Ontario Labour Relations Board
[1980] OLRB Rep. September 1304
File No.: 2091-79-R Ontario Public Service Employees Union, Applicant v. Ontario Metis and NonStatus Indian Association, Respondent, v. Group of Employees, Objectors.
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members C. G. Bourne and M. J. Fenwick.
APPEARANCES: Chris G. Paliare and Pauline Anidjar for the applicant; John Keefe for the respondent; no one appearing for the objectors.
DECISION OF THE BOARD:
1This is an application for certification, which raises a question concerning the applicability of The Labour Relations Act to the employees of a "non-status" Indian Association. The respondent argues that many of its members and employees are "Indians", that its activities are undertaken in relation to a matter of federal concern, and that consequently its employer-employee relationships are subject to regulation only by the Federal parliament. The respondent concedes (as its name suggests) that its membership is not composed of "Indians" within the meaning of the Indian Act, R.S.C. 1970, c. 1-6, as amended; nor are the beneficiaries of its activities, necessarily, or exclusively, "non-status Indians" or persons of native ancestry. The respondent argues however, that its primary purpose is the economic betterment of persons of native ancestry who have been excluded from the Indian Act, and that, accordingly, its functions place it in the federal jurisdiction. It will be observed that the respondent's position involves two related propositions: that it is an organization of "Indians" within the meaning of section 91(24) of The British North America Act (although not within the meaning of the Indian Act); and that its economic activities are of a "federal character" so that its employer-employee relationships cannot be regulated by provincial legislation.
I
2The Ontario Metis and Non-Status Indian Association (hereinafter referred to as "the Association") was incorporated pursuant to the provisions of The Corporations Act, R.S.O. 1970, c. 89, by letters patent dated June 1, 1971, as a charitable corporation without share capital. The objects set out in the letters patent are as follows:
"(a) To carry out programmes consistent with those of a charitable organization for the advancement of the level of education, training and opportunity, and for the relief of poverty among the Metis and non-status Indians of Ontario;
(b) To bring together isolated Metis and non-status Indian organizations so that they can have more strength in unity;
(c) To develop the social and economic needs of the Metis and non-status Indians of Ontario;"
The Association is a non-profit service organization similar to a service club which runs programmes primarily for the social, educational, and economic advancement of persons of native ancestry who are not recognized as "full status Indians" and do not enjoy the benefits of the Indian Act. The Association's aims and objects are listed in its constitution and by-laws as follows:
"a) to carry out programs consistent with those of a charitable non-profit organization for the social, cultural, education and economic advancement of the Metis and Non-Status Indian people of Ontario.
b) to inform the general public of Ontario of the aims and objects of the Association and to secure the co-operation of the non-native community in our struggle for identity and recognition in Canadian society.
c) to assist Metis and Non-Status Indian people of Ontario to organize at the local level, to affiliate with the Association for the purposes of actively participating in the development of their communities.
d) specifically to engage, as an Association, in programs designed to assist in furthering the education opportunities and employment opportunities of the Metis and Non-Status Indians of Ontario and wherever possible to obtain or raise funds from any sources for these purposes.
e) to develop and operate in conjunction with federal, provincial and municipal agencies a housing program designed to provide safe, healthy, adequate shelter for the native people of Ontario.
f) to co-operate with all other native organizations whose aims and objects are similar to those of the Association.
g) generally, to assist in the improvement of existing programs and services and to develop new programs and services designed to meet the special needs of the native people of Ontario."
3Any resident of the Province of Ontario who is eighteen years or over, who is of native ancestry, and who is not a registered Indian within the meaning of the Indian Act, is eligible for full membership in the Association. The spouse of any such person (whether or not he/she is of native ancestry) is also eligible for full membership. In addition, any interested person who supports the aims and objects of the Association, may become an associate member upon payment of the prescribed fees. Any group of twelve or more persons qualified for full membership, and residing in Ontario, may form a local association which can become affiliated with the respondent. For administrative and organizational purposes, the Province of Ontario is divided in five geographic zones. The Association is managed by a Board of Directors, and an executive committee elected by local association delegates. The general policy of the Association is set by a general assembly of delegates which meets at least once a year.
4The Association operates solely within Ontario although it is affiliated with the Native Council of Canada — "an umbrella organization" of Metis, Status and Non-Status Indian groups operating on a nation wide basis. Membership in the Native Council of Canada is voluntary. The Association of Metis and Non-Status Indians of Saskatchewan, and the Manitoba Metis Federation, are not member of the N.C.C..
