T-2649-86
Qu'Appelle Indian Residential School Council
(Plaintiff)
v.
Canadian Human Rights Tribunal, Public Service
Alliance of Canada and Canadian Human Rights
Commission (Defendants)
and
Public Service Alliance of Canada (Complainant)
v.
Qu'Appelle Indian Residential School Council
(Respondent)
and
Minister of Indian Affairs and Northern Develop
ment (Interested Party)
INDEXED AS: QU'APPELLE INDIAN RESIDENTIAL SCHOOL
COUNCIL v. CANADA (CANADIAN HUMAN RIGHTS TRIBUNAL)
Trial Division, Pinard J. —Ottawa, September 28
and November 2, 1987.
Constitutional law — Distribution of powers — Labour
relations — Discriminatory practice by Indian School Council
(the "Council") vis-à -vis employees at residential school —
Whether labour relations governed by s. 91(24) Constitution
Act, 1867 dealing with Indians, or by s. 93 placing education
under provincial control — Functional test — Nature of
activity determinative of jurisdictional issue — Council's
activities so directly related to Indian status, rights and privi
leges as to form integral part of primary federal jurisdiction
over Indians.
Native peoples — Council accused of discriminatory prac
tice (sex discrimination) contrary to Canadian Human Rights
Act — Council incorporated under provincial legislation —
Operating federally funded residential school for Indians on
reserve — Council composed of Band Chiefs — Employing
mostly Indians — Labour relations within federal legislative
competence — Council's functions so directly related to Indian
status, rights and privileges as to form integral part of pri
mary federal jurisdiction over Indians.
Labour relations — Complaint by Public Service Alliance of
Canada that Council engaging in discriminatory practice (sex
discrimination in salary structure) contrary to s. II Canadian
Human Rights Act — Labour relations within provincial
control unless activity characterized as federal — Functional
test — Nature of Council's functions so directly related to
Indian status as to form integral part of primary federal
jurisdiction over Indians — Canadian Human Rights Tribunal
having jurisdiction to hear Union's complaint.
Human rights — Council allegedly engaging in discrimina
tory practice (sex discrimination in salary structure) contrary
to s. 11 Canadian Human Rights Act — Council operating
residential school for Indians on reserve — Canadian Human
Rights Tribunal having jurisdiction to hear complaint.
The qu'Appelle Indian Residential School Council (herein-
after the "Council") is a non-profit organization incorporated
under the laws of the Province of Saskatchewan. The Council,
composed of Band Chiefs, administers the Qu'Appelle Indian
Residential School which provides education and residential
care to Indian children. The School is federally funded, oper
ates on an Indian reserve and employs mostly Indians. The
Public Service Alliance of Canada, the bargaining agent for the
Indian employees, filed a complaint with the Canadian Human
Rights Commission alleging that the Council engaged in dis
crimination contrary to section 11 of the Canadian Human
Rights Act. That section provides that it is a discriminatory
practice for an employer to maintain differences in wages
between male and female employees for work of equal value.
The Council sought a declaration that the Canadian Human
Rights Tribunal has no authority to inquire into the Union's
complaint. This is an application by the Commission for a
judgment dismissing the Council's action. The Council con
tends that the labour relations in the case at bar are not
governed by subsection 91(24) of the Constitution Act, 1867
dealing with "Indians and Lands reserved for the Indians" but
by section 93 which places education under provincial control.
Held, the application should be allowed.
The constitutional jurisdiction of section 11 of the Canadian
Human Rights Act is to be determined according to the
principles applicable to other labour relations legislation. As a
rule, labour relations fall within provincial legislative compe
tence as being related to property and civil rights. However, the
Supreme Court of Canada has set out exceptions to that rule
which confirm Parliament's jurisdiction, in certain situations, to
legislate in respect of labour relations matters. Essentially, the
position of the Supreme Court is that a work, undertaking or
business can be characterized as federal if the nature of the
activity forms an "integral part of primary federal jurisdiction
over some other federal object". This is known as the functional
test. The nature of the activity is therefore determinative of the
jurisdictional issue.
