Arbitrating indigenous disputes: a New Zealand perspective

John Walton^[1]
Bankside Chambers, Auckland
john@johnwalton.co.nz

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Introduction

In 1908, historian Thomas Hocken found a tin box in the basement of the Government Buildings in Wellington.  The box, which had apparently rested there, ignored, since Wellington became the capital in 1865, contained the original Treaty of Waitangi signed on 6 February 1840.  The document itself comprised 9 pages, two of vellum and 7 of paper, and was in a sad state, eaten by rats, water damaged, and with many of the names, and ta moko (facial tattoos) of the original signatories inscribed with care in place of signatures, gone.

The early desire to establish a new nation, with Māori assimilated into the predominantly European population, was inconsistent with the recognition of any residual rights and obligations under the Treaty; nor was extensive continuing traditional tribal land use and occupation consistent with the voracious appetite of settlers for productive land.  This position was not to be formally re-examined until 1975.

The legal low point was the description of the Treaty by Chief Justice Pendergast in 1877 as being 'a simple nullity'^[2]. In his judgment, Pendergast CJ found two primary points of law – (1) Māori had no settled form of law prior to 1840, when the Treaty was signed; and (2) Māori were subjects of British law, and ceding of title to the Crown was an act of State not capable of examination by any Court.

After decades of pressure, Māori land rights, and rights under the Treaty, were finally formally recognised in 1975 with the Treaty of Waitangi Act, and the Waitangi Tribunal was established to investigate treaty claims.  The first treaty settlements, providing for the return of lands and compensation to Māori, were signed in 1989.  That process is ongoing, with the largest tribal group Ngā Puhi, situated in the Far North, still to agree a mandate for negotiations.

Since those settlements were concluded the need for intra-Māori disputes to be settled has increased.  Arbitration has been used by Māori to settle rental and other rural and commercial disputes successfully, and there was some logic in arbitration being used for disputes between tribal groups for how Treaty settlement proceeds were to be used and lands allocated, and for Māori Trust disputes and disputes over customary marine cross-claims.  The use of arbitration was also seen by some as being consistent with historical Māori distrust for the Courts; not independent fora for settlement with the Crown, their Treaty partner, but as instruments of the colonial government oppression and land dispossession.

Arbitration in Aotearoa New Zealand

New Zealand has a proud history as an early Model Law jurisdiction, adopting the UNCITRAL Model Law on Commercial Arbitration relatively unamended in Schedule 1 to its Arbitration Act 1996.  It was also one of the first countries to adopt UNCITRAL’s 2006 amendment to the Model Law.

Traditional dispute resolution in te ao Māori (the Māori world view), involves the disputants negotiating face to face, with input from pūkenga (those steeped in tribal history and custom), and, if agreement cannot be reached, a binding decision made by rangatira (senior chiefs).  This is a process which, with some adjustment, sits well with arbitration under the Model Law.  Leaving aside the practicalities of the appointment of the tribunal and setting the relevant arbitral process, both with the flexibility offered by the Model Law, the status of tikanga Māori (Māori customary law) has been a more difficult issue for the courts to grapple with. As with arbitration under Beth Din (orthodox Jewish law) in the UK and Shari’a in Malaysia, conceptually, there should be no bar to arbitration with tikanga as the applicable law.^[3] 

Te Tiriti o Waitangi

The legal foundation of New Zealand as we know it has a somewhat murky past.

Māori history ascribes the discovery of Aotearoa to Kupē, an early Eastern Polynesian navigator, and its subsequent settlement by waka (Polynesian sailing canoes) from legendary Hāwāiki some 600 or more years ago.  First European contact was with Dutch explorer, Abel Jansoon Tasman, in 1642.  Lieutenant James Cook followed in 1769, ambitiously claiming sovereignty over New Zealand in the name of the British Crown.

Initially, the British Government declined to accept New Zealand as a colony, recognising it as an independent state.  That position changed out of necessity, with growing European (mainly British) settlement; increasing French interest in the islands; the establishment of a number of settlements by the NZ Company; concern over a lawless settlement at Korerareka in the Bay of Islands, which had become known as the 'hell hole of the South Pacific'; and direct approaches from a number of Māori chiefs seeking greater control over increasing European activity (mainly traders, sealers, whalers, missionaries and new settlers).

