The question of Canadian law’s becoming more responsive to Indigenous law arises acutely in conflicts involving pipelines and other megaprojects. While these cases are important, there is space to give greater attention to day-to-day aspects of life—such as employment. As the Supreme Court has stated, employment law governs “one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”Footnote 1 With this in mind—and setting aside questions about whether employment ought to be as central to one’s identity as the court states—it is worthwhile to consider employment in Canadian and Indigenous legal contexts. This includes identifying areas of overlap, divergence, and discretion. Areas of discretion are perhaps most interesting in that, for Canadian decision-makers, they provide an immediate opportunity to act in a way that is respectful of legal pluralism and responsive to Indigenous worldviews.
My approach to this task is to compare British Columbia (B.C.)’s employment legislation to the employment legislation that Coast Salish communities have enacted. Although this approach certainly prioritizes written law, I want to emphasize that worldviews—Indigenous and liberal—cannot be fully reduced to legislation and that these worldviews are important in interpreting legislation. Further, there is significant discussion within Indigenous and academic communities around the extent to which Indigenous law can, or should, be reduced to written law. This study is not meant to offer judgment, or even input, on these important questions. Instead, this article aims to explore one way in which formally enacted Indigenous legal normsFootnote 2 may be used to reinterpret and reconsider Canadian legislation.
I will first provide a very brief overview of Coast Salish views of employment, based on historical and modern trends, and an examination of the values reflected in contemporary Coast Salish legislation. I rely primarily on excerpts of legislation passed by Coast Salish communities and on anthropological works, including those of Bruce Granville Miller and Brian Thom.Footnote 3 Next, I will compare these values to those expressed in the Employment Standards Act (“ESA”)Footnote 4 of B.C. This comparison is limited to three topics: the purposes of the legislation, the ESA’s conception of its own jurisdiction, and the concept of family.
As an initial comment, and though there are significant consistencies among Coast Salish communities as to how issues should be dealt with,Footnote 5 Coast Salish communities do not have a unified “law” to draw on, and do not historically have a concept of the “state.”Footnote 6 There is no contemporary tribal code,Footnote 7 governing structure, or set of laws that can be said to represent all Coast Salish people,Footnote 8 and there are significant internal differences among Coast Salish accounts of the nature of justice.Footnote 9 While this article does begin to engage with the differences among different communities, the focus is on areas where there is relative consensus among communities.
Coast Salish Economies and Conceptualizations of Employment
Before discussing Coast Salish legislation, it is worthwhile to identify some key aspects of Coast Salish economies and employment that began before contact and continue (to varying degrees) today. A key concept is ts’its’uwatul, which can be literally translated as reciprocity, or as helping one another (although literal translations can be problematic) and has been described a “simple law” with significant implications.Footnote 10 Another key principle is respect, which can be shown in many ways, including by treating salmon and deer properlyFootnote 11 (including by not just treating them as “food”).Footnote 12 As noted by Lee Maracle, Coast Salish people are “duty bound to feed our families with the least damage to other life save the one we are taking.”Footnote 13 Kinship and family ties were related to resource access—territory was not simply an open commune.Footnote 14 A third key principle is the concept of greed: in Coast Salish communities, greed can be understood as a “state of alienation and the opposite of generosity; it isolates people from the community […] to be greedy and hoard things is wasteful.”Footnote 15 Instrumentally speaking, greedy hoarding prevents the flow of goods and services in a community, threatening relationships formed between community members.
Employment relationships are grounded in economic practices and concepts. Some historic Coast Salish practices resemble contemporary employment activities.Footnote 16 Individuals could be hired for mortuary and funeral services,Footnote 17 people could be “hired” to “do the work” at potlatches,Footnote 18 and Medicine Men could be hired for various spiritual and other services. Parallels with the notion of “debt” also existed, though it was more closely related to notions of collective responsibility than individual responsibility and so could be owed by the family group.Footnote 19 Goods were generally acquired via direct acquisition or trade (facilitated within a complex system of social networks).Footnote 20 Compensation for work was not universally based on set rates. For example, compensation for fishing incorporated how much net each person contributed and to practices that ensured that respect for the fish itself was demonstrated.Footnote 21 Medicine Men did not have set rates, but were compensated generously, partly for fear of repercussionFootnote 22 (although post-contact set rates were sometimes seen as “too much”Footnote 23).
