Date: 20101112
Docket: A-146-10
Citation:
2010 FCA 306
CORAM: BLAIS C.J.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
CONSEIL DES INNUS DE PESSAMIT
Applicant
and
ASSOCIATION DES POLICIERS ET POLICIÈRES DE PESSAMIT
Respondent
and
ATTORNEY
GENERAL OF QUEBEC
Intervener
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an application for judicial review filed
by the Conseil des Innus de Pessamit (the applicant) against a decision of the Canada
Industrial Relations Board (the CIRB) dated March 4, 2010 (2010 CIRB 523),
dismissing the applicant’s preliminary objection that Part I of the Canada
Labour Code, R.S.C. 1985, c. L‑2 (the Code), did not apply to it
because of a right to self‑government in relation to public safety.
[2]
Prior to the application before the CIRB and the
application before this Court, the following two constitutional questions were
served on the Attorney General of Canada and the attorneys general of each
province in accordance with section 57 of the Federal Courts Act, R.S.C.
1985, c. F‑7:
[translation]
- To the extent that its purpose or effect is to govern the
essential, vital and internal government function of safety on the Pessamit
Innu reserve and, more specifically, the police force, is the [Code]
constitutionally inapplicable or of no force or effect under section 35 of
The Constitution Act, 1982?
- Does the [CIRB] have jurisdiction to hear and decide this
application for certification?
Counsel for the
applicant confirmed at the hearing that the answer to the second question is strictly
based on the answer to the first. No federal/provincial jurisdictional question
is at issue.
[3]
Only the Attorney General of Quebec (third party
before the CIRB) intervened and filed a record. At the hearing, the Court
ordered that the Attorney General of Quebec be named as intervener in the style
of cause.
[4]
The Association des policiers et policières de
Pessamit (the respondent) submitted no record, claiming a lack of resources. However,
it produced a letter stating that it maintained an interest in the case and asked
that the CIRB’s decision be upheld.
[5]
This case arose following
an application made by the respondent under section 24 of the Code to be
certified as the bargaining unit for a unit comprising public safety police
officers in Pessamit. This police force was established in 2004 in accordance
with an agreement on the provision of policing services signed by the Council
of Betsiamites, Her Majesty the Queen in Right of Canada and the Quebec
Government. The application for certification was the outcome of a tumultuous,
adversarial relationship between the members of the police force and their
employer (the applicant).
[6]
Before the CIRB, the
applicant made a preliminary objection to the admissibility of the application
for certification, alleging that it was inconsistent with its right to self‑government.
The applicant stated that this right was guaranteed by section 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (The Constitution Act, 1982), and included the right to manage its public
safety and related labour relations.
[7]
The CIRB dismissed the
applicant’s preliminary objection and granted the respondent’s application for
certification.
[8]
Following the teachings of the Supreme Court of
Canada, in particular in R. v. Van der Peet, [1996] 2 S.C.R. 507 [Van
der Peet], and R. v. Pamajewon, [1996] 2 S.C.R. 821
[Pamajewon], and also relying on Mississaugas of Scugog Island
First Nation v. National Automobile, Aerospace, Transportation and General
Workers Union of Canada (CAW-Canada), Local 444, 2007 ONCA 814, 287 D.L.R.
(4th) 452 [Scugog Island First Nation], of the Court of Appeal for
Ontario, the CIRB characterized the right claimed by the applicant as being
“the right to regulate the collective labour relations with its police
workforce in the field of public safety” (Reasons at para. 92). In doing
so, the CIRB refused to accept the applicant’s characterization of the right
claimed as being the right to ensure public safety on the reserve.
[9]
Having thus delineated the right asserted, the
CIRB found, according to the Van der Peet test, that there was no
evidence of an ancestral practice, custom or tradition relating to the
management of the police workforce labour relations (Reasons at para. 100).
[10]
Ultimately, the CIRB determined that the
applicant had failed to establish that collective labour relations with the
Pessamit police workforce were integral to the distinctive culture of the Innu Aboriginal
peoples, or that there was continuity between the harmony, mutual help and
management of the police workforce labour relations in the field of public
safety as it currently existed on the reserve (Reasons at para. 101).
