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,  3 SCR 456 (Marshall #1) and R v Marshall,  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):
 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).
NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 remains the starting point for constitutional questions about jurisdiction over labour relations, whether or not a First Nation is the employer.
Labour regulation falls presumptively within provincial jurisdiction. To rebut that presumption, the first (and potential last) stop is the “functional test” reiterated in NIL/TU,O. The functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O at para 3, reproduced at para 85 of the Board’s reasons).
The Board accepted “that federal jurisdiction applied to employees whose work dealt directly with Band governance,” as Band governments are exercising authority delegated through the Indian Act (paras 100-109), but that “[n]ot everything a Band carries out itself constitutes a federal work, undertaking or business…” (para 109, point iv).
There were three main reasons why the Board declined jurisdiction over this matter.
First, applying the functional test, the Board found the Fishery was not a federal undertaking: “the Fishery’s habitual activities are to fish commercially off the reserve, in essentially the same way that any commercial fishing business would operate” (paras 119-120). The fact the Waycobah Fishery spent some federal money was not enough to make it a federal undertaking (para 123).
Second, the Board rejected the Union’s alternative argument, based on the “derivative jurisdiction test,” that the Fishery was “vital, essential or integral to Waycobah’s federal undertaking”:
 In essence, a Band, like any federal undertaking, can operate both federal and provincial undertakings, depending on the activity in question. But purely commercial activities, even if their genesis resulted from significant federal funding, do not become subject to federal jurisdiction merely because they are carried out by, or for the benefit of, a First Nations Band.
Third, although the parties agreed that the Board might have jurisdiction if the fishing at issue was conducted pursuant to treaty rights (para 31), “there was no evidence to persuade the Board that this case involved that type of fishery” (para 138). Waycobah’s involvement in the federal MRI and AIFI programs was explicitly “without prejudice to any treaty rights.” It remains unresolved whether the First Nation’s treaty rights would extend to commercial fishing – although treaty negotiations are ongoing in Nova Scotia (paras 139-142).
In conclusion, the Board found, Waycobah’s offshore commercial Fishery is subject to Nova Scotia’s provincial labour relations regime, so the Board could not certify the requested bargaining unit.
Post-script: Nishnawbe-Aski Police Service Board v Public Service Alliance of Canada
The Board originally planned to wait for the Federal Court of Appeal’s reasons on judicial review of Nishnawbe-Aski Police Services Board v Public Service Alliance of Canada, 2013 CIRB 701 before issuing its decision inWaycobah, but eventually decided not to hold off any longer (see para 6).
Coincidentally, the Federal Court of Appeal released its decision on the same day as the Board issued Waycobah—October 2, 2015—and it appears to strengthen the Board’s conclusion. The FCA’s reasons are now reported as Nishnawbe-Aski Police Service Board v Public Service Alliance of Canada, 2015 FCA 211.
In brief, the FCA overturned the Board’s decision to certify two bargaining units of employees of the Nishnawbe-Aski Police Service Board. Per Justice Stratas, for a unanimous panel:
 In my view, the labour relations of the Nishnawbe-Aski Police Service are provincially regulated and so the CIRB did not have the authority to make the certification orders it did. Accordingly, I would grant the application for judicial review, set aside the decision of the CIRB and direct it to grant the application of the Nishnawbe-Aski Police Services Board and set aside the certification orders.
He stated later:
 The fact that the Nishnawbe-Aski Police Service has a distinct character as a police service for Aboriginal communities does not take away from its essential character as a police service that is in all respects regulated by the province.
See also paras 8-27 of the FCA’s decision for an overview of the interesting history of First Nations policing in Ontario; para 48 for Justice Stratas questioning whether labour regulation really needs its own separate constitutional analysis; and para 65 for the main points of the Court’s reasoning path.
PSAC has now filed an application for leave to appeal to the Supreme Court of Canada (SCC Case No 36742). It will be interesting to see what the SCC says about Justice Stratas's critique if it decides to take up the case.