FNLC Shared Territories And Overlaps Forum Discussion .

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FNLC Shared Territories and OverlapsForum Discussion Paper:Western and Indigenous DisputeResolution Mechanisms

2BackgroundBritish Columbia has a unique place in the history of Canada. BC is the only jurisdiction where amajority of the land was not settled by the Government of Canada signing treaties with localFirst Nations. A small percentage of land in the northeast is covered by Treaty 8, and some landon Vancouver Island is covered by the historical Douglas treaties, however, however, acrossmost of British Columbia treaty-making did not take place. For Indigenous peoples across BritishColumbia the unresolved land question, and the historic and on-going Crown infringement ofinherent title and rights and treaty rights, remains outstanding.The existing Aboriginal Rights and Title in the province has led to the “land question” in BC,which creates uncertainty for all parties with regard to management, use and benefit from theland. To address this uncertainty, the BC treaty process was commenced in 1992. This processhas been less successful than hoped – resulting in only 3 modern treaties: Maa-nulth FirstNations, Tla’amin Nation, and Tsawwassen First Nation. In most cases, courts have beenhesitant to definitively rule on overlap cases, and have advised that these issues should benegotiated or mediated between the First Nations involved. Unresolved issues of sharedterritories and overlaps between nations in the treaty process are one of the main barriers tosuccessfully concluding these agreements, and continues to be an implementation issue for thethree modern treaties.In the past few years, a number of forums and discussions have been held with Indigenousleaders and community members, governments, and lawyers to discuss the issues and findsolutions. This paper is one of six discussion papers developed to support a Shared Territoriesand Overlaps (STO) forum in March 2020 being held by the First Nations Leadership Council inpartnership with Canada and BC.This paper focuses on the continuum of dispute resolution mechanisms that could be useful inthe resolution of shared territories and overlaps. It outlines the variety of mechanisms, whattheir key features are, how they relate to each other, and what some key considerations shouldbe around their application in supporting BC First Nations.DiscussionIn Canada, judicial mechanisms (i.e. courts) have been the main venue for resolving disputesbetween settlers, settler organizations and governments, and aboriginal peoples, and betweenaboriginal peoples and groups themselves. The courts are a rights-based system where parties,holding specific rights, are pitted against each other in an adversarial context. Decision-makingpower is held by an external authority figure (i.e. judge) who evaluates the parties’ rights incompetition and ultimately one rights-holder is deemed to “win” over the other.“First Nations in BC have long identified the need for institutional supports in doing critical worksuch as the resolution of shared territory and overlap issues. While colonial laws, policies, andpractices are largely responsible for this challenge, the reality is that a significant burden hasContact: Emmy Beaton, Sarah Froese: [email protected]

3been placed on First Nations to address it in order to ensure that the outcomes are consistentwith the furtherance of Indigenous protocols, history and laws and self-determination. As well,while at times the court system has been asked to weigh in on boundary resolution matters, theexperience has been highly problematic. In addition to the inappropriateness of many aspectsof adversarial court procedures for addressing issues of inter-Nation relationships, there alsoexist substantive and important differences between how common law and Indigenous legalorders envision, interpret, and express relationships to land and resources. The reality is thatare very few, if any, instances where the courts have played a constructive role in territorialboundary disputes that have resulted in outcomes that are harmonious, constructive, andreinforce peace and cohesion. Given this, there has been a broad consensus from First Nations,experts and, increasingly, Crown governments that conventional, adversarial, court processesare not the best or appropriate venues for the resolution of territorial boundary disputes 1.”Outside of the judicial system, there is a continuum of dispute resolution mechanisms and theprocesses that support the use of these mechanisms, is known as Alternative Dispute Resolutionor ADR. Over the past 40 years, western scholarship and practice has developed and promotedinterest-based ADR mechanisms, within which each party is seen to have a set of needs theyhope to maximize. This focus on interests/needs is less adversarial, power is mostly retained bythe parties’ themselves and guided by mediators, and can create win-win outcomes.There are three features that are important in order to understand ADR mechanisms: thedegree of control asserted by the participants, the degree of decision making the respondentsin the process hold, and the degree of finality that the process outcome produces. The ADRmechanisms potentially useful for resolving STO issues include negotiation, mediation,arbitration, and other hybrids, in particular traditional Indigenous methods.Negotiation is the least formal ADR mechanism, where the two parties come togethervoluntarily, in a problem-solving process aimed at finding mutually agreeable resolution terms.In negotiations the parties may or may not be joined by others who support the negotiations,but the two parties retain control of both the process and the solution. In some cases,negotiations can lead to the development of a legally binding agreement that sets out theterms of the resolution – such as a contract.Mediation “involves a third party neutral who does not have the power to impose a bindingdecision” (Smith & Martinez, 2009, p. 127). In mediations, the parties control the process byelecting to engage (or not) in an assisted negotiation. Parties also control the decisions withinand after the resolution process, as mediators help the parties develop the resolutionthemselves, and do not enforce those solutions after the process is complete. Similar tonegotiations, mediations sometimes lead to the development of a binding agreement settingout the mediated terms.1Danesh, R. 2020. Resolving Territorial Boundary Issues: Preliminary Considerations for Creating an IndigenousInstitution. (Unpublished).Contact: Emmy Beaton, Sarah Froese: [email protected]

