tessier Ltée v Quebec (Commission de
la santé et de la sécurité du travail), 2012 SCC 23, [2012] 2
SCR 3 at para 49 [Tessier].
[26]
Consider as an example, a company that operates
a taxi service in British Columbia. The car service that it operates within
the city will be subject to provincial regulation. The ferry service that it
operates in the waters surrounding the city will be subject to federal
regulation. I also note that in Northern Telecom, the Supreme Court
stated that “… it is necessary to look at the particular subsidiary
operation, i.e., the installation department of Telecom, to look at the
"normal or habitual activities" of that department as ‘a going
concern’...” (emphasis added). Therefore, the correct approach is to examine
the habitual activities of the Negotiations Office specifically, not the FLCN
as a whole.
Functional
Analysis
[27]
The Supreme Court of Canada in NIL/TU,O
confirmed that the analysis for determining whether an entity is a federal work
is a two step test. The first step is to conduct a “functional analysis” by
examining “the nature, operations and habitual activities of the entity to see
if it is a federal undertaking.” If this analysis yields conclusive results as
to whether the entity is a federal work, the analysis ends. Only if the result
of the functional analysis is inconclusive, does one proceed to the second step
of the test which examines whether “provincial regulation of the entity’s labour
relations would impair the core of the federal head of power” at issue
(NIL/TU,O at para 18, emphasis original).
[28]
Mr. Graham concluded that the nature of the
activities of the Negotiations Office was conducting negotiations specifically
for the purpose of finalizing agreements which are ultimately entered into
by the FLCN, for the benefit of the FLCN community at large, which agreements
touched on the exercise of Aboriginal and treaty rights, and that this specific
type of negotiation is not an activity within the exclusive legislative
authority of the province.
[29]
He noted that previous jurisprudence
demonstrates that even entities which are part of an Indian Band, which report
directly to an Indian Band, or which provide services to members of an Indian
Band, will nonetheless have their labour relations regulated by the province,
if their operations and habitual activities are within provincial
jurisdiction. However, he distinguished this case stating that the nature of
the services being provided in those previous cases (ambulance services and
early childhood education programs) fell within the jurisdiction of the
provinces.
[30]
By contrast, he saw the activities of the
Negotiations Office as being centred on “negotiating agreements for the benefit
of [the] Indian Band and its members,” subject to the direction or control of
the Indian Band on behalf of whom the negotiations were being conducted.
[31]
I agree with the FLCN’s submission that Mr.
Graham erred in his characterization of the normal and habitual activities of
the Negotiations Office. The central purpose of the Negotiations Office was
the negotiation of sophisticated commercial arrangements with other parties. Mr.
Graham erred in focusing on the fact that the beneficiaries of the activities
of the Negotiations Office are members of an Indian Band. The Supreme Court of
Canada has held that even where services are being delivered to Aboriginal
clients, the essential function of the entity in question does not change: See
Communications, Energy and Paperworkers Union of Canada v Native Child and
Family Services of Toronto, 2010 SCC 46, [2010] 2 S.C.R. 737 at para 11 [Native
Child]; and NIL/TU,O at para 45. I agree with the FLCN that these
cases show that it does not matter who receives the services, who funds the
services, who provides the services, or where the services are located; the
sole consideration is the nature of the habitual activities undertaken by the
entity.
[32]
When properly considered, the habitual
activities of the Negotiations Office are to negotiate with Hydro, a provincial
crown corporation established and regulated by provincial statute, with respect
to the development of new hydro-electric projects generally, which projects are
wholly situated in the province. Apart from the fact that the FLCN is an
Indian Band and that some of the negotiated provisions acknowledge the adverse
effects that these projects will have on the members of the Band, there is nothing
federal about the Negotiations Office’s work. Furthermore, the Supreme Court
of Canada in NIL/TU,O at para 45 made clear that the “community for whom
[the entity] operates… does not change what it does” and that the fact
that “[the entity’s] services are provided in a culturally sensitive manner”
does not on its own displace the provincial nature of the entity.
[33]
The Attorney General of Manitoba argues that where
the employer is an Indian Band, unless there is an activity that the employee
is engaging in that is so distinct and separate from the Band, that employee
should be federally regulated. This submission ignores express guidance from
the Supreme Court of Canada in NIL/TU,O that the functional test looks
specifically at the habitual activities of the entity in question, not who is
providing the services and not who is benefiting from the services.
Additionally, the analysis does not change simply because subsection 91(24) is
engaged. The Supreme Court stated at para 20 of NIL/TU,O that: “There
is no reason why, as a matter of principle, the jurisdiction of an entity’s
labour relations should be approached differently when s. 91(24) is at issue.
