A-413-74
Lawrence Francis, Benny Roundpoint, John Shar-
row, William Francis, Gerald Sharrow, Francis
Sam, Angus Mitchell, Mike Adams, James
Lazore, Louis Sunday, Jake Adams, being all
Councillors in August of 1972, of the St. Regis
Indian Band, and of the Cornwall Island or St.
Regis Indian Reserves set aside for the said Band
(Petitioners)
v.
Canada Labour Relations Board (Respondent)
and
Public Service Alliance of Canada and Deputy
Attorney General of Canada (Mis -en-cause)
Court of Appeal, Thurlow C.J., Heald and Le
Dain JJ.—Ottawa, April 8, 9 and May 30, 1980.
Judicial review — Labour relations — Application for
judicial review and to set aside a certification order of the
Canada Labour Relations Board — Employees in subject unit
were members of an Indian Band Council — Whether the
Canada Labour Relations Board lacked jurisdiction to deal
with the employment of Indian persons on or in respect of
Indian reserves, or alternatively because the employer was not
the Council but the Band, since the Council could not be an
employer under s. 107 of the Canada Labour Code — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 2(b),(i), 107(1) ; 108,
118(p), 119 — Indian Act, R.S.C. 1970, c. 1-6, ss. 2(1), 20, 24,
25, 34, 37, 39, 58, 59, 60, 64, 66, 69, 74, 81 — The British
North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (R.S.C.
1970, Appendix II, No. 5J, ss. 91(24), 92(10)(a) — Interpreta
tion Act, R.S.C. 1970, c. 1-23, s. 14 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application for judicial review and to set aside a certification
order of the Canada Labour Relations Board, certifying the
Union as the bargaining agent for a unit of employees compris
ing all employees of an Indian Band Council. The reserve set
aside for the Band is located partly in Ontario and partly in
Quebec. The Board dismissed an application to review and
rescind the certification order. The issue is whether the Board
lacks jurisdiction to deal with the employment of Indian per
sons on or in respect of Indian reserves, or alternatively because
the employer was not the Council but the Band, since the
Council could not be an employer under section 107 of the
Canada Labour Code.
Held, the section 28 application should be allowed and the
certification order set aside.
Per Thurlow C.J.: The Band Council is not the employer of
the employees in respect of whom the certification order was
made. The Band Council is not a person within the meaning of
section 118(p) of the Canada Labour Code. Neither the Coun
cil nor the Band itself is a body corporate. Neither has capaci
ty, apart from the capacity of its members as individuals, to
become or to be an employer of employees. The powers and
authorities exercisable by individuals as a Council arise under
and are limited to those conferred on the Council by the Indian
Act. The members of Council do not have authority as council
lors or as individuals to represent and act for the members of
the Band either on an application for certification or in collec
tive bargaining. It is necessary to identify the employer before
it can be determined whether the activity being carried on is
federal in character.
Per Heald J.: The Board acted without jurisdiction in making
the certification order under review. "Exclusive federal compe
tence" in relation to labour relations refers largely to undertak
ings, services and businesses which, having regard to the func
tional test of the nature of their operations and their normal
activities, can be characterized as federal undertakings, services
or businesses. It is accordingly necessary, applying the func
tional test to determine the nature of the work being performed.
The function of this unit concerns the administration of the
Band and is governmental in nature and comes under the
jurisdiction of the Indian Act. The administration of the Band
is concerned with the status and rights and privileges of Band
Indians. The labour relations in issue here are "an integral part
of primary federal jurisdiction over Indians or Lands reserved
for the Indians", thus establishing federal legislative compe
tence pursuant to the provisions of subsection 91(24) of The
British North America Act, 1867. Federal legislative compe
tence can also be supported pursuant to paragraph 92(10)(a) in
that the subject unit of employees is engaged in a work and
undertaking connecting one province with another province, as
portions of the reserve are in Quebec and other portions are in
Ontario. Parliament has occupied the field by the provisions of
the Canada Labour Code. The administration of the Band is a
"work, undertaking or business", which is a "federal" work,
undertaking or business since the activities engaged in are
being discharged under the authority of the Indian Act. Addi
tionally, the definition in paragraph (b) of the definition "fed-
eral work, undertaking or business" in section 2 of the Code
covers the factual situation in this case since this work and
undertaking connects Ontario with Quebec. Furthermore, the
provisions of paragraph (i) of that definition in section 2 of the
Code would also apply to this activity since it is clearly outside
the exclusive authority of provincial legislatures. The Band
Council is not a "person" within the meaning of subsection
107(1) and is without specific legal capacity to "employ"
employees and thus failed to meet the definition of "employer"
contained in subsection 107(1) of the Code. The Indian Act
does not specifically contain a definition of the word "person".
Nothing in the context of the Act indicates any intention to
confer upon the Band Council itself the status of a legal person.
In the absence of a clear statutory extension to the normal and
usual meaning, the word "person" as used in the Indian Act
means a natural person, i.e., a human being. The "person"
described as an "employer" in subsection 107(1) of the Canada
Labour Code must be a "person" as that term is used in the
Indian Act.
Per Le Dain J. dissenting in part: The activity in which the
employees in question are engaged is activity which falls within
federal legislative jurisdiction with respect to "Indians and
Lands reserved for the Indians" under subsection 91(24) of The
British North America Act, 1867, and constitutes a federal
work, undertaking or business within the meaning of sections 2
and 108 of the Canada Labour Code. The Board did not exceed
its jurisdiction by treating the Band Council as the employer. It
is not clear who, on strict legal tests, could be considered to be
the employer, having regard to the question of legal personality
and the question of authority to make contracts on someone
else's behalf. Yet there is clearly a situation in which persons
have the status of employees. The Board should be held to have
jurisdiction to treat the Band Council as the employer for
purposes of the Code.