As immigration and colonization increased, relationships of production changed.Footnote 24 There continued (and continues) to be a strong connection to what, from a contemporary Western economic perspective, would be seen as the resources that served Coast Salish people historicallyFootnote 25 (including both cultural and intellectual property, with long-standing efforts to break non-Indigenous monopolies).Footnote 26 To some, salmon are “central to everything it means to be indigenous”Footnote 27 and individuals used their skills in canneries, as fishers, and in longshoring. In the early 1870s, “nearly all Fraser River fishermen were Native,”Footnote 28 though this representation reduced over time (due in large part to discrimination).Footnote 29
While a relationship with natural resources was consistent, the family unit—the basic unit of the Coast Salish world—changed as a result of economic forces. Historically, a large household was needed to harvest and preserve resources for the coming year. As harvesting opportunities were reduced and replaced with (often seasonal) wage labour, large households were not needed and were difficult to support. Over sixty-three years, one Lekwungen community saw a reduction in household size—attributable to wage labour realities—from eight to ten people per household in 1847 to three people per household in 1860, and then to 2.3 people per household in 1910.Footnote 30
The reduced family unit often worked together. In the late 1800s, “family-based production was […] the norm” for Lekwungen field workers, and there was a high demand for “Indian fishermen [because] they bring their families around and you have Indian women and boys, and some of them men.”Footnote 31 Family-based production continued in the 1960s when “knitting families” (producing Cowichan sweaters) would enlist “a mother and father, three or four participating children and possibly a grandparent, aunt or uncle.”Footnote 32 Coast Salish families worked to keep their families together and some employers felt that it was economically advantageous to have cheap labour (and a variety of economic skills) available.Footnote 33
While Coast Salish communities were subjected to massive displacement from land and other impacts of colonization, they have responded differently to different aspects of the employment framework that is central to Western life. Coast Salish communities, to varying degrees and at different times, have adapted to some aspects of the Western economic system (such as the wage market), rejected some (such as individual gain/material accumulation), and complicated others (including via culturally relevant valuation of goods, commodities, and actions).Footnote 34
Today, most Coast Salish communities strongly support employment in general, prioritizing ownership of businesses. For instance, the Penelakut Community Plan includes a section on economic self-reliance, of which the first priority is job creation,Footnote 35 and the Cowichan Tribes Strategic Plan lists six objectives, the second of which is that all members are “gainfully employed in a manner of their choosing.”Footnote 36 Some Coast Salish communities—perhaps, as discussed below, in response to concerns about discrimination—are more concerned with employment than surrounding non-Indigenous communities appear to be. The current Tsawwassen First Nation (“TFN”) strategic plan lists meaningful employment opportunities and member-owned businesses as objectives. In contrast, the Tsawwassen (named after the TFN, which they neighbour) Area Plan does not contain the word “employment.”Footnote 37
Contemporary Coast Salish Tribal Codes and Other Legislation
Below, I provide an overview of the employment provisions outlined in Lummi, Suquamish, Swinomish, and Tulalip tribal codes, as well as that of the TFN. Except for the TFN, whose employment legislation is recent, all the communities discussed below are situated in the United States. I focus on communities situated in the United States, despite discussing Canadian legislation, for two reasons. First, to emphasize that, for the purpose of discussing Coast Salish values, the international border is a somewhat arbitrary imposition.Footnote 38 Second, Indigenous communities in the United States have a longer history of having respect shown for at least some of their institutions, such as tribal courts and codes.Footnote 39 As such, they have given more attention to developing tribal codes than have communities in Canada.
Tribal codes and other legislation may be passed to help clarify the issues that communities struggle with, to impact the behaviour of community members, or to help clarify a balance between individual and collective rights.Footnote 40 Legislation is often developed by tribal law committees, working with code writers (who may or may not be tribal members) to develop draft legislation that is presented with recommendations to a tribal council.Footnote 41 Tribal legislation typically incorporates so-called “folk law” (uncodified, lived law, previously in use or in use at the local level),Footnote 42 though methods of incorporation vary.
I will focus on Constitutions and their “purpose” statements as a means of outlining general values. Constitutions outline values, and purpose statements are often “the most direct and authoritative evidence of legislative purpose” and “give context for the entire Act.”Footnote 43 While the focus of this article is on narrow aspects of legislation, legislation is only part (often a small, or even negligible, part) of Indigenous legal orders.Footnote 44 Other sources of Indigenous law are largely set aside in my approach. This should not be taken as a suggestion that other sources do not have value. If the approach used here has value, then it is in the fact that the nations discussed in this study created legislation and that legislation is worthy of respectful examination and consideration. It is suggested that this approach may be helpful in understanding how Canadian legislation sits in tension with Indigenous values, but it is not suggested that this methodology should—or could—be used as the exclusive way to identify that tension.
