June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – dispute resolution

A Bill was introduced into the House of Representatives in April 2016 to further reform Māori land law. This latest reform project has been in train since June 2012 when an independent expert panel was appointed to review the law.

Toni Love has followed the law reform process and has prepared a series of articles examining the most significant components of the new Bill as introduced to the House of Representatives. In this article she examines the provisions relating to dispute resolution.

Overview

A review of the Te Ture Whenua Māori Act 1993 (“the Act”) was announced by the Associate Minister of Māori Affairs on 3 June 2012.[1]

A Review Panel was formed to advise on unlocking the economic potential of Māori land for its beneficiaries, while preserving its cultural significance for future generations.[2] The review aimed to provide a recommendation for a form of legislative intervention that would empower Māori land owners to achieve their aspirations while enabling better utilisation of land.

A complete re-write of the current Act was chosen over piecemeal amendment. This culminated in an exposure draft Bill that is markedly different from the Act both in structure and function. The proposed changes are intended to provide a solution to the issues raised by the Review Panel in their report as well as to empower Māori land owners.[3] After consultation, and a Waitangi Tribunal inquiry and report, the draft Bill was revised. A Bill has now been introduced into the House of Representatives.

This article is the last in a series that considers the substantive changes in the Bill as introduced, Te Ture Whenua Māori Bill (“the Bill”). The Bill was introduced into the House of Representatives on 15 April 2016.

Each article compares the main changes between the Bill and Act, and discusses the most significant issues addressed by the Waitangi Tribunal when it looked at the earlier exposure draft Bill (the Wai 2478 inquiry). The articles also include analysis from the resulting Waitangi Tribunal Report He Kura Whenua Ka Rokohanga (Wai 2478, 2016). The articles do not include a detailed clause by clause analysis.

Te Ture Whenua Māori Bill - articles
1Policy statement and explanatory note
2Preliminary provisions
3Status of land and whenua tāpui
4Ownership interests in Māori freehold land
5Disposing of interests in Māori land
6Succession
7Management entities
8Registers and the Māori Land Court
9Dispute resolution (this article)

Further information relating to specific clauses is available in the materials referenced in this article.

The content contained within this article presents information relating to the Bill as introduced to the House of Representatives. The reform is an ongoing process, with the Bill as introduced going through a number of iterations since its release as an exposure draft in May 2015.

Background

Part 9 of the Bill introduces compulsory dispute resolution in limited circumstances and effectively replaces the Māori Land Court as the primary body for dealing with disputes. The Court still retains a role in dispute resolution; however, it is limited primarily to matters of law and specific circumstances such as where dispute resolution has not been successful or where objections about succession have been received.

The new form of dispute resolution draws on a model that is used in Ontario, Canada and has been adopted in some other New Zealand jurisdictions. Adaptations have been made in order to reflect tikanga Māori and allow for a flexible service that can cater to individual needs of Māori land owners.

The dispute resolution process is intended to provide a safe, informal, confidential, and open forum where the parties can discuss the relevant issues in order for them to achieve a resolution.

Overall the service aims to reduce litigation and promote owner initiated resolutions to disputes, which ought to empower owners.

Discussion

Under the Act the Court has exclusive jurisdiction to hear all disputes and a limited ability to refer disputes to mediation. Under the Bill all disputes are referred to the Chief Executive (of the agency responsible for administering the legislation) who is required to provide compulsory dispute resolution services to “assist Māori land owners and other parties to quickly and effectively resolve disputes about Māori land” in a way that is consistent with mātauranga takawaenga (cls 328 and 330). Mātauranga takawaenga means a process to assist people and groups to resolve disagreements and conflicts in accordance with the tikanga, values, and, kawa of the hāpu; and in accordance with the kawa of the whānau or hapū as the case may be (cl 329).

A kaitakawaenga is an intermediary who assists parties to resolve a conflict themselves (Explanatory Note). Parties to a dispute may appoint a kaitakawaenga. However, if they fail to do so within a set period, the Chief Executive will appoint one or more as soon as practicable (cl 332). Unsuccessful outcomes must be reported to the Chief Executive (cl 337). Parties may withdraw and discontinue the matter if the dispute remains unresolved at which stage the Chief Executive must refer the unresolved issues to the Court (cl 337).

Dispute resolution can be commenced by a single party, the parties, or the Court (cl 331).

The Chief Executive is able “to employ a variety of approaches” and the kaitakawaenga is able to follow “any procedures, whether structured or unstructured, or do anything he or she considers appropriate” to resolve the problem or dispute quickly and effectively (cls 328 and 333). Where the issues are resolved the kaitakawaenga prepares “agreed terms of resolution” which are to be signed by the parties and the kaitakawaenga. Once signed those terms are final and binding on, and enforceable by, the parties (cl 336). Parties may also confer powers of recommendation or decision on a kaitakawaenga (cl 335).

The dispute resolution process is confined to disputes about Māori land that do not concern questions of law.[4] The Court may exercise jurisdiction to enforce the outcome of a dispute resolution process (cl 336). This provides a party with an option to seek a Court order where an action by one of the parties is required following a (mutually) agreed resolution.

