In U.N.A. v. Aakon-Kiyii (Peigan/Piikani) Health Services, the Alberta Labour Relations Board (ALRB) asked, “[P]ut simply for this decision — does jurisdiction over labour relations in health services on Reserve rest with the Province of Alberta or Canada?” Great, succinct issue, but what about the First Nations themselves?
Ultimately, the ALRB determined that the province, not the federal government (or the First Nation for that matter, but then again, that was never the issue…) has jurisdiction over labour relations in health services, even when those services are provided “exclusively on Reserve and almost solely for their respective band members . . . .”
Both aboriginal respondents argued that the ALRB has no jurisdiction over employee/employer relations between a sovereign Indian band or entities under its control when the relationship is conducted on the reserve.
This decision follows closely on the Supreme Court’s heels of NIL/TU, O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] S.C.J. No. 45 and CEP v. Native Child and Family Services of Toronto, [2010] S.C.J. No. 46.
With health not assigned exclusively to one level of government, we must examine closely the nature, operations and habitual activities of the entity. The Respondents both provide health care delivery through the professional services of accredited nurses. As provided by section 92(13) of the Constitution Act, 1867 the province is empowered to regulate the health care profession and, indeed, the accreditation, licensing and regulation of registered nurses employed throughout Alberta are all provincial in scope. This does not change depending on location whether Fort McKay in the north or Fort Macleod in the south; whether urban or rural; whether on or off an Indian Reservation. As confirmed by the evidence we heard, the nurses for both organizations must deliver care in accordance with provincial standards. The nurses seeking certification are required to be licensed by the provincial College and Association of Registered Nurses of Alberta and follow the regulatory requirements governing the practice of nurses within the province. They must follow the codes of practice established by the provincial College.
43 Although federally registered corporations, the two organizations are not federal works or undertakings nor are the nurses federal public servants. The nurses are not employees of Health Canada nor are they employed by the federal government.
44 The Respondents contend the Indian Act empowers the federal government and Indian band councils to address certain health issues of Indians and Reserves including: authorizing the use of Reserves for Indian health projects under section 18(2); allowing the Governor in Council to make regulations to prevent the spread of diseases on Reserves, provide medical treatment and health services for Indians (section 73(1)), and; permitting Indian Bands to make by-laws to provide for the health of residents on Reserves and to prevent the spreading of contagious and infectious diseases (section 81(1)(a)). While section 81 grants authority to band councils to make by-laws to provide for the health of residents on Reserve, the section and legislation does not empower band councils to set out a detailed framework for the delivery of health care services, the qualifications of the health care professionals required, or any of the health care regulatory delivery mechanisms and regime. Nor are there other federal statutes or regulations setting out these regimes. The Governor-in-Council can make regulations regarding the provision of health services on Indian Reserves pursuant to section 73 but has chosen not to do so. Absent a regulatory regime governing the provision of health delivery in any of these sections or other federal legislation, the provision of health delivery must, therefore, be governed by provincial statutes as labour relations is presumptively provincial jurisdiction.
45 In summary, we are satisfied when we look at the day-to-day operations of both entities as going concerns, both BTDH and AAKOM-KIYII Health Services are provincial undertakings. Specifically we find:
• The operations entail the provision of nursing services, which is a provincial matter;
• The accreditation, licensing and regulation of the nurses is provincial;
• The nurses must perform their duties in a manner that complies with provincial nursing standards or risk discipline by a provincial regulatory body;
• Discipline by their provincial regulatory body could lead to the inability to be employed as a nurse anywhere in the province, including on the Reserve;
• The nurses are not in the employ of Health Canada nor are they members of the Public Service of Canada;
• The nurses are not employed pursuant to delegated authority under a federal statute or regulations;
• The fact many of the nurses are aboriginal persons is not relevant for our consideration;
• The reality of the service being delivered on Reserve in a culturally sensitive manner to mainly aboriginal clientele is again not relevant to our determination although it is clearly a desirable component for effectively delivering the service;
• Similarly, the source of the funding for the majority of the health services is not determinative.
