Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill: Māori Land Court and Dispute Resolution

He mihi ki te Atua i runga rawa.  Nāna i hōmai, nāna i tango.

He mihi ki tō tātou Kīngi, ā Kīngi Tūheitia Pōtatau Te Wherowhero te Tuawhitu, rire, rire, hau, pai mārire.

E ngā mate, haere, haere, haere atu rā ki te kāinga tūturu o tātou te iwi Māori.

Huri noa ki a tātou, te pito ora, tēnā koutou, tēnā koutou, tēnā tātou katoa.

Anei te pānui tuatahi e pā ana ki tō tātou taonga, arā, tō tātou whenua Māori

The Government has recently introduced Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill.  The Bill introduces a number of practical and technical amendments to Te Ture Whenua Māori Act 1993 designed to enable Māori land to work better for whānau.  The purpose of the Bill is to ensure the intergenerational wellbeing of Māori landowners and to provide for the utilisation of their whenua.

This Bill follows on from the proposed reforms first tabled in 2014.  Rather than make wholesale changes to the Act, this Bill proposes to make targeted amendments aimed at simplifying the Court process and providing more practical outcomes for Māori landowners, in a cost-effective manner.

The Bill targets five key areas of the Act – Dispute Resolution, Succession, Court Powers, Trusts and Incorporations, and Property Law.  Over the next 5 weeks we take a look at the key areas of amendment and discuss how the amendments will affect owners of Māori land, trusts, and people dealing with Māori land. 

Our first article looks at the introduction of new dispute resolution provisions and a tikanga based approach to resolving Māori land disputes.

Dispute Resolution

The new Bill establishes a dispute resolution process based on tikanga Māori to assist owners of Māori land to resolve disagreements and conflict about their land (“the DR Process”).  The DR Process provided for under the Bill is a simplified version of the process that was provided for in the previous Government’s proposed changes to Te Ture Whenua Māori Act 1993. 

The DR Process will be limited to matters within the Māori Land Court’s jurisdiction and administered by the Court.  However, the process will be available for proceedings that are already before the Court, as well as disputes for which Court proceedings have not been initiated.  Unlike the previous proposal, there is no ability for mediators to adjudicate on a dispute if it cannot be resolved through mediation.  That is, there is no longer an adjudication role under this DR Process.  We believe that this is a positive change.

What follows is a simple overview of the proposed DR Process together with some observations.

Voluntary Process

The new Bill makes it clear that mediation will always be voluntary.  That is, a Judge or Registrar of the Court cannot force the parties to use the DR Process, nor can one party force another party to undertake the DR Process.  This is consistent with the theory that if you are making parties take part in a dispute resolution process, it is unlikely to create an environment where the parties will reach agreement.  We think that this is the right approach in this context.  That said, compulsory Court-referred mediation can work in some instances.  In the Samoan general jurisdiction Courts, it does not seem to have created a lot of noise amongst the stakeholders – in fact, some argue it has been a positive move.  The same may be said for mediation in the Employment and Environment Court context where mediation is effectively mandatory.

Proceedings on foot or not

As noted above, one of the benefits of the proposed DR Process is that mediation is not only available where there are proceedings on foot, but also where there are no formal proceedings or applications before the Court (this is also the case for employment disputes).  A simple application by the Registrar along with the consent of the parties is all that is required.  We see this as an important step that enables disputes to be solved at an early stage, rather than waiting for an application to be put before the Court.  With the involvement of a skilled mediator, the parties may avoid significant costs (financial and relationship) by trying to resolve disputes early.

Appointment of Mediator

Either one or two people may be appointed to mediate a dispute.  There is a clear indication that those appointed should possess the skills required for the nature of the dispute.

Having the ability to appoint up to two mediators is very helpful, given that at times one mediator may not necessarily have all of the relevant skills to address each issue.  For example, where there are a range of property law matters, together with issues of tikanga, or where the parties will converse predominantly in te reo Māori a sole mediator may be great on the law and property issues, but may not have the ability to manage tikanga issues that underline the dispute – having two mediators who together have these skills will be most helpful.

