First Nations Operated Society Within Provincial Jurisdiction

IN THE MATTER OF AN UNJUST DISMISSAL COMPLAINT

UNDER PART III OF THE CANADA LABOUR CODE

BETWEEN

 

ANITA X

COMPLAINANT

AND

Y SOCIETY

 

RESPONDENT

 

ADJUDICATOR:      Ib S. Petersen

FILE NO.:                  YM2707-11653

HEARING DATE:     November 3 and 4, 2020, written submissions December 4, 2020,                                       January 14, 2021, February 5, 2021

DECISION DATE:    September 1, 2021

APPEARANCES:     Ms. Anita X, on her own behalf

Mr. Myron Barr, counsel for Y Society

 

DECISION

Introduction

 

  1. This is an unjust dismissal complaint under the Canada Labour Code, RSC 1985, c. l-2 (the “Code”), brought by Anita X against the Y Society (the “Society” or “SGS”) with respect to her dismissal on October 25, 2018. I was appointed to hear this complaint following the resignation of the previous Adjudicator.  SGS objects to my jurisdiction to entertain Ms. X’ complaint because SGS falls within Provincial jurisdiction.   X says that SGS is within Federal jurisdiction.

 

  1. I only intend to address those factual issues and submissions relevant to my determination, i.e., jurisdiction, and not the merits of Ms. X’ complaint.

 

  1. X submits that the proper approach to determine jurisdiction is that the parties must file an agreed statement of constitutional facts, followed by written submissions, as discussed with the previous Adjudicator appointed to decide the complaint (see for example, Maiangowi v. Assembly of First Nations, 2019 CanLii 82719). She submits that it would be improper for me determine the constitutional facts and subsequently decide the merits of her complaint.  I do not agree.  The parties were unable to agree to a statement of constitutional facts, which necessitated a hearing to determine the constitutional facts based on the evidence and written submissions.  In fact, the parties agreed to that in a pre-hearing telephone conference.  I was appointed by the Minister of Labour to hear and determine the complaint, including any preliminary matters such as jurisdiction.  Accordingly, I can hear the jurisdictional challenge and, if I agree to take jurisdiction, I can address the merits of Ms. X’ complaint.

 

  1. As noted by SGS, Ms. X’ written submissions contained numerous statements, too numerous to mention, which lacked evidentiary foundation, i.e., is not based on testimony at the hearing. I agree. However, with a few exceptions, I do not intend to go into the discrepancies between Ms. X’ testimony and her written submissions in any detail.  On instance is in her written submission, where Ms. X alleges that there was criminal misconduct, including a potential RCMP investigation, with respect to a payment of $150,000.00 to SGS under a May 1, 2019 agreement between SGS and the Ministry of Energy, Mines and Petroleum Resources.   David did not testify to these serious allegations at the hearing.  She did not cross examine Mr. Williams on the allegations.  He did not have an opportunity to respond to the allegations.  I agree with SGS that it is highly inappropriate for Ms. X to make these allegations in her submissions.   However, I am unable to agree with SGS’ request an order for costs (The Owners Strata Plan LMS 3259 v. Szehang Holding Inc., 2015 BCCA 244).  I have serious doubts about my jurisdiction to award costs in these circumstances.  My jurisdiction is limited to the four corners of the statute.  I note that at least one Adjudicator has found that costs may be awarded against employees in extraordinary circumstances (Lines v. Shaw Cablesystems G.P., [2012] C.L.A.D. No. 52).   In my view this is not one of those rare circumstances.  In any event, on the assumption that I have jurisdiction, while Ms. X’ conduct is serious and highly improper, in my view it was much less egregious than the conduct of the party in Szehang Holding.

 

  1. This decision is based on the evidence provided under oath or affirmation at the hearing.

 

Facts

 

  1. The parties take issue with the credibility of the main witnesses for the other party, Ms. X, whose Gitxan name is Ska’yan, and Mr. Lance Williams, the Executive Director of SGS, whose Gitxan name is Hlengwax. The parties are at odds with respect to material facts.  Fortunately, there is numerous documents to assist me.  Insofar as credibility is relevant to my determination, I take guidance from the principles set out in one of the leading cases with respect to credibility, Faryna v. Chorny, [1951] B.C.J. No. 152, and Madam Justice Dillon’s helpful comments in Bradshaw v. Stenner, 2010 BCSC 1398.

 

  1. In Faryna, O’Halloran, J.A stated:

 

10  The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

 

  1. In Bradshaw, Madam Justice Dhillon noted with respect to credibility:

 

187      It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version of events is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Overseas Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 (Alta. Q.B.) at para. 13). I have found this approach useful.

 

  1. Williams testified that he has been the Executive Director of the Society since its incorporation in 2016. Mr. Williams is also a member and a director of the Society.   Ms. X is a member and, after May 15, 2018, also a director.   Ms. X was born into the Lax Skiik (Eagles Clan) and Wilps Sakzun Higookxw (House).  After the passing of her mother in 2007, she inherited the name Ska’yan.