46 The application of our findings to the functional test conclusively satisfies us the nature of both operations is provincial. As we are conclusively satisfied the operations of both the BTDH and AAKOM-KIYII Health Services are provincial undertakings, we need go no further as we are satisfied the Board has jurisdiction over UNA’s certification application.
47 However, as we are the adjudicative body of first instance, we believe notwithstanding our determination that the labour relations of the entities are provincial in scope based on the application of the functional test, we should continue our analysis into the second question set out by the SCC.
48 In the event we are wrong and the first test is inconclusive about the functionality of the service provided by the Respondent, would provincial jurisdiction over the labour relations of the bargaining units somehow impair the federal head of power?
VII. Impairment of a Federal Head of Power?
49 According to the second test, in order to oust the presumption of provincial jurisdiction over labour relations, the Board must decide that provincial regulation of the nurses’ labour relations impairs the core of federal jurisdiction — that is, the federal government’s ability to legislate or regulate over Indians and their lands as outlined in section 91(24) of the Constitution Act, 1867.
50 While the majority decision in NIL/TU,O, does not address this argument, the minority decision does and finds “the core, or ‘basic, minimum and unassailable content’ of the federal power over ‘Indians’ in s. 91(24) is defined as matters that go to the status and rights of Indians.” (See: NIL/TU,O, paragraph 70). The Court examines a number of cases and continues at paragraph 71, citing matters that may go to the status and rights of Indians. These include (leaving out the case citations):
• Indian status;
• The “relationships within Indian families and reserve communities”;
• “[R]ights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges, etc”;
• The disposition of the matrimonial home on a Reserve;
• The right to possession of lands on a Reserve and, therefore, the division of family property on Reserve lands;
• Sustenance hunting pursuant to Aboriginal and treaty rights, such as the killing of deer for food;
• The right to advance a claim for the existence or extent of Aboriginal right or title in respect of a contested resource or lands;
• The operation of constitutional and federal rules respecting Aboriginal rights. (Paragraph 71)
51 The Court makes it clear the scope of section 91(24) is narrow. At paragraphs 72 and 73 the Court states:
[72] These examples make it clear that the focus of the analysis rests squarely on whether the nature of the operation and its normal activities, as distinguished from the people who are involved in running it or the cultural identity of those who may be affected by it, relate to what makes Indians federal persons as defined by what they do and what they are: Dick; Delgamuukw.
[73] The scope of the core of s. 91(24) is admittedly narrow. That, however, is as it should be. A narrow test for when activities fall within the core of Indianness reserved to the federal government is consistent with the dominant tenor of jurisprudence since Four B, as well as the restrained approach to interjurisdictional immunity adopted by this Court in recent cases. It recognizes that Indians are members of the broader population and, therefore, in their day-to-day activities, they are subject to provincial laws of general application: Canadian Western Bank, at para. 61. Only where the activity is so integrally related to what makes Indians and lands reserved for Indians a fundamental federal responsibility does it become an intrinsic part of the exclusive federal jurisdiction, such that provincial legislative power is excluded.
52 Labour relations are not addressed in this list and we have no evidence before us about how provincial labour legislations would or possibly could impair the core of federal power over Indians and their lands. Regulating the labour relations of nurses on Reserves would not affect, let alone impair, anything regarding Indian status, Indian rights, or the relationship within Indian families and Reserve communities.
53 We are satisfied that provincial regulation over the BTDH’s and AAKOM-KIYII Health Services’ labour relations in no way impairs the federal head of power or Parliament’s ability to legislate or regulate in relation to aboriginals. We are satisfied the facts do not support a finding that provincial regulation over the nurses’ labour relations would strike at the “core” of Indianness so as to impair the federal head of power.
VIII. Conclusion
54 On the application of the functional test and examining the BTDH and AAKOM-KIYII Health Services nature, operations and habitual activities, we are satisfied both entities are governed by provincial legislation in relation to the nurses’ labour relations.
55 Even if the functional test is inconclusive, we nonetheless find nothing regarding the provincial regulation of the nurses’ labour relations that impairs the “core” of Indianness or the federal government’s ability to legislate or regulate Indians.
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