IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2014] NZHC NEW ZEALAND MĀORI COUNCIL First Applicant

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2014] NZHC 2757 UNDER BETWEEN The Trustee Act 1956, Judicature Amendment Act 1972 and Part 30 of the High Court Rules NEW ZEALAND MĀORI COUNCIL First Applicant SIR EDWARD TAIHAKUREI DURIE Second Applicant CLETUS MAANU PAUL Third Applicant AND ANGELA JUNE FOULKES First Respondent ALAN PAREKURA TOROHINA HARONGA Second Respondent ALEXANDER JOHN WILSON Third Respondent FEDERATION OF MĀORI AUTHORITIES INC Fourth Respondent Hearing: 23 October 2014 Counsel: F E Geiringer and M I de Villiers for Applicants S Bisley for First and Second Respondents N Burley with L M McKeown for Fourth Respondent D N Soper for Attorney-General Judgment: 6 November 2014 JUDGMENT (No 2) OF THE HON JUSTICE KÓS NEW ZEALAND MĀORI COUNCIL & ORS v FOULKES & ORS [2014] NZHC 2757 [6 November 2014]

2 [1] In this judgment I appoint two new Māori trustees and four alternate Māori trustees to the Crown Forestry Rental Trust, pursuant to s 51 of the Trustee Act [2] In a perfect world, these trustees and alternates would have been appointed by the Māori Appointor under cl 6.2 the Crown Forestry Rental Trust Deed of 30 April The Māori Appointor comprises the New Zealand Māori Council (NZMC) and Federation of Māori Authorities Inc (FOMA), acting together. Lamentably, those two bodies cannot agree even on the identity of a single alternate. The Māori Appointor has therefore proved incapable of undertaking its duty to appoint. [3] In my judgment of 29 July 2014, I rejected an application by NZMC, Sir Edward Durie and Mr Maanu Paul that I appoint a new trustee then and there. 1 I also rejected an application by FOMA that I reappoint Mr Haronga, a trustee whose term had expired. The background to all this is set out in my judgment of 29 July 2014, at [251] to [279]. Instead, I gave NZMC and FOMA one last chance to meet and reach agreement on the identity of trustees and alternates, to be done within 60 days of the date of that judgment. At [273] I stated: If agreement is not reached on these matters within 60 days, then I direct NZMC and FOMA to report to the Court as to what has occurred. Consideration will then be given to whether the Court should then exercise its inherent power to act in place of the Māori Appointor. If agreement cannot be reached by then, the Māori Appointor will effectively have shifted from dysfunction to non-function. [4] A hui between members of NZMC and FOMA was held on Saturday 13 September 2014, in accordance with my direction. Amicus Mr Illingworth QC and Mr Erima Henare attended the meeting at the invitation of the two parties as cofacilitators. Mr Illingworth and Mr Henare report to me that the meeting was extensive and amicable, and took several hours. Parties came close to reaching agreement, but it proved impossible to bridge the final gap between the two groups. There was disagreement as to whether there was one vacancy or two. That depended on whether present Māori trustee, Mr Maanu Paul s term had expired already or not. (Mr Paul s appointment had, by consent, been extended until the 1 New Zealand Māori Council v Foulkes [2014] NZHC 1777.

3 current applications are disposed of. 2 Given that it would at best end as soon as the Court made trustee appointments, the point taken seems somewhat academic.) Each group presented proposals as to who might fill the one or two vacancies available, but neither group was prepared to accept the proposals of the other. [5] On 25 September 2014 I issued a minute stating that the Court would now make appointments. I directed NZMC and FOMA to put forward nominations of three persons for trustee, and three persons for alternate. Absent unanimity, that might be as many as 12 nominations in all. [6] My minute also recorded that the Court would not necessarily consider itself limited to appointees proposed by the parties. [7] NZMC and FOMA have since put forward 12 nominations. They cannot agree on even one of them. [8] My minute of 25 September 2014 identified three issues: (a) Issue 14 Has Mr Paul s term as trustee expired? (b) Issue 15 Who should the Court now appoint to replace Mr Haronga? And, if the answer to Issue 14 is yes, Mr Paul? (c) Issue 16 Who should the Court now appoint as alternate trustees? 3 Issue 14 Has Mr Paul s term as trustee expired? [9] Mr Paul s appointment was, by consent, extended until the current applications are disposed of. [10] There is essential agreement between the parties on this particular point. FOMA submits that Mr Paul s term as trustee expired with my judgment of 29 July NZMC say that it expires with this judgment, because there remained an 2 3 Minute of Williams J, 9 September 2013 at [2(a)]. The existing alternate appointments being expressly until the current applications are resolved whether by judgment or settlement : minute of Williams J, 4 September 2013 at [20].