 

  1. SGS was incorporated on July 6, 2016, pursuant to Provincial legislation, the Society Act, SBC 2015, c. 18. There are 24 members of the Society, 8 from each of the 3 clans, Eagles, Wolves and Frogs (one clan, Fireweed, is not participating).  The Society was established by a number of Gitxan Hereditary Chiefs from the 3 clans (the Hereditary Chiefs”).  Each House claims a traditional territory.  Ms. X testified that the Hereditary Chiefs would never transfer their inherent rights or title to their traditional territories to any third party, including Indian Act Band councils or a society under the BC Society Act.  The purposes of the Society are set out in its constitution and includes protecting and preserving Gitxsan traditional territory by implementing the Gitwangak Land Use Plan (“GLUP” or the “Plan”) and assisting the Hereditary Chiefs in developing relationships with government and private companies wishing to do business in the territory.  SGS was given the responsibility to administer, implement and monitor the implementation of the GLUP to develop and maintain long-term sustainable management of land, air and water resources of the traditional territories.   An Addendum to the GLUP, dated November 10, 2016, confirmed SGS’ role in administering, implementing and monitoring the implementation of the Plan and to develop and maintain long-term sustainable management of land, air and water resources of the traditional territory.  The Addendum noted:  “All consultations and negotiations with government, industry, and other parties regarding the Land Use Plan are the responsibility of, must be conducted by the Society.”  SGS was also given a role in future additions and amendments to the GLUP.  There was no evidence that the Society asserted any jurisdiction with respect to Gitxan inherent rights.  There was no evidence that SGS held or asserted any rights or title.  In fact, the agreements entered into by SGS included “non-derogation” clauses, stating that the agreements do not diminish, amend, limit, abrogate or derogate from any right or title claimed by the Hereditary Chiefs.

 

  1. It is common ground between the parties that there is a distinction between the Gitwangak Indian Band, SGS, the Hereditary Chiefs of the Houses. The Gitwangak Band is a separate legal entity, established under Federal law, the Indian Act, S.C. 1985, c. I-5, and has no authority over SGS or the Hereditary Chiefs.  The Hereditary Chiefs claim jurisdiction over Gitxan traditional territories, resources and boundaries.  SGS is not part of Band government. There is also no evidence that is was part of any form of government of the Hereditary Chiefs or their Houses.

 

  1. While the purposes of the Society are set out in the constitution and bylaws, Ms. X testified that SGS, in her view, was incorporated by the Hereditary Chiefs as a “financial flow-through” entity, which holds a bank account, allowing funds from government and businesses to flow through to the Hereditary Chiefs for participating in business arrangements and as compensation for any impact on their traditional territories. In her view the Hereditary Chiefs incorporated the Society simply to have a bank account.   Funds would flow through to the Hereditary Chiefs, not the Houses.  X testified that to uphold a name, such as her own, Ska’yan, Hereditary Chiefs are obligated to contribute to feasts and funerals and pay certain expenses for members of their Houses.  Mr. Mathews testified that he was the president of the SGS.  He was one of the founding members of the society, as was Mr. Vernon Smith.  Both were called to testify on behalf of Ms. X.  In my view, their testimony did not support the notion that SGS was simply a “financial flow-through” entity.

 

  1. The GLUP was presented to the Minister of Forest, Lands, Natural Resource Operations, and Rural Development formally in April 2019, but has yet to be implemented.

 

  1. In 2016, the Society was party, along with named certain Hereditary Chiefs (on behalf of themselves and their respective Whilps (“Houses”), (collectively the “Gitwangak”), and the Gitxan Treaty Society, to the Gitwangak Laxyip Engagement Pilot Agreement with the Province of BC, represented by the Ministry of Aboriginal Relations and Reconciliation. The Gitwangak, e. both the named Hereditary Chiefs and the Society, were responsible for the hiring of a Facilitator.  Through the agreement, the Society received $50,000 in funding for a Facilitator.

 

  1. X was appointed as the Facilitator on November 17, 2016, initially on a volunteer basis.  An SGS document dated November 17, 2016 stated that the Hereditary Chief met at SGS’s office, discussed the matter and appointed Ms. X as the SGS’s “Laxyip Coordinator,”[1] initially as a volunteer. On March 7, 2017, the Society hired Ms. X the position at an annual salary of 35,000.00 per year, and a proposed end date of February 23, 2018 (subject to further funding).  Ms. X testified that additional funding was provided to allow continuation of her employment until September 13, 2018.  Ms. X claim that she was hired by the Hereditary Chiefs and that she was an employee of the Hereditary Chiefs, not SGS.[2]   However, when, during her employment, Ms. X had issues with her terms and condition of employment, she wrote to Mr. Williams and SGS, not Hereditary Chiefs.  In Ms. X’ Facilitator Report dated December 7, 2017, she stated that the SGS “directed me, as facilitator to hold firm with their process.” In her Report for January 18, 2018, she stated among other: “I was hired on as Laxyip Facilitator by Y Society (SGS) February 27, 2017.”  At that time she did not appear to have an issue with the identity of her employer.  Ms. X also testified that being a Facilitator was a full-time job.  Her October 5, 2018 termination letter was from SGS and signed by Mr. Mathews as President.  Her testimony is not consistent with her own contemporaneous written statements.  On the evidence, her claim that she was employed by the Hereditary Chiefs, and not the Society, is not credible.  In my view, she was employed by the Society.

