The Content of s 91(24) of the Constitution Act, 1867

68. Section 91(24) gives the federal government exclusive jurisdiction in relation to “Indians, and the Lands Reserved for the Indians”.

69. As the B.C. Court of Appeal acknowledged in this case, part of the reason the cases dealing with labour relations jurisdiction over First Nations enterprises are challenging is because the federal jurisdictional competence in question describes a group of people rather than an industry or a specific type of operation.

BCCA Judgment, AR, Vol. I, pp. 86-87 at para. 28 70. While the application of the functional test is difficult when considering s. 91(24), the Court is not relieved of the task of determining the content of that federal area of competence so as to determine whether the enterprise is regulated federally for labour relations purposes.

71. While there is no decision of this Court or of a lower court that comprehensively maps out the content of s. 91(24), the Court’s decision in Delgamuukw v. British Columbia contains one of the most modern discussions of what is contained within the “core of Indianness”. Chief Justice Lamer’s decision also links the content of s. 91(24) of the Constitution Act, 1867 to s. 35(1) of the Constitution Act, 1982:

That core, for reasons I will develop, encompasses aboriginal rights, including the rights that are recognized and affirmed by s. 35(1)… The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)’s reference to “Lands reserved for the Indians”. But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over “Indians”.

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paragraph 178 (“Delgamuukw”) (BA, Vol. I, tab 7).

72. Delgamuukw and the other jurisprudence on point establish that s. 91(24) at minimum

encompasses the following: (a) Indian status,

(b) welfare and civil rights of Indians;

(c) band governance, including band elections,

(d) constitutionally recognized and entrenched treaty rights, aboriginal rights and aboriginal title; and

(e) rights of ownership or possession of lands on a reserve.

Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751 (BA, Vol. I, tab 14); Re Kane, [1940] 1 D.L.R. 390 (N.S. Co. Ct.) (BA, Vol. II, tab 23); R. v. Morris, [2006] 2 S.C.R. 915 (BA, Vol. II, tab 20); Derrickson v. Derrickson, [1986] 1 S.C.R. 285 (BA, Vol. I, tab 8). 73. It is uncontroversial that Indian status and identity form part of the content of s. 91(24).

Status must mean something more than an individual’s right to membership in a particular band. Indian status and membership in a First Nation are rooted in and inextricably linked to the culture, tradition and language of that First Nation and the ability of all members of that First Nation to exercise aboriginal rights entrenched in the Constitution.

74. NIL/TU,O’s operations are at the core of Indianness because children are the future of these First Nations and attending to their welfare in a way that incorporates their tradition and culture is essential to the survival of First Nations people and their ability to fully enjoy their entrenched constitutional rights. Further, the formation and operation of such an organization is a step on the path to self-government.

75. The activity that NIL/TU,O is engaged in is not simply the provision of social services to children and families; rather, it provides First Nations designed and centred programs to First Nations children and families primarily on reserve, in an aboriginal-focussed manner, with the objective of preserving First Nations culture, traditions and identity. 76. It would be self-defeating for First Nations children to have constitutionally enshrined

rights protected under s. 35 of the Constitution Act, 1982 without understanding the culture and traditions in which those rights are rooted. By imbuing this generation with their culture and traditions, First Nations organizations like NIL/TU,O enable the next generation of First Nations children to understand, practice and fully take advantage of their constitutionally protected rights.

77. The evidence in this case indicates that First Nations social service agencies have their genesis in the failure of generic programs offered by the provinces as applied to First Nations children and families. Generic provincial programs were not designed to and did not recognize cultural and social issues unique to First Nations. This has resulted in a disproportionate number of First Nations children being removed from their homes and placed in non-aboriginal homes with no opportunity to develop a positive self-identity or connection to their culture and traditions.

Larry Phillip Fontaine Affidavit, AR, Vol. II, p. 190 at paras. 7 -12; Linda Lucas Affidavit, AR, Vol. II, pp. 196-197 at paras. 18 - 22 78. First Nations child and family service agencies that deliver child and family services to First Nations people in a culturally-sensitive way, rooted in First Nations traditions, are vital to the preservation of First Nations cultural identity and traditions and are viewed as a step on the continuum toward self-government in the context of the welfare of First Nations children.

