Is Employment on First Nation Reservations Provincially or Federally Regulated?

In Canada (Attorney General) v. Munsee-Delaware Nation, 2015 FC 366, released on March 23, 2015, the Federal Court reviewed a decision where an Adjudicator ruled he had no jurisdiction over an unjust dismissal complaint under the Canada Labour Code. The Adjudicator felt that the Supreme Court decision of NIL/TU, O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45, [2010] 2 SCR 696 (NIL/TU, O) meant that employment relationships are presumed to be regulated by the provinces applied even when the employer is a First Nation. The Adjudicator reviewed whether, on a functional test, the nature, operations and habitual activities of the First Nation meant that the First Nation qualified as a "federal undertaking" under the Canada Labour Code. The Adjudicator held that he had no jurisdiction under the federal Code as the First Nation's activities were mostly concerned with policing, welfare, health, education and bingo, activities were all provincially regulated, and that the complainant's work related to the financial aspects of those provincially regulated activities.

Both the complainant and the Attorney General challenged this decision.

In reviewing the Adjudicator's decision, the Federal Court distinguished the NIL/TU, O case stating that this First Nation employer was:

a Band Council to which the Indian Act applies; the employee was engaged in the general administration of the band's affairs; and the employee was paid from federal monies received by the First Nation. Additionally, the Federal Court found that Francis v. Canada Labour Relations Board [1981] 1 FC 225 (FCA), rev'd P.S.A. (Can) v. Francis [1982] 2 SCR 71 (Francis)...