Vol. 14 No. 8 (August 2004), pp.598-602
INTERCULTURAL DISPUTE RESOLUTION IN ABORIGINAL CONTEXTS, edited by Catherine Bell and David Kahane, Vancouver: University of British Columbia Press, 2004. 392pp. Hardcover. CDN $111.96 / US $85.00 / £56.95 ISBN: 0-7748-1027-0.
Reviewed by Renee Ann Cramer, Assistant Professor of Political Science, California State University at Long Beach. Email: firstname.lastname@example.org
Readers who are not directly involved in or interested to research either Alternative Dispute Resolution (ADR) or First Nations/Aboriginal issues, might be inclined to take no notice of INTERCULTURAL DISPUTE RESOLUTION IN ABORIGINAL CONTEXTS, a stellar volume edited by Catherine Bell and David Kahane. To ignore the volume would be a mistake for any scholar interested in conversations about multiculturalism, recognition, institution-building, democracy, liberalism, process design, and pluralism.
Bell, a Professor of Law at the University of Alberta, and Kahane, her colleague there in the department of Philosophy, are both intimately versed in dispute resolution and aboriginal issues in Canada. They have assembled a roster of seventeen additional authors who bring a multinational and multicultural perspective to the issues raised by the use of ADR in aboriginal contexts (and the use of aboriginal dispute resolution methods in non-aboriginal contexts). The assembled essays address, variously, the experiences of Australian, Canadian, and United States’ tribal peoples – and they do so with a theoretical grounding that makes them important essays in legal studies as a whole. While this review cannot do justice to each of the assembled essays, I will highlight several, with attention to common themes in each.
The book is divided into four sections, each composed of four or five essays, which are tied together by a commentary written by a contributing author. These commentaries are incredibly valuable additions to the usual take on the edited volume – not only have the editors provided a coherent introduction to the volume, they encourage other scholars in the field to comment on and synthesize the wide-ranging essays in each section. The effect is for the reader to feel as though she is present at a well-orchestrated set of conference panels, with discussants who have immersed themselves in the presenters’ work.
The first section, “Theoretical Perspectives,” contains four uniformly excellent and challenging essays by Michelle LeBaron, David Kahane, Dale Turner, and Natalie Oman. As the editors point out in their introduction, the common goal of these pieces is to show the myriad ways in which “concepts that appear to be value-neutral can operate to undermine intercultural understanding” (p.3). LeBaron’s opening piece sets the tone for the volume – the essay includes first person narrative, provides a fine metaphor of “dance” for intercultural dispute [*599] resolution, and pays close attention to the usual suggestion that third party mediators need better training, while steps to gain a fuller understanding of the norms and cultures in potential conflict in these disputes are not taken. LeBaron argues that the “capacities most needed by effective intervenors in intercultural conflict include leadership, creativity, authenticity, empathy, and cultural sensitivity,” and points out that true respect for one another is a baseline requirement for being authentic, empathetic, or sensitive (pp.17-19). Therefore, training third party intervenors in cultural sensitivity is a stop-gap measure in creating effective intercultural dispute resolution processes – one that falls quite short of creating a society, via education and open communication, which fosters respect among all cultural groups.
While the sections are coherent in themselves, and useful to read as a whole, four essays in particular, beginning with David Kahane’s contribution to the first section, “What is Culture? Generalizing about Aboriginal and Newcomer Perspectives,” are nicely read out of order and alongside each other. Kahane’s essay makes “culture” problematic by unpacking the liberal assumptions about neutrality, cultural difference, and identity found within standard versions of the alternative dispute resolution movement. This forceful essay, with wide-ranging references to a literature with which most public law scholars will be familiar (from Will Kymlicka to Sally Engle Merry, from Allison Jaggar to Steven Lukes), very powerfully evaluates notions of power and justice as they confront each other in different cultural contexts. The essay includes a much-needed, and lucid, discussion of ethnic boundaries, multiculturalism, and power in a confrontation to standard, liberal definitions of these concepts.
