Dockets: T-1043-13
T-1030-13
Citation:
2015 FC 366
Ottawa, Ontario, March 23, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
|
Docket: T-1043-13
|
|
BETWEEN:
|
|
ATTORNEY GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
MUNSEE-DELAWARE NATION
|
|
AND CRYSTAL FLEWELLING
|
|
Respondents
|
|
Docket:
T-1030-13
|
|
AND
BETWEEN:
|
|
CRYSTAL FLEWELLING
|
|
Applicant
|
|
and
|
|
MUNSEE-DELAWARE NATION
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
THE ATTORNEY GENERAL OF ONTARIO
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Introduction
[1]
These two related cases, heard together, stem
from a long and rather bitter labour dispute between the Respondent, Munsee-Delaware
Nation (the Nation), and the Applicant, Crystal Flewelling. Ms Flewelling claims
her employment was unjustly terminated by the Nation. She filed a complaint for
unjust dismissal under section 240 of the Canada Labour Code, RSC 1985,
c. L-2 (the Code) resulting in an adjudicator being appointed under section 242
of the Code (the Adjudicator).
[2]
On May 10, 2013, when the six-year long proceedings
before the Adjudicator were near completion, the Adjudicator, in the wake of
the Supreme Court of Canada decision in NIL/TU,O Child and Family Services
Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45,
[2010] 2 S.C.R. 696 (NIL/TU,O), ruled that he had no jurisdiction to consider
Ms Flewelling’s complaint on the ground that her employment was provincially
regulated.
[3]
The issue brought before this Court, by both Ms
Flewelling and the Attorney General of Canada, is whether the Adjudicator erred
in concluding as he did. For the reasons that follow, I find that the Code
applies to Ms Flewelling’s complaint and that, as a result, both the Attorney
General and Ms Flewelling’s judicial review applications shall be granted.
II.
Background
A.
Ms Flewelling’s Complaint
[4]
Ms Flewelling is a member of the Nation. She was
hired by the Nation in September 2001 to work in its Administration offices. This
was at the time Co-Management had been imposed by the Department of Aboriginal
Affairs and Northern Development Canada as a result of the Nation’s failure to
meet its obligations regarding the management of its financial affairs. Over
time, her duties evolved from those of a data entry/file clerk to those of a
housing/finance clerk. Her employment was terminated in the spring of 2006.
[5]
The Nation is an Indian Band as defined under
the Indian Act, RSC 1985, c I-5. Reserve lands, located in southern Ontario, were set apart by the Crown for its use and benefit. The Nation’s population
consists of approximately 600 people, with a little less than 200 members
living on the reserve. It is governed by a Chief and Council elected in
accordance with the Nation’s Custom Election Code.
[6]
In May 2006, Ms Flewelling filed a complaint of
unjust dismissal under the Code. At the outset of the complaint process, the
Nation took the position that it was an Indian Band recognised under the Indian
Act and that its labour relations with its employees were governed by the
Code. As the complaint could not be settled by an inspector appointed under
section 241(2) of the Code, the matter was referred to the Adjudicator.
[7]
On January 28, 2008, the Adjudicator issued an
award dismissing two preliminary non-constitutional, jurisdictional objections,
raised by the Nation. The proceedings before the Adjudicator were then at a
standstill for three years as the parties were awaiting the resolution of
related criminal charges laid against Ms Flewelling. The adjudication proceedings
resumed in the fall of 2011, at which point the Nation advised that it was no
longer asserting cause for Ms Flewelling’s dismissal. As a result, the amount
of damages payable to Ms Flewelling remained the only issue to be determined.
[8]
In the fall of 2012, when the hearings on this
issue were well under way, the Nation asserted that Ms Flewelling’s employment
was regulated by the labour laws of Ontario rather than the Code and that, as a
result, the Adjudicator had no jurisdiction to hear and determine her complaint
for unjust dismissal.
B.