Using the functional test, it was to be concluded that the
Council's employees were so directly involved in activities
relating to Indian status, rights and privileges that their labour
relations with the Council formed an integral part of the
primary federal jurisdiction over Indians and Indian lands
under subsection 91(24) of the Constitution Act, 1867. That
conclusion was supported by the facts, the Council's by-laws
and objects of incorporation. The Court was satisfied that the
School's employment relations had always been under federal
jurisdiction. The initial responsibility for the administration of
the School rested on the Minister responsible for Indian affairs;
it was subsequently turned over to the Council composed of
Band Chiefs. Since its establishment, the School had been
funded by the federal government, and was ultimately respon
sible to the federal government pursuant to sections 114-123 of
the Indian Act. The fact that the Council did not raise any
jurisdictional arguments against certification before the
Canada Labour Relations Board was also considered. The
School is therefore subject to federal legislation regarding
labour relations and the Tribunal has jurisdiction to entertain
the complaint against the Council.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 119 (as am.
by S.C. 1972, c. 18, s. 1).
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2,
11(1), 21, 35(1).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91(24), 92(13), 93.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 341.
Indian Act, R.S.C. 1970, c. I-6, ss. 114-123.
The Non-profit Corporations Act, S.S. 1979, c. N-4.1.
The Societies Act, R.S.S. 1965, c. 142 (rep. by S.S.
1983-84, c. 52).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Francis v. Canada Labour Relations Board, [1981] 1
F.C. 225 (C.A.); rev'd on other grounds [1982j 2 S.C.R.
72; Whitebear Band Council v. Carpenters Prov. Council
ofSask., [1982] 3 W.W.R. 554 (Sask. C.A.).
APPLIED:
Reference re Industrial Relations and Disputes Act,
[1955] S.C.R. 529; Canada Labour Relations Board et
al. v. Yellowknife, [1977] 2 S.C.R. 729; Canadian
Human Rights Commission v. Haynes (1983), 46 N.R.
381 (F.C.A.).
DISTINGUISHED:
Four B Manufacturing Ltd. v. United Garment Workers
of America et al., [1980] 1 S.C.R. 1031.
COUNSEL:
Niel Halford for plaintiff.
Russell Juriansz for defendant Canadian
Human Rights Commission.
Andrew J. Raven for defendant Public Service
Alliance of Canada.
SOLICITORS:
Halford Law Office, Fort Qu'Appelle, Sas-
katchewan, for plaintiff.
Canadian Human Rights Commission Legal
Services for defendant Canadian Human
Rights Commission.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for defendant
Public Service Alliance of Canada.
The following are the reasons for order ren
dered in English by
PINARD J.: This is an application by the defen
dant Canadian Human Rights Commission, pursu
ant to Rule 341 [Federal Court Rules, C.R.C., c.
663], for a judgment dismissing the plaintiff's
action. A similar application was also made with
regard to action no. T-2421-85, involving the same
issue, and the parties have agreed that both
applications be argued at the same time and decid
ed on the same evidence. Therefore, these reasons
will apply mutatis mutandis in support of the
order related to that similar application in the
other case.
The parties by their counsel have also agreed
that the following documents constitute the record
for the argument:
1. The agreed statement of facts filed by the
parties before the Canadian Human Rights
Tribunal;
2. The affidavit of Chief Irvin Starr sworn the
28th day of November 1986;
3. The affidavit of Daniel J. Russell sworn the 6th
day of April 1987.
The agreed statement of facts filed by the par
ties before the Canadian Human Rights Tribunal
enunciated the following facts and referred to
many relevant appended documents that it will not
be necessary to reproduce in these reasons, even
though the Court may see fit at some point in time
to refer to parts of them. It is therefore appropri
ate and sufficient, at this stage, to merely
reproduce the "Agreed Statement of Facts" as
drafted:
1. The Public Service Alliance of Canada (herein-
after referred to as "PSAC") is a bargaining agent
representing all employees of the Qu'Appelle
Indian Residential School, excluding the Resi
dence Administrator.
