Mississaugas of Scugog Island First Nation v. National Automobile Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Local 444 et al., (2007) 231 O.A.C. 113 (CA)

• Judge: Sharpe, Gillese and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 11, 2007
• Jurisdiction: Ontario
• Citations: (2007), 231 O.A.C. 113 (CA);2007 ONCA 814

Mississaugas v. NAATGWU (2007), 231 O.A.C. 113 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. NO.087

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c., J.,1;

AND IN THE MATTER OF decisions issued by the Ontario Labour Relations Board dated September 8, 2003, September 17, 2003, October 9, 2003, November 12, 2003, November 25, 2003, December 12, 2003, December 17, 2003 and December 24, 2003.

Mississaugas of Scugog Island First Nation (appellant/applicant) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 444, Great Blue Heron Gaming Company, and Ontario Labour Relations Board (respondents/respondents) v. The Attorney General for Canada and the Attorney General for Ontario (intervenors/intervenors)

(C46210; 2007 ONCA 814)

Indexed As: Mississaugas of Scugog Island First Nation v. National Automobile Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Local 444 et al.

Ontario Court of Appeal

Sharpe, Gillese and Blair, JJ.A.

November 27, 2007.

Summary:

An Indian Band owned a casino which operated on the Band's reserve. Shortly after the Ontario Labour Relations Board (OLRB) certified the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) as the bargaining agent of the casino employees under the Ontario Labour Relations Act (LRA), the Band enacted its own Labour Relations Code (the Code). The Band asserted that it had the right to enact the Code and displace the LRA under its aboriginal and treaty rights. The OLRB rejected those claims and concluded that the LRA applied to the casino and its employees. The Band applied for judicial review of the OLRB's decision.

The Ontario Divisional Court, in a decision reported at 213 O.A.C. 2, dismissed the application. The Band appealed.

