Page 38 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL X
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ALTERNATIVE DISPUTE RESOLUTION
The three land statutes – – the the the LTA the the the Restitution Act and and ESTA – – encourage the the the use of non-litigious methods such as mediation and negotiation to resolve disputes They also permit the use of of arbitration instead of of approaching the the Court in in in certain circumstances This Part considers how these alternative dispute resolution mechanisms can be employed at various stages Mediation and negotiation (Litigation Stage)
135 The mechanism of alternative dispute resolution (ADR) is is is is permitted in the LCC but unfortunately it it is is is is under- utilised 136 The LCC is empowered by the the the Restitution Act Act to recommend ADR Section 35A(1) of the the the Act Act empowers the the the LCC to stay the the proceedings at at any stage if “it becomes evident that there is is an an issue which might be be resolved through mediation and negotiation” The court can then order the the the parties “to attempt to to settle the the the issue through the process process a a a a process process of mediation and negotiation” 137 The The LRMF has a a a a a a a a a a a component that manages mediation The The mediators who are on on on the Land Rights Management Facility panel are paid by the the the State However the the the LCC has never referred cases to to the the the LRMF mediators for mediation (although the the DALRRD and the the Commission are using that option) Arbitration (Litigation Stage)
138 The LCC is also empowered to to refer matters under the LTA to to arbitration 138 1 1 1 Section 19 of the the LTA provides that the the LCC may refer a a a a a a a land claim to arbitration 138 2 Similarly s s s 33 of the the the LTA LTA allows the the the LCC to to refer eviction matters under the the the LTA LTA to to arbitration 139 The LCC has not adequately utilised this tool despite the fact that it it might assist to to alleviate a a a a a a a a a a huge backlog of of unresolved cases However the the Minister of of the the DALRRD has has contributed to this problem She has has failed to to to perform her duty under s s s s s 31 of of the LTA to to to compile a a a a a panel of of persons from whom arbitrators shall be appointed Mediation and Negotiation (Pre-Litigation Stage)
140 The Director-General of the the DALRRD and and the the Chief Land Claims Commissioner are also empowered before litigation to to refer disputes to to mediation and negotiation:
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