06 Mar

ADR in the Aboriginal Context

By Robert Neron, C.Arb, Q.Med

ADR encompasses mechanisms used in resolving disputes outside of adversarial litigation. Unlike the western-based dispute resolution system that bases its judgment on the evidence adduced, aboriginal ADR seeks to restore collective harmony between both parties in a case. Regardless of their differences, significant value rests in resolving disputes with an indigenous approach that would best suit both parties involved, to ensure that they are both satisfied with the outcome of the judgment. Therefore, the application of aboriginal ADR process to legal disputes would be a useful tool for dispute resolution and improvement of how ADR is conducted.

ADR has become a widely recognized mechanism to settle disputes, but it is not perfect and does not apply to all situations. As such, lessons can be learned from ADR processes used in aboriginal communities as a way to make the process more effective.

Mechanisms to resolve disputes outside of adversarial litigation have been a longstanding practice among aboriginal communities for hundreds and, in some cases, thousands of years.

In our view, examining and incorporating aboriginal ADR processes not only provide an opportunity to improve how ADR is conducted, but it also offers a means to a more culturally sensitive alternative than using the formal judicial system to resolve disputes from an aboriginal approach.

A recent essay authored by Don Couturier of Queen’s University, titled Walking Together: Indigenous ADR in Land and Resource Disputes,[1] offers a compelling case as to why the legal landscape in Canada provides fertile ground for applying ADR models that incorporate both indigenous and Western approaches.

The author not only makes a compelling case for an aboriginal ADR’s role in resolving land and resource disputes, but he also notes that jurisprudence from the formal judicial system has long recognized that indigenous and nonindigenous legal principles are not mutually exclusive and can be used to complement each other.

Therefore, without legal barriers for applying aboriginal models of ADR to legal disputes, we have a useful tool in resolving disputes between indigenous and nonindigenous parties.

Defining Aboriginal ADR

If one is seeking to come up with a tidy, all-encompassing description of aboriginal ADR, he/she may be disappointed to discover that no such definition exists. In fact, due to the diversity and distinctiveness of the various aboriginal peoples living in Canada, there is a diversity of dispute resolution mechanisms that are contextual to the culture from which they come.

An article authored by Wenona Victor from Stó:lo Nation, titled Alternative Dispute Resolution (ADR) In Aboriginal Contexts: A Critical Review,[2] offers a comprehensive discussion of three themes that emerge regarding ADR in various aboriginal communities.

The author points to three modes of ADR processes used in aboriginal communities. The first applies to Western-based paradigms such as negotiation, conciliation, and arbitration. The second involves the exclusive use of indigenous paradigms of dispute resolution, and a third mode is a combination of the two paradigms. Although cultural nuances have created substantive and procedural differences in aboriginal ADR practises, one unifying theme can be taken from these varying approaches.

Based on our experience conducting ADR session within the various indigenous communities across Canada, many aboriginal cultures place significant value in ensuring balance and harmony given the belief that all things are connected in this world and that disputes act as a disrupting factor to this balance.

As such, aboriginal ADR’s goal, unlike a Western-based dispute resolution, which operates through the lens of equitably balancing individual rights and obligations of parties in a dispute, views the process as a means of restoring collective harmony.

Dispute Resolution in the Aboriginal Context

The foundation of dispute resolution depends on the disputing parties arriving at an agreed-upon meaning of the issues that are being contested. However, when aboriginal and nonaboriginal ADR occurs, a cultural disconnect may exist regarding basic terminology and concepts.

For instance, the key linguistic differences between the English or the French language and many indigenous languages may have a direct impact on how the dispute has been perceived. As we all know, languages define concepts and worldviews.

Therefore, if we are using different languages, it will have an impact on the worldviews used. Then, the differences in these worldview points may lead to miscommunication and/or misunderstanding, which become a challenge to the ADR process in an aboriginal context.

Also, as mentioned by Wenona Victor, the meaning of certain concepts such as “culture,” “land,” and “possession” may have different meanings. Further, certain concepts that form the bedrock of Western legal systems such as “blame or liability” and “punishment” largely do not exist in aboriginal languages. Accordingly, care should be taken not to rush blindly into the conclusion that aboriginal and nonaboriginal dispute resolution techniques can be harmonized without some difficulty.

We also find that the notion of hierarchies within the indigenous communities themselves may have an impact on how ADR session are conducted. The different levels of personal powers, spiritual or social, in the indigenous communities are sign of respect as opposed to oppression or control. The hierarchies between clan or community’s members are based on the relations one has within the communities and their respective ability to contribute to the group.

In our view, it is pivotal for an ADR practitioner not only to be culturally sensitive but also to have the knowledge of the differences with respect to power and hierarchies within the various indigenous communities while conducting an ADR session.

Also, the notion of time is also different in the indigenous cultures than in the Western culture. For instance, the relationship building at the start of a meeting devotes to informalities of sitting together, talking and laughing are also ways in which most indigenous people interact with each other.

Therefore, in an aboriginal ADR context, this worldview difference related to time is important to factor in when developing and implementing an aboriginal dispute resolution process and, moreover, when conducting an aboriginal ADR session. If the concept of time is not taken into consideration, then it will have a direct impact on the success of the ADR process.

In short, despite their differences, significant value rests in resolving disputes in a culturally sensitive manner based on an indigenous approach to ensure that the parties involved are satisfied with the outcome.

In closing, expanding the scope of ADR to legal disputes between the aboriginal and nonaboriginal people may be made more complicated due to cultural differences and worldview differences, but it can be potentially mitigated, which, at the end, will be beneficial for all the parties involved in the ADR process.

[1] Inaugural James L. Thistle Q.C law student essay competition, Canadian Bar Association, 2018.

[2] For the Canadian Human Rights Commission, April 2017.

Robert Neron is the principal of Simner Corporation, a bilingual aboriginal arbitration and ADR firm located in Ottawa. Robert is aboriginal (Métis); he is part Anishinaabe and Innu. He is also a member of the Law Societies of Ontario and Nunavut. He is also chartered arbitrator and qualified mediator.


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