An investigation of alternative dispute resolution in resource use conflict and options for the improvement of its use in resource management : a thesis presented in partial fulfilment of the requirements for the degree of Master of Philosophy in Resources and Environmental Planning at Massey University
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Date
1993
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Massey University
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Abstract
For the first time, New Zealand resource management legislation has included alternative dispute resolution (A.D.R.). In this thesis A.D.R. theory, particularly mediation, is explored. Conclusions from case studies and a questionnaire are drawn on to suggest ways in which the use of A.D.R. in resource management can be improved. The introduction explains how confrontational or adversarial modes of dispute resolution have dominated the way in which resource use conflicts have been resolved in the past. What alternative dispute resolution is, its non zero sum philosophy, and what it purports to achieve is covered. It introduces the consents process in the Resource Management Act and discusses how effective public participation in that process is a moral necessity. Alternative dispute resolution can provide, in part, a mechanism by which effective public participation can be achieved. Chapter one looks at the theory of alternative dispute resolution. The works of various A.D.R. theorists are drawn on to explain the advantages of alternative dispute resolution and when it will be effective. A typical mediation process is outlined, again drawing from the works of theorists. Problems associated with alternative dispute resolution are explored. Some of the mediator training and skill requirements are discussed. Most of the case studies involve Maori cultural and spiritual values and the principles of the Treaty of Waitangi. One of the mechanisms Maori use to safe guard their interests and redress past 'injustices' is the Treaty of Waitangi and the 'principles' of the Treaty. To facilitate greater understanding of the case studies how Maori view the world, and the principles of the Treaty of Waitangi are discussed in Chapter two. The major case study in this work, Chapter three, shows how a substantial resource use conflict involving cultural and spiritual values has been successfully resolved using Mediation. An analysis of that case study is conducted using points drawn from Chapter one. Chapter four presents four 'minor' case studies. These detail techniques which are not strictly mediation but promote the philosophy of A.D.R.. The positive aspects and problems which were encountered in all of these studies are drawn on in the conclusion. The results of a questionnaire focusing on the attitudes to and use of A.D.R., by planning staff, in Local Government are discussed in Chapter five. Some conclusions are drawn about the way in which the A.D.R. provisions in the Resource Management Act have been used. The conclusion suggests: agreements between parties should include some provision for re-negotiation should unforeseen circumstances arise; some gauge of the likely reaction of political decision makers to settlements needs to be made prior to entering an A.D.R. process; A.D.R. techniques could be introduced at the beginning of the consents process rather than at its concluding stages; training in mediatory techniques for planners should be introduced at the tertiary level; A.D.R. in the planning system cannot be conducted in isolation from the judicial decision makers.
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New Zealand, Culture conflict, Environmental mediation, Mediation, Water resources development, Environmental mediation