CRAFTING AN ABORIGINAL LABOUR LAW.

• Author: Mazerolle, Craig
• Position: Canada

I INDIGENOUS LABOUR REGULATION--UA LONG WAY TO GO 21 II DIVISION OF POWERS AND "INDIANNESSU"--THE CURRENT STATE 25 OF LABOUR REGULATION IN ABORIGINAL COMMUNITIES I. Four B Manufacturing v United Garment Workers--Historic 25 Roots of Labour Relations Regulation in Aboriginal Communities II. NIL/TU,O Child and Family Services Society v 27 BCGEU--"Indianness" and the Legal Regulation of the Modern, Aboriginal Workplace III. Confusion and Colonialism--Two Major Issues with the 28 Current Division of Powers Model III THE STRUGGLE BETWEEN INDIGENOUS LAWMAKING AND THE LABOUR 31 MOVEMENT-TWO RECENT EXAMPLES OF THE FRAUGHT RELATIONSHIP I. Northern Lights Casino and the CAW 32 II. Great Blue Heron Casino and the CAW 33 IV BRIDGING THE GAP BETWEEN UNIONS AND INDIGENOUS COMMUNITIES 35 THROUGH FREEDOM OF ASSOCIATION I. Ontario (AG) v Fraser--Opening Up Space for Other Models 36 of Labour Regulation II. Freedom of Association After Fraser--Creating a Basic 39 Floor for Workers' Rights III. Increasing Protections and the Return to "Substantial 42 Interference"--Two Brief Caveats to Fraser and MPAO IV. Addressing Justice Rothstein's Dissents in MPAO and 42 SFL--Does a Floor of Rights Really Exist? V ABORIGINAL LABOUR TRIBUNALS--U--A SPACE FOR DIALOGUE 45 THROUGH FREEDOM OF ASSOCIATION VI CONCLUDING THOUGHTS 48 In late 2001, the former editor of The Globe and Mail, John Stackhouse, authored a series of feature pieces for The Globe and Mail under the provocative title "Canada's Apartheid".' Throughout the series, Stackhouse writes about the struggles facing Canada's Aboriginal population. In one story, he focuses on a bylaw officer from southern British Columbia named Evelyn Lube. Nicknamed the "Norma Rae of the Okanagan", Lube caught Stackhouse's attention because of her attempts to form a union on the Westbank First Nation. Her organizing drive with the British Columbia Government and Service Employees Union ("BCGEU") was eventually successful, but there were allegations that Lube and her fellow employees faced a sustained campaign of intimidation. This campaign included: admonishment from town elders, suggestions that full time positions would be eliminated, and at least one alleged threat against a member of an employee's family. In fact, the opposition was so intense that, in his story on Lube, Stackhouse likens the conflict to a "putsch in a remote mountain kingdom". (2)

Threats of reprisal are an unfortunately common tool used by employers facing workplace agitation, (5) but Stackhouse notes that the tone of these threats had an added element: the cause of indigenous sovereignty. Premised on the idea that unions are non-Aboriginal entities, some communities see the labour movement as a means of replacing traditional relationships based on consensus with a conception of workplaces as sites for conflict. To articulate this fear, Stackhouse quotes Gary Steaves, the then director of organizing at the BCGEU: "[Aboriginal peoples] have hundreds of years of history of non-native people telling them what to do... and they suspect their employees joining a non-native union is just another form of non-native people trying to shape their destiny." (4)

And yet, when Aboriginal governments take legislative power back from the Crown, these acts of anti-colonial resistance create the very circumstances that make communities ripe for higher rates of unionization. As Lube herself notes: "Every other Canadian citizen is guaranteed the right to belong to a union... We are an emerging government. We provide government services. Other governments have labour unions. I see no reason ours shouldn't." (5)

This article is concerned with the tension between these oppositional interests, namely, the desire of First Nations to exercise greater legislative control over modern social phenomena, and the aspiration of workers to access effective forms of collective representation. I begin my analysis by discussing the current state of labour relations regulation within indigenous communities, as well as several examples of conflict between Aboriginal forms of governance and the labour movement. I then explain how the current state of freedom of association jurisprudence can foster non-traditional forms of labour relations regulation while safeguarding the interests of workers through the Canadian Charter of Rights and Freedoms. (6) Finally, I apply a freedom of association analysis to an Aboriginal community's recent attempt at creating its own labour relations tribunal. Through this analysis, I demonstrate that when indigenous control over labour relations is structured by the flexible state of s. 2(d) jurisprudence, the interests of both organized labour and First Nations can be addressed.

