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.