Kawaskimhon National Aboriginal Rights Moot 2006
A labour relations dispute at a casino on the Big Mountain First Nation Reserve, Ontario
[ The facts of this case are hypothetical. Although they may have some resemblance to actual disputes and cases, the dispute presented here is unique and drafted purely for the Kawaskimhon National Aboriginal Rights Moot, 2006. ]
This document can be downloaded in pdf format: kawaskimhon_fact_pattern.pdf
Negotiations to Begin
A labour relations dispute has erupted at a casino located on the Reserve of the Big Mountain First Nation Reserve (as detailed further from page 3). Because of the growing complexity of the legal arguments and the animosity developing among some participants, in late 2005 all the concerned parties agree to remove the dispute from the Ontario Labour Relations Board and to seek settlement in a new forum. They agree that the dispute should be negotiated in accordance with Aboriginal protocols of peaceful negotiation and consensus building.
Representatives from each party decide to meet in Toronto, at the offices of the Ontario Federation of Indian Friendship Centres, over March 2-4, 2006. They will discuss and resolve the issues with the help of expert mediators. The discussion will focus on (but will not be limited to) four primary areas identified by the disputants: 1) Aboriginal rights as guaranteed by the Constitution Act, 1982, including Aboriginal self-government; 2) federal and provincial jurisdiction; 3) equality rights under the Charter of Rights and Freedoms; and 4) Canada’s obligations under ILO Convention No. 169.
Pending the negotiations in March 2006, the parties have appointed an arbitrator of facts to assist with determining any ambiguities or questions surrounding the many complex facts of that dispute. The arbitrator of facts is Professor Ben Richardson, Osgoode Hall Law School, who can be contacted at: email@example.com
Representatives of the Disputing Parties
The parties are represented as follows:
McGill University – Provincial Government of Quebec
Osgoode Hall, York University – Aboriginal casino workers who live off the reserve
Queen’s University – Federal Government - Human Resources Development Canada
University of Alberta – Assembly of First Nations
University of British Columbia – Big Mountain First Nation community rights groups
University of Calgary – International Labour Organisation
University of Manitoba – Beaver Lake First Nation
University of Ottawa – Federal Government - Department of Indian Affairs & Northern Development
University of Saskatchewan - Aboriginal casino workers who live on the reserve
University of Toronto – Big Mountain Indian Band Council
University of Victoria – High Stakes Casino
University of Western Ontario – Provincial Government of Ontario
University of Windsor – Canadian United Employees and non-Aboriginal casino employees
The Facts and Arguments of the Dispute
(a) Marina Johnston – the casino worker
Marina Johnston is a non-Aboriginal person employed at ‘High Stakes Casino’, located on the Big Mountain Indian Band Reserve. The reserve is located just outside of Toronto. She has worked there since 2002 – when the casino opened – as a bar employee. She has been paid $7.00 per hour throughout her time at the casino (the statutory minimum wage in Ontario during this time).
In early 2005, Marina decided that she would like to gain further qualifications to widen her employment horizons. So she enrolled in a part-time evening course in accountancy, offered by a local college.
To afford the college’s tuition fees, Marina found a second job at a grocery store off the Indian reserve. Since $7.00 per hour was enough to cover her living expenses until then, she had never sought a raise nor minded that there had been no change to her wages at the casino. But when Marina began her second job, her new employer informed that she would earn $12.00 per hour, plus generous paid holiday leave and other benefits.
The Canadian United Employees (CUE) represents all the grocery store’s workers. It negotiated excellent benefits for them as well as a structure for incremental wage increases based on seniority. Angry upon realising that the casino had been paying her very low wages with few collateral benefits, Marina confronted the High Stakes Casino management.
(b) High Stakes Casino – the casino operators
High Stakes Casino was set up pursuant to a formal agreement between the Big Mountain First Nation’s Band Council and the Ontario Government in 2001. The casino also holds a licence to operate from the Ontario Government’s Alcohol and Gaming Commission. The 2001 agreement gave the Council regulatory control over gaming on their reserve, and various tax revenue and related economic benefits to the provincial government. The High Stakes Casino managers are happy with this arrangement and have established a good working relationship with the Big Mountain Band Council.
