Labour Relations and the Division of Powers: An Opportunity to Revisit s. 91(24)

An application for leave to appeal has been submitted to the Supreme Court of Canada (“SCC”) in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2008 BCCA 333. Though this case is a mouthful, it contemplates a relatively straightforward matter: whether the labour relations of the appellant Society are a matter of provincial or federal regulation. If the SCC grants leave to appeal in the matter, it will mark the first time in nearly thirty years that the high court will consider labour relations in the context of s. 91(24) of the Constitution Act, 1867, which bestows federal jurisdiction over “Indians,” (the term still frequently, and, somewhat appallingly, used in Canadian legislation to denote aboriginal or First Nations peoples) as well as “Lands reserved for the Indians.”


The Society consists of seven First Nations on Southern Vancouver Island. It aims to ensure the safety, protection and well-being of the children of its First Nation members by maintaining a culturally-specific child welfare and family service agency. The Society was able to provide these services as a result of delegated authority. Under the Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA], which governs child welfare and protection in B.C., the director has the authority to delegate the Act’s related powers and responsibilities. In a 2004 agreement, the Society received the delegated authority and responsibility to provide certain services to children who were registered as ‘Indians’ under the Indian Act, and to children who had one parent residing on the reserve lands of one of the member First Nations.

In its arguments at the Court of Appeal, the Society emphasized the uniquely aboriginal nature of its services, including after school programs aimed at increasing children’s appreciation of First Nations culture, a special residential camp designed to encourage the practice of such culture, and a youth justice initiative that aimed to repair troubled youth with mentors and elders. Yet at the Labour Relations Board and the lower court level, no specific findings of fact were made regarding the degree to which these specialized programs represented the core functions of the Society. The appellate court noted that the “bulk of the Society’s work [was] concerned with statutory duties and powers under the Child, Family and Community Service Act, [so] these specific aboriginal programs would not appear to be the main undertakings of the Society.

Early Judicial History

The dispute arose when the respondent union applied to the B.C. Labour Relations Board to be certified as the bargaining agent for the Society’s employees. The Society objected on the ground that its labour relations were a matter for federal regulation, since its activities fell under s. 91(24) matters in relation to “Indians, and Lands Reserved for the Indians.” The union, on the other hand, contended that the labour relations in question were more akin to provincial matters under s. 92(13), relating to “Civil Rights in the Province.” The Board agreed with the union’s position, and certified the union as the Society’s bargaining agent. The Society applied to the Board for reconsideration, but a differently-constituted Board denied leave on the grounds that something more than a finding of “Indianness” was required to determine that the labour relations of an organization fell within federal jurisdiction.

However, on judicial review of the Board’s decision, the B.C. Supreme Court quashed the order. The chambers judge reassessed the reasoning of the Labour Relations Board with regard to its interpretation of the leading case Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 SCR 1031 [Four B]. This case set out a test for jurisdiction upon which the Board heavily relied, but the chambers judge pointed out that this test had been subsequently modified. In Four B, the court confined its consideration of “Indianness” to circumstances where First Nation status, or rights closely connected to this status, was at stake; but in cases following Four B, a broader reading of “Indianness” took shape, which cosidered questions such as whether an operation at issue has “inherent Indianness,” whether it “promote[s] Indianness,” or whether it enhances the status of Indian people and their families.

As such, the court broadly inquired whether “the operations and normal activities of NIL/TU,O which affect only Indians and are designed to assist First Nations in addressing unique systemic problems and maintaining their culture, assumes a federal dimension.” The lower court found that the purpose of the NIL/TU,O was to tailor child welfare services to serve First Nations people, as well as to conduct its operations and normal activities under the CFCSA by addressing the unique concerns and issues of its targeted communities. This characterization placed the Society’s operations within the parameters of s. 91(24) and as such, its labour relations were held to be federal. The decision of the Labour Relations Board was therefore quashed.

The BCCA Decision

The union appealed this decision to the BC Court of Appeal (“BCCA”), where the issue remained the same, deceptively simple jurisdictional inquiry: were the Society’s labour relations governed by provincial or federal legislation? If the BC Labour Relations Code, RSBC 1996, c 244, applied, then the BC Labour Relations Board would have the jurisdiction to grant the certification, and its decision would be reinstated. If the Canada Labour Code, RSC 1985, c L-2, applied, then exclusive jurisdiction would have been held by the Canada Industrial Relations Board, and the judgment of the lower court would have been affirmed.

