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No Aboriginal right to regulate labour relations on reserve
January 18, 2005

On November 30, 2004, the Ontario Labour Relations Board released full reasons for its December 12, 2003 decision that Aboriginal rights do not encompass the right to regulate labour relations on reserve land.

The Mississaugas of Scugog Island First Nation (the “First Nation”) permits the operation of a “Las Vegas” style high stakes gambling casino on their reserve lands. The First Nation claimed that labour relations on their lands was governed by a labour code which they drafted (the “First Nation Code”).The First Nation Code was similar to the Canada Labour Code, but contained unique features such as prohibiting strikes and lock-outs and only allowing employers to bargain with unions certified under the First Nation Code.

The National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (the “Union”) was certified under the Ontario Labour Relations Act as the bargaining agent for casino employees but was not certified under the First Nation Code. When the Union applied for conciliation services, the casino took the position that it was unclear whether the Act or the First Nation Code applied. The issue was referred to the Ontario Labour Relations Board by the Minister of Labour.

At the Board, the First Nation argued it had the right to regulate work-related activities on its territories and that enacting its own labour code was the exercise of an inherent right to self-government. In analyzing this claim, the Board relied on the Supreme Court of Canada test which requires that, in order to establish an Aboriginal right, three things must be established by the claimant:

  • the existence of the ancestral practice, custom or tradition advanced as supporting the claimed right;
  • that the practice, custom or tradition was integral to his or her pre-contact society in the sense that it marked it as distinctive; and
  • reasonable continuity between the pre-contact practice and the contemporary claim.

The Board concluded there was no evidence that there was an ancestral practice, custom or tradition which supported the Aboriginal right to the regulation of labour relations in the territory of the First Nation. In this regard the Board observed that the regulation of labour management relations was not part of the traditional culture or practices of the First Nation. For example, there were no employees or employers and certainly no groups or organizations analogous to trade unions that purported to represent the interest of either employers or employees within First Nation traditions. There was also no evidence that the First Nation had an ancestral practice in which a decision-making council dealt in a hierarchical way with the regulation of employment relationships. This being the case, the Board concluded that the right to self-government and the right to organize and direct labour are universal rights, and were in no way characteristic of the particular culture of the First Nation.

The Board’s conclusion on this issue made it unnecessary for a further consideration of the second and third branches of the Supreme Court of Canada test.

Finally, the Board concluded that even if the right asserted by the First Nation existed, the infringement of that right would be justifiable and therefore lawful. In view of these (and other) conclusions, the Board determined that the Provincial labour relations legislation and not the First Nation Code, applied to the operation of the casino.

The Board’s ruling has been appealed by the First Nation and is currently scheduled to be heard by the Ontario Divisional Court in late February 2005.

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 444 v. Great Blue Heron Gaming Company, 2004 CanLII 47303 (OLRB), November 30, 2004