Over the past few decades Canadian courts have called for a collaborative and restorative approach to negotiating settlements on a host of issues facing Indigenous communities. More recently, courts across the country have also defined and upheld the duty to consult, thereby triggering a seemingly endless string of tension between First Nations, governments, and industry.
But despite these directives, meaningful reconciliation has been largely evasive and parties to these challenges are left to their own devices to determine the manner in which these disputes can be addressed outside of the judicial forum. Essentially, parties are being encouraged to the table with little else than a directive to negotiate, thereby illuminating the question of how meaningful reconciliation can be achieved within this void.
Shifting this paradigm will require parties to first understand and appreciate the negotiation process before they can secure the benefits of a collaborative exercise.
Today, many communities and organizations have found themselves immersed in negotiations or looking to processes to assist them in addressing important issues within their communities. Moreover, reconciliation of historical, legal or economic circumstances of many communities with their immediate or distant neighbours has been an ever increasing current throughout many communities.
Matters such as land claims, commercial development, governance, fiscal arrangements and partnerships are among the few issues in which many leaders require the tools to overcoming the challenges associated with these issues. And while helpful, directions from the courts or an invitation to negotiate are not themselves a solution for more settlements or better outcomes. Shifting this paradigm will require parties to first understand and appreciate the negotiation process before they can secure the benefits of a collaborative exercise.
Assuming negotiated solutions with desirable outcomes are the goal of every leader, securing more desirable and predictable outcomes becomes more possible when leaders possess the tools necessary to consummate reconciliation. Where there are willing participants to collaborative engagements, Indigenous communities can place themselves in a desirable position to use these authoritative directions to develop processes that generate better outcomes, better decisions and ultimately better futures for their communities. At its core, interest-based negotiation is essentially a collaborative process, not a competitive one, that requires parties to commit to an exploration of interests and imposes a structured framework that guides participants to better outcomes as negotiation partners as opposed to adversaries.
Aboriginal communities are increasingly advocating interest-based negotiations as a critical tool in processes designed to reconcile differences and achieve mutually beneficial outcomes. Seven core concepts are critical to effective interest-based negotiations including relationships, communication, interests, options, legitimacy, alternatives and commitment. The goal is to discover the interrelationship of these intuitive elements and learn how to apply them in various circumstances.
While these seven elements are critical to effective interest-based negotiations, intensive and methodical planning enhances the potential of better outcomes and prepares Aboriginal communities and organizations to face some of the difficult decisions necessary to achieve success. A commitment to an interest-based process will ultimately improve a party's bargaining position once they are prepared to negotiate. Applying this process allows for a greater understanding of not only your community's interests, but those of the other party as well. It thereby enables leaders and communities to evaluate their own strengths and weaknesses and identify options that may not have seemed as obvious at the outset.
While negotiation is certainly no guarantee of reconciliation, an interest-based approach can be a valuable tool for addressing these challenges, creating opportunities to shift the paradigm from competition towards collaboration and ultimately reconciliation.
Troy G. Chalifoux, B.A. L.L.B., is a Cree-Metis lawyer and negotiator. He is the faculty lead for the Peter Lougheed Leadership Institute's Indigenous Negotiation Skills Training Program and a sessional instructor at the University of Alberta, Faculty of Law where he teaches Industry, Crown, First Nations Negotiations.
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