On 6 February 1840, the British Crown, through its representative William Hobson, entered into the Treaty, with local Māori representatives at Waitangi, in the Bay of Islands in the north of the country.  The Treaty contained three articles, (1) Māori either grants governance rights or cedes sovereignty to the Crown, depending on the version of the Treaty, Māori or English; (2) guarantees ownership to Māori of their lands, villages and treasures, while the English version also grants a right of pre-emption to the Crown; and (3) gives Māori the full rights of protection of British subjects.

Sovereignty over the country was claimed by the Crown by treaty for the North Island (Te Ika a Māui) and annexation for the South Island (Te Wai Pounāmu) as terra nullius (despite clear evidence that the South Island was populated).  Following signature of the Treaty, dubious land acquisition and land confiscation followed, culminating in the New Zealand Wars of the 1860s, and the judgment of Prendergast CJ, cited above, in which Māori are described as barbarians, effectively incapable of entering into binding obligations inconveniently set out in the Treaty.

After land marches of the early 1970s and increasing public pressure, particularly from Māori, the Treaty finally gained legal recognition in the Treaty of Waitangi Act 1975; and the Waitangi Tribunal was established to investigate Māori claims.  Armed with the tribunal reports, in the years that followed, the Government’s Office of Treaty Settlements and iwi (tribal groups) negotiated to settle those claims.

Tikanga Māori

It is now generally accepted by both Māori and Pākehā (the non-Māori settlers of Aotearoa New Zealand) that the Treaty is our founding document; in legal circles, at least.  The disparity between the English and Māori language versions of the Treaty, particularly over issues of sovereignty and governance, continue to swirl around the legal community.  Central to this controversy is the place of tikanga Māori (or Māori customary law) in resolving disputes. At its simplest, tikanga Māori is a means of social control over 'interpersonal relationships'; it provides norms for 'groups to meet and interact, and even determines how individuals identify themselves'^[4]. It is accepted, however, that it has no application to the Pākehā world.

From a legal perspective, tikanga Māori has some legal recognition as the first law of New Zealand^[5], with Chief Justice Sian Elias noting in 2012 that 'Māori custom according to tikanga is therefore part of the values of the New Zealand common law'^[6]. That position was expanded to acceptance as a 'genuine body of law, entitled to respect as such'^[7];  in 2017. The extent of that recognition remains open to debate.

While the country, and more particularly the legal community, grapples with this parallel approach to legal rights, Māori have used arbitration as a means of resolving its disagreements, giving primacy to tikanga where relevant. It is apparent that many disputes between and within iwi are resolved successfully in this way.  Its flexibility, and the fact that it is almost unquestionably supported by the courts, has made it attractive and productive.  

The place of tikanga has been more problematic. This article examines four cases which are, at best of questionable jurisprudential value.

Takamore v Clarke^[8]

The first case, Takamore v Clarke,  concerned the burial of Mr Takamore, a Māori having his ancestral home in the Bay of Plenty, in the North Island. For 20 years, he had been in a long-term relationship with Ms Clarke, a Pākehā, living in Christchurch, in the South Island.  When Mr Takamore died, Ms Clarke proposed to have him buried in Christchurch in accordance with his expressed wishes, her own wishes and those of their two children.  Under one reading of the common law, Ms Clarke as executor of Mr Takamore’s estate was entitled to deal with the burial arrangements as she saw fit; as a matter of tikanga, his family were to bury him with his ancestors in faraway Bay of Plenty.  Mr Takamore’s whanau pani (his wider family) took his remains north and buried them there.  Ms Clarke sought to have him disinterred and reburied in Christchurch.

In the Supreme Court, it was accepted that disposition of the body was governed by the common law, of which tikanga Māori is part.  Neither position, that of the executor nor Mr Takamore’s whakapapa (his ancestral family), was dispositive; each had equal weight. Deciding for Ms Clarke and her family, the Chief Justice concluded that they should be left to decide where Mr Takamore should be buried. In reaching this conclusion, the Chief Justice noted that the underlying values which are embodied in tikanga are 'properly to be taken into account in New Zealand law', so far as it is able to do so.  As such, while the judgment recognised tikanga Māori as relevant in the consideration of New Zealand common law, it is equivocal, leaving some uncertainty as to its legal primacy.

