B.C. board rules labour laws apply on aboriginal reservations

Decision finds that rights and treaties are not infringed

Victoria (19 May 2006) - Regulating labour relations between First Nations employers and employees on reservations does not infringe on the rights and treaties of the aboriginal peoples of Canada, the British Columbia Labour Relations Board has ruled.

When the British Columbia Service and Employees' Union (BCGEU/NUPGE) applied to the board for certification as the bargaining agent for employees of the NIL/TU,O (pronounced nee twa) Child and Family Services Society, an aboriginally-focused agency servicing the youth of eight Vancouver Island First Nations, the society objected.

The group cited section 91 (24) of the Constitution Act of 1867, giving the federal government exclusive legislative jurisdiction over "Indians, and Lands reserved for the Indians." It also argued that certification would interfere with the First Nations' right to self-government under section 35 (1) of the Constitution Act of 1982, which affirms the "aboriginal and treaty rights of the aboriginal peoples of Canada."

The board disagreed. In a March 23 decision, vice-chair Jan O'Brien applied a general rule established in a previous decision known as Four B Manufacturing Ltd. v. United Garment Workers of America (1980). "With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception," the ruling stipulates.

Rejecting the Society's "division of powers" argument, O'Brien wrote:

"In my view, the [B.C. 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."

In the board's view, the First Nations did not have an aboriginal right to self-government in labour relations in the absence of evidence demonstrating "an ancestral practice, custom or tradition which could support the claimed right to the regulation of labour relations on the territory of the First Nation."

In addition, although the Board recognized the First Nations' "aboriginal self-government right to care for and protect their children on reserve in accordance with their culture and traditions," it saw "no evidence ... that allowing the employees of the society access to the right to join the union under the [B.C. Labour Relations] Code would infringe or interfere with the Society's ability to care for and protect First Nations children in accordance with their culture and traditions."

Lastly, rejecting the Society's objection that the Code's adversarial approach to labour relations was "alien" to the First Nations' consensus-based method of dispute resolution, O'Brien wrote:

"Even if I accept, for purposes of this decision, that developing consensus is a traditional culture and practice of the Collective First Nations, that practice on its own does not establish that the management and regulation of labour relations is a part of the traditional culture of the Collective First Nations." NUPGE