Book Review: Resolving Indigenous Disputes

This succinct publication (150 pages) addresses the practical difficulties faced by Aboriginal people in the alternative dispute resolution (ADR) process, and how that process can be better used to the benefit of Aboriginal people, particularly in the mediation process which, the authors argue, has brought frustration, disappointment and disillusionment to Aboriginal people.  The process proposed is an ADR process based on the traditional dispute resolution mechanisms and the values of many Aboriginal communities.

The authors use the Australian native title process to identify the problems associated with the use of mediation in disputes involving Aboriginal people and to explore alternatives to resolve disputes, alternatives that would make for better processes, including improvement in the methods of inter-cultural and intra-cultural dispute resolution.  The use of the native title process for this purpose is of benefit because such process places an emphasis on mediation, which, it is argued, does not transfer as easily into the cross-cultural context as many of its promoters believe to be the case.  It is argued that the native title process should be revamped to accommodate the cross-cultural issues that arise in mediation, thereby making better use of structures and procedures developed by Aboriginal communities and which go further than mainstream mediation because they are based on a different set of cultural values and practices and they utilise procedures and mechanisms that are based on traditional Aboriginal community dispute resolution structures.

Flaws identified in the current native title process include the power imbalance that Aboriginal people face within the system, the inability of native title industry professionals to come to grips with the complexities of Aboriginal communities and families, the conflicts that arise in the context of native title claims, and the inability of the native title system of deal appropriately with inter-cultural and intra-cultural disputes.  It is argued that there needs to be greater input by the parties as to what fairness, justice and workability mean in practice, there should be greater cultural sensitivity, and the process should be facilitated rather than controlled. It is further argued that dispute resolution processes should be more responsive to the cultural values and needs of Aboriginal litigants.

This publication contrasts concerns raised by Aboriginal claimants about the mediation process with principles for Aboriginal conflict resolution that derive from Aboriginal cultural values and practices and that are more inclusive and responsive to the cultural values and needs of Aboriginal claimants, that include a deeper understanding and appreciation of the dynamics of Aboriginal culture, communities and families.

The authors develop two models of conflict resolution which rely on a deeper understanding and appreciation of the dynamics of Aboriginal culture, communities and families and which  incorporate values relating to the cultural differences between Aboriginal and non-Aboriginal people. One model is for use in resolution of intra-cultural disputes (those occurring only amongst Aboriginal people) and the other model is for use in resolution of inter-cultural disputes (those involving both Aboriginal and non-Aboriginal people).  The two models are not exclusive, but complimentary. The intra-cultural model is informed by traditional Aboriginal dispute resolution practice, whereas the inter-cultural model is informed by contemporary mediation and facilitation practice. The two models developed highlight the possibilities of reforming approaches to the resolution of disputes involving Aboriginal people and are potentially more effective in engaging Aboriginal disputants in the whole process.

The analysis undertaken has general application and is not merely applicable to disputes involving native title.  The suggested models could result in better outcomes for all involved in the process and not just Aboriginal participants.

This publication will be of particular interest to any practitioner who is involved in any litigation involving Indigenous people.

Dan O’Gorman