The High Stakes Casino is a corporation whose major shareholder is Globex. Globex, a wealthy foreign-owned multinational company, owns approximately 80 per cent of the shares of High Stakes Casino. The Big Mountain Band Council does not receive any of the casino’s gaming proceeds, but collects rents and other administrative fees in relation to the casino’s operation on their reserve. The casino employs about 800 people, of whom 10 per cent belong to the Big Mountain First Nation. It is the single largest business operating on the reserve, employing more people than any other enterprise. The High Stakes Casino workers perform jobs that are the same as found in other casinos in Canada including casinos not located on Indian reserves. However, workers employed at Globex’s other casinos in Canada located outside of Indian reserves usually receive much higher wages.
(c) The Employment Relations Code for the casino workers
In 2003, the Big Mountain Band Council passed the Employment Relations Code (the Code) to govern all employer-employee relations on the reserve. The Code was prepared following advice from a lawyer retained by High Stakes Casino. The Band Council received no independent legal advice.
The Band Council’s Code is similar to the Canada Labour Code, but has special provisions regarding negotiation of employees’ wages, benefits and handling of grievances. Specifically, the Code created an Employee Negotiations Council to consider and resolve these issues. The Code also provides that only the Employee Negotiations Council can certify a union that wishes to negotiate a collective agreement for workers on the reserve. Since High Stakes Casino is by far the largest employer on the reserve, the design and effect of the Code are most pronounced in the structure of the casino’s employee relations.
The Employee Negotiations Council comprises six persons appointed by the Band Council for five year, renewable terms. It is responsible for mediating and resolving labour disputes on the Big Mountain Indian Reserve. The members of the Employee Negotiations Council selected by the Band Council comprise two senior managers from the casino, three respected community members of the Big Mountain First Nation (two of whom were selected from its community Elders), and one consultant from Globex.
The Employee Negotiations Council meets a few times a year to review employment standards and issues. To date, the Council has been relatively inactive on issues such as wages and benefits. It has also not heard any grievances, primarily because the Code requires that employees wishing to lodge complaints to the Council must pay $1200 in administrative processing fees. Unions must also pay a fee of $4000 to enter the reserve if they wish to consult with employees. The Code also prohibits lockouts and strikes by employees.
The objective of passing the Code is described in its preamble as a desire to avoid ‘disruptive and divisive labour conflicts’ in the Big Mountain First Nation, and also to reflect ‘the values and traditions of this First Nation’. The Band Council approved the Code after consulting only with High Stakes Casino and Globex managers. No consultation occurred with the Elders or with other community members of Big Mountain First Nation.
(d) Big Mountain First Nation community rights group
The Big Mountain Band Council is an elected authority under the Indian Act, 1985, with power to pass certain by-laws not inconsistent with the Act. However, not all members of the community that the Council purports to represent feel happy about the way it has managed the community’s relationship with the casino. In particular, a group in the community has become concerned about the Band Council’s lack of community consultation in passing the Employment Relations Code. This group recently held a meeting to discuss their concerns, and chose to call themselves the ‘community rights group’.
The group is beginning to doubt whether the Band Council is the appropriate body to regulate employee relations and related matters associated with the casino on the reserve. They would prefer to see their interests promoted and governed by a body more responsive to community opinion, and more reflective of traditional governance structures.
(e) Marina speaks to the Canadian United Employees union and takes her case to the Ontario Labour Relations Board
When Marina complained to High Stakes Casino about her wages, she was informed of the grievance handling process set out by the Code. In particular, Marina was told that she would have to pay the $1200 fee and to submit her grievance to the Employment Negotiations Council for their consideration and decision as to whether it would be taken up in negotiations with the casino.
Angry and frustrated with this suggested process, Marina decided to talk to Bob Anderson, the CUE union representative at the grocery store. Bob informed Marina that she should circulate information among fellow casino employees and encourage them to join a union. He explained that the Charter of Rights and Freedoms allows all Canadians to freely associate and unionise if they wish.
Marina proceeded to talk to and distribute information to her fellow casino workers about unionisation and designating the CUE as their collective bargaining agent to negotiate better terms with the casino management. To her delight, there was significant interest among all 800 casino employees to join the CUE. Many of these employees have since signed on to join the CEU, motivated by their disillusionment with current relations and working conditions, and their desire for better wages.