4Arbitration is the next intervention along the continuum of dispute resolution. This model canbe either interest-based, rights-based, or mixed. In arbitration, the power over both the processand decision is delegated to a neutral third party, and generally the participation of both partieshas been mandated by a collective agreement, policy, regulation, or law. Respondents may ormay not have the ability to collaborate jointly to develop solutions. In some cases, arbitratorssimply listen to the evidence from both sides and issue a binding decision. Arbitration is theclosest method in the spectrum to legal mechanisms such as litigation.Traditional Indigenous methods of resolving disputes can offer another, parallel paradigm towestern approaches. A general description of Indigenous law is that they are “non-prescriptive,non—adversarial and non-punitive [and] generally promote values such as respect, restorationand consensus” (Borrows & Law Commission of Canada, 2006, p. 3). “Indigenous legal orderslaws and customs guide governance, conflict resolution, and peace-making within andbetween First Nations. These legal orders are diverse, dynamic, and distinct, and were afoundation for how relations between neighbouring Nations, including territorial relations,were governed and resolved for millennia” (Danesh, 2020).Proponents of these mechanisms highlight that the benefits of using them include “therejuvenation and reclamation of ways in which disputes may be resolved according to theculture and custom of the Indigenous party involved;” not just to “simply reproduce western,colonial, or imposed worldviews, approaches, and practices” (Danesh, 2020). Indigenousmethods are seen as a tool for decolonizing conflict resolution.“The aim of Indigenous laws and DR mechanisms is to restore peace within the community andamongst the affected parties. This is done by involving the community in determining thepunishment and ensuring that communities concerns are taken into account, allowing for peaceto be maintained2. Indigenous law emphasizes collaborative deliberation and including thecommunity in applying the laws that govern the specific community 3.” “Examples includecommunity mediation circles, Elders sentence advisory panels, community sentencingcommittees, family group conferencing and sentencing circles 4.” (Victor, 2007). It is importantto note that these methods will be unique to each nation and each dispute.Although there is no guidebook or definitive review of Indigenous dispute resolutionmechanisms, there are examples of models that have been developed that can be a useful casestudy for First Nations to consider when developing their own mechanisms and supportingstructures.For example, “Dr. Val Napoleon has developed and championed the model of the IndigenousLegal Lodge for over the past decade, including through academic study, presentations, and2Webber, Jeremy. (2005). Chapter 9 Commentary: Indigenous Dispute Settlement, Self-Governance, and the Second Generationof Indigenous Rights, in Bell, Catherine and Kahane, David. Intercultural Dispute Resolution in Aboriginal Contexts.3 Isic, Ermin. (2018). Addressing Overlapping Territorial Disputes Among First Nations (p. 26-27).4 Victor, Wenona. (2007). Alternative Dispute Resolution (Adr) In Aboriginal Contexts: A Critical Review (p. 41).Contact: Emmy Beaton, Sarah Froese: [email protected]

5practical work on the ground with First Nations. As Dr. Napoleon described in 2007, the“Lodge” could operate through a combination of the: First Nations involved in the dispute (the Parties); an appointed panel of threeindividuals from a neutral First Nation who work with parties to draft agreements; threefacilitators with knowledge and experience with Indigenous legal orders and law to workwith leadership and members of the First Nations to articulate their Indigenous laws,frame legal perspectives, define legal obligations and principles, and consider theirapproach to the issues; and an expert in Canadian law to advise and support the panelworking with parties to draft agreements”5 (Danesh, 2020).ConsiderationsFundamentally, communities should have the flexibility to choose, adapt, develop, andimplement dispute resolutions mechanisms based on their laws, governance, traditions, andalso their practical needs. Below is a non-exhaustive list of things to consider when designingthe mechanism for resolving shared territory and overlap disputes: Control – who develops and implements the process, and how flexible is it? Studiesshow that Indigenous communities should both develop and lead the process as a bestpractice.Determination – how is the final determination made, and is there a complianceprocess?Funding – who is funding the process? Does the mechanism fit the funding and viceversa? Does the funder have control over the process, products, or outcomes?Participants - who is involved in the process? Is there space for elders? Community?Youth?Incentives – what is the incentive for parties to participate and finish the process, andrespect the outcome?Goals – what are the principle-level goals of the process? Is it seeking a rights-basedresolution or a pragmatic, interests-based agreement? Is it focused on healing, ormending relationships? Is education of the participants important?Spirituality – is this included or not in the process?Inputs – in this process, what is “evidence,” what inputs are decisions based upon? Whodecides what is and isn’t relevant information?Legitimacy – will the outcomes or decisions be supported by the Indigenouscommunities involved, and be applicable across the intersection of indigenous and nonindigenous legal systems? If the outcomes must be accepted by municipal, provincial or5More examples can be found listed here: esses-in-canada.pdfContact: Emmy Beaton, Sarah Froese: [email protected]

6federal governments and the broader community at large, how is that built into thechoice of mechanism and the outcomes developed?ConclusionThe impacts of colonization have led to some communities experiencing loss of their traditionallaws, structures, and relationships that govern conflict resolution. This includes past andcurrent actions and policies by governments that disrupt traditional legal orders and protocolsbetween Indigenous peoples about their patterns of relations, including regarding lands andresources, leading to the current state of numerous territorial boundary disputes between FirstNations.The ultimate goal of Indigenous sovereignty is “advanced when First Nations are organized asproper Title and Rights holders, with their systems of governance and law continuing to evolveand where territorial boundaries, and relations with neighbouring Nations, are clear,structured, and understood” (Danesh, 2020).This paper supports the position that all First Nations should be supported to access and usethe full spectrum of Western, ADR-type dispute resolution mechanisms, such as negotiation,mediation or arbitration, as well as use or develop their own traditional, culturally-appropriateIndigenous mechanisms to address issues related to shared territories and overlaps. This shouldinclude the flexibility to choose, adapt, develop, and implement dispute resolutionsmechanisms based on their laws, governance, tr