 

  1. The Gitwangak Laxyip Strategic Engagement Agreement, dated June 9, 2018, was an agreement between the Province of BC, the Hereditary Chiefs and the SGS (collectively the “Gitwangak”). The Province was again represented by the Ministry of Aboriginal Relations and Reconciliation.  The agreement established a process by which the Province would consult with the Hereditary Chiefs on land and resource decisions within the their traditional territories.  The Society engaged with the Province of British Columbia on land and resource matters because most Crown land is under Provincial jurisdiction.  Under the agreement, the SGS and the Hereditary Chiefs were responsible for the hiring of a Facilitator.  The funding of $225,000 was paid to the SGS on behalf of the Hereditary Chief.  According to the testimony of both Ms. X and Mr. Williams, they were kept busy with numerous tasks, including meeting with the Hereditary Chiefs to review referrals and provide responses to those referrals.  Both testified that they would also meet regularly with various companies interested in doing business within the traditional territories.   Williams testified that there were between 20 and 30 referrals each month approximately, and that SGS had meetings with the Hereditary Chiefs where they discussed referrals and board issues.  There were meetings at least once a month, and, in some months, 15 to 16 meetings.  In cross examination, Ms. X agreed that there were an average of 5 meetings a month, in the beginning perhaps 20 meetings, and that there were referrals “all the time.”  While the number of meetings may be in dispute, and the characterization of those meetings, clearly there were meetings and activities.  Ms. X’ testimony is not consistent with her submission that the Society “did not do anything.”

 

  1. The purpose of the February 2019 Strategic Forestry Initiative Agreement between the Province, of BC represented by the Minister of Forest, Lands, Natural Resource Operations, and Rural Development and the Hereditary Chiefs and the SGS (collectively the “Gitwangak”), was to support participation in forest resource development and to facilitate the completion of a Gitwangak Strategic Forest Plan.  Under the agreement, the Province paid the Society $50,000 on behalf of the Hereditary Chiefs.  The Society’s role included contracting with a forestry professional to facilitate the creation of a strategic forestry plan and a report analyzing timber supply, arrange meetings, and inform the Hereditary Chiefs and House members about the strategic forestry plan and other opportunities for participation in the forestry sector.

 

  1. On May 1, 2019, the SGS, entered into an agreement with the Province of British Columbia, represented by the Ministry of Energy, Mines and Petroleum Resources. The agreement was signed by Mr. Williams as the Society’s Executive Director.  The purpose of the Agreement was to collaborate with the Province to develop an environmental effectiveness assessment and monitoring approach focusing on grizzly bear, moose, fish and fish habitat, wetlands and medicinal and traditional plants.  Under the Agreement, the Province agreed to pay SGS $150,000.00.   In March 2020, the SGS negotiated a Forest and Range Consultation and Revenue Sharing Agreement with the Province of British Columbia, represented by the Minister of Indigenous Relations and reconciliation.  Williams is still in the process of obtaining signatures from the Hereditary Chiefs for that agreement.  Under the agreement, the Province agreed to make payments of $144,451.61 for the 2019 and 2020 fiscal year.

 

  1. SGS has also been involved in negotiating agreements with private resource companies, including Brinkman Forest Ltd. Under the Interim Benefits Agreement, Brinkman agreed to pay a royalty to SGS and affected Houses.  The agreement was signed by Art Mathews as president of the SGS and by the two affected Hereditary Chiefs.  SGS and affected Houses entered into an agreement with Kispiox River Timber Ltd. in 2017, which was signed by a number of affected Hereditary Chiefs.  SGS worked with a private company, the KDL Group, and officials from the Ministry of Forest, Lands, Natural Resources to obtain a forest tenure within its traditional lands.  The letter was signed by a number of Hereditary Chiefs.  Williams testified that SGS expects to enter into an agreement with the Ministry in the near future.   SGS retained a forestry consultant regarding a referral under the BC Mines Act.  The report addressed the impact on the House territories of two Hereditary Chiefs, the GLUP, and potential negative downstream impacts on fish.  The report made a number of recommendations, including activities to be undertaken by the SGS.  The Society retained the consultant to assist it numerous times.

 

  1. SGS corresponded with various officials from the Province of British Columbia’s Ministry of Indigenous Relations and Reconciliation, including the Minister himself, and Federal negotiators, with respect to treaty matters.  As well, since 2016 SGS had had two meeting with negotiators for the Province regarding potential impact of treaties being negotiated with other First Nations.

