Morrison v. Mitaanjigamiing First Nation, 2017 HRTO 1685

Human Rights Tribunal of Ontario

BETWEEN:

Deborah Morrison Applicant

-and-

Mitaanjigamiing First Nation Chief and Council Respondents

DECISION

Adjudicator: Yasmeena Mohamed Date: December 20, 2017 Citation: 2017 HRTO 1685 Indexed as: Morrison v. Mitaanjigamiing First Nation

APPEARANCES

Deborah Morrison, Applicant Tony Morelli, Next Friend

Mitaanjigamiing First Nation Chief and Council, Respondents Bradley A. Smith, Counsel

1This Application alleges discrimination with respect to contracts and employment because of creed, 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 with the corporate respondent, Mitaanjigamiing First Nation (“MFN”), the respondents prevented her from participating in a meeting of a Consultation Committee of which she had been a member.

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 contract and employment.

4By Case Assessment Direction (“CAD”), dated January 27, 2017, and May 19, 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

6The following 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.

8MFN is located on lands reserved for MFN members and has a registered membership of approximately 140 members living on and off the MFN reservation. The applicant is a registered member of the MFN, residing on the MFN reservation.

9MFN is responsible for the governance and administration of the reservation 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.

10MFN is governed by an elected Chief and two Council members. The Chief and Council members manage the reserve lands and funding and they also represent and advocate on behalf of MFN’s members with all levels of government (municipal, provincial and federal), including private citizens and corporations.

11The Consultation Committee (“Committee”) is one of eight committees established by MFN. The Committee is composed of the members of the community and the personal respondents. The Committee is an integral part of MFN and its purpose and function is to maintain and promote a harmonious working relationship between the Chief, Council and MFN members, to discuss issues relating to the Band and the services provided by the respondents. The Committee was also established to provide a forum for the MFN to exchange information with MFN members about issues relating to the Band and management of the reserve.

12The respondents submit the Committee meets exclusively on reserve land and the appointment to the Committee is a political appointment. The respondents submit that the applicant’s allegations refer to the alleged denial of participation in a political process. This process was established by MFN and therefore falls under federal jurisdiction and the Tribunal has no jurisdiction to deal with this Application.

13The applicant alleges that the Tribunal has jurisdiction because the respondents’ conduct relates to her employment status, which falls under provincial jurisdiction. The applicant alleges that the respondents prevented her from participating in the Committee meeting after she was terminated from her employment and continued to attack her dignity and integrity and isolate her from her community with messages of hate.

Analysis and Law

14Under 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.

15Labour 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.

16First 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 Indians” as relating to matters that go to the status and rights of “Indians”. See NIL/TU,O at para. 70.

17MFN is a Band involved in the governance of its members and its reserved lands. The Committee is one of several committees established by MFN in pursuance of its mandate to govern its members and its reserved lands. It was not disputed that the function of the Committee is to promote a harmonious relationship between MFN and its members and to create a forum by which MFN and its members can exchange information about MFN’s activities in relation to the implementation of its mandate. It was not disputed that the applicant’s membership in the Committee was by political appointment and not by virtue of her former employment relationship with MFN.

18I find that the nature, operations and habitual activities of the Committee and the MFN are to deal with First Nations governance which falls squarely within the federal power over “Indians and land reserved for Indians”. For all the above reasons, I conclude that the Application falls under federal jurisdiction.

Order

19The Application is dismissed.