Waka Umanga (Māori Corporations) Bill

  • discharged on 23 December 2009

Waka Umanga (Māori Corporations) Bill

Government Bill

175—2

As reported from the Māori Affairs Committee

Commentary

Recommendation

The Māori Affairs Committee has examined the Waka Umanga (Māori Corporations) Bill and recommends that it be passed by majority with the amendments shown.

Introduction

The Waka Umanga (Māori Corporations) Bill provides for the establishment of new legal entities by tribal groups or Māori associations, which may be structured to meet the organisational needs of tribal groups and other Māori associations that manage communal assets. The bill recognises the right of Māori collectives to develop their own structures to suit their cultural and governance needs, to determine their own mandate and representation, and to do so through an independent process.

The bill arises from the current lack of cohesion between the form and function of existing legal frameworks and the unique characteristics that shape Māori collectives. These include the management of collective assets, and regulations surrounding tribal membership. Māori have adapted to using forms of statutory governance such as companies and trusts, but none are ideal for meeting their overarching needs. Māori collectives are increasingly pursuing multiple and diverse objectives, and structures are needed that can incorporate and appropriately manage both the commercial and non-commercial activities of Māori organisations.

The majority of us recommend a number of changes to the bill as introduced. This commentary addresses the major issues considered and the recommended amendments. It does not discuss minor and technical amendments.

We were advised by officials that the waka umanga, as presented in the bill, is intended to be an option for iwi and pan-Māori groups to consider as only one option from a number of alternatives.

Preamble

The majority of us recommend the deletion of subclause 2 in the preamble and the insertion of new subclause 2, to better recognise the importance of the Treaty of Waitangi, and its effect on the development of the waka umanga model more fully.

The provisions of the final Act, and more specifically, the duties a governor of a waka umanga owes to the Māori collective, will be open to interpretation by the courts. Interpretation tools available will include the bill’s purpose, and accompanying explanatory material, including the preamble. There is room to interpret the duties of governors widely, implying a specific duty to future generations and restricting the actions of governors in relation to the benefit of current members.

The majority of us consider that the imposition of such a duty for each waka umanga should be determined by its members, rather than by inadvertent parliamentary direction to the courts, and this could be achieved by removing reference to “the benefit of present and future generations,” from the Preamble.

Additionally, some words used in the bill are unfamiliar and are not commonly applied. The majority of us consider that a number of terms, including “waka pū,” and “waka tumaha,” used as a distinction between whakapapa and non-whakapapa-based umanga will no longer be required, and that the term “rūnanganui,” can be replaced with the more familiar term, “board.”

Purposes of the bill

The majority of us recommend that the purposes of the bill contained in clause 3 be limited to allow a more easily adoptable governance entity to be used by Māori collectives. This would remove the need to establish representative institutions, which have the potential to disrupt existing iwi and hapū structures. While addressing the limitations Māori face in using existing legal structures, this amendment will allow Māori collectives to determine structures suited to their circumstances.

Consequential amendments to the bill would be required to remove the legitimate representative provisions contained in the bill as introduced.

Interpretation

The majority of us recommend deleting the terms “waka pū” and “waka tumaha” from clause 4 of the bill as introduced, and that all references in the bill to “waka pū” and “waka tumaha” be replaced with “waka umanga”. This amendment is consistent with our recommendation to remove the need to establish representative institutions, which requires the formation and registration of a waka pū. It also reflects that the bill should not exclude any Māori collective, whether whakapapa- or non-whakapapa-based, from being eligible to become a waka umanga. The majority of us consider that the key requirements should be that the Māori collective be characterised by descent from one or more tūpuna; or people who are predominantly Māori, and support Māori culture and tikanga; and the waka umanga have as one of its purposes the provision of benefits or services to the members.

Formation and registration of waka umanga

In line with the above amendment replacing waka pū and waka tumaha with waka umanga, the majority of us recommend the deletion of clauses 7 to 14 which set out the form and registration of waka pū and waka tumaha. The majority of us recommend the insertion of new clause 14 which sets out the formation and registration of waka umanga.

Requirements for formation and registration of waka umanga

The majority of us recommend amendment to clause 15 because the process for obtaining legitimate representative status has been removed and so there is little rationale for retaining the prescription for forming a waka umanga beyond what existing legal entities are required to adhere to.

The majority of us recommend amendment to clauses 16 and 20. The majority of us consider that the level of prescription required in the process to form a waka umanga should be more analogous to the process required for existing legal forms, with the addition of a waka umanga being required to notify its registration and provide a process for members to comment on the charter. On that basis, requirements for registration would be pared back to core governor consents and declarations confirming adherence to the requirements of the Act. This would effectively reduce prescription and compliance costs.

The majority of us recommend the deletion of clauses 17 and 18 since, as discussed previously, the process for waka pū to obtain legitimate representative status is no longer requisite.

Requirements for a charter

The majority of us recommend amendment to clause 19 which summarises the contents of a charter. A charter should remain a requirement for a waka umanga because it would provide flexibility for users of the bill, and it may be tailored to suit the needs of a waka umanga- subject to minimum standards. This would lessen the need for significant prescription in the Act and means that waka umanga could adopt a level of prescription appropriate to their size and asset base. A charter would retain transparency and accountability in the operation of a waka umanga. A members’ register is considered a critical requirement for any waka umanga. Setting out who is eligible to be a member, and the process for determining membership and maintaining an up-to-date list of members is important when members cannot opt out of membership. Also, an up-to-date members’ register is a key requirement for the Crown when recognising the mandate of an iwi/hapū to negotiate a historical Treaty claim. To become a waka umanga, applicants would be required to complete a charter which defines membership criteria and dispute resolution processes relating to the assessment of eligibility to be a member at the time of registration. The majority of us recommend allowing a period of six months for a new waka umanga which is not transitioning from an existing entity to establish the register and notify the Register of Waka Umanga, in order to meet the requirements of the Act. A transitioning entity would already have a members’ register.

The majority of us recommend amendment to clause 21 to provide for notification of a new waka umanga upon registration. The majority of us consider that the bill should provide that applicants must notify members of the relevant Māori collective that they have provisionally registered as a waka umanga (in accordance with the definition of “public notice” as defined in the Interpretation).

The majority of us recommend amendment to clause 22 to provide that in the case of a new waka umanga there be a provisional period within which the waka umanga must establish a register of members and hold a general meeting to adopt the charter. During this period, governors’ powers would be limited to taking actions or making decisions that facilitate the establishment of the waka umanga. This would allow interim governors to undertake actions such as opening bank accounts and developing key documents such as the register of members, whilst simultaneously members could start to register and consider the charter.

This process can be considered similar to that required for Recognised Iwi Organisations, which are not given full powers under the Māori Fisheries Act 2004, and are only able to undertake such activities as allow them to facilitate the process towards full Mandated Iwi Organisation status. In a commercial context, where the number of directors or trustees fall below the quorum required under the constitutional documents, it is not unusual for their powers to act to be curtailed until fresh election or appointments bring numbers back up to the quorum.

The majority of us recommend the deletion of clauses 23 and 24, which provide for variation, and declarations or review, in relation to the charter. This would be consistent with our recommendation for clause 20 that the level of prescription required in the process to form a waka umanga should be more analogous to the process required for existing legal forms.

Application for registration

Clause 28 of the bill as introduced sets out the requirements for application for registration as a waka umanga. The majority of us recommend amending the clause to include a requirement for a statutory declaration by an interim governor certifying that the charter of the waka umanga complies with the requirements of the bill, and that the entity is entitled to be registered as a waka umanga.

The majority of us recommend deleting clause 28(4) to clarify that existing entities applying for registration as a waka umanga should be allowed to do so, provided that they complied with the transitional provisions set out under Part 5 of the bill as introduced. They would therefore be exempt from the compliance requirements placed upon provisional waka umanga.

Notification of application

The majority of us recommend clause 30 be deleted and replaced with new clause 21. Clause 30 provides for notification for the purposes of objection. There is no longer provision for objection to registration prior to registration. Members would determine appropriateness of entity at the first annual general meeting and approve the charter by special resolution.

New clause 21 sets out a number of minimum requirements that the notice must contain, including information on where the provisional charter can be obtained, that the waka umanga is requesting membership, and how applications for membership can be made.

Objections to application

The majority of us recommend deleting clause 31 of the bill as introduced. By removing the legitimate representative provisions the majority of us consider that the need to provide for third parties to object to the registration of a waka umanga is removed. The majority of us note that deleting the objection process is consistent with the formation of other legal entities, such as trusts or companies, which have no corresponding objection process.

Registration of waka umanga

The majority of us recommend amending clause 32 to reflect our recommendation that the objection process be removed from the bill.

Powers of board and interim governors

The majority of us recommend the insertion of clause 33A to specify that during the provisional period between registration of a waka umanga and the adoption of the charter at its first meeting, the powers of the board should be limited. In particular the board and interim governors should exercise such powers and incur no liabilities to the extent that was necessary to comply with the bill and the provisions of the charter.

The majority of us recommend the addition of clause 33B which states that a registrar may de-register waka umanga if certain requirements are not met. A new waka umanga (which was not an existing entity prior to registration) must in the 12 months following registration seek the approval of the waka umanga charter by the Māori collective. The status of the new waka umanga would therefore be provisionally registered until it met that condition. All activities of the interim governors should be focused upon the identification of members (through a register) and the notification and holding of a general meeting for the purpose of resolving the members’ approval of the charter. If a new waka umanga does not meet that condition within 12 months then the registrar should have the power to de-register a provisional waka umanga.

The majority of us also recommend the insertion of clause 33C which states that clauses 33A and 33B are not to apply to registration of existing entities. An existing entity seeking to become a waka umanga must comply with Subpart 1 of Part 5 of the bill. In complying with Part 5 they would have a register of members and would seek approval from members of the application to register as a waka umanga and of their charter. The existing entities would therefore comply with the conditions required to move from provisional to full waka umanga status prior to registration, so sections 33A and 33B would therefore not apply.

Election and appointment of governors

The majority of us recommend amendments to clause 39. The majority of us consider that the provisions for elections and appointments of governors in the body of the bill and in Schedule 2 could be consolidated into Part 3 of the bill, for ease of reference. It is considered that much of the prescription regarding elections and appointments could be left to the discretion of the waka umanga to detail in the charter, subject to a number of minimum requirements. For example, basic rules should be provided around how elections must be conducted, the minimum number of governors required, and the notice to be given of elections.

The majority of us also recommend the insertion of new clause 40(A) to provide that the bill must state that a person who has been appointed or elected as a governor may not be the chief executive of the waka umanga at the same time, and vice versa.

Duties of governors

The majority of us propose amendment to clause 41 because the majority of us consider that it is undesirable to create duties for governors that are overly onerous to comply with and that may cause confusion between companies and trust law if adjudicated in court. The governors’ duties should be more clearly aligned with the Companies Act 1993, which would also provide certainty when the statute was interpreted by the courts. The new clause would provide a subjective standard for governors’ duties and specify that they are owed to the waka umanga. Reference would be removed to “present and future members,” to avoid undue focus on future generations at the expense of current members. The requirement for a governor to avoid acting in a way that would unfairly prejudice or discriminate against constituent groups would be removed, as this could be incorporated into a waka umanga’s charter if desired, and the intent could be implemented through a proposed new provision. Waka umanga charters could also set out or expand any other duties owed by governors. It is possible that the courts would eventually develop fiduciary duties to apply to the governors of waka umanga similar to those which apply to director/company and trustee/beneficiary relationships. The duties set out under the waka umanga statute would also be likely to affect the development of any new fiduciary relationship and duties.

The majority of us recommend the deletion of clause 46(2) in line with the proposal to remove legitimate representative status from the bill, and the ability of third parties to object to the registration of a waka umanga. There would no longer be a need to notify third parties of an amendment to the charter in relation to legitimate representative status.

The majority of us propose amendment to clause 47 because the majority of us consider that the requirements for entering into a major transaction are too onerous, particularly for waka umanga with large and disparate memberships. The amendment would provide that approval of a major transaction requires a special resolution of the members of the waka umanga, which is analogous to the requirement in the Companies Act under which shareholders approve major transactions.

The majority of us recommend the insertion of clause 48(1A) to provide that a waka umanga has the ability to enter into a lease, licence, or profit á prendre over an asset that is classified as protected, so long as ownership of the asset is not placed at risk.

The majority of us recommend the insertion of clause 48(5) to state that a charge under the bill includes a security interest under the Personal Property Securities Act 1999 (PPSA). The status of an asset as “protected,” should take priority over the PPSA to the extent that when an asset is placed in the protected assets register legally (that is if there is a pre-existing secured charge on the asset, it must either be discharged or the interested party must consent to the asset being registered as protected) then it would be protected against creditors under the PPSA. Seeking approval of an asset as “protected,” will not be considered a “risk” under section 109(2) of the PPSA, as a “risk” under that section could have allowed a creditor to sell the asset upon notice. Registration of an asset on the protected assets register is constructive notice or knowledge of that asset’s status as inalienable under the Act, to any person. The Act does not limit the PPSA as it applies to security interests registered under the Act over any unprotected assets of the existing entity or waka umanga.

Land under the Land Transfer Act 1952

The majority of us recommend the insertion of new clause 51 which outlines the procedure under the Land Transfer Act 1952 for land, which becomes or ceases to be a protected asset. Once a piece of land has been approved as a protected asset under the bill, that protected status must be notified and detailed on the land’s certificate of title. This would ensure that all third parties had real and constructive notice of the land’s status as a protected asset under the bill. Clause 51 provides the mechanism and power to require the Register- General of Land to note the status on the certificate of titles and to cancel that notice if the land ceased to be a protected asset.

Management of waka umanga

The majority of us recommend the deletion of clause 51, because he majority of us consider that the requirement for a waka umanga to have a chief executive should be optional. This would recognise the potential range in size and assets of collectives that may use the bill.

The majority of us also recommend an amendment to clause 52 and the insertion of new clause 52(A) because the majority of us consider that a waka umanga should have the flexibility to determine their own policies regarding powers of delegation, contracting, and employment as there is likely to be quite a significant variation in their size and operations. The new clause would require the bill to state that the charter must set out all policies in respect of management of a waka umanga.

Accountability of waka umanga

The majority of us recommend amendment to clause 53 to remove the requirement for members’ rights of access to information to the minutes of the board. The majority of us consider that the remaining members’ rights of access to information should remain in the bill as this is a low-cost way of ensuring transparency and accountability to members. Comparable models (such as trusts) do not make provision for board minutes but he majority of us consider it important to encourage open discussion when board members are making decisions. The majority of us suggest that a waka umanga should detail in its charter where and how information could be inspected. This means that waka umanga of different sizes and geographical spread can adapt their practices as members see fit.

Meetings of waka umanga

The majority of us recommend the insertion of clause 54(1A) and the deletion of clause 54(2) to simplify the prescribed requirements for meetings of waka umanga. The majority of us consider that waka umanga should have maximum flexibility in the level of planning and reporting they undertake, and that it is preferable to make only a minimum number of documents compulsory—the annual plan, the annual report and annual financial statements. Long-term plans should be required unless opted out of in the charter.

The majority of us recommend amendment to clause 56 to provide that procedures for meetings must comply with the charter and the requirements of the Act.

The majority of us recommend the deletion of clause 57(A), which outlines what a charter must contain, because specifications for board governance are provided for in clause 37 and general meeting provisions are included in clause 56.

The majority of us also recommend amending clause 58 in order to provide the recommendations for the governance documents specified in clause 54. New clause 58(A) sets out the requirements that these documents must provide.

Liquidation

The majority of us recommend the insertion of new clause 64(A) to provide that a waka umanga may be put into liquidation by the board appointing a liquidator upon the occurrence of an event specified in the charter.

Subsidiaries

The majority of us recommend amendment to clause 72 which sets out the requirements relating to new subsidiaries and states that a waka umanga may establish subsidiaries and in the case of transitioning entities retain subsidiaries, such as companies or trusts, that are consistent with the long-term plan of the waka umanga. The majority of us consider that a waka umanga that is utilised for all possible purposes, although a body corporate, may be at risk of losing its whole tribal infrastructure if it becomes insolvent. Waka umanga should be able to utilise subsidiary companies to undertake trading activities in order to separate governance and the operations of the governance entity. It would be more efficient to remove the requirement for the board to obtain members’ approval of a subsidiary policy as required by clause 72, and instead enable waka umanga to establish subsidiaries to meet the objectives of the waka umanga. Subsidiaries should have to provide information to the waka umanga at annual general meetings, and should have to enter into statements of intent to ensure they actively align with the objectives of the waka umanga.

Meaning of “internal dispute”

The majority of us recommend narrowing the definition of “internal dispute” to issues regarding the right of an individual (or several individuals within a whānau or hapū) to be a member of a waka umanga. Clause 73 of the bill as introduced includes issues relating to membership of the waka umanga, the rights and obligations of members, the decisions of governors or the board, or requests for information. To include decisions of governors or the board within the definition of “internal disputes” is considered too restrictive on the day-to-day decisions of the waka umanga.

The majority of us recommend that clause 73 should be further amended to allow the waka umanga to set out additional matters within its charter for which the internal dispute resolution process may be used.

Optional processes for settling internal disputes

Schedule 5 of the bill as introduced provides for mediation and arbitration processes to be available to the waka umanga among the dispute resolution processes that can be adopted. The majority of us recommend deleting the prescriptive provisions relating to mediation and arbitration from schedule 5 of the bill as introduced. The majority of us consider that the waka umanga secretariat would be in the best position to provide comprehensive advice regarding the use and application of mediation or arbitration processes (as opposed to including it in legislation).

Decision binding on parties

The majority of us recommend replacing clause 75 of the bill as introduced to provide that the adjudicators’ decision, following the dispute resolution processes defined by the charter, will be binding on the parties to the membership dispute.

Provision of information about membership disputes

The majority of us recommend amendment to clause 74 to require the waka umanga to provide that the adjudicator of an internal membership dispute should be provided with all the relevant information, to allow the adjudicator to consider the merits of and determine an internal dispute. The majority of us recommend the insertion of new clause 74A to provide that the person who is to determine the dispute relating to the membership of a person must be provided with all relevant of information in the possession of the waka umanga.

