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Commentary on Changes to Canada Labour Code


Commentary

Introduction


On September 1, 2019, several changes to the Canada Labour Code (the “Code”) came into effect. One particular change includes leave for “traditional Aboriginal practices” (Source). Others have provided comments on the changes and the practical challenges facing some Indigenous people or communities. In this post, I highlight my concerns especially as it pertains to the overly prescriptive approach to the changes and what implications they may have for Indigenous employees, namely Indigenous women in the federal workspace.


Overview of Traditional Aboriginal Practices Provisions


The changes outline that an employee who is an Aboriginal person, meaning Indian, Inuit or Métis (the “Employee”), and who completed three months of continuous employment with an employer (captured by the Code) is entitled to take an absence of employment. The leave may be up to five days in every calendar year for traditional Aboriginal practices. Presently, such practices include hunting, fishing, harvesting and any practice prescribed by regulation (to be determined). The employer may request documentation that shows the Employee is Aboriginal, “only if it is reasonably practicable” to obtain and provide same.


Changes Adopt Stereotypical Assumptions About Traditional Aboriginal Practices

The changes to the Code outline that the Employee can take such leave to engage in certain traditional Aboriginal practices that include hunting, fishing, harvesting and any practice prescribed by regulated (to be determined). The changes presume that hunting, fishing and harvesting, along with those potentially prescribed by law, are considered traditional without defining traditional. Such changes force Indigenous peoples to be stuck in a certain place and time; in other words, Indigenous people are only viewed as hunters and gatherers through the legislation. A textbook example of what or who is considered truly traditional and more importantly, who is Indigenous, and ultimately, a textbook example of stereotyping of a particular group.


Changes Likely Discriminate Against Indigenous Women

While it is understood that Indigenous women also provide for their communities through traditional practices like hunting and fishing, discussions on the role of men in these practices seem to dominate. I frequently lecture on Indigenous rights and I consistently raise the point that Indigenous women’s roles are often erased in these practices or more appropriately, they are relegated to Indigenous culture as “life givers”. As a result, other sorts of traditional practices (namely, ceremonies that do not involve such practices outlined in the Code) could be viewed as not traditional, and thus, not captured by the changes. The changes in the Code will likely lead to a discriminatory practice in prohibiting Indigenous people from accessing other sorts of practices.


Changes Prescribe Arbitrary Timeline For Traditional Practices

The changes provides that the Employee may have up to five days in every calendar year to engage in the prescriptive Aboriginal traditional practices. This is a problem because many practices or ceremonies attached to such practices involve a longer timeline. For example, a community may engage in a practice that lasts a month with each community member or family playing a particular role. However, these practices are not limited to hunting, fishing or harvesting, but these practices do include hunting, fishing or harvesting. Prescribing such timelines to these practices is likely discriminatory.

Conclusion

While a good start, the idea that traditional Aboriginal practices may be prescribed by legislation smells and looks like stereotyping through legislation. These changes may also be viewed as limiting who is Indigenous and who is traditional. Such practices have outcasted other genders, namely 2-spirit, non-binary folks and women/girls, from communities, which the recent the National Inquiry into missing and murdered Indigenous women, girls and two-spirit (and other genders) concluded is not helpful.


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