We are seeing significant (and overdue) reflection and change in approaches to dispute resolution and consensus-building with Indigenous peoples. The Crown has committed to advancing reconciliation and implementing principles of cooperation with Indigenous peoples set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Recent BC legislation contemplates development of collaborative decision-making processes with Indigenous communities. Both agreements under the Declaration Act and reconciliation agreements with the Crown emphasize detailed, consensus-seeking processes. Yet, while these shifts are positive indications of change, there remains a risk that unexamined ideas about dispute resolution process options may unintentionally impede developments.

When we imagine consensus-based dispute resolution processes, many of us draw from a very limited range of experience and exposure. We learned about a “spectrum” of processes that are framed as alternatives to litigation; this necessarily gives primacy to the values of one party in these discussions. Processes informed by common law legal tradition, including “alternatives” (e.g., mediation and arbitration), may include assumptions about what constitutes evidence, and what comprises legal issues, who should participate, and more. Selecting from or building on these existing processes necessarily limits possibilities to build new and inclusive processes along with building trust and understanding.

In any consensus-building process, facilitators strive to support the needs of all parties. They are best able to do so when processes are responsive and flexible. In the context of dispute resolution with Indigenous communities, this includes taking the lead from the community as to the process itself. What works in commercial mediation or labour conciliation may not be ideal where constitutionally protected rights are at issue and where culture and ways of life are threatened. A responsive facilitator, in these circumstances, must be open-minded and willing to learn from all parties as they help to build a mutually supportive process.

Taking the necessary time to build a collaborative dispute resolution process with the genuine input of all parties yields vast benefits. Where care is taken, the steps of going through a facilitated dispute resolution process can build and strengthen relationships, increase understanding between the parties, and reduce the likelihood of problems arising in the future. The very act of co-developing a collaborative dispute resolution process invites understanding between parties regarding process needs and mutual respect for traditions and values. For the Crown, co-developing an appropriate collaborative process with an Indigenous community can be a way to advance reconciliation, and to address systemic issues and power imbalances. For Industry, such as proponents of a major project operating in a Nation’s territory, a thoughtful collaborative process may help to reach understanding on key interests, and may be especially helpful for future conversation in ongoing relationships.

It is helpful to recognize explicitly that the act of co-developing a process is, itself, an important step in resolving conflict and building trust. In undertaking that co-development, it is important to avoid replicating systems that prioritize some perspectives over others. A feature of colonialism is the imposition of values, beliefs, and practices. In dispute resolution, this imposition of values is often embedded in process design, and unquestioned assumptions about the necessary qualifications of facilitators. As facilitators, it behooves us to be curious and creative, to seek to learn, and to challenge ingrained assumptions about how to structure a consensus-building process.

It is an exciting time in dispute resolution: legislation and agreements increasingly prioritize out-of-court resolutions. Nonetheless, there remains a need for both parties and facilitators to question assumptions around available processes and for process facilitators to make space for diverse forms of knowledge and legal traditions. There is a real opportunity to develop new approaches that can lead to strengthened relationships and greater understanding between parties — but for this to succeed, embedded process assumptions and power imbalances must be addressed.