SUPREME COURT OF CANADA

Transcription

1 SUPREME COURT OF CANADA File No (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: NIL/TU,O CHILD AND FAMILY SERVICES SOCIETY - and - APPELLANT (Respondent) B.C. GOVERNMENT AND SERVICE EMPLOYEES UNION - and - RESPONDENT (Appellant) BRITISH COLUMBIA LABOUR RELATIONS BOARD, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF NEW BRUNSWICK, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF QUÉBEC and ATTORNEY GENERAL OF ONTARIO INTERVENERS APPELLANT S FACTUM Supreme Factum 2005 Limoges Street Tel. Longueuil, Québec J4G 1C Fax S supreme@factum.ca

2 - 2 - Walter G. Rilkoff Lisa A. Peters Nicole K. Skuggedal Lawson Lundell LLP Suite West Georgia Street Vancouver, British Columbia V6C 3L Tel Fax wrilkoff@lawsonlundell.com lpeters@lawsonlundell.com nskuggedal@lawsonlundell.com Counsel for the Appellant Pierre Landry Noël & Associés 111, rue Champlain Gatineau, Québec J8X 3R Tel Fax p.landry@noelassocies.com Agent for the Appellant Kenneth R. Curry British Columbia Government and Service Employees Union 4911 Canada Way Burnaby, British Columbia V5G 3W Tel Fax ken.curry@bcgeu.ca Counsel for the Respondent Dougald Brown Nelligan O Brien Payne LLP Suite O Connor Street Ottawa, Ontario K1P 6L Tel Fax dougald.brown@nelligan.ca Agent for the Respondent Elena Miller Suite 600, Oceanic Plaza 1066 West Hastings Plaza Vancouver, British Columbia V6E 3X Tel Fax elena.miller@lrb.bc.ca Counsel for the British Columbia Labour Relations Board Colleen Bauman Sack Goldblatt Mitchell LLP Suite Metcalfe Street Ottawa, Ontario K1P 5L Tel Fax cbauman@sgmlaw.com Agent for the British Columbia Labour Relations Board

3 - 3 - Brian A. Crane Q.C. Gowling Lafleur Henderson LLP Suite 2600, Box 466, Station D 160 Elgin Street Ottawa, Ontario K1P 1C Tel Fax brian.crane@gowlings.com Agent for the Attorney General of New Brunswick, Manitoba and Saskatchewan Christopher M. Rupar Attorney General of Canada Suite 1212 Bank of Canada Building, East Tower 234 Wellington Street Ottawa, Ontario K1A 0H Tel Fax christopher.rupar@justice.gc.ca Agent for the Attorney General of Canada Paul E. Yearwood Attorney General of British Columbia 3 rd Floor 1405 Douglas Street Victoria, British Columbia V8W 9J Tel Fax paul.yearwood@gov.bc.ca Counsel for the Attorney General of British Columbia Robert E. Houston Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A Tel Fax rhouston@burkerobertson.com Agent for the Attorney General of British Columbia

4 - 4 - Sylvain Leboeuf Procureur Général du Québec 2 nd Floor 1200 Route de l Église Québec, Québec, G1V 4M ext Tel Fax sleboeuf@justice.gouv.qc.ca Counsel for the Attorney General of Québec Richard Gaudreau Bergeron, Gaudreau, Laporte 167 rue Notre-Dame-de-l Île Gatineau, Québec J8X 3T Tel Fax bergeron.gaudreau@qc.aira.com Agent for the Attorney General of Québec Sean Hanley 4 th Floor 720 Bay Street Toronto, Ontario M5G 2K Tel Fax sean.hanley@ontario.ca Counsel for the Attorney General of Ontario Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A Tel Fax rhouston@burkerobertson.com Agent for the Attorney General of Ontario

5 - i - TABLE OF CONTENTS APPELLANT S FACTUM Page PART I STATEMENT OF FACTS...1 A. Overview of Appellant s Position...1 B. First Nations Child and Family Welfare Agencies...2 C. NIL/TU,O Child and Family Services Society...3 D. History of Proceedings...11 E. Companion Appeal Native Child and Family Services of Toronto...13 PART II QUESTION IN ISSUE...15 PART III STATEMENT OF ARGUMENT...15 A. Constitutional Principles Raised by These Facts and NIL/TU,O s Position on Them...15 B. Wrong Questions and Tests...17 C. Federal Competence over Labour Relations...18 D. Decision in Canadian Western Bank Does Not Overrule the Body of Jurisprudence Explaining the Federal Labour Relations Jurisdiction...24 E. The Content of s. 91(24) of the Constitution Act, F. Understanding Four B and the Cases Applying the Functional Test to First Nation Organizations...31 G. Conclusion...39

6 - ii - TABLE OF CONTENTS APPELLANT S FACTUM Page PART IV COSTS...39 PART V NATURE OF ORDER SOUGHT...40 PART VI TABLE OF AUTHORITIES...41 PART VII STATUTE DIRECTLY AT ISSUE The Constitution Act 1867 (U.K.), 30 & 31 Victoria, c

