Arbitration Amendment Bill

When my colleague, Hone Harawira last spoke on this Bill, on 8 May this year, he said that land issues are so important for Māori that we were considering an amendment to this bill to refer all Māori land disputes to the Māori Land Court.

Within 24 hours, that amendment was on the table, and I presented an SOP to put into effect the great idea that Hone had initiated.

This 24 hour period in May 2007, signalled a moment in Hansard, wherein the proposal of an MMP Party such as the Maori Party, was almost seen to have the opportunity to influence the parliamentary debate. I remember the night well.

The proposal was put:

“That it be an instruction to the Committee of the whole House on the Arbitration Amendment Bill that it have the power to consider and, if it thinks fit, adopt the amendment in the name of Te Ururoa Flavell relating to the arbitration of disputes concerning Māori land”.

It was a pretty straight-forward argument, centred around the Maori Land Court.

As I am sure all Members of this Parliament would agree, the Maori Land Court is the Court charged with the responsibility to adjudicate on matters relating to Māori land.

And it is under that mantle of responsibility, that where there is a dispute, such matters are rightfully put in its hands.

But with this Bill, the Arbitration Amendment Bill, there is the potential for decisions and processes to effectively cut across the jurisdiction of the Māori Land Court.

We therefore came to the House, with a simple request, to have the debate.

We asked the House to accept that we had the power within this Parliament to consider and, if it thought at the time fit, adopt the amendment relating to the arbitration of disputes concerning Māori land.

All we wanted was the opportunity for the debate on the amendment to occur. And so, the party votes were called for in order to determine whether the debate could be held:

New Zealand National 48; Green Party 6; Māori Party 3; ACT New Zealand 2 all in support.
And against: New Zealand Labour 49; New Zealand First 7: United Future : 3: Progressive: 1: independent : 1


So the scorecard came up – Noes 61; Ayes 59. Amendment lost.

Mr Speaker, I recount this history because it seems almost ironic now.

Here when we had measures to improve the processes of arbitration, dispute resolution and enhancements in communication, the House could not return a majority vote of support.

The request put to the House was not an all out “open the envelope” recommendation for the support to ensure all Maori aspirations could be transformed into tangible outcomes.

Actually, it wasn’t even a request for the utilisation of tikanga Maori as an appropriate and apt foundation for dispute resolution processes.

All that it was, was to let the korero happen, let’s have the korero. What harm is there in that?




Mr Speaker, we believe the amendments proposed in this Bill are positive. And we certainly endorse the process of arbitration as an effective method in solving disputes, particularly in regards to commercial litigation.

We appreciate too, the significant advances that have taken place to ensure arbitration is now based on an international model developed by the United Nations Commission on International Trade law – rather than simply rehashing the English arbitration procedures of 1908.

Consensus

We believe that the process of arbitration as a consensual method of dispute resolution is particularly aligned with kaupapa Maori; and in particular the attainment of kotahitanga – the oneness of purpose.

The demonstration and influence of consensus models are illustrated in many hui, and have been commented on in many reports of that esteemed body, the Waitangi Tribunal.

That’s the same Tribunal, by the way, which is charged with the function of determining if matters are inconsistent with Treaty principles; and commenting on proposed legislation, if and when requested by Parliament.

That’s the same Tribunal whose recommendations are consistently ignored or shelved to gather dust.

So what has this Tribunal said about consensus models? The Ngai Tahu Sea Fisheries Report of 1992 put it clearly:

The Maori consensus process requires a high level of community involvement and debate.

New ideas must be allowed to lie for a long time, and there are inhibitions on all tribal leaders in expressing a view that has not been tribally approved. Under the consultative processes of Maori, nothing can be hurried along.

Consensus, therefore, which underpins the arbitration process, may be one area in which the Crown is prepared to learn from Maori, as to effective strategies and time-tested experiences can be applied to resolve commercial and other disputes.

Issues Affecting Consumers

Another key issue in which the Maori Party sought the influence of an independent Maori voice was the concept of consumer protection.

The Bill improves the level of protection provided to consumers by proposing that an arbitration agreement only takes effect if arbitration has specifically been agreed to by consumer and business enterprise.

In addition, jurisdiction of disputes tribunals is removed if both parties agree that arbitration is the most appropriate form of dispute resolution.

These are important initiatives which may well lead to a decrease in disputes resolved through Court; as well as protecting the interests of consumers; and they initiatives which the Maori Party supports.

And this is where it takes us back to the issue that I introduced tonight – the concept that where Maori land is the subject of the dispute, it should be dealt with in the Maori Land Court.

If we are looking to truly respect the concept of consensus; if we are truly looking to pay heed to the interests and priorities of consumers; then accordingly we must rely on protocols and procedures that are already in place, rather than walking roughshod over Maori – again.

The Maori Land Court would be able to deal with disputes regarding Maori land – even when one of the parties is not Maori.



The Maori Land Court has the capacity to deal with such disputes in an effective and cost-efficient manner, because of its awareness of tikanga Maori and how this affects Maori attitudes towards land.

We know also that there is precedent for Maori land disputes to be taken from the general courts to its rightful home, the Maori Land Court, in two others current pieces of legislation.

In the Fencing Act jurisdiction, Maori Land disputes are able to be dealt with in the Maori Land Court, under section 26 of Te Ture Whenua Act.

Similarly in the Property Law jurisdiction, similar models apply relevant to sections 20- 25 of Te Ture Whenua Act.

So if it’s been done before, it can be done again, right?

We will continue to support this Bill – because we do support the promotion of arbitration as a useful tool in solving disputes.

We know that the practice of arbitration has not been as extensive as was originally envisaged. In the Ministry of Justice’s 2004 report into Alternative Dispute Resolution they stated that arbitration was only used in the very smallest of cases – some six percent of 1274 disputes.

So anything that can increase satisfaction and confidence from lawyers, mediators, and consumers that arbitration can be effective, is worthy of our support.

But we can not leave this debate, without expressing our profound disappointment at the inability of Government parties to consider any other ideas, other than the ones they put forward.