Conseil des Innus de Pessamit and Association des policiers et policières de Pessamit and Attorney General of Quebec, 2010 FCA 306

Federal Court of Appeal, November 2, 2010

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This case is a judicial review filed by the applicant Conseil des Innus de Pessamit (the Council) against a decision of the Canada Industrial Relations Board (the CIRB). The applicant filed 2 constitutional questions and made a preliminary objection that Part I of the Canada Labour Code, (the Code), did not apply as a result of its right to self-government. This included the right to manage its public safety and related labour relations. The Federal Court of Appeal (FCA) dismissed the application and granted the application for certification.

Only the Attorney General of Quebec (third party before the CIRB) intervened. This case followed an application under section 24 of the Labour Code for certification as the bargaining unit for public safety police officers in Pessamit. This police force was established in 2004 in accordance with a policing services agreement signed by the Council of Betsiamites, Canada and the Quebec Government. The FCA indicated that the application for certification was the outcome of an adversarial relationship between the members of the police force and their employer, the Conseil des Innus.

The FCA relied on the line of jurisprudence from the Supreme Court of Canada in the mid-nineties (R. v. Van der Peet, and R. v. Pamajewon,) and the more recent finding of the Ontario Court of Appeal ( Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 444, 2007.

The CIRB had characterized the right claimed by the applicant as being “the right to regulate the collective labour relations with its police workforce in the field of public safety” . In doing so, the CIRB refused to accept the Council’s characterization of the right claimed as being the right to ensure public safety on the reserve. Ultimately, the CIRB determined that the applicant had failed to establish that collective labour relations with the Pessamit police workforce were integral to the distinctive culture of the Innu Aboriginal peoples, or that there was continuity between the harmony, mutual help and management of the police workforce labour relations in the field of public safety as it existed on the reserve.

The Council argued that CIRB adopted its own all too narrow characterization of the Aboriginal right claimed in Scugog and that this was inconsistent with the approach established by the more recent jurisprudence of the SCC in R. v. Sappier; R. v. Gray, Haida Nation v. British Columbia (Minister of Forests) and Campbell v. British Columbia (Attorney General) and an unjustifiable infringement under R. v. Sparrow.

The Intervenor, Quebec argued that the tests were correctly applied by the CIRB. The right claimed is to regulate the management of labour relations in the field of public safety, including collective relations with its police workforce, rather than the management of law, order and public safety on the reserve. In the intervener’s view, the agreement on the creation of the Pessamit police force, including the application of the statutes and regulations of the province of Quebec to the police force, is not an implementation of an inherent or pre-existing right of the Pessamits to self-government in relation to public safety.

Noel J.A. held for the FCA that the CIRB did not err in relying on the decision of Ontario Court of Appeal in Scugog. “At the very least, that decision establishes that the right surrounding labour relations is sufficiently well defined to be claimed and that, whenever a claim has been delineated in a certain manner according to the applicable factors, it should be characterized as such.”

The application was dismissed with costs.