Neither federal funding nor exclusive service to First Nations establish federal jurisdiction
The Federal Court has ruled that an entity’s Aboriginal character, receipt of federal funding and exclusive service to First Nations do not, in and of themselves, bring the entity’s labour relations within federal jurisdiction.
The Anishinaabeg of Kabapikotawangag Resource Council (AKRC) is a non-profit tribal council that provides advice and technical support in education, health, technical services, economic development and financial management to five member First Nations (Members). In Anishinaabeg of Kabapikotawangag Resource Council Inc. v. Macleod, 2021 FC 1173, the respondent, Kathy Macleod, filed an unjust dismissal complaint under the Canada Labour Code RSC 1985 c. L-2, with Employment and Social Development Canada’s labour program. After two hearings, the federal adjudicator held that he had jurisdiction over the case since AKRC’s labour relations fell within federal jurisdiction. He stated that there was neither a presumption in favor of nor any factors pointing to provincial jurisdiction, and that AKRC’s purpose on the “core of Indianness” fell within federal jurisdiction.
The Federal Court disagreed with the adjudicator.
Citing NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45,  2 S.C.R. 696, the court said that there was a presumption that labour relations fall within the provincial domain with one narrow exception. This exception requires the satisfaction of a two-part test. For the first test, one must determine whether the normal or habitual activities of the entity are federal. If the result is inconclusive, one moves to the second test, to determine whether provincial regulation of the entity’s labour relations would impair the core of a federal power.
In this case, the court ruled that ARKC failed the first test. Providing the advisory services mentioned are not activities that bring the undertaking within the federal ambit, said the court. “[AKRC’s] Aboriginal character, its receipt of federal funding, or the fact that it serves exclusively First Nation communities, do not necessarily bring the organization within the ‘federal undertaking’ exemption,” said the court.
Contrary to the adjudicator’s ruling, the court found that AKRC’s federal funding is only partly from the federal government. Further, addressing the “core of Indianness,” the court referred to NIL/TU,O, stating that it was not enough that the undertaking touch on these core powers, but whether the provincial labour legislation impairs the exercise of these core powers, which was not present in this case.