But the casino workers’ hopes that unionisation would lead to change were soon dashed. The High Stakes Casino management promptly refused to negotiate with them on changes to their wages and the labour conditions. The casino workers did not wish to approach the Employee Relations Council for certification (as suggested by High Stakes Casino managers), fearing that they would not get a fair hearing.
Consequently, the casino workers applied to the Ontario Labour Relations Board (OLRB) for certification of the CUE as their bargaining agent for a bargaining unit of employees of the casino. They took this action because they thought that only by achieving this status under the OLRB could they obtain the collective bargaining rights necessary to force High Stakes Casino to negotiate a collective agreement with them.
On notice of this application, the Big Mountain Band Council and High Stakes Casino management filed objections to the Board's jurisdiction to certify the CUE as the bargaining agent. They fear that this move could ultimately threaten the integrity of their Employee Relations Code and even harm the casino business.
Other parties on hearing of the escalating dispute soon intervene because of the wide-ranging legal issues and interests at stake.
(f) Big Mountain Band Council
The process of managing labour relations, as set out in the Code, and the passing of the Code itself, is defended by the Band Council as an assertion of self-government of their Aboriginal community. In this respect, the Band Council is buoyed by the support it expects from the Assembly of First Nations on questions of Aboriginal self-governance.
The Band Council of Big Mountain First Nation believes that the labour relations processes provided by its Code reflect customary practices of decision-making and dispute resolution within its First Nation. In this tradition, a council would be appointed from Elders, and respected community figures would hear grievances and disputes, and peacefully mediate a solution where appropriate. The filing fee for employee grievances, believes the Band Council, is merely a modern version of gift-giving to show respect to the mediators appointed to the Council. It points to oral history evidence of this practice in the community.
(g) Assembly of First Nations is concerned
Some members of the Big Mountain Band Council have been in contact with the Assembly of First Nations (AFN), attempting to garner wider support in its dispute with the casino workers.
The AFN is a national organisation representing First Nations across Canada. Membership of the AFN comprises Chiefs who are expected to present the views of their communities on various issues such as Aboriginal and treaty rights, education, social development, justice and other areas of common concern. The AFN members also are expected to help articulate a collective policy concerning the implementation and recognition of Aboriginal self-government. As such, they have in interest in the casino dispute for its potential consequences for Aboriginal self-government.
(h) Non-Aboriginal casino workers work closely with the Canadian United Employees (CUE)
The CUE is committed to social justice for all Canadians, and has passed resolutions in favour of Aboriginal self-government, but doubts whether the Aboriginal rights assumed by the Big Mountain Indian Band are appropriately articulated in this case. It believes that labour relations should be managed with the context of provincial or federal labour laws, which best provide justice for all workers including Aboriginal employees.
While all the casino workers are happy to join the CUE, and feel that their interests in this dispute are generally aligned with those of the CUE, the union is most strongly supported by the non-Aboriginal employees of the casino. They object strongly to being forced to comply with labour regulations outside of those stipulated by provincial or federal government. They feel angry and frustrated about the obstacles to what they see as their basic rights as workers in Canada solely because of the location of the casino on the Indian reserve. Aligning themselves with the arguments and opinions of the CUE, this majority of employees plan to begin rolling strikes at High Stakes Casino if their grievances are not resolved soon. Their strikes, if carried out, would disrupt table-game operations and prevent customers from entering the casino.
(i) The provincial governments get involved
Adding to the arguments before the OLRB, the Ontario Government asserts that even assuming that such an Aboriginal right to govern employee relations based on traditional protocols exists, it is justifiably infringed by the Ontario Labour Relations Act, 1995. This Act provides a framework for collective bargaining for employees within a commercial entity. Pointing to this as an important policy objective, the Ontario Government adds that the nature of the casino as a commercial entity, managed similarly to other casinos, and the large presence of non-Aboriginal employees and customers, also contribute to the reasoning of a justified infringement.
