Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 444 et al., and The Attorney General for Canada and The Attorney General for Ontario, Intervenors [Indexed as: Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 444]
88 O.R. (3d) 583
Court of Appeal for Ontario,
Sharpe, Gillese and Blair JJ.A.
November 27, 2007
Charter of Rights and Freedoms -- Aboriginal and treaty rights -- Labour relations -- Indian Band enacting its own comprehensive labour code after Ontario Labour Relations Board certified union as bargaining agent for workers at casino on reserve -- Band not establishing that it had aboriginal or treaty right to regulate labour relations on aboriginal land -- Band's labour code not displacing Labour Relations Act -- Constitution Act, 1982, s. 35 -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.
The appellant, a registered Indian Band, owned a large casino which was located on the reserve. The casino was operated by GBH, a multinational corporation. The Ontario Labour Relations Board certified the respondent Union as the bargaining agent for the casino workers in January 2003, and the Union served GBH with a notice to bargain. Several months later, the appellant enacted its own Labour Relations Code (the "Code") without notifying the OLRB, GBH, the Union or the federal or provincial government of its intention to do so. The Code was a comprehensive labour relations code, closely modeled on the Canada Labour Code, R.S.C. 1985, c. L-2, but with some significant differences. Strikes and lockouts were banned; a union had to pay a fee of $3,000 and obtain permission from the Dbaaknigewin, the labour relations tribunal established by the Code, to speak to workers on the reserve; and workers had to pay a fee of $12,000 to file an unfair labour practice complaint. The appellant asserted that it had the right to enact the Code and displace the Labour Relations Act ("LRA") under its aboriginal and [page584] treaty rights, as recognized and affirmed by s. 35 of the Constitution Act, 1982. The OLRB rejected that claim and found that there was no ancestral practice, custom or tradition capable of supporting the right, properly characterized as the right to regulate labour relations on the reserve, and that no treaty right was established that would lead to any right to regulate labour relations. The Divisional Court dismissed the appellant's application for judicial review. The appellant appealed.
Held, the appeal should be dismissed.
The OLRB correctly characterized the right claimed by the appellant as the right to regulate labour relations on aboriginal lands. In order to establish that right, the appellant was required to prove: (i) the existence of an aboriginal practice, custom or tradition that supported the right; (ii) that this practice, custom or tradition was integral to the distinctive culture of the appellant's pre- contact society; and (iii) reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim. The appellant failed to establish any of those elements. There was no evidence of an aboriginal practice, custom or tradition that supported the right to enact a labour relations code. The evidence before the court indicated that the hallmarks of pre-contact Ojibway society were its family or clan base, its non-hierarchical structure and its consensual and non-adversarial dispute resolution process. Those defining features were fundamentally at odds with the appellant's Code. The Code was market-based, was hierarchical in structure, and established an adversarial dispute resolution process before the Dbaaknigewin, a quasi-judicial board that had no demonstrated connection with aboriginal tradition and which exercised coercive powers. Even if one were to accept the appellant's characterization of the right as an aboriginal practice to regulate work activities and access to aboriginal lands, such a practice could not be said to be integral to the distinctive culture of the appellant. Aspects of aboriginal society that are true of every human society are not practices capable of supporting an aboriginal right. The evidence led as to the traditional regulation of work activity bore no relation to modern collective bargaining. The organization of work, at a very general level, is a feature of every human society. Finally, the appellants failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim. The Code exhibited no meaningful relationship or connection with pre-contact communal, non-hierarchical practices of decision-making in relation to the organization of work activities and access to territory, inspired by values of family, clan and connection to the land. The roots of the Code were entirely post-contact and derived from modern law dealing with contractual relationships between employers and employees in a post-industrialist, capitalist economy.
The appellant asserted treaty rights under the Covenant Chain relationship, confirmed by the Treaty of Niagara of 1764. The Covenant Chain did not touch in any way upon the organization of the performance of labour. Put at its highest, the appellant's treaty claim was general in nature and amounted to an assertion that the aboriginal people were promised that they could live as they had lived before contact and that their customs and customary law would be protected. To accept the appellant's treaty argument would be to accept an aboriginal right of self-government on reserve lands of virtually unlimited breadth and amplitude, exceeding anything seen to date in the jurisprudence of aboriginal rights.
The Crown did not breach its duty to consult and accommodate the aboriginal and treaty rights claimed by the appellant when the Minister of Labour referred to the OLRB the question of whether the LRA or the appellant's Code applied to collective bargaining between GBH and its employees. The aboriginal claim asserted by the appellant was dubious from the start and therefore not sufficiently credible to call for consultation. Moreover, the first time the government knew or ought to [page585] have known of the claim was when the appellant enacted the Code. It was the appellant, not the Crown, that took peremptory and unilateral action that initiated the dispute or conflict implicating a claim of aboriginal rights. Finally, if a duty to consult did arise, the scope of the duty was minimal, and the duty did not preclude the Crown from disputing the aboriginal right that was claimed by the appellant and litigating its existence before an impartial tribunal.