The fundamental nature of the inquiry is – and should be – the same as for any
other head of power.” The fact that the employer in this case is an Indian
Band is not relevant to the functional test. This submission also ignores the
presumption that labour relations falls within provincial jurisdiction.
[34]
The Attorney General of Manitoba also submits
that the Negotiations Office is exercising delegated authority from the FLCN
Band Council, which in turn, is exercising authority delegated to it from
Parliament under the Indian Act. Specifically, it is the role of the
FLCN Band Council and, by extension, the Negotiations Office, to represent the
interests of the community. However, if this submission is accepted, it would
mean that anytime any extension of an Indian Band undertook activities which
engaged any interest of that First Nations community, the labour relations of
those employees would be federally regulated. In my view, this position is
undermined by the numerous cases (including those cited by the Adjudicator in
this case) where, despite the Indian Band being the employer, and despite there
being significant interests of the First Nations community at stake, the
employees’ labour relations were nevertheless provincially regulated: See for
example, NIL/TU,O and Native Child (interests in child welfare
services); Re: Oneida (ambulance and medical services); and Re:
Sanspariel (early childhood education programs).
[35]
Additionally, the Attorney General of Manitoba
is of the view that the Negotiations Office was integrally related to the FLCN
Band Council and therefore according to Tessier, Parliament
has derivative jurisdiction. The Supreme Court in Tessier
instructs that Parliament may have derivative jurisdiction in three instances:
1.
The services provided to the federal undertaking
form the exclusive or principal part of the related work's activities (para
48);
2.
When the services provided to the federal
undertaking are performed by employees who form a functionally discrete unit
that can be constitutionally characterized separately from the rest of the
related operation (para 49); and
3.
Where there is an indivisible, integrated
operation, if the dominant character of its operations is integral to a federal
undertaking (para 55).
[36]
The Negotiations Office does not fall into any
of these categories and accordingly, derivative federal jurisdiction is not
justified. In my view, despite the fact that the FLCN is Mr. Anderson’s employer,
the Negotiations Office operates as a discrete unit, and it cannot be said that
the negotiations of Indian rights and status form the “exclusive or principal
part” of the Negotiations Office’s activities. As the agreements themselves
reveal, Indian rights are only engaged by a small portion of the extensive,
otherwise commercial, contractual provisions of the agreements it negotiates.
[37]
The second category does not apply here because
this is not a case where a distinct unit performs a federal work for an
otherwise provincial entity.
[38]
In any event, if I am wrong, and the
Negotiations Office forms an “indivisible, integrated operation” with the FLCN,
the dominant character of its operations is not integral to a federal
undertaking. The FLCN can exist even without the Negotiations Office. The
effective operation of the FLCN is not dependent on the activities
performed by the Negotiations office (Tessier at para 46). While the
negotiations represent progress for the economic interests of the FLCN, I do
not accept that simply because it is negotiating on behalf of the FLCN the
Negotiations Office thereby “lose[s] its distinct character” as a provincial
entity (Westcoast Energy Inc v Canada (National Energy Board), [1998] 1
SCR 322 at para 124). Simply put, the work of the Negotiations Office is
important, but not vital or integral to the FLCN’s operations as an Indian
Band.
[39]
In summary, since the Negotiations Office
habitually conducted negotiations related to the development of hydro electric
projects, the functional test leads to the conclusion that it is not a federal
work. Although some of the contractual provisions that were negotiated by the Negotiations
Office contain references to Aboriginal and treaty rights, these were
incidental to the overall purpose of the contracts which was to negotiate the
development of the hydro-electric projects, and this is not sufficient to oust
the presumption that labour relations are within provincial jurisdiction.
Impairment of
the Core of Subsection 91(24)
[40]
If I am wrong that the functional test is
conclusive that the habitual activity of the Negotiations Office is not a
federal work, and that at best, the functional test is inclusive, I turn to the
second stage of the analysis which focuses on whether provincial regulation of
the entity’s labour relations would impair the core of the federal head of
power under subsection 91(24) of the Constitution.
[41]
The concurring judges in NIL/TU,O
conducted this analysis and drawing from prior jurisprudence in Four B
Manufacturing Ltd v United Garment Workers of America, [1980] 1 S.C.R. 1031,
and Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010, determined that
“the activity or operation must go to the status and rights of Indians. It
must be ‘at the centre of what they do and what they are.’” The Court noted at
para 71 that Provincial law will extend to business or enterprises, on or off
reserve, “except when the law impairs those functions of the enterprise
which are intimately bound up with the status and rights of Indians.”
