Harnessing the Possibilities of Minority Unionism in Canada

Dunmore, Substantial Interference, and the Imposition of Positive Obligation

In Dunmore (2001), the Court affirmed Dickson’s approach—for the most part. At issue in Dunmore was the constitutionality of an Act that would exclude farm workers in Ontario from access to the Ontario Labour Relations Act (OLRA). ⁶ Dunmore marked new terrain in that it determined that, sometimes, the government has a positive obligation to render substantive the freedom of association guaranteed by the Charter. ⁷ In other words, the absence of legislation could constitute a Charter violation. (As in the case with the Alberta police officers, Ontario’s farm workers were not legally precluded from forming “associations,” but their vulnerability made doing so almost impossible.) This decision would have the effect of bringing private employers (in the agricultural sector) within the orbit of the Charter, in a roundabout way, by requiring the Ontario government to enact a positive framework through which farm workers could associate as workers. The decision represented an improved view of Charter obligations than was the case in Dolphin Delivery as well as a substantial departure from previous Charter jurisprudence.

Dunmore did not, however, contemplate extending to farm workers the same statutory provisions already available to other workers in Ontario. ⁸ Neither did it contemplate extending a positive legal framework of some form or other to all workers. Dunmore only contemplated creating some positive legal framework in cases where there has been a “substantial interference” in the exercise of the freedom to associate. This interference would likely occur in instances where the vulnerability of the workers was pronounced, such as with migrant farm workers (at para. 41). ⁹

Furthermore, the Court in Dunmore vindicated Dickson’s assertion that the protection of some associational activity is necessary to freedom of association, acknowledging that “certain collective activities must be recognized if the freedom to form and maintain an association is to have any meaning” (at para. 17). In the labor context, the Supreme Court of Canada (SCC) accepted among such activities “making collective representations to an employer, adopting a majority political platform, [and] federating with other unions” (at para. 17). Importantly though, the Court stopped short of upholding Dickson’s conclusion for it failed to protect any formulation of collective bargaining. ¹⁰ What’s more, the Court failed to elaborate a principled distinction among activities in order to convey why collective bargaining did not incur the protection of 2(d) while other—arguably lesser—activities did. Implicit in this omission is a marked distinction between “making collective representations” (which was protected) and “collective bargaining” (which was not protected at this time). There thus emerged an ambiguous means/end connection that has not since been well rectified even in light of Health Services—which constitutionalized a kind of protection for collective bargaining. This ambiguity would be echoed ever after, most recently at the Ontario Court of Appeal (OCA) in Association of Justice Counsel v. Canada (2012) where government imposition of wages was not seen as a violation of collective bargaining because the workers had been able to plead their case (i.e., make representations) in good faith.

Health Services, Collective Bargaining as Freedom of Association, and the Means/End Conundrum

The big boost for labor seemingly came in 2007 with Health Services, which held that sections of the Government of British Columbia’s Health and Social Services Delivery Improvement Act were unconstitutional because they “invalidated important provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a number of specific issues” (at para. 11—my emphasis).

The limits on concerted activity in Dunmore are clearly relevant here for although Dunmore explicitly rejected the notion that collective bargaining was to be offered any constitutional protection, it provided neither a good test nor principles to conclude which union activities deserve protection as corollary to the right to associate and which do not. Health Services revealed that the Court no longer felt its precedents in this regard could withstand critical scrutiny and concluded that collective bargaining “emerges as the most significant collective activity through which freedom of association is expressed in the labor context” and therefore 2(d) must include a “procedural right to bargain collectively” (at para. 66). Furthermore, the right could not be merely formal but had to be meaningful. What did the Court mean, however, when it established that there was a procedural right to meaningful collective bargaining? Here, the means/end conundrum reasserts itself. One of the most noteworthy aspects of Health Services is that it is, in the words of lawyer Greg McGinnis, “carelessly crafted” and frequently conflates distinct conceptual categories, for instance, “negotiation” and “consultation” (2011). This is nowhere more obvious than in the Court’s failed attempt to parse a distinction between means and ends in such a way as to render collective bargaining meaningful by understanding it to be a right to more than “just the act of making representations” while imposing upon the employer only the duties to “hear,” “consult,” “discuss,” and (at perhaps its most robust) “explain and exchange their positions” (Health Services at para. 101). The full magnitude of this failure only became clear in Fraser.