Similarly interested in protecting its jurisdiction, the provincial government of Quebec intervenes in the dispute resolution. With similar conflicts possibly emerging in its province, Quebec asserts an interest in seeing the jurisdictional and constitutional issues and workers’ rights reconciled appropriately. Quebec has experienced assertive union organising in the casinos on its First Nation reserves. There is resistance among casino operators and Band Councils there to a union presence, so the jurisdictional precedent is emerging as an important one for Quebec’s situation.
(j) Beaver Lake First Nation, Manitoba
Quebec is not the only province concerned about labour disputes in casinos located on its First Nation reserves. It is an issue also arising in Manitoba. In that province, the Beaver Lake First Nation – where a casino is proposed on its reserve – favours Federal Government jurisdiction rather than provincial law to govern labour relations on Indian reserves. It believes that these disputes are best resolved through the Canada Labour Code.
Representatives of the Beaver Lake First Nation have decided to participate in the negotiations concerning the dispute at Big Mountain First Nation Reserve to ensure that it does not set a precedent harmful to their own situation.
(k) The Federal Government gets involved
Within the Federal Government, two departments are interested in the dispute. The Human Resources Development Canada (HRDC) is concerned about the casino employees’ rights. The Department of Indian Affairs and Northern Development (DIAND) is concerned for the proper application of the Indian Act and other Aboriginal policy issues.
The HRDC is keen to see respect for labour standards and workers’ rights, whether achieved through provincial or federal labour law. The HRDC is mindful though of other legal considerations, particularly of how federal powers extend to matters regarding ‘Indians, and Lands reserved for the Indians’ (section 91(24), Constitution Act, 1867). The DIAND is similarly aware of these legal considerations, though is particularly concerned to see federal jurisdiction maintained and for the Indian Act to be applied properly. It believes if the Band is to pursue self-government, it should do so through the Indian Act.
Further, both federal authorities are sceptical or uncertain about the traditional Aboriginal rights asserted by the Big Mountain Band Council as the basis for its current actions. Both authorities have received relevant advice from Associate Professor Julie Smith, an historian from the Faculty of Anthropology at York University. She advised that the evidence of the customary tradition of dispute settlement and gift-giving described by Big Mountain First Nation before British contact is equivocal.
(l) International Labour Organisation is consulted
Also weighing on both Aboriginal law issues and workers’ rights is the position of the International Labour Organisation (ILO). As a party that recently ratified the ILO Convention (No.169) [While, in real life, Canada is not a party to ILO Convention No. 169, for the purposes of this Moot we assume that it is a party.] concerning Indigenous and Tribal Peoples in Independent Countries, Canada has elected to have an ILO representative participate in the dispute resolution process. The ILO was invited to participate by DIAND.
Given various clauses in this Convention concerning indigenous rights to self-determination, as well as workers’ rights, the ILO is interested in how the concept of Aboriginal self-governance is elaborated and put into practice in the context of the labour dispute in the Big Mountain First Nation.
The ILO hopes that Canadian authorities will ensure effective domestic implementation of their international obligations under Convention 169. The Federal Government has not introduced new legislation to give effect domestically to Convention 169, believing that its existing statutes provide a sufficient legislative basis to implement the Convention.
(m) High Stakes Casino’s Aboriginal workers
Finally, the casino’s Aboriginal employees join Marina Johnston and others in organising their own opinions and arguments concerning their labour demands. They are all concerned to see that the Band Council’s management of labour relations appropriately accommodates individual employment rights.
As previously mentioned, 10 percent of the casino’s employees are Aboriginal members of the Big Mountain First Nation. Approximately half of them live on its reserve, while the other half live in Toronto. Those that live in the city are bussed on and off the reserve daily by the casino.
The off-reserve Aboriginal employees feel frustrated that they are not obtaining all the economic benefits of the casino enjoyed by other members of their community living on the reserve. They are concerned that their Band Council is spending and distributing the income and fees received from the casino unequally to their detriment. For instance, the Band Council has spent substantial funds received from the casino to build a new community centre and sports facility on the reserve.
While both groups of Aboriginal casino workers support unionisation, each decides to seek their own legal representation in the ensuing dispute rather than allow the CUE to represent their interests collectively along with those of the non-Aboriginal employees. Both the on- and off-reserve casino employees believe that each retains some distinct concerns unique to each group that warrant separate party status in the dispute settlement process.