Application to the High Court

The majority of us recommend the addition of clause 75(A) to provide that a member or former member of a waka umanga may apply to the High Court where that member considers the actions of the waka umanga are, have been or are likely to be oppressive, unfairly discriminatory, or unfairly prejudicial to that member. This right of recourse to the High Court is similar to the right prejudiced shareholders have under section 174 of the Companies Act 1993. As clause 75(A) is Companies Act-based, the majority of us recommend that the High Court hear applications under clause 75(A) in the first instance. If the High Court considers it is just and equitable to do so, it could make any such order it considers fit.

The majority of us recommend amendment to clause 75B because the majority of us consider that the High Court should hold the primary jurisdiction to hear applications relating to waka umanga under this clause in addition to applications under clause 75(A). The majority of us note that the High Court would not have jurisdiction to adjudicate causes of actions which are covered by the Māori Fisheries Act 2004 or the Commercial Aquaculture Claims Settlement Act 2004.

Subject to our recommendation that the legitimate representative status provisions be removed, the majority of us consider that disputes relating to mandate and representation should no longer arise under the bill. The majority of us consider, then that the rationale for the Māori Land Court having primary oversight of waka umanga no longer exists. The majority of us consider that the disputes most likely to arise under the revised bill will relate to the commercial decisions of waka umanga—matters that draw on company law and more generally trust law and equity, which are the traditional province of the High Court. It is appropriate that the High Court have a primary role in adjudicating these matters. These disputes may still involve the interpretation, practice, and application of tikanga however, and so it would remain appropriate that the High Court could refer to the expertise of the Māori Land Court to determine or advise on such matters.

Applications to the Māori Land Court

The majority of us recommend the deletion of clauses 76 to 86 which provide for the jurisdiction of the Māori Land Court in certain cases of dispute resolution and outline provisions for applications to this Court.

The majority of us consider that the ability of third parties to object to the registration of a waka umanga may induce dissent and division and undermine existing iwi and hapū structures. Iwi and hapū should have the right to establish their own representative structures without the interference of third parties (particularly the Crown).

If legitimate representative status is removed from the bill, there would no longer be a need to provide for applications to be made to the court for declarations, for review, or in objection to a waka umanga. Therefore, jurisdiction of the court should be restricted to reviewing the process that was carried out to adjudicate an internal dispute, and complaints made by a member of a waka umanga that they he or she had been seriously prejudiced by a decision of the waka umanga.

The majority of us also recommend amending to clause 87, to specify that granting injunctive relief is under the jurisdiction of the High Court, as this traditionally falls into this court’s domain. Accordingly, the majority of us recommend the deletion of clause 87(6) to remove the provision that the Chief Registrar of the Māori Land Court must notify the Registrar of any orders made under this section, since the Māori Land Court would no longer carry out this role. The majority of us also recommend the deletion of clause 88 and amendment to clause 128, to remove specific reference to the Māori Land Court in the light of the recommendation that the High Court should hold primary jurisdiction over waka umanga.

Registration of existing entities as waka umanga

The majority of us recommend the deletion of clauses 95 to 113, which provide for the transition of Māori Trust Boards, charitable trusts, trusts, and incorporated societies to waka umanga. The majority of us consider that there is little incentive for existing entities to become waka umanga. The current transition provisions are complex and may provide a disincentive for existing entities to become a waka umanga.

The majority of us recommend the insertion of new clauses 95 to 103 because the majority of us consider that the transition process should be straightforward to encourage transition, and that a wider range of groups should be able to use the model if they wish to. The majority of us propose that approval for transition for existing entities be obtained through the process that is already contained in their charters, such as the requirement for a company to attain a seventy-five per cent resolution of shareholders. Where there is no such process, it is proposed that a special resolution of members, beneficiaries, and shareholders be required to approve the transition, special resolution should be defined as requiring seventy-five per cent approval.

Under new clause 95 the transition provisions would be extended to provide for companies, and continue to provide for trusts, incorporated societies, Māori Trust Boards, and charitable trusts.

Under new clause 98, trusts constituted under Te Ture Whenua Māori Act 1993 would be excluded from the transition provisions. The majority of us are of the view that they are generally set up for the specific purpose of holding Māori land, and their purposes are more appropriately governed under Te Ture Whenua Māori Act 1993.

Under new clause 99, the bill would provide for the transition of a charitable trust to waka umanga status. The clause provides that the Attorney-General would act as an independent assessor of transition. The clause also sets out that trustees have a duty to administer assets on behalf of a specific membership and that the Attorney-General has a significant supervisory role over charitable trusts. The majority of us consider that for some charitable trusts there could be significant benefits associated with moving to the waka umanga model, such as an increased level of accountability and the administrative benefits that the model provides. The clause also states the requirement for a level of assessment to establish under the Charitable Trusts Act 1957 that a charitable trust will be able to maintain its charitable purposes, and that the purposes are not narrowed inadvertently because a waka umanga is required to define who is entitled to be a member. There is also specification in the clause that the Attorney-General may approve transition, as opposed to the High Court, which could be a costlier process for smaller trusts. Under the clause, a charitable trust’s purposes must be narrow enough to be able to identify a membership class. The clause also states that upon transition, a charitable trust is no longer governed by the Charitable Trusts Act 1957.

By removing legitimate representative status from the bill, the transition provisions could be significantly simplified. The majority of us therefore recommend the insertion of new clauses 100 to 103 which outline the transition provisions for different types of entities. The majority of us propose that mandated iwi organisations should be able to transition to waka umanga if they wish to do so. If the transition provisions were simplified as proposed, then a Māori Trust Board would be able to follow the same transition provisions as any other organisation. The additional requirements for a Māori Trust Board arise from the role of the Minister of Māori Affairs under the Māori Trust Boards Act 1955. These would include the approval of the Minister of Māori Affairs, and the requirement for the Governor-General to make an Order in Council. The majority of us note that a number of Māori Trust Boards have their own enabling legislation or unique provisions within the Māori Trust Boards Act 1955 which give them specific powers, duties, obligations, and restrictions, such as the power to negotiate Treaty of Waitangi claims with the Crown. Some of these provisions could be retained or continued after transition. The majority of us consider that the Governor-General should, by Order in Council, and upon the recommendation of the Minister of Māori Affairs, retain certain provisions of the relevant Māori Trust Boards legislation.

Amendments to other Acts

The majority of us propose amendment to clause 132 of the bill which distinguishes between waka pū and waka tumaha. The term “waka pū” would be replaced with reference to clause 14 that defines the criteria for a group that “descends from tūpuna” to become a waka umanga.

Schedule 1

Subject to our recommendation that the provisions for a waka pū to obtain legitimate representative status would no longer be required, the majority of us suggest that Schedule 1, which summarises tribal groups with mandate recognised before the commencement of the Act, be removed from the bill.

Schedule 2

The majority of us recommend that Schedule 2 be removed from the bill. The Schedule sets out the requirements for a charter for a waka umanga. The majority of us consider that the bill in its current form is long-winded, and the governance and management specifications in it may appear onerous. The charter remains the key governance document, so the majority of us recommend that most of the requirements of the charter be retained and moved into the body of the bill.

Schedule 3

The majority of us recommend the deletion of clause 1 of the Schedule which outlines requirements for general disqualification from eligibility of a governor. This would be in line with our recommendation for clause 39 of the bill that much of the prescription regarding elections and appointments can be left to the discretion of the waka umanga to detail in the charter, subject to a number of minimum requirements.

The majority of us recommend the deletion of clause 2 of the Schedule which outlines the waiver of general disqualification in order to reduce the prescription in the bill and to align it more closely with other models.

The majority of us recommend an amendment to clause 7 of the Schedule which outlines how a waka umanga may indemnify or effect insurance cover, to state that this must be in relation to the extent authorised by the waka umanga’s charter. This would require a waka umanga to place a minimum standard for insurance and indemnity proceedings in the charter, but allow discretion in the detail of that requirement.

The majority of us recommend the deletion of clauses 11, 12, and 13 of the Schedule, which outline procedures for meetings of a board, in line with our recommendations for clause 56 of the bill, to provide that procedures for meetings must comply with the charter and the requirements of the Act.

The majority of us recommend the deletion of clause 20 of the Schedule, which describes inspection of information that can be made available to a waka umanga, in line with our recommendation for clause 53 of the bill that would remove the requirement for members’ right of access to minutes of the board.

The majority of us recommend that clause 21 of the Schedule, which outlines requests for information, be moved to clause 53(3) of the bill. This is for the reasons of consolidation given for Schedule 2.

The majority of us recommend the deletion of clause 22 in Schedule 3 of the bill which states the limits to availability of information; because the majority of us consider that the bill should state that the charter may set out any limits regarding the availability of information.

The majority of us recommend the deletion of clauses 23 and 24 of the Schedule, which discuss the appointment and status of committees, in order to reduce the prescription in the bill and to align it more closely with other models.

The majority of us recommend the deletion of clause 25 of the Schedule, which outlines the role of a chief executive in line with our recommendation for clause 51 of the bill that the requirement for a waka umanga to have a chief executive should be optional.

The majority of us recommend the deletion of clauses 26 and 27 of the Schedule which outline contracting and employment policies in line with our recommendations for clause 51 of the bill and also clause 52, requiring that a waka umanga should have the flexibility to determine their own policies regarding powers of delegation, contracting and employment, as there is likely to be quite a significant variation in their size and in the nature of their operations.

The majority of us recommend the deletion of clause 28 of the Schedule, which details the communication and consultation policy, in order to reduce the prescription in the bill and to align it more closely with other models.

The majority of us recommend the deletion of clause 29 of the Schedule which sets out a privacy policy, in line with our recommendation for clause 16 of the bill that the level of prescription required in the process to form a waka umanga should be more analogous to the process required for existing legal forms.

The majority of us recommend the deletion of clause 30 in the Schedule which provides notice requirements for meetings of waka umanga. This is in line with our recommendation for clause 56 of the bill to provide that procedures for meetings must comply with the charter and the requirements of the Act.

The majority of us recommend the deletion of clauses 31, 32, and 33 in the Schedule, which outline key governance documents for a waka umanga, in line with our recommendation for clause 58 of the bill which sets out the requirements that these documents must provide.

The majority of us recommend moving clause 34 of the Schedule, which states that a board must provide to the Registrar an annual return, to clause 126 of the bill. The majority of us also recommend that the clause state that an annual return must be provided to the Registrar no later than six months after the annual balance date.

The majority of us recommend the deletion of clause 36 of the Schedule which states the contents of distribution policy in line with our recommendation for clause 58 of the bill, which sets out the requirements for key governance documents of a waka umanga.

Schedule 4

Schedule 4 of the bill as introduced sets out provisions relating to the operation of subsidiaries including the appointment of directors, the duties of directors, the performance-monitoring requirements, and the requirements and purpose of the subsidiaries’ statements of intent. The majority of us recommend deleting Schedule 4, as it is not necessary to set out in significant detail the operation of subsidiaries as they will largely be governed by their own Acts. Furthermore, while a statement of intent can provide useful planning information, some information contained in the subsidiary’s statement of intent might include details regarding the operations of the subsidiary that the waka umanga did not wish to be made public. The majority of us note that clause 72 of the bill as introduced sets out some requirements relating to new subsidiaries established by a waka umanga.

Schedule 5

The majority of us recommend amendments to Schedule 5 of the bill as introduced which outlines optional processes for the resolution of internal disputes to state that “kairongomau” may have access to the minutes of the board in considering an internal dispute. The majority of us consider that the concept of including an internal dispute resolution process in the charter of a waka umanga is a key policy principle underlying the development of the bill, and that waka umanga should be provided with as much assistance regarding this process as possible.

The majority of us recommend the deletion of Parts 2 and 3 of the bill, which outline processes for mediation and arbitration. These options are already available to the waka umanga under clause 10 of the bill, which states that a mediator can be appointed by the parties to the dispute or by the person designated to do so in the charter. If the parties consent, an internal dispute may be referred to arbitration under the Arbitration Act 1996, as specified in clause 17 of the bill. The rights of the parties are limited to those under the Arbitration Act 1996, as specified in clause 18 of the bill.

Schedule 6

The majority of us recommend the deletion of Schedule 6 of the bill which outlines requirements for applications to the Māori Land Court. In line with our recommendation that the Māori Land Court share concurrent jurisdiction with the High Court, the majority of us consider that the jurisdiction of the Māori Land Court should be removed from the bill.

National Party view

The National Party believes that this bill should not proceed.

Māori Party view

At the first reading of this bill, the Māori Party raised a number of substantive questions about the value of this bill to hapū and iwi and the effects it may have.

Questions were raised about the inadequate legal structures imposed on hapū and iwi during settlements and we asked if the model proposed by the bill would be sufficient to address those inadequacies. In particular, we made the point that the proposed waka umanga legal entity derails the possibility of hapū and iwi developing models of governance consistent with and expressive of tikanga Māori and tino rangatiratanga, and having those models duly recognised. We suggested that a more productive solution to current inadequacies could be found in Crown recognition of Māori governance entities, as formulated by hapū and iwi.

The Māori Party was very interested to hear the views of submitters, and voted for the bill at its first reading to ensure that the views of hapū and iwi could be heard by the Māori Affairs Committee of Parliament. We note that our concerns about rangatiratanga and due recognition were also very much top of mind for hapū and iwi.

Given the substantive concerns and opposition voiced by hapū and iwi on the Waka Umanga (Māori Corporations) Bill, the Māori Party cannot support it.

More work is needed to resolve the inadequacies of current legal structures. For any such programme to be fruitful, it will need to proceed from a kaupapa-Māori basis, and also address wider concerns with Treaty settlements policy.

Appendix

Committee process

The Waka Umanga (Māori Corporations) Bill was referred to the committee on 11 December 2007. The closing date for submissions was 28 March 2008. We received and considered 15 submissions from interested groups and individuals. We heard eight submissions.

We received advice from Te Puni Kōkiri.

Committee membership

Dave Hereora (Chairperson)

Dr Pita Sharples (Deputy Chairperson)

Christopher Finlayson

Hon Tau Henare

Hon Mahara Okeroa

Pita Paraone

Hon Mita Ririnui

Hon Georgina te Heuheu

Mētīria Turei (non-voting member for this item of business)


Key to symbols used

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Hon Parekura Horomia

Waka Umanga (Māori Corporations) Bill

Government Bill

175—2

Contents

Status, capacity, and powers

Formation and registration of waka umanga

Waka pū

Legitimate representative status for purpose of negotiating to settle Treaty of Waitangi claims

Waka tumaha

Essential requirements

Prerequisites to registration for tribal groups

Prerequisites for registration of Māori associations

Charter of waka umanga

Variation of charter

Applications for declarations or review

Registrar and Register

Requirements for registration

Notification of intended registration

Objections

Registration

Change of name of waka umanga

Amendments to charter

Board

Governors

Election and appointment

Duties of governors

Disclosure of conflict of interest

Major transactions

Protected assets

Communication and consultation

Meetings of waka umanga

Governance documents

Auditor

Voluntary administration

Jurisdiction of Court

Disputes relating to formation and registration of waka umanga

Limits to jurisdiction of Court in disputes relating to formation of waka umanga

Objections to registration

Internal disputes and other disputes relating to governance or management of waka umanga

Injunctive relief

Transfer to High Court

Appeals

Maori Trust Boards

Incorporated societies

Trusts (other than charitable trusts)

Charitable trusts

Limits as to effect of registration

Other transitional matters

Administrative penalties

Regulations

Service of documents

Saving

Amendments to enactments


  • Preamble

    (1) The Treaty of Waitangi established the special relationship between the Māori people and the Crown:

    (2) It is therefore appropriate to provide a mechanism for the formation and recognition of legal entities to represent tribal groups and other associations of Māori, as a means of expressing the legal identity of those tribal groups and Māori associations within New Zealand society, for present and future generations:

    (2) The Crown recognises the importance of that relationship by—

    • (a) developing a new form of legal entity based on the unique characteristics of Māori collectives; and

    • (b) providing a further mechanism for Māori collectives to establish a legal identity within New Zealand:

The Parliament of New Zealand therefore enacts as follows:

1 Title
  • This Act is the Waka Umanga (Māori Corporations) Act 2007, and may also be cited as either—

    • (a) the Waka Umanga Act 2007; or

    • (b) the Māori Corporations Act 2007.

2 Commencement
  • This Act comes into force on 1 December 2008 8 months after the date on which it receives the Royal assent.

Part 1
Preliminary provisions

3 Purposes of Act
  • (1) The purposes of this Act are to—

    • (a) assist the development of representative institutions for tribal groups or Māori associations through independent, principled, and democratic processes; and

    • (b) promote stability and legal certainty for tribal groups and Māori associations and for third parties who transact with them; and

    • (c) provide a process for establishing the rights and responsibilities of the constituent groups of a waka umanga; and

    • (d) facilitate the effective management of the communal assets of the tribal group or Māori association; and

    • (e) provide for internal disputes to be resolved as far as possible within tribal groups and Māori associations; and

    • (f) provide fair access to the courts in relation to formation and registration issues and when the dispute resolution processes for internal disputes have not succeeded.

    • (a) provide basic and adaptable requirements for the incorporation, organisation, and operation of waka umanga on behalf of Māori collectives; and

    • (b) define the relationships between waka umanga, governors, and the Māori collective.

    (2) In order to achieve those purposes, this Act provides for—

    • (a) the formation and registration of waka umanga for tribal groups and Māori associations; and

    • (b) the registration of existing entities as waka umanga; and

    • (c) a waka pū to be the legitimate representative of its tribal group for any matters defined for that purpose in the charter of the waka pū; and

    • (d) governance requirements to be included in the charter of every waka umanga; and

    • (e) procedures for the resolution of internal disputes that arise in the course of forming or administering a waka umanga, as well as access to the courts.

    • (a) the formation and registration of waka umanga; and

    • (b) scope for Māori collectives to determine structures suited to their circumstances; and

    • (c) minimum governance standards for waka umanga.