Four B Manufacturing Ltd. v. United Garment Workers
of America [1980] 1 S.C.R. 1031, applied. Canada
Labour Relations Board v. City of Yellowknife [1977] 2
S.C.R. 729, followed. The Pharmaceutical Society v. The
London and Provincial Supply Association, Ltd. (1879-
80) 5 App. Cas. 857, referred to.
APPLICATION for judicial review.
COUNSEL:
James O'Reilly and William Grodinsky for
petitioners.
Y. A. George Hynna for respondent.
L. M. Joyal, Q.C. and G. H. Robichon for
mis -en-cause.
SOLICITORS:
O'Reilly & Grodinsky, Montreal, for petition
ers.
Gowling & Henderson, Ottawa, for respond
ent.
Honeywell, Wothersp pn Ottawa, for mis -en-
cause.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I have had an opportunity to
read and consider the reasons for judgment pre
pared by Mr. Justice Heald. I agree with his
conclusion that the St. Regis Indian Band Council
is not the employer of the employees in respect of
whom the certification order attacked in this pro
ceeding was made and that on that account the
order should be set aside.
In my view it was not open to the Canada
Labour Relations Board to find on the facts that
the St. Regis Indian Band Council was the
employer of such employees.
The Board has jurisdiction under section 118(p)
of the Canada Labour Code, R.S.C. 1970, c. L-1
as amended by S.C. 1972, c. 18, s. 1, to decide any
question as to whether a person is an employer.
But it does not have jurisdiction to decide that
what is not a person is a person. In my view the St.
Regis Indian Band Council is not a person within
the meaning of section 118(p). Neither the council
nor the Band itself is a body corporate. Neither
has capacity, apart from the capacity of its mem
bers as individuals, to become or to be an employer
of employees.
The St. Regis Indian Band Council, in my view,
is a group of members of the St. Regis Indian
Band, who upon their election to the Council, are
empowered by the Indian Act, R.S.C. 1970, c. I-6
to exercise certain defined powers and to perform
certain defined functions. In some respects they
seem to resemble the officers of an unincorporated
association. But the resemblance is only superficial
and does not stand scrutiny. The powers and
authorities exercisable by these individuals as a
Council are not given to them by the members of
the Band nor do they arise from principles of
agency law. They arise under and are limited to
those conferred on the Council by the Indian Act.
There is no federal statutory or other authority for
any other activities in which, as a band council,
they may engage or purport to engage.
In the circumstances disclosed, which are
described in the reasons of Mr. Justice Heald, it
may be that the employers of the employees in
question are all the individual members of the
Band. It may also be that the members of the
Band Council as individuals are among such
employers. Neither of such conclusions can, how
ever, be reached either by the Board or by the
Court until an application for certification naming
them as employers has been presented and until
they, as individuals, have been given an opportu
nity to be heard in response to such an application.
There may be situations in which a reference to
a band council may be regarded as a compendious
and convenient way of identifying the individual
persons who make up that council and thus as a
reference to the individuals themselves. If that
were the case here, the reference to the St. Regis
Indian Band Council as the employer, both in the
application for certification and in the certification
order, might conceivably be regarded as a mere
matter of form, capable of amendment, if neces
sary, to name in the Council's place its individual
members. But I do not think that is the case. In
my view, the problem here is one of substance
rather than merely one of form. If, as I think, the
Band Council as a Council does not have capacity
to employ persons and to become their employer it
is plain that the Council as such is not the employ
er. At the same time its members do not have
authority as councillors or as individuals to repre
sent and act for the members of the Band either on
an application for certification or in collective
bargaining.
As it was not alleged in the application that the
members of the Council as individuals were the
employers or that a band of persons whom they, as
individuals, represented were the employers, they
have had neither the opportunity nor the occasion
to answer any such allegations. Nor has the Board
had occasion to deal with such allegations.
Moreover, it appears to me to be at least open to
doubt that the individual members of the Council,
even if they can be regarded as employers of the
employees in question, can, without more, be
regarded as an employer of employees engaged in
carrying on a federal work, undertaking or busi
ness. In a situation such as this, as I see it, it is
necessary to find and identify the employer (which
in my view has not yet been done) and to examine
the source of his capacity to carry on the activity
in which the employees are engaged before it can
be determined by the tests referred to in Four B
Manufacturing Limited v. United Garment Work
ers of America' whether the activity being carried
on is federal in character in the sense that it falls
within the exception in respect to federal under
takings from the general rule that labour relations
are matters within provincial jurisdiction.
I concur in the disposition proposed by Mr.
Justice Heald.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a certification order of the
respondent dated August 29, 1972 certifying the
mis -en-cause Union herein as the bargaining agent
for a unit of employees on the St. Regis Indian
Reserve.
The reserve set aside for the St. Regis Indian
Band is located partly in Ontario and partly in
Quebec. By the certification order above referred
to, the respondent certified said mis -en-cause to be
the bargaining agent of a unit of employees of the
"Iroquois of St. Regis Band Council, Cornwall,
Ontario" comprising all employees of the said
Band Council but with certain specific exclusions
("the Band administrator, the secretary to the
Band administrator, constables, casuals (summer
help), and other persons not included in the defini
tion of employee under section 107 of the Code.").
In its application for the certification order
herein attacked, the mis -en-cause Union described
the employer as "The St. Regis Indian Band
Council, Cornwall, Ontario.". It also described the
general nature of the employer's business as: "The
operation and administration of the St. Regis
Indian Reserve.". In the proceedings leading to
certification, neither the petitioners herein nor the
Band Council intervened to contest the certifica
tion application nor did they file representations in
respect thereof. Following certification however,
' [1980] 1 S.C.R. 1031.
the Band Council refused to respond to notices to
bargain.