[42]
I agree with the FLCN that it is not sufficient
that regulation by the province merely touches on rights related to Indian status;
it must impair the core of the federal head of power: NIL/TU,O at paras
19-20. The Respondents say that in this case, provincial regulation of the
labour relations of the Negotiations Office would impair the core of the
federal power, but provide no arguments as to why, beyond simply asserting that
the subject matter is beyond the exclusive jurisdiction of the provinces. I fail
to see how provincial regulation of the employees engaged in the Negotiations
Office would impair the core of the federal power over “Indians and Land
Reserved for the Indians.” It does not impact Indian status, or any rights so
closely connected to it that it could be regarded as a necessary incident of
such status.
[43]
The concurring judges in NIL/TU,O listed the
types of rights that go to the core of Indian status. It is these rights which
cannot be impaired: Relationships within Indian families and reserve
communities; rights that are necessarily incidental to Indian status such as
registrability, membership in a band, the right to participate in elections of
Chiefs and Band Councils, and reserve privileges; the right to possession of
lands on a reserve and the division of family property on reserve lands; sustenance
hunting pursuant to Aboriginal and treaty rights; the right to advance a claim
for the existence or extent of Aboriginal rights or title in respect of a
contested resource or lands; and the operation of constitutional and federal
rules respecting Aboriginal rights.
[44]
Some of the provisions in the negotiated
agreements explicitly acknowledge adverse effects on the exercise of Aboriginal
and treaty rights: See, for example, Article F of the Fox Lake Cree Nation
Adverse Effects Agreement, which states that: “The Project (as defined in this
Agreement) caused adverse effects upon the natural environment in the
Traditional Territory and upon the members of Fox Lake”. Initially, it might seem
as though the exercise of Aboriginal and treaty rights is being impaired by
this agreement; however, as the Adjudicator himself notes, “nothing in any of
the [negotiated] agreements diminished, abrogated, or infringed upon the
aboriginal treaty rights of the FLCN or its citizens.” Therefore, the
agreements themselves do not impair the core of the federal power.
[45]
Even if the Agreements impaired those
rights, that is not the proper analysis; the relevant question is whether provincial
labour legislation would impair the exercise of the treaty rights: See NIL/TU,O
at para 74. I conclude that it would not, for four reasons.
[46]
First, despite the fact that the Negotiations Office
deals directly with Aboriginal and treaty rights, provincial labour legislation
has no impact on the way in which the Negotiations Office deals with those
rights, nor any impact on the rights themselves. Neither Mr. Graham nor any of
the parties pointed to any provision in Manitoba labour legislation that would
impair these rights.
[47]
By contrast, provincial labour legislation might
impair the core of a federal head of power, for example, where subsections
91(8) or 91(28) of the Constitution are engaged. Those sections read:
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91. (8) The
fixing of and providing for the Salaries and Allowances of Civil and other
Officers of the Government of Canada.
91. (28) The Establishment, Maintenance, and Management of
Penitentiaries.
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91. (8) La
fixation et le paiement des salaires et honoraires des officiers civils et autres
du gouvernement du Canada.
91. (28) L’établissement, le maintien, et l’administration des
pénitenciers.
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It is conceivable
that provincial labour legislation could impair these federal cores of power.
[48]
Second, as the concurring judges in NIL/TU,O
noted, “one looks not to the purpose or effect of the enterprise, but to the
activity it carries out.” The Negotiations Office conducts commercial
negotiations related to the development of hydro-electric projects. Of the two
agreements negotiated by the Negotiations Office that are in the record, one
sets out a detailed commercial arrangement for ownership in a Limited
Partnership set up for the development and design of a hydro-electric project.
Nothing in this agreement addresses anything incidental to Aboriginal status.
The second agreement deals explicitly with adverse effects on the FLCN, but
only select provisions address Aboriginal and treaty rights. Therefore, even
if it can be said that the purpose and effect of the negotiations is to deal
with Aboriginal and treaty rights, it does not change the nature of the
activity which is to negotiate terms of hydro project development more
generally.
[49]
Third, the labour relations in question are
those of employees of the FLCN in the Negotiations Office, a body that simply
negotiates the terms of the agreements on behalf of the FLCN. By Mr. Anderson’s
own admission, the Chief and Council of the FLCN were the ultimate signing
authorities and made all major decisions concerning contracts that were
negotiated. Only they could bind the FLCN. Therefore, the role of the Chief
and Council must be compartmentalized from the role of the employees working in
the Negotiations Office. When that is done, it is clear that nothing about the
habitual activities of the Negotiations Office impaired the exercise of
Aboriginal and treaty rights because they could not bind the FLCN to the terms
of the final agreement. If there was to be any impairment of Aboriginal and
treaty rights, it would come at the hands of the Chief and Council of the FLCN,
whose labour relations are not in issue in this application.