The appellate court commenced its analysis by surveying the law concerning the divided federal and provincial legislated authority over labour relations. Labour relations are prima facie within provincial jurisdiction, as they deal with civil rights in the province, but there are circumstances where they may fall under a federal umbrella. If the nature of the operation (determined by looking at the normal and habitual activities of an organization) is one that falls within a matter of federal competence, then the federal government would have jurisdiction.

But determining when labour relations are integral to federal competence over “Indians and Lands Reserved for the Indians” is not an easy task. As such, the court went on to further scrutinize the aforementioned Four B, a case that marks the only time that the SCC has dealt with the issue of labour relations and s. 91(24) of the Constitution Act, 1867. In this case, involving a company that manufactured leather shoe uppers, the majority of the court held that there was nothing about the business or operation at issue that would render it federal, as it was an ordinary industrial activity.

The SCC Decision

The SCC stated that “exclusive federal jurisdiction over labour relations [in the context of s. 91(24)] arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object.” Recognizing that what constituted an “integral part” of this s. 91(24) jurisdiction remained opaque, the SCC clarified it as something that has “Indianness,” things that are “inherently Indian,” and activities that regulate Indians “qua Indians.” The majority in Four B said that as long as activities went to this “core of federal competence over Indians,” federal jurisdiction over labour relations would arise.

Yet two complications arose after Four B. Firstly, two separate lines of authority emerged from the judgment regarding the interpretation of federal competence in a First Nations context. The BCCA recognized that one line developed from Federal Court and Federal Court of Appeal cases. These cases have held that where an enterprise is important to a First Nation’s members, or operates in a manner influenced by First Nations culture, labour relations will be federally regulated. This is a broader interpretation than the second perspective, which has been touted by the provincial superior courts. These cases view the s. 91(24) federal jurisdiction in a more restrictive fashion.

Not only has an “integral part of primary federal jurisdiction” resulted in diverging applications, the Court of Appeal has also had to grapple with an appropriate interpretation of what constitutes “Indianness.” Though this phrase was meant to clarify what federal matters would be considered integral under s. 91(24), it has appeared to confuse matters further. The concept of “Indianness” was elaborated upon by Lamer C.J. in Delgamuukw v British Columbia, [1997] 3 SCR 1010. He said that the “core of Indianness” encompasses aboriginal rights, and accordingly:

[l]aws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)’s reference to ‘Lands reserved for the Indians.’ But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over ‘Indians.’ Provincial governments are prevented from legislating in relation to both types of aboriginal rights.

After espousing Lamer C.J.’s thorough interpretation of both elements of s. 91(24), the court derived its own definition of the “core of Indianness” as “matters integral to aboriginal or treaty rights, aboriginal culture, or Indian status.” The appellate court then applied this modified definition to the issue of whether the operations of the Society touched upon the “core of Indianness” that would render its activities federal.

The court first addressed what does not go to the “core of Indianness;” it listed the importance of a service to an individual, the fact that a First Nation derives a benefit from a service, and the fact that the service is provided in a manner conforming to cultural norms as matters unrelated to this core. Similarly, case law has held that provincial jurisdiction over labour relations endures even if an organization engages the interest of aboriginal groups or provides culturally-sensitive services.

Investigating whether the Society’s operations fit within these exceptions, the court noted that provisions in the Society’s agreement were specifically geared towards the appropriate application of the CFCSA within First Nations communities. As well, the court found that several sections of the CFCSA give special consideration to aboriginal children; for example, s. 2(f) specifies that the cultural identity of aboriginal children should be preserved. The sections addressing the needs of aboriginal children were not found to render the CFCSA in respect of aboriginal peoples, nor did they bring the activities of the Society within the scope of s. 91(24).

In addition to its characterization of the Act and the Society’s operation, the court forwarded the policy argument that the constitution should be interpreted as encouraging, not prohibiting, cultural sensitivity in the administration of provincial statutes. The Charter specifically acknowledges the multicultural nature of Canada in s. 27, which states that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Accordingly, the court found that provincial attempts to enact or apply such culturally-sensitive laws did not escape provincial jurisdiction.

Ultimately, the CFCSA, the Society’s agreement, and the manner in which delegated services were provided by the Society were all held to reside within this provincial jurisdiction. As such, the decision of the B.C. Labour Relations Board to certify the union as a bargaining agent for the employees of the Society was correct. The appeal was allowed, and the certification order was reinstated.

If the SCC grants the Society leave to appeal this decision, the task may fall to the court to clarify, or even reconsider, its holding in Four B. It is clear from the above analysis that the Four B test has been pulled nearly beyond recognition, yet troublingly, it remains the only Supreme Court authority on labour relations in the context of s. 91(24). NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union provides the SCC with a prime opportunity to deliver a definitive holding on this issue.

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