Determining the “Core of Indianness:” A Feminist Political Economy of NIL/TU,O v. BCGEU

Abstract

<p>In light of Bill C-92, which establishes a framework for Indigenous communities to exercise legislative authority over child and family service provision, this article addresses the contested regulation of employment and labour relations in Indigenous social service workplaces. It approaches this subject by looking back at NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, a case in which employees at a First Nations child and family services provider attempted to unionize. NIL/ TU,O set in motion a legal battle over the jurisdiction of Indigenous labour relations that ultimately reached the Supreme Court of Canada (SCC) in 2010. The SCC determined that the labours of the workers at NIȽ TU,O Child and Family Services are a matter of provincial jurisdiction because they fall outside of the “core of Indianness,” a contested legal concept used to determine exclusive federal legislative power over ”Indians and Lands reserved for Indians.” Using Indigenous feminisms and a feminist political economy approach, we argue that this decision rests on gendered appraisals, and indeed obfuscations, of social reproduction – that is to say, the labour involved in the daily and intergenerational care and reproduction of people. Bill C-92 necessitates revisiting the case history in NIL/TU,O because the regulation of labour relations are unaddressed in the new Act. We suggest that the uncertainty surrounding jurisdiction over Indigenous labour has the dual potential of, on the one hand, being used for exploitative or dispossessive purposes, or, on the other hand, taken up as an opening for greater self-determination by Indigenous peoples. </p>