- January 7, 2019
- Posted by: Tricia Wong
- Categories: Family Dispute Resolution (FDR), FDR Updates, FDRIO News
by Amanda Jerome as appeared in The Lawyer’s Daily on January 3rd, 2019
Approaches to conflict dispute resolution are different in the Indigenous family context and legal professionals need to educate themselves on cultural variances in order to ethically and effectively assist them, explained Katherine Hensel to attendees of the Family Dispute Institute of Ontario’s annual conference on family dispute resolution.
Hensel, founder and principal lawyer at Hensel Barristers in Toronto, was the keynote speaker on Indigenous Families — Approaches to Conflict Resolution and noted the myriad of differences between Indigenous and non-Indigenous people that must be kept in mind during dispute resolution.
“I’ll give you an example,” she said, explaining to the audience that when she goes to visit her relatives in northern British Columbia she has to adapt to the way her people communicate.
“It takes me two or three days to realize that people are speaking to me because, particularly for the northern communities, it is very rare in a casual, social environment or familial environment, to speak face-to-face,” she added.
Hensel, who is Secwepemc, said communication is done in a more “walking side-by-side” way, instead of directly. She explained that it takes her time to appreciate that people are engaging with her and to some this may appear as diffidence.
“It’s not a form of deference. It’s not shyness. It’s the proper way to speak, which is not viewed as a superior way to speak to how anyone else speaks, but it’s very different and in order to be a Secwepemc citizen and interact effectively within my own community, I need to carry myself in a different way,” she said, adding that she can spend the entire afternoon with her relatives and communicate verbally with only 10 per cent of the words that would typically be spoken in a non-Indigenous setting.
Hensel added that this non-verbal way of conversing is “not confined to the Secwepemc people.”
She spoke of travelling from Toronto’s island airport, which many Indigenous people use to fly to northern communities. “… back when there was a boat that used to take us across the little waterway there, I would get on the boat, and of the 150 people on the boat there would be maybe 30 Indigenous people. We all greeted each other. A look, a slight nod. All 30 people. We’d known we’d done it. That was our acknowledgement and greeting. It would have been rude to do otherwise, and it was pretty thorough. I’m pretty sure none of the non-Indigenous people on that boat had any idea that there was communication going on.”
She explained that this is just another example of how Indigenous peoples differ in communication. And this can have a huge bearing on conflict dispute processes.
In many Indigenous cultures, Hensel added, “it’s not only rude, but unethical and ineffective, not pragmatic — it’s just wrong, to directly contradict someone.”
“Think of what that means for me. I am a litigator by education, skill, training and temperament. Contradicting people is what I do for a living, which is one of the reasons there are so few Indigenous litigators,” she added, noting that this cultural context makes it difficult for non-Indigenous people to effectively guide Indigenous peoples through a dispute resolution process.
“[I] can alert you to the fact that it can distort your process and render it not only ineffective, but actually oppressive if you’re not aware of whether, why and how, Indigenous people approach the resolution of a dispute and approach effective, appropriate communication. Even approaching the framing of disputes in the family law context, there’s an enormous gulf between the experience and engagement of Indigenous people generally and that of non-Indigenous people,” she said.
Hensel noted that approximately 50-60 per cent of her practice deals with Indigenous child welfare. She explained that Indigenous people are often engaged with the family court system involuntarily.
“They are there because of the statutorily authorized intervention of a child welfare authority or because a non-Indigenous spouse has dragged them there,” she added.
Hensel said the majority of Indigenous people do not want to go to the courts to resolve issues such as child access and custody. “We operate with different underlying values and assumptions.”
“Generally, with some limited exceptions, we do not view Canadian and provincial courts as having much to do with what would be either helpful or appropriate,” she explained, adding that these matters are resolved within families or communities “as much as possible in the face of colonization, and alienation of the culture, and the power of the laws in dispute resolution processes amongst ourselves.”
