To date, the courts have served Māori poorly, from the more egregious decisions of the 19th century (Wi Parata in 1877, with Pendergast CJ finding that Te Tiriti o Waitangi is a "nullity", and Māori a barbarous people without laws, was a low point) through to Ngati Hurungaterangi (setting aside a complex award for lack of reasons) and the recent decision of Palmer J in Ngawaka recognising the primacy of tikanga Māori, but finding that issues of whakapapa are not arbitrable in terms of section 10 of the Arbitration Act 1996.
In the context of tikanga, procedures will vary from hāpū to hāpū, but invariably iwi disputes are brought to the marae; all interested parties are given the opportunity to express their views in accordance with established protocols; the dispute is discussed; and if it cannot be settled, a final and binding decision is made for the parties by rangatira. There can be no question that arbitration is amenable to traditional Māori dispute resolution.
So, what would such arbitration look like?
Under section 10, any dispute may be referred to arbitration, unless contrary to public policy, or under any other law, the dispute is not "capable of determination by arbitration". Sadly, Palmer J's finding, that sensitive issues like whakapapa are not capable of arbitration, has not been appealed; conversely, equally sensitive issues like mana whenua have been accepted as capable of arbitration (the ill-fated Ngati Hurungaterangi arbitration). If not capable of arbitration, and the courts will not determine the issue either, where does that leave Māori? In the context of Te Tiriti, why should Māori disputes be treated in any way different to any other disputes? At best, this looks paternalistic.
The unanswered question must be, if it can be determined in accordance with tikanga, why can't that tikanga determination be brought under the Model Law (as with Beth Din arbitrations in the UK under rabbinical law or Shari'a arbitrations in Malaysia)?
A perhaps more obscure question is whether the issue of arbitrability is determined under New Zealand law or tikanga Māori, if it is the applicable law. Certainly, from a tikanga perspective, there is no question that such an issue could be determined in the traditional way on the marae. That would suggest that a tikanga-based procedure, meeting the requirements of the Model Law, should also be recognised and enforceable.
(2) Agreement to arbitrate
Unlike a number of other jurisdictions, under article 7(1), the agreement may be oral or in writing.
In order to ensure enforceability of any award, a number of issues need to be covered in the arbitral procedure:
(a) selection of the tribunal
(b) applicable law - not just to the issues in dispute, but to the validity of the agreement to arbitrate and to issues of procedure
(c) language of the arbitral proceedings
(d) disclosure of information and exchange of pleadings
(e) the exchange and taking of evidence, and any hearing
(f) expert evidence, if any
(g) confidentiality of the arbitration
(h) the form of the award, and any requirements for reasons
Each is capable of agreement, despite being a departure from traditional arbitral procedures, leaving the requirements for equal treatment under section 18 of the Act and public policy in enforcing or setting aside arbitral awards under articles 34 and 36 of Schedule 1. Provided such issues are properly dealt with, there is conceptually no reason why a properly structured tikanga-based dispute procedure would not be fully enforceable as an arbitration; but for the unruly horse of "public policy", which arguably underlies Palmer J's decision in Ngawaka.
(3) Appointment of the arbitral tribunal
The selection of the arbitral tribunal is one of the most critical decisions for any arbitral proceedings.
The best approach to appointment must be by agreement between the parties. The criteria for appointment can then be settled, by reference to potential conflicts of interest (see Bidois v Leef), expertise, experience and availability. In Ngati Hurungaterangi, the tribunal was to determine complex issues of mana whenua. A three arbitrator panel was appointed - the chair a retired Supreme Court Justice and two experts in tikanga Māori and local history.
Alternatively, a single arbitrator could be appointed, either with direct knowledge of tikanga and the procedural requirements of arbitration, or by an arbitration practitioner with recourse to pukenga (experts in tikanga). It was the latter which underpinned the challenge to the appointment of the arbitrator in Ngawaka.