4 undetermined application by NZMC that Mr Paul s appointment be extended until the Appointor made a new appointment. [11] Either way, it makes little difference. Formally, NZMC s position appears correct. Mr Paul s appointment ends with this judgment, unless he is reappointed by me. Issues 15 and 16 Who should the Court now appoint as trustees and alternates? [12] At the further hearing that took place on 23 October 2014, counsel were in agreement that it was inappropriate for the Court to traverse the merits or otherwise of the various nominees for appointment. Rather, I will simply set out a short account of the qualities that I consider a Māori trustee or his or her alternate should have, and then record those persons appointed and the basis of their appointment. I express my appreciation to all nominees who expressed willingness to accept appointment. Qualities required [13] First, as I emphasised at [271] of my judgment of 29 July 2014: [Trustees] are not voices, kindly to one interest and harsh to another. They are not representatives for a particular constituency within the Māori Appointor. They are trustees with fiduciary duties, bound to act in the interests of the Trust as a whole. Trustees are to be neutral. They are to be even-handed as between competing beneficiaries: Re Tempest, 4 applied by the Court of Appeal in Mendelssohn v Centrepoint Community Growth Trust. 5 Trustees appointed by the Court must be the persons best suited to administer the trust in the circumstances prevailing. 6 [14] Secondly, I accept submissions of counsel for FOMA that the Māori trustees and alternates should, collectively, have the following skills and experience: understanding of kaupapa Māori, Māori customary values and institutions; hapu and Re Tempest (1866) LR 1 Ch App (CA) at Mendelssohn v Centrepoint Community Growth Trust [1999] 2 NZLR 88 (CA) at 97. At 97.

5 iwi leadership and interrelationships; experience in governance; experience in financial management; knowledge of and practical experience on behalf of hapu and iwi in the Treaty claims process; and knowledge of and experience of trustee law and trust interpretation. Counsel for NZMC advanced a similar submission, but gave particular emphasis to understanding of the claims process, Māoritanga, and the Treaty of Waitangi. In my view, it is not essential that an appointee have all these qualities in abundance. They must have some of them. They must also have an interest in the others and a willingness to develop them. And they must add materially to the collective talents of the trustees. [15] Thirdly, I bear in mind that the loss of trustee Mr Haronga has meant that the Māori trustees presently lack, and the Trust as a whole also presently lacks, his depth of talent in financial management. To that extent, I put some emphasis on that talent. [16] Fourthly, I bear in mind, too, the history of the workings of the Trust and its trustees. I have regard to the regrettable descent of the Trust and its trustees into protracted litigation. To the extent, therefore, that the qualities needed can be found in persons not presently trustees, I will favour new membership. [17] Fifthly, I bear in mind the potential for conflicts of interest in funding decisions. In doing so I have reviewed with counsel the major business lying ahead in the Waitangi Tribunal claims process. I recognise, however, the inevitability of trustees and appointees across Māoridom having conflicts of interest. The Trust has a comprehensive conflicts policy. I gave further guidance on that policy in my previous judgment. 7 It is also the primary reason alternates are appointed under the Trust Deed. Appointments [18] The Court appoints: (a) Hinerangi Raumati-Tu ua; 8 and 7 8 New Zealand Māori Council v Foulkes [2014] NZHC 1777 at [198]-[221]. Ms Raumati-Tu ua is a chartered accountant, Acting General Manager of Open Wananga Ltd and National Transformation Manager of Te Wānanga o Aotearoa.

6 (b) Paul Francis Majurey: 9 as Māori trustees of the Trust, in each case in accordance with [21] below. [19] In appointing Mr Majurey I have looked beyond nominations from NZMC and FOMA. I foreshadowed that course in my minute, and at the hearing. Mr Majurey is held in considerable regard throughout Māoridom, and in the legal profession. I have known him for some 25 years. I am more than satisfied he will bring to the Trust talents, independence and dispassion it sorely needs. In appointing Mr Majurey I have borne in mind potential conflicts arising from his associated responsibilities as chair of the Hauraki and Marutūāhu iwi collectives and negotiator for Ngāti Maru. As with other trustees similarly situated, potential conflicts are to be managed in the manner noted in [17] above. I have also borne this in mind in the selection of Mr Majurey s alternate. [20] The Court also appoints: (a) Roimata Kirikiri, 10 as alternate for trustee Sir Edward Durie; (b) Riria Te Kanawa, 11 as alternate for trustee Ms Raumati-Tu ua; (c) John Paki, 12 as alternate for trustee Mr Majurey; and (d) Simon Karipa, 13 as alternate for any of the three Māori trustees, should any nominated alternate be unable to act: 14 in each case in accordance with [21] below Mr Majurey is a lawyer and senior partner in Atkins Holm Majurey, solicitors, Auckland. Ms Kirikiri is a senior manager for the New Zealand Childcare Association and has had a long career in Māori education matters. Ms Te Kanawa is a chartered accountant and director of Koa Group Ltd, a business advisory and accountancy practice. Mr Paki is now a self-employed consultant. He was formerly the Māori Trustee, and Deputy Chief Executive of Te Puni Kōkiri. Mr Karipa is a lawyer and is presently General Counsel of Te Ohu Kaimoana Trustee Ltd. A similar appointment was made previously by Williams J: see [253] of my judgment of 29 July Nominated alternates may be conflicted, or unavailable to act.

7 Basis of appointments [21] Each of these appointments is for a term of three years from the date of this judgment, provided however that the Māori Appointor (that is, NZMC and FOMA collectively) may apply to the Court during the term of these appointments for approval of the substitution of another suitable person upon whom they are together agreed. Stephen Kós J Solicitors: Woodward Law Offices, Lower Hutt for Applicants Chapman Tong, Wellington for First to Third Respondents Johnston Lawrence, Wellington for Fourth Respondent Crown Law, Wellington for Attorney-General