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First Nation's employment rules

First Nation's employment rulesManaging employees is a big part of governance in a First Nation administration, organization or company.

Many believe that if the work is on reserve or provides services to First Nations people, it falls under the federal jurisdiction of the Canada Labour Code.

But a recent case from the Supreme Court of Canada has clearly said, “Not so fast!”.

In the case NIL/TU, O Child and Family Services Society v. B.C. Government and Services Employees’ Union (2010), the society provides “culturally appropriate” child welfare services to their seven member communities with provincial accountability and federal funding.

The employees wanted to negotiate a collective agreement. The union they selected applied to the BC Labour Relations Board to be certified. But the society objected, arguing that it fell under federal jurisdiction.

The case went all the way to the BC Court of Appeal, which decided that the labour relations fell under provincial jurisdiction. The society appealed to the Supreme Court.

The Court, in deciding the case, laid out a two-part test. The first part was a “functional test”. It looked at the operations of the society to decide if it came under federal jurisdiction.

Its child protection services were under provincial legislation. Its main activities were ruled by BC law and were overseen by provincial officials. As a result, the Court determined the society fell under provincial jurisdiction.

The Court would only move to part two of the test if part one was inconclusive. But the first part of the test was clear. If it had looked further, the Court would have had to decide if the provincial regulation of the labour relations would impair the “core” of the federal power.

Many of our nations’ organizations may be operating under the Canada Labour Code when they actually fall under the BC Employment Standards Act. This can make a difference when an employer fires someone or has a complaint filed against it.

One big difference is that the Labour Code has the ability to restore someone to his or her position if the firing was unjust, but the BC Act does not do that. It is worth investigating to make sure contracts and policies are correct.

Note that this case does not affect the taxation of First Nations people who work on reserve.

Nicole Hajash is the governance coordinator at Naut’sa mawt Tribal Council. Contact her if you have any questions about the case mentioned in the article or if you would like a referral to a law firm that can review employment jurisdiction issues. Email her at nicoleh@nautsamawt.com

 

Nations’ leaders work on the essentials

Nations’ leaders work on the essentials

The essentials of governance and the qualities of leadership were some of the items under study when Naut’sa mawt Tribal Council leaders rolled up their sleeves for a workshop in Parksville.

The three-day September seminar was part of a continuing NmTC series of workshops that began in 2006.

NmTC chair Terry Sampson of Stz’uminus said the workshops have become an important part of the ongoing training to which leaders must commit.

“One of the main roles of the Tribal Council is to provide resources to our nations that allow them to develop capacity. Every nation needs well-trained people to operate effective and transparent governments and administrations.

“These workshops are always looked forward to, especially by newly-elected councillors or chiefs. The first question some have asked is: ‘When is the next workshop.’ Our workshops are valued because it is not just sitting at a table listening to a talking head.

“The thing that struck me this year especially was how engaged everybody was. People stood up and talked, shared good stories and experience. It was really worthwhile.”

See photo gallery for more images.


Critical Decision Time for NmTC leaders

Critical Decision Time for NmTC leaders

The keynote speaker at the governance workshop was Satsan (Herb George). Before serving six years as the BC regional chief for the Assembly of First Nations, he was a key figure in the Gitxsan and the Wet’suwet’en Nations. He was a strategist for the successful Delgamuukw decision before the Supreme Court of Canada. Trained in both law and education, he currently is president of the National Centre for First Nations Governance. The following are excerpts from Satsan’s talk to NmTC leaders.

* * * * * * *

I couldn’t help but sense something really, really important coming from you. In business terms, it is called ‘critical decision time’. Sometimes an opportunity comes along just once in a while and if you miss it, you have to wait a long time before that opportunity comes along again. I get from you a tremendous sense that this your Critical Decision Time. There is a real good feeling here… a generosity of spirit around.

It is a testament to the fact that: we’re still here; we’re maturing; we’re looking in the right places which is our own traditions, our own history, our own law, our own language, our own lands. All these things define you as a nation. I would like to comment on that because you don’t run across it every day. I think you need to grab a hold of that while you’ve got it.

* * * * * * *

I look around and see a lot of young leaders here. You’re not future leaders. You are leaders today. It is nice to see this happiness coming from you. Don’t let anybody take that away. It belongs to you.

* * * * * * *

When it comes to leadership, there are three broad elements to keep in mind. You have to have vision… not just looking to the future - Vision is also about utilizing everything that comes before you… Walk on, walk on in the breath of Grandparents. Our Grandparents are always with you. They are always talking to you and guiding you. They are helping you to overcome difficult times and allowing you to have a clear mind for the future.

Being able to bring it forward so people can understand. So that they can be part of it. They want to be taking action with you, not waiting around in the background. That leadership can cause a people to follow and be with you.

The third element is good judgment. In the potlatch hall, that is one of the key things we learn, because if we’re not going to have good judgment, we’re not bringing forward and carrying out a vision and we’re not going to be able to convince people that this is theirs. We need them to be involved.

The most effective form of leadership, that our elders have told us again and again, is to be able to give it up to the people so that they are empowered. If we just keep it to ourselves, we end up walking by ourselves.

* * * * * * *

Our elders say, there is nothing new when it comes to self governance. And they are right, because we had it for thousands and thousands of years. It was interrupted for a time, but the collective memory is still there.

It comes down to getting organized, and that is what I sense here today. That you are ready to get organized. You’re raring to go.

The bottom line on getting organized… the land and the resources and the right that we hold belongs to all of our people – the collective right. Then it makes sense, that we should be talking to our people. The vision we go forward to should be the collective vision that hold that right.

* * * * * * *

We have regained our jurisdiction… Courts said that ancestral rights and treaty rights are special and are recognized and protected by the Canadian Constitution. There it is. That’s the magic.


NmTC workshop

Jobs of chiefs & councils the focus of NmTC workshop

The roles and responsibilities of chiefs and council was the focus of a Governance Workshop held by Naut’sa mawt Tribal Council Sept. 23-24.

Facilitators for the two-day session at Tigh-na-mara Resort in Parksville were from the National Centre for First Nations Governance.

Nicole Hajash, NmTC’s governance coordinator, said the event was a natural extension of previous held workshops for leaders from NmTC’s 11 member nations.

“The focus of the workshop was on outlining the roles and responsibilities of the chief and council; the challenges of dealing with politics and administration and how to balance it all while working towards good governance,” Nicole said.

“There was much discussion around the principles of good governance with a sharing of tips on how to implement the concepts. This was a great opportunity for our leaders to build on their experiences and knowledge while sharing their successes and efforts in the area of good governance with others.”

 

Three NmTC leaders on Summit exec

Three NmTC leaders on Summit exec

Three leaders from Naut’sa mawt Tribal Council nations now hold top positions with the First Nations Summit, the group that speaks on behalf of First Nations involved in treaty negotiations in BC.

Chief Doug White III – Kwalasultan – of Snuneymuxw was elected to the Summit’s political executive in early June. He joins Grand Chief Edward John – Akile Ch’oh – of Tl’azt’en Nation and Dan Smith – Haliakalas – of Laich-Kwil-Tach Nation. John is serving his ninth term on the executive and Smith his second.

The way was opened for White’s election when Grand Chief Doug Kelly wrote an open letter in which he said he would not be running again. "Our communities are electing younger, university educated, leaders that practice our ancestral ways. It is now time for these young leaders to step forward and take their proper place in the Leadership Council," he wrote.

In a late-May interview with the Vancouver Sun, Kelly said: "In many respects, I think we've lost our way" speaking of the First Nations Leadership Council that heads the Summit.

"I think it's time for some of the younger leaders to step up, to join the Leadership Council, to take the work, the challenges, the opportunities and move them forward."

White was elected chief of Snuneymuxw last year. He has a BA (with distinction) in First Nations Studies from Vancouver Island University and an LLB (law degree) from the University of Victoria.

Meanwhile, Leah George-Wilson – Sisi-ya-ama – of Tsleil-Waututh Nation and Ray Harris – Shulqwilum – Stz’uminus Nation were acclaimed as co-chairs of the Summit. It is George-Wilson’s fourth term and. Harris’ second term. The co-chairs are responsible for chairing First Nations Summit meetings as well as the Summit’s administration and day-to-day operations.

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