A rather extensive recital of the history and
background of this matter is to be found in the
reasons for decision of the respondent Board dated
November 10, 1978, which, along with Attach
ments A to J thereto inclusive were made part of
the material upon which this application is to be
decided, by order of the Court at the outset of the
hearing of this application before us, and with the
consent of all the parties appearing before the
Court at that hearing. I do not consider it neces
sary to repeat that recital in these reasons. After
this recital, the Board stated that the applicant
then before it (described in the style of cause of
the Board's reasons as "Iroquois of St. Regis
Indian Band") was requesting the Board to review
the certification order of August 29, 1972 pursu
ant to the provisions of section 119 of the Canada
Labour Code 2 .
The Board then proceeded to summarize the
applicant's grounds for asking for a section 119
review as follows [33 di 451, at page 478]:
Applicant raises the lack of jurisdiction in the Board as the
fundamental reason to obtain that said order of certification be
rescinded. Applicant argues that the Board is without jurisdic
tion to deal with the employment of Indian persons on or in
respect to Indian reserves.
Subsidiarily the applicant submits that the employer is not the
Council but the Band, since in its view the Council cannot be
an employer under the terms of section 107 of the Code.
The Board then proceeded to dismiss the section
119 application for review, stating as follows [on
the same page] :
This Board is not unmindful of the avowed intentions of both
the principal parties to this case to have the issue of jurisdiction
aired before the highest Courts in the land, no matter what
decision this Board arrives at, nor is it ignoring the declaration
by the Public Service Alliance of Canada that the question of
jurisdiction had become paramount and far more important
than the fate of the actual bargaining unit involved.
2 Said section 119 reads as follows:
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any
application before making an order in respect of the
application.
In conclusion, the Board is dismissing this application. There is
nothing in the evidence nor in the jurisprudence referred to
which urges this Board to rescind the ordinance issued by its
predecessor.
Furthermore, the Board concludes that the difficult question of
defining the exact status of the Council is resolved by the Board
in not finding any compelling reason to modify the description
of the bargaining unit by substituting the name of the Band for
that of its Council, as the employer.
At the hearing before us, counsel for the peti
tioners raised, essentially, the same two issues as
were raised before the respondent Board. In sup
port of his first submission, counsel for the peti
tioners placed much reliance on the reasons for
judgment given by Mr. Justice Beetz for the
majority in the recent Supreme Court of Canada
case of Four B Manufacturing Limited v. United
Garment Workers of America'.. Four B was an
Ontario corporation, carrying on the business of
sewing shoe uppers under contract for a shoe
manufacturing Company, the business of the Com
pany being conducted on an Indian reserve popu
lated by a band of Indians. All of the Corpora
tion's issued shares were held by four brothers, all
being members of the Band. The Company was in
no way owned or controlled by the Band Council
which had no share in its profits. At issue in the
Supreme Court of Canada was the jurisdiction of
the Ontario Labour Relations Board to certify a
bargaining agent with respect to employees of the
Company's plant on the reserve and to make
another order directing the Company to reinstate
four of its employees.
The portions of the reasons of Mr. Justice Beetz
relied on by counsel for the petitioners herein read
as follows [at pages 1045-1052]:
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 rela
tions, exclusive provincial legislative competence is the rule,
exclusive federal competence is the exception. The exception
comprises, in the main, labour relations in undertakings, ser
vices and businesses which, having regard to the functional test
of the nature of their operations and their normal activities, can
3 [1980] 1 S.C.R. 1031.
be characterized as federal undertakings, services or businesses:
Toronto Electric Commissioners v. Snider ([1925] A.C. 396);
In the matter of a reference as to the validity of the Industrial
Relations and Disputes Investigation Act ([1955] S.C.R. 529),
(the Stevedoring case); In the matter of a reference as to the
application of the Minimum Wage Act of Saskatchewan to an
employee of a Revenue Post Office ([1948] S.C.R. 248);
Commission du Salaire Minimum v. Bell Telephone Company
of Canada ([1966] S.C.R. 767); Agence Maritime Inc. v.
Conseil Canadien des Relations Ouvrières ([1969] S.C.R.
851); The Letter Carriers' Union of Canada v. Canadian Union
of Postal Workers ([1975] 1 S.C.R. 178); Canada Labour
Relations Board, Public Alliance of Canada v. City of Yel-
lowknife ([1977] 2 S.C.R. 729); Construction Montcalm Inc. v.
Minimum Wage Commission ([1979] 1 S.C.R. 754).
There is nothing about the business or operation of Four B
which might allow it to be considered as a federal business: the
sewing of uppers on sport shoes is an ordinary industrial
activity which clearly comes under provincial legislative author
ity for the purposes of labour relations. Neither the ownership
of the business by Indian shareholders, nor the employment by
that business of a majority of Indian employees, nor the
carrying on of that business on an Indian reserve under a
federal permit, nor the federal loan and subsidies, taken sepa
rately or together, can have any effect on the operational
nature of that business. By the traditional and functional test,
therefore, The Labour Relations Act applies to the facts of this
case, and the Board has jurisdiction.
What is submitted on behalf of appellant is that the matter
to be regulated in the case at bar is the civil rights of Indians on
a reserve; that this matter falls under the exclusive legislative
authority of Parliament to make laws relating to "Indians and
Lands reserved for the Indians" pursuant to s. 91.24 of the
British North America Act, 1867; that provincial law is inappli
cable to this matter even in the absence of relevant federal law;
and, alternatively, that the field is occupied by the paramount
provisions of the Canada Labour Code, R.S.C. 1970, c. L-1. It
is argued that the functional test is inappropriate and ought to
be disregarded where legislative competence is conferred not in
terms relating to physical objects, things or systems, but to
persons or groups of persons such as Indians or aliens.