Larry Phillip Fontaine Affidavit, AR, Vol. II, p. 190 at paras. 8 -12; Linda Lucas Affidavit, AR, Vol. II, pp. 197-198 at paras. 22-23

79. The existence of Federal Directive 20-1 illustrates the importance that the federal government has placed on the development of First Nations child and family services organizations on reserve that deliver Indian designed, controlled and managed services and deliver such services pursuant to Indian developed standards. Paragraph 6 of Federal Directive 20-1 provides in part as follows:

The department is committed to the expansion of First Nations Child and Family Services on reserve to a level comparable to the services provided off reserve in similar circumstances. This commitment is independent of and without prejudice to any related right which may or may not exist under treaties.

The department will support the creation of Indian designed, controlled and managed services.

The department will support the creation of Indian standards of those services, and will work with Indian organizations to encourage their adoption by provinces/territory.

BCSC Judgment, AR, Vol. I, p. 31 at para. 4; Mavis Henry Affidavit No. 1, Exhibit “C”, AR, Vol. I, pp. 183-184 80. At paragraph 61 of the Court of Appeal Reasons, Groberman J.A. states that, “Neither the importance of a service to an individual, the fact that a First Nation derives a benefit from a service, nor the fact that the service is provided in a manner conforming to cultural norms mean that the service goes to ‘the core of Indianness.’” This narrow view of the core of Indianness fails to recognize the constitutionally enshrined nature of aboriginal rights. In rejecting authorities that emphasize the cultural components of a service delivered by a First Nations enterprise to aboriginal persons as factors going to “Indianness”, Groberman J.A. erred in taking an outdated and regressive approach to interpretation of the Constitution.

BCCA Judgment, AR, Vol. I, p. 104 at para. 61 81. Further, to equate the way in which NIL/TU,O delivers its services to efforts to promote multiculturalism and the need for cultural sensitivity more generally (as the Court of

Appeal does at paragraph 65) is to ignore the relationship between s. 91(24) of the Constitution Act, 1867 and s. 35 of the Constitution Act, 1982.

BCCA Judgment, AR, Vol. I, p. 106 at para. 65 82. In R. v. Van der Peet, when discussing the proper approach to s. 35 of the Constitution

Act, 1982 and the proof of aboriginal rights, Lamer C.J.C. noted as follows:

The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. The Court must neither lose sight of the generalized constitutional status of what s. 35(1) protects, nor can it ignore the necessary specificity which comes from granting special constitutional protection to one part of Canadian society. The Court must define the scope of s. 35(1) in a way which captures both the aboriginal and the rights in aboriginal rights. (Emphasis in original)

R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 20 (“Van der Peet”) (BA, Vol. II tab 21 83. Citing from Van der Peet, Professor Hogg explains that the fact that aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures as they had done for centuries, when the Europeans arrived in North America, is what distinguishes aboriginal peoples from all other minority groups in Canada and explains why aboriginal rights have a special legal and constitutional status.

Peter W. Hogg, Constitutional Law of Canada, Vol. 1, 5th ed. supplemented (Scarborough: Thomson Canada, 2007) at 28-22 (BA, Vol. II tab 37 84. The Canadian Constitution is a “living tree” – the interpretation of ss. 91 and 92 “and how they interrelate must evolve and must be tailored to the changing political and cultural realities of Canadian society.”.

85. In the modern constitutional landscape, “Indians” (using the terminology from s. 91(24)) are taking on increasing responsibility for the delivery of proactive social service programs to First Nations people with the objective of fostering cultural identity, heritage and language of First Nations people to ensure their survival as a people. Organizations formed by First Nation’s governing bodies that deliver services in this way and deliver them primarily to First Nations people on reserve are inherently “Indian” organizations, and fall squarely within s. 91(24). They are federal in the same way that interprovincial railways or works for the general advantage of Canada are federal, and therefore their labour relations are federally regulated.

F. Understanding Four B and the Cases Applying the Functional Test to First Nation