Internal mechanisms ‘are the preferable procedure’: Indigenous Services Canada

CBC Indigenous: The Canadian government says Indigenous staff have no right to sue over alleged racial discrimination, chronic toxicity and systemic bullying, harassment and intimidation at a federal on-reserve oil and gas agency in Alberta.

Two Blackfoot women have launched a proposed class-action lawsuit against Indian Oil and Gas Canada (IOGC) on behalf of all Indigenous former employees and contractors at the agency, located in Tsuut’ina Nation west of Calgary. 

The group recently filed affidavits seeking Federal Court certification for their case, alleging sexual improprieties, unchecked abuses of power and widespread fear of reprisal have led to stalled careers, diminished self-worth and serious harm.

However, in a statement to CBC News, Indigenous Services Canada (ISC) says it would be “premature in the process” to respond to those allegations, as the government maintains federal labour law bars employees from raising them in court at all.

“If an employee has grievance rights, those rights replace the right to take legal action,” ISC spokesperson Jennifer Cooper said in a Nov. 3 statement. “Internal recourse mechanisms are the preferable procedure to resolve workplace grievances fairly.”

IOGC is a special operating agency within ISC that employs roughly 85 people who oversee fossil fuel extraction in First Nations communities.

After the affidavits were filed, federal lawyers wrote to the court saying Canada plans to “file a motion to strike based on jurisdictional grounds.” When asked to elaborate, ISC said employees can file grievances about harassment, discrimination and other issues under the Federal Public Sector Labour Relations Act, which states in Section 236 that this internal right “is in lieu of” the right to legal action.

Argument predicted

In an interview last month, Letitia Wells, a lead plaintiff in the case who worked at IOGC between 2015 and 2020, said she expected the government would invoke legal technicalities rather than address the allegations head on. “The government is going to reach deep into their tools to start discrediting us,” she said. “That is just a systemic process they have put in place.”

The group’s lawyer, Casey Churko of Napoli Shkolnik Canada, was also anticipating the argument, based on what he called the government’s past playbook in similar cases, which he says has achieved mixed results.

• Indigenous staff press ahead with discrimination lawsuit against on-reserve oil and gas agency
• Few federal employees taking part in Indigenous training sessions from public service school
• Racism festering at federal First Nations agency, Calgary lawsuit claims

He cited the ongoing Greenwood class action against the RCMP, a case where he said Canada’s motion was dismissed because the government’s preferred internal process was deemed ineffective.

“And we say that is the case here regarding Indian Oil and Gas,” Churko said. “The internal procedures at IOGC not only failed to provide effective redress, they were incapable of doing so as structured.”

Certification is a preliminary test that asks a judge to confirm the case is suitable to proceed as a class action. The allegations are unproven.

Review found management ‘enable racism’

Wells and the other lead plaintiff ,Yvette Zentner, also rely on a third-party review done in 2021by Winnipeg-based consulting firm TLS Enterprises, which was first reported by APTN News. After interviewing 55 current and former employees, the firm says it found evidence of favouritism, racism, a perception of a toxic work environment and a “great divide” pitting employees against each other.

In what the firm called a staggering example of racism, an employee was asked by a consultant whether he knew any Indigenous people. According to the report, the employee replied: “Only the ones I step over in the street.” 

As much as they want to say that they have a zero per cent tolerance for bullying, that is not the case. It depends on what colour you are.- Letitia Wells, lead plaintiff

ISC says it and IOGC have developed an action plan to address the review’s 78 recommendations, and taken a number of actions, including hiring a second elder and creating an Indigenous-only human resources adviser role.

“The allegations we have heard are heartbreaking,” Cooper wrote. “Any form of racism, harassment or discrimination is entirely unacceptable. We take all allegations very seriously and are committed to making serious reforms to prevent any abuses from happening going forward.”

But for Wells, the bureaucracy’s promises of zero tolerance for misconduct ring hollow, especially as the consulting firm concluded: “Management themselves enable racism, making safety and trust major issues” at IOGC. “As much as they want to say that they have a zero per cent tolerance for bullying, that is not the case,” Wells said. “It depends on what colour you are.”

The government says all IOGC employees are able to contact the harassment and violence unit, employee assistance services, or Health Canada to file a notice of occurrence, or file a complaint with the Canadian Human Rights Commission to have their concerns addressed.

ABOUT THE AUTHOR

Brett Forester, Reporter

Brett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.