Academic journal article University of Toronto Faculty of Law Review

Crafting an Aboriginal Labour Law

Academic journal article University of Toronto Faculty of Law Review

Crafting an Aboriginal Labour Law

Article excerpt

  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. …

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