A number of targeted amendments have been made to Te Ture Whenua Māori Act 1993.

The Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters) Amendment Bill (Amendment Bill) passed its third reading on 22 July 2020. The Amendment Bill will come into force in January 2021.

Toni Love has prepared a series of articles describing the different areas covered by this law reform exercise. In this article, Toni looks at the Amendment Bill's changes to dispute resolution mechanisms available under the legislation.

Overview

Background

Replacement for 2016 Bill

The Amendment Bill replaced the Te Ture Whenua Māori Bill 2016, which was introduced by the former government to replace the current Act. The 2016 Bill progressed some way through the legislative process but was paused during the Committee of the Whole House stage due to controversy surrounding the proposals. The current government chose to withdraw the 2016 Bill and proceed with "targeted amendments that would better support the governance, management and development of Māori land". (See Cabinet Paper seeking approval for introduction dated 14 October 2019 at [5].)

Whenua Māori Programme

The reform is a key part of the Government's Whenua Māori Programme, which aims to support the sustainable development of whenua Māori (Māori land), increase the knowledge and skills of Māori landowners, generate wealth, and strengthen the connection between Māori and their whenua. The Programme booklet notes the amendments to the Act are made on the basis that navigating and complying with the Act can be difficult and frustrating for Māori land owners, with the process being time consuming, costly and complex.

The Cabinet Paper seeking approval for introduction noted the Amendment Bill is the first stage of targeted legislative proposals, with the second stage addressing matters that create impediments for Māori land owners, namely valuation, rating, and public works. As part of the second stage, the Local Government (Rating of Whenua Māori) Amendment Bill was introduced to Parliament on 27 February 2020 to address longstanding issues with rating. At the time of writing, the Rating Bill is with the Māori Affairs Select Committee, whose members are considering submissions.

Explanatory note - policy objectives

The Explanatory note to the Amendment Bill provides that the Amendment Bill seeks to ensure that the laws governing Māori land work better for whānau by making practical and technical changes to reduce the complexity and compliance requirements that Māori encounter when they engage with the courts regarding their Māori land. In particular, the Bill proposes:

• a new dispute resolution process based on tikanga Māori;
• a simplified and streamlined succession process which allows a Registrar of the Māori Land Court (Court) to deal with simple and uncontested succession applications in certain situations;
• a simplified and streamlined trust process, which allows a Registrar of the Court to deal with simple and uncontested trust applications in certain situations; and
• to extend the jurisdiction of the Court to deal with certain matters regarding Māori freehold land concerning (among other things) injunctions, mortgages, and easements and covenants.

Overall the legislative proposals are intended to facilitate Māori land owners’ participation in the governance, management and development of their Māori land. (See Cabinet Paper seeking approval for introduction dated 14 October 2019 at [5].)

The Amendment Bill also proposes a number of minor and technical amendments to improve clarity and promote the Act's overall workability.

Discussion - dispute resolution

The Amendment Bill builds on momentum to provides alternatives to traditional dispute resolution involving adjudication by courts.

The Amendment Bill provides for mediation as an alternative dispute resolution process (s 19 inserting a new Part 3A into the principal Act).

Mediation

Mediation will be available irrespective of whether proceedings are already in train in the Court or not. Mediation under the Amendment Bill is confidential, fully funded (excluding travel costs and legal advice), and voluntary, requiring consent of all parties to a dispute. Further, consent to mediation initially does not inhibit the ability of any of the parties to withdraw part way through mediation to seek resolution in the Court.

The Amendment Bill prescribes (among other things):

• the appointment of a mediator(s) (who may be a judge of the Court if appropriate);
• the conduct of the mediation; and
• what happens where mediation is successful or unsuccessful.

The Court continues to maintain oversight over the mediation process as a Court order is required to record the terms of any resolution where mediation is successful (so long as the Court is satisfied of compliance with the law and where applicable, relevant tikanga), and where mediation is unsuccessful, the matter must be reported back to the Court.

The purpose of the mediation is to assist the parties to a dispute (including owners of Māori land) to quickly and effectively resolve any disputed issues:

• between themselves;
• in accordance with the law; and
• as far as possible, in accordance with the relevant tikanga Māori.

While applicants will be able to choose their own mediator to assist with the resolution of disputes, it is intended that initially only Court judges would act as mediators. The Departmental Report to the Select Committee noted that this will allow the Ministry of Justice to better understand the demand for the services and the nature of the disputes, and to build a pool of suitable mediators. However, the Judges of the Court submitted this limit should not exist because the ability to choose a mediator is an essential part of mediation. (See Departmental Report at [104].)

While most submitters on the Amendment Bill supported alternative dispute resolution there were some criticisms about the process as proposed. In particular the below points were raised.

The Judges of the Court did not consider it appropriate for a Registrar to be able to refer a dispute to mediation as such a decision should be made by someone with legal expertise (see Departmental Report at [98]). However, the Departmental Report disagreed, noting that practice will develop over time and judges may provide guidance to registrars about the kinds of issues that are appropriate for mediation (at [118]).

A number of submitters discussed the qualifications and experience of mediators and in particular sought clarification about what qualifications and experiences they would need, as well as how they would be chosen. (See Departmental Report at [99]-[103].) Some comments included that mediators should be fluent in te reo Māori, have knowledge of the intricacies of Māori land tenure and Māori land law (in addition to tikanga Māori), and have formal mediation and legal training to ensure that resolutions will ultimately be accepted by the court.