2. The Canadian Human Rights Commission
(hereinafter referred to as the "Commission") is a
statutory body created by section 21 of the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
as amended (hereinafter referred to as the "Act").
(Attached hereto as Appendix "A" is a true copy
of the Canadian Human Rights Act.)
3. The respondent, Qu'Appelle Indian Residential
School Council, (hereinafter referred to as the
"Council") was incorporated under the provisions
of The Societies Act [R.S.S. 1965, c. 142], Sas-
katchewan, on August 23, 1972. (Attached as
Appendix "B" is a copy of the Certificate of
Incorporation pursuant to The Societies Act, with
the attached Application). By Special Resolution
dated November 22, 1974, the by-laws were
rescinded and were replaced by new by-laws
adopted effective November 18, 1974. (Attached
as Appendix "C" is a copy of the Special Resolu
tion and amended by-laws.) The Societies Act was
replaced by the Saskatchewan Non-profit Corpo
rations Act [S.S. 1979, c. N-4.1] and formally
repealed in 1984 [S.S. 1983-84, c. 52]. The Coun
cil was continued pursuant to the provisions of the
Saskatchewan Non-profit Corporations Act as a
corporation incorporated under the laws of Sas-
katchewan with registered office in Regina, Sas-
katchewan. (Attached as Appendix "D" is a copy
of the Certificate of Continuance dated September
28, 1982.)
4. The respondent operates the Qu'Appelle Indian
Residential School (hereinafter referred to as the
"School") in the District of Lebret, Saskatchewan.
5. A complaint by PSAC was filed under the Act
with the Commission on September 9, 1981, alleg
ing that the Council engaged in discrimination on
the ground of sex under section 11 of the Act. The
complaint states that the salary structure of the
employer has a majority of male-dominated posi
tions in the top half of the salary structure and the
female-dominated positions in a lower half, except
for senior positions staffed by females. It further
contends that many of the female-dominated posi
tions in the lower half are of equal value to
male-dominated positions in the top half. The posi
tion titles as provided in the School Employee
Manual reflect no significant changes from the
time of the filing of the complaint. (Attached as
Appendix "E" is a copy of the PSAC Complaint,
and as Appendix "F" a copy of the Employee
Manual.)
6. After the filing of the complaint, the Commis
sion appointed an investigator on May 31, 1982,
pursuant to subsection 35 (1) of the Act to com
plete an investigation into the complaint.
7. Following a report by the investigator, the
Commission, by letter dated October 24, 1985,
requested that the President of the Human Rights
Tribunal Panel appoint a Human Rights Tribunal.
(Attached hereto as Appendix "G" is a copy of the
letter dated October 24, 1985.)
8. The School provides education and residential
care to Indian children from the Touchwood-File
Hills-Qu'Appelle District and the Yorkton District
of Indian Reserves as defined by the Minister of
Indian and Northern Affairs, Canada. The greater
part of these Districts is located in the Province of
Saskatchewan, though a small portion of these
Districts is located in the Province of Manitoba.
9. From 1887, when the School was first estab
lished, the School was run by the Oblate fathers
and funded by the Minister in the Government of
Canada with responsibility for Indians. In or
around 1968, the Minister, or his delegates,
assumed the operational functions and appointed
the members of the school board. In 1973, the
"local advisory board", composed of concerned
Indian Band members who were consulted by and
gave advice to the school board, became respon
sible for the administration of the School's resi
dences. In 1981, the Minister turned over responsi
bility for the administration of the School to the
"local advisory board". At the present time, the
Council is composed of the 24 Band Chiefs of the
24 Bands that constitute the Touchwood-File
Hills-Qu'Appelle District and the Yorkton Dis
trict.
