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This painting entitled: Two Ways: Yapa and Kardiya Ways depicts the Aboriginal dispute-resolution process at Ali Curung in the Northern Territory. It is reproduced with the kind permission of the artists, Gwen Brown and Marjorie Hayes, members of the Kurduju Committee from Ali Curung.
Conflicts of views between people and complaints about how things are done are common to every society and organisation.
However, if tensions and differences of opinions are left unresolved for too long, they can turn into irreconcilable disputes that poison the air and destroy people’s ability to work and live together.
Most societies have ways to protect peace and order, impose sanctions and punishment, deal with complaints by citizens, and mediate disputes.
Doing this well and fairly is a fundamental part of effective governance.
However, there can be major differences across cultures about what people consider to be ‘fair’ and the ‘right ways’ of settling conflict and restoring harmony.
This is the case for Aboriginal and Torres Strait Islander nations and their organisations that have to operate under and negotiate between two very different cultural ways of dealing with disputes and grievances.
This topic gives you a broad introduction to this very challenging area, focusing on disputes about governance. It includes tips about the principles and processes involved, along with tools and guidelines for dealing with some commonly encountered problems.
Today, Aboriginal and Torres Strait Islander people and their organisations operate under two very different systems of laws.
Incorporated organisations are established under western legislation that spells out legally what a conflict is (for example, a conflict of interest) or a grievance (which could be about an election process or decision), and what procedures should be followed (including appeals, complaints and audit procedures).
Aboriginal and Torres Strait Islander people are citizens living under the Australian parliamentary and common law inherited from the British legal system. Their lands and communities are located and regulated within the administrative boundaries of mainstream governments.
But they also have their own cultural identities and continue to adapt mechanisms for mediating disputes, resolving grievances and restoring social harmony that are based on their ancient systems of law, networked relationships and jurisdiction.
There are common underlying values and processes that can be seen at work across the country when Aboriginal and Torres Strait Islander people deal with disputes, wrongdoing and grievances.
| In general, Aboriginal and Torres Strait Islander culture-based mechanisms for managing and settling disputes and wrongdoing are: |
| action-oriented and physical. Punishment and sanctions involve law-based and regulated restitution, revenge or injury. |
| socially based. Conflicts seep into wider social networks, people ‘in the wrong’ may be sent away by the group, or may initiate their own self-imposed absence from the group or community. |
| material and monetary. Restitution and compensation are valued, including the exchange of cash, food, services or commodity goods. |
| religious and spiritual. Individuals with legitimate authority and power act as enforcers of punishment, people may participate in cleansing rituals, or the wrongdoer may be excluded from valued religious ceremony and knowledge. |
| symbolic and performance-based. Ritualised peacemaking apologies and highly orchestrated reconciliation fights may be performed. |
The closely networked, kin-related nature of Aboriginal and Torres Strait Islander society means that conflict and wrongdoing can quickly spread across a wide circle of people.
This means that in order for resolution of disputes and grievances to be considered legitimate and fair, that wider circle of people needs to be included.
At the heart of Aboriginal and Torres Strait Islander systems of law and related mechanisms is the desire to:
This is different from Australia’s western legal system, which has a focus on:
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Aboriginal and Torres Strait Islander dispute resolution
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Western dispute resolution |
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The close family, elders and wider community work out what the dispute or wrongdoing is about, who it has affected, and how it will be resolved or punished. |
Strangers (external professionals) determine the nature of the dispute or wrongdoing, and how it will be resolved or punished. |
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Punishment and peacemaking processes are made by consensus among all participants, according to Aboriginal and Torres Strait Islander laws and legal precedent. The aim is both personal punishment and restoration of the wider social equilibrium and collective identity. |
Punishment is determined according to formalised laws and legal precedent. Peacemaking and restoration of collective identity are not considerations, although individual rehabilitation is. |
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Participants take into account not only the impact on the ‘victim’, but also the wider, critical factors of social and religious impact. |
The impact of the dispute or wrongdoing on the ‘victim’ may be taken into account by the court. |
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The people directly involved in the dispute (victims and offenders) are also involved in the customary law process, including determining innocence or guilt and advocating punishment or other restorative solutions. |
External advocates are used. |
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Decision making is collective and by consensus, sometimes taking considerable time and negotiation. |
Decision making is hierarchical and formalised through institutions such as courts, hearings, professional members of the judiciary and jury systems. |
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A wider group of people may be included in the punishment, peacemaking and compensation. |
Only the ‘offender’ is punished. |
“In Yolngu communities it’s very hard to use balanda [non-Indigenous] law system to bring about conflict resolution and restoration between families and clans. Balanda systems of law break and damage relationships between people, family and clan groups. This is because balanda system of law is very hard for us to understand and also does not come out of Yolngu dispute and conflict resolution practice and process.”