The Adjudicator’s Decision
[9]
On May 10, 2013, the Adjudicator ruled in favour
of the Nation. He first noted that although the presumption, in Canada, is
that employment relationships are regulated by the provinces, it had been
widely accepted, as evidenced by the Nation’s position at the outset of the
complaint proceedings, that the employment relationships of employees of First
Nations were regulated by the Federal government, given Parliament’s authority
over “Indians and Lands reserved for Indians” under
subsection 91(24) of the Constitution Act, 1867.
[10]
However, he agreed with the Nation’s assertion
that the Supreme Court of Canada decision in NIL/TU,O changed the legal
landscape in that regard by holding that the presumption that employment
relationships are regulated by the provinces applied even when the employer was
a First Nation. This meant, according to the Adjudicator, that when
determining which of the provincial or federal labour laws apply to a given
employment relationship, the fundamental nature of the inquiry was the same for
First Nation employers as for any other federal heads of power.
[11]
The Adjudicator then proceeded with the first
step of that inquiry, the “functional test”, and
considered the nature, operations and habitual activities of the Nation in
order to determine whether the Nation qualified as a “federal
undertaking” under the Code. He held in this regard that the Nation’s
activities were mostly concerned with policing, welfare, health, education and
bingo and that those activities were all provincially regulated. Turning to
the work performed by Ms Flewelling, the Adjudicator found that she was doing
internal accounting and kept the Nation’s financial records for all its
operations, including for the policing, welfare, health, education and bingo
hall functions. He concluded that there was nothing in the work that Ms Flewelling
was performing that was federally regulated.
[12]
Having found that the work performed by Nation’s
employees in general, and by Ms Flewelling in particular, was of a type which
is generally seen as provincially regulated, the Adjudicator concluded he had
no jurisdiction to determine Ms Flewelling complaint. As a result, he held
that there was no need to proceed with the second stage of the inquiry and consider
whether provincial regulation of the Nation’s labour relations would impair the
core of the federal head of power over “Indians and
Lands reserved for Indians.”
C.
The Complaint’s Statutory Framework
[13]
The complaint filed by Ms Flewelling was brought
under Part III of the Code which applies, according to section 167 of the Code,
to “employment in or in connection with the operation
of any federal work, undertaking or business”. Section 2 of the Code
defines “federal work, undertaking or business” as,
inter alia, “any work, undertaking or business that is within the
legislative authority of Parliament.”
[14]
As indicated previously, the authority to
legislate over “Indians and Lands reserved for Indians”
belongs to Parliament.
III.
Issue and Standard of Review
[15]
The issue to be decided is whether the
Adjudicator erred in concluding that the employment relationship between Ms
Flewelling and the Nation is governed by provincial law rather than the Code.
[16]
The appropriate standard of review applicable to
constitutional questions relating, as is the case here, to division of powers
issues is correctness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at para 58). The parties do not dispute this although the Nation
contends, correctly in my view, that the Adjudicator’s findings regarding the underlying
facts to the issue at hand, such as the characterization of the employment, are
owed deference and are to be reviewed, as a result, on the standard of
reasonableness (Commissionaires (Great Lakes) v Dawson, 2011 FC 717, 391
FTR 216; Fox Lake Cree Nation v Anderson, 2013 FC 1276, at para 23).
IV.
Analysis
A.
Constitutional Jurisdiction over Labour
Relations
[17]
The Constitution Act, 1867 is silent as
to whether the provincial legislatures or Parliament has jurisdiction over
labour relations. However, Canadian courts have, historically, recognized that
labour relations are presumptively of provincial jurisdiction - as a matter
falling within the provinces’ Property and Civil Rights head of power - and
that the federal government has jurisdiction over that subject matter only by
way of exception. That is, when the entity for which labour relations are at
issue is a “federal work, undertaking or business”
(Toronto Electric Commissioners v Snider, [1925] AC 396, [1925] JCJ No.
1 (QL); Northern Telecom Ltd. v Communications Workers of Canada, [1980]
1 SCR 115; Four B Manufacturing Limited v Union Garment Workers of America,
[1980] 1 S.C.R. 1031 (Four B); Consolidated Fastfrate Inc. v Western
Canada Council of Teamsters, [2009] 3 S.C.R. 407, 2009 SCC 53; NIL/TU,O,
above).