I cannot agree with these submissions.
The functional test is a particular method of applying a more
general rule namely, that exclusive federal jurisdiction over
labour relations arises only if it can be shown that such
jurisdiction forms an integral part of primary federal jurisdic
tion over some other federal object: the Stevedoring case.
Given this general rule, and assuming for the sake of argu
ment that the functional test is not conclusive for the purposes
of this case, the first question which must be answered in order
to deal with appellant's submissions is whether the power to
regulate the labour relations in issue forms an integral part of
primary federal jurisdiction over Indians and Lands reserved
for the Indians. The second question is whether Parliament has
occupied the field by the provisions of the Canada Labour
Code.
In my opinion, both questions must be answered in the
negative.
I think it is an oversimplification to say that the matter
which falls to be regulated in the case at bar is the civil rights
of Indians. The matter is broader and more complex: it involves
the rights of Indians and non-Indians to associate with one
another for labour relations purposes, purposes which are not
related to "Indianness"; it involves their relationship with the
United Garment Workers of America or some other trade
union about which there is nothing inherently Indian; it finally
involves their collective bargaining with an employer who hap
pens to be an Ontario corporation, privately owned by Indians,
but about which there is nothing specifically Indian either, the
operation of which the Band has expressly refused to assume
and from which it has elected to withdraw its name.
But even if the situation is considered from the sole point of
view of Indian employees and as if the employer were an
Indian, neither Indian status is at stake nor rights so closely
connected with Indian status that they should be regarded as
necessary incidents of status such for instance as registrability,
membership in a band, the right to participate in the election of
Chiefs and Band Councils, reserve privileges, etc. For this
reason, I come to the conclusion that the power to regulate the
labour relations in issue does not form an integral part of
primary federal jurisdiction over Indians or Lands reserved for
the Indians. Whether Parliament could regulate them in the
exercise of its ancillary powers is a question we do not have to
resolve any more than it is desirable to determine in the
abstract the ultimate reach of potential federal paramountcy.
The conferring upon Parliament of exclusive legislative com
petence to make laws relating to certain classes of persons does
not mean that the totality of these persons' rights and duties
comes under primary federal competence to the exclusion of
provincial laws of general application. In Union Colliery Com
pany of British Columbia v. Bryden ([1899] A.C. 580), the
British Columbia Coal Mines Regulations Act, 1890 provided
that "no boy under the age of twelve years, and no woman and
girl of any age shall be employed in or allowed to be for the
purpose of employment in any mine to which the Act applies,
below ground". The provision was amended by the insertion of
the words "and no Chinaman" after the words "and no woman
and girl of any age". The amendment was held to be ultra vires
of the Province as relating to naturalization and aliens. But it
was never suggested that the general prohibition to employ boys
under the age of twelve years and women and girls of any age
in any mine was not applicable to naturalized persons and
aliens including persons of Chinese extraction.
A similar reasoning must prevail with respect to the applica
tion of provincial laws to Indians, as long as such laws do not
single out Indians nor purport to regulate them qua Indians,
and as long also as they are not superseded by valid federal law.
In this connection, it must be noted that whereas the Indian
Act, R.S.C. 1970, c. I-6, regulates certain Indian civil rights
such as the right to make a will and the distribution of property
on intestacy, it does not provide for the regulation of the labour
relations of Indians with one another or with non-Indians. Nor
does the Canada Labour Code so provide, as we shall see later.
These labour relations accordingly remain subject to laws of
general application in force in the Province as is contemplated
by s. 88 of the Indian Act:
88. Subject to the terms of any treaty and any other Act of
the Parliament of Canada, all laws of general application
from time to time in force in any province are applicable to
and in respect of Indians in the province, except to the extent
that such laws are inconsistent with this Act or any order,
rule, regulation or by-law made thereunder, and except to the
extent that such laws make provision for any matter for
which provision is made by or under this Act.
Counsel for appellant has also stressed that the civil rights in
issue are not only the civil rights of Indians, but Indian civil
rights exercised on a reserve. The import of this submission, as
I understand it, is that the exclusive character of federal
jurisdiction is somehow reinforced because it is derived from
two related heads of federal authority instead of one, federal
authority over Indians and over Lands reserved for the Indians.
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 ([1974]
S.C.R. 695 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 Indi-
ans on Lands reserved for the Indians. The power of Parliament
to make laws in relation to Indians is the same whether Indians
are on a reserve or off a reserve. It is not reinforced because it
is exercised over Indians on a reserve any more than it is
weakened because it is exercised over Indians off a reserve.
(See Kenneth Lysyk, "The Unique Constitutional Position of
the Canadian Indian" (1967), 45 Can. Bar Rev. 513 at p. 515).
I attach little importance to the permit under which Four B
occupies the premises. Four B could not trespass, there or
anywhere else. It would have required a permit or a licence
from the Crown to occupy Crown land outside a reserve. It is
true that the permit may be cancelled and that it cannot be
renewed without the consent of the Band Council. But, should
this occur, it is not inconceivable that Four B would move its
plant a few feet off the reserve and, with the same employees,
continue the operation of the same business with the same
overall purpose and effect. I am inclined to think that if this
had occurred to start with, no constitutional or jurisdictional
problem would have arisen.
I do not see much substance either in the argument that Four
B was federally subsidized. The Government of Canada subsi
dizes a great many industries without Parliament thereby
acquiring the power to regulate their labour relations.
There remains one last point namely whether the Canadian
Labour Code occupies the field. The key provisions are s.
