The Aboriginal character of the entity does not in itself overcome the presumption of provincial jurisdiction: court

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Quoting NIL / TU, O Child and Family Services Society v. BC Government and Service Employees’ Union, 2010 CSC 45, [2010] 2 RCS 696, the court said there was a presumption that labor relations fell under provincial jurisdiction with one exception. This exception requires satisfaction of a two-part test. For the first test, it is necessary to determine whether the normal or usual activities of the entity are federal. If the result is not conclusive, we move on to the second test, to determine whether the provincial regulation of the entity’s labor relations would undermine the essence of federal power.

In that case, the court ruled that the ARKC had failed the first test. The provision of the aforementioned consultancy services are not activities that place the company within federal scope, the court ruled. “[AKRC’s] The aboriginal character, the fact that it receives federal funding, or the fact that it exclusively serves First Nations communities does not necessarily qualify the organization for the “federal commitment” exemption, the court said.

Contrary to the arbitrator’s decision, the tribunal concluded that federal funding for the AKRC comes only partially from the federal government. In addition, addressing the “core of Indianness”, the tribunal referred to NULL / TU, O, stating that it was not enough that the undertaking touch on these essential powers, but that the provincial labor legislation interferes with the exercise of these essential powers, which was not the case in this case.


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