APPEAL from the judgment of the Divisional Court (O'Driscoll, Matlow and Jarvis JJ.), 2006 17944 (ON SCDC), [2006] O.J. No. 2159, 213 O.A.C. 2, [2006] OLRB Rep. May/June 450, [page586] dismissing an application for judicial review of the decision of the Ontario Labour Relations Board, [2004] O.L.R.D. No. 4907, 110 C.L.R.B.R. (2d) 1.
Cases referred to Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108, 66 B.C.L.R. (3d) 285, 153 D.L.R. (4th) 193, 220 N.R. 161, [1999] 10 W.W.R. 34; R. v. Pamajewon, 1996 161 (SCC), [1996] 2 S.C.R. 821, [1996] S.C.J. No. 20, 27 O.R. (3d) 95n, 138 D.L.R. (4th) 204, 199 N.R. 321, 109 C.C.C. (3d) 275, 50 C.R. (4th) 216 (sub nom. R. v. Jones), consd R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507, [1996] S.C.J. No. 77, 23 B.C.L.R. (3d) 1, 137 D.L.R. (4th) 289, 200 N.R. 1, [1996] 9 W.W.R. 1, 109 C.C.C. (3d) 1, 50 C.R. (4th) 1, folld Other cases referred to Four B Manufacturing Ltd. v. United Garment Workers of America, 1979 11 (SCC), [1980] 1 S.C.R. 1031, [1979] S.C.J. No. 138, 102 D.L.R. (3d) 385, 30 N.R. 421; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, [2004] S.C.J. No. 70, 245 D.L.R. (4th) 33, 327 N.R. 53, [2005] 3 W.W.R. 419, [2005] 1 C.N.L.R. 72, 2004 SCC 73, 36 B.C.L.R. (4th) 282, 26 R.P.R. (4th) 1, 11 C.E.L.R. (3d) 1, 19 Admin. L.R. (4th) 195; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, [2005] S.C.J. No. 71, 259 D.L.R. (4th) 610, 342 N.R. 82, [2006] 1 C.N.L.R. 78, 2005 SCC 69, 37 Admin. L.R. (4th) 223, 21 C.P.C. (6th) 205; Mitchell v. Canada (Minister of National Revenue), [2001] 1 S.C.R. 911, [2001] S.C.J. No. 33, 199 D.L.R. (4th) 385, 269 N.R. 207, 83 C.R.R. (2d) 1, 2001 SCC 33; R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686, [2006] S.C.J. No. 54, 274 D.L.R. (4th) 75; Saskatchewan Indian Gaming Authority (SIGA) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [2000] S.J. No. 766, 73 C.L.R.B.R. (2d) 94 (C.A.), affg 2000 SKQB 176, [2000] S.J. No. 266, 73 C.L.R.B.R. (2d) 65 (Q.B.) Statutes referred to Canada Labour Code, R.S.C. 1985, c. L-2 Constitution Act, 1867, s. 91(24) Constitution Act, 1982, s. 35 First Nations Lands Management Act, S.C. 1999, c. 24, ss. 18, 20 Gaming Control Act, 1992, S.O. 1992, c. 24 Indian Act, R.S.C. 1985, c. I-5, s. 88 [as am.] Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17, 18, 70, 96, 115 Treaties and conventions referred to Treaty of Niagara (1764) United Nations Draft Declaration on the UN Doc. E/ CN.4/Sub.2/1994/2/Add.1 (1994) the Rights of Indigenour Peoples Authorities referred to Canada, Minister of Indian Affairs and Northern Development, Federal Policy Guide: Aboriginal Self Government (Ottawa: Minister of Public Works and Government Services Canada, 1995)
Brian T. Daly and Jacquelyn E. Stevens, for appellants. Lewis Gottheil and Niki Lundquist, for the CAW. Leonard Marvy, for the Ontario Labour Relations Board. Leola Pon, for Great Blue Heron Gaming Company. Charlotte Bell, Q.C., and Michael Beggs, for Intervenor Attorney General for Canada. Owen Young and Malliha Wilson, for Intervenor Attorney General for Ontario.
The judgment of the court was delivered by
[1] SHARPE J.A.: -- This appeal involves a claim to rights of aboriginal self-government. The issue is whether the appellant Mississaugas of Scugog Island First Nation has the legal right to enact its own code of labour law to govern collective bargaining in relation to a commercial undertaking that operates on reserve lands.
[2] The Great Blue Heron Casino (the "Casino") operates on the small reserve belonging to and occupied by the appellant. Approximately 1,000 employees work at the Casino, less than one per cent of whom are members of the appellant First Nation. A few months after the Ontario Labour Relations Board ("OLRB") certified the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) ("CAW") as the Casino employees' bargaining agent under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A ("LRA"), the appellant's Band Council enacted its own Labour Relations Code (the "Code"). The appellant's Code is closely modelled on the Canada Labour Code, R.S.C. 1985, c. L-2 with certain significant exceptions. The appellant asserts that it has the right to enact the Code and displace the LRA under its aboriginal and treaty rights, as recognized and affirmed by s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[3] The OLRB rejected those claims and found that there was no ancestral practice, custom or tradition capable of supporting the right, properly characterized as the right to regulate labour relations on the reserve. The OLRB also found that no treaty right was established that would lead to any right to regulate labour relations or, more broadly, a right to self-government. The OLRB concluded that the LRA applied to the Casino and its employees. The Divisional Court dismissed the appellant's application for judicial review. [page587]
[4] The appellant was given leave to appeal to this court. For the reasons that follow. I would dismiss the appeal.
Facts
[5] The appellant is a registered Indian Band under the Indian Act, R.S.C. 1985, c. I-5. The appellant Band belongs to the Mississauga tribe or nation, a branch of the Ojibway, and its members identify themselves as part of the Anishnaabeg. The appellant occupies a small reserve near Port Perry, Ontario. There are 173 registered Band members, 40 of whom live on the reserve.
[6] The Casino, owned by the appellant and operated by the Great Blue Heron Gaming Company (the "GBHGC"), a multinational conglomerate, is a Las Vegas style gaming facility with over 50 table games (black jack, roulette, poker, etc.) and 450 slot machines. GBHGC operates the day-to-day business of the Casino.
[7] The Band receives substantial revenues from the Casino which employs approximately 1,000 workers (less than one per cent of whom are Band members) and operates seven days a week, 24 hours a day. The Casino is the only commercial enterprise operating on the reserve.
[8] The Casino opened in 1996 and CAW began its efforts to organize the workers shortly thereafter. Casino workers voted to unionize, and in December 2002, CAW applied for certification under the LRA. Although the appellant had publicly opposed unionization, it did not intervene in the LRA certification proceedings nor did it make known its intention to enact its own Code. The OLRB certified the CAW under the LRA as the workers' bargaining agent in January 2003. CAW served GBHGC with a notice to bargain although bargaining could not commence until May 29, 2003, when the union was registered under the Gaming Control Act, 1992, S.O. 1992, c. 24.
[9] The appellant enacted its own Code on June 6, 2003. The Code was passed at an informal Band meeting of the Band Chief and two Band Councillors. There was no public notice of the meeting and no minutes were kept. The appellant did not notify the OLRB, the GBHGC, the CAW or either the federal or provincial governments of its intention to enact the Code.
[10] The appellant's Code is a comprehensive modern-day labour relations code, closely modelled on the Canada Labour Code, but displaying some significant differences: strikes and lockouts are banned; a union must pay a fee of $3,000 and obtain permission from the Dbaaknigewin, the labour relations tribunal established by the Code, to speak to workers on the reserve; and workers must pay a fee of $12,000 to file an unfair labour practice complaint. [page588]
[11] When GBHGC refused to meet CAW to bargain in the face of the appellant's Code, CAW asked the Minister of Labour to appoint a conciliation officer pursuant to s. 18 of the LRA. GBHGC objected to that request, alleging that it was unclear whether or not the LRA applied. The appellant informed the Minister of its position that the LRA did not apply and that the Casino's labour relations were governed by the Code. CAW then filed an unfair labour practice complaint with the OLRB alleging that the employer was not bargaining in good faith. The Minister referred the issue of whether the Minister had the authority to appoint a conciliation officer to the OLRB, pursuant to s. 115 of the LRA. CAW sought an expedited hearing on the ground that it risked decertification if no collective agreement was in place by the first anniversary of certification and a conciliation officer was not appointed. The appellant intervened before the OLRB and served notices of constitutional questions on the Attorneys General of Canada and Ontario. The OLRB held that it had jurisdiction and would hear the constitutional question and proceeded to hear it.
[12] The appellant's evidence of ancestral customs, practices and traditions focused on ancestral customs and practices of decision-making relating to "work-related activities" and "territorial access". The OLRB rejected the appellant's contention that this evidence was capable of supporting the enactment of the appellant's Code as the exercise of an aboriginal or treaty right.
[13] The Divisional Court dismissed an application for judicial review, essentially adopting the reasoning and analysis of the OLRB.
Issues
[14] The order granting leave to appeal identified three issues. As the parties did not treat issues 1 and 3 as distinct issues, I will consider them together.
(1) Did the Divisional Court err in too narrowly characterizing the aboriginal and treaty rights claimed by the First Nation?
(2) Did the Divisional Court err in not finding that the OLRB had failed to consider the Crown's duty to consult and to accommodate regarding the aboriginal and treaty rights claimed by the First Nation?
(3) Did the Divisional Court err in failing to consider the rights claimed by the First Nation to be an intrinsic aspect of an aboriginal treaty right? [page589]
Analysis
[15] The Constitution Act, 1982, s. 35 recognizes and affirms existing aboriginal and treaty rights of aboriginal peoples. Existing aboriginal rights include common law rights that recognize and give legal effect to the inherent right of aboriginal peoples to maintain the distinctive traditional and customary practices of pre-contact aboriginal societies that are not inconsistent with Crown sovereignty or basic common law principles and do not strain Canada's constitutional structure. Treaty rights are consensual in nature and arise from agreements reached between the Crown and aboriginal peoples.
[16] While the jurisprudence of aboriginal and treaty rights is well-developed, relatively few cases deal with claims to aboriginal rights of self-government. Before turning to that body of case law, I note that there is an established legal framework that determines the application of provincial laws of general application to aboriginal persons and aboriginal lands. Pursuant to the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, s. 91(24) and the Indian Act, s. 88, provincial laws of general application apply ex proprio vigore to aboriginal persons, provided they do not touch on the "core of Indianness" and provided they do not violate an existing aboriginal or treaty right protected by the Constitution Act, 1982, s. 35. It has been held that provincial labour laws apply to activities conducted on aboriginal lands: Four B Manufacturing Ltd. v. United Garment Workers of America, 1979 11 (SCC), [1980] 1 S.C.R. 1031, [1979] S.C.J. No. 138; Saskatchewan Indian Gaming Authority (SIGA) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2000 SKQB 176, [2000] S.J. No. 266, 73 C.L.R.B.R. (2d) 65 (Q.B.), affd [2000] S.J. No. 766, 73 C.L.R.B.R. (2d) 94 (C.A.). Accordingly, unless the appellant can make out its claim that it has an aboriginal or treaty right to enact its own labour law regime, the LRA applies to the reserve, the Casino, the GBHGC and the CAW.
Issues 1 and 3
Did the Divisional Court err in too narrowly characterizing the aboriginal and treaty rights claimed by the First Nation?
Did the Divisional Court err in failing to consider the rights claimed by the First Nation to be an intrinsic aspect of an aboriginal treaty right?
I Aboriginal rights
[17] The Supreme Court of Canada has held that, to the extent that there exists an aboriginal right to self-government, the [page590] applicable legal standard is that laid down in R. v. Van der Peet, 1996 216 (SCC), [1996] 2 S.C.R. 507, [1996] S.C.J. No. 77 ("Van der Peet") for the determination of other activities related to aboriginal rights: see R. v. Pamajewon, 1996 161 (SCC), [1996] 2 S.C.R. 821, [1996] S.C.J. No. 20 ("Pamajewon"), at paras. 24-25.
[18] In determining whether there is an aboriginal right using the Van der Peet test, the first step is to characterize the right claimed. The right must be characterized in context and with sufficient specificity to allow the court "to identify a practice that helps to define the way of life or distinctiveness of the particular aboriginal community": R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686, [2006] S.C.J. No. 54 ("Sappier"), at paras. 22, 24. The right claimed should not be framed in excessively general terms or artificially broadened or narrowed or otherwise distorted to fit the desired result: Mitchell v. Canada (Minister of National Revenue), 2001 SCC 33, [2001] 1 S.C.R. 911, [2001] S.C.J. No. 33 ("Mitchell"), at paras. 15, 20; Pamajewon, at para. 27; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108 ("Delgamuukw"), at para. 170.
[19] Three factors shape the characterization of the right claimed: (i) the nature of the action that is claimed to have been carried out pursuant to an aboriginal right; (ii) the nature of the government regulation, statute or action being impugned; and (iii) the practice, custom or tradition relied upon to establish the right: Van der Peet, at para. 53.
[20] Once the claimed right is characterized, it is for the claimant to establish that an aboriginal right exists.
[21] The following elements must be proved: (i) the existence of an aboriginal practice, custom or tradition that supports the right; (ii) that this practice, custom or tradition was integral to the distinctive culture of the claimant group's pre-contact society; and (iii) reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim: Van der Peet, at paras. 53-59, 64-65; Mitchell, at para. 12.
[22] The appellant submits that Delgamuukw, which deals with aboriginal title, modifies the Van der Peet test, as applied in Pamajewon, with respect to activity-related claims such as claims to rights of self-government. I disagree. Delgamuukw distinguishes Van der Peet, but only in relation to claims to aboriginal title [at para. 142]:
The major distinctions are first, under the test for aboriginal title, the requirement that the land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy, and second, whereas the time for the identification of aboriginal rights is the time of first contact, the time for the identification of aboriginal title is the time at which the Crown asserted sovereignty over the land. [page591]
[23] This passage has no bearing on the application of the Van der Peet test to the activity-related claim of a right to self-government. This is clear from Delgamuukw itself where Lamer C.J. explicitly refers to Pamajewon as governing claims to self-government (at para. 170) and indicates that at the new trial being ordered, any claim to self-government must be determined in accordance with Pamajewon.
[24] Accordingly, I will now proceed to apply the Van der Peet test to the facts of this case.
(a) Characterization of the right
[25] The appellant's suggested characterization of the right claimed is the right to regulate work activities and to control access to aboriginal lands. For the following reasons, I agree with the OLRB and the Divisional Court that this characterization cannot be accepted and that the correct characterization is the right to regulate labour relations on aboriginal lands.
[26] Three factors in this case must be considered in accordance with the Van der Peet test when characterizing the claimed aboriginal right: (i) the enactment of the Code; (ii) the nature of the LRA with which it conflicts; and (iii) the ancestral practice, custom or tradition upon which the appellant relies.
[27] First, when one looks to the Code, it is apparent that its subject is labour relations, not the regulation of work activities or controlling access to aboriginal lands. It is common ground that the Code is essentially modelled on the Canada Labour Code. The Code establishes a detailed regulatory framework to govern labour relations and to resolve disputes arising between employers and workers in relation to the collective bargaining process. Neither the Canada Labour Code nor the appellant's Code regulate work activities: under both regimes, that is left for negotiation and contract between the union and the workers pursuant to the collective bargaining process.
[28] Nor can the Code fairly be characterized as controlling access to aboriginal lands. The sole provision relating to access to aboriginal lands, s. 50, only deals with access where any person wants "to enter on to the Reserve for the purposes of soliciting or seeking to solicit employees to join a union". The essential character of this provision of the Code is plainly the same as that of the Code as a whole: it deals with the regulation of labour relations and collective bargaining. To the extent that it deals with access to reserve lands, it does so in a purely incidental fashion. It would, with respect, be a gross distortion to characterize the Code as regulating access to reserve lands on the basis of a single provision that regulates access to reserve [page592] lands only where the party entering the land does so to solicit union members.
[29] Second, the provisions of the LRA with which the claim conflicts have nothing to do with access to the reserve or with the regulation of work activities. The LRA, like the Code, is a modern labour code to regulate the regime of collective bargaining. Sections 17, 18, 70 and 96 of the LRA were identified before the OLRB as being in conflict with the Code. All of these provisions address the regulation of collective bargaining: s. 17 deals with the obligation to bargain; s. 18 deals with the appointment of conciliation officers; s. 70 deals with interference by employers; and s. 96 deals with the appointment of a labour relations officer to investigate a complaint. All of these conflicting provisions point to the regulation of labour relations as the true character of the Code.
[30] Third, as I will explain below, the appellant is unable to identify any ancestral practice, custom or tradition that bears any relationship to a modern labour relations code.
[31] Finally, the Supreme Court rejected a virtually identical characterization of the claimed right in Pamajewon at para. 27:
The appellants themselves would have this Court characterize their claim as to "a broad right to manage the use of their reserve lands". To so characterize the appellants' claim would be to cast the Court's inquiry at a level of excessive generality. Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right. The factors laid out in Van der Peet, and applied, supra, allow the Court to consider the appellants' claim at the appropriate level of specificity; the characterization put forward by the appellants would not allow the courts to do so.
[32] The appellant has failed to persuade me that this statement does not apply to the characterization it offers.
[33] I conclude, accordingly, that the OLRB and the Divisional Court did not err in characterizing the right claimed as the right to enact a labour relations code that applies to aboriginal lands.
(b) Proof of the aboriginal right
[34] In my view, the appellant fails to satisfy any of the three elements required to support an aboriginal right to enact a labour relations code that applies to aboriginal lands.
[35] First, there is no evidence of an aboriginal practice, custom or tradition that supports the right to enact a labour relations code. This element was explained in Sappier at para. 22:
The goal for the courts is . . . to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. This has been achieved by requiring aboriginal rights claimants to found their claim on a [page593] pre-contact practice which was integral to the distinctive culture of the particular aboriginal community. It is critically important that the Court be able to identify a practice that helps to define the distinctive way of life of the community as an aboriginal community. The importance of leading evidence about the pre-contact practice upon which the claimed right is based should not be understated. In the absence of such evidence, courts will find it difficult to relate the claim right to the pre-contact way of life of the specific aboriginal people, so as to trigger s. 35 protection.
(Emphasis in original)
[36] The appellant's only witness as to aboriginal custom and practice was Professor Mark Walters. His affidavit and cross- examination indicate that the hallmarks of pre-contact Ojibway society were its family or clan base, its non- hierarchical structure and its consensual and non- adversarial dispute resolution process. These defining features are fundamentally at odds with the appellant's Code which is market-based, is hierarchical in structure and establishes an adversarial dispute resolution process before the Dbaaknigewin, a quasi-judicial board that has no demonstrated connection with aboriginal tradition and exercises coercive powers.
[37] Before this court, it was common ground that the appellant's only evidence as to an aboriginal practice, custom or tradition is to be found in para. 19 of the Walters affidavit. Given its importance to the resolution of this appeal, I set out that paragraph in full:
The chiefs and elders of each extended family unit, or local clan segment, within an Anishinaabe village met in council to decide upon the issues that confronted the community. In the absence of coercive state institutions, negotiation and consensus between these family or clan leaders was the only method of coordinating social and political action, or of settling disputes. At these councils decisions were made about which families would use which planting fields, or fisheries, or hunting areas, or trade routes at any given time. Family rights of access to the band's fisheries and hunting territories may have been re-allocated annually, or in some cases more permanent resource rights may have been acknowledged. In general, the village councils were intimately involved in the organization of work-related activities within the village -- including the organization of planting and hunting, and preparation of festivals and ceremonial or recreational gatherings. The village council would also decide upon whether to grant permission to members of other clan-villages, or other nations, to travel through or hunt or fish within their territories. Through the reciprocal exchange of gifts, which often had more spiritual than material value, agreements were reached permitting one clan-village to enter and/or use another band's territory or trade routes.
[38] I entirely agree with and adopt the OLRB's conclusion on this aspect of the case:
The evidence also established conclusively, that the regulation and management of labour relations as we understand that term, was in no way part of the traditional culture or practices of the First Nation. There can be no doubt [page594] that there were no employees or employers and certainly no groups or organizations analogous to trade unions that purported to represent the interests of either employers or employees within the society. There was no labour market, nor anything resembling a wage-labour relationship where labour would be sold in exchange for some form of compensation. There is no evidence at all to suggest that the First Nation had a traditional practice whereby a decision making council (like the Dbaaknigewin) dealt in a hierarchical and coercive (terms used in the evidence) way with the regulation of relationships between what we might think of as employers, employees and groups of employees.
Even if one were to recast the notion of "labour relations" at a much higher level of generality, there is nothing in the evidence and information provided by the First Nation to suggest that there was a practice of organized relationships delineating responsibilities and obligations as between those who would perform labour, and those who would have labour performed. Moreover, (and this goes to the second branch of the test) it can certainly not be said that any such relationships formed an integral or defining part of First Nation's society.
It would be difficult on any rational understanding of the evidence before the Board to conclude that the first branch of the test has been met. There is no basis for concluding that there is an ancestral practice, custom or tradition which could support the claimed right -- that being the regulation of labour relations on the territory of the First Nation.
[39] Second, even if we were to accept the appellant's characterization of the right as an aboriginal practice to regulate work activities and access to aboriginal lands, such a practice could not be said to be integral to the distinctive culture of the appellant. In Van der Peet, at para. 56, the Supreme Court rejected "aspects of the aboriginal society that are true of every human society (e.g., eating to survive)" as practices capable of supporting an aboriginal right and insisted that the focus be "on the aspects of the aboriginal society that make that society distinctive". The evidence led as to the traditional regulation of work activity bears no relation to modern collective bargaining. The appellant cannot escape this deficiency by relying on the fact that the aboriginal society organized the work activities of its members: the organization of work at that level of generality is a feature of every human society.
[40] Third, the appellants have failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim. While aboriginal rights are rooted in the past, they are not frozen, but are capable of evolving into modern form provided there is continuity linking the present exercise of the aboriginal claim to the distinctive character and nature of the right in its original form.
[41] The appellant's Code, however, exhibits no meaningful relationship or connection with pre-contact, communal, non- hierarchical practices of decision-making in relation to the organization of work activities and access to territory, inspired by values of family, [page595] clan and connection to the land. The Code is market-based, adversarial and inspired by the Canada Labour Code. Its roots are entirely post-contact and derived from modern law dealing with contractual relationships between employers and employees in a post-industrialist capitalist economy. No process or community-wide consultation based on aboriginal custom or tradition was followed when the Code was enacted. The Code, in the words of Van der Peet, at para. 73, "arose solely as a response to European influences" and therefore does "not meet the standard for recognition of an aboriginal right".
(c) Other sources
[42] The appellant relies on the First Nations Lands Management Act, S.C. 1999, c. 24, ss. 18 and 20, conferring on First Nations certain powers in relation to the ownership, management and use of First Nations lands. I see no merit in the submission that the specific powers conferred by this Act in relation to ownership, management and use of First Nations lands can somehow be converted into a plenary power to legislate in relation to all manner of activities that take place on First Nations lands. As stated in its preamble, the Act implements an agreement between the Crown and certain First Nations "in relation to the management by those first nations of their lands". There is nothing in the Act that could be read as adopting a general right of aboriginal self-government.