Fraser and the Retreat from Health Services

Fraser is intimately connected to the issue at hand in Dunmore. Dunmore was about the necessity of governmental action in order to realize the possibilities of farm workers’ associational rights. The Ontario government responded to Dunmore with the Agricultural Employees Protection Act, a framework that applied only to farm workers and which did not include any provisions for collective bargaining. In light of Health Services, the OCA concluded that the Agricultural Employees Protection Act was unconstitutional because it lacked provisions for majoritarianism and exclusivity, statutory requirements to bargain in good faith (“collective bargaining”) and any legislated dispute mechanism, all of which the OCA held were minimally necessary to make the procedural rights elucidated in Health Services meaningful. The SCC disagreed, and in Fraser it overturned the Court of Appeal leading many (myself included) to conclude that the SCC had retreated from its decision in Health Services. ¹¹ Of course, not everyone agreed. At least one observer has opined that Fraser flowed “comfortably from the principles outlined in Health Services” and that those who were surprised by the decision either refused to believe the Court’s “cautionary words” or had let their enthusiasm for an apparent right to collectively bargain “obscure what the Court actually wrote” (McGinnis 2011). The “cautionary words” refer to the Court’s qualification, in Health Services, that the right to bargain collectively does not include any particular bargaining method, nor does it protect what has come to be known as the Wagner Model. The Supreme Court overturned the Court of Appeal on the basis that its judgment amounted to the imposition of a particular bargaining model and that the criteria the OCA had elaborated (specifically, majoritarianism and exclusivity) were not necessary for meaningful collective bargaining. The Court “read in” a good faith requirement. ¹²

Criticism of Fraser has been well rehearsed. In particular, I have previously argued that the SCC could have upheld the OCA’s conclusion even if it did so for dissenting reasons (Braley 2011). So, for instance, the SCC could have maintained that majoritarianism—and its corollary exclusivity—approximated the Wagner Model too closely on the basis that these requirements are not the norm outside of Wagner Model jurisdictions—notably the United States and Canada—thereby singling out these requirements as characteristic of a particular “type” by their lack of common usage. Yet the Court might still have required some means of determining the bargaining agent. ¹³ Be that as it may, the refusal to recognize majoritarianism and exclusivity—at least for the purposes of collective bargaining—is arguably compatible with International Labour Organization (ILO) principles. One of the main pillars upon which the decision in Health Services rested was that international law, most notably as elucidated by the ILO, included collective bargaining as a corollary to freedom of association. Therefore, the SCC accepts as part of international law the right to collectively bargain. In other words, even though the SCC did not tie its refusal to recognize majoritarianism and exclusivity to what the ILO required, but only to the fact that it would constitutionalize the Wagner Model of collective bargaining, in the end the decision might have been consistent with the ILO position nonetheless, and the ILO’s position seems consistent with minority unionism.

Roy Adams has consistently argued that the Wagner Model itself is a violation of international labor law because within the Wagner Model the basic right to bargain and to strike is only obtained when a majority of workers agrees to union certification (2008). And as is well known, basic rights cannot be constrained by the wishes of the majority; they are rights precisely because they are obtained in the absence of majoritarian approval. Now that the Court has determined that majoritarianism does not stand in the way of basic collective bargaining rights, Adams’ claim is more difficult to defend. Presently, every jurisdiction in Canada requires majoritarian exclusivity in order to qualify for the bundle of statutory rights that are attached to union certification. Adams, then, is partially right. To the extent that the rights that are attached to union certification are indeed recognized by international law as rights that workers have as individuals, then the Wagner Model is a violation of the ILO where those particular rights are concerned. It is possible, of course, for various labor relations acts to include provisions that are not encompassed within the overarching frame of the ILO’s elucidation of workers’ rights. The majoritarian criterion to access them would not, then, violate international law. This issue, however, is not clear cut. For example, the debate over the right to strike and whether or not it is statute based or part of international law, exemplifies the tensions inherent here. If it is part of international law (and there is good reason to believe that it is), then the majoritarian requirement would be a violation where this right was concerned. ¹⁴ However, in rejecting majoritarian exclusivity as a basis for collective bargaining, the Court might well have signaled a whole new era of Canadian labor relations.

