The Question of Jurisdiction for First Nation Operations
The foundational question with regard to labour relations and employment law for First Nation operations is that of Jurisdiction: Federal, or Provincial. Despite the Federal government having exclusive legislative authority in the Constitution Act, 1867 for “Indians, and Lands reserved for the Indians”, a number of areas falling under this authority overlap with Provincial legislative authority. The result has been widespread confusion into the relevant statutory or legislative regime for any given First Nation operation, and the related standards to adapt therein.
This confusion between Federal and Provincial Jurisdictions was aptly dubbed a jurisdictional wasteland by the Supreme Court of Candida in its 2016 decision in Daniels v. Canada (Indian Affairs and Norther Development). Looking at the oft-litigated area of Child and Family Services, this jurisdictional wasteland is well-demonstrated.
Over the last several decades, the Federal government has delegated the delivery of a number of services to First Nation governments and organizations. One of these services has been the provision of child and Family Services. Presumptively, child and family services fall under Provincial jurisdiction, yet the Federal government nonetheless plays a role in providing programming and funding. Consequently, First Nations have had to abide by Federal funding parameters as well as Provincial child welfare laws.
NIL/TU,O
The landmark Supreme Court of Canada decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union (“NIL/TU,O”) dealt with this very issue, and asked the question of whether a First Nations organization providing child and family services in a manner designed for First Nations children and families would fall under Federal jurisdiction. Ultimately, the Supreme Court decided that NIL/TU,O was Provincially regulated:
The essential nature of NIL/TU,O’s operation is to provide child and family services, a matter within the provincial sphere. It is regulated exclusively by the province, and its employees exercise exclusively provincial delegated authority. The identity of the designated beneficiaries may and undoubtedly should affect how those services are delivered, but they do not change the fact that the delivery of child welfare services, a provincial undertaking, is what NIL/TU,O essentially does. The presumption in favour of provincial jurisdiction over labour relations remains operative in this case…
An Act respecting First Nations, Inuit and Metis Children, Youth and Families
Further complicating this jurisdictional wasteland is recent Federal legislation. “An Act respecting First Nations, Inuit and Metis Children, Youth and Families” (the “Act”) came into force in 2019. Despite the clarity that NIL/TU,O introduced with the presumption that child welfare falls under Provincial jurisdiction, the Act attempted to empower Indigenous self-governance over child and family services by providing legislative authority to that effect. Yet the Act was criticized for limiting Indigenous authority and furthering the jurisdictional wasteland around funding and fiscal responsibility.
This all came to a head in the Bill C-92 Reference Case, wherein the Province of Quebec challenged the jurisdiction of the Federal government to pass the Act, and claimed that it was unconstitutional. The Court of Appeal of Quebec found that the vast majority of the Act was constitutional since the ‘pith and substance’ of the Act was to ensure the well being of Indigenous children by fostering culturally appropriate services aimed at reducing Indigenous over representation in Provincial child welfare systems. The Supreme Court of Canada heard the appeal of the Court of Appeal’s decision in 2022, though its judgement has yet to be released.
Suffice to say, jurisdiction is a key question for First Nation operations and it is important to ensure that you know where your organization stands. The question of jurisdiction is important not only in First Nations Child and Family Welfare, but also when it comes to indigenous organizations operating in education, health care, and other service-provision for band members. Even Tribal Councils and on-reserve Education Authorities have had decisions released on their jurisdiction.
Our lawyers are experienced with this ‘jurisdictional wasteland’ and have helped indigenous organizations and individuals properly and successfully navigate the question of jurisdiction to move forward with their legal matters. Contact us at 807-344-1112, or by email to discuss in more detail if you have any questions.
Written by Suraj Dave
Edwards Bell Jewitt LLP