Lummi NationFootnote 45
The Lummi Constitution prioritizes making government more responsive, developing community resources, administering justice, protecting tribal interests, and promoting the social and economic welfare of “ourselves and our descendants, and to preserve our land base, culture, and identity.”Footnote 46 Their Employment and Training Policy intends to “eradicate discrimination,” an “integral part” of which is to “structure employment and training opportunities and to provide for the hiring of Native Americans who are qualified, and through training where there are no sufficient qualified Native Americans.”Footnote 47
The legislation creates a Director of the Employment Rights office to investigate violations, to hire and supervise staff, to establish training and advocacy services, and to assist native workers in finding jobs.Footnote 48 There are detailed requirements for some employers, including hiring preference (Lummi Nation veterans, Lummi Nation members, Native Americans who are parents or children of a Lummi Nation member, spouses of Lummi Nation members, children or grandchildren of Lummi Nation members, other local Native Americans, and non-local Native Americans)Footnote 49 and termination preference (the previous list in reverse).Footnote 50
The legislation shows a desire for a government that is responsive and plays a significant role in society, with a long-reaching focus (with economic welfare thought of in terms of multiple generations) and an emphasis on social policy (including social welfare and the eradication of discrimination). Their set of hiring preferences puts veterans first and gives weight to the needs of families with children.
Suquamish Indian tribeFootnote 51
The Suquamish Tribal Government’s Constitution is meant to “develop our community resources, to administer justice and to promote the economic and social welfare of ourselves and our descendants” and notes a “beneficial ownership interest” of certain lands. The tribe’s jurisdiction “shall not be inconsistent with applicable Federal and State law [but such law shall not] be construed as restricting the treaty hunting and fishing rights.”Footnote 52
Their employment legislation is divided into four parts—discrimination, medical leave, wages and hours, and enforcement.Footnote 53 Each part emphasizes the Suquamish’s “sovereign authority.” The discrimination section states that the tribe has a “primary interest in exercising its inherent sovereign authority to provide a fair and productive working environment” and that “as a sovereign government […] it is in its own best interests to govern employment relations […] to ensure fair and productive working environments, and, to that end, to protect against employment discrimination.”Footnote 54 The family medical leave legislation adds that it is important to “provide job security, in accordance with the unique public policy values of the Tribe, for those employees who must take time off from work as a result of” their own health, a family member’s health, the birth or adoption of a child, or to care for certain service members.Footnote 55
In sum, the legislation emphasizes Suquamish sovereign authority and gives attention to the division of powers between the Suquamish and the United States. This affirms the continuity of Suquamish authority notwithstanding settler-colonial histories and political structures. Chief Seattle was Suquamish and the Suquamish once had a winter village in what is now downtown Seattle. As with the Lummi, there is attention to ending discrimination and social policy, with a more specific focus on health.
Swinomish Indian tribal communityFootnote 56
The Swinomish Constitution functions to “establish a more perfect tribal organization, promote the general welfare, encourage educational progress, conserve and develop our lands and resources, and secure to ourselves and our posterity the power to exercise certain rights of home rule in accordance with and by the act of Congress of June 18, 1934.”Footnote 57 The links to the United States are notable: there is a clear reference to Congress, and the language of a “more perfect” tribal organization reflects the US Constitution. Their employment legislationFootnote 58 states in its preamble that they have “suffered discrimination […] continue to be excluded from the employment market; continue to suffer poverty and high unemployment rates” and that there are other adverse consequences including “alcohol and drug abuse, school drop-out, domestic violence and other crimes, that affect not only the unemployed individual and his or her family, but the entire Reservation community.”Footnote 59
Swinomish legislation states that it is “vital” to extend employment “to spouses of Swinomish tribal members. By keeping families together, Swinomish families grow stronger and provide nurturing homes for future generations.”Footnote 60 Overall, the Swinomish show significant attention to social policy and specific social concerns. Employment is framed as a means to end listed social concerns, rather than a stand-alone “fundamental aspect” of a person’s life (as the Canadian Supreme Court describes it).
Tulalip tribe of IndiansFootnote 61
The Tulalip Constitution indicates that they seek to establish a “more perfect tribal organization, promote the general welfare, encourage educational progress, conserve and develop our lands and resources, and secure to ourselves and our posterity the power to exercise certain rights of home rule not inconsistent with the Federal, State, and local laws.”Footnote 62 The Tulalip also have general rules for all matters which state that “We gathered at Tulalip are one people. We govern ourselves. We will arrive when each and every person has become most capable.”Footnote 63 Their stated values include respect for elders, respect for the teachings that come from our ancestors, speaking truth, working to uphold and serve the people, and to “always try to do our best.”Footnote 64 The general rules also create a procedural right of elders to address the court “in all proceedings, should time allow,” in order to share their beliefs or recommendations.Footnote 65
The sections that are specific to employment state that “employment discrimination against Native Americans persists” and jobs on or near the reservation are “important resources to which Natives have unique preferential rights.”Footnote 66 The purposes of the employment legislation include outlining laws for employment and contracting within tribal jurisdiction, compliance of the same, and the provision of a “fair, enforceable, and effective system” for work that may be performed on the reservation.Footnote 67 The code outlines preferential employment for enrolled Tulalip tribe members, their spouses/parents/children/guardians, other natives/Indians, spouses of federally recognized Native Americans, and others.Footnote 68 The code contains an entire chapter entitled “Right to Work,” which is intended to encourage employment, provide public services, and maintain peace and good order, though the impact of the legislation is anti-union (for example, barring a requirement to pay dues to a union and banning striking).