The Departmental Report considered requiring mediators to have formal qualifications would limit the range of people who could be appointed as mediators, such as kaumātua who may not have formal qualifications but understand the issues associated with the whenua and be persons who are respected by the people involved in the dispute. The Report also noted that the Bill allows for two mediators to be appointed, which allows mediators with complementary skills to be appointed.

The Māori Land Court considered that the requirement for the Chief Executive of the Ministry of Justice (CE) to approve a mediator not on an approved list be removed because it may add unnecessary bureaucracy and also the CE may not have the contextual considerations in mind that are necessary to review the choice of a mediator. One submitter thought the responsibility for approving the list of mediators should sit with the Ministry of Justice’s senior Māori official, while others suggested the CE consult with bodies such as Te Hunga Rōia Māori o Aotearoa and Te Arawhiti.

The Departmental Report noted that the CE must approve the selection of any mediator not on the pre-approved list because the dispute resolution process will be publicly funded. However, the Report further noted that the CE is likely to seek input from the suggested organisations when considering potential candidates and the CE may also delegate the role to someone with knowledge of te ao Māori, tikanga and dispute resolution.

While submitters supported the voluntary nature of the proposed mediation processes, some submitters considered it should not be entirely voluntary. In particular, Te Hunga Rōia Māori considered having a completely voluntary system could reduce the uptake of mediation and suggested that the Court could be given the power to propose mediation and insist that a good faith effort be made to attempt mediation before any hearing. Other submitters also questioned whether mediation should be voluntary in all instances, considering that there could be situations where compulsory mediation was necessary.

The Departmenal Report did not consider any changes were necessary to address the voluntary nature of mediation in these changes to the principal Act, noting that mediation works best when it is voluntary.

The compulsory nature of the dispute resolution system proposed under the 2016 Bill was one of the most controversial parts of that Bill, which is reflected in the criticism it received from the Waitangi Tribunal in the Tribunal's report on that law reform exercise. The complexity of Māori land matters and the imposition of compulsory regimes on Māori historically suggests caution in imposing compulsory processes unless absolutely necessary.

A number of submitters commented on the tikanga aspect of the dispute resolution process.  These included submissions that:

• the process should be whānau and hapū led to ensure it aligns with their tikanga and approach to decision making;
• the process should be amended to acknowledge the importance of, and give greater emphasis to, the use of tikanga both in the process and the resolution;
• the process should include the relevant iwi in the resolution;
• there is a need for the right balance between the law and tikanga to avoid tikanga becoming a judicially defined process and therefore sitting outside of Māori determination; and
• matters of tikanga should not be adjudicated on by non-Māori.

The Departmental Report did not respond to all of the submissions but noted generally that the current drafting “reflects the policy intent that the process and substance of the dispute resolution process should be flexible to meet the needs and preferences of parties, based in the relevant tikanga, and in accordance with the law (in terms of both the process and substance of the resolution).” The Report did not consider any further amendments were required.

The Departmental Report made a number of further comments in response to various submissions (from [118] in the Report), which included:

• a change to the requirement that parties to mediation cannot be sued for defamation for statements made in mediation was not required as the provisions are consistent with the wording of the provisions relating to mediation involving aquaculture and fisheries disputes to ensure there is a consistent approach across the different types of dispute resolution available in the Māori Land Court;
• changes are not required regarding the requirement for mediators to report in writing to the Registrar or Judge on the progress of negotiations. The report is intended as a simple progress report and is not intended to go into the substance of the discussion. Any clarification of this could be through changes to the Māori Land Court Rules;
• changes are not required regarding the submission that parties should have an option of being bound by the outcome if they chose the mediator and agree on the process. The Amendment Bill provides that the court may make an order stating the terms of the agreement and a court order is legally enforceable;
• the policy intent is that the dispute resolution process will be free and the Māori Land Court Fees Regulations will be changed to confirm that there will not be an application fee to access the dispute resolution process. There will be additional staff resource, training, and new technology to implement the changes.

Despite the extensive discussion and suggested amendments raised by submitters, the Committee recommended only a minor amendment to clause 19 of the Amendment Bill (new section 98N(1) of the Act), to clarify that a judge could not:

• act as a mediator on an issue that has already arisen from a matter they may be hearing in court and have referred to mediation, and
• sit on court proceedings about a matter relating to issues for which they have acted as a mediator.

The introduction of alternative dispute resolution provisions is positive and sensible.  It aligns with the Court's existing powers to refer matters concerning fisheries, aquaculture and representation to dispute resolution, and also responds to longstanding calls for an alternative tikanga-based dispute resolution.

Māori land disputes are complex and require sensitivity to deal with the relationships involved in whānau and hapū centred matters. Many people have criticised the adversarial nature of formal court proceedings as inappropriate for addressing such matters as well as being time consuming and expensive. The amendments aim to reduce unnecessary cost and time, as well as promote better and more durable outcomes. As the Departmental Report noted about submissions on this topic (at [95]), alternative dispute resolution will:

• broaden the range of options available to owners to address the issues they face;
• suit whānau who are more comfortable with a tikanga-based approach than a legal approach;
• align with procedures which have proven successful in ordinary courts for some time now;
• lead to durable resolutions and help preserve long term relationships between parties; and
• keep personal matters out of court and prevent them turning into permanent divisions within whānau.

Author: Toni Love

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