10. By Order in Council P.C. 1983-2071, dated
July 7, 1983, the lands on which the school build
ings are located were set apart for the use and
benefit of the Starblanket Reserve of Indians to be
known as Wa-Pii-Moos-Toosis (White Calf)
Indian Reserve No. 83A, in partial satisfaction of
the Band's entitlement pursuant to Treaty No. 4.
(Attached hereto as Appendix "H" is the Order in
Council transferring the land to the Starblanket
Reserve, and as Appendix "I" a copy of Treaty
No. 4.)
11. In 1981, the Council commenced leasing a
school building from the Board of Education of the
Indian Head School Division No. 19 of Saskatche-
wan which has been used by the elementary grades
of the School. The building is approximately one
block off the reserve. (Attached hereto as Appen
dix "J" is a copy of the Certificate of Title to the
Board of Education of the Indian Head School
Division No. 19, and as Appendices "K", "L",
"M" and "N" are lease agreements between the
Council and the Board of Education of the Indian
Head School Division No. 19 for the years 1981,
1983, 1984 and 1985.)
12. The teachers at the Qu'Appelle Indian Resi
dential School are paid on the same scale as the
teachers in Saskatchewan who work for the Sas-
katchewan Department of Education. There is no
formal contract between the teachers and the
Council. The School's programme is identical to
the programme set up by the Saskatchewan
Department of Education except that the School
has additional courses in Cree language and in
Indian culture. There is no tuition fee for the
students to attend the School. There are approxi
mately 200 students attending the School. The
School provides both elementary and high school
education to native Indians.
The core of the School constitutes one large
building containing classrooms, residences and
administrative offices. There are other classroom
buildings for subjects such as mechanics. A retired
superintendent of the provincial public school
system has been acting as superintendent to the
School. The School is not regulated in any way by
the Department of Education of the Province of
Saskatchewan. (Attached hereto as Appendices
"O" and "P" are the Student Handbook and the
1984-1985 Annual Report.)
13. The School is fully funded by Her Majesty
the Queen in right of Canada, pursuant to annual
agreements executed by the Minister for Canada
responsible for Indians. (Attached hereto as
Appendices "Q", "R", "S", "T" and "U" are the
yearly agreements for the years 1981-82, 1983-84,
1984-85, 1985-86 and 1986-87. Attached as
Appendices "V", "W", "X", "Y", "Z" and "AA"
are the financial statements for the School for the
years 1981 up to and including 1986.)
14. The Council was officially notified of the com
plaint by letter dated July 30, 1982. (Attached as
Appendix "BB" a copy of the letter dated July 30,
1982.) However, the Council did not dispute the
Commission's jurisdiction over the complaint
except in vague and imprecise terms. (Attached as
Appendix "CC" is an internal Commission Memo
randum dated October 28, 1983, referring to the
Council's questioning of the Commission's juris
diction, and attached as Appendix "DD" is a letter
dated March 21, 1985, from the Council to the
Commission which also raises the question of the
Commission's jurisdiction.) On neither occasion
did the Council assert that it was under provincial
jurisdiction.
15. On or about the 13th day of April 1973, the
PSAC presented to the Canada Labour Relations
Board an application for Certification as bargain
ing agent, pursuant to the Canada Labour Code,
Part V [R.S.C. 1970, c. L-1 (as am. by S.C. 1972,
c. 18, s. 1)], respecting a proposed bargaining unit
consisting of all employees of the Council. At no
time did the Council take the position that the
Canada Labour Code did not apply to it. The
Certification Order was granted by the Board on
the 4th day of March, 1974. (Attached hereto as
Appendices "EE", "FF" and "GG", is the PSAC
Certification Application, the Council's reply of
July 31, 1973, and the Certification Order of the
Board rendered March 4, 1974, respectively.)
