COURT FILE NO.: 10/04

DATE: 20060531

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND JARVIS JJ.

B E T W E E N:

MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION

Applicant

• and -

NATIONAL AUTOMOBILE AEROSPACE TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 444, GREAT BLUE HERON GAMING COMPANY AND ONTARIO LABOUR RELATIONS BOARD

Respondents

• and -

ATTORNEY GENERAL OF CANADA

Intervenor

B.T. Daly, for the Applicant MSIFN

L.N. Gottheil and N. Lindquist for the Respondent Union, CAW

O. Young, J. Roy and S. Paul for the Attorney General of Canada (Intervenor)

M. Crow and P. Lemmond, for the Attorney General of Ontario (Intervenor)

R.K. Agarwal and T. Read-Grieve for the Great Blue Heron Gaming Company, Respondent, Employer

V. Stelmaszynkski for OLRB

HEARD at Toronto: February 23, 24, 25 and 28, 2005

O’DRISCOLL J.:

I. The Issue

[1] The Chair of the Ontario Labour Relations Board (OLRB), Kevin Whitaker, in his written reasons of November 30, 2004, summarized it this way:

What This Case Is About

1. This matter consists of a Ministerial Reference pursuant to section 115 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”), an unfair labour practice complaint and an application for interim relief. All three applications raise a common issue as to whether or not a Labour Relations Code enacted by the First Nation Intervenor, supersedes the provisions of the Act. Such a result is urged upon the Board by the Intervenor and contested by the trade union and both Attorneys General. The employer takes no position.

2. By decision dated December 12, [2003] with reasons to follow, the Board found the answer to the constitutional question to be “no”. Accordingly, the provisions of sections 17, 18, 70 and 96 of the Act apply to the labour relations of the respondent employer and its employees. The employer is obliged to bargain with the applicant union and the Minister has the jurisdiction to appoint a conciliation officer.

II. Nature of these Proceedings, Parties and Intervenors

[2] On January 9, 2004, the Applicant, Mississaugas of Scugog Island First Nation (MSIFN), also referred to as the “Band”, launched this application for judicial review under s. 2 and s. 61 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, seeking an order quashing 9 orders of the OLRB in OLRB files: No. 1271-03-U, No. 1336-03-M and No. 1414-03-M. The impugned orders of the OLRB are:

(a) September 8, 2003, – OLRB’s order stating the constitutional question with respect to the three (3) applications before the OLRB pursuant to the provisions of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (LRA 1995):

Are the provisions of sections 17 [obligation to bargain], 18 [appointment of conciliation officer by Minister], 70 [employer not to interfere with union] and 96 [inquiry of alleged contraventions of the Act] of the Labour Relations Act, 1995 of no force and effect with respect to the labour relations of the respondent employer and its employees by reason of:

(1) the enactment of the Mississaugas of Scugog Island First Nation Labour Relations Code; and/or

(2) aboriginal or treaty rights of the Mississaugas of Scugog Island First Nation recognized and affirmed in the Constitution Act, 1982; and/or

(3) aboriginal or treaty rights of the Mississaugas of Scugog Island First Nation recognized and affirmed in the Indian Act R.S.C. 1985, c. I-5 as amended; and/or

(4) inherent rights to self government of the Mississaugas of Scugog Island First Nation.

(b) September 17, 2003, – OLRB’s decision that it had the jurisdiction to determine the constitutional question.

(c) September 17, 2003, October 9, 2003, November 12, 2003, November 25, 2003, and the December 17, 2003, procedural rulings designed to streamline and expedite the hearing of the constitutional question.

(d) December 12, 2003, – the decision of the OLRB (after hearing submissions on December 8, 2003) that the MSIFN did not have the authority to pass its Labour Relations Code (the Code). OLRB’s full reasons for its December 12, 2003, decision were released on November 30, 2004.

(e) December 24, 2003, – after hearing submissions from all affected parties, OLRB refused to reconsider its answer of “no” to the constitutional question

(f) January 6, 2004, – the OLRB expanded on its reasons for refusing to reconsider its December 12, 2003 decision.

[3] On this application for judicial review, counsel for the Applicant, counsel for the Intervenor Attorney General (Canada) (A.G. (Can)), counsel for the Intervenor Attorney General (Ontario) (A.G. (Ont)), and counsel for CAW each filed a factum, books of authorities and made oral submissions.

[4] Counsel for the OLRB filed a factum limited to 2 areas:

(a) a submission that the applicable standard of review is correctness for the OLRB’s decision on the constitutional question, and

(b) submitting that the applicable standard of review on the OLRB’s procedural rulings/orders is patent unreasonableness.

[5] Counsel for the OLRB also filed a casebook and attended all 4 days of argument but made no submissions before us as to the merits of the application.

[6] Counsel for the Great Blue Heron Gaming Company (GBH) did not file a factum, were in attendance for the 4 days of argument but made no oral submissions. Counsel advised that GBH took no position before the OLRB.

[7] Counsel for A.G. (Can) and counsel for A.G. (Ont) supported the position of the Respondent Union, CAW.

III. Background and Chronology

[8] The Applicant, MSIFN, is a registered Indian Band (the Band) under the Indian Act, R.S.C. 1985, c. I-5, as amended. [The term “First Nation” is not used or referred to in the Indian Act]. The Band has 173 registered members, of which 40 live on the Band’s reserve land (the reserve) located near Port Perry, Ontario, northeast of Toronto. The reserve is subject to the Indian Act. The Band is a self described, small, aboriginal community, part of a larger Mississauga tribe or nation, which in turn is a branch of the Ojibway Nation.