4 Interpretation
  • In this Act, unless the context otherwise requires,—

    administrative penalty means a penalty that may be imposed on waka umanga by the Registrar under subpart 4 of Part 5

    adult means a person 18 years of age or over

    annual plan means the plan required by section 58(1)(b)

    annual report means an annual report required under section 58(1)(c)

    annual return means a return provided in accordance with clause 34 of Schedule 3

    board means the board of governors of a waka umanga

    charter

    • (a) means the constitution of a waka umanga, as provided for in subpart 2 of Part 2; and

    • (b) includes—

      • (i) the charter as amended or substituted from time to time; and

      • (ii) if the context requires, a draft charter

    commissioner means a person appointed by the Court under section 86(2)(i)

    communal assets

    • (a) means assets owned or otherwise held by, or for the benefit of, a tribal group or Māori association, as the case may be Māori collective; and

    • (b) includes assets of any kind that are designated under the charter of a waka umanga as protected assets

    constituent group means,—

    • (a) in relation to a waka pū, group, or unit of organisation such as a hapū or combination of hapū, marae, taurahere, or takiwā (district), as provided for in the charter of the waka pū:

    • (b) in relation to a waka tumaha, another Māori association, as provided for in the charter of the waka tumaha

    • (a) in relation to a waka umanga with members descended from tipuna or tupuna, a group of people such as hāpu or combination of hāpu, marae, taurahere, or takiwi (district), as provided for in the charter of the waka umanga:

    • (b) in relation to a waka umanga with members not descended from tipuna or tupuna, another Māori collective, as provided for in the charter of the waka umanga

    constitutional documents, in relation to an existing entity, means the trust deed or rules adopted for the governance of the existing entity

    Court means the Māori Land Court

    director has the meaning set out in section 71

    dispute resolution process means 1 or more procedures for the resolution of internal disputes set out in the charter of a waka umanga, as provided for under section 74

    entity

    • (a) means, unless otherwise specified, a body corporate or trust; and

    • (b) may, in relation to a subsidiary, include a partnership, arrangement for the sharing of profits, joint venture, or similar arrangement

    existing entity means an entity that represents a tribal group Māori collective, and includes an entity that, at any time, is authorised under subpart 1 of Part 5 to register as a waka umanga

    financial statements has the meaning it is given in section 8 of the Financial Reporting Act 1993, as if the statements related to an entity within the meaning of that Act

    governor means a person who is a member of the rūnanganui board of a waka umanga, as provided for under section 38, and includes, if relevant or unless otherwise specified, an interim governor

    incorporated society means a society incorporated under the Incorporated Societies Act 1908

    interests register means the register of the benefits and material financial interests required by section 44(1)

    interim governor is a governor whose appointment is provided for by the charter of a waka umanga person who is named in the charter of a waka umanga as an interim governor in accordance with section 39(2)

    internal dispute has the meaning set out in section 73

    iwi aquaculture organisation has the meaning it is given in section 4 of the Maori Commercial Aquaculture Claims Settlement Act 2004

    kairongomau means a person appointed to assist in resolving disputes, if the dispute resolution process set out in Part 1 of Schedule 5, or a similar process, is adopted in the charter of a waka umanga

    legitimate representative, in relation to a waka pū, means the waka pū that is the representative of the tribal group for the matters defined for that purpose in the charter of the waka pū, as provided for in sections 9 to 11

    local authority has the meaning it is given in section 5(1) of the Local Government Act 2002

    long-term plan means the plan required by referred to in section 58(1)(a)

    major transaction is a transaction provided for in accordance with section 46 and the charter of a waka umanga

    mandated iwi organisation has the meaning it is given in section 5 of the Maori Fisheries Act 2004

    Māori association means a non-tribal group of Māori that has the attributes set out in section 14

    Maori Trust Board has the meaning it is given in section 2 of the Maori Trust Boards Act 1955

    Maori Trustee has the meaning it is given in section 4 of Te Ture Whenua Maori Act 1993

    meeting of the waka umanga means an annual general meeting or special general meeting of a waka umanga

    Pānui means the publication by that name issued by the Māori Land Court

    protected assets means land or other tangible assets of a waka umanga, as provided for under section 48

    protected assets register means the register required under section 49

    public notice means a notice that—

    • (a) the giver of the notice has reasonable grounds to believe will reach all or a substantial proportion of those with a legitimate interest in its contents; and

    • (b) is published in a newspaper or other public media generally circulating in the relevant area or areas; and

    • (c) may also be published in print or electronic media; and

    • (d) complies with any requirements for giving public notice that are—

      • (i) set out in the charter of the waka umanga or proposed waka umanga; or

      • (ii) imposed by order of a court

    register of members means the register of individual registered members of a waka umanga required by section 42 and, for the purposes of section 16(1)(b), includes a provisional register of members

    Register of Waka Umanga and Register mean the register required by section 26

    registered member means an adult registered as a member of a waka umanga in accordance with the provisions of the charter of that waka umanga

    Registrar means the Registrar of Waka Umanga (Māori Corporations) required by section 25 and includes any person appointed to act on behalf of the Registrar

    rūnanganui means the governing body of the waka umanga

    special consultative procedures means the procedures provided for in the charter of a waka umanga in accordance with subclause (16) of Schedule 2

    special resolution means a resolution approved by a majority of 75% or, if a higher majority is required by the charter that higher majority, of the votes of those registered members entitled to vote and voting on the proposal

    subsidiary means—

    • (a) an entity in respect of which the waka umanga has—

      • (i) control, directly or indirectly, of more than 50% of the votes at any meeting of the members or controlling body of the entity; or

      • (ii) the right, directly or indirectly, to appoint more than 50% of the directors of the entity; or

    • (b) an entity that is a subsidiary of another entity that is itself a subsidiary of the waka umanga

    taurahere means an association of members of a tribe in a location outside the tribal area

    Te Ohu Kai Moana Trustee Limited has the meaning it is given in section 5 of the Maori Fisheries Act 2004

    tikanga means the customary values and practices of a tribal group by which and on whose behalf a waka umanga is formed

    Treaty of Waitangi claim means a historical Treaty claim made under the Treaty of Waitangi Act 1975 and includes a claim that may not have been lodged with, heard, or reported on by the Waitangi Tribunal, but is the subject of negotiations between the Crown and the claimants

    Treaty settlement entity mean an entity that has received, or has been approved by the Crown to receive, Treaty of Waitangi settlement assets

    tribal area means the geographic area associated with a tribal group, whether or not it is exclusive to that tribal group

    tribal group means a group comprising 1 or more iwi or hapū

    trust means a trust to which the Trustee Act 1956 applies

    waka pū means a waka umanga registered for a tribal group, as provided for by sections 8 to 11, and for the purposes of subpart 2 of Part 2, includes a proposed waka pū

    waka tumaha means a waka umanga registered for a Māori association, as provided for under section 14, and for the purposes of subpart 2 of Part 2, includes a proposed waka tumaha

    waka umanga means a Māori corporation collective registered under this Act as either a waka pū or a waka tumaha and, for the purposes of subpart 2 of Part 2 and (unless the context requires otherwise) subpart 3 of Part 2, includes a proposed waka umanga.

    whakapapa means genealogy

    whāngai has the meaning it is given in accordance with the tikanga of the tribal group, as may be provided for in the charter of a waka umanga.

5 Act to bind the Crown
  • This Act binds the Crown.

Part 2
Establishment of waka umanga

Subpart 1Key concepts relating to waka umanga

Status, capacity, and powers

6 Status, capacity, and powers of waka umanga
  • (1) A waka umanga is—

    • (a) a body corporate with perpetual succession; and

    • (b) a legal entity in its own right and separate from—

      • (i) the tribal group or Māori association Māori collective by which and on whose behalf it is formed and registered; and

      • (ii) the individuals and constituent groups of that tribal group or Māori associationMāori collective.

    (2) For the purpose of exercising its powers and performing its duties under this Act, any other enactment, and its charter, a waka umanga has—

    • (a) full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction; and

    • (b) for the purposes of paragraph (a), full rights, powers, and privileges.

    (3) The charter of a waka umanga may contain provisions relating to the capacity, rights, powers, or privileges of the waka umanga, as long as those provisions do not exceed the capacity, rights, powers, and privileges conferred on a waka umanga by or under this Act.

    (4) No governor, registered member, or employee of a waka umanga, by reason only of being a governor, registered member, or employee,—

    • (a) has any rights or interest in the assets of the waka umanga; or

    • (b) is liable for any liability of the waka umanga.

Formation and registration of waka umanga

7 Two types of waka umanga
  • (1) A waka umanga that is formed and registered by—

    • (a) a tribal group is a waka pū; and

    • (b) a Māori association is a waka tumaha.

    (2) A waka umanga may be a constituent group within—

    • (a) another waka umanga; or

    • (b) another entity.

Waka pū

8 Formation and registration of waka pū
  • A tribal group may form and register a waka pū if—

    • (a) the tribal group descends from 1 or more common named ancestors; and

    • (b) the waka pū will hold communal assets on behalf of the tribal group or any constituent groups; and

    • (c) there is a mandate to form a waka pū from the tribal group and any constituent groups; and

    • (d) the relevant requirements of this Act are met.

9 Qualification to be legitimate representative
  • (1) A waka pū may be the legitimate representative of a tribal group and any constituent groups if, but only if,—

    • (a) it comprises 1 or more iwi or several hapū; and

    • (b) it holds communal assets on behalf of the tribal group or any constituent groups, or is likely to do so following a Treaty of Waitangi settlement; and

    • (c) the matters on which it is to be the legitimate representative of the tribal group are defined in its charter, but which must not include matters relating to the delivery of social services to the registered members of the waka pū; and

    • (d) it has a mandate from the tribal group and any constituent groups to be their legitimate representative in relation to the matters defined in the charter.

    (2) In this section, social services includes the delivery of services such as health, education, housing, and similar services.

    (3) The charter of a waka pū may provide that a constituent group or other group is the legitimate representative of that constituent group or of the tribal group for matters defined for that purpose in the charter.

    (4) To avoid doubt, a waka pū may undertake the delivery of social services to the registered members of the waka pū, but must not claim to be the legitimate representative of the tribal group in relation to those services.

10 Effect of status as legitimate representative
  • A person or body that wishes to transact or otherwise deal with a tribal group or any constituent group of that tribal group in relation to the matters for which the waka pū is the legitimate representative may do so only with—

    • (a) that waka pū; or

    • (b) a constituent group or other group, if provided for under section 9(3).

Legitimate representative status for purpose of negotiating to settle Treaty of Waitangi claims

11 Status of legitimate representative in specified contexts
  • (1) If a waka pū is the legitimate representative of a tribal group for the purpose of entering into negotiations to settle a Treaty of Waitangi claim with the Crown, the Crown must not negotiate or settle with any other person or body claiming to represent the tribal group in relation to that claim, except as authorised by the waka pū in accordance with its charter.

    (2) To avoid doubt, nothing in this Act requires—

    • (a) the Crown to negotiate in relation to, or settle, a Treaty of Waitangi claim; or

    • (b) Te Ohu Kai Moana Trustee Limited to deal with a waka pū in relation to matters under the Maori Fisheries Act 2004 or the Maori Commercial Aquaculture Claims Settlement Act 2004, unless the waka pū has been recognised as a mandated iwi organisation or iwi aquaculture organisation, as the case may be.

12 Exception for tribal groups with mandate recognised before commencement of this Act
  • (1) As at the commencement of this Act, the entities and persons listed in the second column of Schedule 1 have a mandate recognised by the Crown to enter into or continue negotiations with the Crown to settle the Treaty of Waitangi claims of the relevant tribal groups listed in the first column of that schedule.

    (2) Only a mandated entity or person referred to in subsection (1) may apply to register a waka pū with a charter that provides that it is the legitimate representative of the relevant tribal group for the purpose of negotiating to settle the Treaty of Waitangi claims of that tribal group.

    (3) Subsection (2) does not apply if, at any time, the Crown withdraws its recognition of the mandate referred to in subsection (1).

    (4) For the purpose of subsection (3), the Crown withdraws its recognition of a mandate if the responsible Ministers give notice to that effect.

    (5) In the case of tribal groups with named mandated persons listed in the second column of Schedule 1, if 1 or more of those persons are no longer able to act, the mandate for the tribal group may continue in the names of the other mandated persons of that tribal group.

    (6) In this section and section 13,—

    notice means a notice—

    • (a) in the Gazette; and

    • (b) in a newspaper or other public media generally circulating in the relevant area or areas

    responsible Ministers means the Ministers who, under the authority of any warrant, or with the authority of the Prime Minister, are responsible, as the case may be, for—

    • (a) the administration of this Act:

    • (b) the negotiation of Treaty of Waitangi claims.

    (7) This section overrides sections 8 to 10.

13 Exception for tribal groups with mandate recognised after commencement of Act
  • (1) This section applies to a tribal group if the Crown, after the commencement of this Act,—

    • (a) recognises, in accordance with subsection (4), the mandate of a certain entity or persons to negotiate with the Crown to settle the Treaty of Waitangi claims of that tribal group; and

    • (b) does not withdraw its recognition in accordance with subsection (5).

    (2) Only a mandated entity or person referred to in subsection (1) may apply to form and register a waka pū for the relevant tribal group with a charter that provides that it is the legitimate representative of the tribal group for the purpose of negotiating Treaty of Waitangi claims of the tribal group.

    (3) For the purposes of subsection (1)(a), a mandate must—

    • (a) be in writing; and

    • (b) state the names of the persons or entities to whom the mandate has been given; and

    • (c) describe the tribal group that has given the mandate by reference to the constituent groups of the tribal group; and

    • (d) state the Treaty of Waitangi claims that the mandate applies to; and

    • (e) describe the process by which the mandate was obtained; and

    • (f) set out the terms and any conditions of the mandate; and

    • (g) be signed and dated by the persons or entities to whom the mandate has been given.

    (4) For the purposes of subsection (1)(a), the Crown recognises a mandate if the responsible Ministers, by notice,—

    • (a) set out, in summary form, the matters required for a mandate by subsection (3); and

    • (b) state that the Crown recognises the mandate.

    (5) For the purposes of subsection (1)(b), the Crown withdraws its recognition of a mandate if the responsible Ministers give notice to that effect.

    (6) This section overrides sections 8 to 10.

Waka tumaha

14 Formation and registration of waka tumaha
  • A waka tumaha may, if the relevant requirements of this Act are met, be formed and registered for a Māori association—

    • (a) whose members do not descend from a common tribal ancestor; and

    • (b) whose membership is predominantly Māori; and

    • (c) that supports Māori culture and tikanga; and

    • (d) that has communal assets; and

    • (e) whose purpose is to provide a range of services or benefits for its community.

14 Formation and registration of waka umanga
  • A Māori collective may be formed and registered as a waka umanga if—

    • (a) the members of the Māori collective descend from a tipuna or tupuna; or

    • (b) the members of the Māori collective do not descend from a tipuna or tupuna; but—

      • (i) the members are predominantly Māori; and

      • (ii) the members support Māori culture and tikanga; and

      • (iii) the purpose (wholly or in part) of the Māori collective is to provide services or benefits to its members.

Subpart 2Requirements for formation and registration of waka umanga

General Essential requirements

15 Notice of intention to form and register waka umanga
  • If a tribal group, Māori association, or an existing entity intends to form and register a waka umanga, it must ensure that the persons eligible to be members of the tribal group, Māori association, or existing entity—

    • (a) are notified of that intention by any means considered appropriate; and

    • (b) are made aware of how to participate in the process.

15 Essential requirements
  • (1) A waka umanga must have—

    • (a) a name; and

    • (b) 15 or more registered members; and

    • (c) 3 or more governors; and

    • (d) a charter; and

    • (e) a register of members.

    (2) Subsection (1)(b) is subject to section 16(2).

16 Register of members of waka umanga
  • (1) Before a charter may be considered for adoption under section 22, the tribal group or Māori association, as the case may be, must—

    • (a) give public notice of, and request applications for, membership of the waka umanga, when formed and registered; and

    • (b) compile a provisional register of members of the waka umanga.

    (2) Despite subsection (1), if an existing entity seeking to be registered as a waka umanga complies with the relevant requirements of subpart 1 of Part 5, that is sufficient to satisfy the requirements of this section.

16 Membership of waka umanga
  • (1) The charter of a waka umanga must—

    • (a) set out the criteria for the membership of the waka umanga; and

    • (b) set out the process for determining the eligibility of persons for membership; and

    • (c) specify rules relating to—

      • (i) the privacy of information on the register of members; and

      • (ii) the form in which the register of members is to be kept; and

      • (iii) how the register of members is to be made available for inspection.

    (2) A waka umanga must establish and maintain, within 6 months after its registration, a register of members in accordance with this Act and its charter.

Prerequisites to registration for tribal groups

17 Prerequisites for registration of waka pū
  • (1) This section applies to a tribal group wishing to register a waka pū.

    (2) If the tribal group is not represented by any entity, it must prepare, notify, and adopt a charter in accordance with sections 19 to 22.

    (3) If the tribal group is represented by an existing entity, it must—

    • (a) prepare, notify, and adopt a charter in accordance with sections 19 to 22; and

    • (b) comply with the relevant provisions of subpart 1 of Part 5.

    (4) Despite subsection (3), if the tribal group is represented by a mandated iwi organisation, iwi aquaculture organisation, or Treaty settlement entity, it must comply with the relevant provisions of subpart 1 of Part 5.

Prerequisites for registration of Māori associations

18 Prerequisites for registration of waka tumaha
  • (1) This section applies to a Māori association that wishes to be registered as a waka tumaha.

    (2) If the Māori association is not represented by an existing entity, it must prepare, notify, and adopt a charter in accordance with sections 19 to 22.

    (3) If the Māori association is represented by an existing entity, it must comply with the relevant provisions of subpart 1 of Part 5.

