October 1997
By Rob McKinley
Windspeaker Staff Writer
The New Webster Encyclopedic Dictionary describes the noun dispute as, "strife, or contest in words or by arguments; a difference of opinion; vigorously maintained; controversy in words; a wordy war. . . "
In Aboriginal terms a dispute can all to often mean unrest and turmoil in small, close-knit communities. Disputes can come in many forms, but many stem from the way a chief and council governs a First Nation.
Many times, disputes come from within the community. Others can involve the Aboriginal community and a municipality, province or the federal government. No matter where the battle lines are drawn, it often takes a variety of measures to quell the unrest.
Karen Trace has been dealing with dispute resolution and mediation as a partner in the Edmonton law firm McCuaig Desrochers.
She has been called into Native communities to ease concerns over government issues, election disputes, band management, land control, environmental issues and third party agreements.
Coming into any one of these situations, Trace said a good mediator has to look past the outlying problem and into the heart of the matter, which in most cases is also the heart of the community.
"Mediators in this jurisdiction are schooled in the theory of interest-based dispute resolution," she said, explaining "interest-based" as being "focus on the needs, wants, concerns and hopes of a community, to look at what motivates them at the surface."
Once you peel the issue back to its roots, "you open up the possibility for creative solutions. . . that truly meet with what is bugging the people."
Half of the battle is getting the people to the table to discuss their concerns, said Trace, who also teaches an alternative dispute resolution class at the University of Alberta's Faculty of Law.
For Aboriginal communities in particular, the mediation process is desirable, Trace said. Getting together and talking out problems and concerns is the traditional way for most Native communities, she said.
"It is the best way to heal and to grow and to better the community."
She admitted that dispute resolution is not always seen in a positive light. The harsh truth is that some disputes are settled through the mediation process with lawyers only to resurface a year later. Lawyers are then painted as the only ones getting ahead in the process.
Trace said it is the attitude and care of the lawyers involved that provide the best results in mediation. The successful mediation results in no winners and no losers, but a satisfied room of people.
Trace's firm boasts an impressive 80 per cent success rate in all dispute resolution files they take—Aboriginal and non-Aboriginal.
But that number could be higher. It all depends on how you define success, Trace said.
"What is success? Is it just settlement or is it successful enough when people get into a room and talk things out."
Bill Erasmus, grand chief of the Dene Nation, is another person who tries to bring disputing parties to some sort of amicable agreement. In most of all the instances where he has mediated, the underlying factor is the same, Erasmus said.
"When there is a dispute, it's not because people want one. It's because they just developed. What they do want is to settle the dispute."
Erasmus said part of the role of any First Nation chief and council is to be there when the people need assistance. Chiefs and councils have a lot of history of their communities, he said. That background can help cut to the core of the dispute.
"We have to be everything to everyone. We have to have counselling skills, patience, understanding, community history and family history," he said. All too often people get so swept up in the art of disputing, that they lose sight of the initial problem. They also lose sight of their roots.
"People have been arguing for so long and don't even realize they are related to each other, so that's when knowing the family history is important," he said.
Too many times the issue takes a back seat to personal feelings, Erasmus said.
"It's human relations, that is what you are dealing with," he said.
To get past that, Erasmus said mediators and go-betweens must realize that one side cannot win a dispute.
"You have to be neutral. You can't choose sides," he said. "If only one side wins then the dispute starts over again very quickly."
Instead of a victory, the end result should be a compromise. That compromise must be made by the disputing parties, not the mediator.
As the person in the middle, "you are not the one to resolve it. They do that. All you are is a go-between or a conduit."
After years of experience and countless negotiations, Erasmus said there is no secret to conflict resolution, but at the same time there is no formula either.
"You have to go with what you have. There's no book out there that tells you how to do it. You have to go by your instincts."
Erasmus said disputes have been taking place since time began, but lately the issues have been getting into the mainstream spotlight.
He isn't sure if shedding more light onto disputes can do harm or will benefit First Nations groups in Canada.