[18]
To determine whether a work, undertaking or
business’ labour relations is federally or provincially regulated involves the following
two-step inquiry:
a.
The first step – also called the “functional test” - requires the Court to inquire into
the nature, habitual activities and daily operations of the entity in question in
order to determine whether it constitutes a federal work, undertaking or
business; and
b.
If the functional test is inconclusive, then the
Court must inquire into whether provincial regulation of that entity’s labour
relations would impair the core of the federal head of power (Four B, above
at p. 1045; NIL/TU,O, at para 6).
[19]
This approach, which is distinct from the one
used to determine whether a particular piece of legislation falls within the
legislative authority of Parliament or the provinces (NIL/TU,O at para
12), has, for the last 85 years, been “consistently
endorsed and applied” by the Supreme Court of Canada (NIL/TU,O,
at para 3).
B.
The Position of the Parties
[20]
The Attorney General claims the Federal Court of
Appeal’s decision in Francis v Canada Labour Relations Board [1981] 1 FC
225 (FCA), rev’d P.S.A. (Can) v Francis [1982] 2 S.C.R. 71 (Francis)
is dispositive of the matter and was binding on the Adjudicator. It contends
that Francis establishes that Indian bands and band councils, as they derive
their governance authority from the Indian Act and other federal
legislation, such as the First Nation Fiscal Management Act (SC 2005, c
9), are federal undertakings for the purposes of labour relations when they are
engaged in their governance function and in the general administration of band
affairs and reserves, including their financial affairs.
[21]
The Attorney General further contends that Francis
is distinguishable from cases like NIL/TU,O where the employer or entity
in question is not an Indian band but rather a distinct and separate legal
entity, or from cases where the entity, although not, legally speaking, a separately
incorporated body, is a separate and distinct operation from the Indian Band or
Council.
[22]
Ms Flewelling adopts a similar view and stresses
the fact that, contrary to NIL/TU,O, the Nation is not (i) a
provincially incorporated body; (ii) a provincial corporation whose sole
purpose is to provide child welfare services; (iii) a corporation subject to
provincial legislation; (iv) a corporation whose operations are regulated
exclusively by the province; or (v) an entity over which the province retains
ultimate control regarding decision-making over its activities.
[23]
She claims that the essential function of the Nation’s
Band Council is not to support police work, health care services, education, and
employment in the Bingo Hall or to administer the welfare program. Rather, it
is to protect the status, rights and privileges of First Nation’s persons,
which is an integral part of federal jurisdiction over Indians and Lands
reserved for Indians. She says that her work with the Nation was not specific
to any particular discrete program but was rather related to the Nation’s
financial affairs and to the management of housing on the Nation’s land. All
her work, according to her, was ultimately under the control of the Nation’s Chief
and Council and allowed the Nation to carry out its governance mandate and to comply
with its obligations under the Indian Act and other related federal
legislation.
[24]
The Nation disagrees. It claims that NIL/TU,O
does not distinguish between an employer which is a First Nation and one which
is a corporation formed by one or more First Nations nor does it hold that a
First Nation’s activities can only be federal in nature. Rather, it contends
that NIL/TU,O confirms that First Nations, like any other employers,
should have its labour relations characterized under the functional test and
not some other test. According to the Nation, this test is about what work
activity is involved, not about who performs the work or for whom it is
performed. It submits that, to the extent Francis applied some other
test, it has been overruled by NIL/TU,O.
[25]
The Nation further claims that, as a First
Nation, it has an inherent authority to govern, recognized within the Canadian
Constitution. It says in this regard that it is governed by a Chief and a Council
which are elected in accordance with the Nation’s Custom Code and which are not
organized or regulated by the Indian Act or its regulations. It is no
longer correct, according to the Nation, to describe a First Nation as a
creature of statute and First Nation Councils as creatures of the Indian Act.
