Preparing Effective Codes of Ethics in Aboriginal Agencies Dale Dewhurst Athabasca University Chicago – LSA, 2010

Desire for a Code of Ethics An Aboriginal agency that: (a) conducts business in a cross-cultural setting; (b) employs Aboriginal and non-Aboriginal employees; (c) wants to conduct its operations in keeping with Aboriginal protocols; may wish to adopt a code of ethics for itself and its employees.

Three Areas of Concern Rooted in Aboriginal oral traditions and natural law – v. positivist, deontological and legalistic considerations. Aspirational, providing direction – v. rule based requiring compliance. Enforcement directed to harmony and healing – v. sanctions for non- compliance.

Why Have a Code of Ethics Increase ethical sensitivity, judgment, support individuals’ moral courage, hone organizational identity, etc. (Olson, review of 500 Codes, IIT) Aspirational - point out what we aspire to, what we hope to become. (Truscott, Ethics for the Practice of Psychology in Canada).

Source of Values Each group has its own challenges and must draw its values from within. Beyond simply legalities of agency operation lie broad discretionary areas for how to conduct business.

Positive Organizational Scholarship (POS) POS (Verbos) moral reasoning, moral development, ethical climate, corporate ethical values, organizational culture.

Positive Psychology Positive psychology focuses on human functioning including flourishing, hope, optimism, and subjective well-being. (Seligman and Csikszentmihalyi) In keeping with positive psychology, POS begins to emphasize such things as excellence, resilience and virtue. (Verbos) Agent-based v. action-based (virtue based v. adherence to rules). (Dobson)

Identifying Aboriginal Values on Their Own Merits Natural law. Relationships. Medicine Wheel - 4 parts of the person. Environment. Recognition of unique gifts. Harmony, healing, restoration. (Nature’s Law Website & Sacred Tree)

Interpreting Aboriginal Values from Within Sacred Tree ( virtue, POS, agent-based ): love compassion generosity patience wisdom justice courage humility renewal purity trust accept others truthfulness generosity loyalty control appetites perseverance spiritual insight daily prayer meditation respect elders fulfillment balance moderation

Interpreting Aboriginal Values from Within – Theft and Property Theft? – Taking items without permission. Property? – The Sacred Bundle of the Blood Tribe. Theft? Aiding & Abetting? – The story of Manygreyhorses.

Equity & Common Law Equity intervened where the common law was deficient in recognizing community values. Spiritual values and natural law were recognized as important principles of equity. Virtue and customary values are at the core of equity.

The Roots of Custom Usage or Conventional Custom – clear, certain, reasonable, generally agreed – may supplant common law. Local Customary Law –prevailing among particular groups (1) not be unreasonable, (2) certain, (3) existed since 'time immemorial‘ – may supplant common law.

Custom Under International Law Not subject to repeal by municipal statutory law; Not necessarily abrogated by treaties; No requirement that it exist "from time immemorial". Must exist only for so long as is necessary to prove the existence of the custom, whatever that time is. Customary practice only needs to be generally accepted, it does not have to be universally accepted. (1) the behaviour must amount to a settled practice; (2) it must be performed in such a way, or with a sense, that it is obligatory.

International Customary Law and Aboriginal Agencies The Canadian Bill of Rights: supremacy of God, dignity of the human person, important position of the family, respect for moral and spiritual values. Lamer (CJ-SCC) - moral and spiritual values, divine natural laws and religious commandments have a role to play.

International Customary Law and Aboriginal Agencies The Charter of Rights and Freedoms: 26 … shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. 27. … interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. The Constitution Act, 1982: 35. (1) … existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed...

Enforcement – Traditional Aboriginal Dispute Resolution Peacemaking. Talking circles. Family or community gatherings. Traditional mediation. All focused on restoration of harmony, balance and healing.

Legal Enforcement – A Second Best Option Elder Assisted: Mediation, Arbitration. Legal Enforcement: Arguments in equity, Conventional Custom, Local Custom, International Customary Law and Canadian Constitutional Law.

Conclusions – Supported in Literature and Law Rooted in Aboriginal oral traditions and natural law - v. positivist, deontological and legalistic considerations. Aspirational, providing direction – v. rule based requiring compliance. Enforcement directed to harmony and healing – v. sanctions for non- compliance.

Dale Dewhurst – Contact For copies of these slides, discussion, comments or suggestions: Dale Dewhurst Athabasca University