The Tulalip legislation has a greater emphasis on what success will look like, rights for elders, and specific broad rules to live by (such as trying to do our best and speaking the truth). As with other communities, there are preferential hiring processes and a concern with ending discrimination.
Tsawwassen First Nation
The TFN is situated in Canada, close to the Canada/US border.Footnote 69 In 2009, the TFN passed the Government Employees Act,Footnote 70 which governs TFN employees. This Act states that employees are hired based on merit, and hiring must facilitate the development of an efficient and effective workforce that is representative of TFN membership, the long-term employment of Tsawwassen members, and the long-term career development and advancement of employees. Hiring priorities are given to Tsawwassen members, then to their spouses, and then to members of other First Nations.
The TFN defines “spouse” in at least two ways. In the Membership Act,Footnote 71 a “spouse” is someone who has married another person. In the employment legislation, a “spouse” includes both a marriage and someone in a marriage-like relationship, if they have a child together. Since the only use of the “spouse” provision in the employment legislation is to give spouses second priority in hiring (behind members and in front of members of other First Nations), it is likely that this definition is meant to support the children of TFN members.
All new employees, other than short-term employees, must participate in an affirmation ceremony or oath. The purpose is to ensure that they: understand their commitment to the TFN; honour and respect Tsawwassen members, history, and culture; understand the importance of confidentiality; have a working knowledge of the TFN governance structure, community, history, and culture; and have basic information (such as legislation and policies) related to their employment. Thus, the TFN legislation, like the tribal codes, gives attention to preferential hiring processes and an emphasis on history, culture, and family, though it differs in some ways (such as its explicit emphasis on “merit-based” hiring).
Summary of tribal legislation
The tribal constitutions are broad, with a fairly consistent focus on the development of resources, government, and economic and social resources. The tribal codes are all explicitly concerned with eradicating discrimination. They cover both individuals employed directly by the tribe as well as businesses and contractors that operate on tribal property (though they sometimes distinguish between the two).
Tribal legislation tends to prioritize rights of nation members, followed by those close to the nation, though specifics vary. The Lummi prioritize veteran members above all others and prioritize local Native Americans over non-local Native Americans, whereas the Tulalip make no distinction between veteran or non-veteran members and local or non-local Native Americans.Footnote 72
There are differences between the way in which legislation relates to other jurisdictions. The Suquamish repeatedly assert their own sovereignty and self-government, by emphasizing, for instance, that neither federal nor state laws can infringe on hunting and fishing rights. The Tulalip Constitution explicitly limits its own jurisdiction to that which is “not inconsistent” with the federal or state power, and the Swinomish reference the United States Congress and Constitution. The TFN legislation is grounded in treaty.
Tribal legislation places a greater emphasis on resource rights than is typically found in Canadian legislation. These rights are granted to individualsFootnote 73 but based on community priorities. Communities differ as to whether non-tribal members can exercise tribal fishing rights for the purpose of providing support to family members who are tribal members—a divide that is sometimes gendered, with women arguing in favour of non-members’ fishing rights and men opposed.Footnote 74 This divide may point to a greater concern among men for keeping resources in the community and a greater concern among women for providing for children. The Lummi, TFN, and Tulalip have each legislated in a way that places non-members with (member) children ahead of other Native Americans but behind members, suggesting an intention to facilitate support for children.
Several communities have not passed employment legislation (concerned with individual workers) but have passed labour legislation (concerned with unionization). The Port Gamble S’Klallam Tribe passed legislation that, for their “health, welfare, and integrity,” bans strikes.Footnote 75 Unions can exist, but cannot require membership fees as a condition of employment.Footnote 76 Nooksack also bans union dues as a condition of employment.Footnote 77 Meanwhile, in Canada, laws of “general application,” such as the ESA,Footnote 78 are applied to Indigenous communitiesFootnote 79 without regard to their law. The following section will explore the existing framework for employment standards in B.C. and its tension with the Coast Salish worldview and law.
Employment Standards Legislation in British Columbia
Canada’s constitution lists two “heads of power”: federal (including “Indians”) and provincial. Employment is not listed under either section, but is presumptively provincial,Footnote 80 sometimes federal.Footnote 81 In a 2010 case involving NIŁ TU,O (a group of Coast Salish nations that, in this case, was an employer), the Supreme Court of Canada held that employment was governed by the provinceFootnote 82 and did not engage with the notion that the NIŁ TU,O might have its own jurisdiction.Footnote 83 The court treated NIŁ TU,O under the same framework as any other employer,Footnote 84 meaning that the employment of Indigenous people by Indigenous nations on Indigenous land is under the jurisdiction of the province (unless, as with the TFN, other arrangements exist).