16. On or about the 7th day of October 1982,
more than a year after the presentation of the
subject complaint to the Commission, the Council
submitted an application to the Canada Labour
Relations Board pursuant to section 119 of the
Canada Labour Code, Part V to amend the
description of the bargaining unit specified in the
Board's Certification Order of March 4, 1974. The
jursidiction of the Board to consider the Council's
Application was, of course, assumed. On the 7th
day of February 1983, the Council's Application
for Review was granted and the scope of the
bargaining unit revised. (Attached hereto as
Appendices "HH", "II" and "JJ", is the Council's
Application for Review, the CLRB Investigator's
Report dated November 16, 1982 and the Decision
of the Board of February 17, 1983.)
17. The parties have agreed that the facts con
tained in this statement should constitute the
record in this matter.
At issue is the constitutional jurisdiction of the
Canadian Human Rights Tribunal to hear the
complaint of Public Service Alliance of Canada
against the plaintiff. The jurisdiction of the Tri
bunal to conduct an inquiry is derived from the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
as amended. The provisions of the Act are con
fined to those matters falling within the legislative
competence of the federal Government. Section 2
and subsection 11(1) of the Act provide:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
11. (1) It is a discriminatory practice for an employer to
establish or maintain differences in wages between male and
female employees employed in the same establishment who are
performing work of equal value.
As stated by Le Dain J. in Canadian Human
Rights Commission v. Haynes (1983), 46 N.R.
381 (F.C.A.), at page 383, the constitutional juris
diction of section 11 of the Act is to be determined
by the same principles applicable to other labour
relations legislation:
Section 11 of the Canadian Human Rights Act deals with
discrimination in employment. It provides that it is a dis
criminatory practice for an employer to establish or maintain
differences in wages between male and female employees
employed in the same establishment who are performing work
of equal value .... I agree with counsel that section 11 relates
to employer and employee relations and that its constitutional
application is therefore to be determined by the principles
applicable to legislative jurisdiction in respect of that matter.
The plaintiff Qu'Appelle Indian Residential
School Council contends that it is not subject to
the labour relations laws of the Government of
Canada. It takes the position that it is a corpora
tion which manages a school. Using the "function-
al test", as required by several court precedents, it
submits that its operations are fully described by
saying that it operates a residential school pro
gram. It concludes that labour relations in this
case ought not to be considered under subsection
91(24) of the Constitution Act, 1867 [30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)], dealing with "Indians, and Lands
reserved for the Indians", but under section 93
which in principle places education under provin
cial control.
The plaintiff therefore has sought a declaration
that the Canadian Human Rights Tribunal has no
authority to inquire into the complaint by the
defendant Public Service Alliance of Canada, and
an order prohibiting the Tribunal from conducting
such an inquiry. This application by the defendant
Canadian Human Rights Commission seeks an
order or a judgment dismissing that action by the
plaintiff.
The matter of labour relations is usually con
sidered to fall within the provincial realm of legis
lative competence as being in relation to property
and civil rights, pursuant to subsection 92(13) of
the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. However, there are
generally considered to be four exceptions to this
rule. Estey J. in Reference re Industrial Relations
and Disputes Act (the Stevedoring case), [1955]
S.C.R. 529 set out these four exceptions at page
564:
These authorities establish that there is a jurisdiction in the
Parliament of Canada to legislate with respect to labour and
labour relations, even though these relations are classified
under Property and Civil Rights within the meaning of s.
92(13) of the B.N.A. Act and, therefore, subject to provincial
legislation. This jurisdiction of Parliament to so legislate
includes those situations in which labour and labour relations
are (a) an integral part of or necessarily incidental to the
headings enumerated under s. 91; (b) in respect to Dominion
Government employees; (c) in respect to works and undertak
ings under ss. 91(29) and 92(10); (d) in respect of works,
undertakings or businesses in Canada but outside of any
province.
In Canada Labour Relations Board et al. v.