Minority Unionism

By expressly not requiring majoritarianism and exclusivity in order for collective bargaining rights to “kick in,” the Supreme Court opened the door to the constitutional protection of minority unionism, that is, an entity legally entitled to represent less than a majority of a given bargaining unit and one that is not entitled to do so exclusively. ¹⁵ From this perspective, David Doorey (2013) has proposed a model of what he calls “graduated freedom of association” consistent with the ILO and implementable without majoritarian exclusivity. On this model, a “thinner” bundle of rights would accrue to individuals who wish to exercise some collective voice at work but who are not presently protected against reprisals for doing so. Whatever one thinks of minority unionism, the SCC has, perhaps unwittingly, stumbled onto the “latest thing” in the union renewal movement. Much scholarly work has lately addressed the perceived shortcomings in the Wagner Model and looked to minority unionism as an alternative. ¹⁶ This is particularly so in light of loosened restrictions on employer speech and the potential time lapse between applying for certification and holding a secret-ballot certification vote. These problems are particularly pronounced in many U.S. states, but concerns have arisen that they may infiltrate Canadian legislation as well (SFL 2012). In essence, minority unionism is offered as a potential solution to surmount these obstacles.

Arguably, some proponents are overly optimistic about the possibility that minority unionism holds, claiming that “it would reduce the incentive for the employer to hire consultants to keep the union out” (Fisk and Tashlitsky 2011, 11). It might reduce the incentive, but this is unclear; if minority unionism can be harnessed as the gateway to majority status and it virtually guarantees certification, both of which many of its proponents contend, employers would seem to have an even greater incentive to fight minority unions. However, employers might also encounter greater difficulty since the majority bar does not need to be reached for the union(s) to establish representational rights. Much of this is theoretical at this point. It is true that in much of the world minority unionism is the norm. However, it is also the case that most such places have very different labor relations and political environments than those found in Canada and the United States. For instance, the work council system in Germany legally establishes a form of collective representation in virtually all workplaces and is distinct from (although there is a strong overlap with) unions. In much of Europe, bargaining is highly centralized and is done at the industry level rather than the workplace level that is the norm in North America. ¹⁷ Such differences are relevant to the potential for the success of minority unionism. One thing does seem fair to say, however, and that is that even minority collective representation is better than no collective representation. But minority unions are only beneficial to labor if they do not, on the whole, hamper the ability of workers to achieve the stronger bargaining position that is presumed to exist in majority unions.

Opponents are concerned, appropriately, that minority unionism could lead to even weaker bargaining relationships than presently exist. And of course if minority unions logically precluded majority unions then there would not seem to be any pro-labor argument for minority unions. It is not possible here to analyze all the ways in which minority unionism could alter, for good or ill, the present structures that lead to majority unions; however, two things bear mentioning. First, it is the hope among most proponents of minority unionism that minority unions will lead to majority unions because workers will see some value in them, even if that value is less than might exist in a majority union. In the second place, whatever majority unions do result will be stronger because only those who genuinely want to be members will be. In other words, a union that once was certified because it enjoyed majority support—whether 51 or 91 percent—but which now is supported only by a strong minority—say 35 percent and does not get decertified because no one has the time or inclination to bother going through that process—is not obviously preferable to a minority union that enjoys support from 49 percent of the workforce but 100 percent of its members.

The implicit view that the Charter protects rights that all Canadians have in view of their status as Canadians gives rise to the possibility of extending Charter protection by invoking a positive duty on government to pen legislation forbidding private interference with these rights, as was the case in Dunmore, under certain narrowly construed circumstances. The right to collective bargaining, then, exists even without the standard statutory formulations found within most Canadian labor relations regimes—including majoritarianism and exclusivity. (It would likely prove impossible, however, to safeguard this right without statutory protection of it, more about which below.) If this is held to be the case, then minority bargaining might over time reduce the so-called representation gap—the gap between those who want collective voice at work and those who can get it—by increasing the incidence of collective bargaining. At the very least, it would arguably approach the more robust protection presently offered to non-unionized employees found within section 7 of the National Labor Relations Act in the United States.