(Djiniyini Gondarra, Mawul Rom Project, Yolngu Nation)
The differences between the two ways of law and dispute resolution present major challenges for effective governance.
Western systems of dispute resolution are seen by Aboriginal and Torres Strait Islander people as imposing alien values and legal processes, and undermining or ignoring important relationships between family groups, clans and communities.
On the other hand, while many Aboriginal and Torres Strait Islander nations and communities continue to place a high value on their own laws and processes, they face practical difficulties in the contemporary conditions of many of their communities. For example:
To meet these demanding conditions, Aboriginal and Torres Strait Islander people are crafting innovative ways of restoring their self-determination and delivering their own peacemaking and dispute-resolution processes, including:
Many groups are also collaborating with non-Indigenous courts, magistrates and government agencies to design alternative approaches and local community courts that work two ways and take Indigenous values and restorative goals into account.
The challenge for Indigenous organisations and projects is to meet their statutory requirements for dealing with disputes or wrongdoing, while seeking out and designing rules and processes that have cultural legitimacy with Aboriginal and Torres Strait Islander people, and creating outcomes that win their support.
KALACC’s mission is the maintenance and promotion of the traditional cultures of the 30 language groups of the Kimberley region of Western Australia.
“We got lots of kids not following our culture, they not following mainstream culture, they following lazy culture. So bad things are going on. We gotta stop the bad things and concentrate on the good things. Over the last 10 years we support them in every way we can. We try and meet their needs, help them find jobs. We have work-based projects, we try and find contracts for them. We linking people up with educational institutions, we network, we organise agencies to go out to communities and run programs …. All of this happen while we go back to country, learning from the old people about culture, skin and the old stories. We grateful for leadership that does all these things and this is what Yiriman has been doing for 10 years.
(Anthony Watson, Yiriman Bosses Meeting 2010)”
(Quote from Yiriman application to Indigenous Governance Awards, 2012)
Conflict is natural and can even have positive outcomes if it is properly managed and lessons are learned.
For that to happen, you need to have procedures, rules and policies to prevent, detect and deal with disputes and complaints, and to implement your decisions and solutions.
Conflicts and grievances within Aboriginal and Torres Strait Islander organisations and communities can be extremely complex—many have long histories, and bring into play large social networks and overlapping rights and interests.
The issues under dispute may be emotionally charged and based on deeply felt cultural values and explanations that are not easily understood by outsiders.
Dealing with such situations requires considerable experience and intercultural sensitivity.
Whatever the issue, your processes will be more effective if they are informed by best-practice cross-cultural principles that build two-way legitimacy and accountability.
The principles below will help inform such an approach.
Aboriginal and Torres Strait Islander people have the right to processes, rules and agreement outcomes that:
(Adapted from Toni Bauman, ‘Final Report of the Indigenous Facilitation and Mediation Project’, AIATSIS, 2006)
Resolving disputes, grievances and complaints isn’t easy; especially if intercultural values and expectations are called into play.
To be an effective mediator of any form of conflict you need to have personal sensitivity, authority, astuteness, cross-cultural communication skills, and be trusted and respected.
Today, Aboriginal and Torres Strait Islander organisations often find themselves at the frontline of trying to resolve disputes and complaints involving their members, governing bodies or staff.
As a result, many are investing in:
All governing bodies or community committees involved in dispute resolution, mediation or agreement making should have relevant skills and information, or be able to secure them externally.
