United Food and Commercial Workers International Union, Local 175 v. Nipissing First Nation Fur Dressers Inc.
[1999] OLRB REP. NOVEMBER/DECEMBER 1075
9821-99-R United Food and Commercial Workers International Union, Local 175, Applicant V. Nipissing First Nation Fur Dressers Inc., Responding Party
Certification - Constitutional Law - Board finding that labour relations of fur dressing company owned by Indian Band Council, located on the reserve, and employing primarily Band members governed provincially and not federally - Certification application granted
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Kelvin Kucey and Mark Flannigan for the applicant; Michael Horan, Adrian Miedema and Margaret Penasse-Mayer for the responding party.
DECISION OF THE BOARD; December 6, 1999
- This is an application for certification. The only issue in dispute, although a significant one, is whether the business where the employees work falls within the jurisdiction of the Province of Ontario, and therefore is governed by the Labour Relations Act, 1995, (the "Act"). The applicant (the union) maintains that the factory in issue is just like any other factory in the province whose labour relations are governed by the Labour Relations Act. In contrast, the Nipissing First Nation Fur Dressers Inc. ("Fur Dressers" or the "employer") submits that a consideration of the context, location, and ownership of Fur Dressers results in the conclusion that it is an Indian enterprise, which falls under federal jurisdiction, and whose labour relations are governed by the Canada Labour Code.
LEGAL CONTEXT
- There is a significant amount of jurisprudence in this area. A useful summary of the legal context into which the facts of this case must be placed is found in Peter Hogg's Constitutional Law in Canada. At page 27-9 he begins a discussion about the relationship between provincial legislative powers and First Nations people and their land:
The general rule is that provincial laws apply to Indians and lands reserved for the Indians. In R. v. Hill (1907), the Ontario Court of Appeal held that a provincial law confining the practice of medicine to qualified physicians applied to Indians; an Indian was convicted of the offence of the unauthorized practice of medicine. The offence in Hill did not take place on a reserve, but the result would have been the same if it had. In Four B Manufacturing v. United Garment Workers (1979), the Supreme Court of Canada held that provincial labour law applied to a shoe- manufacturing business, which was located on a reserve, which was owned (through a corporation) by Indians, which employed mainly Indians, and which had been funded by the Department of Indian Affairs. In R. v. Francis (1988), the Supreme Court of Canada held that provincial traffic laws applied to an Indian driving a vehicle on an Indian reserve.
These decisions establish that the provincial Legislatures have the power to make their laws applicable to Indians and on Indian reserves, so long as the law is in relation to a matter coming within a provincial head of power. The situation of Indians and Indian reserves is thus no different from that of aliens,