Section 7 protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection.” What constitutes “concerted activity” and “mutual aid or protection” is, of course, debatable and has, at various times, been given more or less generous readings. However, on its face and in actual practice it has protected workers against dismissal for activities for which they would be permissibly dismissed in Canada (Corbett 2002). Therefore, Americans have benefitted from concerted activity protection that Canadians do not legally possess. This is particularly important in the United States, in light of recent strikes by non-unionized fast-food workers in a number of major U.S. cities. According to lawyer Neil Goldsmith, “although the workers are not currently unionized, their strike still may be protected under federal labor law. Generally, this type of activity qualifies as ‘protected, concerted activity’ under the National Labor Relations Act” (2013).

In Canada, baristas in Nova Scotia have been the latest fast-food workers to attempt to unionize, with some commentary suggesting that there is reason to think this trend will accelerate: “The drive to unionize cafe employees could be a sign of the times … as young people are squeezed by the economic crisis, temporary cafe jobs have become more permanent” (Besant 2013). The situation is distinguishable somewhat from that in the United States in that the baristas sought (and in some cases won) majority approval and hence union certification rather than engaging in strike action. Notably, however, had they followed the path of their American counterparts, there would be no legal argument available to protect their jobs. With basic protection for minority unionism, at the very least collective demands for improved wages and better working conditions could not (legally) be met with dismissal. This, of course, is not to say that strike activity is inherently protected activity. Even unionized workers in Canada cannot “wildcat,” and a non-majoritarian principle for precipitating collective bargaining is not the same thing as protection for striking as an example of “concerted activity.” In other words, Fraser opens the door to approaching the protection offered by National Labor Relations Act’s (NLRA’s) section 7, not replicating it. But it is arguably a step in the right direction.

At present, within most Canadian statutory labor relations regimes, workers must be organized into a union in order to avoid the reprisals associated with trying to collectively bargain. For instance, the OLRA protects all “persons” from reprisals in view of their attempt to associate into a bona fide trade union but does not protect them from reprisals for engaging in associational activity not connected to the formation of a trade union. Suppose, for instance, that after many months of being fed up with bad scheduling a group of (non-union) McDonald’s employees informally appoint two of their colleagues to go and speak to the manager on their behalf and attempt to negotiate a better scheduling arrangement. Nothing under statute or common law in Ontario precludes them from being fired on the spot (subject to appropriate notice or pay in lieu), even if they merely asked politely and made no allusion to labor action. Compare this to the protection that would have been offered these same workers if they had had an informal meeting with a certified trade union. ¹⁸ In the latter case, statute protects them against employer reprisal. Of course employers do manage to violate these sorts of statutes, but that is a separate problem. Drawing upon the comparison to the NLRA’s section 7, the workers’ American counterparts who informally approached management about their scheduling woes would have an argument under section 7 that this is “concerted activity” for “mutual aid or protection” and that firing them constitutes an unfair labor practice (Corbett 2002).

In light of the decision in Fraser, a similar state of affairs could be required under the Charter. While private entities are not covered by Charter protection, if it became clear that McDonald’s, in our scenario, were firing people who were attempting to negotiate without certified trade union credentials, the Court could determine that employees now needed protection against reprisals for exercising their Charter rights in the way that Dunmore elaborated as much for farm workers. In fact, arguably there is a stronger case to be made in the McDonald’s situation. In Dunmore, the fact that no farm workers’ association existed, or had ever been known to exist, in Ontario (outside of a brief time when the New Democratic Party government extended to farm workers a labor relations regime very similar to the OLRA) counted as affirmation that the farm workers’ associational rights were being impeded. The mere absence of any workers’ union would seem to constitute a lesser standard of proof of “substantial interference” than, returning to our scenario, a worker contending that he/she was actually fired immediately following a meeting over scheduling. Surely, this would demonstrate that workers were insufficiently protected against employer reprisal and were thus vulnerable to “substantial interference” with their associational rights to collectively bargain.

Dunmore, then, unlocked the door by providing for positive obligation in the case of vulnerable workers, Health Services opened it by constitutionalizing collective bargaining, and for all its faults, Fraser could quite reasonably be harnessed to secure protection of minority unionism that, at the very least, could secure a level of protection for non-unionized workers that in some respects mirrors that which now exists under section 7 of the NLRA. I am not predicting that such a move is imminent in light of the present complement of the Supreme Court but rather that such a move is immanent in the Court’s reasoning thus far.