“Misunderstanding and misinformation is a major contributor to conflict.”
(Toni Bauman, 2007, Indigenous Law Bulletin Vol 6, No 29)
Many grievances and disputes arise from governance arrangements themselves and can involve multiple parties.
For example, conflict may occur:
This is a list of several hotspot areas in your governance arrangements that can quickly become the source of complaint and conflict:
Effective governance involves stewardship—that means being able to lead on behalf of all your members in a way that safeguards and promotes the exercise of their collective and individual rights and interests.
Effective governance also means being able to plan, organise, delegate and give direction.
If your dispute resolution policies and procedures have not been developed, are not well understood or are not enforced:
Decisions about disputes and complaints should not be based on particular family connections, a single leader’s opinion or a romanticised view of how things may have been done in the past.
It is important to develop approaches that not only respect and reinvigorate cultural values but that can also work successfully in the practical situations people face today.
“We are strong. We talk about things together. If there are mistakes or any problems we find out what the problems are first and work out what to do. We work out what to do together.”
(Gloria Mengil, Director Waringarri Arts Aboriginal Corporation,
Application to Indigenous Governance Awards, 2012)
Before leaping in to fix a problem, it is useful to step back and get the facts.
The first step is to understand what the dispute or complaint is about, who is involved, the history behind it, and the nature of the interests and rights involved.
From there you can move on to consider what agreed values, rules and goals might inform your process and outcomes.
This tool will help groups and organisations understand the causes of a conflict or complaint, consider the range of views, values and actions involved, and then think about ways to deal with the issue based on those understandings and agreed rules.
Some disputes and complaints will arise from within the members of a community or nation, while others will arise from within organisations.
Many of the leaders and organisations involved in the Indigenous Governance Awards see complaints from their members as a positive means of improving their governance and services. Others pride themselves on receiving very few.
Common grievances coming from the members of nations and communities have to do with:
When disputes and complaints occur about these matters, it is essential that governing bodies, leaders and organisations have clear, well-known mechanisms and procedures for fair dispute resolution that are locally supported and effective.
The legitimacy of governance is directly linked to having a strong mandate from the members of your community or nation.
That means being able to engage with and support them in resolving internal tensions, differences of opinion and outright conflicts.
Many of the organisations applying to the Indigenous Governance Awards have developed specific approaches for dealing with their members’ grievances. As seen below, they often share the same common steps.
Today, organisations are aware of the importance of responding with care to complaints and grievances from their members and wider stakeholders.
Overwhelmingly, people name communication, fairness and cross-cultural sensitivity as critical factors in doing this.
“For all complaints (internal or external) all staff involved in the resolution process should ensure the principles of natural justice are followed, including:
(ANKAA Application to the Indigenous Governance Awards, 2012)
It is important to recognise the limitations of formal processes and policies for dealing with disputes and grievances when the underlying issues are long-term, politicised and bitter.
There may also simply be a lack of time, resources and capacity to take on the heavy workload associated with resolving entrenched disputes about governance.
If the community or group itself is split with factionalised interest groups, apathy, nepotism or poor self-determination, then:
Economic success itself may increase disputes, as disadvantaged people compete for scarce resources, feel entitled to certain things, and make greater demands on their organisations.
In these circumstances, trust in the decisions of leaders and governing bodies can quickly diminish, and the good of the whole nation or community (and future generations) may take a back seat.
On the other hand, your members will be more capable of resolving their own disputes and will demand excellence and a high standard of conduct from their leaders if they:
Every organisation will experience periods of internal discord, tension and conflict. But they must have ways of resolving these if they are to carry out their functions and achieve their goals.
There are some common sources of complaint arising within organisations. Most have to do with the professional roles and relationships within and between the governing body, management and staff, as seen below.
When these sources of discord are allowed to continue unchecked, the internal culture of an organisation can quickly deteriorate into one of mistrust and rumour mongering, where decision making, teamwork and outcomes are undermined.
This is where having clear policies and procedures that are well understood, respected and consistently enforced becomes critical both for prevention and effective intervention.
