The Labour Relations Of First Nations' Fisheries: Who Gets To Decide?

Summary

The Canada Industrial Relations Board recently held that it had no jurisdiction as a federal board to certify a bargaining unit comprised of fisheries employees of the Waycobah First Nation. The decision is now reported online as 2015 CIRB 792.

Waycobah First Nation is a Mi'kmaq First Nation on Cape Breton Island. Waycobah is also a Band for the purposes of the Indian Act. In 2014, the United Food and Commercial Workers Canada Union, Local 864 applied for certification of a bargaining unit comprised of: "All employees of Waycobah First Nation working as shore based fishers and deck hands, Captains and Mates on fishing vessels..."

The Board declined jurisdiction, finding that the Nova Scotia Labour Board would be the proper body to consider certification.

Background & Context

The Supreme Court of Canada's groundbreaking decisions in R v Marshall, [1999] 3 SCR 456 (Marshall #1) and R v Marshall, [1999] 3 SCR 533 (Marshall #2) affirmed a Mi'kmaq treaty right to fish. As summarized in Marshall #2 (and reproduced in the Board decision at para 28):

[4] In its majority judgment, the Court acquitted the appellant of charges arising out of catching 463 pounds of eel and selling them for $787.10. The acquittal was based on a treaty made with the British in 1760, and more particularly, on the oral terms reflected in documents made by the British at the time of the negotiations but recorded incompletely in the "truckhouse" clause of the written treaty. The treaty right permits the Mi'kmaq community to work for a living through continuing access to fish and wildlife to trade for "necessaries", which a majority of the Court interpreted as "food, clothing and housing, supplemented by a few amenities".

Since the Marshall decisions, the Waycobah First Nation has become increasingly involved in commercial fishing. Through the Marshall Response Initiative of the federal Department of Fisheries and Oceans, which lasted until 2007, Waycobah "received a significant number of fishing licences and other assets" (see paras 24- 59). DFO's Atlantic Integrated Commercial Fishing Initiative replaced the MRI, and Waycobah has continued to develop its offshore commercial fishing capacity over the last several years, through AICFI and by contractual arrangements with other commercial fishing entities (paras 52-57).

Legal analysis

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