5In addition to its general organizational and lobbying functions, the respondent is involved in a number of specific projects which are independently funded and are supervised by the Association's Board of Directors and Executive Committee. The individuals who are subject of this certification application are employed by the Association on these projects. There are fifty-three employees in the bargaining unit which the parties have agreed is appropriate for collective bargaining. Of these fifty-three employees, thirty are of native ancestry and two are "full-status" Indians. When the total employee complement is considered (i.e. including both managerial and non-managerial employees,) it is evident that about sixty per cent of the employees are of native ancestry; however, there are non-native people in every department, and many of the managerial personnel are non-native.
6The respondent filed with the Board a list of some of the projects currently being operated by the Association. These include,
"1. The investigation and documentation of aboriginal land claims.
The provision of new housing for rural and native persons with low incomes.
An Outreach programme designed to bring employment services to native persons (status and non-status) unable to take advantage of conventional assistance.
The development and evaluation of a policy for the economic development of the Metis and Non-Status Indian people of Ontario.
The publication of a bi-monthly magazine addressing matters of concern to the Metis and Non-Status Indian Community of Ontario.
The development of Community Recreation Programmes.
The development of Community Education Programmes."
The persons who receive the benefits of these programmes are not exclusively individuals of native ancestry. The housing project for example, assists both native and non-native persons. The respondents' employees help rural and native people with low income to form housing societies which can obtain financial assistance from the Central Mortgage and Housing Corporation; however, many of these societies have non-native members. Similarly, the community recreation programmes established by the Association and run by its employees and volunteers, are frequently open to members of the general community. Of the approximately twenty-three projects involved in the Association's recreation programme, the applicant listed at least twelve which permit or encourage access and participation by non-native persons.
7The "core funding" for the Association (i.e. funds for its organizational, administrative and operating costs) are supplied by the Federal government pursuant to an agreement which expires in 1982. Budgets are submitted annually, and the Association is required to submit annual financial statements in a prescribed form. The Association also receives some funds from the Ontario government.
8Projects are funded on an individual basis by the relevant Federal or Provincial government department. These departments are seldom exclusively, or even primarily, concerned with the rights, interests or problems of native people. The education programme is financed by the Provincial Ministry of Education. The recreation programmes are financed by the Sports and Fitness Branch of the Secretary of State. "Dimensions Magazine" receives support from the Communications Branch of the Secretary of State, and the Native Communities Branch of the Provincial Ministry of Culture and Recreation. The "Outreach Programme" is conducted by the Federal Ministry of Employment and Immigration and is intended to improve the employability of individuals who experience special difficulties competing in the labour market. It is not directed solely at native people. The Federal Ministry of Employment and Immigration also supports economic projects under its "Local Employment Assistance" programme. Housing projects are funded by the Central Mortgage and Housing Corporation as part of its rural and native housing programme. Research into Indian lands claims is financed by Indian and Northern Affairs Canada.
9Many of the Association's employees, and members, and many of the individuals benefiting from its activities, are persons of "mixed blood" or mixed native and non-native ancestry. However, except for the employee complement, there is no evidence before the Board concerning the precise proportion of non-native members or beneficiaries; nor, with respect to those who can claim some degree of affinity with native ancestors, was there any evidence concerning the strength of that connection. It is evident that, over time, successive inter-racial marriage can weaken the racial link or claim to full Indian status, and like all family or blood relationships, the affinity to a particular ancestor is a matter of degree. Some relatives are "closer" than others.
II
10The first question which must be addressed is whether the respondent's membership, or the persons to whom it provides its services, can be regarded, at least predominately, as "Indians". The respondent contends that there are, and that this is what gives the organization its "federal character". The problem (apart from the evidentiary difficulty to which we have already referred) is that there is little authority other than the Indian Act itself to assist the Board in resolving this issue. The question which must be determined is whether these individuals are "Indians" within the meaning of The British North America Act — not "Indians" as defined in the Indian Act. The fact that Parliament has not legislated in respect of the Metis or Non-Status Indians, does not conclusively determine their Indian status. On the other hand, The British North America Act invests Parliament with jurisdiction over Indians as a class of protected individuals or special wards of the state, and the Board should not lightly conclude that that class is much larger than that specified in the Indian Act. If Parliament has not accorded these individuals Indian status, and has not sought to regulate matters which may touch their "Indianness", how, asks the union, can the Board conclude that the respondent's employer-employee relationships — matters irrelevant to Indian status or "Indianness" — are subject to federal regulation? In any event, contends the union, even if the respondent's members and the persons whom it assists are predominately Indians, The Labour Relations Act of Ontario applies because it is a provincial statute of general application which does not single out Indians, does not purport to regulate Indians qua Indians, and is not superseded by any paramount federal legislation.