You can use this check-up to see what you are doing well to manage disputes or grievances in your organisation or group and get ideas for other things you could do to improve your processes.
This check-up can be used by organisations to get a quick idea of where they are at in the ways they handle dispute, grievances and complaints.
It shouldn’t replace a thorough evaluation of your arrangements. It is simply a starting point, to give you an overall picture.
Its main purpose is to help you:
Those organisations that have developed stable and enforceable policies and procedures for dealing with internal conflict and complaints are more resilient in times of great change and external crises, and more likely to achieve their goals.
Most solutions share the same common steps for dealing with complaints and disputes (such as those set out in section 8.4.2).
“Warlpiri issues will be dealt with initially by meeting quietly with Elders, directors or members as required. Staff disputes will be handled initially by the Operations Manager and if this is not appropriate or ineffective, by the directors.
If the dispute is about the Act or the corporation’s rules, the directors or any of the dispute parties may ask ORIC for an opinion. If the directors cannot resolve the dispute, it must be put to the members to resolve at a general meeting.”
(Warlpiri Youth Development Aboriginal Corporation, Application to the 2012 Indigenous Governance Awards)
Today, instead of adopting off-the-shelf rules created by others, many Aboriginal and Torres Strait Islander organisations are developing their own customised policy manuals and codes of conduct to suit their specific needs and operating environments.
To back these up, they then provide in-house training and inductions on these, in order to pre-empt internal tensions, misconduct and conflict.
The best approaches usually have clear definitions about:
“Board members are commonly recruited to bring diverse views on issues to board debates and decision making. Constructive disagreements between board members are encouraged in a well-functioning board. They can generally be managed by following proper rules of procedure and encouragement of good listening skills. However, in the heat of board debate, disagreements sometimes degenerate into serious conflict on issues or between personalities.”
(Canadian Institute on Governance , Policies for First Nations)
While differences of opinion are normal, ongoing conflict between the members of a board will undermine the board’s overall capacity to govern well. Examples of ongoing conflict include:
Behaviour like this presents a poor example to staff and community members, who may then think it is acceptable to follow suit.
Such behaviour constitutes a failure of governance and can seriously damage an organisation’s good reputation and effectiveness.
It may even result in demands for greater accountability, or unilateral intervention, by external agencies into the governance of your organisation.
These internal problems require strong remedial action.
This is a tough thing to do, but being able to negotiate these sensitive issues is a sign of mature governance.
The chairperson of the governing body needs to have the confidence and experience to intervene, provide advice and support to resolve tensions, and be able to work with individuals on the governing body who may be experiencing difficulties in their duties.
The top manager has an important role in supporting the chairperson’s mediation role, and encouraging the governing body to follow its own code of conduct.
Both the chair and top manager need to be able to work well together to maintain internal harmony and teamwork within the governing body.
Today, many Aboriginal and Torres Strait Islander organisations are developing innovative strategies to build the capacity of their governing bodies to deal with their own issues of conflict and misconduct, and to better support the same processes amongst their managers and staff.
Effective strategies to build the capacity of governing bodies to deal with conflict and misconduct include:
If you are an incorporated organisation registered with the Office of the Registrar of Indigenous Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) you can also ask the registrar to intervene to resolve disputes.
Good communication, trust and mutual respect between a governing body and its executive management is essential to effective governance.
One of the most important duties of a governing body is to hire, supervise, evaluate, and dismiss their top manager. Unfortunately, this job is often poorly done by the governing body, or undermined because of tension and conflict between its members and the top manager.
When there is antagonism, distrust and low mutual respect in this important relationship, an organisation will begin to travel in directions that are contrary to its overall vision.
Ongoing conflict is a common cause of high turnover of leaders, managers and staff, and a critical factor in the success or failure of an organisation.
This relationship needs to be a real working partnership, so it is important to ensure that early signs of discord or dispute are addressed early. Below are several effective strategies.
Effective strategies include:
The best atmosphere for staff members is one of collaboration, mutual respect and stable leadership from above. The staff of many successful Aboriginal and Torres Strait Islander organisations have described it as ‘being like a family’.