The Nation contends that even if First Nations were organized under the Indian
Act, they would be so organized subject to section 88 of that Act which
extends the application of provincial laws of general application, like
provincial labour relations laws, to Aboriginal people and their lands.
[26]
Here, it claims that Ms Flewelling’s habitual work
activities – accounting and bookkeeping – are provincially regulated and only
have, in any event, an insignificant portion of federal content. It submits that
the fact that these activities were performed on behalf of a First Nation or for
the benefit of Aboriginal people is irrelevant. It says that the Adjudicator
was therefore correct in finding that the labour relations over these
activities were provincially regulated and that he was without jurisdiction to
entertain Ms Flewelling’s complaint under the Code.
C.
Francis is still good law and was binding on the
Adjudicator
[27]
This issue in this case turns on whether Frances
is still good law in light of NIL/TU,O. If it is, then it is binding on
both the Adjudicator and this Court, with the result that the Adjudicator’s
ruling that he is without jurisdiction to consider Ms Flewelling’s complaint
under the Code must be set aside. If it is no longer good law, then that
ruling must stand.
[28]
Francis dealt
with the certification, under the Code, of the Public Service Alliance of
Canada as the bargaining agent for a group of employees of the St-Regis Indian
Band (the Employees) engaged, for the most part, in “education
administration, the administration of Indian lands and estate, the
administration of welfare, the administration of housing, school
administration, public works, the administration of an old age home,
maintenance of roads, maintenance of schools, maintenance of water and
sanitation services, and garbage collection” (Francis, at para
17).
[29]
Applying the teachings of Four B, Justice
Heald (Justice Le Dain concurring on that point) characterized the function of
the Employees generally as being “almost entirely
concerned with the administration of the St-Regis Band of Indians”, as
being “governmental in nature” and as coming
under “the jurisdiction of the Indian Act”
(Francis, at para 17).
[30]
Justice Heald then proceeded to a detailed
analysis of the provisions of the Indian Act relating to the involvement
of an Indian Band and its Council to which that Act applies in the administration
of the affairs of the Band. It is useful here to reproduce that analysis:
(…) It is also instructive to peruse the
various provisions of the Indian Act to determine the extent to which an Indian
band and its council are involved in the administration of the affairs of an
Indian band to which, as is the case here, the Indian Act applies. Section 20
states that no Indian is lawfully in possession of land in a reserve unless
such possession is allotted to him by the band council and then approved by the
Minister. Section 24 enables an Indian lawfully in possession of reserve lands
to transfer that right to possession to another band member or to the band
itself with the Minister's approval. Section 25 provides that, in certain
circumstances, an Indian's right to possession of reserve lands shall revert to
the band. Section 34 imposes a duty upon a band to maintain the roads, bridges,
ditches and fences within the reserve occupied by that band. Section 37
provides that reserve lands shall not be sold, alienated, leased or otherwise
disposed of unless they have been surrendered to the Crown by the band. Section
39 details the procedure to be followed by a band in making such surrender.