The type of dispute resolution provided by the Bill is difficult to categorise. It is compulsory in certain circumstances, it can be invoked unilaterally by a single party to a dispute, and the kaitakawaenga can express his or her own views, issue recommendations, or make a binding decision if the parties choose.  Further, the Bill does not contain any directions as to the type or process of dispute resolution. The lack of direction and absence of procedural safeguards, such as a right of appeal or review, has been criticised as breaching principles of natural justice.[5] In response the Crown has stated that the process is not litigation and that considering rights of appeal in this context fundamentally misunderstands the nature of dispute resolution proposed. Dispute resolution is an alternative to litigation, but if the parties are unable to agree the matter will be referred to the Court. [6]

The Bill’s absence of conventional forms of dispute resolution appears intentional as the aim is to provide flexibility as opposed to strict rules so that each dispute resolution process can be tailored for each individual situation. This is considered consistent with alternative dispute resolution processes and in particular the Ontario Mandatory Mediation Program, which has been influential in the development of the dispute resolution system set out in the Bill. The Ontario programme aims to empower the parties by making them the decision-makers in their own disputes. Further, the conflict resolution process used in Ontario focuses on the needs and interests of the participants, fairness, privacy, self-determination and the best interests of both parties and a mediator aims to ensure that the participants reach agreement freely, voluntarily, without undue influence, and on the basis of informed consent.[7]

The definition of mātauranga takawaenga reflects this model of dispute resolution. It refers to resolving disputes “in accordance with the tikanga, values, and kawa of the hāpu or whānau both as to process and substance” (cl 329), a definition that reinforces the focus on the flexibility of the parties to generate a process that is tailored to meet their needs. Tikanga Māori, values, and kawa of the hāpu or whānau will apply to both the process of resolving the dispute and to the substance of the resolution of the dispute.[8]

Many of the aspects the of dispute resolution service offered by the Bill have also been modelled on those found in the Employment Relations Act 2000 (Part 10), the Māori Fisheries Act 2004 (Part 5), and the Weathertight Homes Resolution Services Act 2006 (Sub-part 5). For example, the Employment Relations Act obliges the relevant Chief Executive to provide mediation services (s 144(1). It states the “Chief Executive, by way of general instruction, may decide how the mediation services required” are to be provided; and “may, in order to promote fast and effective resolutions, treat matters presented for mediation in different ways.” (s 145) This is very similar to the Chief Executive’s obligation as stated in the Bill. Further, mediators under the Employment Relations Act also have similar powers to that of the kaitakawaenga (ss 144-145, 147). Mediators decide what services are appropriate to the particular case and they may “follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the problem or dispute promptly and effectively” (s 147).

A kaitakawaenga is required to have knowledge and experience of tikanga and possess suitable skills and attributes to assist the parties to resolve the dispute (cl 332). The Bill intentionally leaves what constitutes suitable skills and attributes undefined as that will be determined on a case-by-case basis. It does not require a formal qualification; however, the lack of formality around pre-requisites is to ensure that the right person for the specific dispute is appointed.[9]

The skillset of the kaitakawaenga received considerable comment from submitters on the Bill. To ensure the credibility of the process some submitters suggested that formal training, experience and qualifications in professional dispute resolution were necessary, particularly to ensure Māori would trust the process.[10] Many submitters stressed that knowledge of tikanga though important, is not enough, and importantly there is not a unified view as to what constitutes tikanga and its application.[11] Many also thought the kaitakawaenga should have some form of legal skills.[12] The Crown responded that legal disputes are reserved for the Court and thus there may be less of a need for legal qualifications in every instance.[13] However, the Waitangi Tribunal questioned whether the distinction between purely legal and factual disputes could in fact be drawn, and thus considered the lack of information regarding those who would be administering the process concerning (p 324 and 325). Their views are discussed in further detail below.

The Bill provides that no dispute resolution services may be challenged or called into question in any proceeding on the ground that the nature and the content of the services was inappropriate; or the manner in which the services were provided was inappropriate and a party cannot appeal any terms of resolution (cl 338). This provision is identical to s 152(1) of the Employment Relations Act 2000. The agreed terms of resolution are similarly placed beyond any form of court action such as review or appeal as a party is excluded from bringing any terms before a court, whether by action, appeal, application for review, or otherwise (cl 336).

Compelling parties to resolve disputes has been criticised as not aligning with the principle of autonomy and as “a significant fetter on the rights of Māori land owners to have access to justice”.[14] Compulsion has been further argued as counterintuitive because consensus is an important factor in the success of the process and involving reluctant parties can delay the process and inhibit positive outcomes.[15]  However, parties can discontinue the matter or proceed to the Court if the issues remain unresolved, and they are also able to seek alternative dispute resolution services (cls 330 and 337).  Importantly, as stated previously, the aim is not to force resolutions, but to allow parties a forum where they can resolve their own disputes before accessing the Court. Further, although it is mandatory for the parties to attempt dispute resolution before they proceed to the Court, officials hope that the process offers a service that Māori land owners will want to use.