[43] The appellant also referred us to a federal policy document published under the authority of the Minister of Indian Affairs and Northern Development, the Federal Policy Guide: Aboriginal Self Government (Ottawa: Minister of Public Works and Government Services Canada, 1995). It reflects Canada's recognition of the inherent right of self-government under the Constitution Act, 1982, s. 35. The Policy was adopted in view of the failed efforts to amend the Constitution to include a right of aboriginal self-government and aims to make litigation "a last resort" by implementing self-government through specific "practical and workable agreements". When describing the areas in which the federal government indicates its willingness to negotiate self-government agreements, "labour/training" is identified as going "beyond matters that are integral to Aboriginal culture or that are strictly internal to an Aboriginal group" where "laws and regulations tend to have impacts that go beyond individual communities". The Policy specifies that in these areas, "primary law-making authority would remain with the federal or provincial governments, as the case may be, and their laws would prevail in the event of a conflict with Aboriginal laws". I fail to see how this [page596] policy document, aimed at implementing self- government through specific issue-by-issue agreements, assists the appellant in making out a right to self-government under existing law, especially in an area that is identified as being inappropriate for a future agreement that would confer plenary powers.
[44] The appellant also relies on the Ontario Statement of Political Relationship, a 1991 agreement between the Government of Ontario and the Ontario Chiefs-in-Assembly, explicitly recognizing "the inherent right to self-government of the First Nations . . . under the Constitution of Canada". It is clear, however, from s. 5, that both sides regarded the Statement as being a political commitment that did not alter or prejudice existing legal rights:
This Statement of Political Relationship expresses the political commitment of the First Nations and Ontario and is not intended to be a treaty or to create, redefine or prejudice rights or affect obligations of the First Nations or Ontario, or the aboriginal or non-aboriginal peoples in Ontario.
[45] In my view, this political agreement neither adds nor subtracts from existing legal and constitutional rights and therefore does not assist the appellant in this case.
[46] Finally, the appellant referred us to the United Nations Draft Declaration on the Rights of Indigenous People (1993/4) (since adopted by the United Nations General Assembly). This convention, which Canada voted against and has not ratified, recognizes the right of indigenous peoples to "self- determination", to govern their own lands and to have their own distinct political, legal, economic, social and cultural institutions. While international law often is of assistance in the interpretation of domestic legal and constitutional norms, the general language of the Draft Declaration does not, in my view, provide any meaningful assistance to the resolution of the specific issue of Canadian constitutional law presented here.
(d) Aboriginal rights: Conclusion
[47] In the final analysis, the appellant's claim is cast at a level of such generality that it amounts to an assertion that First Nations should be accorded a virtually unconstrained right of self-government in relation to any activity that takes place on aboriginal lands. That submission is at odds with the governing jurisprudence, in particular, the decision of the Supreme Court in Pamajewon.
[48] Accordingly, I see no basis upon which to interfere with the decisions of the OLRB and the Divisional Court that the appellant failed to make out its claim that it has an aboriginal right to enact the Code to govern labour relations on reserve lands. [page597]
II Treaty Rights
[49] The appellant also relies on treaty rights in support of its claim. The appellant asserts treaty rights under the Covenant Chain relationship, confirmed by the Treaty of Niagara of 1764. Neither the Covenant Chain nor the Treaty of Niagara is the subject of a specific instrument or agreement. The Covenant Chain, in the words of the appellant's expert, Prof. Walters, consists of various "oral engagements and rituals at 'council fires' that were modeled upon Aboriginal legal forms and customs" and came "to embrace an entire set of constitutional assumptions about the relationship between the Crown and Indian nations". The Covenant Chain "secured peace, friendship, and military alliance between the parties; it also provided a 'council fire' at which issues of common concern could be discussed and resolved". Professor Walters describes the records of the Treaty of Niagara as being "relatively brief" and consisting of "speeches . . . given in the style and tradition of Covenant Chain protocol". The OLRB characterized the Covenant Chain, at para. 90, as "a set of documents and corresponding related historical events . . . [that] illustrates the development of the relationship between First Nations parties and European powers".
[50] For the purposes of this appeal, I do not find it necessary to delve into the history of the Covenant Chain and the Treaty of Niagara or to determine their precise legal nature and status. Put at its highest, the appellant's treaty claim, like its aboriginal rights claim, is general in nature and amounts to this: the aboriginal people were promised that they could live as they had lived before contact and that their customs and customary law would be protected. There is no evidence arising from the records and conversations that comprise the Covenant Chain and the Treaty of Niagara of any specific term or promise that goes beyond a general understanding that, in the words of Prof. Walters, "provided the foundational terms for the Crown's claims to sovereignty over Canada -- and those terms were understood by native and non-native delegates alike to include the right of self- determination within native communities and lands".
[51] I agree with and adopt the OLRB's assessment of the treaty claim, at paras. 92-93:
It is undisputed that the Covenant Chain does not touch in any way upon the organization of the performance of labour. Rather, the First Nation argues that the Covenant Chain continues the aboriginal right of self-government that predated first European contact and has, since then, not been surrendered.