Section 58 enables the Minister, with the consent of the band council, to
improve, cultivate or lease uncultivated or unused reserve lands. Under this
section, the Minister is empowered, with the consent of the band council, to
dispose of sand, gravel, clay and other non-metallic substances upon or under
reserve lands. Section 59 empowers the Minister, with the consent of the band
council, to reduce or adjust the amount payable to the Crown in respect of the
sale, lease or other disposition of surrendered reserve lands and furthermore,
to reduce or adjust the amount payable to the band by an Indian in respect of a
loan made to the Indian from band funds. Section 60 empowers the Governor in
Council to grand to a band, at the request of that band, the right to exercise
such control and management over reserve lands as the Governor in Council
considers desirable. Counsel advised us that no such Order in Council subsists
with respect to the St. Regis Indian Band. Sections 61 to 69 inclusive of the
Act deal with the management of Indian moneys. Section 64 empowers the
Minister, with the consent of the band council, to expend capital moneys of the
band for various purposes: to distribute per capita to band members portions of
the proceeds of sale of surrendered lands; for the construction and maintenance
of roads, bridges, ditches, water courses and outer boundary fences; to
purchase land for use by the band as a reserve or an addition to a reserve; to
purchase for the band the interest of a band member in reserve lands; to
purchase livestock and farm machinery for the band; to construct and maintain
permanent improvements on the reserve; to make loans to band members; to meet
expenses necessarily incidental to the management of reserve lands and band
property; to construct houses for band members and to make loans to band
members for building purposes; and generally, for any other purpose for the
benefit of the band, in the opinion of the Minister. Section 66 empowers the
Minister, with the consent of the band council to expend revenue moneys of the
band for a number of purposes. Section 69 empowers the Governor in Council to
allow a band to control, manage and expend in whole or in part its revenue
moneys. Regulations pursuant to section 69 have been passed by the Governor in
Council and apply to the St. Regis Indian Band4. These Regulations empower this
Band, along with a large number of other bands in Canada to control, manage and
expend its revenue moneys in whole or in part subject to the detailed
provisions of the Regulations providing for bank accounts, signing officers,
appointment of auditors, etc. Sections 74 to 80 inclusive provide for the
elections of chiefs and band councils.
Sections 81 to 86 inclusive set out the
powers of the band council. Section 81 empowers a band council to make by-laws
for a large number of purposes: for the health of reserve residents; traffic
regulation; observance of law and order; establishment of animal pounds;
construction and maintenance of water courses, roads, bridges, ditches, fences
and other local works; regulation of types of business to be carried on;
building restrictions; allotment of reserve lands to members; noxious weed
control; regulating and controlling water supplies; regulating and controlling
sports, races, athletic contests and other amusements; and regulation of
hawkers and peddlers, etc.
(Francis, at paras 17-18)
[31]
Based on the powers conferred on the Band and
its Council in the Indian Act and the evidence of the exercise of these
powers by the Band and its Council, Justice Heald was satisfied that, contrary
to Four B, which was concerned with the labour relations of four
aboriginal individuals conducting a commercial business on an Indian reserve, the
Employees were “directly involved in activities related
to Indian status” and that “the total
administration of the Band [was] continuously concerned with the status and the
rights and privileges of the Band Indians” (St-Régis, at para
20). Paraphrasing the majority’s reasons in Four B, he concluded that
the labour relations in issue were “an integral part of
primary federal jurisdiction over Indians or Lands reserved for the Indians”
and were, as a result, coming under federal legislative competence pursuant to
section 91(24) of the Constitution Act 1867 (St-Régis, at para
20).
[32]
As the activities engaged in by the Employees
and the Band were being discharged under the authority of the Indian Act,
Justice Heald was then satisfied that the administration of the St-Regis Band
was a federal “work, undertaking or business” within
the meaning of section 108(1) of the Code, that Parliament had therefore occupied
the field respecting the Band’s labour relations, and that the Public Service
Alliance of Canada was, as a result, constitutionally entitled to seek certification
as a bargaining agent for the Employees under the Code (Francis, at para
22).
[33]
However, Justice Heald held that the St-Regis
Band was not an “employer” within the meaning of
the Code - that is a “person who employs one or more
employees” - as it was not a “person” under
either the Code or the Indian Act. As a result, he concluded that the
Canada Labour Relations Board had acted without jurisdiction in purporting to
certify the Alliance. Chief Justice Thurlow, who did not come to a final
conclusion on the issue of the constitutional applicability of the Code to the
Employees and the St-Regis Band, concurred with Justice Heald on that point. Justice
Le Dain dissented.
[34]
Two years later, the Supreme Court of Canada overturned
Justices Heald and Thurlow’s finding and held that the St-Regis Band Council
could properly be considered an employer within the meaning of the Code on the
ground that Band Councils were creatures of the Indian Act, that they were
given power to enact by-laws for many specific purposes which are similar to
those covered by the by-laws of a municipality and that they did, in fact,
engage and pay employees to do work for them (Public Service Alliance of
Canada v St-Regis Indian Band, [1982] 2 S.C.R. 72).
