Jurisdiction over employment in First Nations and aboriginal employers can be a complicated issue. Until recently, different courts seemed to take different approaches. If a federal court was deciding the issue, a broad approach was typically taken. That is, a federal court would typically find that federal employment laws applied if an enterprise was important to a First Nation or its members, or its operations were influenced by First Nations culture.
In contrast, if a provincial superior court was deciding the issue, they tended to take a more restrictive approach. That is, limiting federal jurisdiction to cases where the ordinary and habitual activities of the operation affected core aspects of “Indian status”, or if the activities were conducted pursuant to federally delegated authority.
These contrasting approaches appeared to have been resolved with the Supreme Court of Canada’s decision in NIL/TU,O Child and Family Services Society and the B.C. Government and Service Employees’ Union, et al. In this case, the employer was a child welfare organization that was established and administered by a collective of First Nations. It’s authority over child welfare, which is constitutionally within provincial jurisdiction, was delegated to the First Nations’ collective by the provincial government. However, the organization was funded by the federal government and it primarily employed First Nations people in providing services in a culturally sensitive way.
The Court found that provincial employment laws applied. It founded its decision on what the organization actually did – which was to provide child welfare services -as opposed to how it provided the services or for whom.
In reaching its decision, the Court also clarified the approach to be taken in determining this issue on a case by case basis. That is, to first look at what the organization is actually doing and whether or not it is something that falls within a federal undertaking. If it is clear from this first step that it falls within a federal undertaking, then federal employment law will apply. But if it is not clear, then a second step in the inquiry should be undertaken. That is, a determination of whether in applying provincial employment law, it would impair a core of the federal power. If it does not impair a core of the federal power, provincial employment law should still apply.
In the recent case of Nelson v. Lower Stl/Atl’mxTribal Council, an adjudicator appointed pursuant to the Canada Labour Code, applied the SCC’s approach in the context of an unjust dismissal case involving a tribal council employee. He found that the operations of a tribal council were clearly within federal constitutional jurisdiction, and held that federal employment law applied. However, the adjudicator went further. He held that even if the operations of the tribal council were not a federal undertaking, the federal employment laws should still apply for a different reason. He held that the core “Indianness” as set out in section 91(24) of the constitution involves fiduciary duties to give First Nations’ peoples the rights pursuant to the laws of Canada. And the right to reinstatement following an unjust dismissal in only provided pursuant to the federal employment laws – the Canada Labour Code – not the British Columbia (or other provincial) employment laws.
This finding may have broad application to any First Nations employee where it is not clear whether the activity in question falls within a federal undertaking. It remains to be seen whether it will be followed, and if so, to what extent.