Charter of waka umanga

19 Contents of charter
  • The charter of every waka umanga must, in addition to providing for the matters required by Schedule 2,

    • (aa) state whether it is a Māori collective under section 14(a) or (b); and

    • (a) define the objectives of the waka umanga; and

    • (ab) describe the area in which it operates; and

    • (b) set out the criteria for membership describe the persons who are eligible to be members of the waka umanga; and

    • (c) in the case of a charter for a waka pū,—

      • (i) describe the tribal group and any constituent groups by reference to 1 or more ancestors, shared whakapapa, marae, or other traditional criteria by which the tribal group may be identified; and

      • (ii) define the matters on which the waka pū will be the legitimate representative of the tribal group; and

      • (iii) define any matters for which a constituent group, or any proposed subsidiary to be established by the waka pū, is to be the legitimate representative; and

    • (d) in the case of a charter for a waka tumaha, describe—

      • (i) the criteria by which the Māori association may be recognised; and

      • (ii) the area where the waka tumaha will operate; and

      • (iii) the objectives of the waka tumaha that are for the benefit of its community or for Māori generally, or for a specified group of Māori; and

    • (e) set out the process by which the governors or interim governors of the waka umanga are to be elected or appointed, as the case may be, whether by—

      • (i) the election of governors at the time that the charter is adopted; or

      • (ii) the appointment of persons to be interim governors; and

    • (e) set out the process for registration of membership of the waka umanga; and

    • (ea) specify the names of the interim governors; and

    • (eb) set out the process by which subsequent governors of the waka umanga are to be elected or appointed; and

    • (ec) provide for a dispute resolution mechanism in accordance with section 62; and

    • (ed) if required, provide a process for classifying assets as protected assets for the purposes of section 48; and

    • (ee) provide a process for the amendment or substitution of the charter, subject to the provisions of this Act; and

    • (ef) set out clearly how any surplus assets of the waka umanga will be distributed on a winding up, subject to the provisions of this Act relating to protected assets; and

    • (f) provide for all other matters required by this Act.

    (2) The charter consulted on under section 20 must include information on how the charter will be notified and adopted.

20 Consultation on charter
  • (1) Before a charter may be notified under section 21, the tribal group, Māori association, or existing entity (other than a mandated iwi organisation, iwi aquaculture organisation, Treaty settlement entity, or waka umanga) must consult on the charter by—

    • (a) giving public notice of—

      • (i) where the charter may be inspected; and

      • (ii) the details of public meetings where the charter will be discussed; and

      • (iii) when and how submissions may be made on the charter; and

    • (b) in the case of a waka pū, providing copies of the charter and notices of meetings to—

      • (i) any entity that represents the same tribal group or parts of it; and

      • (ii) any entities representing tribal groups whose tribal area is adjacent to the area of the tribal group undertaking the consultation; and

      • (iii) any proposed constituent groups of the waka umanga; and

    • (c) on request, providing a copy of the charter to any adults eligible or likely to be eligible to be members of the waka umanga; and

    • (d) receiving and considering submissions on the charter.

    (2) Meetings convened under this section must be held at times and in places that the tribal group, Māori association, or existing entity believes, on reasonable grounds, will permit a substantial proportion of the persons eligible to be members of the waka umanga, or likely to be, to attend.

21 Notification of charter
  • (1) When the consultation process required by section 20 has been completed, but before the charter may be adopted under section 22, the tribal group, Māori association, or existing entity must—

    • (a) finalise and give public notice of the charter; and

    • (b) on request, make copies of the charter available to any adults eligible to be members of the waka umanga.

    (2) A copy of the charter must be provided to—

    • (a) the entities and constituent groups to which copies of the charter were provided under section 20(1)(b); and

    • (b) in the case of the charter for a waka pū,—

      • (i) the local authorities that operate in the tribal area; and

      • (ii) Te Ohu Kai Moana Trustee Limited, if the waka pū is seeking to be the legitimate representative of the tribal group in respect of Māori commercial fisheries or aquaculture activities; and

      • (iii) the Minister of Māori Affairs.

    (3) In notifying the Minister of Māori Affairs, a tribal group must advise whether there are, and if so, the details of,—

    • (a) any existing contractual or special consultative arrangements between existing entities or proposed constituent groups and any departments of the public service listed in Schedule 1 of the State Sector Act 1988; and

    • (b) any agreements reached with any constituent groups as to which entity represents the tribal group on particular matters.

21 Notification after registration
  • (1) As soon as practicable after the registration of a waka umanga, the interim governors of the waka umanga must give public notice that the waka umanga has been registered.

    (2) The notice must also—

    • (a) specify the persons who are eligible to be members of the waka umanga; and

    • (b) invite persons who are eligible to apply to become members; and

    • (c) specify where application forms for membership can be obtained; and

    • (d) specify where application forms for membership should be received; and

    • (e) specify how a person may obtain a copy of the waka umanga's charter.

    (3) A copy of the charter must be provided in 1 of the following ways as requested by the person wishing to obtain a copy:

    • (a) by delivering a copy to the person's address; or

    • (b) by emailing a copy to the person's email address; or

    • (c) by making a copy available for collection.

    (4) The waka umanga may charge for providing a copy of the charter, but the charge must not exceed the reasonable cost of providing it.

22 Adoption of charter
  • A waka umanga may adopt a charter only if the charter is adopted by a special majority, the ballot for which must be no less stringent than—

    • (a) 75% of those entitled to vote and voting; or

    • (b) a percentage greater than 50% in each constituent group of the waka umanga; or

    • (c) a combination of the ballots described in paragraphs (a) and (b), as long as the effect is no less stringent than either of those ballots.

22 Adoption of charter
  • (1) A waka umanga must, by special resolution at its first general meeting held after its registration, adopt (with or without modification) the charter included in the application for registration under section 28.

    (2) The first general meeting must be held—

    • (a) after the waka umanga has established its register of members; but

    • (b) within 12 months after its registration as a waka umanga.

    (3) Not less than 3 months' notice of the waka umanga's first general meeting must be given to each member of the waka umanga.

Variation of charter

23 Variation of charter
  • At any time before a charter is notified under section 21, the relevant tribal group, Māori association, or existing entity—

    • (a) may, at its discretion, vary the charter, as long as the consultation process required by section 20 is followed for any significant variation; and

    • (b) must vary the charter if required to do so by the Court in response to an application for declarations or review under section 24.

Applications for declarations or review

24 Declarations or review in relation to charter
  • Applications may be made to the Court in accordance with—

    • (a) section 78, for declarations relating to the formation of a waka pū; or

    • (b) section 79, to review the process of formation and the charter of a waka umanga.

Subpart 3Registration of waka umanga

Registrar and Register

25 Registrar of Waka Umanga
  • (1) There must be a Registrar of Waka Umanga.

    (2) The person holding office as the Registrar of Companies under the Companies Act 1993 immediately before the commencement of this Act is appointed to be the Registrar of Waka Umanga.

    (3) To the extent that it is not inconsistent with this Act, Part 20 of the Companies Act 1993 applies to the powers of the Registrar as if every reference to—

    • (a) the Registrar of Companies were a reference to the Registrar of Waka Umanga; and

    • (b) a company were a reference to a waka umanga; and

    • (c) a director were a reference to a governor; and

    • (d) the register of companies and the New Zealand register were references to the Register of Waka Umanga; and

    • (e) a certificate of incorporation were a reference to a certificate of registration; and

    • (f) the Minister were a reference to the Minister for the time being responsible for the administration of the Companies Act 1993 this Act.

    • (g) the Court were a reference to the Māori Land Court.

    (4) To avoid doubt, Part 20 of the Companies Act 1993 does not override this Act.

26 Register of Waka Umanga
  • (1) The Registrar must ensure that a register of waka umanga registered under this Act is kept in New Zealand.

    (2) The Register is to be known as the Register of Waka Umanga.

    (3) The Register must be—

    • (a) created in electronic or other form the Registrar thinks fit; and

    • (b) maintained for the purposes of registration under this Act; and

    • (c) publicly available at all times unless—

      • (i) the Registrar suspends the operation of the Register, in whole or in part, if the Registrar considers for any reason that it is not practicable to provide a service relating to the Register; or

      • (ii) as otherwise provided for in regulations.

27 Contents and purpose of Register
  • (1) The Register must include the following data in respect of each waka umanga:

    • (a) the name of the waka umanga; and

    • (b) the registered office of the waka umanga and an address for service; and

    • (c) the charter of the waka umanga; and

    • (d) the full name and residential address of each of the governors of the waka umanga; and

    • (e) each annual report of the waka umanga; and

    • (f) the register of protected assets of the waka umanga; and

    • (g) documentation relevant to the voluntary administration or liquidation (if any) of a waka umanga; and

    • (h) other information that the waka umanga, with the agreement of the Registrar, wishes to place on the Register.

    (2) The purpose of the register is to provide, in a publicly accessible form, current information relevant to the governance and management of waka umanga.

Requirements for registration

28 Application for registration
  • (1) An application made on behalf of a Māori collective for registration as a waka umanga must be made to the Registrar—

    • (a) as soon as practicable after the adoption of the charter under section 22; and

    • (b) in the form approved by the Registrar for the purpose; and

    • (c) accompanied by the fee prescribed for the purpose.

    (2) An application must include—

    • (a) except in the case of an application by a mandated iwi organisation, iwi aquaculture organisation, or Treaty settlement entity, a copy of the charter prepared, consulted on, notified, and adopted in accordance with sections 19 to 22; and

    • (b) in the case of an application by a mandated iwi organisation, iwi aquaculture organisation, or a Treaty settlement entity, confirmation that its constitutional documents or charter comply, or substantially comply, with this Act; and

    • (b) a statutory declaration made by an interim governor that—

      • (i) the charter complies with the requirements of this Act; and

      • (ii) the Māori collective is entitled to be registered as a waka umanga under this Act; and

    • (c) the physical address to be used as the registered office of the waka umanga; and

    • (d) a postal address and address for service for the waka umanga; and

    • (e) the full names of the persons elected to be interim governors at the time when the charter was adopted or of those who are appointed to be interim governors; and

    • (f) a declaration as to the number of members on the provisional register of members compiled under section 16(1)(b); and

    • (g) a statutory declaration signed by each person named as a an interim governor, setting out the matters required by subsection (3); and

    • (h) sufficient evidence that the charter was adopted by the special majority defined for the purpose in the charter, as provided for under section 22; and

    • (h) a copy of the charter certified by a governor to be the charter notified under section 21.

    • (i) any other matters required by the Registrar.

    (3) Each governor making a statutory declaration under subsection (2)(g) must declare—

    • (a) his or her full name and place of residence, date and place of birth, and record his or her consent to be a governor; and

    • (b) that he or she is not disqualified from appointment or from holding office as a governor under clause 1 of Schedule 3 the charter.

    (4) To avoid doubt,—

    • (a) sections 96(2), 102(2), 107(2), and 111(2) require an existing entity applying for registration as a waka umanga to include additional documents with its application for registration; and

    • (b) section 29(1)(d) requires additional information to be provided to the Registrar by a mandated iwi organisation, iwi aquaculture organisation, and Treaty settlement entity applying for registration as a waka umanga.

Notification of intended registration

29 Preliminary consideration of application
  • (1) The Registrar must be satisfied that—

    • (a) an application received under section 28 complies with the requirements of this Act; and

    • (b) the name proposed for the waka umanga—

      • (i) is not identical or almost identical to—

        • (A) the name of any registered another entity registered under another enactment, including a waka umanga; or

        • (B) a name that the Registrar has already reserved and that is still available for registration under the Companies Act 1993; and

      • (ii) is not, in the opinion of the Registrar, inappropriate offensive; and

    • (c) the use of the name would not contravene an enactment.

    • (d) in the case of a mandated iwi organisation, iwi aquaculture organisation, or Treaty settlement entity,—

      • (i) its constitutional documents or charter comply, or substantially comply, with this Act; and

      • (ii) it has a policy relating to major transactions, as required by sections 46 and 47.

    (2) For the purposes of this section, the Registrar may seek the guidance of the Chief Registrar of the Māori Land Court.

    (3) If the Registrar is not satisfied that the requirements of subsection (1) are met, the Registrar may—

    • (a) refer the application back to the applicant for amendment; or

    • (b) request further information from the applicant.

30 Notification of application
  • (1) If the Registrar is satisfied that the requirements of section 29(1) are met, the Registrar must give notice in accordance with subsection (2) that, unless a notice of objection is received under section 31, the proposed waka umanga will be registered under section 32.

    (2) The notice required under subsection (1) must be published in—

    • (a) electronic form on a publicly accessible website of the Registrar of Waka Umanga; and

    • (b) the Pānui of the Court.

    (3) For the purposes of this section, the Registrar may seek the guidance of the Chief Registrar of the Court as to whether there are persons or entities that must be notified in addition to the notice given under subsection (2).

Objections

31 Objections to registration
  • (1) Applications may be made to the Court in accordance with section 82, objecting to the intended registration of a waka umanga.

    (2) The Registrar must not enter an application in the Register of Waka Umanga or issue a certificate of registration unless or until he or she is notified by the Chief Registrar of the Court that the objection has been withdrawn or resolved.

Registration

32 Registration of waka umanga
  • (1) If no objections to the registration of a waka umanga are received under section 31 within the specified time, or they are withdrawn or resolved, When the Registrar is satisfied that the requirements of section 29(1) are met, the Registrar must—

    • (a) register the application by entering the details of the waka umanga in the Register of Waka Umanga; and

    • (b) issue a certificate of registration.

    (2) Subsection (1) applies subject to section 100.

    (3) As soon as practicable after the registration of an existing entity as a waka umanga, the Registrar must provide a copy of the waka umanga's certificate of incorporation to—

    • (a) the Registrar of Companies, if the existing entity was a company within the meaning of the Companies Act 1993:

    • (b) the Registrar of Incorporated Societies, if the existing entity was—

      • (i) a society incorporated under the Incorporated Societies Act 1908; or

      • (ii) charitable trust board incorporated under the Charitable Trusts Act 1957:

    • (c) the Attorney-General and the Commissioner for Inland Revenue, if the existing entity was a charitable trust:

    • (d) the Minister of Māori Affairs, if the existing entity was a Maori Trust Board:

    • (e) the Charities Commission, if the existing entity is registered as a charitable entity under the Charities Act 2005.

    (4) As soon as the Registrar of Companies or the Registrar of Incorporated Societies receives a copy of a certificate of incorporation under subsection (1), the Registrar must remove the existing entity from the appropriate register under the Companies Act 1993, the Incorporated Societies Act 1908, or the Charitable Trusts Act 1957.

    (5) As soon as the Charities Commission receives a copy of a certificate of incorporation under subsection (1), the Commission must amend its register of charitable entities accordingly.

33 Certificate of registration
  • (1) A certificate of registration issued under section 32 is conclusive evidence that—

    • (a) all the requirements for registration under this Act have been complied with; and

    • (b) on and from the date of registration stated in the certificate, the waka umanga is registered as a waka umanga under this Act.

    (2) The certificate must record the registered name of the waka umanga with the suffix Waka Umanga or WU, or Māori Corporation or MC which, whether in full form or abbreviated form, must be used on all official documents of the waka umanga.

    (3) After the commencement of this Act, no person may be incorporated or registered under any other enactment or in any other manner using the terms Waka Umanga, WU, Māori Corporation, or MC as a suffix or immediately before the word Limited.

33A Powers of board and interim governors limited until section 22 complied with
  • On and from the registration of a waka umanga until section 22 is complied with, the board and interim governors must not exercise their powers, nor incur liabilities or enter into agreements on behalf of the waka umanga, except to the extent necessary to comply with section 22.

33B Registrar to deregister waka umanga if certain requirements not satisfied
  • (1) This section applies to a waka umanga if, by the close of the period of 12 months after its registration, it has not complied with section 22.

    (2) At the close of the period referred to in subsection (1), the Registrar must remove the waka umanga from the Register of Waka Umanga.

    (3) To avoid doubt, on removal of a waka umanga from the Register of Waka Umanga, section 6 ceases to apply to the waka umanga.

33C Sections 33A and 33B not to apply to registration of existing entities
  • Sections 33A and 33B do not apply to a waka umanga if it was an existing entity authorised under Part 5 to register as a waka umanga.

Change of name of waka umanga

34 Change of name of waka umanga
  • (1) If a waka umanga wishes to change its registered name,—

    • (a) it must—

      • (i) apply to the Registrar in the form approved by the Registrar for the purpose; and

      • (ii) pay the fee prescribed for the purpose; and

    • (b) the requirements of sections 29 to 33 apply with any necessary modifications.

    (2) A change of name—

    • (a) takes effect from the day that the certificate is issued by the Registrar; but

    • (b) does not affect the rights or obligations of the waka umanga.

    (3) Legal proceedings commenced by or against the waka umanga under its former name, or that might have been commenced or continued against the waka umanga under its former name, may be commenced or continued against it under its new name.

35 Direction to change name
  • (1) If the Registrar believes on reasonable grounds that a waka umanga should not have been registered under a particular name, he or she may serve a written notice on the waka umanga at its registered office, directing the waka umanga to apply to change its name in accordance with section 34 not later than 3 months after the date on which the notice is served.

    (2) If the waka umanga does not comply with the notice served under subsection (1) within the specified time, the Registrar may select, and enter on the Register of Waka Umanga, a new name for the waka umanga.

    (3) If the Registrar enters a new name on the Register for the waka umanga under subsection (2), he or she must issue a new certificate of registration for the waka umanga.

    (4) Section 34(3) applies to the registration of the new name as if the name of the waka umanga had been changed under section 34.

Amendments to charter

36 Amendments to charter
  • (1) Any amendment to, or substitution of, the charter of a waka umanga must be notified to the Registrar within 10 working days after the adoption of the amendment or substitution of the charter by the waka umanga.

    (2) To avoid doubt, amendments to the charter, or a substituted charter, are of no effect until they are notified to the Registrar, as required by subsection (1).

Part 3
Governance, management, and other matters relevant to registered waka umanga

Subpart 1Governance of waka umanga

RūnanganuiBoard

37 Rūnanganui Board is governing body of waka umanga
  • (1) Every waka umanga must have a rūnanganui board to exercise the powers and perform the duties of the waka umanga under this Act and the charter of the waka umanga.

    (2) The rūnanganui board

    • (a) has the authority and the powers necessary for the purposes of subsection (1); and

    • (b) is accountable to the tribal group or Māori association Māori collective on whose behalf the waka umanga is formed and registered.

    (3) A rūnanganui must have the number of governors specified in the charter under subclause (4) of Schedule 2.

    (4) A governor holds office for the term specified in the charter under subclause (5) of Schedule 2.

    (5) Schedule 3 sets out further provisions relating to the governance, management, and accountability of a waka umanga.

Governors

38 Governors of rūnanganui
  • (1) A natural person who is not disqualified from office under this Act or the charter may be a governor.

    (2) Before election or appointment, a governor must—

    • (a) give written consent to being a governor; and

    • (b) make a written statement that he or she is not disqualified from being a governor.