[35]
The judgment of the Federal Court of Appeal in St
Regis was rendered in the wake of – and in line with the analysis
framework dictated by - Four B which clearly rejected the notion that
the functional test is “inappropriate and ought to be
disregarded where legislative competence is conferred not in terms of physical
objects, things or systems, but to persons or groups of persons such as Indians
or aliens” (Four B, at page 1045). As a result, the
Federal Court of Appeal proceeded with its constitutional applicability analysis
on the basis of the functional test and, as required by that test, directed its
attention to the nature of the work being performed by the unit of employees in
question and to the nature of the “business” or
operation of a Band Council to which the Indian Act applies (St Regis,
para 17).
[36]
Four B is the
predecessor of NIL/TU,O when establishing whether labour relations in a
First Nation employment context are to be governed by provincial or federal laws.
In this regard, nothing in NIL/TU,O points to the Four B’s principles
being discarded, disregarded or discredited. To the contrary, the majority in NIL/TU,O
often refers to the test of Four B as the one that should be followed and
applied (NIL/TU,O, at para 3, 15, 18, 23 and 40). It also refers
to Four B as being the case, together with Northern Telecom,
above, which sets out “most comprehensively” the
legal test for determining the jurisdiction of labour relations on federalism
grounds (NIL/TU,O, at para 3).
[37]
NIL/TU,O reiterated
that this legal test had to be used regardless of the specific head of federal
power engaged in a particular case, including, as stated in Four B, the
power over “Indians and Lands reserved for Indians”
(NIL/TU,O, at para 3). Applying the Four B test to the
circumstances of that case (NIL/TU,O, at para 23) – a certification case
like Francis - the Supreme Court found that the labour relations of the
group of employees at issue fell under provincial jurisdiction.
[38]
However, these circumstances were somewhat
different to those in Francis. From the outset, Madam Justice Abella, writing
for the majority, underlined the “unique institutional
structure” of the employer (NIL/TU,O, at para 1). This employer
was a society - the NIL/TU,O Child and Family Services Society (the Society) –
incorporated under British Columbia’s Society Act by a number of First
Nations located in that province, to establish a child welfare agency that
would provide “culturally sensitive” services to
the children and families of those communities. The Society was regulated
exclusively by the province and its employees exercised exclusively provincial
delegated authority under British Columbia’s Child, Family and Community
Service Act (NIL/TU,O, at para 36). It was funded by both the
province and the federal government. This funding was the federal government’s
sole involvement in the Society’s activities (NIL/TU,O, at para 34 and 40).
[39]
Madam Justice Abella found that the Society’s
distinctiveness as a child welfare organization for Aboriginal communities did
not take away “from its essential character as a child
welfare agency that is in all respects regulated by the province” and concluded
that its function was “unquestionably a provincial one”
(NIL/TU,O, at para 39).
[40]
To borrow the terms used by Madam Justice Abella
in NIL/TU,O, I do not think it can be said, in
the present case, that the employer is an agency “that is in all respects regulated by the province”, that
its function is “unquestionably a provincial one”
and that Ms Flewelling exercised “exclusively provincial
delegated authority” under a provincial legislation. Here, the employer
is a Band Council to which the Indian Act applies and Ms Flewelling was
engaged in the general administration of the band’s affairs, including
on-reserve housing and matters concerning Indian reserve lands. Her work
activities were described by the Adjudicator as follows:
The Complainant worked in the Employer’s
finance department in the Nation’s office. She was the only employee in that
department and so she did all the usual accounting duties. She
maintained the Employer’s financial records, including accounts payable,
accounts receivable, payroll, bank deposits and bank reconciliation.
(Emphasis added)
[41]
The evidence before the Court shows that Ms
Flewelling’s salary was paid out of federal monies received by the Nation;
monies which consisted of the main share of the Nation’s funding.
