Abstract

Until recently, the courts have been used as the main forum to resolve disputes. However, public dissatisfaction with an adversarial system, government recognition of experts other than judges, and an increased awareness of the impact of discretion on the administration of justice, especially how cultural differences affect the exercise of discretion, have all led to increased popularity and need for alternative dispute resolution processes (Bell, 2004:254).

In relation to disputes involving Aboriginal peoples, there appear to be three emerging modes of alternative resolution processes. One mode involves Western-based paradigms such as negotiation, conciliation, arbitration and mediation. A second mode involves Indigenous paradigms, which call for the rejuvenation and reclamation of ways in which disputes may be resolved according to the culture and custom of the Indigenous party involved. Due to the diversity and distinctiveness of Aboriginal peoples across the continent, Indigenous methods of dispute resolution are not easily summarized into categories. Rather, they are reflective of the Indigenous teachings from which they come and therefore may be different from one Aboriginal nation to another. A third mode is a combination of the two paradigms.

All three modes, however, share similar challenges. Whether using an Indigenous paradigm, a Western one or a combination of the two, issues of power, cultural differences, language barriers and the effects and impacts of colonialism need to be addressed. This paper examines several of these common challenges. It examines differing worldviews in relation to dispute settlement and conceptualizes the Indigenous paradigms and Western paradigms based upon these worldview differences. By so doing, this paper will not only add to the literature that distinguishes between Indigenous paradigms of dispute resolution and the "indigenization" of Western paradigms, it will also inform ADR theorists and practitioners. In particular, it will inform them of ways in which Indigenous and Western ADR paradigms may work cooperatively together while simultaneously protecting and respecting worldview and cultural differences.

Introduction

Within a variety of different Canadian contexts, alternative dispute resolution (ADR) processes are gaining momentum and popularity. While the United States is attributed with starting the ADR movement in the 1970s (Kahane, 2004:33;Pirie, 2004:335), over the past fifteen years in Canada there has been such an increased interest and use of ADR processes that some suggest it no longer be referred to as "alternative" (Bell, 2004:254). According to Bell (2004), this increase in popularity is due to public dissatisfaction with the adversarial court system, a shift by government to have expert individuals other than judges resolve disputes, and increased awareness of the impact of discretion on the administration of justice especially in terms of how cultural differences affect this exercise of discretion (254).

ADR mechanisms within the Western paradigm of conflict resolution are garnering much interest and include such means as negotiation, mediation, arbitration and conciliation. In addition to the plethora of "alternative" modes of resolution are the Indigenous paradigms, which call for the rejuvenation and use of Indigenous methods of resolving disputes. Although both paradigms are currently used to address similar disputes, they are often fundamentally different from one another. They are grounded within very different worldviews and often ask very different types of questions. This does not mean that one paradigm may not at times draw from the other or that they do not share similar challenges. It does, however, require respect for differing worldviews and an acknowledgement of the ways in which colonialism impacts the development, implementation and interaction both within and between the two paradigms.

The purpose of this paper is to examine several common challenges applicable to both Aboriginal and non-Aboriginal ADR processes as they pertain to disputes involving Aboriginal peoples, to examine the differing worldviews in relation to conflict resolution, and finally to conceptualize the two different paradigms based upon these worldview differences. By so doing, this paper will not only add to the literature that distinguishes between Indigenous paradigms of dispute resolution and the "indigenization" of the Western paradigm, but it will also inform ADR theorists and practitioners, whether Aboriginal or non-Aboriginal, of ways in which Indigenous and Western ADR paradigms may work cooperatively together to ensure the full realization of ADR while simultaneously protecting and respecting worldview and cultural differences.

The major issues outlined in this paper are drawn mostly from the text Intercultural Dispute Resolution in Aboriginal Contexts edited by Catherine Bell and David Kahane (2004). To complement this text, other sources were drawn upon including Continuing Poundmaker & Riel’s Quest compiled by Richard Gosse, James Youngblood Henderson and Roger Carter (1994), Reclaiming Indigenous Voice and Vision edited by Marie Battiste (2000) and Justice as Healing Indigenous Ways: Writings on Community Peacemaking and Restorative Justice from the Native Law Centre edited by Wanda D. McCaslin (2005). Together, these four texts provide a thorough analysis and critique of the main issues and concerns when dealing with disputes in Aboriginal contexts.

The text edited by Bell and Kahane (2004) provides an analysis and in some cases a critique of the Western forms of alternative dispute resolution processes in relation to Aboriginal disputes. Behrendt’s chapter looks at ways in which certain values of importance to Euro-Canadian ADR mechanisms may in fact go against Indigenous values. Bell (2004) also examines ways in which the Métis, for example, are using Western mechanisms such as mediation, but are doing so based upon Cree teachings and spirituality through the Healing Mediation Process being designed by the Métis Settlements Appeal Tribunal (MSAT). Bell (2004) provides a thorough overview of Indigenous methods used within non-Indigenous frameworks, and highlights key areas of concern and challenges in doing so. Her section on the MSAT along with Ghostkeeper’s chapter on Weche teachings demonstrate ways in which Tribunals may be used to ensure respect of both worldviews (see also Te Whiti Love’s chapter on the Waitangi Tribunal in New Zealand).

The text also examines the use of formal processes such as courts (e.g. Yazzie’s chapter on the Navajo courts and Dewhurst’s critique of the Tsuu T’ina Courts) along with insight into a few of the Indigenous methods currently available within Aboriginal communities. Yazzie’s chapter on Hozhooji Naat’aanii (Navajo Peacekeepers), Ghostkeeper’s chapter on the use of Aboriginal Wisdom, the development of The Mediation Healing Circle by the MSAT and Napoleon’s chapter which explores several challenges faced by the Gitxsan in relation to dispute resolution, all touch on methods that are based upon Indigenous values and worldviews.

Overall, the text examines several issues regarding dispute resolution within Aboriginal contexts. By posing both theoretical and practical questions, the text is a means by which colonial relations may be deconstructed. This analysis is helpful in shedding light on several colonial assumptions that often feed, and in many instances impede, the proper resolution of disputes between two often diametrically opposed worldviews. Therefore, the text is like a metaphorical pit stop, a call to halt the ADR train in order to examine more thoroughly the discourse, especially with respect to its ability to address conflicts and disputes involving Aboriginal people, communities and/or issues.

While the text focuses primarily upon intercultural disputes, the themes and challenges discussed in this paper highlight issues that may be equally relevant to intracultural disputes.¹ The reasons for this become apparent when looking at issues of "internal colonialism" and the adopting and importing of certain Western ideologies and structures by Aboriginal communities.²

1.The term “intracultural disputes” is used in this paper to refer to a dispute within an Aboriginal community and/or nation. However, if the dispute is between two different Aboriginal nations then it would be an intercultural dispute, not an intracultural dispute, as there are distinct and important cultural differences between the Aboriginal peoples across Canada. As well the term intercultural is also used when speaking of disputes between Aboriginal and non-Aboriginal parties.
2.This is an interesting and in many ways deleterious effect of oppression and colonialism. For further discussion, see Henderson (2000) and Laenui (2000).