11The Supreme Court of Canada dealt with the term "Indian" in Re Eskimos, 1939 CanLII 22 (SCC), [1939] S.C.R. 104; [1939] 2 D.L.R. 417 — a case which is of interest chiefly because it illustrates the method by which the meaning of the term "Indian" should be ascertained. Re Eskimos involved a controversy between the Dominion and the Province of Quebec, concerning the status of Eskimos residing in the province, and the Court was asked to determine whether those Eskimos could be considered "Indians" within the meaning of section 91(24) of The British North America Act. The Court decided that in order to answer that question, it had to consult historical materials and determine whether in 1867 the Eskimos who were living in what was then Rupert's Land and the Northwest Territories, would have been regarded as "Indians". This inquiry involved a perusal of 18th and 19th century documents including: aboriginal maps of North America, early documents of the Hudson's Bay Company which had been laid before an investigating committee of the British House of Commons in 1856-57, and reports from missionaries, clergymen, colonial and local officials. On the basis of this historical evidence, the Court concluded that the term "Indians" was synonymous with "Aborigines" (or perhaps "Savages") and that Eskimos were properly classified under the generic term "Indian".
12In Re Eskimos, of course the Court was dealing with a group of full-blooded aboriginal people, and was not concerned, as we are, with persons of mixed blood whose connection with unequivocal Indian status has been weakened by intermarriage or historical circumstances. The case is helpful therefore chiefly for the proposition relied upon by the respondent: that the term "Indian" in The British North America Act may be broader than that prescribed in the Indian Act (which now excludes Eskimos and Indian women who marry non-Indian men, but includes, as Indians, non-Indian women who marry Indian men). It is interesting to note however that almost all of the documents to which the Court referred distinguished between "Indians" or "Aborigines", and "half Indians", "half-breeds", or persons of "mixed race” or "mixed blood" who were not apparently regarded as Indians. The 1857 Hudson's Bay Company census, upon which both Duff, C.J.C. and Kirwin, J. relied, placed both whites and "half-breeds" in the same category, and excluded them from the list of the Indian races. Re Eskimos therefore, confirms the respondent's position, but at the same time raises some doubt whether Metis or other persons of mixed blood should automatically be regarded as Indians — at least in the absence of affirmative evidence that they were so regarded by the Imperial Parliament in 1867.
13A perusal of the statutes respecting Indians and Indians lands which were enacted immediately before, and after Confederation does little to clarify the issue before us. All of these statutes have Indians as their primary focus, but many of them extend benefits to persons who are not Indians in the strict sense or, for legislative purposes, define the term "Indian" in a manner unlike that of the present Indian Act. (See for example: An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, S.C. 1850, c. 42, Section 5; or An Act for the Gradual Enfranchisement of Indian, the Better Management of Indian Affairs, and to Extend the Provisions of the Act, S.C. 1869, c. 6 which, inter alia, denied Indian status to an Indian woman marrying a non-Indian, and provided that annuity money in respect of designated Indian lands, would not be paid to any person with less than one-fourth Indian blood). The language of these various statutes clearly recognizes a distinction between Indians and non-Indians but frequently purports to affect the rights of both — if only by definition. The respondent argues that since The British North America Act confers a grant of legislative jurisdiction by reference to a racial classification, the powers of the Dominion Parliament must be broad enough to embrace the rights of, non-Indian spouses, persons of mixed blood, and so on. To this argument the union makes the same reply: how can the respondent's labour relations form an integral part of primary federal jurisdiction over Indians and lands reserved for Indians, when for many years Parliament has denied that Metis or other persons of mixed blood are entitled to Indian status and has not accorded them the rights, privileges and protection of the Indian Act? Indeed, the very existence of the respondent evidences the historical distinction drawn between Indians who were wards of the Federal Parliament and entitled to special status, and non-status Indians or other persons of mixed blood who were treated as ordinary citizens. One of the objectives of the respondent Association is to persuade the Federal Parliament to eliminate this historical distinction.
