In an exhaustive 44 page decision entitled Kaiswantu v Piapot First Nation
( 2020 CarswellNat 2008) Adjudicator Cameron had to decide whether he had jurisdiction over the termination of a teacher on a First Nation teacher located on a First Nation.
For many years it was a given that teachers in this situation were covered by the CLC as the Constitution gives jurisdiction over “Indian” matters to the feds. Then some time ago, the analysis changed so that if the function performed by the employee was akin to what was done in non native societies, then the jurisdiction was provincial. Thus a teacher who taught reading and writing would be under provincial jurisdiction but an employee of the band who was responsible for negotiating treaty matters would be under federal labour jurisdiction.
In this case, the Adjudicator found that the teacher was governed by the Canada Labour Code. He does so by examining the actual relationship between the First Nation and the Federal Crown with respect to the education of students on a reserve. It is fascinating reading, especially for those who have an extensive understanding af aboriginal law. That group does not include me.
This clarity should be welcomed. The idea that First Nation employees could be under two different labour relations jurisdictions always struck me as absurd and unnecessary. Hopefully this case will simplify this area of law and provide all First Nation employees with the same protections accorded to a clerk in a bank.