In 1992, the Nishnawbe-Aski Nation signed an agreement with Ontario and Canada called the Ontario First Nations Policing Agreement. This agreement enabled the Nishnawbe-Aski to create a regional policing body in their territory. The Nishnawbe-Aski Police Board was established to manage the Nishnawbe-Aski police service.
In 2005 the CIRB certified the Public Service Alliance (PSAC) as the bargaining agent for two bargaining units of employees employed by the Nishnawbe-Aski Police Board. Following the release of the Supreme Court of Canada’s decisions in NIL/TU,O Child and Family Services v. BCGSEU and CEPUC v. Native Child and Family Services of Torontoin 2010, the Nishnawbe-Aski Police Board applied to set aside the certification orders for PSAC, arguing that its labour relations are provincially regulated.
The CIRB released a decision upholding its 2005 certification orders and finding that the labour relations of the Nishnawbe-Aski Police Board are federally regulated. The Nishnawbe-Aski Police Board sought judicial review of this decision and the Attorney General of Ontario intervened in support of the Board’s position.
The parties in this case agreed that labour relations are presumed to be provincially regulated. A two-step test is necessary to rebut this presumption. The first step requires a determination of whether the entity is a federal undertaking based on its operations and activities. The second step is to determine whether provincial regulation of the entity would impair the core of a federal head of power.
The Court found that the CIRB correctly identified this test but failed to correctly follow it. A flaw in the CIRB’s reasoning process was that they did not begin from the presumption that the labour relations of the Nishnawbe-Aski Police Board were provincially regulated. Rather than focusing on whether the entity is a federal undertaking, the CIRB assessed whether policing in general is regulated by the federal or provincial government.
In order to determine whether CIRB’s flawed analysis led it to an incorrect conclusion, the Court found it necessary to conduct its own determination of whether the Nishnawbe-Aski Police Board’s labour relations are federally or provincially regulated.
The Court began its analysis with the presumption that the labour relations of the Nishnawbe-Aski Police Board are provincially regulated. The Court then examined the essential nature of the Nishnawbe-Aski Police Board and the police service it regulates based on their operations and activities. Numerous findings helped determine that the essential nature of the Board is provincial: the Nishnawbe-Aski police perform many of the same functions as the Ontario provincial police; the services performed by the Nishnawbe-Aski police and their policing powers are authorized by the provincial Police Services Act; their First Nations constables are appointed under the provincial Police Services Act; the Nishnawbe-Aski police are able to exercise policing authority anywhere in Ontario but nowhere outside of Ontario; roughly one third of its staff is located off reserve and its recruits must receive training from the Ontario Police College like all other provincial police recruits; when the Nishnawbe-Aski police service was created, all of its officers were transferred directly from the Ontario provincial police; and the Nishnawbe-Aski police service is independent and autonomous from the Nishnawbe-Aski Nation and its members.
The Court found that neither the Nishnawbe-Aski police service's role in occasionally applying and enforcing band bylaws nor its role in furthering First Nations self-governance detracted from its essential character as a police service that is in all respects regulated by the province.
The Court found that there was no need to carry on with the second step of the test because the first part was determinative. The labour relations of the Nishnawbe-Aski Police Board are provincially regulated. Accordingly, the CIRB’s initial decision was set aside.