Battle looms over Indian band union issue

By Dianne Rinehart, The Vancouver Sun,
Sunday 3 May 1999

Beneath the surface of the quiet move by unions to organize Indian band employees are seething conflicts over human rights, self-government, and cultural protection. And the colliding views are threatening to erupt in lengthy, expensive court battles or militant acts of defiance.

Native leaders view the union movement's effort to organize band workers as one more attempt by non-native government to control them. And the chiefs see as a threat to their right to self-government the insistence by Ottawa that labour codes are strictly a federal jurisdiction and that bands must adhere to those federal codes.

This situation has become acutely dangerous, says Chief Ron Derrickson of the Westbank Band near Kelowna, where the B.C. Government and Service Employees' Union was certified April 6 to represent 54 employees, a certification the band is appealing. There's a very, very strong movement [by chiefs against unionization and interference by the federal government in band labour relations], he says, adding that federal Indian Affairs Minister Jane Stewart should be aware of the ramifications. This could blow up in the minister's face. She's going to have to be very careful. The danger is she's going to alienate the Indian community so badly it will be unrepairable.

Ken Coates, dean of arts at the University of New Brunswick and a specialist in native self-government, says the band's battle against unions and the government to set its own labour codes is just the first in a series that Canadians should prepare themselves for as bands test the limits of native sovereignty. Coates said the effort to create enclaves of exemptions from federal and provincial legislation is exactly what some people have been worried would happen as a result of native self-government. But the more realistic way to look at it is that when you create a new level of government, that government will test the limits. It will seek to capitalize on its jurisdiction and authority, he says.

The B.C. Government and Services Employees' Union battle to negotiate a first contract for 85 Kamloops Indian Band employees is just the first skirmish in that war. The chiefs are arguing before the Canadian Industrial Relations Board and through the Assembly of First Nations to the federal government that their right to enact labour codes banning strikes takes precedence over the right of band employees to have access to the same bargaining tools as union members off reserve.

Kamloops Chief Manny Jules, for example, has argued that strikes and lockouts are antagonistic ways of resolving differences and not conducive to good community relations.

That view is putting Indian band leaders -- at least 50 of whom are currently writing their own labour codes, according to a spokeswoman for the Kamloops band -- on a collision course with human rights organizations such as Amnesty International, which argue the universality of human rights takes precedence over cultural concerns. The unions say the band's arguments regarding cultural exemptions are simply an excuse to deny workers their basic rights. They're facing circumstances we would find quite intolerable in any workplace, says BCGEU president John Shields of the 85 Kamloops union members. Every time there's an election they worry they're going to lose their jobs, he says of what others have described as nepotism on the reserves. They don't want to lose their rights, guaranteed by Canada [in the labour code], to a local chief.

Union organizers believe the band's suggestion it needs separate labour codes for cultural concerns is simply an excuse to establish union-free zones for the purpose of attracting businesses to locate there. They fear a situation somewhat like the maquiladora free-trade zones in Mexico, which have lured almost 4,000 U.S. manufacturing plants to locate there by promising comparatively cheap labour costs. Julie Owen, a lawyer for the Kamloops band, scoffs at that notion, saying the band code covers collective bargaining, and would not deny workers minimum wages or vacation pay or anything else that could give a band an advantage in attracting business.

But it falls into line with Coates' analysis that bands will seek to capitalize on their jurisdictions, as any government does.

Jock Finlayson, of the Business Council of B.C., agrees union-free zones could be attractive. There's probably a lot of people in the business community saying: 'More power to them.' Despite that, the business council is not in favour of bands opting out of the Canadian labour code. Framework laws that define the business environment -- such as Workers Compensation, labour laws, bankruptcy legislation, company law -- should be adhered to across the nation, Finlayson argues. Where you have fundamentally different tax or framework laws, we're going to create more problems than we solve.

But Ken Thornicroft, an associate professor of law and labour relations at the University of Victoria, says the bands will always be constrained by the normal laws of supply and demand. [Businesses] may not face the threat of a union organizing drive, which may be an advantage, but they're still going to have to provide basic wage benefits just as other employers do to attract a competent work force.

I don't see someone like Nike immediately running there, he says. I wouldn't scream Chicken Little. . . I don't see it regressing to a sweatshop mentality.

But at a recent meeting, Shields says, representatives of aboriginal bargaining units described the intimidation and threats of violence they are facing from chiefs for unionizing.

And BCGEU organizer Holly Page, who is aboriginal, says the chiefs are taking away the rights of people who work there. They get less rights than the people who live on reserve but work off of it. She says the Canadian Labour Congress will consider an emergency resolution this week to establish whether bands are in fact attempting to create union-free zones.

But Derrickson says a conference the Westbank band is organizing will outline the view of the chiefs that their efforts to establish control of their own reserves are being thwarted by unions. The Indian people see this as one more way of being controlled, says Derrickson. As one Indian chief said: 'First we have the residential schools, then the department of Indian affairs, now the unions.'

Chiefs are also concerned that their efforts to find employment for their people will be thwarted. The bands want to give job hiring preference to natives. But they say union regulations require them to make appointments on the basis of seniority. It ends up with non-Indians doing the work in the band office, Derrickson says.

Now the concerned chiefs have the nation's most powerful Indian organization on their side. The Assembly of First Nations recently adopted a resolution asserting that bands have the right to conduct labour relations without interference from other governments or their laws.

Spokesman Jean La Rose says Indian bands are separate nations from Canada, and he likens bands having a separate labour code to the United States having a separate labour code from Canada. If a first nations community decides they want to establish a labour code... that is in accordance to their customs and cultural background, that's entirely within their right as a nation. But that view -- that human rights can be sacrificed to protect culture -- flies in the face of many United Nations resolutions aimed at ensuring human rights don't take a back seat to economic goals, as in Indonesia and China, and that segments of society, such as women, are not denied rights enjoyed by others.

Amnesty International spokesman John Tackaberry says any effort by bands to ban strikes by unionized members would be opposed by the human rights organization, based on the fact it contravenes the UN Declaration of Human Rights. The declaration doesn't say workers have the right to strike. but it is subsumed under the right to have a union, Tackaberry says. The right to strike is a mechanism to ensure pressure of the union on the employer. If you have the right to form a union, you have the right to withdraw your labour.

Owen argues there is no universal right to strike. Many employees, considered essential workers, are banned from striking under Canadian legislation. She says she believes band employees could be described as essential.

Whatever the outcome of the battle over labour codes, Coates warns, it will be just the beginning of what he estimates will be another 20 years of testing before the limits of native self-government are resolved.

It promises to be quite a battle. Chief Derrickson says he has already been threatened by one militant native organization that promised to retaliate if he allowed the union a foothold on his reserve. We're being watched.