Is federalism a viable model of governance for Aboriginal peoples?

Jul 14, 2016 | Aaron Swartz Progressive Change Scholarship


In this paper, I critically examine the judicial reasoning in NIL/TU, O Child and Family Services Society v. B.C Government and Services Employees’ Union,[1]  in order to demonstrate how division of powers issues can dilute the substantive issues which motivated the issue to begin with and further complicate federalism’s commitment to reconciling diversity within unity.

There are two issues: (1) whether CFSS’ labour relations fall within federal jurisdiction over “Indians” under s.91(24) of the Constitution Act, 1867 and (2) what is the scope of s.91(24). The Government of British Columbia and Service Employees’ Union argued that the courts had traditionally recognized labour relations as a predominantly provincial matter whereas CFSS argued that the nature of its services—and in particular that they served First Nations people—attracted federal jurisdiction over “Indians” under s. 91(24) of the Constitution Act, 1867. The Supreme Court of Canada’s decision was unanimous—for different reasons—in finding that the CFSS fell within provincial jurisdiction.

The Judgement


Justice Abella, for the majority, held that labour relations trigger a conditional two-step test, not inter jurisdictional immunity, and that Aboriginal status is irrelevant to the analysis. Abella J. held that the “functional test” looks to “examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking.”[2] Whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue is only triggered if the functional test were inconclusive. Per Abella J., immediately scrutinizing whether an activity lay at the “core” of a federal head of power would transform the functional test into a test of inter jurisdictional immunity. Ironically, the inter jurisdictional immunity test had typically been applied by the courts to protect certain legislated matters that fell within federal jurisdiction, including Aboriginal peoples.[3] Therefore, Abella J. held that s. 91(24) did not require a different approach merely because the subject matter concerned Aboriginal peoples and that the “nature, operations and habitual activities” of CFSS were provincial undertakings.

Although the minority judgment rendered by McLachlin C. J., Fish J., and Binnie J. reached the same conclusion, their judgement goes further to illuminate the distinct status granted to “Indians.” They suggest that whether an entity’s “normal or habitual activities” constitute a federal undertaking was really a question of whether they “implicated the protected core of a federal head of power.” In determining the “core” of s. 91(24), they consider a “status test” to hold that “to oust provincial labour law, the activity or operation must go to the status and rights of Indians. It must be ‘at the centre of what they do and what they are.’”[4] They held that the nature and habitual activities of CFSS did not come under s. 91(24) merely because an “incidental effect” of its services was an effort to preserve the culture and identity of Aboriginal children.


Although coming before the court as a division of powers issue, substantively, the case was about the agency’s distinct role as an Aboriginal family service. The majority’s assertion that the “core” of “Indianness” in s. 91(24) is irrelevant to the analysis is not only striking, but seems to constructively ignore the social and political context which propelled the case before the court. There is a plethora of data which indicates that the representation, treatment, experiences and negative effects of child welfare agencies are disproportionately disadvantageous to Aboriginal families as compared to other groups in Canada.[5] Likely, Aboriginal peoples’ preference that the CFSS come under federal jurisdiction turns on the fact that its services go to “Indianess” by engaging their unique identities, understanding and experiences with child welfare and family issues.

The court’s failure to genuinely inquire into the nature of the services offered by CFSS evidences Peter Schuck’s assertion that “the structure of the federal system itself will reinforce existing social cleavages” and that Canadian federalism in particular tends to exaggerate and reinforce the cleavages that produced federalism in the first place.[6] Section 91(24) of the Constitution Act, 1867, as the constitutionalization of Crown-Aboriginal relations, charges the Crown with the responsibility of protecting Aboriginal peoples and their lands from colonialist governments.[7] The Crown’s fiduciary duty emanates from the perception of Aboriginal peoples as “victims of colonial expansion” and from the belief that the more distant level of government would better protect Aboriginal peoples against the interests of local settlers. Delegating the federal government jurisdiction over Aboriginal peoples under the pretence that it is the proper level of government to protect them and simultaneously using federalism arguments to cast Aboriginal identity as irrelevant to the division of powers is inconsistent in principle and compromises federalism’s aim of reconciling diversity in unity. Perhaps the most important design in any federal system is whether reconciling diversity in unity, the polity adopts institutions and lines of reasoning that strengthen and account for the always present sources of disaggregation.             Secondly, the court leaves open the question of what might constitute a federal undertaking, since its reasoning focuses on the provincial aspects of CFSS’ activities. This leaves unresolved and perplexing what a federal entity that goes to the status and rights of Indians might look like, especially considering the court was explicit that Aboriginal ownership, the ratio of Aboriginal to non-Aboriginal employees, the location of the service on reserve lands and its operation pursuant to federal permits and federal loans or subsidies for the service are not determinative of the nature and function of the entity.[8]  This puzzling aspect of the judgment may be coded in the “DNA of federalism”: because the federal government has residual jurisdiction, more emphasis is placed on carving out provincial entities.