7 - 1 - Statement of Facts APPELLANT S FACTUM PART I STATEMENT OF FACTS A. Overview of Appellant s Position 1. NIL/TU,O Child and Family Services Society ( NIL/TU,O ) is an organization formed by a group of First Nations Band Councils to provide services to the children and families of their communities, primarily on reserve, utilizing First Nations social workers and family support workers. It operates in accordance with standards developed by and for First Nations people that are designed to preserve and promote the First Nations identity of the children and families it serves. In providing child and family services that address aboriginal-specific needs, it fosters and preserves the First Nations communities culture, traditions and spiritual beliefs. 2. It has long been held by this Court that constitutional authority over the labour relations of an organization that falls within federal jurisdiction is also federal; control over labour relations follows the constitutional characterization of the organization itself. 3. The determination of whether an organization falls within federal or provincial jurisdiction is based on a functional test which looks at the normal and habitual activities of an organization as a going concern. 4. This Court in Four B Manufacturing Ltd. v. United Garment Workers of American confirmed that the functional test applies to a determination of whether an organization falls within federal jurisdiction as an organization in relation to Indians under section s. 91(24) of the Constitution Act, Based on its normal and habitual activities, NIL/TU,O is an organization in relation to Indians within the meaning of section s. 91(24). As found by Mr. Justice Cullen in the Supreme Court of British Columbia, the whole purpose of NIL/TU,O is to mould child

8 - 2 - Statement of Facts welfare services delegated by the province into a shape which [serves] Indians qua Indians. 6. As NIL/TU,O is an organization in relation to Indians, and thus properly characterized as a federal enterprise, in accordance with this Court s jurisprudence, its labour relations are federally regulated. B. First Nations Child and Family Welfare Agencies 7. Many First Nations communities across Canada are creating agencies to offer child and family services to their communities that were previously offered by provincial governments. First Nations child and family welfare services are designed and delivered by First Nations people to First Nations people to ensure preservation of First Nations identity. First Nations communities view the creation of these agencies as a step on the continuum toward self-government in the context of the welfare and identity of their children. Larry Phillip Fontaine Affidavit, Appellant s Record ( AR ), Vol. II, p. 190 at paras. 7-12; Linda Lucas Affidavit, AR, Vol. II, pp and 198 at paras and The creation of these agencies arises out of the lack of success of provincial governments in providing programs that recognized or were sensitive to cultural and social issues unique to First Nations. Prior to the creation of First Nations child and family service agencies, children in provincial government care were frequently placed in nonaboriginal homes with no opportunity to develop a positive self identity or connection to their First Nations identity thereby creating a lost linkage between these children and their First Nations roots and communities. Larry Phillip Fontaine Affidavit, AR, Vol. II, p. 190 at paras. 9-10, Linda Lucas Affidavit, AR, Vol. II, pp at paras and First Nations child and family service agencies are vital to the preservation of First Nations identity as the percentage of aboriginal children in care is vastly disproportionate

9 - 3 - Statement of Facts to the aboriginal portion of the population. For example, in June 2007, 51.1% of children in care in British Columbia were aboriginal, while in the 2006 Census only 4.8% of the British Columbia population identified as aboriginal. Linda Lucas Affidavit, AR, Vol. II, p. 197 at paras. 20 and First Nations child and family services are either provided directly by a Band Council or are provided through a society controlled by one or more Band Councils. The choice of which structure to adopt is primarily the result of how federal funding is allocated. The federal funding formula requires communities to join together in order to receive the highest possible funding. There is no distinction between the general nature of services provided by a Band Council and those provided by Band Councils working together. Larry Phillip Fontaine Affidavit, AR, Vol. II, pp at para. 13; Linda Lucas Affidavit, AR, Vol. II, p. 196 at paras. 14, 16 and 17 C. NIL/TU,O Child and Family Services Society 11. NIL/TU,O is a society established in November, 1997 by the Pacheedaht, Pauquachin, Songhees, Sooke, Tseycum, Tsartlip and Tsawout First Nations on Southern Vancouver Island. Since 1997, the membership in NIL/TU,O has changed somewhat and as of the winter of 2005, it consisted of Beecher Bay, Pacheedaht, Pauquachin, Songhees, Sooke, Tsartlip and Tsawout First Nations (the Collective First Nations ). Reasons for Judgment of Mr. Justice Cullen, Supreme Court of British Columbia, dated July 19, 2007 ( BCSC Judgment ), AR, Vol. I, p. 30 at para. 2; Mavis Henry Affidavit No. 1, AR, Vol. I, pp at paras. 2 and NIL/TU,O operates pursuant to a tripartite Delegation Agreement among NIL/TU,O, Her Majesty the Queen ( HMTQ ) in Right of British Columbia and HMTQ in Right of Canada entered into pursuant to Federal Directive Federal Directive 20-1 is a policy statement of the Federal Department of Indian and Northern Development

10 - 4 - Statement of Facts respecting the administration of the federal government s First Nations Child and Family Services Program. The principles of Directive 20-1 include: (a) The expansion of First Nations child and family services on reserves to a level comparable to the services provided off reserves; (b) The creation of First Nations designed, controlled and managed services; (c) The development of First Nations Standards for those services; and (d) The gradual expansion of services as funds become available and First Nations are prepared to take over services. BCSC Judgment, AR, Vol. I, pp at paras 3-5; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 133 at paras. 15 and 16 and Exhibit C, AR, Vol. I, pp In the preamble to the Delegation Agreement, NIL/TU,O asserts its right to care for and protect NIL/TU,O Children and to preserve their connection to their culture and heritage through the delivery of culturally appropriate Services. Mavis Henry Affidavit No. 1, Exhibit D, AR, Vol. I, p NIL/TU,O s Mission Statement states that its goals are to ensure that the safety, protection, and well being of our children in today s society; working together to maintain the traditional values of the extended family. Mavis Henry Affidavit No. 1, Exhibit B, AR, Vol. I, p NIL/TU,O s mandate is set out in paragraph 3 of its Constitution: The Collective First Nations declares its [responsibility] to safeguard the right of children to live safely and with dignity and shall:

11 - 5 - Statement of Facts Recognize the authority of the Child, Family and Community Service Act to deliver statutory services to families and children until such time as there is a First Nations Self Government, Child and Family Services legislation or Government of Canada First Nations Child and Family services legislation. Recognize the authority of NIL/TU,O Child and Family Services to deliver non-statutory services to families and children. Mavis Henry Affidavit No. 1, AR, Vol. I, pp at para. 7 and Exhibit B, AR, Vol. I, p In British Columbia, child welfare at large is governed by the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 ( CFCS Act ). However, pursuant to the Delegation Agreement, the authority and responsibility to provide certain services to children who are registered as Indians under the Indian Act, R.S.C. 1985, c.1-5, is delegated to NIL/TU,O. Mavis Henry Affidavit No. 1, Exhibit D, AR, Vol. I, pp NIL/TU,O co-manages cases with the provincial Ministry of Child and Family Development. However, the Ministry s involvement is limited to files where there are child protection issues. At any given time, approximately 20-30% of NIL/TU,O s files have child protection issues. Mavis Henry Affidavit No. 2, AR, Vol. II, p. 1 at para As of April 2007, NIL/TU,O had 24 employees. Of these employees, there are five practicing social workers who have regular contact with the Ministry on child protection files. The majority of NIL/TU,O employees are family support workers who have only passing involvement with the Ministry and are primarily involved with issues specific to First Nations. Mavis Henry Affidavit No. 2, AR, Vol. II, p. 1 at paras 2-3

12 - 6 - Statement of Facts 19. All of the children serviced by NIL/TU,O are First Nations and are Indians within the meaning of the Indian Act. Eligible child is defined in the Delegation Confirmation Agreements as any person under the age of 19, registered as an Indian under the Indian Act whom has at least one parent on a reserve of one of the Collective Nations. BCSC Judgment, AR, Vol. I, pp at para. 5; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 134 at para. 23 and Exhibit D, AR, Vol. I, p NIL/TU,O provides the vast majority of its services on reserve lands to eligible First Nations children. In September 2005, 90% of the services provided by NIL/TU,O were provided on reserve lands to eligible children. During October 2005, 86% of the services provided by NIL/TU,O were to eligible children on reserve lands. BCSC Judgment, AR, Vol. I, pp at para. 5; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 134 at para NIL/TU,O s purpose, as set out in its Constitution, extends beyond providing services to children simply because they are members of the Collective First Nations to ensuring that these children are raised as First Nations children in the unique First Nations context in order to preserve their cultural identity. Paragraph 4 of NIL/TU,O s Constitution includes the following purposes: (a) To create, develop, implement and maintain a child welfare and family service agency (hereinafter referred to as the agency ) for the First Nations/Bands (hereinafter referred to as the Collective Tribes ) listed in Appendix 1, Member Nations/Bands (b) To enter into and maintain an agreement with the Collective Tribes, respecting the conditions under which the society will operate the agency on behalf of the Collective Tribes through individual Band Council Resolution Agreements and with individual protocol agreements which define the working relations and guidelines; (d) To govern and provide services in keeping with the culture, traditions and teachings of the Collective Tribes;

13 - 7 - Statement of Facts (j) To ensure that First Nations qualified practitioners deliver services for the agency, including building that capacity through training of First Nations Practitioners; (o) To co-manage cases with the Ministry for Child and Family Development until such time as full delegation of authority is obtained by the agency. BCSC Judgment, AR, Vol. I, p. 39 at para. 11; Reasons for Judgment of the Court of Appeal for British Columbia dated August 27, 2008 ( BCCA Judgment ), AR, Vol. I, pp at para. 4; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 131 at para. 6 and Exhibit B, AR, Vol. I, pp NIL/TU,O preserves the cultural identity of First Nations children by offering numerous services of a uniquely aboriginal nature or that involve significant aboriginal elements. For example: (a) After school programs aimed at increasing children s appreciation of First Nations culture through activities such as traditional arts and music, First Nations language lessons and excursions to traditional sacred sites; (b) A special residential camp designed to rebuild traditions and cultural practices; (c) Youth justice initiatives, which pair troubled youth with mentors and elders, who counsel and instruct the young people on traditional methods of raising and disciplining First Nations adolescents; (d) School support for children with difficulties fitting into non-first Nations society. The program involves providing children with mentors to assist and encounter racism and discrimination in building pride in their First Nations heritage; and (e) Cross-cultural education programs for public school educators and non-first Nations children in order to combat discrimination against First Nations youth.