[50]
Fourth, there is nothing in the Indian Act
concerning negotiations, particularly with provincial entities, or concerning
development of hydro-electric projects. There are specific provisions dealing
with lands on reserve, but none of them would be impaired by provincial
regulation of labour relations.
[51]
Moreover, sections 35(1) and 88 of the Indian
Act acknowledge that there will inevitably be some overlap between the
exercise of federal and provincial competencies, but that such overlap does not
impair the jurisdiction of the other body:
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35. (1) Where
by an Act of Parliament or a provincial legislature Her Majesty in right of a
province, a municipal or local authority or a corporation is empowered to
take or to use lands or any interest therein without the consent of the
owner, the power may, with the consent of the Governor in Council and subject
to any terms that may be prescribed by the Governor in Council, be exercised
in relation to lands in a reserve or any interest therein.
88. Subject to the terms of any treaty and any other Act of
Parliament, all laws of general application from time to time in force in any
province are applicable to and in respect of Indians in the province, except
to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or
with any order, rule, regulation or law of a band made under those
Acts, and except to the extent that those provincial laws make provision for
any matter for which provision is made by or under those Acts.
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35. (1) Lorsque,
par une loi fédérale ou provinciale, Sa Majesté du chef d’une province, une
autorité municipale ou locale, ou une personne morale, a le pouvoir de
prendre ou d’utiliser des terres ou tout droit sur celles-ci sans le
consentement du propriétaire, ce pouvoir peut, avec le consentement du
gouverneur en conseil et aux conditions qu’il peut prescrire, être exercé
relativement aux terres dans une réserve ou à tout droit sur celles-ci.
88. Sous réserve des dispositions de quelque traité et de quelque
autre loi fédérale, toutes les lois d’application générale et en vigueur dans
une province sont applicables aux Indiens qui s’y trouvent et à leur égard,
sauf dans la mesure où ces lois sont incompatibles avec la présente loi ou la Loi sur la gestion financière des premières
nations ou quelque arrêté, ordonnance, règle, règlement ou texte
législatif d’une bande pris sous leur régime, et sauf dans la mesure où ces
lois provinciales contiennent des dispositions sur toute question prévue par
la présente loi ou la Loi sur la gestion financière des premières
nations ou sous leur régime.
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[52]
These provisions are consistent with today’s
constitutional landscape, which, in the words of Justice Abella in NIL/TU,O,
“is painted with the brush of co-operative federalism.”
[53]
Given this view of modern federalism, there is
nothing to prevent provinces from passing legislation on subjects within their
exclusive jurisdiction, even where the legislation affects Aboriginal peoples,
provided that legislation does not directly contradict or materially impact anything
in the Indian Act or other federal statutes dealing with Aboriginal
peoples. There is nothing to suggest that regulation of labour relations of
persons who negotiate on behalf of an Indian Band, but cannot bind it, would
impair the core of the federal power over “Indians and Lands Reserved for
Indians” and no submission was advanced on how provincial regulation of
labour relations over the staff of the Negotiations Office impairs the core of
this federal head of power beyond simply asserting that it does.
[54]
The application is allowed, and the decision of
Mr. Graham finding that the employment of Mr. Anderson by the FLCN falls under
the jurisdiction of Parliament is set aside.
[55]
The parties indicated that they would prefer to make
submissions on costs after a determination on the merits was made. Following
the hearing, it was also brought to my attention that the Applicant made an offer
to the Respondent regarding costs, which was rejected. Therefore, in light of
the fact that the Application is allowed, the parties are to provide
submissions as to costs to the Court, as follows:
1.
The Applicant’s written submissions, not
exceeding ten pages in length, are due ten (10) days after the date this
judgment is issued;
2.
The Respondent’s written reply submissions are
due 10 days after the Applicant’s submissions.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The
application is allowed;
2. The decision of A. Blair Graham Q.C. dated October 30,
2012, is set aside because the employment relationship of Dennis Anderson and
the Fox Lake Cree Nation is not governed by the Canada Labour Code, RSC
1985, c L-2; and
3. The Fox Lake Cree Nation is entitled to its costs, as
against Dennis Anderson, the quantum of which is reserved, pending receipt of
the parties’ submissions.
"Russel W. Zinn"
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