Bauman, Toni --- "Indigenous Dispute Resolution" [2007] IndigLawB 35; (2007) 6(28) Indigenous Law Bulletin 14

• Indigenous Dispute Resolution

Indigenous Dispute Resolution

by Toni Bauman

It is with great pleasure, as a mediator and facilitator, and Manager of the Indigenous Facilitation and Mediation Project (‘IFaMP’) in the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies (‘AIATSIS’) between 2002 and 2006, that I introduce Indigenous mediator Loretta Kelly’s article, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’ from the January 2002 edition of the Indigenous Law Bulletin (‘ILB’).^[1]

In the year Loretta wrote this article, two significant national Indigenous projects concerning Indigenous decision-making and dispute management commenced: IFaMP and the National Alternative Dispute Resolution Advisory Committee’s (‘NADRAC’s’) consultations around Indigenous dispute resolution and conflict management. Loretta and I, and a number of other Indigenous mediators and facilitators, were involved in both projects which culminated in substantial best practice reports in 2006.^[2]

The findings and recommendations of the NADRAC and IFaMP reports have many synergies, including recommendations concerning the need for case study research. The Federal Court has taken this up in carrying out a number of case studies in Indigenous alternative dispute resolution (‘ADR’) across Australia which aim to identify practical advice for government, practitioners and parties. Governments, however, have been slower to take up the NADRAC report’s recommendation that governments evaluate an IFaMP proposal for a national network of Indigenous dispute resolution practitioners (which would include community facilitators, mediators, negotiators and a range of other process expertise) and if satisfied, look at ways of implementing it.^[3]

The need for this kind of process expertise is significant since agreement-making, has become the policy modus operandi in national Indigenous affairs, as it has in settling claims under the Native Title Act 1993 (Cth).^[4] It is even more critical given the current ‘national emergency’ which the Federal Government has called in the Northern Territory and which has raised the issue of sexual abuse and violence and highlighted the Government’s incapacity in Indigenous community engagement.

In challenging the assumption that mediation is ‘antithetical to Aboriginal community values, dynamics and dispute resolution needs’,^[5] Loretta notes that whilst there is a common resistance amongst mediation practitioners to mediate when violence is involved, many Indigenous parties request such interventions. She identifies the need to distinguish between resolving relationship issues such as residence and children and using mediation to resolve the violence.^[6] Significantly, she identifies that there are restorative justice models which are better suited to dealing with violence which require the engagement of the community.^[7]

As Loretta points out, the models which could emerge from skilled engagement around the resolution of community violence might invoke cultural forms as they are employed locally – such as shame and witnessing – which are significant forces of social control, and ensure that support can be provided to both victim and offender by appropriate relatives, and that actions are open to public scrutiny. Such models would also invoke the well-defined obligations and responsibilities that individuals have to each other in a kin-based society.

A community knows its own problems more intimately than anyone else does, so it is from within the community that resolutions must arise.^[8]

Toni Bauman is a Visiting Research Fellow at the Australian Institute of Aboriginal and Torres Strait Islander Studies and was editor of the Aboriginal Law Bulletin and the Indigenous Law Bulletin between 1996 and 1998.

The article reproduced following this reflection was:

Loretta Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’ (2002) Indigenous Law Bulletin 5(14), 7. This article can be accessed via <http://www.austlii.edu.au/au/journals/ILB/2002/4.html> .

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^[1] Loretta Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’ [2002] IndigLawB 4; (2002) 5(14) Indigenous Law Bulletin 7.

^[2] Toni Bauman, Final Report of the Indigenous Facilitation and Mediation Project July 2003-June 2006: Research findings, recommendations and implementation Report No 6 (2006) Native Title Research Unit, AIATSIS <http://www.ntru.aiatsis.gov.au/ifamp/research/pdfs/ifamp_final.pdf> at 13 July 2007 and NADRAC, Indigenous Dispute Resolution and Conflict Management NADRAC (2006) <http://www.nadrac.gov.au/agd/WWW/dsputeresolutionHome.nsf/> at 13 July 2007.

^[3] NADRAC, Indigenous Dispute Resolution and Conflict Management (2006) Recommendation 4, 23. See for example, Cherie Buchert, ‘Conflict and Indigenous Communities: An Indigenous Mediator’s Perspective’ [2004] IndigLawB 53; (2004) 6(5) Indigenous Law Bulletin 13 for an account of an Indigenous mediator’s experience with the Community Justice Centre in NSW.

^[4] See Mick Dodson, ‘Power and Cultural Difference in Native Title Mediation’ (1996) 3(84) Aboriginal Law Bulletin 9 and Kevin Dolman, ‘Native Title Mediation: Is it Fair?’ [1999] IndigLawB 40; (1999) 4(21) Indigenous Law Bulletin 8.

^[5] See, for eg, Madeline Sauve, ‘Towards an Aboriginal Conceptualisation’ [1996] AboriginalLawB 17; (1996) 3(80) Aboriginal Law Bulletin 10 where the author argues that there is little resemblance between western models and Aboriginal approaches

^[6] Kelly, above n 1, 9.

^[7] Ibid.

^[8] Ibid.