The practices which are protected under the Covenant Chain, according to the First Nation, are cast at the same level of generality as those asserted as [page598] inherent rights. It is clear even from the evidence relied upon by the First Nation that rights which might have been continued from this 'treaty' have nothing to do with and do not speak in any way to the regulation of activity as between employers and employees.
[52] The Covenant Chain and the Treaty of Niagara, at best, reflect the general nature of the relationship between the Crown and First Nations at the time and confirm the basic common law doctrine of inherent aboriginal rights. As with the argument based upon inherent aboriginal rights, to accept the treaty argument would be to accept an aboriginal right of self- government on reserve lands of virtually unlimited breath and amplitude and exceeding anything seen to date in the jurisprudence of aboriginal treaty rights. Accordingly, I see no reason to disturb the judgment of the Divisional Court refusing to grant judicial review of the order of the OLBR.
III Justification
[53] As I would not interfere with the finding that the appellant failed to make out an aboriginal or treaty right to enact a labour relations code to apply to activities on aboriginal lands, it is unnecessary to decide whether the Crown has justified the LRA as a legitimate limitation on such a right.
Issue 2
Did the Divisional Court err in not finding that the OLRB had failed to consider the Crown's duty to consult and to accommodate regarding the aboriginal and treaty rights claimed by the First Nation?
[54] The appellant contends that the Crown breached its duty to consult and accommodate the aboriginal claim. This argument, based upon the decision of the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, [2004] S.C.J. No. 70 ("Haida Nation"), was not advanced before the OLRB as Haida Nation had not been decided, but it was argued before the Divisional Court.
[55] Haida Nation holds, at para. 35, that the duty to consult "arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it". The scope of the duty is, at para. 39, "proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed". Where the claim is weak, the duty of the Crown may be limited to giving notice of its intended [page599] action, disclosing information and discussing issues raised in response to the notice. Where there is a strong case for the claim, the opportunity to make submissions, formal participation in the decision-making process and provision of written reasons may be required. There is no fixed or mandatory standard that applies to every case, and it is open to the Crown "to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision- makers in complex or difficult cases": para. 44. The court added, at para. 45, "The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake."
[56] The appellant submits that the Crown breached its duty to consult and accommodate when the Minister of Labour referred to the OLRB the question of whether the LRA or the appellant's Code applied to collective bargaining between GBHGC and its employees. I am unable to accept this submission for the following reasons.
[57] Haida Nation establishes that three elements are required: (i) a credible claim for aboriginal right or title, whether or not established; (ii) actual or constructive government knowledge; and (iii) conduct that would infringe or interfere with the claimed right. In my view, none of these elements is made out.
[58] First, for reasons I have already explained, it is my view that the aboriginal claim asserted by the appellants was dubious from the start and therefore not sufficiently credible to call for consultation. In any event, as I will explain further below, given the nature of the claim, it was reasonable in the circumstances for the government to refer the claim to the OLRB for resolution.
[59] Second, the first time the government knew or ought to have known of the claim was when the appellant enacted its Code. The appellants failed to make known any claim or right during the unionization drive and certification proceedings. The government was faced with the appellant's peremptory act late in the day and after the CAW and the GBHGC were fully engaged in the process mandated by LRA. It is not clear to me what meaningful consultation could have taken place by the time the government had knowledge of the claim.
[60] This is closely related to the third element and the need for conduct that would infringe or interfere with the claimed right. Ontario enacted the LRA more than 50 years ago, before the province knew or ought to have known of the existence of any claimed aboriginal right. In Haida Nation, it was the government that proposed to take some action that could interfere with or violate aboriginal rights. In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, [2005] S.C.J. No. 71, [page600] another duty to consult case, the action triggering the duty was described at para. 49 as "unilateral Crown action". Where the government knows or ought to know that its proposed action will have an effect on a claimed aboriginal right, it is precluded from blindly proceeding without first consulting with the First Nation community whose rights are or might be affected. Here, however, it was the appellant, not the Crown, that took peremptory and unilateral action that initiated the dispute or conflict implicating a claim of aboriginal rights.
[61] Finally, if I am wrong and a duty to consult did arise, the scope of any duty was minimal. The duty to consult does not preclude the Crown from disputing an aboriginal claim that is asserted by a First Nation and litigating its existence before an impartial tribunal. In the circumstances of this case, faced with the urgent need to resolve the dispute between GBHGC and CAW, the Crown acted appropriately in referring the matter to the OLRB: the OLRB is an impartial decision-maker with expertise in the area of dispute and the process gave the appellant a full opportunity to present its case. Moreover, the appellant did participate in the OLRB proceedings, but did not refer to the duty to consult until after the OLRB decided the case against the appellant.
[62] Accordingly, I reject the appellant's submission that the Crown is in breach of its duty to consult and accommodate.
Conclusion
[63] For these reasons, I would dismiss the appeal and award the respondent CAW costs in the agreed amount of $15,000 inclusive of disbursements and GST.
Appeal dismissed.