Of more interest was her honour’s observation that: 

'Because in Māori thinking the dead are always present and always acknowledged, decisions in such matters affect the enjoyment of the culture of the hapū in a way which engages s 20 of the New Zealand Bill of Rights Act and makes the interest of this minority group a proper matter to be weighed, whatever the wishes of the deceased.  They also engage the principles of the Treaty of Waitangi and its protection of Māori society, in which the dead are so important.'

Notwithstanding the Chief Justice’s somewhat lukewarm reference to “values”, her judgment at least acknowledges the place of tikanga in the common law, and the primacy of rights under the Treaty.

Bidois v Leef

The second case, Bidois v Leef,^[9] concerned competing rights by two hapū (subtribes) over compensation for lands which had been compulsorily acquired by the Crown during the New Zealand Wars. The two hapū disputed the allocation within the iwi, the issue being over mana whenua (the usage and occupation rights over the land, determined according to tikanga).  They agreed to refer that dispute to arbitration, before two arbitrators.  The unsuccessful hapū in the arbitration applied to have the award set aside, on the basis, among others, that issues of mana whenua were not arbitrable.

In the High Court it was held that the dispute was not one which could be referred to arbitration as it was not in respect of a 'defined legal relationship' (article 7 of Schedule 1).  The Court of Appeal took a different view, holding that the reference to a defined legal relationship was not to be read as limiting the broader entitlement to refer 'disputes' to arbitration.  More critically, the court found that issues of mana whenua are arbitrable.  

The court’s acceptance of a number of irregularities, however, was more problematic; first, the lack of impartiality of one of the arbitrators (whose wife was a member of one of the disputing hapū); and second, the failure of equal treatment of the parties and the opportunity to present its case (no cross-examination and the production of documents at the 'hearing' without giving the other party the opportunity to review and respond).

Ngāti Hurugaterangi

The third case, Ngāti Hurungaterangi v Ngāti Wahiao^[10]  also concerned allocation of land rights and the mana whenua of competing iwi. The parties agreed to refer the dispute to a panel made up of two experts in tikanga and a retired Supreme Court Justice, who would chair the panel. The issues were complex, and the hearings on mana whenua took up 13 days of hearing time. In the award, the tribunal effectively avoided determining the core issue, granting equal rights to the parties, disposing of the central factual issues of mana whenua in 5 paragraphs of reasoning, described in the High Court as 'sparse'. The Court of Appeal set the award aside for a failure to give reasons (article 31(2)).

In what was, perhaps, a missed opportunity the Court of Appeal did not consider the finding in the High Court that issues of tikanga were findings of fact, not capable of appeal under clause 5 of Schedule 2, rather than of applicable law, which could be appealed.

The last case, Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board, decided by the High Court in February of this year, raises a number of more difficult issues.

Ngawaka and Ors v Ngāti Rehua-Ngātiwai ki Aotea Trust Board and Ors^[11]

In December 2016, the Crown and Ngāti Rehua-Ngātiwai ki Aotea, the predominant hapū on Great Barrier Island, initialled a treaty settlement agreement.  Before formal signature of the agreement, the hapū was required to update and settle its register of members who could participate in the proceeds of the settlement.  That process threw up a dispute over the whakapapa (ancestral tribal affiliation) of two members of the hapū.

The disagreement initially went to the High Court, with Palmer J ruling that the parties had to consult with their pūkenga (elders expert in the oral history of the tribe) and tribal elders to reach agreement.  Ultimately, the parties were unable to resolve the issue themselves and entered into a mediated agreement, which provided for further negotiation followed by a determinative process which could only be described as arbitration.  The underlying issue of whakapapa could not be resolved, and an arbitral tribunal not agreed, leaving the parties to apply to the Arbitrators’ and Mediators’ Institute of New Zealand to make the appointment under article 11 of Schedule 1.  A number of members of the hapū and its elders then objected to the appointment, and reverted to the High Court to have the arbitration agreement set aside.

Court intervention

The primary concern of the disputants was that the arbitrator was a pākehā woman from Tauranga with no connection to the hapū, or Aotea (Great Barrier Island), and no knowledge of matters of tikanga as they applied to that tribal group.

The first issue was the court’s ability to intervene on such matters.  Article 5(1) limits court intervention to those specifically identified in that Schedule (the Model Law), and while a number of disputants may have been unhappy with the appointment, there was no basis for judicial intervention in that appointment.  

