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ENVIRONMENTAL DISPUTE RESOLUTION: “SUSTAINABLE RETREAT”

ENVIRONMENTAL DISPUTE RESOLUTION: “SUSTAINABLE RETREAT”. BY STEVEN KATONA. BACKGROUND:. CONFLICTS OVER RESOURCE MANAGEMENT INCLUDE: SEAL HUNTING LOBSTER FISHING NATIVE WHALING RAIN FOREST PROTECTION SALMON &COD FISHERY ABORIGINAL LAND CLAIMS OIL AND NATURAL GAS.

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ENVIRONMENTAL DISPUTE RESOLUTION: “SUSTAINABLE RETREAT”

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  1. ENVIRONMENTAL DISPUTE RESOLUTION:“SUSTAINABLE RETREAT” BY STEVEN KATONA

  2. BACKGROUND: CONFLICTS OVER RESOURCE MANAGEMENT INCLUDE: • SEAL HUNTING • LOBSTER FISHING • NATIVE WHALING • RAIN FOREST PROTECTION • SALMON &COD FISHERY • ABORIGINAL LAND CLAIMS • OIL AND NATURAL GAS CONFLICTS IN PROPOSED DEVELOPMENTS AS WELL AS DIFFERENCES OF OPINION ON THE UTILIZATION OF RESOURCES WITHIN A GIVEN REGION. CONFLICTS OCCUR WHEN SPECIAL INTEREST GROUPS INVOLVED CANNOT COME TO AGREE ON WHO OWNS THE RESOURCE AND WHAT JURISDICTION PROCEDURES HAVE TO IMPLIMENTED TO ACHIEVE A RESOLUTION TO ANY MISUNDERSTANDING WHICH COULD ‘ESCALATE’ A PROBLEM WHICH COULD BE AVOIDED WITH SOUND INTERVENTION.

  3. APPROACHES TO HANDLING DISPUTES

  4. RIGHTS/INTERESTS/POWER LITIGATION APPROACH ALTERNATIVE DISPUTE RESOLUTION

  5. JUDICIAL APPROACH TO DISPUTE RESOLUTION

  6. SIX NATIONS’ CLAIMS • The Haldimand Proclamation of 1784 authorized Six Nations to take possession of and settle on lands “six miles deep from each side of the [Grand] river” from Lake Erie “to the head of the river”. • The land referred to in the Haldimand Proclamation came to be known as the Haldimand Tract. The Haldimand Tract was given to the Six Nations for their loyalty to the British Crown during the American Revolution. • As a result of numerous surrenders and land transactions, Six Nations says that the present day reserve occupies less than five per cent of the original Haldimand Tract. Continued . . .

  7. SIX NATIONS’ CLAIMS • Many of Six Nations’ claims stem from disagreements about the surrenders and land transactions. • Between 1976 and 1984, Six Nations filed 29 claims with Canada. One claim has been settled by Canada. • In 1994, Six Nations, represented by the Elected Council, brought a claim in court against Ontario and Canada for an accounting of some of the transactions involving Six Nations’ lands and the proceeds of their disposition. This litigation encompasses at least 14 claims. • Currently, the litigation is on hold while the parties explore options for resolution in the context of the current negotiations. Source:

  8. The Haldimand Tract Those Yankee hearts began to ache, Their blood it did run cold, To see us marching forward So courageous and so bold. Their general sent a flag to us, For quarter he did call, Saying , “stay your hand, brave British boys, I fear you’ll slay us all.” - campfire ballad of the war of 1812

  9. ALTERNATIVE DISPUTE RESOLUTION & “ENVIRONMENTAL JUSTICE”

  10. PROVIDING A “LEVEL PLAYING FIELD” BETWEEN PUBLIC & PRIVATE STAKEHOLDERS ALIKE TO ESCAPE THE CORPORATE DOMINATION OF: • Financial resources • Legal expertise • Access to political power • Dubious ethics • Corporate “science”

  11. DEFINING ENVIRONMENTAL JUSTICE? • Environmental justice involves the right to a safe, healthy, productive, and sustainable environment for all living things, in which ‘environment’ is viewed in its totality, and includes ecological (biological), physical (natural & built), social, political, aesthetic, and economic components. Adapted from: http://www.-personal.umich.edu/~jrajzer/nre/definitions.html • We have always been here on this land we call Turtle island, on our homelands given to us by the Creator, and we have a responsibility to care for and live in harmony with all of her creations. • ...There is harmony in the universe, among all creatures... We do not believe in competition, in the survival of the fittest. We believe all should be cared for in our Nations, that caring and sharing, not self-interest, must be our overriding aims.... Source: OvideMercredi

