Questions and Answers about Moot Problem

Q 1: Of what group (Ojbway, Mohawk, etc.) are the Big Mountain First Nations a member? This could inform us about their traditional customs and practices.  

We have not provided this information in the fact pattern because we wished to create a scenario that is generic and as relevant as possible to all First Nations in Canada. Therefore, please do not make any assumptions about particular traditional customs and practices.

Q 2: Was the Employee Relations Code approved by the Minister pursuant to the Indian Act?

The band council claims that it has the right to exercise an inherent  right to self-government which includes enacting the code through a  resolution of the band council. The band council claims this right is recognized and affirmed in section 35(1). The band council is not relying on the by-law making power under the indian act and has not sent the code to the minister for approval.

Q 3:  Who receives the alleged modern version of gift-giving (the filing fee for employee grievances), only the members that are Elders or all of the members of the Employee Negotiations Council (ENC), or the ENC collectively or the Band Council? 

Assume that the filing fee is paid to the ENC collectively.

Q 4: Would you be so kind as to clarify whether the Big Mountain First Nation's Employment Relations Code is a by-law or whether it is some self standing procedure which is not governed under the Indian Act.  There is some confusion on the Ottawa team as to how we are to argue INAC's position pending your instructions. Please advise further.

The Code has been approved by the Chief and Council only and they assert that it is effective as an exercise of the right to self-government. In other words, they do not need to make the by-law under the authority of any federal or provincial statute. 

A by-law under the Indian Act would have to be authorized under section 81 of the Indian Act and the Minister would have forty days to disallow the by-law, which certainly would have been done in this case.

Q 5: What is the extent of the regulatory authority of the 2001 agreement? In particular, is this an authority for the 2003 Employment Relations code? Do we have access to this code?

The 2001 agreement (a fictional agreement) is silent on the 'regulatory authority' of the parties to develop their own labour code. It says nothing about the Employment Relations Code. Because the code is fictional (ie made up for the purposes of the moot fact pattern), there is no such code I could give you access to. The general authority for the 2001 agreement is found in unstated provincial legislation (hypothetically).