    (3) Except in the case of an interim governor, as provided for in section 39(2), every governor must be either—

    • (a) elected in accordance with section 39(1) the charter; or

    • (b) appointed in accordance with section 40 and the charter.

Election and appointment

39 Election of governors and appointment of interim governors
  • (1) The election of governors must be conducted—

    • (a) in accordance with the provisions of the charter; and

    • (b) in the case of the first governors of a waka umanga, either—

      • (i) at the time that the charter is adopted; or

      • (ii) if interim governors are appointed under subsection (2)(b), not later than 6 months after the date of registration of the waka umanga under subpart 3 of Part 2; and

    • (c) subsequently,—

      • (i) when a governor’s term of office expires:

      • (ii) as soon as practicable after a vacancy arises on the rūnanganui, unless the period of time before the next election is less than 1 year, or any shorter time that the charter may specify.

    (2) Persons may be appointed to be interim governors either—

    • (a) by virtue of being members of the governing body of an existing entity at the time when application is made to register the waka umanga under section 28; or

    • (b) by the tribal group at the time when the charter is adopted.

    (3) In the case of an existing entity that becomes a waka umanga, if interim governors are appointed under subsection (2)(a),—

    • (a) an election is not required until the date when the next election would have been held under the governance arrangements of that existing entity; but

    • (b) if the existing entity has not held an election for its governing body within the last 4 years, an election must be held as required by subsection (1)(b)(ii).

39 Requirements relating to the election or appointment, disqualification, and term of office of governors
  • (1) The charter of a waka umanga must set out—

    • (a) the criteria to be taken into account for the election or appointment of a governor; and

    • (b) the matters that disqualify a person from holding office as a governor, being at least the grounds that disqualify a person from holding office as a director under section 151 of the Companies Act 1993; and

    • (c) the minimum number of governors required, which must not be fewer than 3; and

    • (d) the term of office of governor (which must not exceed 4 years) and the maximum number of consecutive terms a person may serve as governor.

    (2) The charter of a waka umanga must also set out—

    • (a) the names of the interim governors; and

    • (b) whether governors are to be elected by members or constituent groups, or both, of the waka umanga; and

    • (c) how much, and the manner of giving, notice of the election of governors is required; and

    • (d) the requirements for nominations for election as governor; and

    • (e) the method of voting; and

    • (f) the process for resolving disputes relating to elections.

    (3) If a governor dies, resigns, or is removed from office, the office becomes vacant, the vacancy is an extraordinary vacancy, and the following provisions apply:

    • (a) an extraordinary vacancy must be filled by election or appointment in the same manner as the vacating governor was elected or appointed; but

    • (b) if the vacating governor's term of office had less than 1 year to run (or such shorter period as may be specified in the charter) the remaining governors may appoint a replacement, whether the governor had originally been appointed or elected; and

    • (c) a person appointed or elected to fill an extraordinary vacancy holds office for the remainder of the term for which the vacating governor was appointed or elected.

40 Appointment of governors
  • The charter—

    • (a) may provide that up to 25% of the maximum number of governors may be appointed rather than elected; and

    • (b) if it does so, must specify how governors are to be appointed, including the matters set out in subclause (7) of Schedule 2.

      • (i) who may be appointed as governor; and

      • (ii) how a person is to be appointed as governor; and

      • (iii) the role and powers of an appointed governor.

40A Person may not be governor and chief executive at same time
  • A person may not hold office as governor of a waka umanga if the person is the chief executive of the waka umanga.

General Duties of governors

41 General duties
  • (1) Every governor, when acting as a governor, must—

    • (a) act in good faith, for proper purposes, and in a manner that the governor has reasonable grounds to believe is in the best interests of the present and future members of the tribal group or Māori association that the waka umanga represents; and

    • (b) not contravene, or cause the waka umanga to contravene, the requirements of this Act or the charter of the waka umanga; and

    • (c) avoid acting in a way that would unfairly prejudice or discriminate against any constituent group of the waka umanga, unless the governor believes on reasonable grounds that it is necessary to so act in the best interests of the tribal group or Māori association as a whole; and

    • (d) take reasonable steps to prevent—

      • (i) the business of the waka umanga being carried on in a manner that is likely to cause serious loss to the waka umanga or its creditors; or

      • (ii) the waka umanga from incurring obligations that it cannot perform.

    (2) In exercising the powers and performing the functions and duties of a governor, a governor must—

    • (a) exercise the care, diligence, and skill that a reasonable governor would exercise in the same circumstances, taking into account, as appropriate,—

      • (i) the nature of the waka umanga; and

      • (ii) the nature of the matter in issue; and

    • (b) be guided by the stated objectives of the charter, the long-term plan, and the governance policies of the waka umanga.

41 Duty of governors to act in good faith and in best interests of waka umanga
  • A governor of a waka umanga, when exercising powers or performing duties, must act in good faith and in what the governor believes to be the best interests of the waka umanga.

41A Exercise of powers in relation to employees
  • (1) Section 41 does not limit the power of a governor to make provision for the benefit of employees of the waka umanga in connection with the waka umanga ceasing to carry on the whole or part of its operations.

    (2) In subsection (1), employees includes former employees and the dependants of employees or former employees, but does not include an employee or former employee who is or was a governor of the waka umanga.

41B Power to be exercised for proper purpose
  • A governor must exercise a power for a proper purpose.

41C Governors to comply with Act and charter
  • A governor of a waka umanga must not act, or agree to the waka umanga acting, in a manner that contravenes this Act or the charter of the waka umanga.

41D Reckless operating
  • A governor of a waka umanga must not—

    • (a) agree to the operations of the waka umanga being carried on in a manner likely to create a substantial risk of serious loss to the waka umanga's creditors; or

    • (b) cause or allow the business of the waka umanga to be carried on in a manner likely to create a substantial risk of serious loss to the waka umanga's creditors.

41E Duty in relation to obligations
  • A governor of a waka umanga must not agree to the waka umanga incurring an obligation unless the governor believes at that time on reasonable grounds that the waka umanga will be able to perform the obligation when it is required to do so.

41F Governor's duty of care
  • A governor of a waka umanga, when exercising powers or performing duties as a governor, must exercise the care, diligence, and skill that a reasonable governor would exercise in the same circumstances taking into account, but without limitation,—

    • (a) the nature of the waka umanga; and

    • (b) the nature of the decision; and

    • (c) the position of the governor and the nature of the responsibilities undertaken by him or her.

41G Use of information and advice
  • (1) A governor of a waka umanga, when exercising powers or performing duties as a governor, may rely on reports, statements, and financial data and other information prepared or supplied, and on professional or expert advice given, by any of the following persons:

    • (a) an employee of the waka umanga whom the governor believes on reasonable grounds to be reliable and competent in relation to the matters concerned:

    • (b) a professional adviser or expert in relation to matters which the governor believes on reasonable grounds to be within the person's professional or expert competence:

    • (c) any other governor in relation to matters within the governor's designated authority.

    (2) Subsection (1) applies to a governor only if the governor—

    • (a) acts in good faith; and

    • (b) makes proper inquiry where the need for inquiry is indicated by the circumstances; and

    • (c) has no knowledge that such reliance is unwarranted.

42 Register of members
  • Every waka umanga must compile, and take reasonable steps to maintain, a register of its members in accordance with the requirements of the charter provided for under subclause (1)(c) of Schedule 2.

Disclosure of conflict of interest

43 Obligation of disclosure
  • (1) A governor of a waka umanga must disclose, in accordance with section 44, any benefit or material financial interest that he or she derives or may derive from a transaction of, or other matter relating to, the waka umanga.

    (2) The rūnanganui board must create and maintain an interests register for the purposes of the disclosure required by subsection (1).

    (3) For the purposes of this section and sections 44 and 45, a governor—

    • (a) derives or may derive a benefit if he or she—

      • (i) is a close relative of a person who will or may, directly or indirectly, derive a benefit from a transaction or other matter relating to the waka umanga; or

      • (ii) holds a position of influence or has a material financial interest in an entity that will or may, directly or indirectly, derive a benefit from the transaction or other matter; and

    • (b) has a material financial interest if a reasonable observer, informed of all the relevant facts, would conclude that the governor or a close relative will or may, directly or indirectly, derive a financial gain or loss from the transaction or other matter.

    (4) In this section, close relative, in relation to a governor, means—

    • (a) the governor’s spouse, de facto partner, or civil union partner; or

    • (b) the governor’s parent, including step-parent or the person to whom the governor is a whāngai; or

    • (c) the governor’s child, including step-child or whāngai; or

    • (d) any other person with whom the governor is, or has been, in a relationship of financial dependence or interdependence.

    (4) In this section, close relative means the persons defined in the charter to be close relatives for the purposes of this section.

    (5) In this section and sections 44 and 45, transaction or other matter includes a proposed transaction or other matter.

    (6) A governor does not derive a benefit or have a material financial interest, for the purpose of disclosure under subsection (1), if the only benefit or interest is—

    • (a) the same or substantially the same as—

      • (i) the benefit or interest of most other members of the tribal group or Māori association to which the governor belongs; or

      • (ii) the benefit or interest of the general public in the transaction or other matter; or

    • (b) so remote or insignificant that it cannot reasonably be regarded as likely to influence the governor in carrying out his or her duties as a governor.

44 Scope and method of disclosure required
  • (1) As soon as a governor becomes aware that he or she may derive a benefit from, or may have a material financial interest in, a transaction or other matter, he or she must ensure that the benefit or interest is—

    • (a) disclosed to the rūnanganui board; and

    • (b) entered in the interests register.

    (2) Disclosure of a benefit or material financial interest must include—

    • (a) the monetary value, if it can be quantified, and the nature of the benefit or interest; or

    • (b) if no monetary value can be quantified, the nature and extent of that benefit or interest.

    (3) A failure by a governor to comply with subsection (1) does not affect the validity of a transaction entered into with a third party—

    • (a) by the waka umanga; or

    • (b) by the governor acting in his or her capacity as a governor.

45 Consequences of benefit or interest
  • (1) A governor who derives or may derive a benefit from, or has or may have a material financial interest in, a transaction of, or other matter relating to, a waka umanga—

    • (a) must not vote on, or take part in, any discussion or decision by the rūnanganui board or a committee of the rūnanganui board relating to the transaction or other matter; and

    • (b) must not sign any document relating to the transaction or other matter; and

    • (c) must be disregarded for the purpose of forming a quorum for the part of the meeting of the rūnanganui board or committee when a discussion or decision relating to the transaction or other matter takes place or is made.

    (2) Despite subsection (1), if a governor derives or may derive a benefit (that does not amount to a material financial interest) from a transaction or other matter, the rūnanganui board

    • (a) may resolve, prior to the decision being made by the rūnanganui board or committee, that the governor may take part in some or all of the discussion and decision making on the relevant transaction or matter, despite being in a position of deriving a benefit; but

    • (b) must not make such a resolution unless it is satisfied that the governor’s benefit will not impair his or her judgement in relation to the transaction or other matter.

    (3) A resolution made under subsection (2) must be entered in the minutes of the relevant meeting, together with details of the nature of the benefit and any conditions imposed in relation to the governor’s participation in the part of the meeting dealing with the transaction or other matter concerned.

    (4) A waka umanga must publish in its annual report a list of the transactions or other matters it was involved in for the relevant financial year, and from or by which a governor derived a benefit or had a material financial interest.

Major transactions

46 Policy relating to major transactions
  • (1) The policy of the waka umanga in relation to major transactions must include the following matters as major transactions:

    • (a) amending or substituting the charter (unless the amendment is of an insubstantial nature):

    • (b) adoption or amendment of a the long-term plan (except in the case of minor amendments):

    • (c) any transaction (including any distribution of assets to registered members) that affects, or has the potential to affect, assets the value of which is more than 50% of the value of the total assets (excluding protected assets) of the waka umanga that existed before the transaction:

    • (d) classifying any assets of the waka umanga as protected assets and removal of that classification:

    • (e) appointment of a liquidator for the purposes of subpart 5:

    • (f) any other matters set out in the charter.

    (2) If, at any time after the registration of a waka pū, the charter is amended under subsection (1)(a) to provide for the waka pū to be the legitimate representative of the tribal group, or to include new matters on which it is to be the legitimate representative of the tribal group, the waka pū must notify those amendments to—

    • (a) the Minister of Māori Affairs; and

    • (b) the entities referred to in section 21(2)(b).

    (3) For the purposes of determining the value required by subsection (1)(c), the governors—

    • (a) may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances; and

    • (b) must have regard to—

      • (i) the most recent financial statements of the waka umanga that comply with the requirements for an annual report set out in clause 33 of Schedule 3 section 58A(2); and

      • (ii) all other circumstances that the governors know or ought to know affect, or may affect, the value of the assets and liabilities of the waka umanga, including its contingent liabilities; and

    • (c) in relation to the value of a contingent liability, may take into account—

      • (i) the likelihood of the contingency occurring; and

      • (ii) any claim the waka umanga is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability.

47 Requirements for entering into major transaction
  • (1) A rūnanganui must not enter into a major transaction or permit a major transaction to be entered into, unless the transaction is authorised—

    • (a) by a special resolution of the rūnanganui after consultation with the registered members of the waka umanga in accordance with the special consultative procedures set out in the charter; or

    • (b) in accordance the procedures for adopting the charter under section 22.

    (2) A rūnanganui must not pass a special resolution under subsection (1)(a) unless it is satisfied that the resolution accords with the consensus or majority views of the registered members obtained through consultation, as required by that provision.

47 Requirements for entering into major transaction
  • (1) A board must not enter into a major transaction or permit a major transaction to be entered into, unless the transaction is authorised by a special resolution.

    (2) The charter of a waka umanga may provide requirements relating to—

    • (a) consultation with members of a waka umanga before they vote on whether to authorise a major transaction; and

    • (b) the level of support required in that consultation before the board is to submit the proposed major transaction to members of the waka umanga to vote on whether to authorise it.

    (3) If an asset is subject to a mortgage, charge, or security interest, a board must not enter into a major transaction or permit a major transaction to be entered into that classifies the assets as a protected asset unless—

    • (a) the board has given not less than 3 months' public notice of its intention to do so; and

    • (b) the board has given not less then 3 months' notice in writing of its intention to do so to each creditor who has a mortgage, charge, or security interest in the asset; and

    • (c) each creditor referred to in paragraph (b) has given written consent to the asset being classified as a protected asset.

Protected assets

48 Inalienability of protected assets
  • (1) As long as an asset is classified as a protected asset under section 46(1)(d), a rūnanganui board must not—

    • (a) sell, transfer, or otherwise dispose of a protected asset; or

    • (b) grant a mortgage or other charge over a protected asset; or

    • (c) classify or reclassify as a protected asset an asset over which a mortgage or other charge has been granted, unless—

      • (i) the mortgage or other charge has been discharged; or

      • (ii) the person in whose favour the mortgage or other charge was granted has given consent.

    (1A) However, a board may grant a lease, licence to occupy, or profit à prendre over a protected asset if the board, after undertaking a risk assessment, is satisfied that in doing so it is not putting the asset at risk.

    (2) Protected assets are not—

    • (a) available to satisfy the demands of creditors, whether or not the waka umanga is under voluntary administration under subpart 4 or in liquidation under subpart 5; or

    • (b) part of the assets of the waka umanga for the purposes of the valuation required by section 46(1)(c).

    (3) To avoid doubt, unless consent is given in the circumstance provided for by subsection (1)(c)(ii), a protected asset is available to satisfy the demands of a creditor (whether or not the waka umanga is under voluntary administration or in liquidation), if the asset was not a protected asset at the time when the liability to the creditor was incurred.

    (4) The annual report of the waka umanga must list the protected assets of a waka umanga, including any change in the status of a protected asset in the year to which the report relates.

    (5) In this section and section 49, mortgage or other charge includes a security interest under the Personal Property Securities Act 1999.

49 Protected assets register
  • (1) The Registrar must—

    • (a) create and maintain for the waka umanga a protected assets register of the waka umanga; but

    • (b) may keep the register in the manner that the Registrar thinks fit, being any means that—

      • (i) records or stores information electronically or by any other means; and

      • (ii) permits the information recorded or stored to be readily inspected or reproduced in usable form.

    (2) Every rūnanganui board must notify the Registrar of any assets of the waka umanga classified as protected assets.

    (3) The protected assets register is the authoritative register for all purposes of the protected assets of a waka umanga.

    (3A) Subsection (3) applies subject to section 47.

    (4) A copy of the protected assets register must be attached to every document that creates a mortgage or other charge over an asset of a waka umanga.

    (5) To avoid doubt, this Act does not limit the Personal Property Securities Act 1999.

50 Amendment of register
  • If a rūnanganui board resolves to amend, or is ordered by the Court to amend, the protected assets register of the waka umanga, the rūnanganui board must, within 10 working days of passing the resolution or the making of the Court order, as the case may be,—

    • (a) notify the Registrar of the amendment; and

    • (b) certify in writing to the Registrar that the amendment is not inconsistent with section 48.

51 Land under Land Transfer Act 1952
  • (1) This section applies to land under the Land Transfer Act 1952 that becomes or ceases to be a protected asset.

    (2) The board must, as soon as practicable after the land becomes a protected asset, apply to the Registrar-General of Land to note on the relevant certificate of title that the land is a protected asset under this Act.

    (3) The board must, as soon as practicable after the land ceases to be a protected asset, apply to the Registrar-General of Land to cancel the entry on the relevant certificate of title made under subsection (2).

Subpart 2Management of waka umanga

51 Appointment of chief executive
  • (1) A rūnanganui must appoint a chief executive to be the executive head of the waka umanga.

    (2) The chief executive is accountable to the rūnanganui for the performance of his or her duties, functions, and responsibilities—

    • (a) set out in clause 25 of Schedule 3 or arising under this Act or any other enactment; or

    • (b) delegated to him or her by the rūnanganui.

    (3) In making an appointment under subsection (1), a rūnanganui must have regard to—

    • (a) the skills, attributes, and experience required of the chief executive; and

    • (b) the nature and scope of the activities of the waka umanga; and

    • (c) the other responsibilities placed on the chief executive by or under this Act and other enactments.

    (4) A chief executive may be a registered member of the waka umanga but must not be a governor of the waka umanga.

