Moving Away from the Canadian Court System: SIIA’s Commitment to ADR
By: Paula Rasmussen
The South Island Indigenous Authority (SIIA) is in the process of developing an Indigenous dispute resolution model as a component of our draft child and family wellness law. Section 18(2) of the An Act Respecting Indigenous, Inuit and Métis Children, Youth and Families (S.C. 2019, c. 24) confirms that the “authority to administer and enforce laws includes the authority to provide for dispute resolution mechanisms.” In other words, as an Indigenous Governing Body, SIIA has the authority to create an avenue for resolving disputes that arise under our law, which may be completely separate from the Canadian court system.
In Canada, adversarial litigation (within the court system) has been the main venue for resolving legal disputes. The courts are a “rights-based system” where parties are pitted against each other, and an external authority figure (a judge) evaluates who “wins” each case. On the other hand, Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of the courtroom. Within Western contexts, ADR can include mechanisms such as negotiation, mediation, or arbitration. In Indigenous contexts, traditional dispute resolution mechanisms were aimed at restoring collective harmony amongst the affected parties and within the broader community. Some examples of ADR in Indigenous contexts include: community mediation circles, Elders advisory panels, community sentencing committees, family group conferencing, and sentencing circles.
While Indigenous legal orders are diverse, all Indigenous legal orders contain dispute resolution principles and processes that have existed for thousands of years. These legal orders were suppressed, but not destroyed, by the imposition of colonial law. The child and family context is one of the most significant areas where Indigenous law is currently being revitalized and implemented.
SIIA acknowledges that the Canadian court system has caused harm to Indigenous peoples historically and to this day. Additionally, family conflict often becomes more entrenched through processes of adversarial litigation. For these reasons, SIIA is committed to helping its’ Member Nations create a culturally-based dispute resolution model so that disputes arising under our law do not enter the colonial court system. Developing and implementing a truly Indigenous ADR approach will empower SIIA’s Member Nations, enhance their self-determination, and preserve their culture and laws.
Examples of Indigenous Dispute Resolution Models:
Cowessess First Nation: The Eagle Woman Tribunal
One example of an ADR model established by an Indigenous Governing Body is the Eagle Woman Tribunal (EWT), an oversight body created under Cowessess First Nation’s Miyo Pimatisowin Act. Section 12 of the Act establishes the Eagle Woman Tribunal as the Nation’s internal adjudicative body, focussing on dispute resolution and healing. The Tribunal intervenes when child and family wellbeing issues cannot be resolved by the Nation’s Agency, collecting evidence and potentially recommending mediation.
During a discussion between SIIA representatives and Chief Cadmus Delorme, which took place on April 6th, 2023, Chief Delorme noted that all matters before the tribunal had thus far been resolved through mediation, without legal intervention from Canadian courts. The independent nature of the tribunal ensures procedural fairness and insulates decisions from political influence. Furthermore, the Miyo Pimatisowin Act clarifies that decisions of the EWT are final and binding.
On July 10th and August 17th, 2024, SIIA representatives had the opportunity to visit and receive a presentation from staff at the First Nations Court in Duncan, BC.
First Nations Court in Duncan
On July 10th and August 17th, 2024, SIIA representatives had the opportunity to visit and receive a presentation from staff at the First Nations Court in Duncan, BC.
Established in May 2023, the Court is one of BC’s nine Indigenous sentencing courts, incorporating restorative justice and Indigenous practices focussed on healing and reparation. In sentencing hearings, offenders sit in a circle with the judge, lawyers, elders, and others, and receive sentences that usually include a healing plan, which is created based on input from a panel of elders.
Elders play a crucial role in the process, providing guidance and support, and participating in ceremonies to honor offenders who complete their healing plans. The Court’s goal is to address the underlying reasons for criminal behaviour within a community context, giving defendants a voice and engaging them in the decision-making process. The Court is not tied to a single Nation and is open to any Indigenous person, with a diverse panel of elders offering a range of experiences and perspectives.
Key Lessons from Existing Indigenous Dispute Resolution Models
During SIIA’s knowledge exchange with Cowessess First Nation and the Duncan First Nations Court, several key themes arose:
The importance of relational accountability – it is more powerful to have a figure of authority who knows how each person is tied to the community than a stranger in a courtroom who will never see the parties again.
The inevitability of bias (or what a Western legal system would deem “conflicts of interests”) – everyone from an Indigenous community is somehow related, this can be a strength that can be harnessed to reach decisions that are both culturally-based and procedurally fair.
The need for trusted figures, such as elders or knowledge-holders, to facilitate dispute resolution – community members listen to their elders.
The recognition of counter-narratives and multiple truths – so that parties have an opportunity to hear and reflect on others’ positions.
The importance of emphasizing shared goals, such as the maintenance of relationships, the best interests of the child, and the strength of the community.
The need for procedures that seek to publicly restore strength and honour to those who have been harmed (i.e. through blanketing).
The acknowledgement of the root causes of a conflict and what factors contributed to someone causing harm.
The ability for those who have caused harm to have a say in the decision-making process.
SIIA’s Proposed Dispute Resolution Framework:
Under SIIA’s current legislative framework, the “longhouse process” characterizes an alternative dispute resolution process that gives families ultimate decision-making authority in relation to child welfare issues. This process allows for families to hold a series of meetings, which are initiated by the request of the family or a child safety concern and focus on consensus-building among family members. This framework encourages informal discussions and collaborative planning processes that are guided by relevant cultural protocols and family laws.
Under this framework, disputes regarding the procedural fairness of a family meeting process will be resolved by an independent tribunal made up of “Elders” (those who are respected for their cultural knowledge and community connections) selected from a broader Council of Elders. The Council of Elders will select four members of the Tribunal to adjudicate a dispute based on their experience and cultural knowledge that is relevant to the issues at hand, and freedom from possible conflicts of interest. The parties to a dispute may appoint an advocate to represent their interests and identify one or more Witnesses to listen to the proceedings, in order to ensure accountability and that correct information will be passed on. The Elders will reach a decision by consensus and the decision made by the Elders Tribunal is final. In other words, the Elders Tribunal is the ultimate appeal body and decisions made by the Tribunal cannot be reviewed by another court.
By drawing on Indigenous legal principles and practices (such as the practices of planning for a longhouse gathering, witnessing, blanketing, etc.), SIIA seeks to address disputes in a way that reflects the unique traditions and laws of its Member Nations. Ultimately, by implementing this approach, SIIA aims to empower its Member Nations, enhance self-determination, and foster an environment where disputes are resolved in a manner that strengthens families and communities.
Some Legal definitions:
Alternative dispute resolution (ADR): Any means of settling disputes outside of the courtroom.
Litigation: The act, process, or practice of settling a dispute in a court of law.
Mediation: A process wherein the parties to a dispute meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.
Arbitration: A process in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute.
Family group conferencing: A voluntary family-led decision-making process in which the family and friends network come together to make a plan for a child, which often helps to avoid the need for court involvement.
Sentencing circles: An Indigenous, community-driven restorative justice process where community members develop a consensus on an appropriate legal response or sentencing plan that addresses the concerns of all interested parties.
Procedural fairness: In Canadian law, the following elements must exist in order for a process to be considered fair: 1) the right to know the case against you; 2) the right to an impartial (non-biased) decision-maker; 3) the opportunity to have your views considered by the person or people making the decision; and 4) the right to know what the decision is and the rationale (reasons) for that decision.
Appeal: A process in which a party to a proceeding in a lower court or administrative tribunal argues that the decision made by the court or tribunal below made an error that justifies setting aside or varying the decision.