14 - 8 - Statement of Facts BCSC Judgment, AR, Vol. I, pp at para. 5; Mavis Henry Affidavit No. 1, AR, Vol. I, pp at para. 25; Mavis Henry Affidavit No. 2, AR, Vol. II, pp. 2-3 at para. 6; Linda Lucas Affidavit, AR, Vol. II, p. 196 at para Paragraph 4.5 of the 2004 Delegation Agreement requires that NIL/TU,O carry out its services in accordance with the Aboriginal Operational and Practice Standards Indicators ( AOPSI ), which are standards applied by First Nations child and family service agencies to meet or exceed the requirements of the Ministry of Children and Family Development practice standards while addressing the unique needs of First Nations children and families. BCSC Judgment, AR, Vol. I, pp at para. 10; Mavis Henry Affidavit No. 1, Exhibit D, AR, Vol. I, p. 217; Mavis Henry Affidavit No. 2, AR, Vol. II, pp. 3-5 at para. 7; Linda Lucas Affidavit, AR, Vol. II, p. 195 at paras The AOPSI were originally created by the executive directors of the First Nations child and family services agencies, the Federal Department of Indian Affairs and Northern Development Canada and the British Columbia Ministry in The AOPSI address the distinct issues facing First Nations Child and Welfare agencies while complying with the CFCS Act. Of particular note are: Standard 4: Involving the Aboriginal Community in the Provision of Services When providing services to children and families, the social worker involves the child, family, extended family and, when appropriate, the designated representative of the family s Band/cultural group or aboriginal community in the planning and delivery of services. Standard 11: Preserving the Identity of the Child in Care and Providing Culturally Appropriate Services The Social worker will preserve and promote the cultural identity of the child in care and provide services sensitive to the child s views, cultural heritage and spiritual beliefs.

15 - 9 - Statement of Facts BCSC Judgment, AR, Vol. I, pp at para. 10; Mavis Henry Affidavit No. 2, Exhibit A, AR, Vol. II, pp. 20 and 35-36; Linda Lucas Affidavit, AR, Vol. II, pp at paras The AOPSI are updated and reviewed by the Caring for First Nations Children Society, a non-profit society established in 1994 to provide aboriginal professional development and training to First Nations child and family service agencies in British Columbia. The Caring for First Nations Children Society mission statement is: To provide professional development, research and liaison services for First Nations who protect and promote the well being of First Nations children and families by respecting and reaffirming traditional values and beliefs, encouraging innovative and quality child and family service delivery and empowering the voices of First Nations peoples. BCSC Judgment, AR, Vol. I, pp at para. 10; Mavis Henry Affidavit No. 2, AR, Vol. II, pp. 3-5 and Exhibit B, AR, Vol. II, p. 186; Linda Lucas Affidavit, AR, Vol. II, p. 194 at paras One of NIL/TU,O s purposes is to ensure that First Nations qualified practitioners deliver services for NIL/TU,O, and to that end it works at building the capacity for First Nations practitioners to be able to do so. Accordingly, in November 2006, all but one of NIL/TU,O s 21 employees were members of the Collective First Nations, including the Executive Director. BCCA Judgment, AR, Vol. I, p. 78 at para. 10; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 132 at para NIL/TU,O receives about 75% of its funding from the federal government and 25% from the provincial government. The money paid to NIL/TU,O by the federal government was formerly paid by it to the provincial government for family and child services for First Nations. BCSC Judgment, AR, Vol. I, pp at para. 5; Mavis Henry Affidavit No. 1, AR, Vol. I, pp at paras. 17 and 21-22

16 Statement of Facts 28. NIL/TU,O operates as an extension of the Band Councils of the Collective First Nations as demonstrated by the following: (a) Each of the Collective First Nations directed that NIL/TU,O would provide child protection and preventative services on behalf of each of them. Mavis Henry Affidavit No. 1, AR, Vol. I, p. 131 at para. 3, and Exhibit B, AR, Vol. I, pp (b) NIL/TU,O s Bylaws require that the Board of Directors of NIL/TU,O be made up of two representatives from each of the Collective First Nations appointed by each First Nation s Chief and Band Council. BCSC Judgment, AR, Vol. I, p. 38 at para. 9; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 131 at para. 5 and Exhibit B, AR, Vol. I, p. 146 (c) NIL/TU,O s Bylaws can only be amended by the Band Councils of the Collective First Nations. Mavis Henry Affidavit No. 1, AR, Vol. I, p. 132 at para. 11 and Exhibit B, AR, Vol. I, p. 152 (d) Membership in NIL/TU,O is limited to the Collective First Nations and their members. Mavis Henry Affidavit No. 1, AR, Vol. I, p. 132 at para. 9 and Exhibit B, AR, Vol. I, pp (e) Representatives of four of the six Collective First Nations must be present at a meeting in order to constitute quorum and meetings are governed pursuant to First Nations traditions relating to consensus. Mavis Henry Affidavit No. 1, AR, Vol. I, p. 132 at paras. 9 and 10 and Exhibit B, AR, Vol. I, p. 141