[42]
According to St Regis, the business or
operation of a Band Council is that of a local government deriving its
authority from the Indian Act and the applicable regulations. It has a “comprehensive responsibility of a local government nature”
(St Regis, Justice Le Dain, at para 27). It carries out governance
functions through the employment of administrative employees. Ms Flewelling
was one of those employees.
[43]
I agree with the Attorney General that the
Adjudicator’s analysis is devoid of any consideration of the core functions of
Indian bands and Band Councils that formed part of the analysis in Francis.
His sole reliance on NIL/TU,O, which was concerned with the labour
relations of a separately incorporated and provincially regulated child welfare
service and which had nothing to do with the day-to-day administrative
functions integral to running -the affairs of an Indian Band, is a
reviewable error.
[44]
As in this case, the St-Regis Band was engaged
in education administration, in the administration of welfare and in the
delivery of healthcare in the form of the administration of an old age home.
The Adjudicator ruled that these activities were provincially regulated and
that, therefore, nothing in the work performed by Ms Flewelling was of the type
which would normally be federally regulated. The fundamental nature of the
“business” or operation of a Band and a Band Council, to which the Indian Act
applies, as depicted by the Federal Court of Appeal in Francis, is
completely lost in that analysis.
[45]
I am not prepared to say that Francis was
overruled by NIL/TU,O. The absence of any consideration of this crucial
factor, is, in my view, fatal to the Adjudicator’s ruling. In other words,
based on Francis, the functional test is conclusive that the administration
of the Nation’s Band is a federal undertaking within the meaning of the Code.
[46]
The Nation claims that NIL/TU,O
implicitly overrules Francis:
Notwithstanding this Court’s long-standing
approach, a different line of authority has uniquely emerged when courts are
dealing with s. 91(24) (see Sappier v. Tobique Indian Band (Council) (1988),
87 N.R. 1 (F.C.A.); Qu’Appelle Indian Residential School Council v. Canada
(Canadian Human Rights Tribunal), [1988] 2 F.C. 226 (T.D.), at p. 239; Sagkeeng
Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (T.D.), at pp.
459-60). This divergent analysis proceeds, contrary to Four B, directly to
the question of whether the “core” of the head of power is impaired, without
applying the functional test first. (…) [Madame Justice Abella, para 19]
[47]
In my view, Francis is not listed as part
of that “different line of authority” for a
reason and that reason is that the functional test, as set out in Four B,
was central to the Federal Court of Appeal’s approach and analysis to the
question of the Code’s constitutional applicability to the labour relations
issue at play.
[48]
The case of Communications, Energy and Paperworkers Union of
Canada v Native Child and Family Services of Toronto, 2010 SCC 46, [2010] 2
SCR 737, which was decided by the Supreme Court of Canada on the
same day as NIL/TU,O, is not helpful to the Nation either. This case involved
a very similar set of facts as NIL/TU,O as the employer in that case was
an aboriginal children’s aid society that delivered services primarily to
Indian and Metis families pursuant to Ontario’s Child and Family
Services Act and an agreement with the Ontario government. The Supreme
Court essentially endorsed its decision in NIL/TU,O and affirmed the Federal
Court of Appeal decision where that Court found the links to federal
jurisdiction over Indians in that case were even thinner than those in NIL/TU,O
(Native Child and Family Services of Toronto v Communication, Energy and
Paper workers Union of Canada, 2008 FCA 338, at para 40). Nowhere in these two decisions is there any indication that
Francis is no longer good law.
