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.
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MAP posted-by: Jay Bergstrom