    (5) Further provisions relating to the management of a waka umanga are set out in clauses 26 and 27 of Schedule 3.

52 Delegation of powers
  • (1) Unless the charter of a waka umanga provides otherwise, the rūnanganui may delegate in writing to the chief executive any of its powers except this power of delegation.

    (2) The chief executive may delegate to 1 or more employees of the waka umanga who are specified by name or office in the delegation, any of the powers or functions that—

    • (a) he or she has under this Act; or

    • (b) are delegated to him or her.

    (3) Every delegation made under this section—

    • (a) is subject to any conditions or limitations imposed by the delegator in making the delegation to the delegate; and

    • (b) is revocable at will; and

    • (c) continues in force according to the terms of the delegation until it is revoked.

52 Management policies
  • The charter of a waka umanga must set out policies relating to the management of the waka umanga, including policies relating to—

    • (a) whether the board may appoint a chief executive; and

    • (b) if a chief executive is to be appointed, how the chief executive is to be accountable to the board; and

    • (c) the powers of delegation by the board and the chief executive, if appointed; and

    • (d) the employment of employees.

52A Method of contracting
  • (1) A contract or other enforceable obligation may be entered into by a waka umanga as follows:

    • (a) an obligation which, if entered into by a natural person, would, by law, be required to be by deed, may be entered into on behalf of the waka umanga in writing signed under the name of the waka umanga by—

      • (i) 2 or more governors of the waka umanga; or

      • (ii) if the charter of the waka umanga so provides, a governor, or other person or class of persons whose signature or signatures must be witnessed:

    • (b) an obligation which, if entered into by a natural person, is, by law, required to be in writing, may be entered into on behalf of the waka umanga in writing by a person acting under the waka umanga's express or implied authority:

    • (c) an obligation which, if entered into by a natural person, is not, by law, required to be in writing, may be entered into on behalf of the waka umanga in writing or orally by a person acting under the waka umanga's express or implied authority.

    (2) Subsection (1) applies to a contract or other obligation—

    • (a) whether or not that contract or obligation was entered into in New Zealand; and

    • (b) whether or not the law governing the contract or obligation is the law of New Zealand.

Subpart 3Accountability of waka umanga

Communication and consultation

53 Registered members’ rights of access to information
  • (1) A waka umanga must make the following information available on request to its registered members:

    • (a) the minutes of every meeting of the rūnanganui and the waka umanga; and

    • (b) governance, planning, and reporting information required by section 58 or that any subsidiaries must prepare under subpart 6; and

    • (c) copies of the registers required by this Act, namely:

      • (i) the register of members, but only in accordance with the privacy policy rules required by clause 29 of Schedule 3 section 16; and

      • (ii) the interests register; and

      • (iii) the protected assets register; and

    • (d) any other information that the charter requires to be available to the registered members of the waka umanga.

    (2) The rūnanganui—

    • (a) may restrict access to its minutes in relation to—

      • (i) commercially sensitive information; and

      • (ii) personal information, in accordance with the privacy policy required by clause 29 of Schedule 3; and

    • (b) must not disclose—

      • (i) information held by subsidiaries of the waka umanga, unless it is information given by subsidiaries to the waka umanga; or

      • (ii) information created for the purpose of, or in the course of, a dispute resolution process.

    (2) The board must not disclose—

    • (a) information held by subsidiaries of the waka umanga, unless it is information given by subsidiaries to the waka umanga; or

    • (b) information created for the purpose of, or in the course of, a dispute resolution process.

    (3) Further provisions on members’ rights to access the information of the waka umanga are set out in clauses 20 to 22 of Schedule 3.

    (3) The charter of a waka umanga may specify where and how information referred to in subsections (1) and (2) may be inspected by members of the waka umanga.

Meetings of waka umanga

54 Annual general meeting of waka umanga
  • (1) Every rūnanganui board must call an annual general meeting of the registered members of the waka umanga to be held not later than 6 months after the annual balance date of the waka umanga.

    (1A) The first annual meeting of a waka umanga must not be called until it has established its register of members as required by section 16(1)(b).

    (2) The primary purposes of the annual general meeting are to—

    • (a) present the annual report and accounts prepared for the previous financial year; and

    • (b) provide an opportunity for the registered members of the waka umanga to consider—

      • (i) the annual report and accounts for the previous financial year; and

      • (ii) the performance of the waka umanga against reports against the objectives set out in the annual plan for the previous year.

    (2) The purpose of an annual general meeting is to provide an opportunity for members to consider—

    • (a) the long-term plan (if required) and any subsequent amendments to the long-term plan; and

    • (b) the annual plan for the next financial year; and

    • (c) the annual report and accounts for the previous financial year; and

    • (d) the performance of the waka umanga as measured against the objectives set out in the annual plan for the previous year.

55 Special meetings of waka umanga
  • (1) Special meetings of the registered members of a waka umanga—

    • (a) may be called at any time by—

      • (i) the chairperson of the rūnanganui board; or

      • (ii) a majority of the governors; and

    • (b) must be called by the rūnanganui board, in accordance with the requirements of the charter, if requested in writing by the registered members in accordance with the requirements of the charter provided for under subclauses (18) and (19) of Schedule 2, with reasons for that request the charter requires a special meeting to be called.

    (2) A special meeting called under subsection (1)(b) must be—

    • (a) held not later than 30 working days after receipt of a request under subsection (1); and

    • (b) notified in accordance with the requirements of the charter.

    (3) Only the business stated in the notice of the meeting may be transacted at a special meeting.

56 Procedures for meetings of waka umanga
  • The procedures for meetings of a waka umanga must comply with any applicable requirements in the waka umanga's charter.

    • (a) any provisions of the charter made under subclauses (17) to (19) of Schedule 2; and

    • (b) clause 30 of Schedule 3.

Governance documents

57 Key governance document of waka umanga
  • (1) The charter is the key governance document of every waka umanga.

    (2) The charter held by the Registrar is the authoritative charter for all purposes.

    (3) To avoid doubt, amendments to, or a substitution of, the charter, which must be notified to the Registrar within 10 days after their adoption by the rūnanganui, are of no effect until they are notified to the Registrar.

57A Charter must contain certain provisions about board meetings and meetings of members
  • The charter of a waka umanga must contain provisions relating to—

    • (a) the quorum for meetings of the board; and

    • (b) the keeping of minutes of proceedings of the board; and

    • (c) the general and special meetings of members, including—

      • (i) the notice required for the calling of meetings; and

      • (ii) the quorum required for the transaction of business; and

      • (iii) any requirement for a constituent group to be represented; and

      • (iv) rules for the conduct of meetings such as voting rights and voting procedure.

58 Other governance documents
  • (1) In addition to the charter, each waka umanga must have the following governance documents:

    • (a) a long-term plan unless a charter provides that a long-term plan is not required; and

    • (b) an annual plan; and

    • (c) an annual report; and

    • (d) annual financial statements; and

    • (e) any other governance document required by the waka umanga's charter.

    (1A) The governance documents referred to in subsection (1) must be—

    • (a) adopted by the board by special resolution; and

    • (b) presented to the next annual general meeting of the waka umanga.

    (2) An audit report on the annual financial statements will be required if—

    • (a) the charter requires it; or

    • (b) at least 1%, or 15 or more (whichever is the greater) of the registered members of the waka umanga request it at a meeting of the waka umanga or in writing to the rūnanganui board; or

    • (c) the Court orders that an audit report be obtained.

    (3) The rūnanganui board may decide to obtain an audit report of its own motion or in order to meet any obligations, such as contractual requirements.

    (4) Clauses 31 to 35 of Schedule 3 apply to the governance documents referred to in this section.

58A Requirements for other documents
  • (1) An annual plan must set out—

    • (a) the proposed budget for the next financial year; and

    • (b) the distribution policy for the next financial year.

    (2) An annual report must—

    • (a) set out the matters that would be required under section 211 of the Companies Act 1993 (other than subsection (1)(b)) if the waka umanga were a company; and

    • (b) the waka umanga's annual financial statements.

    (3) A long-term plan must set out, in relation to not less than the next 5 financial years, proposals about—

    • (a) the waka umanga's activities; and

    • (b) its financial plans, including a statement of projected income and expenditure; and

    • (c) a framework for managing its resources (whether protected assets or not), including cash, commercial assets, land, and human resources; and

    • (d) how its progress period will be measured and reported on.

    (4) Nothing in a long-term plan is to be treated as—

    • (a) constituting a decision to undertake any activity or do anything referred to in the plan; or

    • (b) requiring a waka umanga to implement the provisions of the plan.

Auditor

59 Appointment of auditor
  • (1) If required under section 58(2), a rūnanganui board must appoint (or continue the appointment of) an auditor.

    (2) An auditor appointed under subsection (1) may resign at any time by giving written notice to the rūnanganui board.

    (3) If the rūnanganui board does not appoint an auditor within 2 months of a vacancy occurring, the Registrar of Waka Umanga may appoint an auditor.

    (4) Sections 197, 198, 199, 203, 204, 205, and 206 of the Companies Act 1993 apply as if every reference to—

    • (a) a company were a reference to a waka umanga; and

    • (b) the Registrar were a reference to the Registrar of Waka Umanga; and

    • (c) board were a reference to a rūnanganui board of a waka umanga; and

    • (d) director were a reference to a governor; and

    • (e) related company were a reference to a subsidiary; and

    • (f) shareholders were a reference to registered members.

Subpart 4Voluntary administration

Voluntary administration

60 Purpose of voluntary administration
  • (1) The purpose of voluntary administration is to provide for the administration of the operations, property, and activities of a waka umanga that is or may become insolvent, in a way that—

    • (a) maximises the chances of the waka umanga continuing in existence; or

    • (b) if that is not possible, results in a better return for the creditors and members of the waka umanga than would result from an immediate liquidation of the waka umanga.

    (2) Provisions relating to the appointment of an administrator and liquidator and other matters relevant to voluntary administration are set out in Part 2 of Schedule 3.

61 Administrator’s role
  • (1) While a waka umanga is under voluntary administration, the administrator—

    • (a) has control of the operations, property, and activities of the waka umanga; and

    • (b) may carry on and manage the operations, property, and activities; and

    • (c) may terminate or dispose of all or part of the operations, property, and activities; and

    • (d) may perform any function, and exercise any power, that the waka umanga or any of its officers could perform or exercise if the waka umanga were not under voluntary administration.

    (2) However, an administrator must not dispose of—

    • (a) any property of a waka umanga that is a protected asset, except with the prior consent of the Court; or

    • (b) in the case of a waka umanga that is a mandated iwi organisation, settlement quota or income shares, within the meaning of the Maori Fisheries Act 2004, except in accordance with that Act.

62 Application of Part 15A of Companies Act 1993
  • (1) Part 15A of the Companies Act 1993 applies in relation to a waka umanga under voluntary administration (with all necessary modifications) as if the waka umanga were a company under voluntary administration under that Act.

    (2) For the purposes of subsection (1), Part 15A of the Companies Act 1993 applies as if every reference in that Part to—

    • (a) company were a reference to the waka umanga; and

    • (b) board were a reference to the rūnanganui board of the waka umanga; and

    • (c) director were a reference to a governor; and

    • (d) Court were a reference to the Māori Land Court; and

    • (e) Registrar were a reference to the Registrar of Waka Umanga.

    (3) This section applies subject to the other provisions of this subpart.

63 Application of section 239AB of Companies Act 1993 to subsidiary of waka umanga
  • Section 239AB(2) and (3) of the Companies Act 1993 do not apply to a company that is a subsidiary of a waka umanga.

Subpart 5Liquidation

64 Resolution to put waka umanga into liquidation
  • (1) A waka umanga may be put into liquidation if—

    • (a) the waka umanga, at a general meeting of its members, passes a resolution appointing a liquidator; and

    • (b) the resolution is confirmed at a subsequent general meeting of the waka umanga called for the purpose and held not earlier than 30 days after the date on which the resolution to be confirmed was passed.

    (2) For the purposes of subsection (1), a resolution is passed or confirmed if the resolution or confirmation is carried by a majority of the valid votes cast by registered members voting at the general meeting in person or by proxy, if so allowed by the charter of the waka umanga.

64 Resolution to put waka umanga into liquidation
  • A waka umanga may be put into liquidation if the waka umanga, at a general meeting of its members, passes a special resolution appointing a liquidator.

64A Appointment of liquidator by board
  • A waka umanga may be put into liquidation by the board appointing a liquidator on the occurrence of an event specified in the charter of the waka umanga.

65 Court may put waka umanga into liquidation
  • (1) A waka umanga may be put into liquidation by the Court appointing a named person or an Official Assignee for a named district to be the liquidator.

    (2) The grounds on which the Court may appoint a liquidator are that—

    • (a) the waka umanga does not have the resources to—

      • (i) comply with this Act; or

      • (ii) pay its debts as and when they fall due for payment; or

    • (ab) the waka umanga or the board has persistently or seriously failed to comply with this Act; or

    • (b) there has been a fundamental change in the circumstances of the members of the waka umanga so that the waka umanga can no longer perform its role; or

    • (c) the Court is satisfied that putting the waka umanga into liquidation accords with the views of the membership of the waka umanga.

66 Application to Court to appoint liquidator
  • An application to the Court for the appointment of a liquidator of a waka umanga may be made by—

    • (a) the rūnanganui board; or

    • (b) at least 1%, or 15 or more of the registered members of the waka umanga, whichever is the greater; or

    • (c) a creditor of the waka umanga; or

    • (d) the Registrar.

67 Application of Companies Act 1993
  • (1) This section applies in the circumstances provided for in sections 64 and 66.

    (2) Parts 16 and 17 of the Companies Act 1993 (to the extent that Part 17 relates to liquidations) apply to—

    • (a) the liquidation of a waka umanga, with any necessary modifications, as if the waka umanga were a company that had been put into liquidation under section 241(2)(a) of that Act; and

    • (b) the application for the appointment of a liquidator, as if the application were an application under section 241(2)(c) of that Act; and

    • (c) the liquidation, as if the liquidator had been appointed under section 241(2)(c) of that Act.

    (3) Subsection (2) applies subject to the other provisions of this subpart and Part 2 of Schedule 3.

    (4) Without limiting subsection (3), the Registrar must not remove a waka umanga from the register without the prior approval of the Court.

68 Appointment of interim liquidator
  • (1) If an application has been made to the Court for an order that a waka umanga be put into liquidation, the Court may, if it is satisfied that it is necessary or expedient for the purpose of maintaining the value of assets owned or managed by the waka umanga, appoint a named person or an Official Assignee for a named district to be an interim liquidator.

    (2) An interim liquidator has the rights and powers of a liquidator to the extent necessary or desirable to maintain the value of assets owned or managed by the waka umanga.

    (3) However, the Court may limit the rights and powers of an interim liquidator as it thinks fit.

    (4) The appointment of an interim liquidator takes effect on the date and at the time when the order appointing the interim liquidator is made.

    (5) The Court must record in the order appointing the interim liquidator the date and the time when the order was made.

    (6) If a question arises as to whether, on the date on which an interim liquidator was appointed, an act was done or a transaction was entered into or effected before or after the time at which the interim liquidator was appointed, the act or transaction must, in the absence of proof to the contrary, be treated as having been done or entered into or effected, as the case may be, after that time.

69 Vesting of surplus assets
  • (1) On the liquidation of a waka umanga and its removal from the Register under Part 17 of the Companies Act 1993, all surplus assets (after payment of all costs, debts, and liabilities) must be disposed of in accordance with this section and the requirements of the charter of the waka umanga, as provided for under subclause (22) of Schedule 2.

    (2) However, subsection (1) does not apply to the extent that—

    • (a) the surplus assets—

      • (i) cannot be disposed of in accordance with the charter of the waka umanga; or

      • (ii) are subject to a trust; or

      • (iii) are protected assets; or

    • (b) it would be inconsistent with this Act to dispose of the surplus assets; or

    • (c) the surplus assets are settlement quota or income shares, within the meaning of the Maori Fisheries Act 2004, which must be dealt with in accordance with that Act.

    (3) Pending an order of the Court under subsection (4), the assets referred to in subsection (2) vest in, and must be held by,—

    • (a) the Māori Trustee; or

    • (b) a trustee company (within the meaning of the Trustee Companies Act 1967) appointed by the Court on the application of the liquidator; or

    • (c) in the case of settlement quota or income shares referred to in subsection (2)(c), Te Ohu Kai Moana Trustee Limited in trust for the iwi under the Maori Fisheries Act 2004.

    (4) For the purposes of subsection (3), the Court may give 1 or more of the following directions:

    • (a) a direction vesting all or any of the assets of the waka umanga, without transfer, conveyance, or assignment, in—

      • (i) an entity representative of the tribal group or Māori association specified in the direction; or

      • (ii) an entity recognised by Te Ohu Kai Moana Trustee Limited as a mandated iwi organisation in the case of settlement quota or income shares:

    • (b) if anything remains to be done to complete any matters outstanding on the liquidation of the waka umanga or to provide for the payment of all costs, debts, and liabilities of and in relation to the waka umanga and its liquidation or dissolution, a direction that may be necessary or expedient to make provision for the completion and payment:

    • (c) a direction conferring on any person the powers that may be necessary or expedient to enable the person to carry out the functions and duties imposed on him or her by any direction given under this section.

70 Directions relating to Land Transfer Act 1952 land
  • (1) This section applies in relation to a direction under section 69 that vests any estate or interest in land under the Land Transfer Act 1952 in any entity.

    (2) The Registrar-General of Land, on application made to him or her by the entity concerned, must make such entries in the register and generally do all the things that may be necessary to give effect to the direction.

    (3) For the purposes of subsection (2), the person making the application must—

    • (a) make the application in the prescribed form, if one has been prescribed; and

    • (b) deposit such documents or plans as the Registrar-General of Land may require.

Subpart 6Subsidiaries

71 Interpretation
  • In this subpart, in relation to a subsidiary,—

    controlling body means—

    • (a) the company’s board, in the case of a company under the Companies Act 1993:

    • (b) in the case of any other entity, the persons who govern or supervise the affairs and activities of the entity

    director means a person (whether called a director, trustee, or by some other designation) who is, or is a member of, the controlling body of the subsidiary.