PARTIES’
POSITIONS
[11]
In support of its
application for judicial review, the applicant’s main criticism is that the
CIRB adopted its own characterization of the Aboriginal right claimed and
relied on the decision of the Court of Appeal for Ontario in Scugog Island First Nation for that purpose. In
particular, the applicant noted the following passage from the reasons of the
CIRB:
91 Insofar as the employer is not questioning the application
of the Police Act, but rather the application of Part I of the Code only, the [CIRB]
is of the opinion that the [applicant] should have limited its claim to the
right to manage labour relations in the field of public safety rather than
the right related to the management of law, order and public safety on the
reserve in general (see [Scugog Island Nation]).
92 Therefore, the proper characterization of the claim is the right to
regulate the collective labour relations with its police workforce in the
field of public safety, and not the right to ensure public safety, since
public safety on the Pessamit reserve is governed by the policing agreement and
the Pessamit police force must be maintained in accordance with the Police
Act, which falls under provincial jurisdiction.
[Emphasis added by the
applicant.]
[12]
According to the
applicant, the CIRB’s approach in characterizing the claim is [translation] “much too narrow” (Applicant’s
Memorandum at para. 55) and is inconsistent with the approach established
by the case law, including in R. v. Sappier; R. v. Gray, 2006 SCC 54,
[2006] 2 S.C.R. 686 [Sappier]; Haida Nation v. British Columbia
(Minister of Forests), 2004 SCC 73 [Haida]; and Campbell v.
British Columbia (Attorney General), 2000 BCSC 1123 [Campbell].
[13]
The applicant also argued
that applying the Code to public safety labour relations, given their [translation] “adversarial”, [translation] “coercive”, [translation] “repressive” and [translation] “confrontational” nature
(Applicant’s Memorandum at para. 103), was an impairment of its self‑government
that was not justified according to the test set out in R. v. Sparrow,
[1990] 1 S.C.R. 1075.
[14]
On a completely different
note, the applicant submitted that the fact that it had been given the reasons
of the CIRB [translation] “the
day before the deadline for applying for judicial review” (Applicant’s
Memorandum at para. 110) and that the hearing had not been recorded were
prejudicial breaches of procedural fairness. The applicant also made
allegations of bias against the CIRB on the basis of the presence at the
hearing of a CIRB lawyer who had allegedly represented interests that
conflicted with those of the applicant in related proceedings.
[15]
The intervener stated
that the CIRB had not erred in adopting its own characterization of the Aboriginal
right claimed. Relying on the decision of the Court of Appeal for Ontario in Scugog
Island First Nation, the intervener suggested that, when correctly
characterized, the right claimed is to regulate the management of labour
relations in the field of public safety, including collective relations with
its police workforce, rather than the management of law, order and public
safety on the reserve (Intervener’s Memorandum at para. 20).
[16]
The intervener also
stated that the CIRB had correctly applied the tests developed by the Supreme
Court for establishing an Aboriginal right within the meaning of subsection 35(1)
of the Constitutional Act, 1982. According to the intervener, the
applicant bore the burden of demonstrating, on a balance of probabilities, the
Aboriginal right claimed (Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R.
911, at para. 12 [Mitchell]; Pamajewon at para. 24), that
is, a right to self‑government in relation to the management of labour relations
of its police workforce. In the intervener’s opinion, this evidence does not
exist.
[17]
In any event, the
intervener challenges the existence of an Aboriginal order of government that
would warrant recognizing an Aboriginal right to manage public safety. In the
intervener’s view, the agreement on the creation of the Pessamit police force,
including the application of the statutes and regulations of the province of Quebec to the
police force, precludes any suggestion that it might represent the
implementation of an inherent or pre‑existing right of the Pessamits to
self‑government in relation to public safety.
ANALYSIS
[18]
The standard of correctness applies to
constitutional questions (Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 58 and 59).
[19]
The applicant submitted that it had a right,
protected by section 35 of the Constitutional Act, 1982,
to self‑government for the maintenance of law, order and public safety on
the reserve, a right that included the management of relations with the police
workforce. It submitted that the CIRB had erred in reformulating this right too
narrowly and, more specifically, in limiting it to a labour relations issue.
[20]
Counsel for the applicant recognized at the
hearing that this was the sole issue in the first part of the application. He
conceded that the application must be dismissed if no error had been made in
characterizing the right claimed, given that no evidence was submitted showing an
Aboriginal right regarding labour relations.
[21]
To the extent that subsection 35(1) of the Constitutional Act, 1982, encompasses self‑government
claims, the Van der Peet test for determining the Aboriginal right that
is the basis of the claim applies (Pamajewon at para. 24). In Van
der Peet, the Supreme Court established the following test for identifying
Aboriginal rights (para. 46):
. . . [I]n order to be an aboriginal right an
activity must be an element of a practice, custom or tradition integral to the
distinctive culture of the aboriginal group claiming the right.
