Name of Case: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union

Status: Argued December 8, 2009. Judgment reserved.

Judgment under Appeal: Judgment of the British Columbia Court of Appeal dated August 27, 2008

Facts: The NIL/TU,O Child and Family Services Society was provincially incorporated by a number of First Nations on southern Vancouver Island to create and maintain a child welfare and family service agency for First Nations children "in keeping with the culture, traditions and teachings of the Collective Tribes." It operates under delegated authority from the provincial ministry under the Child, Family and Community Service Act, pursuant to a Delegation Confirmation Agreement with the federal and B.C. governments. All of the Society's services are provided to children who are registered Indians, and the vast majority of its services are provided on reserve lands. An appendix to the Delegation Confirmation Agreement, the "Aboriginal Operational and Practice Standards and Indicators," specifically recognizes the unique circumstances of aboriginal children, in such matters as preserving their identity and providing culturally appropriate services, but most of the standards are of a nature that would be applicable to the provision of services to any children.

When the B.C. Government and Service Employees' Union applied to the provincial Labour Relations Board for certification for a bargaining unit representing the Society's employees, the Society objected that its functions falls within federal jurisdiction in relation to "Indians" pursuant to s.91(24) of the Constitution Act, 1867. The union argued that the issue concerned a matter of labour relations which fall within s.92(13) of the Act in relation to "Civil Rights in the Province."

Case History: In a March 2006 decision, the B.C. Labour Relations Board held that it had jurisdiction, concluding that "the [Labour Relations] Code touches the First Nations persons involved with the Society as ordinary employees and employers in a way that does not intrude on their First Nations' character, identity or relationships. When provincial legislation only affects Indian organizations and the Indian persons associated with the organization in this way, the labour relations of the organization remains within provincial jurisdiction." A week later, it certified the union. In September 2006, a three-member Reconsideration Panel upheld the original decision.

In 2007, a judge of the British Columbia Supreme Court granted the Society's application for judicial review, holding that "the whole purpose of NIL/TU,O is to mould child welfare services delegated by the province into a shape which serve[s] Indians qua Indians rather than to maintain it as part of a homogeneous service applicable to Indian and non-Indian alike... 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."

In an August 27, 2008 decision, [2008] B.C.J. No. 1611 (QL), the British Columbia Court of Appeal quashed the lower court judge's ruling, and reinstated the Board's determination that it had jurisdiction. Writing the unanimous decision of a three-member panel of the Court, Justice Harvey Groberman held that "[t]he courts have often described this primary federal competence [under s.91(24)] as consisting of matters going to 'Indianness'... While that expression seems a bit awkward today, it has some legal pedigree. There has been considerable judicial discussion of the scope of federal jurisdiction over First Nations in recent years, and the phrase 'the core of Indianness' has come to have a fairly well-defined meaning."

Justice Groberman concluded on behalf of the Court that "[t]he Constitution of Canada should be interpreted as encouraging, not prohibiting, cultural sensitivity in the administration of provincial statutes, including cultural sensitivity to First Nations... Provincial jurisdiction over a matter is not lost whenever a province attempts to enact or apply its laws in a manner sensitive to the interests of First Nations. Nothing in the Child, Family and Community Service Act, the Delegation Confirmation Agreement, or in the manner in which delegated services are provided by the Society takes those services outside of provincial jurisdiction."

The Society applied for leave to appeal to the Supreme Court of Canada.

Issue(s): Does the British Columbia Labour Relations Board or the Canada Industrial Relations Board have jurisdiction over certification of a union as bargaining agent for employees of a social agency that provides child and family services to First Nations children under delegated authority from the provincial Ministry for Child and Family Development?

Lancaster Reference: For analysis of the lower court and B.C. Labour Relations Board decisions, see Lancaster's Labour Law E-Bulletin, April 27, 2009, Issue No. 234.

Court of Appeal Decision: http://onlinedb.lancasterhouse.com/images/up-BCCA_NILTU.pdf