Two Too Many Solitudes: First Nations Employment Law and the Unintended Effects of Wilson on Indigenous Employers

Abstract

Disputes over legal jurisdiction in Canada predate its own Constitution. Even after the 1982 repatriation of the Constitution, First Nations governance remains entangled in a jurisdictional divide. In the spirit of Indigenous self-determination, this article argues the impracticality of First Nations regulating themselves according to federal employment standards under the Canada Labour Code in preference of provincial or territorial standards. A review of jurisprudence since NIL/TU,O underscores the inconsistency of trial division and appellate courts across Canada in determining the appropriate jurisdiction for employment-law issues in First Nations communities. This incoherence leaves First Nations communities in a precarious position in regulating employment. An employer’s ability to consistently depend on the provincial and territorial regimes is imperative given the innumerable barriers already facing First Nations communities, particularly in an area of law where federal regulation is increasingly convoluted, demonstrated for example, by the judgment of the Supreme Court of Canada in Wilson. Counter-intuitive as it may seem, the otherwise far more generous federal employment standards have the effect of eroding the autonomy necessary for First Nations’ self-determination.