Terms in bold are explained in the glossary in Appendix A of this handbook.
The Commission encourages people to try to solve their human rights disputes informally, before the Commission gets involved. The Commission’s practice is to refer potential discrimination complaints back to community-based dispute resolution processes, when they are available.
With this in mind, some First Nations have begun to develop or improve communitybased dispute resolution processes that can deal with human rights issues at the community level.
A community-based dispute resolution process is a procedure (or set of procedures) that an employer or service provider develops to deal with allegations of discrimination. If an individual raises a human rights concern, the process explains how that concern will be addressed and potentially resolved.
No one-size-fits-all model exists for community-based dispute resolution.
Having a community-based dispute resolution process that is fair, flexible, efficient and effective means that the Commission will be less involved in your community. This will increase the autonomy and accountability of your First Nation.
Creating your own dispute resolution process allows you to control how your community’s unique culture, identity, traditions, language and institutions are included in the process.
The Chiefs in Assembly affirmed that the Canadian Human Rights Act “…is imposed on our Nations and is only applicable until such time as First Nations have developed and implemented their own Human Rights models according to their traditions and inherent authority, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.”
Assembly of First Nations Annual General Assembly Resolution no. 19/2010, July 22, 2010
Some advantages of having a community-based dispute resolution process are:
- You can resolve disputes before they get out of control.
- It can help the parties involved feel they have played an active role in designing a solution to resolve the dispute. This can create ‘ownership’ and increase the commitment of the people involved.
- A community-based dispute resolution process is generally easier and faster. This may save legal fees and/or court costs for your First Nation.
A First Nation’s community-based dispute resolution process does not have to be limited to handling only human rights complaints against a First Nation organization. It could deal with other complaints from community members that do not involve human rights.
Generally, First Nations’ community-based dispute resolution processes will use one of the following approaches:
- Traditional Approach – based on traditions and customs passed down from generation to generation
Example: A community could use their traditional practice of holding community meetings and seeking consensus on questions of higher importance, including human rights decisions.
- Contemporary Approach – uses contemporary ways of resolving disputes, such as mediation and arbitration.
Example: The Agreement for the Recognition of the Qalipu Mi’kmaq Band states: “In the event of a dispute between Council and Membership in respect of this By-Law, the dispute may be resolved by either mediation or arbitration if both Council and the members mutually agree to submit to mediation and arbitration.”
- Hybrid Approach – blends contemporary and traditional approaches.
Example: A community may rely heavily on oral tradition but decide to record their dispute resolution process in writing.
The following principles are based on legal rules about what is fair. They were developed based on case law and provide guidance to communities and organizations that want to handle their disputes independently.
1. Make the process accessible.
A process is accessible when members of the community can easily use it. It does not have barriers, like the need for a lawyer. All documents that explain the process should be in clear language, and, if appropriate, in the language of the community. To prevent frustrations set reasonable timelines for each step of the process.
2. Obtain community input about the process.
Community acceptance is important if you want your process to be successful and accountable. Encourage input from all community members, including Elders, women, people with disabilities, youth and members living off reserve.
3. Make sure the decision-maker knows about human rights.
The decision-maker should be trained in human rights principles and laws; or be able to easily access human rights advice from someone who is trained in human rights principles and laws. The decision-maker may also need to be familiar with your First Nation’s values, traditions, customs and laws.
Examples of potential decision-makers include:
- a committee made up of one off-reserve member, one Elder, two people living on reserve, one youth and one person from a neighbouring community
- an Elders’ Council
- an Aboriginal lawyer or judge
- a judicial council made up of people from outside the community, but appointed by an Elders’ Council under a First Nation’s Constitution
- a regional commission, made up of representatives from different First Nations in the region
4. Ensure impartiality and independence.
The decision-maker must not be biased. This means they should have no personal, political, business or other reason to favour one party over the other. The decisionmaker should be able to make an independent decision. This means they should not be influenced improperly by anyone involved in the dispute. Everyone involved should approve the choice of the decision-maker.
When a complaint is made against a First Nation government, the Chief and Council should not be the decision-maker, because they might appear biased.