108(1) and s. 2 which read as follows:
108. (1) This Division applies in respect of employees who
are employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees, and in respect of trade unions and employers'
organizations composed of such employees or employers.
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative author
ity of the Parliament of Canada, including without restrict
ing the generality of the foregoing:
(a) a work, undertaking or business operated or carried on
for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and
transportation by ship anywhere in Canada;
(b) a railway, canal, telegraph or other work or undertaking
connecting any province with any other or others of the
provinces, or extending beyond the limits of a province;
(c) a line of steam or other ships connecting a province with
any other or others of the provinces, or extending beyond the
limits of a province;
(d) a ferry between any province and any other province or
between any province and any other country other than
Canada;
(e) aerodromes, aircraft or a line of air transportation;
(/) a radio broadcasting station;
(g) a bank;
(h) a work or undertaking that, although wholly situated
within a province, is before or after its execution declared by
the Parliament of Canada to be for the general advantage of
Canada or for the advantage of two or more of the provinces;
and
(i) a work, undertaking or business outside the exclusive
legislative authority of provincial legislatures;
In my opinion, the Canada Labour Code does not provide for
this case. Under functional test Four B is not a federal work,
undertaking or business, within the meaning of the Canada
Labour Code. But should we have to solve the problem on the
basis suggested by appellant, that is on the basis that Indians
are "federal persons", I would adopt the following reason of
Morden J. in the Divisional Court:
Section 108 of the Code, by its language, is directed at
federal activities, operations or functions and not at the
position of individuals, or a class of individuals, who might be
considered to be "federal" persons or at their relationships.
The latter is not the subject matter of the section, (Contrast
the method of defining the application of the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, which is appli
cable to "all portions of the Public Service" (s. 3), and, also,
the provisions of s. 109 of the Code applicable "in respect of
any corporation established to perform any function or duty
on behalf of the Government of Canada and in respect of
employees of any such corporation").
As I read the above quoted reasons of Beetz J.,
"exclusive federal competence" in relation to
labour relations refers largely to "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 ...". It is accordingly necessary, in
my view, applying the functional test adopted by
Beetz J. to determine the nature of the work being
performed by the unit of employees in question.
Attachment C to the reasons for decision of the
respondent Board referred to supra appears to be
an organization chart which is instructive as to the
nature of the work performed by the subject unit
of employees. Attachment D, which is a list of the
employees appears to confirm the information
shown on Attachment C. From this evidence, it is
clear that these employees are engaged in educa
tion administration, the administration of Indian
lands and estates, the administration of welfare,
the administration of housing, school administra
tion, public works, the administration of an old age
home, maintenance of roads, maintenance of
schools, maintenance of water and sanitation serv
ices, garbage collection, etc. Thus bus drivers,
garbage collectors, teachers, carpenters, stenogra
phers, housing clerks, janitors and road crews com
prise, inter alia, the unit of employees in question.
In my view, it is correct to characterize the func
tion of this unit generally as being almost entirely
concerned with the administration of the St. Regis
Band of Indians and to say that its entire function
is governmental in nature and comes under the
jurisdiction of the Indian Act. It is also instructive
to peruse the various provisions of the Indian Act
to determine the extent to which an Indian band
and its council are involved in the administration
of the affairs of an Indian band to which, as is the
case here, the Indian Act applies. Section 20 states
that no Indian is lawfully in possession of land in a
reserve unless such possession is allotted to him by
the band council and then approved by the Minis
ter. Section 24 enables an Indian lawfully in
possession of reserve lands to transfer that right to
possession to another band member or to the band
itself with the Minister's approval. Section 25
provides that, in certain circumstances, an Indian's
right to possession of reserve lands shall revert to
the band. Section 34 imposes a duty upon a band
to maintain the roads, bridges, ditches and fences
within the reserve occupied by that band. Section
37 provides that reserve lands shall not be sold,
alienated, leased or otherwise disposed of unless
they have been surrendered to the Crown by the
band. Section 39 details the procedure to be fol
lowed by a band in making such a surrender.
Section 58 enables the Minister, with the consent
of the band council, to improve, cultivate or lease
uncultivated or unused reserve lands. Under this
section, the Minister is empowered, with the con
sent of the band council, to dispose of sand, gravel,
clay and other non-metallic substances upon or
under reserve lands. Section 59 empowers the
Minister, with the consent of the band council, to
reduce or adjust the amount payable to the Crown
in respect of the sale, lease or other disposition of
surrendered reserve lands and furthermore, to
reduce or adjust the amount payable to the band
by an Indian in respect of a loan made to the
Indian from band funds. Section 60 empowers the
Governor in Council to grant to a band, at the
request of that band, the right to exercise such
control and management over reserve lands as the
Governor in Council considers desirable. Counsel
advised us that no such Order in Council subsists
with respect to the St. Regis Indian Band. Sections
61 to 69 inclusive of the Act deal with the manage
ment of Indian moneys. Section 64 empowers the
Minister, with the consent of the band council, to
expend capital moneys of the band for various
purposes: to distribute per capita to band members
portions of the proceeds of sale of surrendered
lands; for the construction and maintenance of
roads, bridges, ditches, water courses and outer
boundary fences; to purchase land for use by the
band as a reserve or an addition to a reserve; to
purchase for the band the interest of a band
member in reserve lands; to purchase livestock and
farm machinery for the band; to construct and
maintain permanent improvements on the reserve;
to make loans to band members; to meet expenses
necessarily incidental to the management of
reserve lands and band property; to construct
houses for band members and to make loans to
band members for building purposes; and general
ly, for any other purpose for the benefit of the
band, in the opinion of the Minister. Section 66
empowers the Minister, with the consent of the
band council to expend revenue moneys of the
band for a number of purposes. Section 69 empow
ers the Governor in Council to allow a band to
control, manage and expend in whole or in part its
revenue moneys. Regulations pursuant to section
69 have been passed by the Governor in Council
and apply to the St. Regis Indian Band 4 . These
Regulations empower this Band, along with a large
number of other bands in Canada to control,
manage and expend its revenue moneys in whole or
in part subject to the detailed provisions of the
Regulations providing for bank accounts, signing
officers, appointment of auditors, etc. Sections 74
to 80 inclusive provide for the elections of chiefs
and band councils.