[49]
Neither is the decision of my colleague, Justice
Russel Zinn in Fox Lake Cree Nation v Anderson, 2013 FC 1276, an
unjust dismissal matter - as in the present case - an indication that Francis
has lost its precedential value, as contended by the Nation. First, in
accordance with the stare decisis principle, only the Supreme Court of Canada or the Federal Court of
Appeal itself can overrule that decision (R. v Henry, 2005
SCC 76, [2005] 3 S.C.R. 609; Canada v Craig, 2012 SCC 43, [2012] 2 S.C.R. 489;
Martin v Canada (Attorney General), 2013 FCA 15, [2014] 3 FCR 117, at para
104). This has not occurred. Second, the First Nation in that case, also an
Indian Band under the Indian Act, had set up a Negotiation Office which
has as a “central purpose” the “negotiation of sophisticated commercial arrangements with
other parties” (Fox Lake Cree Nation, at para 31). The First
Nation was challenging the Code’s constitutional applicability to the unjust
dismissal complaint filed by an employee of the Negotiation Office. The First
Nation took the position that the Negotiation Office was a separate and
distinct operation from the Band’s general administration and that the employee
in question was not an employee of the First Nation generally, but of the
Negotiation Office as a discrete unit. That position prevailed. In grating the
First Nation’s judicial review application, Justice Zinn held that the
Negotiation Office was not vital or integral to the First Nation’s operations
as an Indian Band (Fox Lake Cree Nation, at para 36-38). Therefore,
contrary to Francis and to the situation in the present case, Fox
Lake Cree Nation was concerned with a discrete unit separate and distinct
from the Band’s general administration and central governance function and is,
as a result, distinguishable.
[50]
Finally, I do not believe that the Nation’s
assertion that it has an inherent authority to govern recognized by section 35
of the Constitution Act 1982 and that, as a result, it is not subject to
the regulation of federal laws such as the Indian Act, has any bearing
on the outcome of this case. As both the Attorney General and Ms Flewelling
correctly point out, such a right to self-government, in order to be legally enforceable,
needs to emanate from either a negotiated self-government agreement with the
government of Canada or a judicial declaration. When it is asserted in
litigation, it needs, as any other kind of Aboriginal right, to be
characterized in context and with sufficient specificity to allow a court to
identify a practice, custom or tradition that is integral to the distinctive
culture of the First Nation asserting that right (R v Van der Peet, [1996]
2 SCR 507, at para 46; R v Pamajewon, [1996] 2 S.C.R. 821, at para 24).
[51]
Here, the Nation adduced no evidence that could
support a finding of such an inherent right to govern and certainly no evidence
that its claim in this respect meets the test established in Van der Peet,
above. Although First Nations do not owe their existence to the Indian Act
or any other statute and that an Indian Band is more than a creature of
statute, they nevertheless constitute entities that, as Bands and Councils, are
regulated by the Indian Act and exercise powers in accordance with that
Act (Perron v Canada (Attorney General), [2003] 3 CNLR 198 at
para 22; Jack Woodward, Q.C., Native Law, vol 1, looseleaf,
Toronto, Carswell, 2007 at 1-420).
[52]
It is trite law that Bands have statutory obligations under the Indian
Act that ensure their political and financial accountability, both to their
members and to the federal government (Ardoch Algonquin First Nation &
Allies v Ontario, [1997] OJ No 2313 (QL), at para 7; Cynthia Kynebush v
Pheasant Rump Nakota First Nation et al, 2014 FC 1247 at para 44). It is also clear that the Indian Act applies whether the Band
Council is elected through the process prescribed by it pursuant to section 74
or through customary elections which are
recognized by that Act (see the definition of “council of the band” in subsection 2(1) of the Indian Act; Mohawk of
Kanesatake v Mohawk of Kanesatake (Council), [2003] 4 FC 1133, 227 FTR 161,
at para 13). This is no different whether the Band
Council seldomly uses its authority to pass by-laws. It remains an entity deriving
its authority from the Indian Act.
[53]
There is no doubt that the aboriginal right to
self-government, as recognized by the Constitution, can be asserted - but not
in this case. It has neither been established nor asserted before the
Adjudicator. Therefore, the Nation’s argument that its governance authority is
not delegated from Parliament but rather, stems from its constitutionally
protected right to self-govern must fail.
[54]
In sum, Francis is still good law. It
was binding on the Adjudicator as it is on this Court. As it is dispositive of
the present matter, the Attorney General and Ms Flewelling’s judicial review
applications are granted and costs are awarded against the Nation in both cases.
The present Judgment and Reasons will be filed in both dockets T-1030-13 and
T-1043-13.
Email this Content