5. Allow people to bring a representative.
In some instances, mediation or a similar option may be offered. When this happens, the parties involved should be allowed to bring a person of their choice, including a family member, a friend, or lawyer.
6. Give people the opportunity to be heard.
All of the people involved in the dispute should be allowed to have their say and tell their side of the story. This can be done orally, or in writing, as long as both parties have enough time to prepare and present their case.
7. Encourage people involved to share information.
The people involved in the dispute should share information with each other. They must understand each other’s side of the story to be able to respond effectively.
8. Keep information confidential.
Always keep information that is shared confidential. This shows that everyone involved respects the process and the other people involved.
9. Give reasons for decisions.
The decision-maker should give detailed reasons for their decision, either orally or in writing.
10. Ensure the process is acceptable to everyone involved in the dispute.
Remember to consider your process from a human rights perspective. This means making sure the dispute resolution process treats everyone involved with equality, dignity and respect.
Make your process fair by ensuring that there are ways to balance the power of the people involved. Find ways to provide support to people who might be intimidated by the process or afraid of retaliation from the other party. If a settlement is reached all of the parties involved in the dispute should agree to the terms.
11. No retaliation.
A community-based dispute resolution process should clearly forbid any form of retaliation for filing a complaint, being a witness, or accompanying or representing an individual.
Your dispute resolution process does not have to give the same solutions that the Commission’s dispute resolution process might provide. The important thing is that solutions appropriately address the human rights issues and are fair to everyone involved. The Commission supports solutions and settlements that reflect your First Nation’s legal traditions and/or customary laws.
If you want to develop a community-based dispute resolution process, the following tips can help you plan and implement it effectively.
1. Identify the needs of your community.
You must know the needs of your community to develop an effective community-based dispute resolution process. Factors that will help you decide what kind of process makes sense for your community and how long it will take to develop include:
- Your community’s history, and cultural values and beliefs.
- The resources you have available.
- Input from community members.
Public support from your community’s leadership will also help build a successful community-based dispute resolution process.
2. Make the process simple, informal and flexible.
If the process is simple there will be less delays and costs. Community-based dispute resolution processes should be less formal than law courts and offer participants different ways to resolve disputes.
3. Be inclusive from the start.
Make sure you consider all of the members of your community from the very beginning. Try to include people from diverse backgrounds in the development of your process. This includes Elders, women, people with disabilities and community members who live off reserve.
If your process includes mediation; ensure that your list of mediators includes people from diverse backgrounds themselves.
4. Train the people who will be involved.
Training should be provided to all persons involved in managing or advising about dispute resolution. This can include your First Nation’s leadership, managers, directors, human resources and legal staff, and community members. Training should include information about human rights and how the community-based dispute resolution process will work.
5. Communicate with your community.
You could include information about the process as part of the training and orientation your organization offers new employees.
People need to know your community has a dispute resolution process available. Tell people about the process at a special launch, put information on your website, write about it in your newsletter and post information in places where people get together. Make sure you also include information about the process in your daily operations.
6. Monitor and evaluate how the process is working.
Monitor and evaluate the process to see if people are having problems accessing or using it. Evaluation processes should be voluntary and confidential.
Evaluation helps you identify how confident people are that the process will help resolve disputes. It also tells you how satisfied people are with the results.
You can evaluate your process by asking questions like:
- Was the process implemented as designed?
- What are the results? (For example, number of complaints and whether issues were resolved)
- Was the whole process fair?
- What do people involved have to say about the process?
- Are there changes that would improve how the process works?
7. Adjust the process as needed.
Include instructions about how to make changes to the process if evaluations reveal that it is not meeting your community’s needs.
Your First Nation will have to finance its own process. This could include seeking financial help from Indian and Northern Affairs Canada or other government or private grants. The Commission cannot pay to develop your community-based dispute resolution process.
If your First Nation does not have the money, or is too small to set up a process on its own, consider partnering with other First Nations communities nearby. Pool your resources to establish a complaints process that could serve all of the First Nations involved.