B.C. governs employment primarily through the ESA and the Employment Standards Regulation. Footnote 85 Employment is also governed by common law, although this is largely outside the scope of the present study.Footnote 86 Other regulations include the Family Member Regulation (the “FMR”).Footnote 87 The ESA creates an agency (Employment Standards Branch, “ESB”), which can make a binding decision or facilitate mediation, and an interpretation guide to the ESA (the “Guide”). The ESB is primarily complaint-driven but can investigate matters on its own initiative. Appeals are made to the Employment Standards Tribunal (the “Tribunal”).
ESB employees have sworn the B.C. Government Employees’ Oath. The TFN oath and the B.C. Government Employees’ Oath overlap in some ways (around the importance of confidentiality and general statements to do the best one can do). There are also differences: B.C.’s oath contains references to “impartiality” and “objective evidence”—terms that purportedly capture universal values but in fact reflect a specific and contingent cultural perspective. While there are hints of similar concepts in the Tsawwassen oath (which references “universally held principles of responsible government”), Tsawwassen’s context statement also suggests that other worldviews may inform their employment relations, including an emphasis on “affirmation ceremony,” on legal pluralism (with “self-government” where “two worlds can co-exist”), and with reference to practices that go back “countless generations.” Furthermore, the ESA does not define “employment” precisely but does provide definitions of “employee” and “employer,” which ultimately results in a very broad definition of “employment.”
There are six purposes listed in the ESA: to ensure that employees receive at least basic standards of compensation and conditions of employment; to promote fair treatment of employees and employers; to encourage open communication between employers and employees; to provide fair and efficient procedures for dispute resolution; to foster the development of a productive and efficient labour force that can contribute fully to the prosperity of B.C.; and to contribute in assisting employees to meet work and family responsibilities.Footnote 88
Comparing Tribal Legislation and British Columbia’s Legislation
Any number of comparisons may be made between the Coast Salish legislation and the statutory scheme in B.C. I focus on three that help to elucidate the broader, normative orientations to the laws: the way each statutory scheme approaches its own purpose, the way that B.C.’s legislation approaches its own jurisdiction, and the way each statutory scheme defines family and obligations to one’s family.
Although an examination of the relationship between Coast Salish legislation and union movements warrants its own study, two observations may be made for present purposes about the “right to work” provisions found in some of the tribal codes. First, this sort of legislation may reflect the normative impact of distinct political, cultural, and legal practices on either side of the Canada/US border.Footnote 89 In Canada, the Supreme Court has constitutionalized the right to strikeFootnote 90 whereas the right-to-work discourse is alive and well in the United States. While there have been claims that counter union interests (defined narrowly) by Coast Salish organizations in Canada,Footnote 91 it is not clear that this is necessarily an anti-union position. Second, this could be a situation in which there are differences between, and within, the communities as to the nature of Indigenous law. In some Indigenous communities, leadership has taken the position that unionization is inconsistent with Indigenous law. Other voices disagree, accusing leadership of creating a “false front of [anti-union] nationalism as a red herring to maintain their power over labour relations”Footnote 92 or stating that “Indigenous elite want to maintain full access to and control over allocations of streams of revenue.”Footnote 93 The approach taken in the present study is not calibrated to examine intercommunity disputes of this sort, as this approach focuses on legislation—which can only be created by those in power. While I maintain that this approach nonetheless has value, this important limitation must be kept in mind.Footnote 94
Purposes
One difference between the ESA and tribal legislation is obvious at a glance: tribal legislation’s enumeration of purposes is more extensive than B.C.’s. For example, the Swinomish’s purposes statement is almost three times longer than B.C.’s. There are at least two explanations. First, B.C.’s legislation is generally more detailed than tribal legislation. Since specific direction is laid out in more detail by B.C., there are fewer cases requiring a purposeful interpretation. B.C.’s approach suggests a preference for consistency over discretion.
Another explanation is that B.C.’s legislation is built within a liberal worldview. Those interpreting its legislation will be well versed in that worldview.Footnote 95 Conversely, legislation that seeks to operate, at least in part, outside of the liberal framework must establish the framework within which it wishes to operate. It is necessary to make the framework more explicit, especially for situations in which the legislation encounters liberal decision-makers. For example, the ESA is individualistic, with community-oriented goals limited to the creation of a productive and efficient labour force. Contrary to an individualistic view, the Swinomish legislation addresses “a myriad of social problems, including alcohol and drug use, school drop-out, domestic violence and other crimes, that affect not only the unemployed individual and his or her family, but the entire Reservation community” (emphasis added). Through legislation, each nation moves towards its own concept of “employment” and “economy,” away from colonial definitions.