 

  1. Williams testified that the Society held meetings with Hereditary Chiefs to review referrals from the Province and other matters and that it held board meetings from time to time since its incorporation.  Mr. Williams testified that he and members of the board developed the constitution and bylaws but conceded that the constitution and bylaws had not been ratified at an AMG yet. However, Mr. Williams also testified that SGS was unable to produce minutes of its meetings except three meetings in 2019 – March 28, July 27, and October 26.  Mr. Williams testified that Society was unable to locate those documents.  (Apparently the office was closed during the Covid-pandemic.)  At the March 28 meeting, the board approved bi-weekly salary of $1,700.00, effective July 15, 2019, to Mr. Williams.  The board also approved a bi-weekly salary of $950.00 to the President, Mr. Mathews. He testified that the minutes produced for the 2019 meetings were representative of typical issues discussed and voted upon at the meetings.  He admitted that SGS had yet to prepared financial statements.  With respect to financial statements, Mr. Mathews testified and although he explained that “we always go over the financial information,” although he agreed that he had not seen any financial statements, but that financial information was discussed verbally.  Mr. Williams also agreed that while the Notice of Change of Directors was not made until some month after May 15, 2018, the filing itself noted that the effected date of change was May 15, 2018.  The Society was definitely “parsimonious” with respect to the paperwork.

 

  1. Williams testified that 95% of the funding for SGS came from the Province of British Columbia through various agreements with the Province.  Minor amounts derived from other sources such as forestry companies.

 

  1. X suggests in her written submission that “there are no services being provided by SGS and the finances are owned by the Y (Chiefs).” Between July 2016 and May 9, 2019, and stated that there was no need for SGS to operate as a typical society as it did not have an office, administration or staff.  However, she also testified that SGS is “there for support” and takes a 20% administration fee from the amounts received from funding.  However, in a 2017 Report to the Society, she noted: “September 19-21- move to 149 Britch Street, Kitwanga, V0J 2A2.”  The address was and remained the office of SGS and where the Society conducted its business, including meetings.  While denying in her submission that SGS had an office, she conceded in cross examination that meetings were held at the Birch Street office to review referrals.  In my view, Ms. X testimony that it did not operate or meet as a society until the early month of 2019 was not credible.   Ms. X’ asserted that SGS did not, for example, engage with forestry companies etc. as described above; this was done by the impacted Houses and three Society members of a “Forum” under the Gitwangak Laxyip Strategic Engagement Agreement, Mr. Vernon Smith, Mr. Mathews and Mr. Williams.  There was no evidence to support Ms. X’ assertion that the “Forum” and not SGS engaged with forestry companies etc.  It is clear from the evidence before me that the Society was engaged in numerous activities (including as described above).  As well, contrary to Ms. X’ assertions, it was evident from her own 2017 to 2018 reports that the Society engaged in numerous activities, including the implementation of the GLUP.  Her September 28, 2018 Report listed among her responsibilities since July 2016: keeping records of correspondence and referrals, submitting monthly reports, contributing to preparation of assessment, reports for the Society’s year end evaluation, direct engagement with industry and government, and working overtime with flexible hours if necessary.  Indeed, in the same Report she stated that she had been “implementing our Land Use Plan, our Consultation Policy and Procedures to Government and Industry: SGS is therefore accepted as a viable entity”.  In my view, her assertions that the Society was inactive were not credible.

 

  1. X also took issue with Mr. Williams holding the position of Executive Director. According to her, May 19, 2019, was the first formal indication that Mr. Williams was the Executive Director of SGS, the date he signed the Environmental Stewardship Agreement.  According to her, the Hereditary Chiefs appointed Mr. Williams to be merely the “cheque writer” in November 2016 to ensure that crown payments were deposited to cover the Hereditary Chief’s expenses.  There is no credible evidence before me that Mr. Williams was appointed just to be a “cheque writer.”  On the contrary, Ms. X refered to him as the Executive Director in her own correspondence with the Society on March 5 and 10, 2018.  In many reports from 2017 and 2018, she referred to Mr. Williams as “Executive Director”.  For example, in her typed noted from a meeting on March 28, 2017, she listed Mr. Williams as Executive Director of the SGS.  In her report as facilitator to the Gitxsan Treaty Society AGM on September 27, 2018, she described her  position to include “offering practical, realistic advice and support to our Executive Director.”  These inconsistencies went unexplained.  Ms. X testified that “nothing gives Lance Williams authority to sign as Executive Director.”  Her own witness, Mr. Smith, a sporadic attendee at Society meetings, testified that the Board appointed Mr. Williams as Executive Director, although he could not recall when, because “he wasn’t there.”  Mr. Smith explained that he attended SGS meetings regarding referrals he said “when I’m called.”  Ms. X testimony was inconsistent with her own contemporaneous writing.  In my view, Ms. X’ testimony with respect to Mr. William’s role in the Society is not credible.   On all of the evidence before me, where there is a conflict between the testimony of Ms. X and Mr. Williams, I prefer the testimony of Mr. Williams.