“A workplace that is physically and emotionally safe is conducive to productive, harmonious work relations.”
(‘Maps to Success. Successful Strategies for Indigenous Organisations’, AIATSIS 2007)
When internal conflict or tension does arise—whether among staff members or between them and management—it is best resolved, initially, by the most immediate level in the chain of command. The facts should be considered and the relevant parties brought together for discussions.
If this is not successful, the top manager should intervene to make a final decision or take the process to another stage of mediation.
Some organisations expect their governing bodies (and specifically the chairperson) to become involved in conflict between management and staff. Others specifically restrict this from happening. Many organisations develop processes to ask leaders or elders from the wider community for advice and intervention.
Whatever your approach it needs to be well communicated to and understood by all staff.
Staff dissatisfaction and poor work performance can easily erupt into disputes or grievances, but can be effectively prevented through several effective strategies.
Effective strategies include:
Getting people to agree can sometimes seem easy—people may say they are satisfied when in fact they are not.
The real trick is getting an informed consensus and satisfaction to last—and to work.
When setting up meetings, discussions, or making decisions about disputes and complaints, it is a good idea to remember that most people have interdependent needs they want considered.
In order to achieve agreements and decisions that will last, people must feel that the dispute resolution and complaint processes and outcomes are:
(Adapted from ‘The Satisfaction Triangle: A Simple Measure for Negotiations and Decision Making’. The Indigenous Facilitation and Mediation Project, 2004. AIATSIS, Canberra)
It is not possible to please everyone all of the time, but in order to get an outcome that moves people out of dispute mode into more cooperative behaviour, check whether you have considered these three areas of interest.
All organisations come across controversies about changes or decisions under consideration at meetings. Many are driven by issues and personalities.
This is not necessarily a bad thing, but the way they are handled can determine whether an organisation will emerge from the discussions bruised and divided, or healed, confident and united.
Here the role of a good chairperson or facilitator is invaluable.
All organisations run into controversies about issues or changes under consideration. This is not necessarily a bad thing, but the way it is handled can determine whether an organisation will emerge from the discussions bruised and divided, or healed, confident and united.
The following tips for managing controversies in meetings are drawn from Eli Mina Consulting.
If the substantive issue under dispute or the subject of complaint is not adequately addressed, the parties involved will not be satisfied or will not change their antagonistic behaviours.
Several effective strategies and tips are set out below.
The Canadian Institute for Conflict Resolution suggests these techniques to help manage issue-based conflicts.
If emotional or personality-driven conflicts become entrenched into politicised positions they are extremely difficult to resolve.
Early intervention based on objective, fair and open processes is critical to addressing these conflicts.
The following tips are adapted from tools developed by the Canadian Institute on Governance to help manage conflicts that are based on personality, personal or political agendas, or other more deep-rooted causes.
It should go without saying that if the people who are most directly involved in a dispute are able to actively participate in determining the process and making decisions, the more sustainable the outcome will be.
Yet this is an area where organisations often resort to closed ranks and hierarchical decision making.
Promoting Aboriginal and Torres Strait Islander consensus methods of decision making into the arena of dispute resolution within organisations can significantly enhance the success and resilience of outcomes.
This means enabling your staff members to become collaborators in developing their own codes of conduct and making collective decisions about what constitutes fair process.
This tool provides a basic five-step model for a group approach to problem solving using a facilitator.
It has been adapted from ORIC resources.
Developing a confidential, flexible and fair grievance policy
Maari Ma Health Aboriginal Corporation is a community controlled regional health service providing for the needs of Aboriginal people in far west NSW.
Maari Ma promotes a friendly and supportive workplace where staff are able to perform to the best of their ability with confidence and respect. They have a grievance policy to support staff who feel they have been unfairly treated, to work through issues and actively contribute to a resolution. Their grievance system is confidential, flexible, fair, focused on resolution and accessible to all staff. The Human Resource Manager supports staff and managers in the process of managing grievances and developing confidence and experience to appropriately respond to staff issues. Some issues which cannot be resolved internally may end up being mediated by an independent party.