The Bill envisages the Chief Executive of the Māori Land Court recording a list of persons who are approved as mediators.  There is the ability to appoint a mediator beyond that list if the parties consider that it is justified in the circumstances, and if the appointment is approved by the Chief Executive and the Judge or Registrar who referred the matter to a mediator.  There is also an important circuit breaker provision if the parties simply cannot agree on a mediator – the Bill allows the Judge or Registrar to make an appointment in that situation.  This is an important provision, particularly given that there will be a number of potential conflicts of interest in the Māori world.

It is not clear at this stage who pays for the mediator’s time.  One assumes that it will be a free service, similar to that provided by the Ministry of Business, Innovation and Employment in an employment context.

Conduct of Mediation

The Bill gives the mediator wide discretion in terms of running the mediation.  It is clear that the process will be a confidential one and conducted on a without prejudice basis.  This is, of course, standard in most mediation processes. 

One of the key considerations with any new mediation process, however, is to ensure that the parties have a consistent experience, to the extent possible.  Will some mediators adopt an evaluative approach and give their view on the merits of the dispute?  Will some mediators provide settlement solutions?  Or will some simply leave that to the parties?  Perhaps some further thought needs to be given about the type of mediation process that would best work in the Māori land context and to ensure a level of consistency across the country.

What is interesting is the fact that the mediator must provide written reports to keep the Registrar informed of the progress of the mediation.  The Bill also requires the mediator to record the terms of the resolution reached at mediation and report them to the Judge or Registrar who referred the issue/s to the mediator.  In the case of an unsuccessful mediation, the mediator is required to report to the Judge about the lack of resolution and state the issues that are unresolved.

One of the issues with the above requirements is that, in our experience, many mediators will be wary of being responsible for recording agreements between the parties, in case they record it incorrectly or add their personal spin on the agreements and it is later challenged or not workable.  Given that many of the parties before the Māori Land Court are unrepresented it is understandable that the Bill requires the mediator to play this role, however, it is no doubt something that will need to be addressed through the Select Committee phase. Interestingly, we note that the Treaty of Waitangi Act 1975 requires mediators appointed to assist the resolution of claims before the Waitangi Tribunal to record the settlement reached or to prepare a written record of matters not agreed to if no agreement was reached.

One of the other practical issues is that most professional mediators will have their own standard Agreements to Mediate but it is unclear whether the Bill allows for mediators to have these signed by the parties to provide extra protections above those to be provided in the Bill.  Presumably, this will depend on how the mediator appointments are managed.  In the employment dispute context, mediators are employed by the Ministry and are required to certify settlements for them to be enforceable and binding on the parties.  General template records of settlement are available online to assist with this process.  However, the remedies for settling employment disputes are highly regulated by the law and, whilst this could be said to be the same for Māori land law, generally-speaking the breadth of Māori land disputes are much greater and therefore, create the ability to negotiate a wide-ranging number of settlement outcomes.

Conclusion

Overall, the more simplified DR Process under the proposed amendments are, on their face, very sound. 

What is still to be determined is of course who the mediators will be and what level of formal mediation training and experience will be required.  Unlike the general jurisdiction Courts, the Māori land area is highly regulated and many decisions require the Court to approve things or be satisfied that the legal tests have been met.  For example, parties could not by agreement change the status of Māori land to general land, without sanction of the Court.  If mediators are not legally trained, or the parties are not represented, this could create challenges for people who feel that the process was a waste of time in circumstances where their agreements are rejected by the Court because they do not meet the requirements of the Act.

Having Judges involved in managing the mediation processes by issuing directions about the issues, both legal and factual, may be one simple solution.  Having Judges as mediators – as is the case in mediations in the Waitangi Tribunal context – may also be appropriate with the right training, given that the mediator role requires a completely different skill and process to the usual adjudication function.

If you would like further information please contact Kylee Katipo on 07 958 7424.