Elmer Ghostkeeper’s essay in the second part, “Weche Teachings: Aboriginal Wisdom and Dispute Resolution,” should be read immediately following Kahane’s contribution. Ghostkeeper argues that culture itself is a European attribute. “It represents,” he writes, “domination over, and separation of identity from, nature” (p.164). Consequently, he continues, “I even question if it [culture] is an appropriate concept to use in describing communications between Aboriginal and non-Aboriginal people or in trying to describe our worldview. I also question the label ‘intercultural dispute resolution.’ This is the language of Western science, not the language of Aboriginal wisdom or Weche” (p.173).
The commentary provided for the final section, written by Andrew Pirie, rounds out the discussions of culture and ADR found in Kahane and Ghostkeeper’s pieces. Pirie makes the important point that ADR is not just a process – it is, in fact, an ideology, growing from a specific cultural context. He argues that this ideology is still in formation but, echoing Kahane and other contributors, points out that ADR has primarily been a liberal, Western form of legal (or extra-legal) process.
The concluding piece to this volume, John Borrows’ “A Separate Peace: Strengthening Shared Justice,” gets straight to the heart of the implications raised by Pirie’s essay. Borrows is determined that, given power differentials in Aboriginal/non-Aboriginal [*600] relations, and given the different conceptions of culture and different cultural norms of these groups, justice can only be achieved through separate dispute resolution systems. His argument is nuanced and complex – his treatment of views against such a separate system is fair, balanced, and persuasive. Borrows considers Bryan Schwartz’s 1986 arguments against this separate system, and uses the discussion to, in his words, “demonstrate the practice of intercultural dispute resolution” itself (p.345). An Anishnabe, and member of the Chippewa of the Nawash First Nation, Borrows envisions his dialogue with Schwartz’s work as an intercultural confrontation; he brings an ethic of respect and concern for clear communication to his forceful denial of Schwartz’s claims.
In this concluding essay, Borrows is echoing the call made in the first section, in an essay by Dale Turner (“Perceiving the World Differently”) to create space for aboriginal intellectual discourse and the development of continuing aboriginal intellectual traditions. The essays in section three by Dale Dewhurst and N. Bruce Duthu can be read similarly – and these four essays (Borrows, Turner, Dewhurst, and Duthu) are nicely read in concert with each other.
Section Two, “International Contexts,” offers a wealth of essays devoted to examples of internal and external indigenous dispute resolution systems. Chief Justice Robert Yazzie of the Navajo Nation offers an excellent essay on Navajo Peacemaking, which includes a much-needed discussion (picking up on earlier work by Carole Goldberg) of whether indigenous justice systems can be replicated in non-indigenous settings. This essay works well when read in conjunction with a Section Four contribution from Diana Lowe and Jonathan Davidson, which explores aboriginal dispute resolution’s applicability to non-aboriginal civil justice systems.
Also in Section Two, Larissa Behrendt presents an insightful view of the aboriginal Australian context, and Morris Te Whiti Love discusses the Waitangi Tribunal for resolution of Maori treaty claims in New Zealand (Aotearoa). All of the essays in this section are lively, informative, and theoretically grounded contributions. They make excellent stand-alone pieces for scholars interested in particular geographic and cultural areas.
Richard Overstall’s contribution to Section Three (“Canadian Contexts”), is nicely read in conjunction with Behrendt’s piece from the previous part of the book. Behrendt pays close attention to the Australian Court’s MABO decision; Overstall pays similar critical and close attention to Canada’s DELGAMUUKW. MABO and DELGAMUUKW are rightly considered high water marks in the judicial systems of these countries, and as protective of Aboriginal and First Nations rights. They are also rightly seen as problematic to these same rights claims, and as requiring further analysis and study. Overstall and Behrendt do excellent jobs of teasing out the implications of these cases for internal, external, and (in Overstall’s term) “future use” reconciliation. In addition to his discussion of DELGAMUUKW, Overstall’s development of a trust model [*601] for aboriginal resource and culture management is a controversial and timely contribution to debates about such reconciliation.