[9] The Band’s reserve occupies 2 parcels of land covering 322 hectares (795.65 acres) more or less.

[10] On the Band’s reserve, the buildings are:

(a) The Great Blue Heron Casino, owned by MSIFN. There is easy, free and unfettered public access to the GBH casino on the MSIFN’s reserve and to the reserve itself for aboriginal and non-aboriginal persons. The MSIFN does not check who comes onto the reserve or who attends the casino.

(b) A GBH casino storage facility

(c) A Band community centre

(d) A Band office

(e) A open-air, canopy covered Band meeting place

(f) Some residential housing

[11] The Respondent employer, GBHGC, is a joint venture of 3 corporate entities. Casinos Austria International Ltd. (CAIL) holds a 72% majority interest in GBHGC. CAIL is a multi-national publicly traded company. In 2002, it had revenues of more than $3 billion. In 2002, GBHGC was in the top three profit makers of CAIL’s 100 casinos. CAIL operates casinos in many different countries and on cruise ships. GBHGC earns a substantial management fee by way of profit sharing with the owner of GBH casino. CAIL employs 8,000 employees worldwide.

[12] The MSIFN formed the Baagwating Community Association (Association), a federal non-profit corporation, to take responsibility for the conduct and management of the table game operations at the casino. The Association has 8 directors, all members of MSIFN, 4 being part of the employer’s management team. The Association engaged GBHGC to manage and conduct the day-to-day business of the casino. However, the slot machines are operated by GBHGC on behalf of the Ontario Lottery and Gaming Corporation.

[13] The casino offers Las Vegas style gaming including over 50 table games, such as blackjack, 3-card poker, roulette, big 6 wheel and hold ‘em poker as well as more than 450 slot machines. The Band receives 5% of the gross revenue from the slot machines. In year one of the slots, 2000-2001, the gross was $57.2 million. The casino also provides beverages and food.

[14] About 1,000 persons work at the casino which operates 24/7. One percent of the GBH casino workers are members of the MSIFN. The only other people working on the reserve are approximately 12 full-time and 3 part-time employees of the Band council.

[15] The Respondent Union, CAW, is Canada’s largest private sector trade union with more than 255,000 members.

[16] The GBH casino opened on January 31, 1996. Shortly thereafter, the CAW began its efforts to organize GBHGC employees. The campaign was sporadic from 1997-2001 and intensified in 2002. The GBHGC and the MSIFN made their opposition quite clear to the union’s campaign for certification.

[17] In December 2002, CAW made an application to the OLRB for certification. 306 workers voted in favour of union representation and 150 did not.

[18] At no time did the MSIFN intervene in the certification procedure before the OLRB. MSIFN did not advise the OLRB or the parties that it was contemplating the passage of its own labour code. Nor did it allege that OLRB had no jurisdiction or assert aboriginal and/or treaty rights inherent to the MSIFN that would be infringed by certification of CAW by the OLRB.

[19] On January 23, 2003, the OLRB certified CAW as the union for the employees of GBHGC.

[20] Neither GBHGC nor the MSIFN challenged the certification of CAW as the bargaining agent for the employees at GBH casino. Nor was there any application for judicial review asking to quash the certification.

[21] On February 4, 2003, CAW gave GBHGC a “notice to bargain”, that is, a notice to bargain a first collective agreement with CAW after the union had been certified by OLRB. Bargaining was delayed pending the approval of CAW as a supplier to the Alcohol and Gaming Commission of Ontario (AGCO).

[22] On May 29, 2003, CAW was approved as a trade union supplier by AGCO. This approval permitted CAW to deal with GBHGC regarding slot machines and alcohol issues under the Gaming Control Act, 1992. The Band Council learned of this approval sometime between May 29, 2003, and June 6, 2003.

IV. The Code

[23] On June 6, 2003, by resolution of the MSIFN Council, MSIFN approved a “Labour Relations Code” (Code), which purports to govern labour relations on the MSIFN reserve, and arguably, labour relations off the reserve that relate to activities involving connected entities that stem from the MSIFN reserve. The Code also has a schedule of fees.

[24] In the transcript of MSIFN’s past Chief, Rennie Goose, he states that as far back as November 1999, the MSIFN contemplated drafting the Code (OLRB, Supplementary Record: Vol. 12, p. 2737, Q. 69).

[25] The transcript of evidence of the current Chief, Tracey Gauthier, for December 1, 2003, (Vol. 11, p. 2292) and December 2, 2003, (Vol. 11, p. 2356, 2409, 2410, 2434 and 2436) establishes that the proposed Code was not:

(a) mailed out to MSIFN members,

(b) posted in a public place,

(c) discussed at a public place,

(d) made the subject of a members’ vote,

(e) the subject of consultation with MSIFN band elders.

[26] The evidence of Chief Gauthier establishes that the Code was passed at an informal, off the record get-together of Chief Gauthier and two (2) Band councillors. No minutes were kept of the “get-together”.

[27] On June 6, 2003, the MSIFN issued a press release which claimed that the Code “regulates the relationship between the employers and trade unions, including union organizing campaigns, certifications as bargaining agent, and collective bargaining processes”.

