Morrison v. Mitaanjigamiing First Nation, 2017 HRTO 1684

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Morrison

Applicant

-and-

Mitaanjigamiing First Nation, Chief Janice Henderson and Councillor Bev Cochrane

Respondents

DECISION

Adjudicator: Yasmeena Mohamed Date: December 20, 2017 Citation: 2017 HRTO 1684 Indexed as: Morrison v. Mitaanjigamiing First Nation

APPEARANCES

Deborah Morrison, Applicant

Tony Morelli, Next Friend

Mitaanjigamiing First Nation, Chief Janice Henderson and Councillor Bev Cochrane, Respondents

Bradley A. Smith, Counsel

1This Application alleges discrimination with respect to contracts and vocational association because of race, ethnic origin, reprisal and threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Specifically, the applicant alleges that, following her termination from employment, the respondents removed her as a member of the Board of Directors of the Fort Francis Tribal Area Health Services (“FFTAHS”). The applicant further alleges that the respondents denied her daughter a position with the corporate respondent, Mitaanjigamiing First Nation (“MFN”), as a reprisal for filing the Application. The applicant alleges that the respondents are de-valuing her status as an Indian and/or her "indianess", her race and ethnic origin and isolating her from her MFN community.

3In response, the respondents submit that the Application should be dismissed because it falls under federal jurisdiction. The respondents further submit that the Application does not fall under the social areas of contracts and vocational association.

4By Case Assessment Direction (“CAD”) dated January 27, 2017, the Tribunal directed a summary hearing to be held to address the following preliminary issues:

a. Should the Application be dismissed because it is outside this Tribunal’s jurisdiction?

b. Should the Application be dismissed pursuant to Rule19A of the Tribunal’s Rules of Procedure because there is no reasonable prospect that the Application will succeed?

5The summary hearing proceeded on August 16, 2017. Having heard the oral submissions from the parties and reviewed their written submissions, I dismiss this Application on the basis that the matter falls within exclusive federal jurisdiction.

Background Facts

6The following background facts have not been disputed by the applicant.

7MFN is a Band as defined in section 2 of the Indian Act, R.S.C.1985, c. I-5. MFN is a member of the Grand Council of Treaty 3, an organization that protects, preserves and enhances treaty and Aboriginal rights.

8The personal respondent, Chief Janice Henderson (“Henderson”), is the elected Chief of the MFN

9The personal respondent, Councillor Bev Cochrane (“Cochrane”), is an elected Council Member of MFN.

10MFN is located on lands reserved for MFN members and has a registered membership of approximately 140 members living on and off the MFN reserve. The applicant is a registered member of the MFN, residing on the MFN reserve

11MFN is responsible for the governance and administration of the reserve and it provides a multitude of services to its members. In particular, it provides the following services: finance and administration, education, economic development, social services, Ganawendaasowin Family Services, health services, maintenance and operations, consultation coordinator, Health Babies Healthy Children, Aboriginal Healing and Wellness, Capital Projects Director, housing, addiction counselling, water treatment operation and land claims negotiation.

12MFN is governed by an elected Chief and two Council members. The Chief and the Council members have by-law making authority. They manage the reserve’s lands and funding and they represent and advocate on behalf of MFN members with all levels of government (municipal, provincial and federal), including private citizens and corporations.

13FFTAHS is a charitable corporation incorporated pursuant to the laws of the province of Ontario. It was created to promote the health of First Nations people, address and prevent specific problems faced by First Nations people and advance education regarding physical, mental health and social issues affecting First Nations people. It is fully funded by the federal government

14The members of the FFTAHS are the 10 First Nations in the Rainy River Area. MFN is one of the 10 First Nations members of the FFTAHS. Each First Nations member appoints a member to represent it on the Board of Directors of the FFTAHS. A First Nation’s participation in the FFTAHS is mandated under its authority to oversee health and education of its members.

15The applicant was appointed by MFN to be its representative on the Board of Directors of FFTAHS. The applicant’s appointment was by way of a Band Council resolution. The applicant reported to the personal respondents regarding any issues raised and discussed at the FFTAHS meetings.

16The respondents submit the applicant’s allegations essentially relate to her status as an Indian, her “indianess”, the meaning and definition of being Indian and the Ojibwa race. The respondents submit that these allegations go to status of the being Indian and therefore fall under federal jurisdiction.

17The applicant alleges that the Tribunal has jurisdiction because FFFTAH is a provincial undertaking and because she challenged the respondents’ way of conducting business and their attack on her indianess and ethnic origin.

Analysis and Law

18Under s.91 (24) of the Constitution Act, 1867, exclusive jurisdiction over “Indians and lands reserved for the Indians” is conferred on the federal Parliament. The Tribunal cannot consider human rights complaints that arise in the context of employment with a federal undertaking.

19Labour and employment relations are presumptively within provincial constitutional jurisdiction. In NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”), the Supreme Court of Canada set out a test for determining whether that presumption is displaced and the labour relations of an employer fall within federal jurisdiction. The first step is to apply a functional test in order to determine whether the nature, operations and habitual activities of the employer are such that it constitutes a federal undertaking. If it is clearly the case that the employer is a federal undertaking then its labour relations will be federally-regulated. The Court said that if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation of the employer’s labour relations "would impair the core of the federal head of power at issue.” See NIL/TU,O paragraph 18.

20First Nations governance is integrally linked to the jurisdiction of the federal government. In NIL/TU,O the Court explained the federal government’s power to make laws for “Indians and lands reserved for the Indians” as relating to matters that go to the status and rights of “Indians”. See para. 70 of NIL/TU,O.

21MFN is a Band involved in the governance of its members and the reserved lands. MFN is a member of the FFTAHS as part of its mandate to govern and oversee the health and education of its members. MFN appoints a member to represent its interest at FFTAHS. The applicant filed this Application against MFN, not the FFTAHS. It was the MFN that made the decision to appoint and remove her from the FFTAHS Board. This was a Band decision that falls within the purview of its function to govern its members, which falls squarely within the federal power over “Indians and Lands Reserved for the Indians”.

22With respect to the applicant’s allegations that the respondents are challenging her indianess, her status as an Indian or her status within the MFN community, I find that it falls under federal jurisdiction because it goes to the status and right of Indians. See para. 70 of NIL/TU,O.

23With respect to the applicant’s allegations that the respondents denied her daughter a position with MFN, I find that the applicant has no standing to make this claim and therefore it is dismissed.

24For the above reasons, I conclude that the corporate respondent is a federal undertaking and the personal respondents were at all relevant times engaged in a federal undertaking. Accordingly, the Application is dismissed for lack of jurisdiction.

order

25The Application is dismissed.