72 Requirements relating to new Waka umanga may have subsidiaries
  • (1) A waka umanga may establish or disestablish a new subsidiary, but only if—

    • (a) the rūnanganui of the waka umanga has adopted a policy on subsidiaries that is consistent with the long-term plan of the waka umanga; and

    • (b) the policy has been adopted by the waka umanga in accordance with the relevant provisions of this Act and the charter for the approval of major transactions; and

    • (c) the waka umanga has, for the purposes of this section, acted in accordance with the policy.

    (1) A waka umanga may establish 1 or more subsidiaries to facilitate it meeting its objectives.

    (2) To avoid doubt, this section does not apply to any subsidiaries of an existing entity.

    (3) A subsidiary must have a statement of intent that complies with Part 2 of Schedule 4.

    (4) Further provisions relating to subsidiaries are set out in Part 1 of Schedule 4.

Part 4
Dispute resolution

Subpart 1Resolution of internal disputes

73 Meaning of internal dispute
  • (1) In this Act, unless the context otherwise requires, internal dispute means—

    • (a) a dispute arising between a registered member, or person claiming to be eligible to a registered member, and a waka umanga or any of its constituent groups, in relation to—

      • (i) membership of the waka umanga:

      • (ii) the rights and obligations of registered members:

      • (iii) a decision of the rūnanganui of the waka umanga:

      • (iv) a decision of a governor or employee of the waka umanga, acting in the capacity of a governor or employee, as the case may be:

      • (v) requests for information under clause 21 of Schedule 3, to the extent permitted by clause 22(6) of Schedule 3:

      • (vi) other matters arising under this Act affecting that registered member; and

    • (b) a dispute between or among constituent groups or subsidiaries and a waka umanga relating to—

      • (i) their respective rights and obligations under this Act or the charter:

      • (ii) any of the matters under paragraph (a)(iii) to (vi).

    (2) However, an internal dispute does not include—

    • (a) matters that are within the exclusive jurisdiction of the Court under—

      • (i) Te Ture Whenua Maori Act 1993; or

      • (ii) the Maori Fisheries Act 2004; or

      • (iii) the Foreshore and Seabed Act 2004; or

      • (iv) the Maori Commercial Aquaculture Claims Settlement Act 2004; or

    • (b) matters that are, by virtue of an enactment, within the exclusive jurisdiction of another court or tribunal.

73 Meaning of internal dispute
  • (1) In this Act, unless the context otherwise requires, internal dispute means—

    • (a) a dispute arising between a registered member, or person claiming to be eligible to be a registered member, and a waka umanga or any of its constituent groups, in relation to membership of the waka umanga:

    • (b) a dispute that the charter of a waka umanga specifies as an internal dispute for the purposes of this section.

    (2) However, an internal dispute does not include—

    • (a) matters that are within the exclusive jurisdiction of the Court under—

      • (i) Te Ture Whenua Maori Act 1993; or

      • (ii) the Maori Fisheries Act 2004; or

      • (iii) the Foreshore and Seabed Act 2004; or

      • (iv) the Maori Commercial Aquaculture Claims Settlement Act 2004; or

    • (b) matters that are, by virtue of an enactment, within the exclusive jurisdiction of another court or tribunal.

74 Charter must include dispute resolution requirements
  • (1) The charter of every waka umanga must provide, in respect of internal disputes, 1 or more dispute resolution processes—

    • (a) that are consistent with the principles of natural justice; and

    • (b) that provide, as far as practicable, for resolution of internal disputes by the parties concerned; and

    • (c) that a party must follow before that party is entitled to issue proceedings in relation to an internal dispute, unless—

      • (i) section 84(1)(b) applies; or

      • (ii) an interim injunction is sought under section 87; and

    • (c) that a party must follow before that party is entitled to issue proceedings in relation to an internal dispute.

    • (d) with procedures relevant for the implementation of the prescribed dispute resolution processes, including matters such as any timetable requirements.

    (2) The charter may provide for internal disputes to proceed through more than 1 kind of dispute resolution process, by commencing with the least formal process and, if the internal dispute is not resolved, proceeding to a more formal process.

    (3) To comply with subsection (1), a waka umanga may—

    • (a) adopt 1 or all of the dispute resolution processes set out in Schedule 5; or

    • (b) vary those processes in accordance with its own tikanga, as long as the condition specified in subsection (1)(a) is met.

    (3) To comply with subsection (1), a waka umanga may, but is not required to, adopt the dispute resolution process set out in Schedule 5.

74A Provision of information about membership disputes
  • If an internal dispute relates to the membership of a person, the waka umanga must provide to the person who is to determine the dispute all relevant information in the possession of the waka umanga.

75 Disputes with other entities
  • (1) If a dispute arises between a waka umanga and a party that is not subject to a dispute resolution process under this subpart, the parties may consent in writing to refer the dispute to a dispute resolution process under this subpart.

    (2) A referral under subsection (1) does not prejudice any rights the parties may have under other enactments or the common law.

75 Decision binding on parties
  • A decision made in accordance with a process in the charter for resolving an internal dispute is binding on the parties.

75A Prejudiced members
  • (1) A registered member or former registered member of a waka umanga who considers that the affairs of the waka umanga have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the waka umanga have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to the member in his or her capacity as a registered member or in any other capacity, may apply to the High Court for an order under this section.

    (2) If, on an application under this section, the High Court considers it just and equitable to do so, it may make such orders as it thinks fit.

    (3) Without limiting subsection (2), the High Court may make an order under that subsection—

    • (a) regulating the future conduct of the waka umanga's affairs; or

    • (b) altering or adding to the waka umanga's charter; or

    • (c) appointing a receiver of the waka umanga; or

    • (d) directing the rectification of the records of the waka umanga; or

    • (e) putting the waka umanga into liquidation; or

    • (f) setting aside any action taken by the waka umanga or the board in breach of this Act or the charter of the waka umanga.

    (4) No order may be made against a waka umanga or any other person under subsection (2), unless the waka umanga or the person is a party to the proceedings in which the application is made.

    (5) No application may be made under this section if that application is, or is substantially, an internal dispute as defined in section 73.

75B Lack of quorum and actions inconsistent with Act or charter
  • A registered member or governor of a waka umanga, the Registrar, or (with the leave of the Court) any other person may apply to the High Court for relief on the ground that, at any time after the registration of the waka umanga—

    • (a) the board of the waka umanga cannot function because of a lack of quorum; or

    • (b) any governor or employee of the waka umanga has acted, is acting, or proposes to act in the manner than is inconsistent with this Act or the charter of the waka umanga.

75C Orders that may be made for purposes of section 75B
  • (1) If the High Court considers it appropriate to do so, the High Court may grant such orders as it thinks fit for the purposes of section 75B.

    (2) Without limiting the orders the Court may make under subsection (1), the High Court may make an order—

    • (a) regulating the future conduct of the waka umanga's affairs; or

    • (b) altering or adding to the waka umanga's charter; or

    • (c) appointing a voluntary administrator of the waka umanga; or

    • (d) directing the rectification of the records of the waka umanga; or

    • (e) putting the waka umanga into liquidation; or

    • (f) setting aside any action taken by the waka umanga or the board in breach of this Act or the charter of the waka umanga; or

    • (g) requiring the waka umanga or any other person to pay compensation to a person.

75D Transfer of proceedings from High Court to Māori Land Court
  • (1) If the High Court is of the opinion that an issue in a proceeding under section 75A would be more appropriately dealt with by the Māori Land Court because the issue involves the interpretation, practice, or application of tikanga, the High Court may refer the issue to the Māori Land Court for its opinion.

    (2) If the High Court is of the opinion that an application for relief under section 75B or any issue relating to the application would be more appropriately dealt with by the Māori Land Court because it involves the interpretation, practice, or application of tikanga, the High Court may refer the application or issue to the Māori Land Court for its determination or opinion.

    (3) The High Court may refer an application or any issue relating to an application either on its own motion or on the application of 1 or more parties to the application.

75E Striking out applications
  • The Māori Land Court may strike out, in whole or in part, an application transferred to it under section 75D if the Court is satisfied that the application, in whole or in part,—

    • (a) discloses no reasonable cause of action; or

    • (b) is likely to cause prejudice, embarrassment, or delay; or

    • (c) is frivolous, vexatious, or otherwise an abuse of process of the Court.

Subpart 2Applications to Māori Land Court

Jurisdiction of Court

76 Application of Te Ture Whenua Maori Act 1993
  • (1) The following provisions of Te Ture Whenua Maori Act 1993 apply, with the necessary modifications, to the jurisdiction of the Māori Land Court under this Act:

    • (a) sections 6 to 16 (which relate to the appointment and tenure of Judges); and

    • (b) section 24A (which provides for the powers of the Court under the Contracts (Privity) Act 1982 and the Contractual Remedies Act 1979); and

    • (c) sections 34 and 35 (which relate to additional members); and

    • (d) section 38 (which relates to the exercise of the powers of the Court by a Judge); and

    • (e) section 40 (which relates to the power of a Judge to refer matters to a Registrar of the Court); and

    • (f) sections 42 and 43 (which relate to orders of, and rehearings by, the Court); and

    • (g) the provisions of Part 3, but—

      • (i) only to the extent that they relate to the Māori Land Court; and

      • (ii) in any case, not including sections 76, 77, 82 to 84, or 87; and

    • (h) provisions of Te Ture Whenua Maori Act 1993 expressly applied by or under this Act.

    (2) The rest of the provisions of Te Ture Whenua Maori Act 1993 do not apply to the jurisdiction of the Court under this Act.

    (3) To the extent that they are not inconsistent with this Act, the Māori Land Court Rules 1994, or any alternative or additional rules made under section 95 of Te Ture Whenua Maori Act 1993, apply to the jurisdiction of the Court under this Act.

    (4) Subpart 3 and Schedule 6 apply to the jurisdiction of the Court under this subpart.

77 Application of Part to mandated iwi organisations and iwi aquaculture organisations
  • (1) This section applies to mandated iwi organisations and iwi aquaculture organisations that are, or are seeking to form and be registered as, waka umanga.

    (2) If, and to the extent that, an application under this subpart relates predominantly to Māori commercial fisheries or aquaculture activities—

    • (a) this subpart does not apply to that dispute; and

    • (b) the matter must be determined under the Maori Fisheries Act 2004 or the Maori Commercial Aquaculture Claims Settlement Act 2004, as the case may be.

    (3) However, if a dispute includes, but is not predominantly related to Māori commercial fisheries or aquaculture activities, the matter must be determined under this Act.

Disputes relating to formation and registration of waka umanga

78 Declarations in relation to formation of waka pū
  • (1) At any time before applying to register a waka pū under subpart 3 of Part 2, a tribal group seeking to form and register a waka pū may apply to the Court for declarations under section 80(2) that—

    • (a) the charter complies with this Act:

    • (b) the process for the adoption of the charter by the tribal group is adequate.

    (2) In proceedings under this section, the entities and constituent groups referred to in section 20(1)(b) are entitled to appear and be heard without leave of the Court.

    (3) However, an entity or constituent group referred to in section 20(1)(b) is not permitted to apply for a review under section 79 unless there has been a significant change in the charter or the process for its adoption approved by the Court.

    (4) The Attorney-General and entities referred to in section 21(2)(b) may, in relation to an application for a declaration under this section, appear and be heard on matters relating to the status of a waka pū as the legitimate representative of the tribal group, either at the request or with the leave of the Court.

79 Review of formation process and charter
  • (1) This section applies to an entity or constituent group that—

    • (a) has, or should have, been provided with a copy of the charter under section 20(1)(b); and

    • (b) is directly affected by the proposal to form and register a waka umanga.

    (2) Before a waka umanga is registered under subpart 3 of Part 2, an entity or constituent group may, if entitled to do so under subsection (1), apply to the Court for orders under section 80.

    (3) The only grounds for review under this section are that the applicant is, or is likely to be, prejudicially affected because—

    • (a) the charter does not comply with this Act:

    • (b) a tribal group or constituent group is unreasonably—

      • (i) excluded from the waka umanga; or

      • (ii) included in the waka umanga:

    • (c) an existing entity already represents, and has a current mandate from, the tribal group:

    • (d) the applicant did not have an adequate opportunity to be heard in the consultation process provided for under section 20:

    • (e) in the case of the charter of a tribal group wishing to form a waka pū,—

      • (i) there is insufficient clarity in the charter about those matters on which a waka pū is to be the legitimate representative of the tribal group under section 9(1)(c):

      • (ii) it is inappropriate for reasons such as economy of scale for the waka pū to be the legitimate representative of the tribal group on a matter defined in the charter:

    • (f) the proposed name of the waka umanga is not appropriate.

    (4) The Attorney-General and entities referred to in section 21(2)(b) may, with the leave of the Court,—

    • (a) apply to review the formation process or charter of a waka umanga under this section, but only on matters relating to the status of a waka pū as the legitimate representative of a tribal group; or

    • (b) appear and be heard in an application under this section, but only on matters relating to the status of a waka pū as the legitimate representative of a tribal group.

80 Determinations in respect of formation and charter of waka umanga
  • (1) In determining an application under section 78 or 79, the Court—

    • (a) must consider, in relation to the process by which the charter is or is proposed to be prepared, consulted on, and notified, whether—

      • (i) consultation with the affected entities or constituent groups is adequate; and

      • (ii) the process (or the proposed process) is fair for deciding whether to include or exclude a particular constituent group in or from the waka umanga; and

      • (iii) the process for notifying and adopting the charter is fair; and

    • (b) may determine whether the charter—

      • (i) has adequate voting procedures, including appropriate criteria to determine who may vote at the meetings of the tribal group, constituent groups, or the Māori association, as the case may be:

      • (ii) makes adequate provision for the tikanga and traditional decision making of the tribal group (provided these do not conflict with the requirements of natural justice and human rights):

      • (iii) in any other respects, makes provision for a fair process to be followed by the waka umanga.

    (2) In relation to an application under section 78, the Court may—

    • (a) make the declarations sought; or

    • (b) make orders as appropriate under subsection (3).

    (3) In relation to applications under section 78 or 79, if the Court finds that the applicants (or those opposing an application, as the case may be) are, or are likely to be, unduly prejudiced by the charter, it may, by order,—

    • (a) refer the matter back to the tribal group or Māori association with any directions necessary to ensure that—

      • (i) the relevant matters are reconsidered:

      • (ii) any proposed amendments to the charter are considered:

      • (iii) a fair process is undertaken:

    • (b) direct 1 or more of the parties on any requirements for further consultation, including such matters as—

      • (i) whether meetings ought to be convened; and

      • (ii) the time, place, and agenda for any meetings; and

      • (iii) any voting requirements:

    • (c) with the consent of the parties, refer the matter to a mediator appointed by the Court in accordance with clause 6(1)(c) of Schedule 6:

    • (d) direct that changes be made to the draft charter, to ensure that—

      • (i) it complies with this Act:

      • (ii) a remedy is provided for the prejudice identified by the Court:

    • (e) grant leave for 1 or more of the parties to bring the matter back to the Court if, in relation to directions made under paragraph (d),—

      • (i) implementation is not practicable; or

      • (ii) implementation does not occur within a reasonable period of time:

    • (f) direct that the proposed name of the waka umanga be changed.

Limits to jurisdiction of Court in disputes relating to formation of waka umanga

81 Limitation on orders that Court may make
  • The Court must not, in respect of any applications under section 78 or 79, make orders as to—

    • (a) the merits of a proposal to form and register a waka umanga, unless the parties consent to the Court doing so; or

    • (b) the most appropriate representatives of a tribal group or Māori association.

Objections to registration

82 Notice of objection to registration
  • (1) This section applies to—

    • (a) an entity or constituent group that—

      • (i) has, or should have, been provided with a copy of the charter under section 20(1)(b); and

      • (ii) is directly affected by a proposal to register a waka umanga; and

    • (b) in relation to the proposed name of a waka umanga, any entity adversely affected by the proposed name.

    (2) An entity or constituent group referred to in subsection (1) that is directly affected by a proposal to register a waka umanga may, with the leave of the Court,—

    • (a) file a notice of objection to the intended registration of a waka umanga; and

    • (b) seek orders under section 83.

    (3) An application for leave of the Court, together with the intended notice of objection, must be filed within 20 working days of the latest notice published under section 30(2).

    (4) The only grounds for objection to the registration of a waka umanga are—

    • (a) that the waka umanga lacks a sufficient mandate of the tribal group or Māori association seeking to form and register the waka umanga; and

    • (b) the grounds set out in section 79(3).

    (5) The Court may grant leave for the objection to be heard if, and only if, it is satisfied that the notice of objection raises a matter that—

    • (a) was not, and could not have been, raised and dealt with in an application for review under section 78 or 79, whether or not any application was made under either section; or

    • (b) was raised in an application under section 79, but has not been resolved.

    (6) The applicant must serve a copy of the application for leave and the notice of objection on the Registrar.

    (7) The Attorney-General and entities referred to in section 21(2)(b) may apply for leave of the Court—

    • (a) to object to the registration of a waka umanga, but only on matters relating to the status of a waka pū as the legitimate representative of a tribal group; or

    • (b) to appear and be heard in an application under this section, but only on matters relating to the status of a waka pū as the legitimate representative of a tribal group.

83 Orders relating to objection to registration
  • (1) If the Court grants leave under section 82 for a party to object to the registration of a waka umanga, the Court may—

    • (a) dismiss the objection and direct that the waka umanga be registered as proposed, as long as the Court is satisfied that—

      • (i) a majority of the registered members of the waka umanga and any constituent groups have voted in favour of the proposal; and

      • (ii) the prejudice to the whole tribal group from including or excluding a constituent group would be likely to exceed the prejudice to that constituent group by its inclusion or exclusion; or

    • (b) make the orders provided for in section 80(3).

    (2) If a matter is brought back before the Court by order under section 80(3)(e), the Court—

    • (a) may dismiss the objection if it is satisfied that the criteria in subsection (1)(a) are met; or

    • (b) if the Court is not satisfied that the criteria in subsection (1)(a) are met, must direct that either—

      • (i) the application for registration be withdrawn; or

      • (ii) the matter be referred back to the tribal group or Māori association under section 80(3)(a).

    (3) Orders made under this section must be served on the Registrar by the Court.