 

Submissions

 

  1. SGS submits that it falls within provincial jurisdiction. Labour relations are presumptively under provincial jurisdiction.  The decision by the Supreme Court of Canada in NIL/TU,O Child & Family Services Society v. B.C.G.E.U., 210 SCC 45, , requires me to apply a functional test.  The question whether an undertaking service of business is a federal one depends on the nature, operations and habitual activities of the entity, as an ongoing concern without regards for the exceptional or casual factors.  Only if the functional test is inconclusive should a court proceed to examine of whether provincial regulation of an entity’s labour relations would impair the core of the federal head of power at issue.

 

  1. From the standpoint of the NIL/TU,O test, there is nothing federal about the Society’s work. SGS does not have any aboriginal rights.  All the agreements negotiated by SGS contain “non-derogation” clauses which provides that the agreements do not diminish, abrogate or infringe on aboriginal treaty rights.  The Society is a provincially incorporated society established by the Hereditary Chiefs.  There is no evidence that SGS operated within federal law.  The normal or habitual activities of the Society were within areas of Provincial regulatory jurisdiction such as forestry, mining, and other resource sectors.   SGS assisted the Hereditary Chiefs in engaging with the Province of BC and private resource companies within Provincial jurisdiction.  In any event, in the alternative, there is no evidence that any British Columbia labour relations would impair any aboriginal rights.

 

  1. X largely does not address the Society’s submissions. Ms. X agrees that NIL/TU,O sets out the correct test for determining the jurisdictional issue.  She submits that the Hereditary Chiefs fit into the definition of “federal work, undertaking or business” of the Code because of the residual powers (Peace, Order, and Good Government) in section 91 of the Constitution Act, 1867, R.S.C. 1985, App. II, No. 5, and section 35 of the Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. II.  Section 35 affirms and recognizes “existing aboriginal and treaty rights.”  She submits that the residual powers assign section 35 to the Federal Parliament and is outside section 92(13), “Property and Civil Rights.”  Second, Ms. X claims, in effect, that the Society did (or does) not perform any “habitual and daily activities,” submitting that SGS is not “an agency of any kind” and “does not provide services.”  The Society was simply a “flow through” entity channeling funds to the Hereditary Chiefs for their participation in decisions affecting their lands and other amounts for infringements.  Mr. Williams was not the Society’s Executive Director but a mere “cheque writer.”  The Society had no office, administration or employees.  SGS does not have jurisdiction to enter into agreements; all business agreements can only be entered into by the Hereditary Chiefs.  Ms. X maintains that the Hereditary Chief’s never transferred their jurisdiction to SGS.

 

  1. In reply, the Society submits that Ms. X was not a credible witness. It also says that its legal argument is basically unchallenged by the Ms. X.  SGS agrees that it does not have jurisdiction over traditional territories.  With respect to corporate governance issues, SGS submits that Ms. X is a member and a Director of SGS.  Accordingly, she is able to raise the concerns about annual general meetings, preparation of financial statements, other matters, etc.   In fact, the evidence indicates that she did not attend any of the meetings in 2019, on March 28, 2019 and October 26, 2019.

 

Relevant Statutory Provisions

 

  1. The Constitution Act, 1867, R.S.C. 1985, App. II, No. 5, provides:

 

  1. Legislative Authority of Parliament of Canada
    It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

…

  1. Indians, and Lands reserved for the Indians.

…

  1. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

 

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

 

  1. Subjects of exclusive Provincial Legislation
    In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

…

  1. Property and Civil Rights in the Province.

…

  1. Generally all Matters of a merely local or private Nature in the Province.

 

  1. X refers to section 35 of the Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. II, which provides:

35(1)  Recognition of existing aboriginal and treaty rights
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

35(2)  Definition of “aboriginal peoples of Canada”
In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

35(3)  Land claims agreements
For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

35(4)  Aboriginal and treaty rights are guaranteed equally to both sexes
Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

 

 

 

 

  1. The Code provides:

 

  1. Definitions
    In this Act,

…

“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing, …

167(1)  Application of Part
This Part applies

(a) to employment in or in connection with the operation of any federal work, undertaking or business other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut;

(b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a);

(c) to and in respect of any employers of the employees described in paragraph (b);

….

 

Legal Principles

 

  1. The only issue before me is whether the Society falls within federal or provincial jurisdiction.

 

  1. Both parties agree that NIL/TU,O Child & Family Services Society v. B.C.G.E.U., 2010 SCC 45 sets out the applicable law. It is well established that labour relations are presumptively under provincial jurisdiction.  In NIL/TU,O, Abella J. (LeBel, Deschamps, Charron, Rothstein, Cromwell JJ. concurring) set out the two-step test as follows:

 

  1. Jurisdiction over labour relations is not delegated to either the provincial or federal governments under s. 91 or s. 92 of the Constitution Act, 1867. But since Toronto Electric Commissioners v. Snider, [1925] A.C. 396(Ontario P.C.), Canadian courts have recognized that labour relations are presumptively a provincial matter, and that the federal government has jurisdiction over labour relations only by way of exception. This exception has always been narrowly interpreted …. [citations omitted]

 

12      The approach to determining whether an entity’s labour relations are federally or provincially regulated is a distinct one and, notably, entails a completely different analysis from that used to determine whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. Because the regulation of labour relations falls presumptively within the jurisdiction of the provinces, the narrow question when dealing with cases raising the jurisdiction of labour relations is whether a particular entity is a “federal work, undertaking or business” for purposes of triggering the jurisdiction of the Canada Labour Code.