14In view of the definition of "Indian" in the Indian Act and the long-standing historical distinction between "Indians" and "Metis" or persons of mixed blood; and in the absence of any historical evidence to demonstrate that the Imperial Parliament in 1867 regarded Metis or "half-breeds" as "Indians", the Board cannot conclude that the respondent's members or beneficiaries are "Indians" within the meaning of section 91(24) of The British North America Act. To accept the respondent's contention in the absence of historical evidence, would be to find that a mere assertion of Indian status is enough to establish it as a fact —and this result seems inconsistent even with the Indian Act itself which contains an elaborate mechanism for the determination of status, registration and appeal. However, even if the respondent's members and beneficiaries are Indians, we have concluded that the respondent's employer-employee relationships are subject to provincial regulation.
III
15The factual context and the issues raised in the present case appear to be unique. None of the cases to which we were referred deal with the rights of "non-status Indians"; nor is there any consideration of the application of provincial law to a social service institution unconnected with reserve lands and unrelated to "Indians" as defined in the Indian Act. It would seem that non-status persons of Native ancestry have been treated in the same way as ordinary citizens, and we were unable to find any authority for according them different rights, or exempting them or their organizations from provincial laws of general application. In view of the novelty of the issue however, it may be useful to briefly review the extent of provincial jurisdiction over Indians and refer to several cases dealing with federal authority over what would otherwise be a matter within provincial competence. Professor Hogg's statement of general principles provides a useful starting point. At page 387 of his Constitutional Law of Canada (Carswell, 1977) he remarks:
"To what extent are provincial laws applicable to Indians and lands reserved for Indians? On principle, it seems obvious that the provincial Legislatures have the power to make their laws applicable to Indians and on Indian reserves so long as the law is a law in relation to a provincial head of legislative power. It would be astonishing if the provinces lacked the constitutional power to make applicable to Indians and on reserves laws such as that making drivers drive on the right-hand side of the road, or confining the practice of medicine to qualified physicians, or imposing standards of construction for residential housing. The situation of the Indians and of Indian reserves should not be any different from that of aliens, banks, federally-incorporated companies, and interprovincial undertakings. These, too, are subjects of federal legislative power, but they still have to pay provincial taxes, and obey provincial traffic laws, health and safety requirements, social and economic regulations and the myriad of other provincial laws which apply to them in common with other similarly situated residents of the province.
There are three qualifications to this basic proposition: (1) a provincial law which "singles out" a federal subject for special treatment runs the risk of being classified as in relation to the federal subject and therefore being held unconstitutional: p. 82, above; (2) a provincial law which impairs the status or essential powers of a federal subject is inapplicable to that federal subject: p. 92, above: and (3) a provincial law which is inconsistent with a federal law is inoperative by virtue of federal paramountcy;"
16The cases to which we were referred fall into two broad categories: cases in which provincial legislation purported to regulate Indians only as persons residing in the province but in so doing allegedly affected their Indian status; and cases specifically involving employer-employee relationships in which provincial jurisdiction turned on the economic functions of the employing entity and whether those functions could properly be regarded as of a federal character such that the organization could be considered a "federal" work, undertaking, or business. The former cases focus on the impact of provincial legislation on individuals as Indian persons in respect of their "Indianness". The latter cases focus on the character of the employer, and are based on the premise that federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object. In our view, neither approach supports the respondent's contention that regulation of its employer-employee relationships, is beyond the jurisdiction of the provincial Legislature.
17The leading case concerning the intrusion of provincial legislation upon the status of Indians qua Indians, is Natural Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC), [1976] 2 S.C.R. 751. In that case the Supreme Court of Canada was called upon to determine whether provincial adoption laws could be applied to the adoption of a status Indian child by parents who did not have Indian status. The case involved "Indians" and "Indianness" in a personal sense; that is intimate, personal and family relationships, and the status of Indian children as defined by the Indian Act. The case was not concerned with the economic, commercial, organizational or institutional activity of a group, band or tribe and in this sense, the focus in Natural Parents was quite different from that in the present case.