[28] In its reasons, dated November 30, 2004, the OLRB stated:

15. On June 6, 2003, by resolution of the First Nation Band Council, the First Nation approved a Labour Relations Code (the “Code”). The Code purports to govern labour relations on the reserve and arguably, to a broader extent, labour relations off the reserve that relate to activities involving commercial entities that stem in different ways from the First Nation.

16. The Code appears in many respects to be modeled on the Canada Labour Code (the “CLC”). The Code contains most of the significant provisions of the CLC and is clearly designed to regulate collective bargaining in the same manner as the CLC or, for that matter, the Act and other provincial labour relations statutes.

17. The Code establishes a labour relations tribunal known as the Dbaaknigewin. This tribunal exercises powers and a jurisdiction which is analogous to that of the Board under the Act and other labour boards in other Canadian jurisdictions.

18. There are some special features to the Code which do not appear in the CLC or the Act. For example, there is no right to strike or lock out. Further, a union interested in entering onto the reserve to speak to workers must pay a fee of $3000.00. A worker who wishes to file an unfair labour practice must pay what amounts to a filing fee of $12,000.00. The casino employer in this case is prohibited under the Code from bargaining with a union that is not certified under the Code.

19. Following the passage of the Code, the employer casino took the position that it could not commence bargaining with the union without running afoul of the Code. The employer in these proceedings has consistently maintained the position that it simply wishes to be told which statutory regime applies to its operations – is it the Code or the Act?

V. The Proceedings before the OLRB

[29] On July 15, 2003, CAW requested that the Minister of Labour (the Minister) appoint a conciliation officer under s. 18 of the LRA 1995.

[30] On July 16, 2003, GBHGC objected to the request alleging that it was unclear whether or not the LRA, 1995 applied.

[31] On July 18, 2003, MSIFN wrote to the Minister stating that the LRA, 1995 did not apply and that the casino’s labour relations were governed by MSIFN’s Code, passed on June 6, 2003.

[32] On July 18, 2003, CAW filed with the OLRB an unfair labour practice complaint alleging that the employer was not bargaining in good faith as it was obliged to do under s. 17 of the LRA, 1995. (OLRB file No. 1271-03-U)

[33] On July 23, 2003, the Minister referred to the OLRB, under s. 115 of the LRA, 1995, the issue as to whether the Minister had the authority to appoint a conciliation officer (OLRB file No. 1336-03M).

[34] On July 31, 2003, CAW filed an application for interim relief. CAW sought an expedited hearing expressing fear that its bargaining rights could end in January 2004, that it could be decertified one year after the certification if a conciliation officer was not appointed within one year of certification and no collective agreement was in place by the first anniversary of certification (OLRB file No. 1414-03M).

[35] MSIFN intervened in the 3 applications and gave “Notice of a Constitutional Question” to the Attorneys General of Canada and Ontario.

[36] On September 5, 2003, the OLRB heard submissions as to the manner in which the constitutional question should be phrased. After hearing submissions, the OLRB gave an oral decision, recorded in its written reasons of September 8, 2003. Those reasons have been set out earlier in these reasons.

[37] On September 16, 2003, the OLRB heard submissions as to whether it had jurisdiction to hear and whether it should entertain a constitutional question.

[38] On September 17, 2003, the OLRB held that it had jurisdiction and would hear the constitutional question.

[39] In Martin and Laseur v. Nova Scotia (Workers’ Compensation Board), [2003] 2 S.C.R. 203, the Court said:

[31] Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks, supra, at p. 17. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal’s administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases.

[40] In Martin, the Court was reiterating what it had said in Cuddy Chicks Ltd. v. Ontario Labour Relations Board et al. (1991), 81 D.L.R. (4th) 121, per LaForest J.:

p.129:

In the result, the board has the authority to apply the Charter and to rule on the constitutionality of s. 2(b) of its enabling statute, in the course of the union’s application for certification.

p. 129:

The overarching consideration is that labour boards are administrative bodies of a high calibre. The tripartite model which has been adopted almost uniformly across the country combines the values of expertise and broad experience with acceptability and credibility. In C.U.P.E., Local 963 v. New Brunswick Liquor Corp. (1979), 97 D.L.R. (3d) 417 at p. 424, [1979] 2 S.C.R. 227, 79 C.L.L.C. ¶ 14,029, Dickson J. (as he then was) characterized the particular competence of labour boards as follows:

The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

It must be emphasized that the process of Charter decision-making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision-maker to analyze competing policy concerns is critical. Therefore, while board members need not have formal legal training, it remains that they have a very meaningful role to play in the resolution of constitutional issues. The informed view of the board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance. This is evidenced clearly by the weight which the judiciary has given the factual record provided by labour boards in division of powers cases: see, for example, Northern Telecom Canada Ltd. v. Communication Workers of Canada (1983), 147 D.L.R. (3d) 1, [1983] 1 S.C.R. 733, 48 N.R. 161.

That having been said, the jurisdiction of the board is limited in at least one critical respect: it can expect no curial deference with respect to constitutional decisions. Furthermore, a formal declaration of invalidity is not a remedy which is available to the board. Instead, the board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the board on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.

[41] On September 17, 2003, the OLRB ordered that MSIFN would be the first litigant to present its evidence on the constitutional question. The OLRB also set out a schedule for the serving and filing of pleadings.

