Dispute Resolution in Indigenous Societies
By Delilah van Tol
INTRODUCTION
Whenever people think about dispute resolution, litigation is what they think first, as it is considered to be the most standard or common way of proceedings.[1] That’s why society calls alternative dispute resolution the alternative option.[2] However, litigation is not always the first and most common option in every corner of the world.[3] Numerous cultures and communities around the world consider litigation as an alternative route.[4]
RESOURCES
A lot of indigenous groups do not have the resources to go through litigation and prefer to resolve disputes as their ancestors would have done. One of the critical fields is that of intellectual property.[5] This contains, for example, ancient and traditional knowledge about plant-based medicine, artwork, dance, and further aspects of intellectual property.[6] For example, there are communities claiming that they were not consulted or compensated for when other groups used their knowledge.[7] The knowledge that contains recipes from their plant-based medicine etc. These communities are mostly not willing to go through litigation, but they would really like to gain the acknowledgment they deserve.[8]
INDIGENOUS DISPUTE RESOLUTION
Indigenous people already used ADR mechanisms way before the formulation of ADR bodies and procedures that are used nowadays.[9] They used these methods from as early as their community developments. This is called “Indigenous Dispute Resolution”. Indigenous Dispute Resolution was used for authority/rows between membership, disputes between different tributes and for numerous other reasons.[10]
INDIGENIZATION
We can, therefore, state that in the Western Alternative Dispute Resolution “Indigenization” has taken place.[11] This means that Western ADR has included indigenous methods into their methods.[12] Think about intercultural understanding and also discussing important matters among these cultures.[13] This method also experienced criticism as for example “they do very little to substantially address systemic and societal
issues of racism, discrimination, oppression and eurocentrism [and that] [m]any argue that simply ‘accommodating’ aboriginal identity and culture is not enough.”.[14] Moreover, it is been argued to be counterproductive as it is a mix of different cultures.[15]
As the use of Alternative Dispute Resolution has only started to rise since the last four/five decades in the western world, it is not the standard method to resolve disputes. However, ADR, being the main method used to resolve disputes in indigenous cultures, can be a more efficient way of getting to an agreement that is satisfactory for all the interested parties in various contexts and lessons can be learned from the “Indigenous Dispute Resolution”.
[1] Carlo Osi, [2008] UNDERSTANDING INDIGENOUS DISPUTE RESOLUTION PROCESSES AND WESTERN ALTERNATIVE DISPUTE RESOLUTION, Vol. 10, pp. 163-165
[2] ibid. pp. 163-165
[3] ibid. pp. 163-165
[4] ibid. pp. 163-165
[5] ibid. pp. 165-167
[6] ibid. pp. 167
[7] ibid. pp. 167
[8] ibid. pp. 167
[9] ibid. pp. 194
[10] Elmer Ghostkeeper, Weche Teachings: Aboriginal Wisdom and Dispute Resolution, in INTERCULTURAL DISPUTE RESOLUTION IN ABORIGINAL CONTEXTS 162 (Catherine Bell & David Kahane eds., 2004)
[11] Bell, supra note 107, at 241
[12] Carlo Osi, [2008] UNDERSTANDING INDIGENOUS DISPUTE RESOLUTION PROCESSES AND WESTERN ALTERNATIVE DISPUTE RESOLUTION, Vol. 10, pp. 203
[13] ibid. pp. 203
[14] Victor, supra note 94, at 33.
[15] 8 Julie Macfarlane, Commentary: When Cultures Collide, in INTERCULTURAL DISPUTE RESOLUTION IN ABORIGINAL CONTEXTS 99 (Catherine Bell & David Kahane eds., 2004).