17 Statement of Facts (f) Elders and youth of the Collective First Nations are represented on the Board of Directors through Director-at-large positions. BCSC Judgment, AR, Vol. I, p. 38 at para. 9; Mavis Henry Affidavit No. 1, AR, Vol. I, p. 131 at para. 5 and Exhibit B, AR, Vol. I, p The offices of NIL/TU,O are situated on reserve lands of the Tsawout First Nation. BCCA Judgment, AR, Vol. I, pp at para. 3, Mavis Henry Affidavit No. 1, AR, Vol. I, p. 132 at para. 12 D. History of Proceedings 30. On March 23, 2006, the British Columbia Labour Relations Board ( BCLRB ) certified the Respondent B.C. Government and Service Employees Union ( BCGEU ) as bargaining agent for the employees of NIL/TU,O. On September 8, 2006, the BCLRB rejected NIL/TU,O s application for reconsideration of that decision and upheld the certification. Decision of Vice Chair Jan O Brien, BCLRB, dated March 23, 2006, AR, Vol. I, pp. 2-21; BCLRB Certification dated March 30, 2006, AR, Vol. I, p. 108; Reconsideration Decision of Brent Mullin, Lisa Southern and Michael Fleming, BCLRB, dated September 8, 2006, AR, Vol. I, pp On July 19, 2007, Mr. Justice Cullen of the Supreme Court of British Columbia quashed the certification granted by the BCLRB. Mr. Justice Cullen applied the functional test set out in Four B Manufacturing Ltd. v. United Garment Workers of America and determined as follows: the whole purpose of NIL/TU,O is to mould child welfare services delegated by the province into a shape which [serves] Indians qua Indians rather than to maintain it as part of a homogenous service applicable to Indian and non-indian alike;

18 Statement of Facts the operations and normal activities of NIL/TU,O, although unarguably serving the ends of the CFCS Act, are doing so by means which address unique First Nations concerns and issues; where as in the present case, the operations and normal activities of an undertaking mirror matters such as medical and health services and education which fall within s. 91(24), and are shaped to deal with issues arising out of the discrete First Nations experience, it follows, under the functional test, that the service assumes a federal dimension despite its genesis in provincial jurisdiction and legislation; and under the functional test, the operation and normal activities of NIL/TU,O are matters falling within s. 91(24) and accordingly, labour relations which pertain to it form an integral part of primary federal jurisdiction over that operation. BCSC Judgment, AR, Vol. I, pp at paras. 74, 79, 81 and 82; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R ( Four B ) (BA, Vol. I, tab 10). 32. On August 27, 2008, the Court of Appeal for British Columbia reversed the decision of the B.C. Supreme Court and reinstated the certification issued by the BCLRB. It found that the core of Indianness for the purposes of s. 91(24) of the Constitution Act, is made up of matters integral to aboriginal or treaty rights, aboriginal culture or Indian status and that NIL/TU,O provided social services that did not fit within this characterization. It rejected what it termed an expansive view of s. 91(24) taken by tribunals and courts in other cases, and held that primary provincial jurisdiction over labour relations is not ousted simply because enterprises engage the interests of aboriginal groups, or provide services in a manner that is culturally sensitive. BCCA Judgment, AR, Vol. I, pp at paras. 60 to 62 1 Constitution Act,1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

19 Statement of Facts 33. NIL/TU,O will be unionized regardless of the outcome of this appeal there will be no legal vacuum. Following the decision of the B.C. Supreme Court, the BCGEU applied to the Canada Industrial Relations Board ( CIRB ) and was certified to represent the employees of NIL/TU,O under the federal Canada Labour Code, R.S.C. 1985, c. L-2 (the CLC ). Subsequent to the decision of the Court of Appeal, the provincial certification issued by the BCLRB was reinstated. Certification, BCLRB, dated March 30, 2006, AR, Vol. I, p. 108; Cancellation of Certification, BCLRB, dated July 19, 2007, AR, Vol. I, p. 122; Certification Order of the CIRB, dated September 28, 2007, AR, Vol. I, pp ; Certification, BCLRB, dated August 29, 2008, AR, Vol. I, pp E. Companion Appeal Native Child and Family Services of Toronto 34. Native Child and Family Services of Toronto ( NCFS ) is a First Nations child and family welfare agency serving the First Nations community in Toronto. NCFS provides its services off-reserve to a clientele that is made up of approximately 70% status Indians with the remaining 30% being of mixed ancestry or Métis. The federal government is not involved in the regulation or governance of NCFS and there are no applicable instruments in place between the federal and provincial governments concerning the society. There is no formal band involvement in NCFS s governance. Native Child and Family Services of Toronto v. Communications, Energy, and Paperworkers Union of Canada, 2008 FCA 338 at paras. 2-4 ( Native Child ) (BA, Vol. I, tab 13). 35. In 2007, the CIRB certified the Communications, Energy and Paperworkers Union of Canada ( CEP ) under the CLC to represent the employees of NCFS. At this time, in an attempt to avoid certification, NCFS contested the CIRB s jurisdiction. NCFS argued that its labour relations were subject to provincial jurisdiction, the opposite position it had taken before the Ontario Labour Relations Board ( OLRB ) some years earlier, where it asserted it was subject to federal jurisdiction. The provincial certification of the Canadian Union of Public Employees by the OLRB was later revoked.

20 Statement of Facts Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, (November 23, 2007) CIRB Letter Decision No (BA, Vol. I, tab 6). 36. NCFS sought judicial review of the decision of the CIRB. In 2008, the Federal Court of Appeal overturned the CIRB s certification of CEP and held that NCFS s labour relations were subject to provincial jurisdiction. Whereas the British Columbia Court of Appeal in the case at bar focussed on the functional test for determining whether labour relations jurisdiction over NIL/T,UO is federal or provincial and, in the context of that test, on the content of s. 91(24) of the Constitution Act, 1867, the Federal Court of Appeal took an entirely different view of the constitutional question before it and the test it had to apply. It stated that in order to determine which level of government has primary legislative authority over the undertaking, it is necessary to consider whether the Child and Family Services Act is immunized from application to First Nations families, treating the question before it as one of interjurisdictional immunity. It held that the doctrine of interjurisdictional immunity did not apply to immunize provincial legislative competence over NCFS, because the application of the Ontario Child and Family Services Act, R.S.O. 1990, c. 11, to NCFS did not impair the core of Indianness. Native Child, supra at paras. 22 to 41 (BA, Vol. I, tab 13). 37. It is not and has never been NIL/TU,O s position that it is immune from the application of the provisions of the British Columbia CFCS Act.