18Four of the learned judges, including the Chief Justice, were of the view that the original family was the essence of Indian status and that the application of The Adoption Act to the adoption of Registered Indian children would touch their "Indianness" and strike at a relationship integral to a matter outside provincial competence. Accordingly, provincial legislation of general application would not apply to Indians unless "the inclusion of Indians within the scope of the provincial legislation touches them as ordinary citizens and in a way that does not intrude on their Indian character or their Indian identity and relationship". The application of provincial legislation was dependent upon section 88 of the Indian Act (which purports to incorporate by reference provincial laws of general application which are not inconsistent with federal law). On the other hand, three judges concluded that the adoption legislation was applicable of its own force in the absence of paramount federal legislation. Ritchie J., in a separate judgment, agreed that the legislation operated of its own force, and expressed the view that the impugned provincial legislation did not alter the status, rights privileges, disabilities or limitations acquired as an Indian under the Indian Act. The adoption legislation touched Indians as ordinary citizens and was not in conflict with the Indian Act.
19Natural Parents, as we have already pointed out, was concerned with the rights, privileges and status of Indians as individuals or protected "federal persons"; it did not deal with Indian institutions or economic, social or political activities (let alone those of "Non-Status Indians"). It might be noted however that, despite the diverse views expressed by the various members of the Court, none of the learned judges dealt with Indian status in the abstract. All of them were concerned with the loss of status as defined by the Indian Act, or a conflict between provincial legislation and the Indian Act. In all cases, the foundation for the analysis was the rights accorded to Indians under the Indian Act. In the present case there is no conflict with the Indian Act and it is difficult to discern any relationship between the right of the respondent's employees to engage in collective bargaining and the Indian status identity or family relationships of its employees, members, or beneficiaries.
IV
20From a constitutional perspective, collective bargaining is a derivative relationship and the propriety of federal regulation turns upon the character, operations, or functions of the enterprise rather than the status of its principals, or customers. A federally incorporated company, for example, is a "federal person", but this does not mean that its employer-employee relations are subject to federal legislative jurisdiction. Similarly, an alien employer is not automatically within federal jurisdiction, nor is a business which supplies goods or services to aliens. Two cases dealing with "Indian enterprises" will illustrate different aspects of this proposition.
21In Lawrence Francis et al v. Canada Labour Relations Board et al (decision of the Federal Court of Appeal released May 30, 1980 as yet unreported) the Court was called upon to consider, inter alia, the application of the Canada Labour Code to the employees of the St. Regis Indian Reserve. The lands of the reserve are situated in both Ontario and Quebec and its affairs are run by a Band Council. The authority of the Band Council is governmental in nature and is exercised pursuant to the Indian Act. The employees in question were employed by the Band Council as "civil servants" and were engaged in various activities on the reserve including: the administration of Indian lands and estates, housing, welfare services, the maintenance of roads and schools, garbage collection, etc. Because of the powers given to the Band Council under the Indian Act, and its authority to direct the administration of the Band and the reserve, the Court found, that its employer-employee relationships were an integral part of primary federal jurisdiction over Indians and lands reserved for Indians. In the present case there is no connection with Indian land or rights associated with residing on an Indian reserve; nor is there any connection with an Indian Band or its governance, or the exercise of any authority prescribed by the Indian Act. The respondent is merely a private social organization formed to provide social and economic assistance to a class of persons not recognized as Indians by the Indian Act.
22A contrasting case is Four B Manufacturing Limited v. United Garment Workers of America et al (1980), 1979 CanLII 11 (SCC), 102 D.L.R. (3rd) 385 in which the Court reaffirmed that labour relations was a matter within exclusive provincial jurisdiction except in the case of "undertakings, services, and businesses which, having regard to the functional test of the nature of their operations, and their normal activities, can be characterized as federal undertakings, services, or businesses" (per Beetz J. at page 395). That case involved a private company owned by Indians, operating on an Indian reserve pursuant to a permit issued by the Band Council under the authority of the Indian Act, employing primarily Indians, supported by federal subsidies, and supporting the general economy of the community by its presence. These factors however were not sufficient to establish federal jurisdiction as the Court explained in a long passage to which we might usefully refer:
"The functional test is a particular method of applying a more general rule namely, that exclusive federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object: the Stevedoring case.
Given this general rule, and assuming for the sake of argument that the functional test is not conclusive for the purposes of this case, the first question which must be answered in order to deal with Appellant's submissions is whether the power to regulate the labour relations in issue forms an integral part of primary federal jurisdiction over Indians and Lands reserved for the Indians. The second question is whether Parliament has occupied the field by the provisions of the Canada Labour Code.
In my opinion, both questions must be answered in the negative.
