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Constitutional law - Division of powers - Labour relations - Jurisdiction - Enterprise carrying out matters within provincial jurisdiction - Enterprise carried out by society incorporated by several First Nations so as to address specifically aboriginal issues - Whether the Labour Relations Code, R.S.B.C. 1996, c. 244, is constitutionally applicable to the Appellant in view of Parliament’s legislative authority under s. 91(24) of the Constitution Act, 1867?

The B.C. Government and Service Employees’ Union applied to certify a bargaining unit consisting of employees of the NIL/TU,O Child and Family Services Society under the British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244. NIL/TU,O was incorporated pursuant to the Society Act, R.S.B.C. 1996, c. 433, by a number of First Nations on Southern Vancouver Island. It had seven member First Nations and individual members from those First Nations. Its offices are on First Nations reserve lands, all of its services are provided to children who are registered Indians, the vast majority of its services are provided on reserve lands, it trains First Nations people, and it employs them to provide those services. It exercises powers delegated under the Child, Family and Community Services Act, R.S.B.C. 1996, c. 46. While it follows the standards promulgated by the director under the Act, most of which apply to the provision of services to any child, it also delivers “non-statutory services” with a specifically aboriginal character — after school programs, residential camps, a youth justice initiative, support for students in non-aboriginal settings, cross-cultural education, language training, community development, and anti-discrimination programs.

NIL/TU,O objected to the application for certification, claiming that its functions fell within federal jurisdiction under the Canada Labour Code, R.S.C. 1985, c. L-2, as they are matters in relation to “Indians, and Lands Reserved for Indians” pursuant to s. 91(24) of the Constitution Act, 1867. The Union argued that they were matters in relation to “Civil Rights in the Province” under s. 92(13).

The B.C. Labour Relations Board (the “Board”) found that the matter was within provincial jurisdiction. After counting the ballots, it certified the Union as bargaining agent for NIL/TU,O’s employees. The Board denied leave for reconsideration. Judicial review was allowed and the certification was set aside. On appeal, the Board was found to have been within its jurisdiction and its decision was reinstated.