Transformative Mediation for Aboriginal Peoples: Mornington Island Restorative Justice Project
Comprehensive Review of the Transformative Mediation Project on Mornington Island
In this blog post, I examine the case study of the Mornington Island Restorative Justice (MIRJ) project. This project centres on both transformative mediation and restorative justice mediation, attempting to provide mediation services that meet the needs of an Australian Aboriginal community that lives between two worlds: a traditional world and a settler world. I conclude that the case study succeeds in creating a mediation project that serves the needs of its people and mediates not just between victims and offenders, but also between Aboriginal justice and Settler justice.
The primary documents I will use for data on the MIRJ case study are the consultations, interim evaluations, and final evaluations executed and published by the Queensland Department of Justice and Attorney General (DJAG). I will also draw upon collaboratory articles between the DJAG and leaders of the Junkuri Laka, the organization currently leading the MIRJ. This case study recognizes that all of this data is retained by the Traditional Owners and people of Mornington Island, as they serve as the joint custodians of the project.
Introduction
Mornington Island
The largest island in the Wellesley Island group, Mornington Island is located in the Gulf of Carpentaria and lies under the jurisdiction of the Queensland Provincial Government. The island has a population of around 1,100 people, with the majority living in the main town Gununa (Office of Economic and Statistical Research, 2010). Roughly half of the population is age 24 years old and younger, while less than 10% of the population is over the age of 55 (Venables, 2012)The majority of the population is Aboriginal Australians, and within the Aboriginal Australian community, there are four primary Aboriginal groups. The Lardil Aboriginal group are the original people of Mornington Island. The Yungkal are the Aboriginal people who came to Mornington Island from the islands closer to the mainland. The Kaiadilt are the Aboriginal people who came to Mornington Island from the South Wellesley Islands, and the Gangalidda are the people who were relocated from the nearest mainland to Mornington Island (Browning, 2011).In 1914, Christian missionaries established a mission and administered the island. In 1978, under the Queensland Aborigines Act, the Queensland government took over administration of the island (Venables, 2009). This brought a slew of troubles for the Aboriginal community. The local government relied heavily on funding from the island’s “beer canteen” and the local council pushed sales of alcohol on the island, leading to increased alcoholism. Traditional conflict resolution practices were outlawed, so there was an increased reliance on the police system, and crime rates increased drastically (Roughsey et al., 2017). Mornington Island was designated a “dry community” in 2003, with all alcoholic beverages, homebrew, and homebrew materials deemed illegal (OESR, 2010). These difficulties, as well as its isolated location leads to high amounts of conflict.
Aboriginal Australian ADR
Aboriginal Australian Alternative Dispute Resolution (ADR) is a growing field of research that is incredibly crucial to decolonizing justice. Aboriginal individuals live in both the Settler/Western worlds and their Indigenous/Traditional worlds; no one form of ADR from either world can fully address the issues that they face. It is necessary to adapt ADR to these decolonial worlds (NADRAC, 2006). Currently, Australian legal systems has establish ADR options in the Native title field, family law field, and the criminal justice system. These systems are built on the concept that there must be a recognition of Aboriginal perspectives on conflict and resolution, flexibility of ADR to meet the needs of the Aboriginal peoples, integrated approaches to ADR, and sustainable resolutions that focus on long-term effects of ADR. Aboriginal Australian ADR must be cognizant of the variation of Australian Aboriginal groups, displaying sensitivity in choosing the mediators, locations, participants, and rules. Additionally, mediation, while utilized in both this practice and the Aboriginal communities, is a weighted word associated with Western practices. The term may not make sense in an Indigenous contexts (NADRAC, 2006). While transformative mediation is utilized and adapted to this project, often, the project will use the term “peace-making” rather than mediation at the request of the community (Venables, 2009).
Background on the Mornington Island Restorative Justice Project
The MIRJ was established by the Australian government, with its first mediation services beginning in October 2009, following a consultation phase from May 2008 to June 2009 (Brunton, 2014). The Australian Attorney General‘s Department (ADG) serves the funding source for the project, while the Queensland Department of Justice and Attorney General (DJAG) manages the project through the Dispute Resolution Branch (DRB). For the first two years of its operation, the mediation was provided through the community Elders, the MIRJ Mediation Coordinator, and the MIRJ Project Coordinator (Venables, 2012). Beginning in February 2012, the MIRJ shifted from government ownership to community ownership and control through the Junkuri Laka Justice Association , a local Australian Aboriginal justice organization. Funding for the MIRJ project still remains from the ADG (Brunton, 2014).
The MIRJ project aims to meet the needs of the Mornington Island community and to provide culturally-sensitive ADR options to the community. It bases its program on transformative mediation and then tailors it to the needs of the community. The objectives of the MIRJ Project are: "Reducing Indigenous people’s contact with the conventional criminal justice system; enhancing the capacity of the community to manage its own disputes without violence; improve the justice system‘s responsiveness to community needs; encourage community ownership of the program; and increase satisfaction with the justice system for victims, offenders, their families, and the wider community" (Brunton, 2014).