Organized Labor and Non-traditional Organizing

The likelihood of the above is somewhat hampered by a practical consideration. It would almost assuredly require the (organized) labor movement to bankroll any litigation to bring this to fruition, in other words, to fight to translate the constitutional right to bargain absent majoritarian exclusivity into a statutory right, as in Dunmore. To the extent that this would lead down the path of minority unionism, there is some reason to be skeptical about the labor movement’s willingness to do so since it has been disapproving of minority unions, largely because it views them as weakening the already delicate position of workers. However, examples of broader labor movement coalition building between certified trade unions (organized labor) and informal workers’ organizations already exist. For instance, the United Food and Commercial Workers (UFCW) has provided organizational infrastructure to OUR Walmart—a workers’ organization that wishes to improve the lot of Walmart workers but has so far resisted traditional unionization. A news release posted online by OUR Walmart and UFCW on April 24, 2013, has a disclaimer that reads as follows:

UFCW and OUR Walmart have the purpose of helping Walmart employees as individuals or groups in their dealings with Walmart over labor rights and standards and their efforts to have Walmart publicly commit to adhering to labor rights and standards. UFCW and OUR Walmart have no intent to have Walmart recognize or bargain with UFCW or OUR Walmart as the representative of Walmart employees.

In a similar vein, Unifor, the union created when the Canadian Autoworkers and the Communications, Energy and Paperworkers Union formally merged in September 2013, developed a series of reports and founding principles that include a strong acknowledgment that it will have to reinvigorate and innovate in order to meet the challenge of declining union density. The tone of these reports is that there are no proposals that are not worth exploring in its bid to reinvent the Canadian labor movement for the twenty-first century. Unifor purports to lead the way in this regard, and its constitution includes non-traditional membership categories, with a clear focus on providing institutional support to a category of membership entitled “community chapters.” This category is geared toward workers who are not members of bargaining units, such as freelance workers or the unemployed. Such members would join locals of the parent union through their own membership in affiliated “community chapters,” which appear to be non-union, community-based organizations that already exist that would affiliate to the union local. The by-laws of the individual local would specify what services the local would provide to such members and the reciprocal responsibilities to the union local that such members would incur (Unifor 2013).

There is, then, some reason to believe that the organized labor movement might come to see that defending minority unionism is a potential means of defending the labor movement more generally. Some unions are facing head-on the challenge that the present moment has thrown in their path. Emboldened by such moves as the Black Friday strike by thousands of Walmart workers in November 2012, non-unionized fast-food workers went on strike in New York and Chicago in April 2013 and in several U.S. cities in July and August 2013 to improve the working lives of those in the fast-food industry. Such initiatives were not created by the union movement per se, but some unions within the broader movement, including the UFCW and Service Employees International Union, have done well to support them, offering expertise, organizational infrastructure, and money.

Rectifying Statutory Inequality

There is a further problem that could be rectified by pursuing the potential that minority unionism has opened up: it can help rectify the present inequalities that exist among workers (and groups of workers) in Canada, in that similarly positioned workers are not all offered the same statutory protection. At present, different workers are protected by various statutory schemes. For instance, non-unionized workers have no (statutory) protection to exercise any rights collectively other than the right to associate into a certified trade union. This is the case even though many non-unionized workers, particularly those working in retail, exhibit vulnerability similar to that which prompted the Supreme Court to rule in favor of the farm workers in Dunmore (Coulter 2013). While the Court could have ruled that under the equality clause of the Charter (section 15), farm workers in Ontario required access to the same protective scheme available to other workers in Ontario, as has been persuasively argued by Brian Langille (2009, 31-36), the Court instead developed its “substantial interference” test with regard to section 2(d), which led to the Agricultural Employees Protection Act; a unique labor relations regime that is less robust than the OLRA. Presently, then, most (but not all) workers have access to statutory protection to organize, ¹⁹ but only workers unionized within the structure of the Wagner Model have statutory protection to collectively bargain even though collective bargaining is now a Charter right that is specifically divorced from its “Wagnerian” attributes.

Even if a scheme to develop positive legislation to protect the collective bargaining rights of all workers were successful, there is a piece missing that is required to make any of this tantamount to more than just protection against reprisals for “asking nicely” (even though protection against such reprisals is not something to sneeze at), and that is a mandated dispute resolution process. After all, even under the NLRA’s section 7 there is no onus on the employer to actually bargain with non-union employees. ²⁰ The slightly more robust reading of Fraser offered below, one that requires a dispute mechanism, could go a long way toward rectifying the unevenness in statutory protection among workers because, at the end of the day, non-unionized workers and workers who wish to unionize but who could not get majority support for a certified union would have roughly similar access to collective bargaining as presently exists under statute for traditional members of trade unions working under the auspices of the OLRA.