One of the family law cases Hensel was involved with, she said, involved a man who believed that the provincial law had no bearing, application or jurisdiction over the resolution of the dispute with the mother of this child.
“He asserts, and continues to assert, a constitutional right under Canadian law to have his ability to be governed exclusively by Haudenosaunee law,” she said, adding that this man’s perspective is the predominant one among people living in Six Nations, which has over 22,000 residents.
It’s important to remember, Hensel stressed, that from the perspective of Indigenous people, everything from underlying assumptions to the legal frameworks and procedures, is not “culturally neutral.”
“It’s not a matter of making you, or these processes, culturally competent to deal with Indigenous people. What you do is culturally determined,” she said, adding that there is a tremendous gulf in perspective between Indigenous and non-Indigenous people.
Despite these differences, and the preference to deal with family issues within their own communities, Hensel added, non-Indigenous people may be asked to be involved with Indigenous conflict resolution. She said the majority of child welfare cases involve Indigenous peoples.
Some of the more concrete elements or implications of these cultural differences and legal differences are so profound, she said, that not being aware of them goes beyond lack of training and education, but a lack of cultural awareness from birth.
“What your parents didn’t know, and your grandparents didn’t know, and your teachers didn’t know, they cannot teach you. They cannot have a model for you,” she stressed, adding that when she worked as the assistant commission counsel on the Ipperwash Inquiry, the biggest gap it identified was in education.
“Canadians don’t know Indigenous people. They don’t know who we were and don’t know about the relationship. They don’t have accurate information about the relationship between Indigenous peoples and Canada as state. And why we are what we are,” she explained, adding that this is evident in the court system.
“People say, ‘I see and deal with Indigenous people all the time,’ ” she said, noting that this is not complete exposure if it’s only through the court system.
“If that is one’s exposure to indigenous people and you’re dealing with a docket that’s 80-90 per cent Indigenous on criminal day or child welfare day, it’s not inaccurate, but it’s such a woeful picture, and it’s echoed in the media as well, of who we are and what we are,” she added.
Hensel said Indigenous peoples need to reclaim, not just dispute resolution, or being a lawyer, or exercising statutory authority over child welfare and doing it in a culturally competent way, but the ability to fulfil their own obligations and rights.
“For better or for worse, it needs to be done by Indigenous peoples and leaders and governments. And it needs to be resourced in that way,” she added.
However, “we’re not there yet,” Hensel noted, again stressing that non-Indigenous people will be called on to assist in Indigenous disputes. The best advice she could give to people to prepare would be to “educate yourself.”
“Read the Truth and Reconciliation Commission report. It goes well beyond describing the direct experience of people living in residential schools and the intergenerational suffering and its consequences. Do what you can to expose yourself, and this is not just for your professional role, but as a Canadian, expose yourself to and educate yourself through the cultural mechanisms that we employ that reflect us, and our cultures and our laws, that are blooming with health,” she said, pointing to movies and books, such as Seven Fallen Feathers: Racism, Death, and Hard Truths in a Northern City by Tanya Talaga.
“They will convey a lot of knowledge and information that really, through an unfairness not only to us, but to you, was not given to you. [It] intergenerationally has been actively withheld from Canadians, but without it it’s impossible to not only do an effective job, but to know whether you’re actually doing harm,” she noted, adding that culture is also “transmitted through relationships.”
Hensel said mutually respectful and trusting relationships with Indigenous peoples is the best way to educate people.
“There is no one Indigenous person that speaks for all Indigenous people,” she stressed, while adding that if people want to learn, they should reach out and ask.
She cautioned, however, that the relationships can’t be a time and energy suck on the Indigenous person and should a friendship that has “mutuality and is respectful.”
“That’s the most efficient and effective way to learn,” she concluded.
The Family Dispute Resolution: Through The Lens Of Change conference was held in Toronto on Nov. 19-20, 2018.