The MIRJ project aims to serve as a mediator between Aboriginal justice and the Western form of justice implemented in Australia. It recognizes that there is a level of separation and distrust between Aboriginal Australians and the Australian justice system, aiming to support the communities, offering equitable ADR options (Venables, 2012).
In order to properly monitor this case and carefully proceed in its objectives, the DRB produced a consultation report in 2008, an interim evaluation in 2009, a report on the transition to community management in 2012, and a full evaluation in 2014. There were extensive attempts to engage the community and tailor the project to their input and requests. Surveys and consultations occurred regularly, and all of the evaluations adhered to both the “Guidelines for Ethical Research in Indigenous Studies” by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the “National Statement on Ethical Conduct in Human Research 2007” by the Australian Government (Browning, 2011). Stakeholders consulted included community members, Elders, and members of the justice system. All of the participation in both mediation and the evaluations of the mediation was optional (Venables, 2012).
Implementation of the MIRJ
Traditional Conflict Resolution on Mornington Island
Conflict in Aboriginal Australian communities is significantly different from conflict in mainstream Australian communities. First, conflict and violence are often accepted as natural parts of life. Violence is not seen as a troubling act, but rather as an avenue for making conflict more direct and open; ritualized violence is often an avenue to display a beginning and an end to a conflict (Brigg et al., 2018). On Mornington Island, the most significant and traditional dispute resolution is called a “square-up” or a Mirindi, which occurred on the island up until the 1970’s. A square-up would occur only in response to serious wrongdoings, especially after suspicion over a death of a loved one. In a square-up, two conflicting groups or families would congregate at a traditional festival ground, often singing out at each other. Skilled, trained fighters from either side would fight with spears, boomerangs, and other objects while a peacemaker would moderate the fight. Women and children would not be present at the fights, as there often was blood shed in these fights. At the end of the fight, the peacemaker would approach the fighters and ask if they were finished; the fighters would stop fighting and reconcile in an emotional manner, exchanging gifts and holding feasts (Venables, 2012). This traditional dispute resolution is performative and ritualized; the fighters both managed their anger through their trained fighting and respected the moderation of the peacemaker. This conflict resolution is a communal process, with the entire community seeing the entire process of the conflict from the fighting to the feast. The entire community was able to process the conflict and recognize it.When the missionaries began administering the island, they attempted to remove the practice but eventually acquiesced to forms of informal agreements with the Aboriginal Australians. In 1978, administration of the island was designated to the Queensland government, so the implementation of Western institutions such as police and court systems replaced Aboriginal conflict dispute practices (Brigg et al., 2018). Western law became more prevalent in the island, this communal aspect of conflict faded away. Those who have committed crimes are judged by an outside magistrate who would be flown into the island, given a sentence at a court hearing, and removed from the community, with no one in the community knowing what was happening (Venables, 2012).
“Kinship Consultation Model”
The MIRJ is a project aimed at providing restorative justice mediation and transformative justice mediation to communities; the primary aim of this mediation is to attend to the needs of the victim, the offender, and the communities surrounding both. This mediation is both rehabilitative towards the offender while restorative towards the victim and the victim’s family (Venables, 2012). A primary aim of the MIRJ is to adapt restorative justice mediation and transformative mediation to cultural aspects of the Aboriginal community. On Mornington Island, kinship is a significant cultural element, and the elders are highly regarded. The MIRJ partnered with Elders in the community to establish 11 rules for mediation and an eight-step process which they deemed the “Kinship Consultation” model of mediation and peace-making (Brunton, 2014). This model is distinct in the fact that it relies heavily upon the concept of kinship in peace-making, recognizing the conflict is communal on Mornington Island. Mediations often include a mediator or “peace-maker” who is either a trained local or an outsider employed by the MIRJ (depending on the needs of the specific case) and will include Elders. Additionally, in this model, mediations or peace-making sessions have been as large 100 participants, but the average number of participants is between 12 and 30, emphasizing the need for communal involvement in conflict (Venables, 2012). This model of mediation is incredibly “informal” and flexible, breaking the rigid structure of Western and Settler ADR, which empowers the Aboriginal individuals in stark contrast to the oppression they often experience in the Australian justice system (Brigg et al., 2018).Ownership of the MIRJ
One significant aspect of the MIRJ project is the origin and ownership of the project. The MIRJ project did not emulate from inside the Mornington Island community; in 2007, visiting magistrate, local police, and community justice groups made a request to the DRG offer mediation services on the island. The project was first run by a civil servant from Brisbane who moved to the island after 2008 and was eventually supported by an Indigenous Mediation Coordinator, who also was a civil servant (Venables, 2012). It was implemented from outside forces, namely the ADG and the DRG. During the consultation phase, nearly all the residents of Mornington Island requested an explanation for the origin of the project and expressed their general distrust and disdain for government workers who briefly visited the island for work (Venables, 2009). This was noted during the consultation evaluation and the need for community ownership of the project was emphasized.In order ensure a transition to community ownership and leadership, the DRG structured their mediation plan on identifying an organization to manage the mediation and through reinforcing the authority of the MIRJ through consultation of the community elders in the creation of the “Kinship Consultation Mediation” (Brunton, 2014). Without the initial consultation and the continued input of the elders, the mediators would not be trusted by the community, and the project would fail. In October 2011, ownership of the MIRJ began transitioning to the Junkuri Laka organization, and in February 2012, the ownership was formalized through a written agreement. Following the agreement, momentum in the project actually increased, with around 6.44 peace-making operations occurring a month, a significant rise from the 4.125 operations occurring per month during government ownership (Venables, 2012). The MIRJ project depends heavily upon community ownership in order to properly function and serve the community.