Sections 81 to 86 inclusive set out the powers of
the band council. Section 81 empowers a band
council to make by-laws for a large number of
purposes: for the health of reserve residents; traffic
regulation; observance of law and order; establish
ment of animal pounds; construction and mainte
nance of water courses, roads, bridges, ditches,
fences and other local works; regulation of types of
business to be carried on; building restrictions;
allotment of reserve lands to members; noxious
weed control; regulating and controlling water sup
plies; regulating and controlling sports, races, ath
letic contests and other amusements; and regula
tion of hawkers and peddlers, etc.
4 Consolidated Regulations of Canada 1978, Vol. X, c. 953 at
pp. 7463 and 7466.
A perusal of the St. Regis Band by-laws in
evidence establishes that this Band did, in fact,
enact a number of by-laws pursuant to the author
ity given to it by section 81 supra. The evidence
before us also establishes that the St. Regis Band
is, comparatively speaking, a large Band (3,950
members as of December 31, 1975), covering a
large area and that the administrative responsibili
ties of the Band and its Council are considerable.
The unit of employees at the date of application
for certification was 32 in number. An examina
tion of the audited financial statement for the year
ending March 31, 1975 indicates a rather large
operation. The statement of revenue and expendi
tures shows total revenues in excess of $1,300,000
and total expenditures also in excess of that figure.
A perusal of the expenditure breakdown illustrates
the very wide administrative parameters of the
Band's operations. The expenditure sub-headings
read as follows: "General government (salaries,
office expense, auditing and legal, bank charges
and interest); Policing and fire protection; Public
Works (road maintenance, garbage collection,
water and sanitation etc.); Social services; Recrea
tion; Library, Education; and Repairs and mainte
nance of Band owned buildings".
Based on the powers given to the Band and its
Council in the Indian Act as detailed supra and
the evidence before us of the exercise of those
powers by this Band and its Council, I am satisfied
that subject unit of employees is very directly
involved in activities closely related to Indian
status. At page 1048 of his reasons in the Four B
case supra, Mr. Justice Beetz gives examples of
the kind of rights which, in his view, would have to
be considered as being closely connected with
Indian status. He refers to registrability, member
ship in a band, the right to participate in the
election of chiefs and band councils, and Reserve
privileges. In my view, these examples relate
directly to band administration, having regard to
the powers given to the band and council under the
Act, and, in my view, fall into the same category
as the powers exercised by this Band and its
Council as set out supra. However, the factual
situation in the Four B case (supra) is completely
different from the case at bar. In Four B, four
reserve Indians were conducting a commercial
business on an Indian reserve. The status and
rights of the unit of employees as Indians and as
members of the Band were not affected in any
way. In the case at bar, the unit of employees in
question were directly and continuously concerned
with the election of councillors and chiefs, the
matter of right to possession of reserve lands, the
right of Indians on the reserve to have their chil
dren educated in schools on the reserve, the right
to welfare when circumstances warrant it, the
right to the facilities of the old age home in proper
circumstances, etc. The total administration of the
Band is continuously concerned with the status
and the rights and privileges of the Band Indians. I
am thus firmly of the opinion that the labour
relations in issue here are "an integral part of
primary federal jurisdiction over Indians or Lands
reserved for the Indians" 5 , thus establishing fed
eral legislative competence pursuant to the provi
sions of subsection 91(24) of The British North
America Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5].
I am also of the opinion that federal legislative
competence on the facts here present can be sup
ported pursuant to paragraph 92(10)(a) of The
British North America Act, 1867 in that the sub
ject unit of employees is engaged in a work and
undertaking connecting one province with another
province. The evidence in this case is clear that
portions of the St. Regis Reserve are in Quebec
and other portions are in Ontario and band mem
bers reside in both Provinces. The employees in the
subject bargaining unit carry on their employment
in both Provinces. The work and undertaking of
the Band is carried on in both Provinces 6 . There
fore paragraph 92(10)(a) furnishes federal legisla
tive competence.
5 This quotation is from page 1048 of the judgment of Beetz
J. in the Four B case (supra).
6 In my view, there can be no doubt that the total administra
tion of the St. Regis Band is a "work and undertaking".
Compare—Canada Labour Relations Board v. City of Yellow-
knife [1977] 2 S.C.R. 729 at 738 per Pigeon J.
Having thus reached a conclusion in favour of
federal legislative competence, it remains to con
sider whether Parliament has occupied the field by
the provisions of the Canada Labour Code. I have
little difficulty in answering this question affirma
tively. The key provisions of the Canada Labour
Code are subsection 108(1) and section 2 which
read as follows:
108. (1) This Part applies in respect of employees who are
employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees and in respect of trade unions and employers' organ
izations composed of such employees or employers.