Interestingly, the majority finds that the “relationships within Indian families and reserve communities” and provincial laws of general application “except when the law impairs those functions of the enterprise which are intimately bound up with the status and rights of Indians” go to the core of “Indianness.”[9] The court then lists several cases to outline what matters may go to the core of “Indianness” without inquiring into whether the activities of the CFSS are, in fact, bound up with the status and rights of Indians. Using the court’s own reasoning, if federal subsidies did not convert the shoe manufacturing business into a federal activity[10], there is good reason to inquire into the activities of what appears to be a provincial entity.

Further, the test invoked by the minority was too vague and abstract to genuinely consider how the status and rights of Aboriginal peoples might be intertwined in the habitual activities of the CFSS. Finding that CFSS’ culturally-sensitive services are an “incidental effect” of the entity rather than the function of the entity itself is somewhat suspect as there is no discussion or testimony as to the entity’s actual activities. This calls to mind Mary Ellen Turpell’s assertion that the Canadian legal system is a colonial regime as “it is too busy trying to categorize jurisdictional matters between federal and provincial governments to step back and realize the oppressive and presumptuous nature of its exercise.”[11] Arguably, the CFSS’ central purpose is the preservation of Aboriginal culture and identity and its services are the essence of what separates it from other family services agencies. The division of powers talk seems to compromise federalism’s commitment to reconciling diversity within unity by diluting the issue which animated the dispute to begin with—that Aboriginal identities and rights, as separate and distinct from others’,   are central to the activities of the CFSS.

What is it about the decision in NIL/TU, O that might not sit comfortably with the recent decision in First Nations Child Welfare?[12] The narrow construction of the nature of the entity’s activities demonstrates another challenge of federalism: the discursive strip-mining[13] which figures prominently in federalism jurisprudence. The court’s discursive strip-mining is evident in two ways which challenge federalism’s ability to reconcile diversity in unity. First, the majority is explicit that “neither the nature of NIL/TU,O’s operation nor the jurisprudence calls for an inquiry into the “core of Indianness.””[14] The majority’s disavowal of Aboriginal identity in division of powers disputes is jarring in light of the historical, political, social, and cultural experiences of Aboriginal peoples. Moreover, reaffirming the jurisprudence without inquiring into how the provincial-federal dichotomy displaces Aboriginal governance systems fails to take seriously CFSS’ position. Secondly, a non-Aboriginal entity—the court—developing a legal test to determine the core of “Indianness” signals a willingness to accept Aboriginal identity, but only on the majority’s terms, conjuring imagery of contemptuous colonial-indigenous relations. Federalism, then, sanitizes the context which is relevant for taking serious the notion of reconciling diversity in unity.                                                                                                                             In a similar vein, Mark Carter states that “A reality of the judicial review of legislative activity based upon the written parts of Canada’s constitution, which provides for a federal division of powers and, since 1982, entrenched protections for rights and freedoms, is that these  features can give rise to entirely “different questions.”[15] What does Carter mean by this? The question of which level of government has jurisdiction to enact a law is quite a separate issue from whether the law violates the Charter, but these questions are not completely inextricable.[16] For instance, in AHRA, LeBel and Deschamps JJ. referenced Charter values during their division of powers analysis.[17]  Arguably,  our understanding of the Constitution may be best served by accepting that some parts of it do not “make sense” from the perspective provided by other parts. In NIL/TU, O this might have meant the court bear in mind how sections 15(1)(2) and 25 of the Charter might inform the division of powers analysis. Nonetheless, the outcome in NIL/TU, O seems to sit uncomfortably with contemporary  knowledges about Aboriginal issues and potential Charter concerns that have struggled for judicial recognition.