I think it is an oversimplification to say that the matter which falls to be regulated in the case at bar is the civil rights of Indians. The matter is broader and more complex: it involves the rights of Indians and non-Indians to associate with one another for labour relations purposes, purposes which are not related to "Indianness"; it involves their relationship with the United Garment Workers of America or some other trade union about which there is nothing inherently Indian; it finally involves their collective bargaining with an employer who happens to be an Ontario corporation, privately owned by Indians, but about which there is nothing specifically Indian either, the operation of which the Band has expressly refused to assume and from which it has elected to withdraw its name.
But even if the situation is considered from the sole point of view of Indian employees and as if the employer were an Indian, neither Indian status is at stake nor rights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges, etc. For this reason, I come to the conclusion that the power to regulate the labour relations in issue does not form an integral part of primary federal jurisdiction over Indians or Lands reserved for the Indians. Whether Parliament could regulate them in the exercise of its ancillary powers is a question we do not have to resolve any more than it is desirable to determine in the abstract the ultimate reach of potential federal paramountcy."
The Court held that exclusive federal competence over certain classes of persons did not mean that the totality of their rights came under federal competence to the exclusion of provincial laws of general application. Those laws could continue to apply to Indians as long as they do not single out Indians nor purport to regulate them qua Indians, and as long as they are not superseded by valid federal law. The Indian Act did not provide for labour relations and the majority of the Court was of the view that even if Indians were regarded as "federal persons" the commercial activities of the company in question could not be regarded as a "work undertaking or business" within the jurisdiction of the federal government or the ambit of section 108 of the Canada Labour Code.
23The Chief Justice (with whom Ritchie J. concurred) dissented and held that the company's activities, although commercial, in nature, constituted a "federal work undertaking or business because of the combination of circumstances which governed its operation. Laskin C.J.C. summarized these as follows:
"The combination of circumstances which govern the operation of the factory in the present case bring it, in my opinion, squarely within ss. 2 and 108(1) of the Canada Labour Code. There is the fact that the factory is operated by Indians and for Indians; it is operated on a Reserve in a building leased from the Band Council; it is operated under a revocable licence issued by the responsible federal Minister with the approval of the Band Council and under terms set out in the licence or permit; it is financed by federal funds provided under the special Indian Economic Development Fund pursuant to four agreements of September 9, 1974, October II, 1974 and two on July 8, 1976 for the stated purpose "of employing members of the Band in all positions possible and. .. for the benefit of the Band as a whole to improve their economic position and provide continuing employment for Band members"; and it is operated under the detailed provisions in the Indian Act and under the approvals therein prescribed.
These circumstances bring the appellant enterprise squarely within the opening words of s. 2 aforesaid, as being "an undertaking or business that is within the legislative authority of the Parliament of Canada". Consequently, in the words of s. 2(i) it is an undertaking or business outside the exclusive legislative authority of provincial legislatures. Section 108 applies to the employees of the applicant company since they are employed in connection with the operation of the appellant company's factory in the Reserve. It follows, therefore, that certification to enable a trade union to represent the employees of the appellant company must be sought under the Canada Labour Code."
The dissent stresses the importance of a connection with Indian land, the Band Council, or the Indian Act — none of which are applicable in the case before us.
24A final case which should be mentioned in Canadian Pioneer Management Limited et al v. Saskatchewan Labour Relations Board 8O CLLC ¶ 14,018 (S.C.C.). That case involved the applicability of provincial labour relations legislation to a financial institution which performed virtually all of the economic functions of a chartered bank but was not considered a chartered bank under the Bank Act. Counsel for the Attorney General of Canada argued that exclusive federal jurisdiction over banks and banking precluded the application of provincial legislation (in this case labour legislation) even in the absence of an assertion of federal authority over the subject institution. In dismissing the argument, the Court drew an analogy which is of particular interest to the case at bar. At page 12,109 the Court commented:
"Only one serious objection to the institutional approach can be raised and it has been raised by Counsel for the Attorney General of Canada. It is based on the exclusiveness of federal legislative powers relating to Banking and the Incorporation of Banks. It was contended that provincial legislative jurisdiction and the extent and applicability of provincial legislation cannot depend on the abstinence of Parliament from legislating to the full limit of its exclusive powers. The Union Colliery' and Commission du Salaire Minimum case were relied upon.
It do not think this objection is valid in this case.