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative author
ity of the Parliament of Canada, including without restrict
ing the generality of the foregoing:
(a) a work, undertaking or business operated or carried on
for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and
transportation by ship anywhere in Canada;
(b) a railway, canal, telegraph or other work or undertaking
connecting any province with any other or others of the
provinces, or extending beyond the limits of a province;
(c) a line of steam or other ships connecting a province with
any other or others of the provinces, or extending beyond the
limits of a province;
(d) a ferry between any province and any other province or
between any province and any other country other than
Canada;
(e) aerodromes, aircraft or a line of air transportation;
(/) a radio broadcasting station;
(g) a bank;
(h) a work or undertaking that, although wholly situated
within a province, is before or after its execution declared by
the Parliament of Canada to be for the general advantage of
Canada or for the advantage of two or more of the provinces;
and
(i) a work, undertaking or business outside the exclusive
legislative authority of provincial legislatures;
Based on the Yellowknife decision (supra), it is
clear that the administration of the St. Regis Band
was "a work, undertaking or business". In the
Yellowknife case (supra) Mr. Justice Pigeon, in
discussing the nature of the activities of the munic
ipal Corporation of the City of Yellowknife, said
at page 738:
Some of these operations, like waterworks and sewage systems,
undoubtedly come within any concept of "work". Others, like
protection or sanitation services, cannot be excluded from the
scope of "undertaking" without doing violence to the language,
and "business" has been said to mean "almost anything which
is an occupation, as distinguished from a pleasure—anything
which is an occupation or duty which requires attention..."
(per Lindley, Li. in Rolls v. Miller ((1884) 27 Ch.D.71), at p.
88). There is no doubt that the word "business" is often applied
to operations carried on without an expectation of profit. In my
view, it would be contrary to the whole concept of classifying
employees for jurisdictional purposes by reference to the char
acter of the operation, to attempt to make a distinction depend
ing upon whether the employer is a private company or a public
authority.
In the case at bar, the type of activities described
by Pigeon J. in the Yellowknife case (supra) are
also present along with other activities of a like
nature. I therefore adopt the views of Mr. Justice
Pigeon as applying equally to the factual situation
in the case at bar. The work, undertaking or
business in this case is also, in my opinion, a
"federal" work, undertaking or business since the
activities engaged in are being discharged under
the authority of the Indian Act, as we have seen
earlier herein. Additionally, the definition in sub
section 2(b) of the Code covers the factual situa
tion in this case since this work and undertaking
connects Ontario with Quebec. Furthermore, the
provisions of subsection 2(i) of the Code would
also apply to this activity since it is clearly outside
the exclusive authority of provincial legislatures.
To clothe the Labour Relations Boards of Quebec
and Ontario with jurisdiction to certify different
unions as the bargaining agent in each Province in
respect of the same unit of employees would pro
duce a completely impractical result which is
clearly not contemplated by the provisions of the
Canada Labour Code. I have therefore concluded
that the Canada Labour Code fully occupies the
field and that its provisions apply to the factual
situation in this case. In my view, therefore, the
petitioners must fail in their initial attack on sub
ject certification order.
I turn now to the second submission by counsel
for the petitioners, namely, that the Band Council,
described as the employer in the certification order
herein attacked, is not an "employer" within the
meaning ascribed to that term by subsection
107(1) of the Canada Labour Code. "Employer"
is defined therein as follows:
"employer" means any person who employs one or more
employees;
Petitioners' counsel submits firstly that the Band
Council purportedly certified by the impugned
order is not "a person" within the meaning of said
subsection 107(1), and, secondly, the Band Coun
cil is without specific legal capacity to "employ"
employees and did not, on the facts here present,
employ any one.
Dealing with the submission that the Band
Council is not a "person" within the meaning of
the Act, I agree with this view. The Indian Act
does not specifically contain a definition of the
word "person". In determining whether that term
should be restricted to a natural person, i.e., a
human being, or whether it should be given an
extended meaning to include artificial persons
such as corporations (or perhaps, other collections
of individuals), regard must be had to the context
and subject matter of the statute in question'.
Referring then to the Indian Act, section 74 of the
Act provides for the election of one chief and one
councillor for every one hundred band members
which is described as the band council. The section
also makes reference to band electors. Electors are
defined in subsection 2(1) as persons who are,
registered on a Band List, of the full age of 21
years and not disqualified from voting at band
elections. A band member is also defined in sub
section 2(1) as a person whose name appears on a
Band List or who is entitled to have his name
appear on a Band List. Thus it is clear that the
Band Council itself is not a person but is rather a
collection of natural persons. I can find nothing in
the context of the Act which is evidence of any
intention to confer upon the Band Council itself
the status of a legal person. I am reinforced in this
view by a perusal of the Regulations passed pursu
ant to the authority of the Indian Act. In some of
those Regulations, no definition of "person" is
provided. However, in others, a "person" is specifi
cally defined. For example, in the Indian Mining
Regulations 8 , " person" is defined as meaning: ".. ,
a person who has attained the age of 21 years or a
corporation registered or licensed in Canada or in
any province thereof;...". Then again, in the
7 Compare: The Pharmaceutical Society v. The London and
Provincial Supply Association, Ltd. (1879-80) 5 App. Cas. 857
per Lord Blackburn.
8 Consolidated Regulations of Canada 1978, Vol. X, c. 956,
at p. 7490.
Indian Timber Regulations 9 , " person" is defined
as including "... corporation, syndicate, firm and
partnership ...". Finally, the Indian Oil and Gas
Regulations 10 contain a specific definition for the
purposes of those Regulations reading as follows:
"... "person" means an individual of the full age
of majority or an incorporated company registered
or licensed in Canada or in any province thereof to
carry out the activities it is undertaking or pro
poses to undertake ...". Since the Act itself con
tains no definition of "person", we are entitled, in
my view, to have regard to all definitions of "per-
son" contained in other enactments relating to the
same subject-matter ", which includes the various
definitions of "person" contained in Regulations
passed under the authority of the Indian Act. In
each of the Regulations set out above, the word
"person" is given an extended meaning for the
purposes of that Regulation only. Accordingly, it is
clear to me that in the absence of a clear statutory
extension to the normal and usual meaning, the
word "person" as used in the Indian Act means a
natural person, i.e., a human being. It is likewise
clear to me that, on the facts in this case, the
"person" described as an "employer" in subsection
107(1) of the Canada Labour Code must be a
"person" as that term is used in the Indian Act
and for the reasons set forth supra, an Indian band
council is not such a "person". I have therefore
concluded that the respondent Board acted with
9 Consolidated Regulations of Canada 1978, Vol. X, c. 961,
at p. 7517.