[42] On September 17, 2003, MSIFN sought from Ferrier J. a stay of the OLRB’s direction of September 17, 2003.

[43] In his endorsement of October 9, 2003, Ferrier J. dismissed the application for a stay: [2003] O.J. No. 3949. On October 9, 2003, the OLRB issued an order extending the time to serve and file pleadings.

[44] On October 30, 2003, after the parties had filed pleadings and documents, the OLRB indicated that much of the proposed evidence did not seem to be in dispute and asked for submissions from counsel for the parties as to whether a procedure echoing the litigation of applications under the Rules of the Procedure of the Superior Court of Ontario could be adopted, that is, file affidavits, cross-exam thereon and thereafter conduct trials of issues, if required, on specified issues of fact. The parties made their submissions on that date on that procedural issue.

[45] On November 7, 2003, CAW made a motion to the OLRB that it should hear submissions as to why the Minister should be advised to appoint a conciliation officer even though the constitutional question had not been determined.

[46] On November 12, 2003, the OLRB directed that the proceedings would proceed on the basis of the procedure proposed by the OLRB on October 30, 2003.

[47] On November 24, 2003, the OLRB heard the parties’ submissions on the CAW’s motion of November 7, 2003.

[48] On November 25, 2003, the OLRB deferred decision on CAW’s motion of November 7, 2003 until after the December 8, 2003 hearing on the constitutional issue.

[49] On December 3, 2003, counsel for the A.G. (Canada) moved to have the OLRB adjourn the December 8, 2003, hearing to permit all parties time to file further evidence. Counsel for the A.G. (Ont) made a similar request. MSIFN opposed those requests.

[50] On December 4, 2003, the OLRB decided that the hearing scheduled for December 8, 2003 should proceed (that procedural ruling is not part of the judicial review application).

[51] On December 8, 2003, the OLRB heard the parties’ submissions on the constitutional question. The OLRB had the affidavits filed by the parties, cross-examinations thereon, exhibits, casebooks and a factum from each party (except the employer) and from the intervenors.

[52] On December 12, 2003, the OLRB answered the constitutional question in the negative.

[53] On December 18, 2003, by letter, MSIFN asked the OLRB to reconsider its answer to the constitutional question.

[54] In its December 24, 2003, decision, the OLRB dismissed MSIFN’s request for a reconsideration.

[55] On January 9, 2004, this judicial review application was launched by MSIFN.

VI. The material relied on by the parties and intervenors at the December 8, 2003 constitutional Hearing

[56] GBHGC filed no material and took no position on the constitutional question.

[57] The CAW relied on the affidavit of Mike Reuter, a national representative of the CAW.

[58] The MSIFN relied upon:

(i) The affidavit of Tracy Gauthier, the Chief,

(ii) The affidavit of Rennie Goose, past Chief,

(iii) The affidavit of Angela Robinson, counsellor of MSIFN,

(iv) The affidavit of James Morrison, research consultant and expert ethno historian regarding aboriginal issues and policy, and

(v) The affidavit of Mark Walters, Associate Professor, Faculty of Law, Queen’s University, Kingston, Ontario.

[59] The A.G. (Ont) relied on:

(i) The affidavit of Alexander von Gernet, expert anthropologist and ethno historian concerning aboriginal peoples, and

(ii) The affidavit of Mort Mitchnick, lawyer, arbitrator, mediator and past Chair of the OLRB.

[60] The A.G. (Can) relied on the affidavit of Christine Gravel, Litigation Project Manager with the Office of Indian and Northern Affairs Canada.

[61] At the December 8, 2003, hearing before the OLRB:

(a) Counsel for A.G. (Ont) moved to strike out portions of the affidavit of Mark Walters, and

(b) Counsel for MSIFN moved to strike out all of the affidavit of Mort Mitchnick.

[62] The OLRB ruled that the affidavit of Mort Mitchnick be struck out and the affidavit of Mark Walters be left intact.

[63] In its written reasons of November 30, 2004, which amplify its reasons of December 12, 2003, the OLRB states:

[70] All other tendered evidence and information was considered by the Board. In other words, with the exception of the affidavit of Mr. Mitchnick, everything else that the parties wished to put before the Board was and has been considered.

[71] Unlike many other aboriginal rights cases that have been decided by the courts, there was no aboriginal oral history put before the Board. The First Nation’s deponents provided information about the factual circumstances surrounding the passage of the Code, but did not provide any historical information about their First Nation. Rather, the historical evidence and information before the Board was derived from non-aboriginal experts on the basis of both primary and secondary research. This was supplemented with a significant quantity of scholarly literature.

VII. 2 Decisions of the Supreme Court of Canada concerning labour relations and aboriginals that pre-date the coming into force of s. 35 of the Constitution Act, 1982

[64] In Cardinal v. A.G. Alberta, [1974] S.C.R. 695, 703, Martland J. (for a 6-3 majority) said:

A Provincial Legislature could not enact legislation in relation to Indians, or in relation to Indian Reserves, but this is far from saying that the effect of s. 91(24) of the British North America Act, 1867, was to create enclaves within a Province within the boundaries of which Provincial legislation could have no application. In my opinion, the test as to the application of Provincial legislation within a Reserve is the same as with respect to its application within the Province and that is that it must be within the authority of s. 92 and must not be in relation to a subject-matter assigned exclusively to the Canadian Parliament under s. 91. Two of those subjects are Indians and Indian Reserves, but if Provincial legislation within the limits of s. 92 is not construed as being legislation in relation to those classes of subjects (or any other subject under s. 91) it is applicable anywhere in the Province, including Indian Reserves, even though Indians or Indian Reserves might be affected by it. My point is that s. 91(24) enumerates classes of subjects over which the Federal Parliament has the exclusive power to legislate, but it does not purport to define areas within a Province within which the power of a Province to enact legislation, otherwise within its powers, is to be excluded.