I INDIGENOUS LABOUR REGULATION--A LONG WAY TO GO

One of the only Canadian scholars to touch on the issue of indigenous self-governance over labour relations is Brad Morse. Writing in the early days of the Charter, Morse notes that the historical relationship between organized labour and indigenous communities is one marked by ignorance:

One segment of Canadian society that has been largely untouched by the trade union movement specifically and labour relations in general has been the original inhabitants of Canada. Although union confederacies, such as the Canadian Labour Congress, have been very supportive of the demands of indigenous organizations for economic parity and respect for their unique legal rights as Aboriginal peoples, trade unions have only recently begun to turn their attention in a small way toward the possibilities for unionizing bargaining units consisting predominantly or exclusively of Aboriginal employees.... Aboriginal communities have also not generally been inclined to approach trade unions to organize within their midst... (7) Morse posits that this disconnect stems in part from the vast differences in ideology between organized labour and the indigenous peoples of Canada, (8) though he nonetheless believes that increased economic activity would help to lessen this gulf. That is, as Aboriginal governments and workplaces continue to diversify and expand, indigenous communities will embrace greater rates of unionization, all the while asserting Aboriginal regulation over these new relationships:

As economic initiatives develop that closely parallel those in the general society, one can anticipate increasing pressure to extend the existing scheme of employee rights and benefits to these communities. This will lead directly to a growing need to clarify whether federal, provincial or Aboriginal legislation sets the minimum standards and regulates unionization. (9) Morse admits that the goal of self-governance over labour relations will not be achieved in the near future. However certain events, such as a dispute that arose on the Fort Alexander Reserve in Manitoba, do make him more hopeful. (10)

The Fort Alexander Reserve dispute, which involved on-reserve teachers attempting to unionize under the Canada Labour Code, (11) is unique, as it was one of the first cases in which a band council argued that "adherence to the laws of Canada as embodied in the Canada Labour Code is inconsistent with their claim for self-government". (12) By characterizing this matter as a "political issue" outside of its jurisdiction, the Canada Labour Relations Board ("CLRB", as it was then known) ignored these concerns and certified the teachers' bargaining unit. (13) Given the band council's resistance to the union, the CLRB took the unusual step of filing its orders for enforcement with the Federal Court, where a show cause hearing was held. (14) Since the band council continued to deny that the Board had any authority over the reserve's businesses and institutions, the community refused to attend the hearing, although counsel attended and filed a statement prepared on behalf of the Band Council of the Fort Alexander Reserve, as well as a copy of the Declaration of the First Nations Joint Council of the National Indian Brotherhood. (15) The band council was subsequently held in contempt on the basis of their refusal to obey the Board's order.

Though Morse advises that such a tense standoff between organized labour and the cause of indigenous sovereignty should be avoided in the future, he identifies the dispute as evidence of Aboriginal groups' desire to actively pursue control over labour relations. (16) He also posits that the publicity generated by the event will increase the likelihood that Aboriginal communities will actively pursue the concept of Aboriginal control over labour relations, as a component of a comprehensive land claim settlement or self-government agreement. (17)

However, now that thirty years have passed, these predictions seem optimistic at best. (18) In 2011, the British Columbia Assembly of First Nations ("BCAFN") released a report on indigenous self-governance in Canada, specifically focused on British Columbia. (19) In the section on labour relations, the authors note that while other levels of government have found ways (albeit, begrudgingly) to address employee concerns for collective representation, band councils have shied away from this area of public life. (20) In fact, at the time of writing the report, not a single First Nation in Canada governed labour relations or employment regulation: whether it be employees working for band councils or private entities within their territories. (21)

The aforementioned Westbank First Nation community came close to gaining jurisdiction over labour relations. (22) During negotiations over a self-governance agreement, the band council wanted to include language about labour relations. The second-last draft of the agreement therefore included a provision that would have given the community jurisdiction over employees working for the band council or band-created institutions. However, during the final round of negotiations, the federal government insisted that this labour relations...