Download Dwhurst, dale_Drafting Effective Codes of Ethics in

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 noncompliance.
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 noncompliance.
Dale Dewhurst – Contact

For copies of these slides, discussion,
comments or suggestions:
Dale Dewhurst
Athabasca University
[email protected]