…..

18      In other words, in determining whether an entity’s labour relations will be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, Four B requires that a court first apply the functional test, that is, examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.

 

  1. In NIL/TU,O, the province delegated its authority over child welfare to the agency, a society incorporated under provincial law, in an arrangement approximately 65% funded by the federal government. The arrangement was a tri-partite agreement between the First Nations, the federal government and the provincial government.  The essential nature of the agency was to provide child and family services, a matter within the provincial sphere. Under this agreement, the provincial government, delegated some of its statutory powers and responsibilities over the delivery of child welfare services to the First Nations.  NIL/TU,O‘s employees exercised delegated authority and were accountable to the director under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46.  The federal funding and requirement to provide services in a culturally sensitive manner did not turn the matter into a federal one.  The Court noted:  “The community for whom NIL/TU,O operates as a child welfare agency does not change what it does, namely, deliver child welfare services” (para. 45).

 

  1. This inquiry is highly fact specific. I would echo the comment by Adjudicator Clarke in Gallagher and Native Women’s Assn. of Canada, [2017] C.L.A.D. No. 178: “While the principles initially appear straight forward, their application in various post NIL/TU,O cases has been challenging in certain cases involving First Nations.”  This is amply demonstrated in the case law (see for example, Marszazlek v. Little Red River Board of Education, 2019 CarswellNat 843, [2019] C.L.A.D. No. 32 (Letourneau Can.Adj.)).

 

  1. In Charlie and Sts’ailes Indian Band, 2019 CarswellNat 5847 (Can.Adj.), Adjudicator Dorsey, concluded that the habitual activities and daily operations of an early childcare centre was as a provincially regulated childcare facility delivering care to any children within a provincially regulated scheme, not just children of the First Nation children but all other children. The centre was under provincial jurisdiction. However, in Conseil de la Nation Innu Matimekush-Lac John c. Association des employés du nord québécois (CSQ), 2017 CAF 212, 2017 FCA 212, the Federal Court of Appeal concluded that teachers employed by a band council in a school established under the Indian Act were subject to federal jurisdiction.  In McIntyre and English River First Nation, [2017] C.L.A.D. No. 262, the First Nation provided a wide range of governmental services to its members, including education.  The school was owned, operated and integrally connected to the First Nation, and subject to federal jurisdiction.

 

  1. In Goulais and Assembly of First Nations, 2019 CarswellNat 4791 (Clarke, Can.Adj.) and Maiangowi and Assembly of First Nations, 2019 CarswellNat 4792 (Clarke, Can.Adj.), the Adjudicator found that the Assembly of First Nations (“AFN”) fell within provincial jurisdiction, although he noted (in Goulais) that the limited facts did not provide full background of employer’s nature, habitual activities and daily operations.[3] In Goulais both parties argued that the AFN fell within federal jurisdiction.  In that case, the AFN submitted, among others, that it was involved in First Nations advocacy, representing some 634 First Nations Governments, including “facilitation and coordination of national and regional discussions and dialogue, advocacy efforts and campaigns, legal and policy analysis, communicating with governments, including facilitating relationship building between First Nations and the Crown” (Goulais, para. 18); and engaged “directly with the federal government to enact legislative, policy and structural reform” (Goulais, para. 21).   The Adjudicator drew an analogy with other interest groups representing their constituent interests, such as the Canadian Bankers Association.  In the absence of sufficient information,[4] while the adjudicator had concerns whether the functional test could be properly conducted, he seems to have concluded on the facts pleaded that the functional test was satisfied (Goulais, paras. 71, 81-82).   In the alternative, he concluded that the parties did not demonstrate that “provincial regulation of the AFN’s labour relations would impair the 91(24) federal head of power” (Goulais, paras. 73, 83).  In the “companion” case, Maiangowi, the complainant submitted that AFN employees monitor Indian Act reserve land issues, Treaty-Rights related issues, Land Claims; legislation and litigation affecting s.35 rights; climate change, and also “generally available to provide lobbying assistance for any member First Nation of the AFN” (Maiangowi, para. 11).  In that case, the Adjudicator concluded that the facts did not rebut the presumption in favour of provincial jurisdiction.                  Similarly, in Gallagher, an association of 12 women’s associations across Canada, was established to advance the well-being of Aboriginal women, girls, families and communities through advocacy, policy analysis, strategic intervention in equality rights cases, and research, culturally relevant gender-based perspective.  It was funded by two federal government departments.  Applying the functional test, the Adjudicator concluded that the Native Women’s Association of Canada was not itself a federal undertaking when performing advocacy and policy work on behalf of Aboriginal women. In his view, it was comparable to a multitude of other associations representingthe interests of their members. Those associations’ labour relations fall within provincial jurisdiction. Adjudicator Clarke considered the “derivative” test:

 

37      First, the facts do not disclose any integral relationship between NWAC and a federal undertaking, like a First Nations band council. The derivative jurisdiction analysis requires two entities, one of which is a federal undertaking.