The Tribunal considered it was problematic to apply a compulsory process only to disputes about points of law. Many of the proceedings subject to dispute resolution will potentially involve mixed points of fact and law (p 324). A decision on whether a proceeding under that section must be referred to mediation thus requires legal experience and expertise, or a deep knowledge of Māori land issues.[16] Under the Bill, if mediation has failed or only partially succeeded then either the Chief Executive or the dispute resolution service must decide whether to refer the dispute for further mediation, or to refer the unresolved issues to the Court (p 325). The Crown stated to the Tribunal that a change will be made to the Bill that would ensure that the Court, not the Chief Executive, makes the decision as to whether an unresolved dispute should go back for further dispute resolution (p 326). The Bill now requires the Chief Executive to refer all unresolved issues to the Court. The Court may refer some or all aspects of the unresolved issues back to the dispute resolution process. Although the Tribunal appreciated that alternative dispute resolution may well be the general preference of many Māori, it considered that there would be many situations of dispute between owners or beneficiaries and governance bodies where feelings have so deteriorated, or where such serious or urgent issues are raised, that it is obvious speedy resolution of the dispute requires urgent adjudication (p 324).

Three further concerns were identified by the Tribunal. First, the proposed Bill will result in two different regimes for mediated dispute resolution (p 325). The Court being left with the power to refer matters to mediation in its jurisdiction under the Māori Fisheries Act 2004 and the Māori Commercial Aquaculture Claims Settlement Act 2004 (p 325). In those jurisdictions it seems to be accepted by the Crown that the Court has the requisite experience and ability to be able to both decide and administer the mediation process, but not for disputes about Māori land (p 325). Second, the Tribunal and all Māori landowners, know nothing yet about the expertise of the officials who will be responsible for deciding whether a dispute contains a point of law, or whether it can be resolved by a second round of mediation (p 325). Third, there is a combination of possible added cost, stress, and delay arising in those cases where it may be obvious to an experienced judge that mediation will not work and where for particular reasons an urgent hearing is the only realistic answer (p 326).

The Crown offered no convincing logical reason as to why the Māori Land Court judges and registrars could not have performed the dispute resolution function. The Tribunal was unconvinced by the Crown’s evidence and submissions that what is proposed is consistent with applicable Treaty of Waitangi principles (p 326). While the Tribunal found that the provision of mediation or dispute resolution processes alongside a court hearing process is consistent with Treaty principles, the Tribunal considered that the manner proposed may not be consistent with those same principles (p 326). The Waitangi Tribunal took the view that the compulsory aspect would inevitably delay resolution, and frustrate and cost parties who have to undergo the dispute resolution process unnecessarily in cases where a court hearing is more appropriate (p 326).

Overall, the Tribunal found that it would be inconsistent with Treaty principles to continue with the compulsory aspect of mediation (p 326). The Tribunal also determined that this was  not consistent with owner autonomy or the principle of active protection (p 347). Neither does it appear to be consistent with how similar matters are dealt with in other courts (p 347). In the Tribunal’s view, it is the Māori Land Court (the judges acting in conjunction with registrars) which is the institution that has the legal experience and expertise to decide whether a point of law is crucial to deciding a case, whether a case involves mixed points of law and fact, whether the case is amenable to settlement through mediation, and whether a case is of such a nature that immediate, urgent hearing is required (p 346). This kind of decision also requires the Court to consider the wishes of the disputing parties. The Tribunal concluded that the proposed regime is inconsistent with the Crown’s duty of active protection, and with the tino rangatiratanga of Māori landowners, and recommended the removal of this regime (p 346).

Notes

[1] Te Ture Whenua Māori Act 1993 Review Panel Discussion Document, March 2014.

[2] Te Puni Kōkiri Discussion Document: Te Ture Whenua Maori Act 1993 Review Panel (March 2013) at 5; Christopher Finlayson “Te Ture Whenua Maori Act review announced” (3 June 2012) New Zealand Government official website <www.behive.govt.nz>.

[3] Te Ture Whenua Māori Act 1993 Review Panel Report, Poutū-te-rangi 2014.

[4] Answers to written question of John Grant, WAI 2478, #A32, 27 November 2015, at 42.

[5] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [616-626].

[6] Answers to written question of John Grant, WAI 2478, #A32, 27 November 2015, at 46.

[7] See Kathryn Munn Conflict Resolution Services <http://www.munncrs.com/site/mediation.html>

[8] Answers to written question of John Grant, WAI 2478, #A32, 27 November 2015, at 41.

[9] Answers to written question of John Grant, WAI 2478, #A32, 27 November 2015, at 43.

[10] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [603].

[11] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [604] and [609].

[12] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [599] – [606].

[13] Answers to written question of John Grant, WAI 2478, #A32, 27 November 2015, at 47.

[14] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [587]; Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [590].

[15] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [616-626].

[16] He Kura Whenua Ka Rokohanga - report on claims about reform of Te Ture Whenua Māori Act 1993 (Pre-publication) at 324 and 325.

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn