Late last week, the Supreme Court of Canada released its decision concerning the intersection of Indian child welfare and labor law. Here’s the decision. NIL TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] S.C.J. No. 45.
The NIL/TU,O is a child and welfare family service agency working on Vancouver Island and created with the intent to maintain “the culture, traditions and teachings of the Collective Tribes.” It operates under delegated provincial authority via the Child, Family and Community Service Act, itself, pursuant to a Delegation Confirmation Agreement with the federal and B.C. governments. The agency’s services are provided solely to children who are registered Indians, the vast majority of which are provided on reserve lands. An appendix to the Delegation Confirmation Agreement, specifically recognizes the unique circumstances of aboriginal children, in such matters as preserving their identity and providing culturally appropriate services.
When the B.C. Government and Service Employees’ Union (BCGEU) applied to the provincial Labour Relations Board for certification to represent the agency’s employees, the NIL/TU,O objected, arguing that its functions fall within federal jurisdiction in regard to “Indians” pursuant to s.91(24) of the Constitution Act, 1867. Conversely, the union claimed that the issue was a matter of labor relations, thereforefalling squarely within “Civil Rights in the Province” by way of s.92(13).
In March 2006, the B.C. Labour Relations Board held that it had jurisdiction, concluding that “the [Labour Relations] Code touches the First Nations persons involved with the Society as ordinary employees and employers in a way that does not intrude on their First Nations’ character, identity or relationships. When provincial legislation only affects Indian organizations and the Indian persons associated with the organization in this way, the labour relations of the organization remains within provincial jurisdiction.” It certified the union.
In 2007, the British Columbia Supreme Court granted the Society’s application for judicial review and held that “the whole purpose of NIL/TU,O is to mould child welfare services delegated by the province into a shape which serve[s] Indians qua Indians rather than to maintain it as part of a homogeneous service applicable to Indian and non-Indian alike… Where …, as in the present case, the operations and normal activities of an undertaking mirror matters such as medical and health services and education which fall within s.91(24), … and are shaped to deal with issues arising out of the discrete First Nations experience, it follows, under the functional test, that the service assumes a federal dimension despite its genesis in provincial jurisdiction and legislation.” Here’s that decision. NIL/TU,O 2007
In an August, 2008 decision, NIL/TU,O 2008, the B.C. Court of Appeal quashed the lower court judge’s ruling, and reinstated the Board’s determination that it had jurisdiction. In a unanimous (3 member panel) decision, Justice Groberman held that “[t]he courts have often described this primary federal competence [under s.91(24)] as consisting of matters going to ‘Indianness’… While that expression seems a bit awkward today, it has some legal pedigree. There has been considerable judicial discussion of the scope of federal jurisdiction over First Nations in recent years, and the phrase ‘the core of Indianness’ has come to have a fairly well-defined meaning. . . . [t]he Constitution of Canada should be interpreted as encouraging, not prohibiting, cultural sensitivity in the administration of provincial statutes, including cultural sensitivity to First Nations… Provincial jurisdiction over a matter is not lost whenever a province attempts to enact or apply its laws in a manner sensitive to the interests of First Nations. Nothing in the Child, Family and Community Service Act, the Delegation Confirmation Agreement, or in the manner in which delegated services are provided by the Society takes those services outside of provincial jurisdiction.”
The Society applied for leave to appeal to the Supreme Court of Canada. The judgment was released on November 4th.
The sole issue on the appeal was whether the labor relations of the Society and its employees were governed by provincial or by federal labor legislation. If the Labour Relations Code applied to the parties, then the B.C. Labour Relations Board had jurisdiction to grant the certification and its decision should be reinstated. If not, then exclusive jurisdiction lay with the Canada Industrial Relations Board under the Canada Labour Code. The Society argued that its operations were so integrally connected to the culture and special needs of its First Nations members as to place its labor relations under section 91(24) of the Constitution Act, 1867, as matters in relation to Indians. The Union argued that the labor relations fell within section 92(13) of the Constitution Act, 1867, as matters in relation to civil rights in the province. All of the Society’s services were provided to children who were registered Indians, and the vast majority of its services were provided on reserve lands.
It was held that provincial jurisdiction over a matter was not lost whenever a province attempted to enact or apply its laws in a manner sensitive to the interests of First Nations. Nothing in the Child, Family and Community Service Act or in the manner in which delegated services were provided by the Society took those services outside of provincial jurisdiction. Accordingly, the Labour Relations Board had jurisdiction to certify the Union as bargaining agent for the employees of the Society.
Turtle Talk 