 

38      Second, even if the facts disclosed that NWAC had been acting for, or on behalf of, a band council, the decision in Fox Lake demonstrates that this factor alone is not necessarily sufficient for a finding of federal jurisdiction16 . The activities must still be integral to the carrying out of the federal undertaking.17  [foot notes omitted]

 

  1. In Anderson and Fox Lake Cree Nation, 2013 FC 1276, the First Nation established a negotiations office to negotiate contracts on its behalf with Manitoba Hydro with respect to significant hydro-electric projects. The employee was employed by the First Nation and his employment was terminated by Chief and Council of First Nation.  On judicial review, the Federal Court concluded that adjudicator erred in his characterization of normal and habitual activities of office by focusing on fact that beneficiaries of its activities were members of First Nations.  The negotiations office was a separate and distinct entity.  Justice Zinn noted:

 

32      When properly considered, the habitual activities of the Negotiations Office are to negotiate with Hydro, a provincial crown corporation established and regulated by provincial statute, with respect to the development of new hydro-electric projects generally, which projects are wholly situated in the province. Apart from the fact that the FLCN is an Indian Band and that some of the negotiated provisions acknowledge the adverse effects that these projects will have on the members of the Band, there is nothing federal about the Negotiations Office’s work ….

 

Analysis and Decision

 

  1. Under the functional test, whether an undertaking, service or business is a federal one depends on the nature of its operation, looking at “normal or habitual activities of the business as a going concern, without regard for exceptional or casual factors …” (NIL/TU,O, para. 14). If these factors displace provincial jurisdiction, its labour relations are federally regulated.  Only if this inquiry is inconclusive do we turn, first, to the first question of whether the power to regulate the labour relations is an integral part of primary federal jurisdiction over Indians and Lands reserved for the Indians and, second, whether Parliament has occupied the field by the provisions of the Canada Labour Code (NIL/TU,O, para. 17).

 

  1. In my view, the normal or habitual activities of the Society as a going concern without regard for exceptional or casual factors places its labour relations, and Ms. X’ employment, within provincial jurisdiction.

 

  1. First, SGS is a separate and distinct legal entity incorporated under the Society Act (Anderson and Fox Lake Cree Nation). The members are Hereditary Chiefs from three Gitxan Clans.  The directors are Hereditary Chiefs.  Although the documentation is less than stellar, parsimonious to say the least, I accept that the Society held meetings with Hereditary Chiefs to review referrals from the Province and other matters, and that it held Board meetings from time to time since its incorporation.

 

  1. Second, moreover, SGS had an Executive Director, an office, employees (Ms. X and others, from time to time), and one or more bank accounts. It had a bank account, but it was not simply a financial “flow-though” entity.  It administered the funding from outside sources, mostly the Province of BC, and took a 20% administration fee from the amounts received.

 

  1. Third, SGS is not part of Band government. The Gitwangak Band is a separate legal entity, established under the Indian Act, S.C. 1985, c. I-5, and has no authority over SGS or the Hereditary Chiefs.  There was also no evidence that SGS was part of any form of government by the Hereditary Chiefs or their Houses.  I agree with SGS that SGS is further removed since it is not part of any government activity of the Gitwangak Indian Band.

 

  1. Fourth, the purposes of the Society are set out in its constitution and includes protecting and preserving Gitxsan traditional territory by implementing the GLUP. Although it appears that the constitution and bylaws have yet to be ratified, the Society carried on its business on that basis since its incorporation.  Its corporate governance leaves much to be desired.  However, X is a founding member and now a Director of SGS.  Accordingly, she is able to raise the concerns about annual general meetings, preparation of financial statements, and other matters.   In fact, the evidence indicates that she did not attend any of the meetings in 2019, on March 28, 2019 and October 26, 2019.  The purposes include the responsibility to administer, implement and monitor the implementation of the GLUP and to develop and maintain long-term sustainable management of land, air and water resources of the traditional territories.  SGS was also given a role in future additions and amendments to the GLUP.