21 Question in issue PART II QUESTION IN ISSUE 38. The constitutional question stated by the Chief Justice in this case is as follows: Is the Labour Relations Code, R.S.B.C. 1996, c. 244, constitutionally applicable to the Appellant in view of Parliament s legislative authority under s. 91(24) of the Constitution Act, 1867? PART III STATEMENT OF ARGUMENT A. Constitutional Principles Raised by These Facts and NIL/TU,O s Position on Them 39. The question raised by this appeal is whether the labour relations of the Appellant are governed by federal or provincial labour legislation. 40. In order to resolve the constitutional question arising on these facts, the Court must: (a) Consider the scope of federal constitutional competence over labour relations; (b) Consider the content of s. 91(24) of the Constitution Act, 1867; and (c) Apply the functional test set out in the authorities to determine what level of government has competence over the Appellant s labour relations by considering the normal and habitual activities of NIL/TU,O as a going concern to determine whether it is an Indian organization within s. 91(24). 41. The jurisdiction of either the federal or provincial government over the labour relations of an enterprise is necessarily exclusive; it is not a subject-area in which concurrent jurisdiction is workable. Labour relations regimes must be mutually exclusive a bargaining unit cannot be both federally and provincially certified and the labour relations of an enterprise cannot be both federally and provincially regulated.

22 Statement of Argument 42. Labour relations is not a listed subject-area of federal or provincial jurisdiction under either s. 91 or s. 92 of the Constitution Act, Labour relations is prima facie a matter within provincial competence as part of provincial jurisdiction over property and civil rights. However, where the entity, undertaking, industry, business, service or enterprise (hereinafter, the enterprise ) is one over which Parliament has exclusive legislative competence, its labour relations will be federally-regulated on the basis that they are an integral part of a listed federal legislative competence under s. 91. Labour relations are an integral aspect of any enterprise and its operation as a going concern and therefore, once exclusive federal competence over the enterprise has been established, federal jurisdiction over the enterprise s labour relations will follow. 43. The question to be answered is logically one of characterization one must first identify the subject-area in s. 91 that constitutes the area of exclusive federal competence and then determine whether the enterprise in question falls within that area of federal competence. Where a court is determining constitutional jurisdiction over an enterprise s labour relations, it applies a functional test: under that test the court determines the function or operations of the enterprise in which its employees are engaged, based on the enterprise s normal and habitual activities as a going concern. Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115 at 132 (BA, Vol. I, tab 16). 44. When applying the functional test in relation to a First Nations enterprise, it is incumbent on the court to consider the function and operations of the enterprise and the extent to which Indianness permeates the operations what is the means by which the function is being carried out and how does that affect the nature of the operations? 45. The British Columbia Court of Appeal took an impoverished view of the scope of s. 91(24) of the Constitution Act, 1867 and thereby fell into error. The content of s. 91(24) of the Constitution Act, 1867 is not limited to matters relating to Indian status such as registrability, membership in a band and the right to participate in Band elections. Section 91(24) plainly encompasses aboriginal and treaty rights preserved by s. 35 of the

23 Statement of Argument Constitution Act, Those s. 35 rights in turn are rooted in First Nations customs and tradition. By providing child and family services to Indians qua Indians and instilling First Nations customs and traditions in the next generation by delivering the services in a First Nations-focussed manner, NIL/TU,O and organizations like it enable that next generation to avail itself of its constitutional rights and to take another step on the path to First Nations self-determination within the Canadian federation. Both its focus on the provision of services to an almost exclusively First Nations population on reserve and its provision of services primarily oriented and directed towards the needs of a First Nations population, incorporating First Nations culture and traditions, result in NIL/TU,O s operations being properly characterized as an integral part of the federal jurisdiction over Indians under s. 91(24) of the Constitution Act, NIL/TU,O is, accordingly, a federal enterprise. That being so, its labour relations fall within federal jurisdiction. B. Wrong Questions and Tests 46. This case is not about an ultra vires provincial law trenching on the core of s. 91(24) by singling out Indians for special treatment, nor is this case about paramountcy of federal legislation in relation to Indians. 47. This case is not about whether other provincial laws of general application, i.e., laws dealing with topics other than collective bargaining and labour relations, apply to NIL/TU,O. The law of interjurisdictional immunity as articulated and applied in that context is therefore not relevant. It is uncontroversial that federal enterprises, including Indian enterprises, must comply with provincial laws of general application, either as a consequence of that doctrine or as a consequence of the application of s. 88 of the Indian Act. Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 at 762 ( Bell Canada 1988 ) (BA, Vol. I, tab 2). 2 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