[65] In Four B Manufacturing Limited v. United Garment Workers of America, [1980] 1 S.C.R. 1031, Beetz J. (for a 7-2 majority) said:

p. 1044:

Four B was incorporated pursuant to the laws of Ontario to carry on business as a manufacturer of shoes on the Tyendinaga Indian Reserve No. 38, a reserve set aside for the Band of Indians known as the Mohawks of the Bay of Quinte. All of the issued shares of Four B are held by four brothers named Brant, all of whom are members of the Band.

The business or operation of Four B consists entirely in the sewing of uppers on contract for the Bata North Star Jogger, a shoe manufactured by the Bata Shoe Company.

Four B is in no way owned or controlled by the Band Council which will have no share in its profits.

Four B occupies premises upon the Reserve pursuant to a three year renewable permit issued by Her Majesty the Queen in right of Canada with the approval of the Band Council.

p. 1045:

The issue is whether The Labour Relations Act applies to the activities of Four B and its employees and the Board had jurisdiction to make the two decisions under review.

In my view the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in 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:

p. 1047:

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, …. 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.

p. 1049:

In my view, this submission is an attempt to revive the enclave theory of the reserves in a modified version: provincial laws would not apply to Indians on reserves although they might apply to others. The enclave theory has been rejected by this Court in Cardinal v. Attorney General for Alberta and I see no reason to revive it even in a limited form. Section 91.24 of the British North America Act, 1867 assigns jurisdiction to Parliament over two distinct subject matters, Indians and Lands reserved for the Indians, not Indians on Lands reserved for the Indians.

See also: Chippewas of Sarnia Band v. Canada (A.G.), [1999] O.J. No. 1406 per A.G. Campbell J.

[66] Counsel for A.G. (Ont)’s factum makes this submission:

26. In this case, however, no party or intervener – including the Attorney General of Canada – takes the position that the Canada Labour Code, R.S.C. 1985, c. L-2, or the federal Indian Act, R.S.C. 1985, c. I-5, applies. There is therefore no conflict with a federal law. In this regard, it should be noted that the Supreme Court of Canada has stated that courts “should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it.

OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at pp. 19-20, BA – Ontario, Vol.1, Tab 4

Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, 2002 S.C.C. 31 at para. 72, BA – Ontario Vol. 1, Tab 5.

VIII. Constitution Act, 1982

s. 25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

s. 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

s. 52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[67] In its November 30, 2004, reasons, the OLRB said:

[48] Up until 1982, aboriginal and treaty rights were subject to unilateral extinguishment by the Crown. Those rights that existed in 1982 obtained constitutional protection by virtue of section 35(1) of the Constitution Act. From that point forward, the Crown could not unilaterally abrogate such rights, but could limit these rights where justified on the basis of a substantial and compelling public objective.

IX. Does the OLRB have jurisdiction to hear and decide questions under s. 35 of the Constitution?

[68] In Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, Bastarache J. (for the Court) said:

[36] As a preliminary issue, I note that there is no basis for requiring an express empowerment that an administrative tribunal be able to apply s. 35 of the Constitution Act, 1982. There is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, such as the division of powers under the Constitution Act, 1867 or a right under the Charter. Section 35 is not, any more than the Charter, “some holy grail which only judicial initiates of the superior courts may touch” (Cooper [[1996] 3 S.C.R. 3854] at para. 70, per McLachlin J. (as she then was), dissenting). This Court has rejected the theory that Indian reserves are federal “enclaves” from which provincial laws are excluded: Hogg, supra, at p. 27-10, discussing Francis [1988 31 (SCC), [1988] 1 S.C.R. 1025]; Four B [1979 11 (SCC), [1980] 1 S.C.R. 1031]. Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative tribunal from ruling, at first instance, on the border between those aboriginal rights and a provincial law of general application. The arguments that s. 35 rights are qualitatively different – that they are more complex, and require greater expertise in relation to the evidence adduced – have little merit. As Moen J. noted in Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760, at para. 51, in determining that a Human Rights Tribunal had jurisdiction to consider a s. 35 argument:

[T]here is no principled basis for distinguishing Charter questions from s. 35 questions in the context of the Tribunal’s jurisdiction to consider constitutional questions. In either case, the decision-maker is simply applying the tests set out in the case law to determine if the particular right claimed is protected by the Constitution. In either case, if the applicant is successful, the result is a declaration of invalidity or a refusal to apply only the particular statute or provision before the decision-maker.

To the extent that aboriginal rights are unwritten, communal or subject to extinguishment, and thus a factual inquiry is required, it is worth noting that administrative tribunals, like courts, have fact-finding functions. Boards are not necessarily in an inferior position to undertake such tasks. Indeed, the more relaxed evidentiary rules of administrative tribunals may in fact be more conducive than a superior court to the airing of an aboriginal rights claim.