 

  1. Fifth, SGS engaged with the Province of BC with respect to natural resources, which are mostly under Provincial jurisdiction, such as the 2018 Gitwangak Laxyip Strategic Engagement Agreement, the 2019 Strategic Forestry Initiative Agreement, the 2019 agreement to develop an environmental effectiveness assessment and monitoring approach focusing on grizzly bear, moose, fish and fish habitat, wetlands and medicinal and traditional plants, and the 2020 Forest and Range Consultation and Revenue Sharing Agreement. The normal or habitual activities of the Society were within areas of Provincial regulatory jurisdiction such as forestry, mining, and other resource sectors. The normal or habitual activities of the Society were within areas of Provincial regulatory jurisdiction such as forestry, mining, and other resource sectors.  SGS did not assert any jurisdiction with respect to Gitxan inherent rights The agreements entered into by SGS included “non-derogation” clauses, stating that the agreements do not diminish, amend, limit, abrogate or derogate from any right or title claimed by the Hereditary Chiefs.

 

  1. Sixth, SGS engaged with various private resource companies interested in doing business within the traditional territories, including Brinkman Forest Ltd., Kispiox River Timber Ltd. and the KDL Group. X and Mr. Williams were involved in regular meetings various companies, and the Hereditary Chiefs to review referrals and provide responses to those referrals.  They were kept busy with those and other activities.  I do not accept Ms. X’ submission that this was done by the impacted Houses and three Society members of a “Forum” under the Gitwangak Laxyip Strategic Engagement Agreement, Mr. Vernon Smith, Mr. Mathews and Mr. Williams.

 

  1. X submission that SGS does not have jurisdiction to enter into agreements, but that all business agreements must be entered into by the Hereditary Chiefs is not supported by any authority and, in my view, is without merit. The fact is that the Hereditary Chiefs decided to set up the Society to assist them engaging with the Province of BC and private resource companies within Provincial jurisdiction.  As well, the agreements entered into by SGS included “non-derogation” clauses, stating that the agreements do not diminish, amend, limit, abrogate or derogate from any right or title claimed by the Hereditary Chiefs.

 

  1. X submission that the Society “did not do anything” and that “there are no services being provided by SGS and the finances are owned by the Y (Chiefs),” is not consistent with the preponderance of the evidence. I do not accept Ms. X claims, in effect, that the Society did (or does) not perform any “habitual and daily activities,” submitting that SGS is not “an agency of any kind” and “does not provide services.”   SGS is a separate and distinct legal entity incorporated under the Society Act.

 

  1. Seventh, although this factor is not given much weight, the bulk of the funding for SGS came from the Province of British Columbia through various agreements with the Province.

 

  1. In my view, overall, SGS assisted the Hereditary Chiefs in engaging with the Province of BC and private resource companies within Provincial jurisdiction. In my view the activities are similar to carried out by the society in Treaty 8 Tribal Assn. v. Barley.  There are also similarities with the circumstances in Goulais and Assembly of First Nations, where the AFN engaged in “facilitation and coordination of national and regional discussions and dialogue, advocacy efforts and campaigns, legal and policy analysis, communicating with governments, including facilitating relationship building between First Nations and the Crown” (Goulais, para. 18); and engaged “directly with the federal government to enact legislative, policy and structural reform” (Goulais, para. 21; see also Maiangowi; and Gallagher).

 

  1. X suggest that the Peace, Order, and Good Government “power has been used as a basis for federal legislation where there is a gap in the distribution of federal and provincial powers.” She submits that the residual powers assign section 35 to the Federal Parliament and is outside section 92(13), “Property and Civil Rights.”  She submits that the Hereditary Chiefs fit into the definition of “federal work, undertaking or business” of the Code.  There is no authority for this proposition.  With respect, Ms. X’ submission is misconceived.  Section 35 of the Constitution Act, 1982 addresses existing aboriginal and treaty rights, sections 91 and 92 of the Constitution Act, 1867, the division of powers between the federal and provincial governments.  Under section 91(24) “Indians, and Lands reserved for the Indians” is under federal jurisdiction.  Under section 92(13) “Property and Civil Rights” is under provincial jurisdiction.  She submits that the residual powers assign section 35 to the Federal Parliament and is outside section 92(13), “Property and Civil Rights.”   I do not see that the residual powers assign section 35 to the Federal Parliament and is outside section 92(13), “Property and Civil Rights.”    In my view, the residual powers in section 91 – Peace, Order, and good Government of Canada – do not extend the powers of the Federal Parliament over matters assigned to the Provincial Legislatures in section 92.  Moreover, section 35 speaks to existing aboriginal and treaty rights.  It does not speak to the division of powers between the Federal and Provincial Parliaments.  In my view, existing aboriginal and treaty rights are not engaged here.  In the circumstances, I do not see how the Hereditary Chiefs, as such, and aside from the fact that they (individually or collectively) are not parties to this complaint, could be a “federal work, undertaking or business.”

 

  1. Accordingly, I would dismiss the Complaint for lack of jurisdiction and uphold the Society’s preliminary objection.

 

  1. Given my conclusions, and the lack of detailed submissions in that regard, I do not propose to proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.

 

 

    Decision

 

I make the following orders:

 

  1. The Complaint is hereby dismissed.

 

Vancouver, September 1, 2021

 

________________________

Ib S. Petersen

Adjudicator