Underlying values matter. To take a common situation, the ESA allows an employee to be terminated without notice for minor misconduct over time or for one incident of severe misconduct. Minor misconduct is based on a test that includes whether the employer’s standard of performance is reasonable. Underlying values ultimately define what is “reasonable.” A ban on intoxication, particularly outside of working hours, is likely to be seen as unreasonable by Employment Standards,Footnote 96 whose lifeworld emphasizes liberty and individuality.Footnote 97 For the Swinomish, for example, employment relationships are a means to address social problems related to alcohol and drug abuse. With this different basis for understanding employment, it possible that the Swinomish would take a different approach to policies against intoxication. Similarly, domestic violence at home is not a “standard of performance” in the employment context.Footnote 98 Legislation that is grounded in the consideration of social problems and the community may be more permissive for employers who are considering requiring employees to reduce alcohol consumption or take steps to prevent social problems in the community.
The legislative purposes treat discrimination in very different ways. The referenced tribal codes cite the eradication of discrimination as a central purpose. Not only does the ESA not expressly refer to discrimination (beyond a comment about “fair treatment”), but it also blocks Employment Standards from applying the Human Rights Code. Footnote 99 As a result, someone who is paid severance but terminated for racist reasons will have no remedy under Employment Standards. One can imagine a situation in which someone is terminated by a racist employer, applies to Employment Standards, and is ultimately unable to file a human rights complaint.Footnote 100 Tribal legislation does not directly engage with these problems—it tends to create labour pools or legislate terms of tribal employment rather than govern details of an employment agreement—but it does seem to prioritize ending discrimination over concerns around inconsistency in administrative decisions.
Employment Standards’ jurisdiction
Two situations in which Employment Standards’ jurisdiction may become problematic (in addition to the constitutional question, briefly discussed above) are: when Employment Standards takes jurisdiction over a matter that is not, in a Coast Salish worldview, within the jurisdiction of Employment Standards; and when Employment Standards takes jurisdiction over a matter that has, in the Coast Salish worldview, been resolved. The first example requires considering ts’its’uwatul (that foundational ethic of reciprocity in Coast Salish law). Application of this concept varies, although it could include labour or services that are often performed by an employee—and thus could be found to be “work,” and therefore evidence of an employment relationship, within the meaning of the ESA.
The 2006 decision in Grewal Footnote 101 offers an illustration of the Tribunal’s applying this kind of logic. Here, Employment Standards visited a farm (on its own initiative) and observed people who were harvesting raspberries. They were told that the harvesters were “not employees but relatives and friends of Balwinder Grewal” and that:
in our Indian culture [that is, the subcontinent of India] it is a common tradition, that stems back centuries, that when help or assistance is needed, relatives and friends band together collectively to lend a helping hand. This is called “Aawat”. There is absolutely no discussion of compensation whether it is monetary or anything of that nature for this assistance that family and friends provide from time to time […] it is an issue of respect and cultural commandment.
The Tribunal upheld Employment Standards’ finding that the berry pickers were employees, that Mr Grewal’s company was an employer, and that “harvesting raspberries is an activity one would normally expect an employee engaged in farm work to perform.”Footnote 102 That the “employees” may have been “relatives and friends lending a helping hand” was insufficient to show that Employment Standards erred in finding that they were employees. The Tribunal held that, even if there was no intention to establish an employment relationship, “the existence of an employment relationship is not dependent on the intentions of the parties.”Footnote 103
The decision does not provide sufficient information to compare ts’its’uwatul to aawat, though there is a surface-level similarity. While it is certainly possible that Mr Grewal was disingenuous in claiming aawat, the crucial issue is that Employment Standards fundamentally views this practice as subservient to the rights outlined in the ESA. Coast Salish individuals interested in working together outside of an employer/employee relationship may be particularly concerned because Employment Standards did not receive a complaint, but began an investigation on its own initiative and appears to have concluded that community agreement on a form of practice does not displace Employment Standards’ involvement.Footnote 104
Turning to the second example, namely dispute resolution, the ESA statesFootnote 105 that complaints must be investigated unless certain requirements (such as timely filing) are not met. Employment Standards can stop investigating, or refuse to investigate, if the proceeding has also been commenced “before a court, a tribunal, an arbitrator or a mediator,” if a court, tribunal, or arbitrator has rendered a decision, or the matter has been resolved (presumably, this includes successful mediation).Footnote 106 “Court, tribunal, arbitrator, and mediator” are not specifically defined, though the Guide provides two examples: “a human rights complaint or a court case.”
