A recent decision of the BC Court of Appeal clarifies the considerations for determining whether a First Nations employer falls under provincial or federal regulation.
In 2006, the BC Government Employees Union applied under the BC Labour Relations Code for certification to represent employees of the NIL/TU, O Child and Family Services Society. The Society opposed the application on the basis that it did not fall within provincial jurisdiction, and therefore, was not governed by the Code. The Labour Relations Board dismissed the Society’s objection and certification was granted. The Society sought judicial review of the Board’s decision.
The BC Supreme Court quashed the Board’s decision. The Court found that the Society’s operations fell within the federal government’s jurisdiction over “Indians and lands reserved for Indians” because its services and programs were delivered in a culturally sensitive manner and were designed to address certain issues specific to its First Nation members.
The lower Court decision was overturned by the BC Court of Appeal. It held that the services provided by the Society did not fall within federal jurisdiction over First Nations matters simply because they were provided in a culturally specific manner. Rather, the Court confirmed that employers will only fall under federal jurisdiction if their operations affect the “core of Indianness”, such as matters relating to aboriginal or treaty rights, aboriginal culture or Indian status. The Society’s activities providing child and family welfare services did not impact upon core matters relating to “Indianness”.