Results and Recommendations
Results
The MIRJ project succeeded in many of its goals and objectives in the five-year period of evaluation between 2009 and 2014. In this time frame, over 396 mediations occurred with a 94% success rate (Brunton, 2014). It is important to note that a success in mediation is considered a “settlement” rather than a “reconciliation” as settlement is considered realistic in this society with traditions that consider conflict to be an ongoing and public trait of the community (Venables, 2012). Additionally, the community views mediation/peace-making to be a successful avenue for dispute management; they feel as if the project helps the community sort out its own issues without dependence upon outside sources, such as the police or court systems; there is an improved view of the police as a whole with fewer instances of police-community conflict. There is less violence in the community in terms of fighting as a result of family feuds, and there has been a reduction in assaults since the mediation/peace-making project began. There is a general consensus that the community is safer through mediation and that there are fewer ongoing fights in the community. Significantly, there is a strong community consensus that there is a level of community ownership of the mediation (Brunton, 2014).The MIRJ project also has areas of improvement to best facilitate mediation and peace-making on the island. First, it needs to increase the involvement of women and younger individuals in peace-making consultations, as it is reported that there is a great lack of mediators in this area . Second, it needs to improve its implementation of training mediators and should increase local capacity (Browning, 2011). Finally, a large area of improvement would be the connection between the MIRJ with other community and government organizations to coordinate services for the victims, such as the Women’s Shelter, the Wellbeing Centre, and the Save the Children organization (Brunton, 2014).
MIRJ as a Model Domestically and Internationally
The success of the MIRJ project leads one to consider it as a model for transformative and restorative justice mediation projects in other communities across Australia and the world. Positive aspects of this project that can be applied are the dependency of the project on insight and guidance from local elders and respected community members, long-term funding in place to facilitate the project, and the utilization of pre-existing justice groups. Other projects can use the Kinship Consultation model, but it should only serve as a starting point. This model was created specifically for the community on Mornington Island and should be tailored to fit the cultures and traditions of other communities. Additionally, it is essential that the project learn from the MIRJ project’s initial ownership issue; it must develop locally rather than from outside the community; the key stakeholder’s should initiate the project rather than external actors, such as a government (Brunton, 2014).Conclusion
The Mornington Island Restorative Justice project is a model project that should be observed carefully by practitioners of mediation, especially those in indigenous communities. While there are areas for improvement and areas in which the practitioners have made mistakes, this project serves as a significant step towards creating a decolonial mediation model. It centres on both transformative mediation principles and Aboriginal ADR principles such as cultural sensitivity, inclusion, and community ownership. This project proposes a model for a decolonial ADR which serves as a mediator not just between victims and offenders, but also as a mediator between Aboriginal justice and Western justice.References
Brigg, M. et al. (2018) Gununa peacemaking: Informalism, cultural difference and contemporary Indigenous conflict management. Social & Legal Studies. [Online] 27 (3), 345–366.Browning, M. (2011) Interim Evaluation Report Mornington Island Restorative Justice (MIRJ) Project Dispute Resolution Branch.
Brunton, C. (2014) Mornington Island Restorative Justice Project Evaluation . Australian Attorney-General’s Department
National Alternative Dispute Resolution Advisory Council (NADRAC) (2006) Indigenous Dispute Resolution and Conflict Management.
Noone, M. A. & Ojelabi, L. A. (2020) Alternative dispute resolution and access to justice in Australia. International Journal of Law in Context. [Online] 16. [online]. Available from: https://doi.org/10.1017/S1744552320000099.
Office of Economic and Statistical Research (2010) Quarterly report on key indicators in Queensland’s discrete Indigenous communities.
Roughsey, L. et al. (2017) Indigenous Mediation: Is That Different? Bond Law Review. 29. [online]. Available from: http://epublications.bond.edu.au/blr/vol29/iss1/9 (Accessed 6 May 2022).
Venables, P. (2009) Consultation and Development Phase Report on the Mornington Island Restorative Justice (MIRJ) Project.
Venables, P. (2012) Report on its Development, Implementation and Transition to Community Management 2012. [online]. Available from: http://www.justice.qld.gov.au/justice-services/dispute-resolution.