The alternative to appointment by agreement is for the appointment to be made by the Arbitrators' and Mediators' Institute of New Zealand (AMINZ) under article 11. While AMINZ has an education programme, accreditation and a panel for arbitrators, it is not limited in its appointments under article 11 to arbitrators who are its members. As a condition of its appointment to that role, AMINZ undertook that it would make the most appropriate appointment for the dispute in question, regardless of whether or not the candidate for appointment is a member of AMINZ, or on its arbitration panel. AMINZ also has an appointment protocol which provides for consultation with practitioners of the relevant discipline before making an appointment. For appointments to work for tikanga-based disputes, AMINZ will need to widen its candidates for appointment, and those it consults.
The best approach remains, however, for the parties to acknowledge they are in dispute, define the issues in dispute, what needs to be determined and agree on the best person to assist them to resolve the dispute.
There is considerable flexibility, within the constraints of equal treatment and natural justice, for the arbitral procedure to follow the requirements of the tikanga of the relevant hāpū.
The preliminary conferences, and issues hearings, the presentation of evidence and submissions of the parties can all be undertaken at the relevant marae, under the applicable protocols. The driving principles are that all relevant evidence is presented to the parties and the parties should be given equal opportunity to present their cases, including addressing any issues which the tribunal itself considers determinative, and the options of pukenga assisting the tribunal.
In this respect, the procedure should respect tikanga protocols, rather than the tribunal endeavouring the force the parties into a traditional arbitral procedure. The goal should be to use the flexibility provided by the Model Law, on which our Act is based, to recognise tikanga based dispute resolution as a relevant form of arbitration to which the Model Law applies.
As shown in the Ngati Hurugaterangi case, if a fully tikanga based procedure is adopted, then an award without reasons is unlikely to be durable. It is not enough for the parties to be given the opportunity to speak; they must also be shown to have been heard, and heard respectfully.
The substance of the award must also take into account all the complexities of tikanga Māori, not least concepts like utu and re-establishing balance between the disputing parties. This is a significantly different approach to the common law focus on rights.
It is arguable that, in a tikanga based approach, there is no place for appeals on questions of law.
This raises an interesting issue, touched upon in the High Court decision in Ngati Hurungaterangi, but not addressed by the Court of Appeal. With many choice of law arbitrations, questions of foreign law are treated as questions of fact, not subject to appeal. Hence the complexities of the law of the dispute, the law of the seat and the law applicable to the agreement (see the baffling decision of the UK Supreme Court in Enka v Chubb for a detailed justification for claiming side stepping a Moscow court decision in relation to a power project in Russia).
However, if tikanga Māori is the first law of New Zealand, as acknowledged by Palmer J in Ngawaka, then arguably it would be the law of the dispute, and therefore amenable to appeal under clause 5 of Schedule 2. It is not a "foreign law", and should not be treated as such. Conversely, allowing for such a possibility would almost certainly further increase the potential for court intervention, which is the very thing that arbitration in this context sets out to avoid.
Much of the difficulty Māori have experienced with arbitration to date has been the attempt to force the dispute into the traditional procedures for commercial arbitration. Instead, the arbitration community should consider adopting tikanga approaches, and adapting the arbitral procedures to those traditional procedures, and adapting tikanga-based models to meet the core requirements of the Model Law. As discussed above, the Model Law provides sufficient flexibility to achieve this, provided the requirements of equal treatment and natural justice are met.
In this context, natural justice is flexible, tailored to meet the requirements of the particular procedure and dispute. It does not automatically carry with it the requirements for formal hearings, evidence given on oath or cross-examination in the traditional sense, or the strict rules of evidence. The only potential unknown is the view of the court on any given day on what will constitute public policy - Burroughs J's "unruly horse", from the 1824 decision of Richardson v Mellish.
More critically, unlike the decision of the Supreme Court in Takamore v Clark, the award would be durable as between the parties.