  12. Styles of dispute resolution: Negotiation, Mediation, Arbitration • NEGOTIATION: Distinctive characteristics include two or more parties involved in a dispute joining in a voluntary, joint exploration of issues with the goal of reaching a mutually acceptable agreement. • MEDIATION: Mediation includes a neutral third party whose task is to help the disputants overcome their differences and reach a settlement. • ARBITRATION: In arbitration the arbitrator’s decision is binding on the parties. This may or not be ‘binding’ as stakeholders can usually pick the arbitrator and decide to act or not if needed. BACKGROUND: ‘Public participation or citizen involvement has been used explicitly since the late 1960’s for resource and environmental management in Canada’ ‘Public consultation in the context of the ideas of partnerships and stakeholders’ ‘By the mid-1980’s public participation moved towards the concepts of partnership and delegated power and noted that all decisions concerning the dispute are the exclusive domain of stakeholders’

  13. NEGOTIATIONS: ADAPTIVE MANAGEMENT: IMPACT AND RISK ASSESSMENTS: BEING ABLE TO MONITOR AND GUAGE ‘ENVIRONMENTAL SYSTEMS’ , WHICH WOULD DETERMINE IF WERE ON THE RIGHT TRACK. • ADAPTING AND MODIFYING PLANS AS NEEDED. MANKIND KNOWS NAUGHT AND BEING FLEXIBLE IN A DYNAMIC ENVIRONMENT IS THE KEY.

  14. MEDIATIONS: • Given that the world is confronted with real and perceived threats from several international arenas we, the undersigned, urge that citizens of our nations insist their elected and appointed government officials immediately engage in honest, direct and unconditional negotiations with all authorities and powers who can resolve these pending crises in ways that are equitable and practical for all concerned without sacrifice to national sovereignty or security. As citizens of the world and as professional negotiators and mediators we urge that proven conflict resolution processes be employed now. -Mediators' Statement developed at the recent Senior Mediators Conference in Keystone, Colorado (10/23/06) PROVIDING AN ALTERNATIVE RESPONSE TO THE RESOLUTION OF A PARTICULAR DISPUTE AMONG NUMEROUS SPECIAL INTERST GROUPS SUCH AS: CITZENS INTEREST GROUPS CORPORATIONS RESOURCE MANAGERS GOVERNMENT GOVERNMENTS ‘TRY’ TO MEDIATE IN ACCORDANCE TO FOR WHAT’S BEST FOR THE PUBLIC IN GENERAL. MEDIATION OFFERS DIRECT SOLUTIONS BY UTILIZING ‘COLLABORATION, COORDINATION, PARTNERSHIPS, AND STAKEHOLDERS’ TO FIND SOLUTIONS TO EACH OTHERS PROBLEMS FOR THEIR OWN BEST INTERESTS.

  15. ARBITRATION: • A NON-JUDCIAL STYLED APPROACH TO MANAGING NEGOTIATIONS THROUGH BINDING ARBITRATION. THIS DIFFERS FROM THE JUDCIAL APPROACH BECAUSE OF ITS NATURE AS SOMETHING WHICH CAN ALSO BE NON-BINDING. FROM THE STAKEHOLDERS PERSPECTIVE EVERYONE MUST WIN. IN THIS APPROACH THE STAKEHOLDERS PICK THE ARBITRATOR INSTEAD OF THE JUDICIAL APPROACH WHEREIN THE JUDGE IS UNDETERMINED AND THEIR DECISION IS FINAL. THROUGH ARBITRATION STAKEHOLDERS CAN WITHDRAWL AND NOT PARTICIPATE. THIS IS A NON-BINDING NEGOTIATION PROCESS DIFFERENT FROM THE LEGAL APPROACH. THE ‘STAKEHOLDERS’ CAN PICK WHO THE ARBITRATOR WILL BE FOR THEIR OWN BEST INTERESTS TO BE SERVED.

  16. CONCLUSION • “We're in a giant car heading towards a brick wall and everyone’s arguing over where they're going to sit.” • “Education has failed in a very serious way to convey the most important lesson science can teach: skepticism” • “The human brain now holds the key to our future. We have to recall the image of the planet from outer space: a single entity in which air, water, and continentsare interconnected. That is our home.” • David Suzuki environmentalist, scientist and broadcaster

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