[39] ….The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of s. 35 or any other relevant constitutional provision. Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law. That is not to say, however, that practical considerations cannot be taken into consideration in determining what is the most appropriate way of handling a particular dispute where more than one option is available.

[69] Here, the LRA 1995 (supra) contains 2 privative clauses:

s. 114(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it. …

s. 116 – it excludes judicial review, subject to the courts’ overriding supervision and constitutional jurisdiction.

[70] The only relevant issue is the validity of the MSIFN’s Code, a question that depends entirely on whether MSIFN has a s. 35 right to govern its labour relations. This issue comes within the OLRB’s jurisdiction because it is an issue that must be resolved in determining whether or not the LRA 1995 applies.

[71] In my view, based on the authorities cited, the OLRB had jurisdiction to decide the question under s. 35 of the Constitution.

X. Establishing s. 35 Constitution Aboriginal Rights

[72] In Mitchell v. Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 911, 925, McLachlin C.J. (for the 5-2 majority) said:

[8] The issue can be addressed in the following manner:

A. What is the Nature of Aboriginal Rights?

B. What is the Aboriginal Right Claimed?

C. Has the Claimed Aboriginal Right Been Established?

(1) Evidentiary Concerns – Proving Aboriginal Rights

(a) Admissibility of Evidence in Aboriginal Right Claims

(b) The Interpretation of Evidence in Aboriginal Right Claims

(2) Does the Evidence Show an Ancestral Mohawk Practice of Trading North of the St. Lawrence River?

(3) Does the Evidence Establish that the Alleged Practice of Trading Across the St. Lawrence River Was Integral to Mohawk Culture and Continuous to the Present Day?

[11] The common law status of aboriginal rights rendered them vulnerable to unilateral extinguishment, and thus they were “dependent upon the good will of the Sovereign”: see St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), at p. 54. This situation changed in 1982, when Canada’s constitution was amended to entrench existing aboriginal and treaty rights: Constitution Act, 1982, s. 35(1). The enactment of s. 35(1) elevated existing common law aboriginal rights to constitutional status (although, it is important to note, the protection offered by s. 35(1) also extends beyond the aboriginal rights recognized at common law: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 136). Henceforward, aboriginal rights falling within the constitutional protection of s. 35(1) could not be unilaterally abrogated by the government. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives: see R. v. Gladstone, [1996] 2 S.C.R. 723, and Delgamuukw, supra.

[12] In the seminal cases of R. v. Van der Peet, [1996] 2 S.C.R. 507, and Delgamuukw, supra, this Court affirmed the foregoing principles and set out the test for establishing an aboriginal right. Since s. 35(1) is aimed at reconciling the prior occupation of North America by aboriginal societies with the Crown’s assertion of sovereignty, the test for establishing an aboriginal right focuses on identifying the integral, defining features of those societies. Stripped to essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, custom or tradition must have been “integral to the distinctive culture” of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples’ identity. It must be a “defining feature” of the aboriginal society, such that the culture would be “fundamentally altered” without it. It must be a feature of “central significance” to the peoples’ culture, one that “truly made the society what it was” (Van der Peet, supra, at paras. 54-59 (emphasis in original)). This excludes practices, traditions and customs that are only marginal or incidental to the aboriginal society’s cultural identity, and emphasizes practices, traditions and customs that are vital to the life, culture and identity of the aboriginal society in question.

[13] … The question is whether the impugned act represents the modern exercise of an ancestral practice, custom or tradition.

[15] In Van der Peet, supra, at para. 53, the majority of this Court provided three factors that should guide a court’s characterization of a claimed aboriginal right: (1) the nature of the action which the applicant is claiming was done pursuant to an aboriginal right; (2) the nature of the governmental legislation or action alleged to infringe the right, i.e. the conflict between the claim and the limitation; and (3) the ancestral traditions and practices relied upon to establish the right. The right claimed must be characterized in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed. An overly narrow characterization risks the dismissal of valid claims and an overly broad characterization risks distorting the right by neglecting the specific culture and history of the claimant’s society: see R. v. Pamajewon, [1996] 2 S.C.R. 821.

[73] In its reasons of November 30, 2004, from para. 46 – 86, the OLRB refers to the tests set down by the Supreme Court of Canada in order to establish an aboriginal right:

(1) Mitchell v. M.N.R. (supra); (2) R. v. Van der Peet (supra); (3) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

[74] The OLRB concluded with regard to the appropriate characterization of the claimed aboriginal right:

(a) MSIFN asserts that the law which governs its labour relations and which binds the GBHGC (employer) is not the LRA 1995 but its Code of June 6, 2003 and that the “action” to be considered is the passing and enforcement of the Code.

(b) The government legislation and action is the LRA 1995 and its enforcement.

(c) The ancestral tradition and practices relied upon by MSIFN to establish the right are assertions of power and authority to control how labour is organized on their territory and the rights to control access to their lands. The right is asserted under the umbrella of self government dating before first contact with Europeans and continued on down in the treaty relationship of the Covenant Chain.

[75] The OLRB concluded at para. 65:

In these circumstances the proper characterization of the rights asserted here is the right of the First Nation to regulate labour relations on their reserve lands.

XI. Burden of Proof

[76] The onus to establish an aboriginal or a treaty right is upon the MSIFN because it is asserting the alleged right.

