15. What is the theoretical jurisdiction for labor on a Reserve?

In general terms, provincial labour and employment law (such as the Québec Labour Standards Act) will apply to Indians on a reserve.

Section 88 of the Indian Act states:  “General provincial laws applicable to Indians – Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.”

In the case of Four B. Manufacturing Limited vs. United Garment Workers of America (1980), R.C.S. 1031 the Supreme Court of Canada established the following rules:  “With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception.  The exception comprises, in the main, labour relations in undertakings, services and businesses which can be characterized as federal….Neither the ownership of the business by Indian shareholders, nor the employment of a majority of Indian employees, nor the carrying on of that business on the (Indian reserve, nor the federal loan and subsidies, taken separately or together, can have any effect on the operational nature of that business.

However, in most respects the Band Council is considered to be subject to federal law and its employees will therefore be governed by the Canada Labour Code and other applicable federal legislation.  If there is no applicable federal legislation then Band Council employees may, in certain circumstances, be governed by provincial law.

Therefore, in most cases, the operation of a business on a reserve is subject to the labour/employment law of the province of Quebec.  Any private business starting up in Kahnawake will, in most cases, have to comply with provincial labour law.

Source:  MNP SENCRL srl/LLP

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