The Ontario Court of Appeal dismissed the appeal.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - An Indian Band owned a casino which operated on the Band's reserve - The Great Blue Heron Gaming Co. (GBHGC) managed and conducted the day to day operations of the casino - Shortly after the Ontario Labour Relations Board (OLRB) certified a union as the bargaining agent of the casino employees under the Ontario Labour Relations Act (LRA), the Band enacted its own Labour Relations Code (the Code) - The Band asserted that it had the right to enact the Code and displace the LRA under its aboriginal and treaty rights - The OLRB rejected those claims and concluded that the LRA applied to the casino and its employees - The Ontario Divisional Court dismissed the Band's application for judicial review - The Band appealed - The Band argued, inter alia, that the Crown breached its duty to consult and accommodate when the Minister of Labour referred to the OLRB, the question of whether the LRA or the Band's Code applied to the collective bargaining between GBHGC and the casino employees - The Ontario Court of Appeal rejected the argument - First, the aboriginal claim asserted by the Band was dubious from the start and therefore not sufficiently credible to call for consultation - Second, the first time that the government knew or ought to have known of the claim was when the Band enacted its Code - Finally, if a duty to consult did arise, the scope of any duty was minimal - The duty to consult did not preclude the Crown from disputing an aboriginal claim that was asserted by a First Nation and litigating its existence before an impartial tribunal - Faced with the urgent need to resolve a dispute between GBHGC and the union, the Crown acted appropriately in referring the matter to the OLRB - See paragraphs 54 to 62.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - An Indian Band owned a casino which operated on the Band's reserve - Shortly after the Ontario Labour Relations Board (OLRB) certified a union as the bargaining agent of the casino employees under the Ontario Labour Relations Act (LRA), the Band enacted its own Labour Relations Code (the Code) - The Band asserted that it had the right to enact the Code and displace the LRA under its aboriginal and treaty rights - The OLRB rejected those claims and concluded that the LRA applied to the casino and its employees - The Band applied for judicial review of the OLRB's decision - The Ontario Court of Appeal affirmed a dismissal of the application - The court rejected the Band's characterization of the right claimed as the right to regulate work activities and to control access to aboriginal lands - Rather, the correct characterization was the right to regulate labour relations on aboriginal lands - The court further held that the Band failed to satisfy the three elements required to support an aboriginal right to enact a labour relations code that applied to aboriginal lands - First, there was no evidence of an aboriginal practice, custom or tradition that supported the right to enact a labour relations code - Second, even if the court accepted the Band's characterization of the right as an aboriginal practice to regulate work activities and access to aboriginal lands, such a practice could not be said to be integral to the distinctive culture of the Band - Third, the Band failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim - See paragraphs 17 to 48.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - At issue was whether the appellant Indian Band had an aboriginal right to enact a labour relations code that applied to aboriginal lands - The Band relied on, inter alia, ss. 18 and 20 of the First Nations Lands Management Act, which conferred on First Nations certain powers in relation to the ownership, management and use of First Nations lands - The Ontario Court of Appeal stated that "I see no merit in the submission that the specific powers conferred by this Act in relation to ownership, management and use of First Nations lands can somehow be converted into a plenary power to legislate in relation to all manner of activities that take place on First Nations lands. As stated in its preamble, the Act implements an agreement between the Crown and certain First Nations 'in relation to the management by those first nations of their lands'. There is nothing in the Act that could be read as adopting a general right of aboriginal self-government" - See paragraph 42.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - At issue was whether the appellant Indian Band had an aboriginal right to enact a labour relations code that applied to aboriginal lands - The Band referred to, inter alia, the Federal Policy Guide: Aboriginal Self Government, published under the authority of the Minister of Indian Affairs and Northern Development - The Ontario Court of Appeal stated that "the Policy was adopted in view of the failed efforts to amend the Constitution to include a right of aboriginal self-government and aims to make litigation 'a last resort' by implementing self-government through specific 'practical and workable agreements'. When describing the areas in which the federal government indicates its willingness to negotiate self-government agreements, 'labour/training' is identified as going 'beyond matters that are integral to Aboriginal culture or that are strictly internal to an Aboriginal group' where 'laws and regulations tend to have impacts that go beyond individual communities'. The Policy specifies that in these areas, 'primary law-making authority would remain with the federal or provincial governments, as the case may be, and their laws would prevail in the event of a conflict with Aboriginal laws.' I fail to see how this policy document, aimed at implementing self-government through specific issue-by-issue agreements, assists the appellant in making out a right to self-government under existing law, especially in an area that is identified as being inappropriate for a future agreement that would confer plenary powers" - See paragraph 43.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - At issue was whether the appellant Indian Band had an aboriginal right to enact a labour relations code that applied to aboriginal lands - The Band relied on, inter alia, the Ontario Statement of Political Relationship, a 1991 agreement between the Government of Ontario and the Ontario Chiefs-in-Assembly, explicitly recognizing "the inherent right to self-government of the First Nations ... under the Constitution of Canada" - The Ontario Court of Appeal stated that it was clear that both sides regarded the Statement as being a political commitment that did not alter or prejudice existing legal rights - The political agreement neither added nor subtracted from existing legal and constitutional rights and therefore did not assist the Band in this case - See paragraphs 44 to 45.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - At issue was whether the appellant Indian Band had an aboriginal right to enact a labour relations code that applied to aboriginal lands - The Band referred to, inter alia, the United Nations Draft Declaration on the Rights of Indigenous People (1993/4) (since adopted by the United Nations General Assembly) - The Ontario Court of Appeal stated that "This convention, which Canada voted against and has not ratified, recognizes the right of indigenous peoples to 'self-determination', to govern their own lands and to have their own distinct political, legal, economic, social and cultural institutions. While international law often is of assistance in the interpretation of domestic legal and constitutional norms, the general language of the Draft Declaration does not, in my view, provide any meaningful assistance to the resolution of the specific issue of Canadian constitutional law presented here" - See paragraph 46.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - At issue was whether the appellant Indian Band (Mississaugas of Scugog Island First Nation) had an aboriginal right to enact a labour relations code that applied to aboriginal lands - The Band asserted treaty rights under the Covenant Chain relationship, confirmed by the Treaty of Niagara of 1764 - The Ontario Court of Appeal held that the Band failed to make out a treaty right to enact a labour relations code to apply to activities on aboriginal lands - The court stated that "The Covenant Chain and the Treaty of Niagara, at best, reflect the general nature of the relationship between the Crown and First Nations at the time and confirm the basic common law doctrine of inherent aboriginal rights. As with the argument based upon inherent aboriginal rights, to accept the treaty argument would be to accept an aboriginal right of self-government on reserve lands of virtually unlimited breath and amplitude and exceeding anything seen to date in the jurisprudence of aboriginal treaty rights" - See paragraphs 49 to 52.

Cases Noticed:

Four B Manufacturing Ltd. v. United Garment Workers of America, Labour Relations Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 16].

Saskatchewan Indian Gaming Authority Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) et al. (2000), 193 Sask.R. 9; 73 C.L.R.B.R.(2d) 65 (Q.B.), affd. (2000), 203 Sask.R. 86; 240 W.A.C. 86; 73 C.L.R.B.R.(2d) 94 (C.A.), refd to. [para. 16].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, appld. [para. 17].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 17].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 18].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 18].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 18].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, consd. [para. 54].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 60].

Counsel:

Brian T. Daly and Jacquelyn E. Stevens, for the appellants;

Lewis Gottheil and Niki Lundquist, for the CAW;

Leonard Marvy, for the Ontario Labour Relations Board;

Leola Pon, for the Great Blue Heron Gaming Company;

Charlotte Bell, Q.C., and Michael Beggs, for the intervenor, Attorney General for Canada;

Owen Young and Malliha Wilson, for the intervenor, Attorney General for Ontario.

This appeal was heard on October 11, 2007, before Sharpe, Gillese and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on November 27, 2007.