[77] In R. v. Van der Peet, (supra), Lamer C.J. (for the 7-2 majority) said:

[46] …the following test should be used to identify whether an applicant has established an aboriginal right protected by s. 35(1): in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

[78] In R. v. Marshall (1), [1999] 3 S.C.R. 456, the Court confirmed that the onus was on the party alleging the right to prove the treaty or the distinctive tradition or custom.

XII. Conclusions of the OLRB as to whether or not the MSIFN satisfied the onus on it to prove an aboriginal right under s. 35 of the Constitution for MSIFN to regulate its labour relations

[79] The OLRB’s reasons of November 30, 2004, state:

78. If one accepts the entirety of the expert evidence put forward by the First Nation, it establishes that labour was organized consensually through community and kinship relationships, and further, that access to territory controlled by the First Nation and activities carried out in the territory was controlled by councils of chiefs.

79. 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 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.

80. 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.

81. 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.

82. This conclusion reached on the first point is really dispositive of the second and third branches of the test. As there is no ancestral practice of regulating labour relations, there can be no practice or custom which was integral to and distinctive of the pre-contact society and there can be no continuity between the pre-contact practice and the contemporary claim.

83. The real difficulty in this case is similar to that dealt with by the Supreme Court in Pamajewon – that there is nothing about the right being asserted which is in any way distinctive to the First Nations society historically unless the right itself is cast as broadly as the general right of “self-government”. Even if one took a broader notion of the characterization of aboriginal rights as reflected in the dissent by Madame Justice L’Heureux-Dubé in Pamajewon, there is nothing in the record upon which one could find that there were ancestral practices that managed labour in any particular distinct way.

84. …Certainly it cannot be said that the culture would have been “fundamentally altered” without the ability to govern the organization of labour. That ability could not have “made the society what it was”.

XIII. Treaty Rights

[80] The MSIFN also claims in this case that aboriginal rights flow from:

(a) The Covenant Chain treaty relationship.

The OLRB, after considering the evidence, stated:

91. Even if one adopts the submissions of the First Nation and assumes that the Covenant Chain did form a treaty upon which the First Nation may rely, it is difficult to see how this treaty provides for the rights of self-government or the organization of labour on First Nation territory.

92. 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.

93. 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 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.

(b) The Treaty of Niagara of 1764

[81] MSIFN claims this Treaty establishes a continuation of the Covenant Chain Treaty relationship.

[82] The OLRB concluded that the Treaty of Niagara is a “treaty of peace, friendship and trade”. Mr. Mark Walters, MSIFN’s expert, confirmed this during his cross-examination on December 3, 2003.

[83] The OLRB further concluded:

96. As the Attorney General of Ontario has submitted, the circumstances surrounding the making of the Treaty of Niagara are broadly similar to the peace and friendship treaties that were before the Supreme Court in Marshall (1), supra, and (2), [1993] 3 S.C.R. 533. Nothing in either of the Court’s decisions in that matter suggests that these types of treaties should be understood to support rights of self-government.

97. Having regard to the evidence before the Board concerning the meaning of the Covenant Chain, the documentary material relating to the Treaty of Niagara and the Supreme Court’s analysis of the nature of treaty rights in Marshall (1) or (2) and Badger, [1996] 1 S.C.R. 771, the Board concludes that there is no treaty right established which would permit the conclusion either of any right to regulate labour relations on First Nations territory, or more broadly, a right of self-government.

[84] In Paul (supra), the Court said:

[33] …The “core” of Indianness has not been exhaustively defined. It encompasses the whole range of aboriginal rights that are protected by s. 35(1): Delgamuukw, supra, at para. 178. For present purposes, it is perhaps more easily defined negatively than positively. The core has been held not to include labour relations (Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031) and highway traffic regulation on reserves (R. v. Francis, [1988] 1 S.C.R. 1025). On the evidence adduced in Kitkatla Band, supra, at para. 70, the status or capacity of Indians was found not to be impaired by the impugned Heritage Conservation Act, R.S.B.C. 1996, c. 187. Given that these substantive matters were held not to go to the core of Indianness, I cannot see how the procedural question in this appeal can. The respondent has failed to demonstrate that the procedural right to raise at first instance a defence of aboriginal rights in a superior court, as opposed to before a provincially constituted tribunal, such as the Commission, goes to the core of Indianness.

XIV. Justification

[85] Because the OLRB concluded that there was neither an aboriginal pre-contact right nor a treaty right that qualified under s. 35 of the Constitution, there was no need to address the doctrine of justification but did so in para. 98 to para. 102. The OLRB concluded:

103. For these reasons, the Board concludes that if there is an aboriginal or treaty right which has been infringed by those portions of the Act challenged by the Intervenor, such infringement is justified.

XV. Standard(s) of review to be applied by the Divisional Court to the impugned OLRB’s decisions

A. Constitutional Questions

[86] As stated by the Supreme Court of Canada at para. 39 and 45 of its decision in Paul, supra, the OLRB has the jurisdiction to decide questions relating to aboriginal rights arising in the course of a labour relations hearing but the decision is reviewed on a standard of correctness. Section 114(1) of the LRA 1995 states:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it….