24 Statement of Argument 48. Accordingly, the application of the CFCS Act is not at issue in this appeal. The Federal Court of Appeal in Native Child asked itself the wrong question when it focussed on the application of the equivalent Ontario child welfare legislation to NCFS and the law of interjurisdictional immunity as it would apply to that question. The Federal Court of Appeal further erred when it found that the union had to establish that NCFS s activities, and the provincial legislation enabling them, impaired the so-called core of Indianness. 49. Unfortunately, erroneous application of the tests arising in each of the constitutional contexts described above to the question of whether an enterprise is properly characterized as federal or provincial for the purpose of determining whether federal or provincial labour legislation applies to it has led to inconsistent and confusing jurisprudence in the lower courts and labour tribunals. C. Federal Competence over Labour Relations 50. This factum will first revisit the constitutional principles giving rise to a limited federal competence over labour relations in specific circumstances and will then consider the content of s. 91(24) of the Constitution Act, Following a review of these underlying principles, this factum will address the application of the functional test generally and in this case specifically. The result of that exercise will demonstrate that NIL/TU,O is a federal enterprise to which the federal labour relations regime contained in the CLC applies. 51. The subject-area of labour relations prima facie falls within provincial jurisdiction under s. 92(13) of the Constitution Act, However, Parliament may assert jurisdiction over the labour relations of an enterprise if it is shown that such jurisdiction is an integral part of its competence over a federal subject-matter listed in s. 91. If the enterprise in question is federal because it falls within an exclusive area of federal legislative competence under s. 91 of the Constitution Act, 1867, its labour relations and internal management must be federally regulated as they cannot be divorced from the enterprise s operation as a going concern or functioning unit.

25 Statement of Argument 52. The seminal explanation of the federal power over labour relations is found in this Court s decision in Reference re Industrial Relations and Disputes Investigation Act: The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion, a vital part of the management and operation of any commercial or industrial undertaking. This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures. Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 at 592 (per Abbott J.) (BA, Vol. II, tab 25). 53. In the trilogy of cases decided in 1988, this Court subsequently elaborated on the scope of the federal constitutional jurisdiction over labour relations in the context of provincial statutes regulating health and safety in the workplace. The Court concluded, consistent with an earlier 1966 decision 3 that the exclusive federal power over federal works or undertakings includes the exclusive power to make laws relating to their management and labour relations. Bell Canada 1988 (BA, Vol. I, tab 2); Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868 (BA, Vol. I, tab 3); Alltrans Express Ltd. v. British Columbia (Workers Compensation Board), [1988] 1 S.C.R. 897 (collectively, the 1988 Trilogy ) (BA, Vol. I, tab 1). 54. In addressing academic criticism of the Court s earlier 1966 decision, Beetz J. in Bell Canada 1988 stated: Martland J. considered that the management of these undertakings and their labour relations are matters which are part of this basic and unassailable minimum, as these matters are essential and vital elements of any undertaking. How is it possible to disagree with this? How can the exclusive power to regulate these undertakings not include at least the exclusive power to make laws relating to their management how can the 3 Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 (BA, Vol. I, tab 5).

26 Statement of Argument exclusive power to legislate as to management of an undertaking not include the equally exclusive power to make laws regarding its labour relations? To deny this, as the critics have done, is to strip the exclusive federal power of its primary content and transform it simply into a power to make ancillary laws connected to a primary power with no real independent content, apart from the power to regulate rates and the availability and quality of services as telephone services or railway services. Bell Canada 1988, supra at (BA, Vol. I, tab 2). 55. In considering the application of provincial labour legislation to works declared to be works for the general advantage of Canada, Mr. Justice LaForest stated in Ontario Hydro v. Ontario (Labour Relations Board): As early as 1899, the Privy Council made it clear that classes of subjects expressly excepted from the enumeration of provincial subjects of provincial legislative power (which of course, includes works subject to a declaration) included the power not only to construct, repair and alter such a work but its management as well (emphasis in original) the legislative jurisdiction conferred over a declared work refers to the work as a going concern or functioning unit, which involves control over its operation or management Labour relations are integral and vital parts of the operation of a work. There is no room for mutual modification of federal and provincial power. A province undoubtedly has power by general legislation to affect the operation of a declared work, but legislation governing labour relations on such works is legislation in relation to that work and falls outside provincial legislative competence Labour relations are an integral part of Parliament s exclusive power to legislate in relation to declared works. Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327 at 363 and 367 ( Ontario Hydro ) (BA, Vol. I, tab 17). 56. Mr. Justice LaForest went on to state at page 368 that the regulation of labour relations in the exercise of a federal power constitutes an exception to the general provincial power to legislate on the matter as property and civil rights in the province.

27 Statement of Argument 57. Section 4 of the CLC is consistent with the constitutional jurisprudence. Part I of that Act, Industrial Relations, applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and employers organizations composed of those employees or employers In Ontario Hydro, the question asked was which labour relations legislation (federal or provincial) applies and which is inapplicable. This, NIL/TU,O submits, is the correct way in which to frame the question as one of applicability. Concurrent labour relations jurisdiction over the same enterprise would be unworkable given that what we are dealing with is the institution and regulation of collective bargaining between employees and their employers. 59. The notion of a union being certified under both the provincial labour code and federal labour code as the exclusive bargaining agent for a group of employees is entirely foreign to Canadian labour law and would be inimical to the rational and orderly regulation of collective bargaining and the employer-union-employee relationship. Both the Labour Relations Code, R.S.B.C. 1996, c. 224, (the LRCBC ) and the CLC contain specific rules and provisions dealing with collective bargaining and labour relations subjectmatters and issues. The rules and provisions on a number of subject-matters and issues differ significantly as between the two Codes. Each Code establishes or continues a tribunal with broad powers and jurisdiction in relation to matters arising under the Code in question. 60. What follows are some examples of the differences between the two regimes and the incongruous and unworkable results that would ensue were unions, employers and employees required to comply with both regimes: (a) Pursuant to s. 18 of the LRCBC, a union may apply for certification for an appropriate bargaining unit if it has 45% support measured by membership cards containing prescribed language. Pursuant to s. 24, a secret ballot vote is required

