Emergency COVID-19 construction rules on First Nations reserves – How does the law apply?

Ontario Construction News staff writer

How do the Ontario Government’s COVID-19 emergency regulations apply to construction contractors working on indigenous reserves?

The Ontario General Contractors Association (OGCA) says it has been asked the question about “what is and is not essential” from members working on these reserves, who are concerned about their workers’ health and safety and understanding which law applies.

The OGCA says in its weekly eletter that it reached out to the Canadian Construction Association (CCA) “as we believe this isa federal jurisdiction area and wanted to know what we should be doing or how we should be advising our members in these situations.”

“The CCA responded . . . and the following is their response and recommendation as to what contractors should be doing in understanding what applies to projects located on reserves,” the OGCA says.

1. Provincial orders can only control construction workers and construction businesses, not any actual work sites that are happening on reserves. So provincial orders can, for example, control what equipment construction workers can wear while working on a reserve, but it cannot shut down a site even if workers are not wearing this gear;
2. If there is a by-law enacted by the band council regarding construction workers/businesses, this by-law takes superiority over any provincial regulations if the two are incompatible. So if the by-law says that constructions workers can work without any protective gear while the provincial order says workers need PPEs, workers on the reserve would not need to wear protective gear;
3. Also, self-governing First Nation bands have their own agreements which indicate how their own laws and federal/provincial laws are to be treated when there is a conflict between them. So, if the construction work is happening on land where the First Nations peoples are self-governed, then the self-governing agreement should be verified to see which law takes precedence before continuing the construction work; and
4. The Government of Canada has recommended that band councils comply with COVID-19 safety measures issued by provinces, and allows for exceptional construction work for emergencies or if this work has reached a critical stage.

Essentially, the CCA advises that, before continuing construction work on Indigenous land, contractors must:

1. Verify if the work is being done on self-governing First Nations lands and check their self-governing agreements if that’s the case;
2. Verify if there are any existing by-laws enacted by band councils regarding construction workers/businesses, and ascertain whether there are any inconsistencies between the by-law and the provincial order, in which case the by-law would be the rule to follow; and
3. Understand that even if the provincial order is in effect on the reserve, it can only govern workers and businesses.