Similarly, if your First Nation is represented by a Tribal Council, consider having the Tribal Council establish a dispute resolution process that could serve all First Nation communities that are Tribal Council members.
If developing a community-based dispute resolution process costs too much, create an ombudsperson position to provide information and act as a liaison between community members with human rights complaints and your First Nation organization. An ombudsperson is an impartial person who investigates and attempts to resolve complaints and disputes. For example, the ombudsperson could be a respected community Elder.
The Commission encourages employers and service providers to set up their own dispute resolution processes to address human rights complaints. In most cases when a discrimination complaint is filed, the Commission will ask people to go through their community-based dispute resolution process first, if there is one.
The Commission looks for three things in a community-based dispute resolution process before referring a discrimination complaint to it:
- Can the process respond to discrimination complaints?
- Can the process provide appropriate solutions? (For example, compensation or job reinstatement)
- Is the process “reasonably available” to people? The Commission considers a process “reasonably available” if it is fair, flexible, efficient and effective.
Some First Nations communities already have community-based dispute resolution processes that deal with discrimination complaints.
The goal of a dispute resolution process is to obtain an outcome that satisfies all the parties in the dispute.
If either party is not happy with the result, they can ask the Commission to deal with the discrimination complaint.
See Chapter 4 of this handbook for more information about the Commission’s dispute resolution process.
Chief Pine’s Story
Chief Gayle Pine is the Chief of the Pine Tree First Nation.
The Smith family lives on the Pine Tree First Nation. Chief Pine knows Gerry and Marian Smith, as well as their son Mike. Mike has a progressively disabling condition that affects his mobility. Mike uses crutches to get around and his health care specialists have said that he will soon need a wheelchair. The school Mike attends is not accessible for people with disabilities.
One day, Gerry and Marian ask to meet with Chief Pine to talk about making the school and other reserve facilities wheelchair accessible. Gerry and Marian explain that getting around the school is becoming more difficult for Mike. ç
There is no washroom on the main floor, so Mike must drag himself up a flight of stairs when he needs the washroom. When he gets there, he must yell for the janitor to help him open the door. Gerry also has to carry Mike in and out of the school every day, because there are stairs at the entrance. Marian says that there are similar problems at the health unit and the recreation centre.
Chief Pine is very concerned by Mike’s situation, but the First Nation does not have the money to pay for the ramps, elevators, washroom renovations and other costs to make the community’s facilities accessible to people with disabilities.
The Smith family decides to contact the Commission about filing a discrimination complaint against the Band and Indian and Northern Affairs Canada.
Chief Pine receives a phone call from a Commission human rights officer. The officer advises Chief Pine that the Smiths want to file discrimination complaints against the Pine Tree First Nation and Indian and Northern Affairs Canada. The Smiths allege that the Band discriminated against their son, Mike, by not providing wheelchair accessible facilities. The human rights officer invites Chief Pine to participate in a mediation process.
Chief Pine tells the human rights officer that Pine Tree is piloting a new communitybased dispute resolution process. She asked if the Smiths would participate in the Pine Tree First Nation’s Conflict Resolution Circle to resolve the issue.
The Conflict Resolution Circle has different tiers or levels, depending on the kind of conflict and what the parties hope to achieve. The goal is to bring everyone affected by the dispute together to share their views and resolve the issue.
An Elder acts as an independent third party. There is also a Committee consisting of:
- a member living off the reserve
- two members living on the reserve
- a youth representative
- a second Elder who helps people that find the process difficult or scary.
Within a week, Chief Pine and the Smiths meet with the Elder and the Committee. The Elder gives the Smiths a chance to tell their story first. Chief Pine speaks next.
They also have a discussion about the cost of the renovations and the benefits these changes would have for the community. Chief Pine and the Smiths agree to work together to inspect the school and create an action plan to make the school more accessible. The action plan will identify what needs to be done immediately and what can be done as part of regular maintenance over time. They also agree to do the same thing at the health unit and the recreation centre.
The Smiths decide not to take the discrimination complaint any further. They notify the Commission that they have come to an agreement with Chief Pine and want to withdraw their complaint. The Commission agrees and closes the file.