28 Statement of Argument of all of the employees in the bargaining unit and, in accordance with s. 25, the union is certified if a majority of employees who vote, vote in favour of the union. The process under the CLC is different. In accordance with s. 28 of that statute, a union is certified if it can demonstrate membership support by the signing of a card and payment of dues of at least $5 by 50% or more of the employees in an appropriate unit. A vote is not typically held. As noted above, the notion of a union being certified under both regimes makes no sense and would give rise to intractable jurisdictional issues as between the two statutory tribunals trying to deal with certification issues. (b) Section 65 of the LRCBC has provisions that regulate the location of picketing during a lawful strike or a lockout. If the union were certified under the CLC and both statutory regimes applied, an employer might apply to the BCLRB under the LRCBC for relief against allegedly unlawful picketing. Not only would this give rise to a jurisdictional issue in terms of whether the BCLRB could even hear the application in relation to a federally certified union, the Board would have to wrestle with which rules as to picketing to apply: the more restrictive rules relating to picketing under the LRCBC or the more permissive common law rules relating to picketing that would apply were the matter resolved solely by reference to the CLC. (c) Section 94(3)(ii) of the CLC prohibits an employer from discharging an employee because the employee was expelled or suspended from the union except where the employee was expelled or suspended for failure to pay periodic dues, assessments and initiation fees. Section 95(b) of the CLC prohibits a union from requiring an employer to terminate an employee except for failure to pay periodic dues, assessments and initiation fees. There is no such prohibition in the LRCBC and a union regulated by the LRCBC can lawfully require an employer to dismiss an employee expelled from the union

29 Statement of Argument if membership in the union is a condition of employment stipulated in the collective agreement. If both regimes were to apply, such that a federally regulated employer could be certified provincially, an employee in the bargaining unit might argue that the provisions of the CLC apply to prevent his or her being terminated, despite the fact that the LRCBC would permit the termination. (d) Section 68 of the LRCBC has a strict prohibition against the use of replacement workers during a lawful strike or lockout. Under the provincial regime, an employer is prohibited from utilizing employees during a lawful strike or lockout who have been hired after notice to bargain has been given, who ordinarily work at another of the employer s locations, who are transferred to the location after the earlier of notice to bargain being given or collective bargaining begins or who are supplied by another employer. Section 94(2.1) of the CLC only prohibits the use of persons who were not employees on the date notice to bargain was given and were hired or assigned after that date to perform the work of employees on strike or locked out and then only if the use is for the demonstrated purpose of undermining a union s representational capacity rather than the pursuit of legitimate bargaining objectives. If both statutory regimes applied, and the labour tribunal dealing with the matter chose to apply the more permissive CLC regime to the question of the employer s decision to use replacement workers, the policy reflected in the provincial regime would be nullified. (e) Section 60 of the LRCBC allows a strike to commence at any time within three months immediately following a strike vote. Section 87.1 of the CLC prohibits a union from authorizing or declaring a strike unless the strike vote was held within 60 days of the strike commencing.

30 Statement of Argument D. Decision in Canadian Western Bank Does Not Overrule the Body of Jurisprudence Explaining the Federal Labour Relations Jurisdiction 61. In Native Child, the Federal Court of Appeal specifically referenced this Court s decision in Canadian Western Bank v. Alberta, and the changes that decision made to the law of interjurisdictional immunity, substituting an impairment test for the requirement that the provincial law affect a vital or essential part of the federal undertaking. The Federal Court of Appeal asserted that it was approaching the issue before it with the framework set out in the Canadian Western Bank case in mind. Native Child, supra at paras , 31-33; Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 ( Canadian Western Bank ) (BA, Vol. I, tab 13). 62. NIL/TU,O submits that the approach taken by the Federal Court of Appeal in Native Child evinces a fundamental misunderstanding of this Court s decision in Canadian Western Bank. In making changes to the law of interjurisdictional immunity in the context of provincial laws of general application that might apply to federal enterprises, this Court did not overrule the test for determining constitutional jurisdiction over the labour relations and management of an enterprise set out in its earlier decisions. At paragraphs 52, 62 and 63 of Canadian Western Bank, the majority acknowledged that the 1988 Trilogy, and the broader body of cases to which they belong, were cases deciding that management is an absolutely indispensable and necessary element of federal jurisdiction, and as such were unhelpful to the point the Bank was trying to make. 63. Interjurisdictional immunity still operates to protect that which makes certain works or undertakings, things (e.g., Aboriginal lands) or persons (e.g., Aboriginal peoples and corporations created by the federal Crown) specifically of federal jurisdiction.. Canadian Western Bank, supra at para. 41 (BA, Vol. I, tab 4). 64. Unless this Court intended in Canadian Western Bank to overturn the 1988 Trilogy, the change to the law of interjurisdictional immunity is not relevant to the facts at bar