It is unclear what this means for disputes that are resolved via Coast Salish practices.Footnote 107 The ESA implicitly limits “decisions” to courts, tribunals, or arbitrators. Such actors are very much a part of the Canadian legal system. The ESA does not make space for Coast Salish decision-making, meaning that Employment Standards cannot uphold such a decision unless it is categorized as mediation (or by ignoring the issue). While mediation does empower the integration of Coast Salish law, this approach is a denial of the governing power, and sovereignty, claimed by Coast Salish government. It means that, in the domain of employment, traditional dispute-resolution mechanisms and Coast Salish political authority are presumptively irrelevant. One can see the legislative difference in the stark contrast between the silence towards traditional dispute-resolution mechanisms in the ESA and the great respect for elders in the Tulalip legislation.Footnote 108
Another issue is that the ESA speaks in the language of money. It is very specific about wages: they are to be paid, to employees, in Canadian currency. The ESA (likely concerned about exploitation of workers) does not recognize knowledge, resources, or anything other than Canadian currency as wages. Although Coast Salish dispute resolution could include financial consequences (see, for example, shame potlatching),Footnote 109 Coast Salish dispute resolution could involve less financial compensation, or on different timelines, than the ESA requires. Similarly, the ESA’s liberal grounding takes the “anthropocentric view that only humans are persons,”Footnote 110 making it extremely difficult for Employment Standards to determine whether a termination caused by lack of respect to a fish, tree, or deer was reasonable. The ESA’s illiteracy when it comes to reading how such valuesFootnote 111 inform the practices within a Coast Salish community makes it poorly suited to determining whether to claim jurisdiction over the matter or how to proceed with a matter. Further complicating this is that many relationships cannot be reduced to an “employment” relationship and complicated disputes (with an employment component) may not be properly resolved outside of a formal ritual setting—the sort that Employment Standards is unlikely to participate in, even if invited.
A further complication arises when the First Nation (or community) is the employer. It may be proper for Employment Standards to be wary of an employer’s statement that a matter has been resolved, but Employment Standards is not particularly well equipped to determine whether there has been a reasonable application of Coast Salish dispute-resolution processes. While a full exploration of this difficult topic is outside the scope of the present study, one possible resolution would be to use the doctrine of collateral attack to respect the jurisdiction of the nation and find that a decision has been made.Footnote 112 The complainant, if they disagree with the nation’s decision, should appeal that decision (internally, if such a process exists,Footnote 113 or in court) instead of attempting to relitigate it elsewhere. Given the emphasis on relationship-mending in dispute resolution,Footnote 114 one can but hope that this issue will not come up and that people will simply not make complaints to Employment Standards. However, as the Grewal decision shows, Employment Standards can assert jurisdiction without a complainant.
Family
The Coast Salish worldview is based in large part on the family, as opposed to the individual.Footnote 115 The definition of family is critical “because tribal political life is conducted along family lines and in the idiom of kinship”Footnote 116 and family can seen as “the most significant of all traditional institutions.”Footnote 117 As outlined in Table 1, there are varying concepts of what is included in a ‘family,’ for the purposes of employment. Family is not always explicitly referenced in legislation, although the Swinomish include “foster[ing] strong family ties” in describing the purpose of its legislation. The ESA states that employment is in part to “contribute in assisting employees to meet work and family responsibilities.” B.C.’s legislation puts work and family responsibility on an equal footing, whereas the Swinomish (and others) see work as a means to foster a strong family relationship.
Definitions of Family
Note: *Legislation refers to “immediate family,” as opposed to “family” or “extended family.”
Family definitions in tribal legislation often contain an “other” category that may include the “immediate household,”Footnote 118 “others raised or residing in the home and considered by the Tribal community to be part of the immediate family,”Footnote 119 or relations by “blood, marriage, or adoption.”Footnote 120 The Swinomish legislation does not define “family,” but does have definitions in other legislation, including in their Juvenile Code (which explicitly includes second and third cousins, and the spouse of the youths’ great grandparents, along with “any person who is recognized as an extended family member by tribal custom”).Footnote 121 There are diverse ways in which “family” is defined, with narrower economic definitions and broader youth/custody definitions.Footnote 122 For example, the Tulalip legislation defines family very broadly, but narrows the definition in the context of hiring preferences, and further narrows it in the context of qualifying for medical leave.
The ESA has a broad definition of “immediate family,” which includes spouses, children, parents, siblings, grandparents, and grandchildren, as well as in-laws and stepchildren. The Regulations expand the family (including aunts and uncles, nieces and nephews, and siblings-in-law) but—as with the Swinomish and Tulalip legislation—different definitions of “family” apply to different situations. For COVID-19 leave, “family” can even include someone who is “like a close relative […] but not related by blood, adoption, or partnership.” Similarly, an employee could take time off work to care for someone who “considers the employee to be” a close relative.
For a narrower definition of “family,” one can look to bereavement leave under the ESA. Bereavement leave only allows three days of leave, and only for “immediate family.” To compare, some Coast Salish Tribal Codes allow youth to leave prison (far more significant than a couple of unpaid days off work) “to attend the funeral and any related activities for his parent, guardian, custodian, or any member of his extended family”Footnote 123 (emphasis added). The Coast Salish legislative scheme provides a more significant right to bereavement leave (and associated activity) than the ESA contemplates, suggesting a greater emphasis on the role of mourning and end-of-life ceremonies.