10 Consolidated Regulations of Canada 1978, Vol. X, c. 963,
at p. 7530.
Section 14 of the Interpretation Act, R.S.C. 1970, c. 1-23
reads as follows:
14. (1) Definitions or rules of interpretation contained in
an enactment apply to the construction of the provisions of
the enactment that contain those definitions or rules of
interpretation, as well as to the other provisions of the
enactment.
(2) Where an enactment contains an interpretation section
or provision, it shall be read and construed
(a) as being applicable only if the contrary intention does
not appear, and
(b) as being applicable to all other enactments relating to
the same subject-matter unless the contrary intention
appears.
Furthermore "enactment" is defined in subsection 2(1) of the
Interpretation Act as follows:
"enactment" means an Act or regulation or any portion of an
Act or regulation;
out jurisdiction in making the certification order
under review. Such a conclusion is sufficient to
dispose of this section 28 application. However, I
would add that I also agree with the petitioners'
submission that the Band Council is without spe
cific legal capacity to "employ" employees and did
not, in this case, employ any one, and thus failed
to meet the definition of "employer" contained in
subsection 107(1) supra in yet another particular.
The review of the relevant sections of the Indian
Act set out earlier herein satisfies me that the
Band Council has not been empowered, either
expressly or by implication, to enter into employ
ment contracts with anyone nor is there any evi
dence in the record before us that they did so in
fact. The powers of the Council as enumerated in
sections 81 to 86 inclusive are powers to make
by-laws in respect of many matters affecting
reserve welfare but nowhere in those powers is
there any power, express or implied, to hire
employees. Most of the other sections of the Act
referred to supra, give the Council power to do
certain things when the Council is acting in con
cert with the Minister. I therefore agree with
counsel for the petitioners that it is the Band as
such which has the capacity, albeit limited, to own
assets and to enter into contracts, and not the
Council. I also agree that the Council's powers are
very limited and are subject to the overriding
supervision of the Minister and/or the Band itself.
In summary, it is my conclusion that there is
federal legislative competence in respect of the
labour relations herein in issue pursuant firstly to
subsection 91(24) of the British North America
Act, 1867, and, secondly, pursuant to section
92(10)(a) of that Act. I have also concluded that
the Parliament of Canada has fully occupied the
field by the enactment of the Canada Labour
Code. I have, however, further concluded, that the
respondent Board acted without jurisdiction in
purporting to certify subject unit of employees
since the designated "employer" therein is not an
"employer" as defined in subsection 107(1) of the
Code.
For the foregoing reasons, it follows, in my view,
that the section 28 application should be allowed
and the certification order of the respondent herein
dated August 29, 1972 set aside.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting in part): I agree with
Mr. Justice Heald that on the facts which we must
treat as relevant for determination of the issues of
jurisdiction on this section 28 application the activ
ity in which the employees in question are engaged
is activity which falls within federal legislative
jurisdiction with respect to "Indians and Lands
reserved for the Indians" under subsection 91(24)
of The British North America Act, 1867 and
constitutes a federal work, undertaking or business
within the meaning of sections 2 and 108 of the
Canada Labour Code. The activity consists of
certain functions or services performed by or under
the supervision of the Band Council, and viewed as
a whole it may be characterized as the administra
tion of the Reserve and the affairs of the Band. It
is concerned with the organization and mainte
nance of communal life on the Reserve. The Band
Council derives its authority for the provision of
these functions or services from the terms of the
Indian Act and applicable Regulations, as well as
from administrative approvals by the Department
of Indian Affairs and Northern Development,
which establishes programs for the reserves and
provides the necessary financial resources for their
implementation. The Band Council is carrying out
some of the administration that inheres in federal
jurisdiction with respect to the reserves. Such
administration, viewed as a comprehensive respon
sibility of a local government nature, is a work,
undertaking or business within the meaning of the
Canada Labour Code on the broad view that is to
be taken of those terms in the light of the decision
of the Supreme Court of Canada in the City of
Yellowknife case (supra).
I am unable, however, to agree with the Chief
Justice and Mr. Justice Heald that the Board
exceeded its jurisdiction by treating the Band
Council as the employer for purposes of the certifi
cation. The record shows that there is in fact a
situation of employment. Persons are engaged for
certain work by the Council. They are paid by the
Council. If the Council cannot be treated as the
employer on the ground that it lacks corporate
status or explicit authority to make contracts of
employment, then the same must be said of the
Band. In the result there would be a de facto
situation of employment, but because of the
ambiguous legal character of the Council and the
Band the employees would be deprived of the
rights conferred by the Canada Labour Code. It
would not be feasible to regard the individual
members from time to time of the Council or the
Band as the employers. In effect, it is not clear
who, on strict legal tests, could be considered to be
the employer, having regard to the question of
legal personality and the question of authority to
make contracts on someone else's behalf. Yet there
is clearly a situation in which persons have the
status of employees. In these circumstances, I
think the Board should be held to have jurisdiction
to treat the Band Council as the employer for
purposes of the Code.
For these reasons, I would dismiss the section 28
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.