Yellowknife, [1977] 2 S.C.R. 729, at page 736,
Pigeon J. stated:
This leaves for consideration as the only question in this case
whether, in the context of the Labour Code, the definition of
the expression "federal work, undertaking or business"
embraces the operations of a municipal corporation.
In considering this question, one has to bear in mind that it is
well settled that jurisdiction over labour matters depends on
legislative authority over the operation, not over the person of
the employer.
The case most heavily relied upon by the plain
tiff here was Four B Manufacturing Ltd. v. United
Garment Workers of America et al., [1980] 1
S.C.R. 1031. In that case, a shoe manufacturing
business was being run by Indians who owned the
business through a provincially registered corpora
tion. It was located on a reserve, employed mainly
Indians, and was funded through the Department
of Indian Affairs. The Indian Band Council had
nothing to do with the enterprise. In that case,
Beetz J., writing for the majority (Laskin C.J. and
Ritchie J. dissenting) stated the law as follows at
page 1045:
In my view the established principles relevant to this issue
can be summarized very briefly. With respect to labour rela
tions, exclusive provincial legislative competence is the rule,
exclusive federal competence is the exception. The exception
comprises, in the main, labour relations in undertakings, ser
vices and businesses which, having regard to the functional test
of the nature of their operations and their normal activities, can
be characterized as federal undertakings, services or businesses:
In applying that law to the facts in the Four B
case, Beetz J. concluded at page 1046:
There is nothing about the business or operation of Four B
which might allow it to be considered as a federal business: the
sewing of uppers on sport shoes is an ordinary industrial
activity which clearly comes under provincial legislative author
ity for the purposes of labour relations. Neither the ownership
of the business by Indian shareholders, nor the employment by
that business of a majority of Indian employees, nor the
carrying on of that business on an Indian reserve under a
federal permit, nor the federal loan and subsidies, taken sepa
rately or together, can have any effect on the operational
nature of that business. By the traditional and functional test,
therefore, The Labour Relations Act applies to the facts of this
case, and the Board has jurisdiction.
In dealing with the submissions made by the
appellant, Beetz J. elaborated on the meaning of
the functional test as follows, at page 1047:
The functional test is a particular method of applying a more
general rule namely, that exclusive federal jurisdiction over
labour relations arises only if it can be shown that such
jurisdiction forms an integral part of primary federal jurisdic
tion over some other federal object: the Stevedoring case.
From this statement of the law, it can be con
cluded that in deciding the jurisdiction of labour
relations in a particular case, the focus should not
be on who the employer is, who the employees are,
where the activity is taking place, or who is fund
ing the activity. Instead, at issue is the character
or nature of the activity concerned. In the Four B
case, the majority of the Supreme Court of
Canada decided that the nature of the activity had
nothing whatsoever to do with Indian status or
privileges, and that the sewing of uppers onto
sports shoes could be characterized as merely an
ordinary industrial activity. Thus, the labour rela
tions, in the circumstances, would be dealt with
under provincial law.
In Francis v. Canada Labour Relations Board,
[1981] 1 F.C. 225 (C.A.), reversed on other
grounds, [1982] 2 S.C.R. 72, the opposite conclu
sion was reached when a certification order of the
Canada Labour Relations Board was upheld with
respect to a bargaining unit made up of employees
of the St. Regis Band Council. These employees
had various responsibilities including the adminis
tration of education, Indian lands and estates,
housing, public works and an old age home, as well
as the maintenance of schools, roads, sanitation
and garbage collection. Heald J., whose views on
the jurisdictional issue were concurred in by the
other two Judges, held that because the bargaining
unit's employees were so directly involved in activi
ties relating to Indian status and privileges, the
labour relations were "an integral part of primary
federal jurisdiction over Indians or Lands reserved
for Indians". Thus, he held, it was within the
Canada Labour Relations Board's jurisdiction to
certify the unit. He distinguished the Four B case
(supra) by noting that whereas, in that case, the
Indians on the reserve were conducting a commer
cial enterprise which did not affect the status and
rights of the employees as Indians or Band mem
bers, in Francis the employees or the Council were
involved in the total administration of the Band,
which unquestionably concerned the status, rights
and privileges of band Indians,
In Whitebear Band Council v. Carpenters Prov.