A few conclusions can be drawn from how “family” is treated. First, while there are some differing family rights in Coast Salish legislation, it is more common in Employment Standards. Again, there appears to be a preference for consistency over discretion in the ESA. Second, the ESA largely treats employment and business as an inherent good, whereas Coast Salish legislation often implicitly or expressly frames employment as a means to a stronger community. This difference has significant implications—it may help explain why B.C. gave relatively expansive rights to COVID-19 leave (reducing the risk of contracting COVID-19 at work was seen as good for business) and relatively weak rights to bereavement leave (which has no economic benefit). B.C.’s Minister of Labour, when implementing the amendment that provided COVID-19 leave, started by saying that “many workers wake up in the morning with a sore throat and a difficult choice.”Footnote 124 This choice is only difficult where employment and family (or community) are on similar footing. If community health is the ultimate goal, a sore throat (when it is a symptom of a contagious, potentially lethal virus amid a pandemic) does not give rise to a particularly difficult choice.
Perspective also matters. B.C. provided COVID-19 leave if the person who was sick saw the employee as family or the employee saw them as a close relative. Elsewhere, the ESA refers to “any person who lives with an employee as a member of the employee’s family,” prioritizing individuals who live under the same roof (the Guide provides the example of “an exchange student residing with the employee’s family”). This approach is individualistic in that the analysis is based on individual perspectives. In contrast, the Tulalip Employment Code asks whether the parties are “considered by the Tribal community” to be family. The Swinomish Juvenile Code asks whether the person is “recognized as an extended family member by tribal custom.” These are community-oriented approaches, reflecting a recognition of shared norms over individual assertion. The Tulalip use the phrase “immediate household” in their Tribal Employment Rights Ordinance (TERO) code and “raised or residing in the home” in their Employment Code, suggesting that (past or present) accommodation may be as important as blood relations.
Perhaps the most explicit difference is the role of children as providers. Some tribal legislation contemplates underage people who work to support their family. The Tulalip do not allow minors (under fifteen years old) to fish without an adult, “unless he or she is the head of the household, or unless there is a showing of extreme hardship.”Footnote 125 These rights—along with the possibility of emancipation—are in part to allow adolescent parents to provide for their children.Footnote 126 In contrast, recent amendment to the ESA requires government approval for any work done by those under fourteen years oldFootnote 127 or anything other than “light work” for those aged fourteen to fifteen.
Conclusion
B.C. has established an employment framework that applies to Coast Salish peoples but is not reflective of Coast Salish worldviews. This legislation significantly impacts the ability of Employment Standards to respect Coast Salish worldviews. Nonetheless, the legislation does allow decision-makers to exercise some discretion. This discretion can be exercised in ways that are—or are not—relatively harmonious with Coast Salish worldviews. The Coast Salish legislation that does exist—largely in the American context—shows both consistency and difference among communities. There are differences in how resources are allocated and the weight given to sovereignty and veterans’ rights. Similarities include a view that employment is best understood as a means to end discrimination and increase social welfare, as opposed to being a good in and of itself.
To the extent that the approach in this study is useful, it is very likely that similar analysis could be done with almost any Indigenous group, in almost any Canadian jurisdiction, on a variety of issues. It would be helpful for different administrative agencies to consider places in which decision-makers may use discretion in ways that are respectful to the communities that are impacted. This approach requires that administrative agencies be willing to exercise their discretion in ways that are unusual, and even inconsistent with the way in which they typically exercise their discretion. This does not mean that Indigenous worldviews will win every time,Footnote 128 but real engagement is required. The sort of approach in Grewal, with extremely limited analysis of the role of aawat, should be avoided. Of course, it would be more helpful for legislators to consider what sorts of amendments may be helpful in furthering reconciliation. Where it exists, tribal legislation can offer some insight into these principles and worldviews, and should receive greater attention from decision-makers and legislators. Similarly, Law Reform and similar institutes should consider this sort of approach in their work. A recent report on the ESA contained only a single reference to Indigenous people. This reference was the result of consultation, not with an Indigenous group, but with a public sector union.Footnote 129 More can be done.
Whether tribal legislation should continue to evolve—and whether more Indigenous communities in B.C. should implement employment legislation—is a question for each community. Of course, these decisions are not made in a vacuum. The development of employment legislation may not be a priority and reconciliation requires that, when the legal system considers the pressing needs of Indigenous governments, it must do so from their perspectives.Footnote 130 However, it can be said that there are benefits to expressing community values through legislation and that there is a role for administrative decision-makers to consider this legislation when considering how to use their discretion.
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