Notwithstanding the express prohibition in article 5(1), his honour Justice Palmer held that the court retained inherent jurisdiction to supervise such matters, citing Carter Holt Harvey v Genesis Power^[12]  as authority.  Leaving article 5 aside, the Carter Holt Harvey case concerned the failure of a cogeneration plant at Kinleith.  Carter Holt Harvey owned the plant; Genesis Power entered into a power purchase agreement with Carter Holt which provided for the construction of a cogeneration power plant on the site of the Kinleith pulp and paper mill; and Rolls Royce was the EPC contractor for the power plant.  

The plant failed, and Rolls Royce became liable for liquidated damages under the EPC contract.  Not satisfied with its rights under the power purchase agreement, Carter Holt sued Rolls Royce directly in tort.  It is in that complex factual and legal background that the High Court granted a stay of the arbitral proceedings brought against Genesis Power under the power purchase agreement, noting that such stays were to be 'granted sparingly' and only where injustice would arise, and that any applicant would need to establish that continuing the arbitration would be 'oppressive or vexatious or would otherwise constitute an abuse of the process of the Court.'

Relying on his earlier judgment requiring the parties to refer the matter to pūkenga (experts) within the hapū (sub-tribe) and to determine the matter by negotiation and agreement, Palmer J set aside the agreement to arbitrate, not as contrary to public policy under articles 34 or 46,  or as oppressive or vexatious, but as an abuse of the process of the Court.  

It is hard to reconcile Palmer J’s reasoning in Ngāti Rehua with the tight constraints imposed by Randerson J in the complex legal and factual matrix he confronted in Carter Holt, or that injustice would arise purely as a result of the identity of the arbitral tribunal.  Application of over-arching judicial supervision is contrary to the express purposes of the Arbitration Act in section 5 and the more specific limitations on court intervention in article 5; it was questionable, at best.

Arbitrability of Tikanga Māori

The second ground was that matters of whakapapa are so central to Māori identity and so sensitive that they are not arbitrable in terms of section 10.  This is an extremely rare, and important finding, which is in desperate need of further judicial consideration.

Regrettably, the case is not to be appealed, the parties having withdrawn their application for leave; not, it is suspected, through any settlement of the core issue of whakapapa or the reasoning of the court.

The net result of Ngāti Rehua​​​​​​​ is that it gives rise to the suggestion that some disputes will not be resolved by the courts, and cannot be resolved by arbitration.  This is strikingly unhelpful.

Considered objectively, while issues of tikanga may vary from hapū to hapū, there is no reason to assume that an arbitrator cannot make a finding of fact on such matters, following the presentation of evidence from pūkenga and argument of the parties, as with any matters requiring expert evidence.

Alternatively, if tikanga is agreed to be the law applicable to the arbitration, that is again a matter upon which argument can be heard.  In terms of tikanga Māori more generally, despite his honour’s recognition of its primacy in the laws of New Zealand, no account is taken of the fact that disputes in accordance with tikanga would be finally determined in a manner consistent with arbitration – by face-to-face discussion between the parties, presentation of oral evidence and any documentation, followed by final decision by a chiefly elder or rangitira.

More critically, while the judgment acknowledges the important of matters of tikanga, and is respectful in that respect, it left the parties with no practical means of breaking the deadlock; other than, one suspects, fatigue and lack of financial resources.

Conclusion

There can be little doubt that issues of whakapapa and mana whenua are matters best dealt with by Māori, in a process which respects tikanga and falls within the legal recognition of the Arbitration Act.^[13] The Courts, however, must be supportive.

Regrettably, the responses to date have been inconsistent and, in the case of Ngāti Rehua, paternalistic.

In three of the cases discussed, the parties had agreed to arbitration, but in Bidois, the courts upheld the award, but overlooked critical matters not covered by party autonomy (impartiality of the tribunal and an equal opportunity for each party to present its case); in Ngāti Hurungaterangi, the award was struck down for reasons which could have been covered by agreement; and in Ngāti Rehua the agreement to arbitrate was set arise for reasons not covered by the Act.

We have, however, made significant strides since the dark days of the 19th century, and tikanga Māori has at least been accepted as having a place in our jurisprudence.  The extent of that acceptance, and how it is to be accessed by Māori remains a work in progress.