[22]
To determine whether one is dealing with such an
activity (Pamajewon at para. 25),
. . . the Court must first identify the exact
nature of the activity claimed to be a right and must then go on to
determine whether, on the evidence presented to the trial judge, and on the
facts as found by the trial judge, that activity could be said to be (Van
der Peet, at para. 59) “a defining feature of the culture in question”
prior to contact with Europeans.
[Emphasis added.]
[23]
The Supreme Court laid out three factors to
correctly characterize a claim (Van der Peet at para. 53):
. . . [A] court should consider such factors as the
nature of the action which the applicant is claiming was done pursuant to an
aboriginal right, the nature of the governmental regulation, statute or action
being impugned, and the practice, custom or tradition being relied upon to
establish the right. . . .
[Emphasis added.]
[24]
The right claimed must also provide sufficient
specificity for the Court to be able to identify “a practice that helps to
define the way of life or distinctiveness of the particular aboriginal
community” (Sappier at para. 24). In Mitchell, the Supreme
Court added that the right claimed must be neither artificially broadened nor
narrowed (at para. 15).
[25]
According to the second Van der Peet factor,
it is undisputed that the impugned statute – namely, the Code and, more
specifically, Part I of the Code – is about management of labour relations.
As for the first criterion, the nature of the action that was done (or that
will be done) pursuant to the Aboriginal right claimed is clearly the
applicant’s regulation of police workforce labour relations. The applicant
asked this Court to move away from this plainly obvious observation and
submitted instead that the nature of the action was, more generally, to ensure
public safety. The two are no doubt related, in that the applicant could, depending
on how it regulated its labour relations with its police officers, favour or
hinder the maintenance of public safety; however, this is merely incidental to
the right claimed.
[26]
While not identical, this situation resembles
the one before the Court of Appeal for Ontario in Scugog Island First Nation. In that case,
the issue was whether the Scugog Island First Nation (the First Nation) had
the right to enact its own labour relations code, the purpose of which was
primarily to govern labour relations between the 4,000 or so employees of a casino
on the reserve and their employer. The proposed regime was noteworthy in that
it banned the right to strike or lockout and imposed significant fees for
access to union remedies that are recognized and free.
[27]
The First Nation argued that implementing its
own code was part of an ancestral practice, tradition or custom to regulate
work activities and to control access to its territory. The Ontario Labour
Relations Board (the ORLB) found, first, that it was not appropriate to
characterize the claim in such general terms. In the ORLB’s opinion, the right
asserted was more specific, namely, the right to regulate labour relations on
reserve lands.
[28]
As in this case, the First Nation submitted on
appeal that the ORLB had characterized the right claimed too narrowly. Relying
on the first two Van der Peet factors, the Court of Appeal promptly
concluded that the action done (or to be done) by the First Nation was the implementation
of its own code to the exclusion of the Ontario Labour Relations Act, and
that the control of access to the territory was incidental at most (Scugog Island First Nation at paras. 26, 27 and 28).
[29]
In my opinion, the CIRB did not err in relying
on the decision of the Court of Appeal for Ontario to justify its conclusion. At the very least, that decision establishes
that the right surrounding labour relations is sufficiently well defined to be
claimed and that, whenever a claim has been delineated in a certain manner according
to the applicable factors, it should be characterized as such.
[30]
I therefore find that the CIRB correctly
characterized the right asserted by the applicant as being the right to
regulate collective labour relations with its police workforce. This is
sufficient to dispose of the first part of the application.
PROCEDURAL
FAIRNESS
[31]
The applicant alleged that the rules of
procedural fairness were breached because, first, there was no transcript or
recording of the hearing before the CIRB and, second, it received the reasons
for the decision the day before the expiration of the deadline to appeal. However,
as was noted at the hearing, the applicant did not invoke any prejudice arising
from these alleged breaches.
[32]
The applicant also complained of the presence of
a CIRB lawyer at the hearing before the CIRB. It stated that her presence at
the hearing gave rise to a reasonable apprehension of bias. In this regard,
suffice it say that the applicant failed to show that the lawyer’s presence
could give rise to such an apprehension.
[33]
I would dismiss the application for judicial
review with costs.
“Marc Noël”
“I agree.
Pierre Blais C.J.”
“I agree.
J.D. Denis Pelletier J.A.”
Certified true translation
Tu-Quynh Trinh
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