Between the Majority and Minority and Concluding Remarks

I suggest that both the majority and minority opinions lead to the same unsatisfactory result, but perhaps there is something to be gained from both opinions to generate a workable framework within which Aboriginal rights, interests and identity is given due consideration in the context of federalism. Understanding that constitutional interpretation is “judgement” and not “mechanics”[18] is a helpful way to reimagine tackling the pitfalls of federalism I have outlined in NIL/TU, O. The difficulty which remains, however, is that federalism does not specify the set of federal and provincial interests or the criterion for balancing; the courts can only render judgements which are postulated as fair and balanced in the name of federalism. In my discussion, I have attempted to demonstrate that federalism and division of powers talk can sanitize, dilute and distract from the substantive issue that gave rise to the issue before the court. The notion of cooperative federalism may be the mechanism through which the courts could account for the substantive concerns that animate the contest over divisions of power. There is a reason for the detailed and integrated operational matrix comprised of NIL/TU O’s Constitution and by-laws, a tripartite delegation agreement, an intergovernmental memorandum of understanding, a set of Aboriginal practice standards, a federal funding directive and provincial legislation were required to establish the CFSS: respect and protection of Aboriginal peoples status, rights and traditional values. This is co-operative federalism distilled and refined,  and an attempt to delineate the core of “Indianness” that the majority finds irrelevant and the minority is searching for.

[1] 2010 SCC 45, [2010] 2 SCR 696 [NIL/TU, O].

[2]  Ibid at para 18.

[3] Canadian Western Bank v. Alberta, [2007] 2 SCR 3 at para 40.

[4] Supra note 1 at para 65.

[5] Cindy Blackstock and Nico Trocmé, Community-Based Chile Welfare for Aboriginal Children: Supporting Resilience through Structural Change, 24 Social Journal of New Zealand 2005, 13; Nico Trocmé,  Della Knoke and Cindy Balckstock, “Pathways to the Overrepresentation of Aboriginal Children in Canada’s Child Welfare System,” 78:4 Social Service Review 2004 577; Blackstock, C., Brown, I., & Bennett, M. (2007). Reconciliation: Rebuilding the Canadian child welfare system to better serve Aboriginal children and youth. In I. Brown, F. Chaze, D. Fuchs, J. Lafrance, S. McKay, & S. Thomas Prokop (Eds.), Putting a human face on child welfare: Voices from the Prairies (pp. 59-87).

[6] Peter Shuck, “Federalism” (2006-2007) 38:5 Case W. Res. J Int’l L 10.

[7] Royal Proclamation, 1763, RSC, 1985, App. II, No. 1. Here, King George III decreed that Aboriginal People living under British rule “should not be molested or disturbed” by colonial governments or settlers with respect to lands “reserved for them.”

[8] Supra note 1 at para 64.

[9] Ibid.

[10] Ibid at para 40.

[11] Mary Ellen Turpell, “Home/Land” (1991) 10 Canadian Journal of Family Law 34.

[12] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [First Nations Child Welfare].

[13] Desmond Manderson, “Statuta v. Acts: Interpretation, Music, and Early English Legislation”(1995) 7:2 YJLH 317.  Manderson suggests that in reading legal texts and the act of legal interpretation, we become “…insensitive to the environment of the text, its connotative play of light and shadow. In fiction and nonfiction alike, [we] search for syllogisms, arguments that can be extracted and stored, and discard the rest as mere impedimenta. Ideas, facts, and events are nuggets of meaning; everything else is just a bunch of old rocks.”

[14] Supra note 1 at para 46.

[15] Mark Carter, “Federalism Analysis and the Charter” (2011) 74 Saskatchewan Law Review 6.

[16] Reference re Assisted Human Reproduction Act, 2010 SCC 61, 327 DLR (4th) 257 at para 44 [AHRA].

[17] Supra note 16 at para 236-239.

[18] Robert Justin Lipkin, “Federalism as Balance” (2004) 79 Tulane Law Review 93 at 142.

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