Jane Woodward with the Native Studies program at Edmonton's Grant MacEwan Community College, said the average Canadian is seeing more and more Native issues in the media these days, and part of that increase is due to disputes and troubles in the Native communities.
"We do get a lot of ink, but not a whole lot is positive," she said, adding that bad press can lead to some good exposure.
"We've always had media attention because everything we do is new, different and exotic" compared to mainstream society, she said.
Recent media coverage in Alberta regarding financial troubles at the Stoney Reserve near Calgary and conflict between the council and band members at the Samson Reserve in Hobbema, along with past disputes like the Oka crisis in Quebec, is an opening that Native communities could use to their advantage, she said.
Media attention, because of disputes, could be used to highlight other, more positive, aspects of Native communities, she said.
"What people are getting now is just the tip of the iceberg," Woodward said. "Little by little we chip away at it and it's an education really."
Mel Buffalo, the president of the Indian Association of Alberta, said it is either fortunate or unfortunate that Native disputes are now being "caught in the public eye."
He said the provincial office of his organization has been fielding calls from First Nation members from across the province about problems on several reserves.
Buffalo said the reason why so many disputes are now coming to the surface is not clear, but it might be due to the economy and the lack of money making it to Native communities.
Buffalo said disputes are not only taking place in Aboriginal communities, but across the board.
"It seems like its happening more," he said.
In many cases it is the accountability of leadership that is in question. More people are speaking out about their leaders, he said.
In order to work out a dispute, Buffalo said community members need to be brought into the picture.
If troubles are taking place at a band level, the band membership must be kept informed, he said.
Although there is a tendency to keep band politics and troubles a private matter, the public deserves to know what is going on. Otherwise more problems can arise.
"It's an in-house matter, but it also has to be quasi-public," he said.
David Newhouse, the chairman and associate professor at Trent University's Department of Native Studies in Peterborough, Ont., believes the best way to settle disputes is to change the system of government used by Aboriginal people on First Nations.
He said providing true self government to First Nations would solve many of the problems now being faced.
In fact, he said, the issues and concerns now occurring on First Nations across Canada are a positive step. It means that a change is needed.
Disputes now, said Newhouse, can be attributed to the inability of many First Nations to work under guidelines created by the federal government and a European style of democracy.
A separate style of government created by Native people and for Native people could alleviate some of the current problem areas, he said.
Accountability is one of the areas that needs to be re-addressed, he said. The people have very little say about how their communities are run.
"There's very little local input into a local First Nation government," he said. That is not, however, the fault of the leadership in most First Nations, he said. Existing tribal policy, for the most part, does not allow for that kind of input.
"There are very few mechanisms in place to help [a chief and council] report to the citizens about what it is doing, so therefore you get a lot of disputes," he said.
Off reserves, the mainstream government structure allows for public input. Newhouse said there are planning groups, advocacy groups and citizens’ councils to help bridge the gap between the leaders and the people. The rights and formation of such groups is included in municipal government acts across Canada. Most Native communities don't have those avenues available to them.
In a 1992 report on the status of Aboriginal government, Newhouse indicates that it should be up to the people to set their own policy and provide avenues for appeal of that policy. If it all stays in-house, the Aboriginal people will have a greater sense of self-worth and be better able to deal with their own problems.
Even with these new policies in place, Newhouse said disputes would still take place. No matter what a government does, it will not please all of the people all of the time.
"There are always going to be disputes between government and policy and the people," he said. "The development of government has never been smooth. It will take a series of steps to get to self government.
But with a more open system that brings the people represented in a First Nation closer to the leadership, finding a compromise may come a little easier than holding blockades and sit-ins.
What we are seeing in First Nations across the country, he said, with the blockades and sit-ins and calls for band financial audits, is a sign that things are ready for change. They are not negative occurrences, but positive signs that things need to be altered.
"We are beginning to see the stress cracks," said Newhouse. "I'm not convinced that things coming apart is a sign of bad things. It's a start to move toward self government and that's a very healthy sign," he said.