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Harawira Speech: Arbitration Amendment Bill

Arbitration Amendment Bill

Hone Harawira; Maori Party Spokesperson for Employment

Tuesday 10 October 2006

Mr Speaker, I understand that the object of this Bill is to make the Arbitration Act 1996 work better, to make it easier for people to use arbitration to resolve disputes.

And as a member of the Maori Party, I am glad to say that, at first glance at least, the Bill seems to have some significant advantages over the current Act.

One of those is in the area of consumer protection, where up until now, consumer protection guarantees could only take effect if both the consumer and the business agree to it. The Bill now enables parties in dispute to appoint an arbitrator. That can’t be a bad idea.

Then there’s the matter of confidentiality, where the Bill now allows all information to be kept confidential unless decided by court order or by agreement.

And, a big plus from our point of view is that, without the formal direction of court protocols, arbitration can allow for the greater recognition and use of tikanga Maori in dispute resolution processes.

So, that’s a good start from our point of view.

But in order to see whether the Bill may work - we need to look back at the Maori experience with arbitration, because in fact, arbitration has been experienced by Maori ever since the signing of our nation’s foundation document, the Treaty of Waitangi.

And given the location of this debate, and indeed parliament itself, it’s appropriate that we look at WAI 145, Te Whanganui a Tara me ona Takiwa report, for a context for Crown-Maori experiences of arbitration.

The story begins in August 1842, with arbitration between the New Zealand Company and those purporting to represent Port Nicholson Maori.

The case involves a dispute between the Land Claims Commissioner of that time, Spain; and Maori of Port Nicholson.

Commissioner Spain it seems, was anxious to finish a land inquiry under the terms of the Land Claims Ordinance Act 1841, so he recommended that Maori simply be paid, and I quote: “the amount of compensation that I may declare them entitled to receive”.

The Wellington Tenths Trust said that the Crown had favoured settlers over Maori, in connection with the land disputes at Port Nicholson. Not surprisingly, the Waitangi Tribunal found that the Crown had imposed an arbitration regime which was intended to extinguish any Maori claims to title, without an inquiry into whether or not a valid sale had occurred.

The Tribunal found the Crown had breached Treaty principles by:

 failing to properly consult with Maori before switching from the Spain inquiry to a form of arbitration;

 using an arbitration process without Maori’s informed consent;

 failing to ensure a fair process was used by the arbitrator;

and that Maori were ripped off by the arbitration proceedings.

Mr Speaker, I know that other parties do not really appreciate the Maori Party passion for mentioning past New Zealand experiences as a way of helping us understand where we might be headed in the future.

So I thought I’d throw in a comment from the Spanish author of ‘Reason In Common Sense’, George Santayana, who gave us that great quote: “those who cannot learn from history are doomed to repeat it”.

In the Maori world we have many such sayings that remind us that “…we know our future because we understand our past….” In other words, we learn by experience.

Me titiro whakamuri, kia marama ai te haere o mua

Look back to the past, to get a clear vision for the future

Our brief look into a snapshot of the history of Te Whanganui a Tara - and there are many, many other such examples in Aotearoa - teaches us to be wary of any traps we may encounter in arbitration today.

Arbitration is supposed to be about resolving disputes by common agreement. That means of course that both parties should also have the opportunity to properly determine the rules for that arbitration.

But if Maori have learnt anything from the Port Nicholson experience, it is that regardless of the promise, history has proven that arbitration is often driven by one party, and disputes, far from being resolved, end up being magnified.

What we also know, is that of the 1274 unfiled disputes noted in the Ministry of Justice 2004 report, arbitration was used in only 6% of cases.

Such is the background which sets the stage for creating new processes to make arbitration work.

And it is because of the wisdom of that experience, that the Maori Party will be introducing an amendment to this Bill, specifically to deal with any disputes over Maori land, which we believe should be dealt with in the Maori Land Court, not by arbitration.

There are already precedents for moving Maori land disputes out of the general courts, and I cite issues arising from both the Fencing Act, and the Property Law Act.

We know that arbitration is sometimes used by Maori to deal with lease rental disputes on Maori land, but we believe the Maori Land Court will deal far more effectively with Maori land disputes, in a more user-friendly way, because of the Court’s awareness of tikanga Maori, and how that affects Maori attitudes towards land.

Mr Speaker, the current process is weighed down by having too many lawyers, and the cost of having to bring in hot-shot arbitrators, and that makes it a decidedly Maori un-friendly process.

What we want to do with our amendment is simply refer to the Maori Land Court, any proposed arbitration matters involving Maori land or general land owned by Maori, as defined in Te Ture Whenua Act 1993.

Despite the low take-up of arbitration; and despite the tragic history of arbitration processes determined by the Crown without consultation with Maori, and without their informed consent; despite all that, the Maori Party remains perhaps foolishly optimistic that all things being equal, arbitration might just be a very effective dispute resolution process.

This Bill will let parties decide whether arbitration is the most appropriate form of dispute resolution, and when determining the best forum, parties can still, if they wish, refer the dispute to the Disputes Tribunal.

So we are pleased to see that options are available, and that both parties are equal partners in determining arbitration.

The precedent established by WAI 145, the Whanganui a Tara claim, reminds us that where the Crown fails to put in place a fair process for arbitration, to consult over the terms of arbitration, and to determine whether arbitration is even acceptable to Maori, an injustice arises, and society will carry the cost of that injustice until such time as it is properly resolved.

So we move forward on this Bill, clearly forewarned.

We look forward to the varied experience of Maori litigants, claimants, mediators, judiciary, lawyers and others, to help refine the Bill through the Select Committee process.

The bottom line for everyone, must be that if this Bill helps reduce the number of disputes going before the Court, then it will have been successful.

Mr Speaker, we will be supporting the Arbitration Amendment Bill through to select committee, with the cautionary endorsement from Santayana, that “those who do not learn from history will indeed be doomed to repeat it”.

ends

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