Council of Sask., [1982] 3 W.W.R. 554 (Sask.
C.A.), carpenters and carpenters' apprentices
hired by the Whitebear Band Council to carry out
a home construction and renovation project
financed by the federal Government, applied to the
Saskatchewan Labour Board for certification. The
Board's decision to certify the unit was quashed by
the Saskatchewan Court of Appeal on the basis
that the Board had acted outside its jurisdiction.
Cameron J.A. concluded as follows (at page 566):
Accordingly, I am satisfied that the construction of houses on
the reserve, in the circumstances, is part and parcel of the
general operation as a whole of the band council, and cannot
properly be removed from that whole and viewed as an ordinary
industrial activity in the province and falling under provincial
jurisdiction ....
At first, the case at bar appears to be similar to
the Four B case (supra). As in that case, the
Council here is being funded by the federal
Department of Indian and Northern Affairs, oper
ates on an Indian Reserve, and employs mostly (if
not all) Indian employees. Also, as in the Four B
case, the Council is a private corporation incorpo
rated under provincial legislation, although in this
case, the Council is a non-profit organization,
whereas Four B Manufacturing Ltd. was incorpo
rated as a business enterprise. However, these
similarities are not important because as Beetz J.
in the Four B case (supra) specified, it is not
where an entity operates or whom it employs that
is determinative of the jurisdictional issue, but
what the entity does. The key issue is how to
characterize the nature and functions of the
plaintiff.
In this case, I consider that the nature of the
functions of the Council can and should be charac
terized as forming an integral part of the primary
federal jurisdiction over Indians and Indian Lands.
It should be characterized as coming within feder
al jurisdiction by virtue of subsection 91(24) of the
Constitution Act, 1867. This conclusion is support
ed by the facts in the case. The function of the
Council is to administer the Qu'Appelle Residen
tial Indian School. This includes the construction
and maintenance of school buildings and resi
dences, the financial management and staffing of
the School, and the formulation of educational
policy for the School. Among the stated objects in
the Council's certificate of incorporation as well as
in the Council's constitution is the following (see
Appendix "B" and Appendix "C", article 2(f), in
the agreed statement of facts):
The objects of the Society are:
(f) to foster and promote all indian literature, history and
arts and to foster and promote the finest cultural elements
and traditions, including language, religion, folk music, danc
ing, handicrafts, and generally all indian traditions and make
necessary recommendations to the government of Canada, so
that the said cultural elements may be incorporated into the
curriculum of the Qu'Appelle Indian Residential School.
The Council's by-laws are also significant (see
Appendix "C" to the agreed statement of facts);
for example:
1. The by-law related to membership of the Socie
ty states that memberships shall be open to any
treaty Indian or registered Indian of the Touch-
wood-File Hills-Qu'Appelle and Yorkton Districts
of the Regina Indian Society.
2. The by-law related to Officers and Directors
states:
There shall be 25 nominees, each Indian band shall be a band
within the meaning of The Indian Act and located in the
Touchwood-File Hills-Qu'Appelle and Yorkton Districts, shall
select one nominee to attend at general meeting of the Society
and the Regina Indian Society, formerly the Regina Urban
Indian Association, shall select one nominee to attend at gener
al meetings of the said Society and the 25 nominee will
together choose the Directors of the Society and be the only
people eligible to be elected as Directors of the Society.
3. The by-law related to the duties and powers of
the Directors states:
(d) It shall be the duty of the directors to discuss the cur
riculum in the school and to make recommendations to the
general meeting and to the Government of Canada for changes
in the curriculum which would further the aims and objectives
of the Society.
(k) In consultation with Federal Government, it should be the
duty of the directors to exercise control of admission to the
Qu'Appelle Indian Residential School.
