Mississaugas enact a labour code

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Chief Tracy Gauthier leads one of Canada's smallest First Nations. Mississaugas of Scugog Island First Nation has a territory of 321 hectares (one hectare equals 100 acres), which is home to around 22 members. About 100 others live off-reserve.

Located in Durham Region, Scugog Island is northeast of Toronto and close to Peterborough.

In July this year, the First Nation enacted its own labour relations code.

Gauthier said, "Because we had a charity casino, we wanted to control what other businesses were on the First Nation."

The First Nation is concerned about "access to anyone who wants to conduct business on the reserve," and their labour relations code therefore contains an "access to the territory" provision.

Brian Daly, with the firm McCarthy Tetrault in London, is Scugog First Nation's lawyer and an expert in Aboriginal law. "To participate in and benefit from the First Nation economy, you must abide by its laws," he said.

Mississaugas of Scugog First Nation "runs its own housing" the chief added, and their focus is "to bring members back to the First Nation."

While it may be small in numbers and land base, this First Nation has a significant economic presence. It owns Great Blue Heron Charity Casino, which opened in May 1999. About 950 people now work at the casino on the reserve. Gauthier said that, of this number, "15 belong to Scugog First Nation, and about 100 belong to other First Nations."

Daly said Great Blue Heron is a "very large enterprise. Once you are out of the (Highway) 401 corridor, the casino is one of the largest employers in Durham. It is very significant and has an impact on local economies."

To run its affairs, the First Nation had previously enacted a land code and a gaming code. The land code was enacted with the agreement of the federal government, and the gaming code with the agreement of the province.

Daly, who wrote the band's latest piece of legislation, said, "Nothing similar has been done by another First Nation."

It didn't happen quickly. Gauthier said their labour relations code "was developed four years ago and changes made before it was passed."

The labour relations code, at 45 pages, includes 12 parts. These are Introductory Provisions, General Provisions, the Mississaugas of Scugog Island Labour Relations, Dbaaknigewin and Custom Advisory Panel, Dispute Resolution Procedure, Dbaaknigewin Approval, Certification and De-certification of Unions, Collective Bargaining, Strikes and Lockouts, General (fair representation, union dues), Unfair Labour Practices, Offences and Punishment, and Administration.

Brian Daly remarked the code "is not set up like other labour codes. It only deals with organized labour."

The code does not deal with employment standards, human rights, or occupational health and safety, for example. Daly added, "It may deal with these later.

"How the First Nation sees the economy developing on the reserve," lay behind the move "to regulate the economy on the reserve," he said.

Yet controlling the economy on the First Nation is not an end in itself.

The labour relations code states: "it is only through the enactment of its own laws in the area of labour relations that the principles and values of the Anishinabek people will continue to provide inspiration for the community."

And it states that through the code the First Nation hopes to "protect traditional values ... Family relationships and the good of the individual and the community are deserving of concern and respect."

"A lot of different, unique features" according to Daly, can be found in the band's labour relations code. Among the features designed to protect and preserve Anishinabek ways are the custom advisory panel, and the Dbaaknigwein.

The custom advisory panel advises on "Anishinabek oral and written traditions, customs, practices and cultural values." It ensures the "wisdom, teachings and ways of the Anishinabek people continue to be of guidance to the community."

The Dbaanigwein, a court or labour relations tribunal set up to handle conflicts and dispute resolution, will have three members, one of which must be a registered member of the Anishinabek First Nation. The code lays out the oath and terms of office, and general and specific powers for the Dbaaknigwein.

Strikes and lockouts are prohibited, with provisions for fines of up to $1,000 for offenders.

"The First Nation labour code is not adversarial," said Daly, who also noted "Since the Constitution Act of 1982, constitutional conferences have not succeeded in defining Aboriginal rights."

Respect and recognition figure prominently in the new labour relations code: respect for and recognition of the struggle for self-reliance and self-determination, inherent Aboriginal rights, and development of First Nations' government.

Self-government issues were a factor in the development of the code.

Unions seeking recognition on the First Nation must demonstrate a "past and current practice of recognizing and affirming the right of First Nations to exercise their rights of self-government and self-determination" (from Part 5, section 53).

In the larger scheme of things, Mississaugas of Scugog Island First Nation belongs to the United Anishnaabeg Councils, a group of eight First Nations. A self-government agreement is one of the Councils' goals. Former governor general Romeo LeBlanc signed the agreement-in-principle on June 21,1998. The draft agreement followed in 2002. Members of the United Anishnaabeg Councils and the federal government must ratify the agreement for it to take effect.

"Self-government agreements have a range of terms," said Daly.

The Mississaugas' governance agreement contains provisions clearly laying out their values, such as the statement that "Aboriginal government may be recognized and implemented through treaties, land claims, settlements, legislation, or other mechanisms."

Through its enactment of a labour relations code, the Mississaugas of Scugog Islad First Nation seeks to assert what it believes to be its inherent right to enact such legislation, according to tradition, the Constitution Act of 1982, and the Indian Act of 1985.

Labour relations "is an aspect of trade and commerce, which have always been part of the rights and practices of First Nations," the code states.

Its long experience with treaties also makes the Mississauga of Scugog Island First Nation unique among First Nations. The history of the United Anishnaabeg Councils, states, "The Mississauga and Chippewa have the longest continuous history of treaty-making with the Crown of any Aboriginal peoples in Canada, spanning the period 1761 to 1923. The Mississauga Nation has 19 treaties with the Crown."

The labour relations code is now in force on the First Nation. Since its enactment in July, litigation has resulted. Several groups are contesting the constitutionality of the code.