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Are we ready for tikanga-based dispute resolution?

11 Aug 2023

| Author: Shelley Kopu

As Alice Anderson and Riki Donnelly stated in their paper A Representation in Contemporary Aotearoa; Adapting the Approach:

it has been 20 years since the Employment Court indicated that employees should not have to plead for their cultural identity to be recognised in employment processes. Whether this is properly implemented and enforced in practice as a legal obligation is questionable, and the responsibility for this largely sits with us as representatives. In short, we must do better.

Tikanga-based dispute resolution processes are being more widely traversed within the employment jurisdiction. However, an understanding as to what such a process entails or the responsibility of representatives within that process remains uncertain. Representing clients in a tikanga-based dispute process requires in the first instance an understanding of Māori societal structures and tikanga values.

Māori social structures are underpinned by whakapapa which is an integral part of our identity. With a focus on relationships being key to our societal structure, any form of dispute carries with it a ripple effect that cascades through the collective. Therefore, resolution of disputes requires both a focus on the rebalance within relationships and an acknowledgement of collective responsibility.

Joseph Williams J in his paper He Aha Te Tikanga Māori explored the commonly held concept of law on the one hand and values on the other. Conversely, tikanga Māori does not differentiate between law and values.

Rather, as Justice Williams states, it is these values which provide the primary guide to behaviour and not necessarily any “rules” which may be derived from them. He noted those values as generally being:

Whaungatanga, the centrality of relationships to Māori life; Mana – the importance of spirituality sanctioned authority and the limits on Māori leadership; Utu, the principle of balance and reciprocity including the accompanying values of aroha and manaakitanga requiring respect, empathy and generosity; Kaitiakitanga, the obligation of stewardship and protection of one’s own; Tapu, respect for the spiritual character of all things.

To effectively explore a tikanga-based dispute resolution process, it is necessary to first develop and practice a tikanga-focussed approach. Tikanga is not an add-on to an existing structure, but rather serves as the core of that structure.

I appreciate that in exploring a tikanga-based dispute resolution process, many representatives are seeking an understanding of “process”. Unfortunately, this is often translated to karakia at the commencement and conclusion of an existing process, with the balance of such process failing to reflect tikanga in any form.

Therefore, representatives need to undo the thinking that tikanga dispute resolution processes attach to what is currently in place. That requires a considerable shift as to how representatives are viewing the inclusion of Māori and Māori ways more generally.

Te Kawehau Hoskins and Alison Jones in their paper Indigenous Inclusion and Indigenising the University discuss two approaches to broadly integrating Māori ways. The first is indigenous inclusion, focussing on equity and inclusion with the intent being to include Māori who have been “left out and left behind”. The second, indigenisation, shifts the focus to the normalisation of Māori ways of being and knowing. This latter approach moves us towards a more relational way of doing things based in whakapapa (history, place and relationships) and social justice. It is not about making “space” for Māori but the encapsulation of Māori.

Employment Court Chief Judge Christina Inglis, in her paper A privileged position – the important role played by representatives in the employment dispute resolution, states: I think it is fair to say that in Aotearoa 2021 all representatives can be expected to bring cultural competence to their work … The potential role for tikanga Māori in the resolution of employment matters has not, I suggest, received the attention it deserves. Yet.

The process of becoming culturally competent in the service of Māori can come with challenges, some examples being:

■ Tikanga processes are ultimately consensus-driven. Consequently an adversarial or positional stance has little place in a tikanga framework, which can be a challenging proposition for some.

■ It can be problematic for representatives to seek out their understanding of tikanga as it pertains to their client at the time and/or only take direction as to tikanga from their client. That is no different than taking “instructions”, as opposed to understanding the intricate framework which tikanga is.

■ A representative’s duties of cultural competency are not discharged through the client’s understanding. Rather, it is the representative’s responsibility to build the knowledge of those it represents which in the case of Māori includes tikanga.

■ Although tikanga resolution processes are now spoken about more widely, it is often considered only at the time of mediation, rather than part of the overarching strategy. That is not to undermine a legal position, but at times the representative’s language or approach pre-mediation can cause such an impact that there is a process of “undoing” the harm caused in order to enable a tikanga-based approach to resolution.

Representatives should be courageous to acknowledge that without the relevant knowledge of tikanga Māori, they may face constraints in adequately serving the needs of Māori in a tikanga dispute resolution process.

Serving Māori may require the need to engage appropriately with assistance, including engaging with tikanga experts where appropriate. Importantly, it requires the awareness to understand what one does not know. In conclusion, I refer again to Chief Judge Inglis who says: Representatives are in a privileged position, often guiding very distressed people through an unfamiliar maze. With privilege comes responsibility – baseline competencies and principles being key.

I leave you with two wero:

■ As put to the Employment Lawyers Conference in 2020, to adequately serve the needs of Māori, including inclusion of tikanga-based dispute resolution processes, representatives must first understand the needs of Māori. This includes being culturally competent to assist Māori. Consequently, to build a culturally competent legal framework that embraces a tikanga-based dispute resolution process, representatives must commit to a journey of discovery of tikanga for themselves.

■ Tikanga-based dispute resolution does not start in the mediation room; rather, from the very first exchange. Tikanga should not be viewed as a bolt-on to be exercised when the parties seek to resolve their dispute within a mediated process, but rather a purposeful approach from the commencement of a dispute. ■


Shelley Kopu is the director of Shelley Kopu Law and a member of the ADLS Employment Law committee

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