4. The by-law related to exercise of monetary
powers states:
(a) For the purpose of carrying out the objects of the Society,
this Society shall request the Federal Government to sign an
agreement to grant annually the total funds necessary to cover
operating for the case of students, maintenance, repair,
up-keep, renovation and expenses.
Treaty No. 4 states specifically that "Her
Majesty agrees to maintain a school in the reserve
allotted to each band as soon as they settle on said
reserve and are prepared for a teacher". (See
Appendix "I" to the agreed statement of facts.)
Even though in 1981 the Minister turned over
responsibility for the administration of the School
to the "local advisory board", every relevant year,
from 1981 to 1985 inclusive, the Minister has been
authorized pursuant to section 114 of the Indian
Act, R.S.C. 1970, c. I-6, as amended, to enter into
a detailed agreement with the plaintiff for the
education in accordance with that Act of the
Indian children. (See Appendix "Q" to Appendix
"T" inclusive of the agreed statement of facts.)
I am of the view therefore that the Qu'Appelle
Indian Residential School and its employment
relations come under federal jurisdiction because
they always have. For the period between 1968
and 1973, the School was actually run by the
federal Minister responsible for Indian Affairs,
after which period, the federal government gradu
ally turned over its responsibility to the Council
which was composed of twenty-four band chiefs
representing the twenty-four bands in the Touch-
wood-File Hills-Qu'Appelle and Yorkton Districts.
The School, since its establishment in 1887, has
been funded by the federal government, and is
ultimately responsible to the federal government
pursuant to sections 114 to 123 of the Indian Act.
In addition, the Council still considered itself to
be under federal jurisdiction when it was confront
ed with certification of the PSAC as bargaining
unit for its employees. The Council did not raise
any jurisdictional arguments against certification
before the Canada Labour Relations Board.
In that context, I fully agree with the following
passage of the decision of the Human Rights
Tribunal produced and marked as Exhibit "E" to
the affidavit of Chief Irvin Starr:
The fact that the School is designed and operated for Indians,
governed solely by Indians, that its enrolment is limited to
Indians, that the stated objects are to promote Indian traditions
and the curriculum includes Indians language and culture all
served to identify the very "Indianness" of the operation and
link it to Indian rights, status and privileges.
In view of all those facts, it does not matter that
many provincially run schools in Saskatchewan
have native studies and Cree language programs.
Besides, the affidavit of Daniel J. Russell confirms
indeed that there are such schools which have
courses in native studies from grades 10 to 12; but
while there may have been native studies courses
developed at the divisional level where there was
sufficient local interests, Mr. Russell is unaware of
any being taught in grades 1 through 9 in the
provincial school system. A list of schools which
offer Cree and other native language courses is
given and the majority of schools teaching Indian
languages are either run by Indian Bands or by the
Department of Indian Affairs.
In my opinion, as in the Francis case (supra)
and the Whitebear case (supra), the Council's
employees here are so directly involved in activities
relating to Indian status, rights and privileges that
their labour relations with the Council should be
characterized as forming an integral part of the
primary federal jurisdiction over Indians and
Indian lands, under subsection 91(24) of the Con
stitution Act, 1867.
By the traditional and functional test, therefore,
the facts in this case indicating that the nature of
the operations of the Qu'Appelle Residential
Indian School is primarily federal, that School is
subject to federal legislation regarding labour rela
tions and consequently the Canada Human Rights
Tribunal has jurisdiction to hear the complaint
against the plaintiff.
For all these reasons, the application by the
defendant Canadian Human Rights Commission
for dismissal of the plaintiff's action under Rule
341 of this Court should be granted, with costs
against the plaintiff.
In view of this result, the application made by
the plaintiff for an interlocutory order under sec
tion 18 of the Federal Court Act that the Canada
Human Rights Tribunal be prohibited from con
ducting an inquiry in this matter "until further
Order of this Court" must also be dismissed with
costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.