[87] The above quotation from Paul is a reaffirmation of what was said by LaForest J. (for the majority) in Cuddy Chicks v. OLRB (supra) at p. 128:

Section 106(1) [now s. 114(1)] of the Labour Relations Act stipulates that the board has exclusive jurisdiction “to determine all questions of fact or law that arise in any matter before it…”. The legislature expressly, and without reservation, conferred authority on the board to decide points of law. In addition, the Act confers powers on the board to determine questions of law and fact relating to its own jurisdiction. Section 124, for example, gives it authority to decide if a matter is arbitrable. The issue, then, is whether this authority with respect to questions of law can encompass the question of whether a law violates the Charter. It is clear to me that a Charter issue must constitute a question of law; indeed, the Charter is part of the supreme law of Canada. This comports with the view expressed in Douglas College that the statutory authority of the arbitrator in that case to interpret any “Act” must include the authority to interpret the Charter.

[88] In Martin and Laseur v. Nova Scotia (Workers Compensation Board) (supra) the Supreme Court of Canada said at para. 31:

….administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard….. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court.

[89] No counsel argued that any standard other than correctness applied to the OLRB’s decisions on constitutional questions.

B. Procedural Issues

[90] As set out in the factum of counsel for the OLRB, the Court of Appeal for Ontario in Re Cedarville Tree Service Ltd. and Labourers’ International Union, Local 183 (1971), 22 D.L.R. (3d) 40, 49 said:

…that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, when its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before it.

[91] Section 110(16) of the LRA 1995 permits the OLRB to determine its own practice and procedure, subject to the parties’ right to be heard fully.

[92] In the proceedings listed in s. 110(18) of the LRA 1995, the OLRB may make rules (s. 110(20)) applying to that subsection. The rules under subsection (18) take precedence over the Statutory Powers Procedure Act.

[93] Under s. 111(2)(e), the OLRB may accept oral or written evidence whether or not admissible in a court of law.

[94] The OLRB, pursuant to s. 98 of the LRA 1995, has made Rules 76 and 77 in relation to interim orders.

[95] Section 2 of the LRA 1995 states, in part:

2. The following are the purposes of the Act:

3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

4. To encourage co-operative participation of employers and trade unions in resolving workplace issues.

5. To promote the expeditious resolution of workplace disputes.

[96] Section 114 and 116 of the LRA 1995 are 2 full privative clauses.

[97] The factors to be taken into account and weighed in deciding “standard of review” are set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193, 209 where they were discussed at paras. 26 – 38.

[98] At para. 26, Bastarache J. (for a 4-2 majority) said:

[26] …..the reviewing court must ask: “was the question which the provision raises one that was intended by the legislators to be left to the exclusive jurisdiction of the Board?”

The Supreme Court of Canada then set out the factors to be considered in deciding on the standard of review:

(i) privative clauses, if any,

(ii) expertise of the tribunal or board per se and in comparison to the court,

(iii) purpose of the act as a whole and the particular provisions under consideration,

(iv) the “nature of the problem”: a question of law or fact?

[99] In Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, Major J. said:

[18] A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard.

[100] In its factum, the OLRB submits:

Based on the “pragmatic and functional approach”, it is submitted that the appropriate standard of review for the Board’s procedural decisions is patent unreasonableness.

The Supreme Court of Canada held in Canada (Attorney General) v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 673 that a patently unreasonable decision is one where the “result must almost border on the absurd”.

[101] With respect, I agree that the standard of review applicable to the non-constitutional issues faced by the OLRB in this case is one of patent unreasonableness.

XVI. Conclusions

[102] In my view, the OLRB correctly followed all the decisions of the Supreme Court of Canada (supra) in deciding that it had jurisdiction to decide whether or not the LRA 1995 applied to the labour relations between the MSIFN and the GBHGC. In my view, the OLRB correctly framed and characterized the issue according to the law and correctly concluded that the MSIFN had not tendered any evidence to satisfy its onus of establishing an aboriginal right and/or a treaty right as claimed by MSIFN, “to regulate labour relations on their reserve lands”.

[103] In my view, the OLRB had statutory authority to conduct the proceedings as it did and statutory authority to come to its non-constitutional decisions in this case. It cannot be said that any one of those decisions was patently unreasonable.

XVII. Result

[104] The application for judicial review is dismissed.

XVIII. Costs

[105] Counsel for the OLRB requests that “no costs be awarded for or against it”. It is so ordered.

[106] Counsel for A.G. (Ont) seeks costs of $7,500.00. The Applicant shall pay the costs of A.G. (Ont), as requested, in the sum of $7,500.00, within 30 days of the release of these reasons.

[107] Counsel for A.G. (Can) and counsel for CAW each seeks costs in an unspecified amount.

[108] If counsel for the applicant, counsel for A.G. (Can) and counsel for CAW are unable to agree on costs within 15 days of the release of these reasons, those counsel shall file brief written submissions on costs within 25 days of the release of these reasons. Thereafter, costs will be fixed.

O’Driscoll J.

Matlow J.

Jarvis J.

Released:

COURT FILE NO.: 10/04

DATE: 20060531

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND JARVIS JJ.

B E T W E E N:

MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION

Applicant

• and -

NATIONAL AUTOMOBILE AEROSPACE TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW – CANADA) AND ITS LOCAL 444, GREAT BLUE HERON GAMING COMPANY AND THE ONTARIO LABOUR RELATIONS BOARD

Respondents

• and -

ATTORNEY GENERAL OF CANADA

Intervenor

REASONS FOR JUDGMENT

O’Driscoll J.

Released: May 31, 2006