Certainly, while all of the essays in the collection are strong, there are weaknesses. I found myself frustrated with the high level of detail on specific Canadian and Aboriginal examples offered by authors in the fourth section, “Issues of Design and Implementation,” and wondering how these issues connected with the theoretical and contextual presentations of the previous essays. Thankfully, Andrew Pirie does an excellent job of tying the essays together in his commentary, pointing out common themes, and making a nuanced theoretical argument about the ideology involved in process design. Moreover, those interested in particular Canadian and First Nations institutions will find the wealth of detail contained in the articles by Catharine Bell, Diane Lowe and Jonathan Davidson, and (especially) Nigel Bankes incredibly helpful. A singular strength of the volume, made clear in the contributors’ biographies, is the fact that the authors themselves are immersed in practices of intercultural dispute resolution, from a variety of perspectives. The essays in this section point to the strength of having practitioners and academics share so closely.
As most readers probably do, I tend to approach scholarly work on at least three levels. First, I pay close attention to those aspects of the argument and research that are relevant to my current projects. This book is useful for me in this regard in the close attention paid by several of the authors to questions of identity, self-definition, legitimacy, and “who has a stake” in these processes. It would certainly be useful to other scholars doing research on particular indigenous dispute resolution models, or on particular government initiatives and settlements. And it would obviously be of first-order use to those engaged in designing or researching alternative dispute resolution processes.
Second, like most scholars, I also read simply for the joy of being swept into a complex and difficult argument, of being exposed to a new literature, and of learning something I had not known before. In this volume, the first section amply satisfied my thirst for a theoretical discussion of liberalism and disputing, grounded in a wide-ranging literature. I relished the opportunity, in Natalie Oman’s challenging essay, “Paths to Intercultural Understanding: Feasting, Shared Horizons, and Unforced Consensus,” to revisit Wittgenstein, Arendt, Benhabib, Young, and Taylor – all in the context of intercultural dispute resolution. Other scholars will undoubtedly find something quite new and complex in the discussions of Navajo Peacekeepers, or the role of memory and cultural assumptions in reconciliation schemes.
Finally, as a teacher, I read with an eye to what might fruitfully be placed on a syllabus, or given as supplemental reading to my students. This volume contains several stand-alone pieces that are appropriate for graduate and undergraduate students in political theory, legal studies, and American Indian/First Nations studies courses. I intend to assign the entire second section, “International Contexts,” to students in a course called Modern Legal Systems – in which we look at tribal [*602] justice as well as the legal systems of a variety of Western and industrialized nations. Val Napoleon’s piece, for example, “Who Gets to Say What Happened? Reconciliation Issues for the Gitxsan,” provides several examples of reconciliation processes – and will work well in this course as a bridge between a unit on South Africa and the unit on tribal justice. Similarly, I imagine that graduate students in a legal studies seminar, or political theory course, would find much to grapple with in the Oman and Kahane pieces.
I was pleased to find that this complex and thorough volume fulfilled each level of reading I might undertake. It avoids many of the problems often inherent to edited collections, and takes care as well to provide essays that are self-reflective and thoughtful about complex issues of generalization, voice, and neutrality. These essays work very well together, and the volume itself is coherent, enjoyable, and refreshing. I highly recommend it.
Schwartz, Bryan. 1986. FIRST PRINCIPLES, SECOND THOUGHTS: ABORIGINAL PEOPLES, CONSTITUTIONAL REFORM AND CANADIAN STATECRAFT. Montréal: Institute for Research on Public Policy.
DELGAMUUKW v. BRITISH COLUMBIA, 3 SCR 1010 (1997).
MABO v. QUEENSLAND (No. 2), 175 CLR1 (1992).
Copyright 2004 by the author, Renee Ann Cramer.