Pubdate: Thu, 06 Mar 2008 Source: Cape Breton Post (CN NS) Copyright: 2008 Cape Breton Post Contact: http://www.capebretonpost.com/ Details: http://www.mapinc.org/media/777 Bookmark: http://www.mapinc.org/testing.htm (Drug Testing) CAPTAIN TACKS AGAINST THE WIND If these were the days of sail, John Bonham Paul would be a good man to have at the helm. This fishing captain has no fear of tacking against the wind as he has done by raising objection to the breadth of Membertou's new policy against workplace alcohol and drugs. Advocacy on behalf of individual rights in the face of efforts to confront substance abuse is not a popular cause at any time, and particularly now. Native and non-native communities alike perceive the problem to be bad and getting worse, inflicting a terrible toll on young people and whole families, and contributing to crime. Any questions about the proper balance between individual rights and the community's right to protect itself tend to be swept aside in the current provincewide crackdown against the drug trade, aided by new civil law which provides additional remedies for cleaning up neighbourhoods. Similarly, efforts by First Nations leaders to ensure drug-free workplaces appear to have community support despite some protest that the measures are too sweeping. Paul, son of Membertou First Nation Chief Terry Paul, concedes the new mandatory testing for drugs and alcohol may be justified for safety-sensitive jobs such as his but he argues that the net is too broad, scooping up even his 15-year-old niece who works at a concession stand. The policy covers some 285 employees in jobs as diverse as home care, kitchen, public works, and education. Band executive director Trevor Bernard insists that the policy is "entirely, 100 per cent rooted in safety" and is not an attempt to intrude on the private lives of band members. Be that as it may, it's understandable if Paul, and indeed the public at large, sees the policy as a little bit more - as a collective statement against drug abuse at least, if not an attempt at social engineering towards a more drug-free community. And to that, many would say: So what if it is a lifestyle policy in addition to being a safety precaution? Good on them. First Nations tradition upholds the importance of collective interest where individual rights so often seem to prevail in the larger society, so why shouldn't they enlist their unique communal values in the struggle for self-preservation? This is a point of contention, however, both within First Nations and in their relationship with the larger society, represented by Parliament. Critics of drug-testing regimes such as Membertou's, and the similar Fit to Work program that stirred protest from fishers in Eskasoni some three years ago, cite human rights policies and case law, especially at the federal level, which tend to frown upon pre-employment and random drug testing except for demonstrably safety-sensitive jobs such as machinery operation. The problem is that actions under the authority of the Indian Act remain exempt from the Canadian Human Rights Act despite repeated attempts in Parliament to close the loophole. Membertou's drug policy in fact respects the principle evolved in human rights law that an employee who runs afoul of a zero-tolerance workplace policy should be treated as having a disability and be given an opportunity to go clean. Whether the scope of the policy would pass federal scrutiny is another matter and for now there is no legal requirement that it must. If and when such a test comes, Membertou will have a some measure of what the policy has accomplished and how well it has been accepted. - --- MAP posted-by: Jay Bergstrom