Dispute Resolution Process: Wagnerian or a Question of Natural Justice?

In 2012, the OCA ruled that in light of Fraser the right to collective bargaining did not require any dispute resolution mechanism (Association of Justice Counsel v. Canada 2012). This decision would not be quite so disheartening had leave to appeal to the Supreme Court not been denied. Because it was denied without reasons it remains open to speculation what about the judgment in the particular circumstances of the case the Supreme Court found to be proper. As noted above, the issue regarded the government’s imposition of wages. Is it possible that the SCC thought there had been a violation of collective bargaining rights but that it was reasonable in this instance owing, perhaps, to the government’s desire to get its “fiscal house in order”? (And would it matter?) We know, for instance, that the Supreme Court understands itself to be engaged in a specific balancing of rights. In Health Services, the Court wrote, “This case requires the Court to balance the need for the governments to deliver essential social services effectively with the need to recognize the Charter rights of employees affected by such legislation who were working for Health and Social Services employers” (at para. 3). ²¹

In the case before the OCA, wage restraint legislation was not considered to have violated a right to bargain collectively because the Court was satisfied that there had been “good faith” negotiations between the employer and union. There is a definite fear that, by simply demonstrating a willingness to enter into genuine discussion and to legitimately “hear” the other party, a rubric for how not to bargain is being created for employers. At the end of the day impasses are to be solved by power: whoever holds the ace card would win, and that is, by default, the employer. In other words, the employer does not need to have any intention of actually bargaining in good faith, the employer just needs to appear to: “What the Court misses in this recitation of the key elements of the duty to bargain in good faith is the fact that the parties can resort to dispute resolution measures once they reach impasses is what gives the duty to bargain in good faith its bite” (Fudge 2008, 45). For this reason, the Court got it wrong when it did not use this singular condition as the basis to uphold the OCA’s decision in Fraser. This is an integral function of meaningful collective bargaining; one that can give workers “the means to exert meaningful influence over the outcome of the process” (Health Services at para. 159). Moreover, I submit that there is nothing “Wagnerian” about it.

It is simply not the case that entrenching a resolution process is tantamount to entrenching the Wagner Model in the way that majoritarianism and exclusivity might be taken to be as I elucidated above. Requiring a dispute resolution process is not an about-face from the Court’s claim not to be constitutionalizing a particular bargaining model but is instead compatible with it. Dispute resolution, in the last instance by a neutral third party, is a founding principle of the liberal state. According to John Locke, the most important theorist on the liberal state, the state is called into existence to act as a neutral arbiter to mitigate the “inconveniences” of the state of nature. These are that in the state of nature everyone has the right to be his or her own judge, jury, and executioner. The problem is that people would naturally tend to judge their own cases and those of their friends more favorably than those of strangers and be incapable of reasoning dispassionately. According to the Lockean model, the civil state exists for the overriding purpose of providing such dispute resolution mechanisms (Locke 1966). To require some dispute resolution mechanism does not owe its existence to the Wagner Model, then; rather, it owes its incarnation in the Wagner Model to the very principles of natural justice.

When it comes to dispute resolution mechanisms in labor relations, there are really only two: the strike/lockout option or binding arbitration. Historically, strike/lockout has been the default option regarding bargaining impasses, and binding arbitration has been the recourse in the absence of the availability of strike/lockout (and occasionally as a substitute). My argument here has nothing to do with which mechanism is preferable or even who ought to choose which should be available. And much might still depend upon the final outcome of the right to strike case mentioned above. If striking, for instance, is part and parcel of international law, it becomes less clear when binding arbitration can be substituted for it. My only point is that it is wrong to say, as the courts have, that requiring a dispute resolution mechanism is per se impermissible (Saskatchewan v. Saskatchewan Federation of Labour 2013). At the very least, neutral, third-party dispute resolution is best thought of as a process right. It does not guarantee substantive outcomes and cannot be thought of constitutionalizing any particular model. Rather, it is the rational adjunct to any meaningful process in a “nation of laws, not men.”