Legislative jurisdiction involves certain powers of definition which are not unlimited but which, depending on the particular manner in which they are exercised, may affect other jurisdictional fields.
For instance, Parliament has exclusive legislative jurisdiction over the Establishment, Maintenance, and Management of Penitentiaries under section 91(28) of the Constitution, and each Province has exclusive legislative jurisdiction over the Establishment, Maintenance and Management of Public and Reformatory Prisons in and for the Province, under section 92(6). At present, the line of demarcation between the two appears to depend in part upon federal legislation such as section 659 of the Criminal Code.
Another example is provided by the legal status of the Eskimo inhabitants of Quebec. They are not Indians under the Indian Act, R.S.C. 1970, c. 1-6, section 4(1), but they are Indians within the contemplation of s. 91(24) of the Constitution: Reference as to whether "Indians" in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, 1939 CanLII 22 (SCC), [1939] S.C.R. 104. Should Parliament bring them under the Indian Act, provincial laws relating to descent of property and to testamentary matters would cease to apply to them and be replaced by the provisions of the Indian Act relating thereto.
Parliament having chosen to exercise its jurisdiction over Banking and the Incorporation of Banks from an institutional aspect rather than in functional terms, as was perhaps unavoidable, did not necessarily exhaust its exclusive jurisdiction; but it left institutions which it did not characterize as being in the banking business to the operation of provincial labour laws."
25The remarks of the Court in Canadian Pioneer Management Limited suggest that an institution which might legitimately be defined as an entity or subject of federal legislative concern, remains subject to provincial jurisdiction in all its aspects unless the Federal Parliament chooses to exercise its powers of definition and regulation. Similarly, the remarks of the Court would seem to confirm that Eskimos who are undoubtedly "Indians" under The British North America Act remain subject to provincial laws of general jurisdiction unless Parliament chooses to legislate. This would appear to be the case even in respect of those laws which effect important property and civil rights or bear materially on the economic and social welfare of Eskimo citizens. In our view it would be curious to suggest that these important matters remain subject to provincial jurisdiction, but that if a group of Eskimos forms a non-profit organization to promote their political, cultural, economic, and recreational interests its employer-employee relationships (if any) would be subject to federal law. Employer-employee relationships have nothing to do with Indian status per se, and there is no clear reason why they should be put on a different plane from other civil rights in the province. And, if trust companies or other financial institutions of the kind considered by the Court in Canadian Pioneer Management formed on association to promote their economic interests and lobby the federal government for inclusion under the Bank Act, would be employees of such association be subject to federal labour law? In our view, there is considerable force to the union s submission that (to paraphrase the words of the Court in Canadian Pioneer Management) persons or institutions which Parliament has chosen not to characterize as "Indian" should remain subject to the operation of provincial labour laws.
26After carefully considering the totality of the evidence, and comparing the circumstances in the present case with those existing in Four B Manufacturing and Lawrence Francis et al v. CLRB et al we have concluded that the respondent's operation cannot be considered a "federal undertaking or business" even if many of its members, employees, and customers" are Indians. Economic advancement, housing, and recreation, are not exclusively Indian concerns nor is the respondent the only organization supplying such services to an Indian or Native clientele. There is no connection With Indian lands, the administration of reserves, or the exercise of rights or responsibilities under the Indian Act. The most that can be said is that the respondent's members seek some of the benefits of "full Indian status" for themselves and for other people of native ancestry resident in the Province of Ontario. We do not think such aspirations are sufficient to remove the respondent's operations from provincial jurisdiction. Jurisdiction over its labour relations does not form an integral part of primary federal jurisdiction over Indians and Indian land. The respondent's connection with this object is simply too tenuous and remote. In the result therefore we are satisfied that The Labour Relations Act of Ontario is applicable to its collective bargaining relationships, even if many of its members, employees and "clients" are Indians.
V
27The Board is satisfied on the basis of all of the evidence before it that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
28Having regard to the agreement of the parties the Board is satisfied that all employees of the respondent working in the Province of Ontario, save and except the President, Vice-President, Secretary-Treasurer, Programme Directors, Assistant Programme Directors, Executive Assistant to the Executive Committee, Executive Secretary to the Executive Committee and Head of Financial Services, constitute a unit of employees appropriate for collective bargaining. For the purposes of clarity the Board notes the agreement of the parties and Mr. Hedican is properly described as a "Programme Director".
29Having regard to the evidence before it the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on February 27, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
30A certificate will issue to the applicant.