Internal disputes and other disputes relating to governance or management of waka umanga

84 Applications to Court relating to internal disputes
  • (1) Applications may be made to the Court by 1 or more parties in relation to an internal dispute, if—

    • (a) the dispute resolution processes provided for by the charter have been undertaken in good faith in relation to the internal dispute, but have failed to resolve it:

    • (b) in the opinion of the Court, it is inappropriate to order the parties to engage or further engage in a dispute resolution process:

    • (c) timetable or other procedural requirements set out in the charter for a dispute resolution process have not been complied with:

    • (d) a settlement agreement entered into in the course of a dispute resolution process has not been complied with in accordance with the terms of that agreement.

    (2) If the Court is satisfied that the parties have taken reasonable steps to resolve the dispute under subpart 1, the Court may make orders it considers appropriate, including—

    • (a) an order to refer a matter to a mediator appointed by the Court under clause 6(1)(c) of Schedule 6; and

    • (b) any orders under section 86(2).

85 Applications relating to governance or management
  • (1) Applications may be made to the Court for relief on the grounds that, at any time after the registration of a waka umanga,—

    • (a) the waka umanga, its rūnanganui, any governor, or any employee of the waka umanga, has acted, is acting, or proposes to act in a manner that is inconsistent with this Act or the charter of the waka umanga; or

    • (b) the rūnanganui of the waka umanga cannot function because of—

      • (i) the lack of a quorum; or

      • (ii) substantial disagreement; or

    • (c) there is a proposal under section 46(1)(a) to amend the charter of the waka umanga in a manner that the applicant alleges to be inappropriate, for reasons such as those set out in section 79(3).

    (2) Not later than 20 working days after 1 or more of the grounds under subsection (1) has arisen or could reasonably have been known to arise, the following persons may apply to the Court for 1 or more orders under section 86:

    • (a) in relation to the grounds under subsection (1)(a) and (b),—

      • (i) at least 1%, or 15 or more of the registered members, of the waka umanga:

      • (ii) the Registrar:

      • (iii) a secured creditor of the waka umanga; and

    • (b) in relation to the ground under subsection (1)(c),—

      • (i) the persons referred to in paragraph (a):

      • (ii) the Attorney-General and entities referred to in section 21(2)(b).

    (3) A Judge may waive the requirement of subsection (2)(a) if the Judge is satisfied that the application—

    • (a) requires an urgent hearing, and it is not practicable to require the application to be made by the required number of people; or

    • (b) affects fewer than the specified number of persons.

86 Orders to resolve governance and management matters
  • (1) In relation to applications under section 85(1)(a) and (b), the Court may make 1 or more of the orders specified in subsection (2), but only if the Court is satisfied that—

    • (a) the applicant has made out 1 or more of the grounds in section 85; and

    • (b) the making of an order is the most appropriate way to remedy the matter in relation to which an order is sought; and

    • (c) the matter does not relate to the jurisdiction of the Court under the Maori Fisheries Act 2004 or the Maori Commercial Aquaculture Claims Settlement Act 2004.

    (2) An order may be made under subsection (1)

    • (a) to appoint 1 or more persons to review and prepare a report on the activities and operations of the rūnanganui and the waka umanga:

    • (b) to require the rūnanganui, a governor, or an employee of the waka umanga to act or refrain from acting in accordance with this Act or its charter:

    • (c) to declare a provision of the charter or of a governance document of the waka umanga required by section 58 to be inconsistent with this Act:

    • (d) with the consent of the parties,—

      • (i) in the case of a matter that could be dealt with as an internal dispute, to refer it to a dispute resolution process provided for by the charter; or

      • (ii) to refer any matter to a mediator appointed by the Court under clause 6(1)(c) of Schedule 6 or to another agreed dispute resolution process:

    • (e) to remove a governor if the governor is not eligible to hold office under the provisions of this Act or of the charter:

    • (f) to remove a governor if—

      • (i) the governor has failed to comply with any obligation imposed on a governor by this Act or the charter of the waka umanga; or

      • (ii) it is in the best interests of the waka umanga to remove the governor:

    • (g) to require an election to be held to fill a vacancy in the rūnanganui:

    • (h) to appoint 1 or more persons to be temporary governors for a specified period not exceeding 1 year, or until a specified event occurs or for specified purposes (including, for example, an order to call an election):

    • (i) to suspend some or all of the powers and functions of the rūnanganui and appoint a commissioner to exercise the suspended powers and functions for a specified period or until a specified event occurs or for specified purposes:

    • (j) to require the waka umanga or a governor to pay such compensation as the Court thinks fit to a registered member or group of registered members of the waka umanga who have suffered loss as a result of the waka umanga or governor failing to comply with any duties imposed on the waka umanga or governor by or under this Act:

    • (k) to remedy any matters made out by the applicant.

    (3) In relation to applications under section 85(1)(c), the Court may, as it thinks fit, make the following orders:

    • (a) orders under subsection (2) that are relevant in the circumstances:

    • (b) orders under section 80(3) that are relevant in the circumstances:

    • (c) an order that the parties undertake further consultation—

      • (i) with the persons or entities that the Court directs:

      • (ii) on the matters that the Court directs:

      • (iii) in the manner that the Court directs.

    (4) If the dispute referred to the Court under section 85(1)(c) is not resolved under subsection (3), the Court may—

    • (a) require, or grant leave for, 1 or more parties to bring the matter back to Court; and

    • (b) after hearing the parties and persons or entities (if any) appearing with the leave of the Court, make orders—

      • (i) confirming the proposed amendments to the charter; or

      • (ii) rejecting the proposed amendments to the charter; or

      • (iii) amending the terms of the charter in relation to the ground for an application set out in section 85(1)(c).

    (5) An order made under subsection (2)(a) to (k) may be made on the terms and conditions that the Court considers appropriate.

Injunctive relief

87 Injunctions
  • (1) The High Court may, at any time, by order, grant an interim injunction in relation to an application made, or notice of objection filed, under this subpart Part to—

    • (a) prohibit a defendant to the proceedings from taking further action in relation to a matter that is the subject of the proceedings while the proceedings are before the Court:

    • (b) restrain a person or entity from a threatened or actual breach of this Act or the charter of a waka umanga.

    (2) The High Court may make orders under subsection (1) if, in the opinion of the Court,—

    • (a) it is necessary to do so to preserve the position of the applicant; and

    • (b) the waka umanga, its governors, its employees, or any of its constituent groups, subsidiaries, or registered members may be acting, or may intend to act in a manner contrary to this Act or the charter of the waka umanga.

    (3) The High Court may also, in relation to an application for an interim injunction,—

    • (a) record an undertaking by a defendant not to take an action that is the subject of the proceedings:

    • (b) require an applicant to give an undertaking in respect of damages—

      • (i) that are sustained by any other party through the granting of the interim injunction; and

      • (ii) that the Court decides the applicant ought to pay:

    • (c) fix security for costs and order any payment into the Court:

    • (d) set the proceedings down for an urgent substantive hearing:

    • (e) make other interim orders that the Court considers fit.

    (4) An interim injunction must not be granted without notice being served on all parties, unless the High Court is satisfied that—

    • (a) it would cause undue prejudice to the applicant to require the application to proceed on notice; or

    • (b) the interests of justice require the application to be determined without notice being served on all parties.

    (5) A final injunction may be granted only if—

    • (a) the High Court is satisfied that there has been a breach of this Act or of the charter of a waka umanga; and

    • (b) notice has been served on all parties; and

    • (c) the High Court has heard from all parties.

    (6) If the Registrar is not a party to proceedings under this section, the Chief Registrar of the Māori Land Court must, as soon as is reasonably practicable, notify the Registrar of any orders made under this section.

Subpart 3Transfer of proceedings and rights to appeal

Transfer to High Court

88 Transfer of proceedings to High Court
  • (1) An application to the Māori Land Court under this Act may, at any time before the proceedings are heard and finally disposed of in that Court, be transferred to the High Court by the Māori Land Court.

    (2) If all the parties to the proceedings consent to transferring the proceedings, the Māori Land Court must order the transfer unless—

    • (a) there are related proceedings in the Māori Land Court; and

    • (b) the interests of justice require that they be heard together.

    (3) However, if an application to transfer proceedings is opposed by a party or if the Māori Land Court of its own motion proposes to transfer proceedings, that Court must, before determining whether or not to transfer proceedings, consider—

    • (a) the views of all the parties; and

    • (b) whether the dispute that is the subject of the application relates primarily to tikanga Māori or other matters within the specialist expertise of the Māori Land Court; and

    • (c) whether there are related proceedings in the Māori Land Court or the High Court; and

    • (d) where the balance of convenience lies for the parties, having regard to the likely costs and any delay; and

    • (e) whether the proceedings raise issues of public importance that should be determined at first instance by the High Court; and

    • (f) any other matter that, in the opinion of the Māori Land Court, it should have regard to in the public interest.

    (4) The Chief Registrar of the Māori Land Court must, as soon as is reasonably practicable, notify the Registrar of any proceedings transferred to the High Court under this section.

Appeals

89 Appeals to High Court
  • (1) Appeals against the whole or part of any interlocutory or final order of the Māori Land Court under this Act may be made only to the High Court.

    (2) However, an appeal must not be brought under subsection (1) if, before a final order of the Māori Land Court is made, all parties to the proceedings agreed in writing not to appeal against an order of the Māori Land Court in those proceedings.

    (3) An appeal against an interlocutory order of the Māori Land Court may only be made by leave of that Court or, if leave is declined, by leave of the High Court.

    (4) Every appeal and application for leave to appeal under this section must be served on the Registrar.

90 Scope of appeal rights
  • An appeal to the High Court may be brought by—

    • (a) a party to the proceedings in which an order under appeal is made by the Māori Land Court; or

    • (b) any other person materially affected by that order.

91 Hearing of appeal
  • (1) An appeal to the High Court is by way of rehearing.

    (2) No party to the appeal may produce evidence that was not produced in the Māori Land Court.

    (3) However, the High Court may allow further evidence to be produced if, in its opinion, it is necessary to enable a just determination of the appeal.

92 Powers of High Court on appeal
  • In determining an appeal under this subpart, the High Court may—

    • (a) make the decision it thinks should have been made by the Māori Land Court; or

    • (b) direct the Māori Land Court to rehear the proceedings as a whole or any specified part of the proceedings; or

    • (c) make any further orders that it thinks fit, including orders as to costs.

93 Appeals to Court of Appeal
  • (1) A party may, without leave, appeal to the Court of Appeal in relation to a matter transferred from the Māori Land Court to the High Court under section 75G or 88.

    (2) A party may appeal to the Court of Appeal against a determination of the High Court under section 92 on a point of law—

    • (a) by leave of the High Court; or

    • (b) if leave is declined by the High Court, by leave of the Court of Appeal.

    (3) Every appeal and application for leave to appeal made under this section must be served on the Registrar.

94 Appeals to Supreme Court
  • (1) A party to an appeal under section 93 may, with the leave of the Supreme Court, appeal on a point of law to the Supreme Court against all or part of a determination of the Court of Appeal.

    (2) Every application for leave to appeal and every appeal under this section must be served on the Registrar.

Part 5
Transitional provisions for existing entities, establishment of Waka Umanga Secretariat, and miscellaneous matters

Subpart 1Registration of existing entities as waka umanga

Maori Trust Boards

95 When Maori Trust Board may apply for registration as waka umanga
  • (1) A Maori Trust Board may apply to be registered as a waka umanga if—

    • (a) a resolution authorising the Board to do so is passed at a duly constituted meeting of the Board by not less than 75% of the Board’s members who are present and cast a valid vote; and

    • (b) the resolution passed under paragraph (a) is confirmed in a postal ballot of the Board’s adult beneficiaries by not less than 75% of the adult beneficiaries who cast a valid vote; and

    • (c) the Minister of Māori Affairs has (whether before or after the passing of the resolution under paragraph (a) or the confirmation of the resolution under paragraph (b)) given his or her consent in writing to the Board applying to be registered as a waka umanga; and

    • (d) it has prepared, notified, and adopted a charter in accordance with sections 19 to 21.

    (2) A postal ballot conducted for the purposes of subsection (1)(b) must be conducted in accordance with the provisions of the Maori Trust Boards Act 1955 relating to the election of members by postal ballot, and those provisions (with all necessary modifications) apply accordingly.

96 Maori Trust Board to comply with Part 2
  • (1) A Maori Trust Board that is authorised under section 97 to apply for registration as a waka umanga must, as soon as is reasonably practicable, seek registration as a waka umanga in accordance with subpart 3 of Part 2.

    (2) For the purposes of section 28, an application by a Maori Trust Board for registration as a waka umanga must include, in addition to the matters specified in that section,—

    • (a) copies of the resolution, confirmation, and consent required under section 95(1); and

    • (b) a copy of the roll of adult beneficiaries prepared under section 42 of the Maori Trust Boards Act 1955; and

    • (c) a statutory declaration by a member of the Board stating either—

      • (i) that the membership of the waka umanga will comprise the same persons as in the copy of the roll provided under paragraph (b); or

      • (ii) that the membership of the waka umanga will not be the same as in the copy of the roll provided under paragraph (b), indicating in general terms how and why the membership differs; and

    • (d) a copy of the Board’s most recent statement furnished to the Minister of Māori Affairs under section 32 of the Maori Trust Boards Act 1955 (together with the documents required to accompany it), and the Minister’s approval under section 32(2) of that Act; and

    • (e) a list of the members of the Board and the date on which each person was elected as a member of the Board.

    (3) The Registrar must not register a Maori Trust Board as a waka umanga until an Order in Council is made under section 97.

97 Order in Council required
  • (1) The Governor-General may, by Order in Council, declare that a Maori Trust Board, on and from the date of its registration as a waka umanga, ceases to be a Maori Trust Board.

    (2) An Order in Council under subsection (1) may be made only—

    • (a) on the recommendation of the Minister of Māori Affairs; and

    • (b) after the Minister of Māori Affairs has been advised by the Registrar that the registration of the Maori Trust Board as a waka umanga is ready to proceed.

98 Effect of registration as waka umanga
  • (1) On and from the date on which the Maori Trust Board is registered as a waka umanga, the Maori Trust Board ceases to be a Maori Trust Board under the Maori Trust Boards Act 1955, and that Act ceases to apply to it.

    (2) The registration of a Maori Trust Board as a waka umanga does not—

    • (a) create a new legal entity; or

    • (b) affect proceedings by or against the Maori Trust Board immediately before its registration as a waka umanga.

    (3) The property, rights, and obligations of the Maori Trust Board immediately before its registration as a waka umanga become the property, rights, and obligations of the waka umanga.

    (4) Proceedings that could have been commenced or continued by or against the Maori Trust Board before its registration as a waka umanga may be commenced or continued by or against the waka umanga.

99 Continuation of certain provisions of Maori Trust Boards Act 1955
  • (1) Despite section 98, if a provision of the Maori Trust Boards Act 1955 specified in subsection (2) applied to a Maori Trust Board immediately before its registration as a waka umanga, the provision continues to apply as if the waka umanga were the Maori Trust Board concerned.

    (2) The provisions are sections 10(2) and (3), 19A, 24A, and 41A of the Maori Trust Boards Act 1955.

100 Final accounts of Maori Trust Board registered as waka umanga
  • (1) As soon as is reasonably practicable after the registration of a Maori Trust Board as a waka umanga, the waka umanga must cause final accounts of the Maori Trust Board to be prepared as at the close of the day immediately before the date on which it was registered as a waka umanga.

    (2) A copy of the final accounts, together with a copy of the report of the Auditor-General on the accounts, must—

    • (a) be sent by the waka umanga to the Minister of Māori Affairs; and

    • (b) be presented to the House of Representatives by the Minister of Māori Affairs as soon as practicable after they are received by the Minister.

Incorporated societies

101 When incorporated society may apply for registration as waka umanga
  • (1) The officers of an incorporated society may apply for the incorporated society of which they are officers to be registered as a waka umanga if—

    • (a) the society at a general meeting of its members passes a resolution authorising the society’s officers to do so; and

    • (b) the resolution passed under paragraph (a) is confirmed by another resolution passed at a general meeting of the society’s members held not earlier than 30 days after the date on which the resolution to be confirmed was passed.

    (2) In subsection (1), resolution means a resolution carried by a majority of the valid votes cast by members voting—

    • (a) at the general meeting in person; or

    • (b) if allowed by the society’s rules, by proxy.

102 Incorporated society to comply with Part 2
  • (1) The officers of an incorporated society authorised under section 101 to apply for registration of the society as a waka umanga must, as soon as is reasonably practicable, proceed to apply for the society to be registered as a waka umanga in accordance with subpart 3 of Part 2.

    (2) For the purposes of section 28, an application to register an incorporated society as a waka umanga must include copies of the resolutions passed under section 101(1).

    (3) If changes are needed to the constitutional documents of an incorporated society for the purpose of complying with this Act, those changes must be ratified in the manner provided for by section 101(1) in respect of the application of the incorporated society to be registered as a waka umanga.

103 Effect of registration as waka umanga
  • (1) On and from the date on which an incorporated society is registered as a waka umanga, the society—

    • (a) ceases to be an incorporated society under the Incorporated Societies Act 1908, and that Act ceases to apply to it; and

    • (b) becomes a waka umanga.

    (2) The registration of an incorporated society as a waka umanga does not—

    • (a) create a new legal entity; or

    • (b) affect proceedings by or against the society immediately before its registration as a waka umanga.

    (3) The property, rights, and obligations of the incorporated society immediately before its registration as a waka umanga become the property, rights, and obligations of the waka umanga.

    (4) Proceedings that could have been commenced or continued by or against the incorporated society before its registration as a waka umanga may be commenced or continued by or against the waka umanga.

104 Final accounts and notice of registration
  • (1) As soon as is reasonably practicable after the registration of an incorporated society as a waka umanga comes into effect, the waka umanga must—

    • (a) cause to be prepared final accounts of the incorporated society as at the close of the day immediately before the date on which its registration as a waka umanga came into effect; and

    • (b) give written notice to the Registrar of Incorporated Societies that the incorporated society has been registered as a waka umanga.

    (2) A copy of the final accounts required by subsection (1)(a) must be made available—

    • (a) to the Registrar of Incorporated Societies; and

    • (b) on request, to any person who, immediately before the registration of the incorporated society as a waka umanga, was a member of the incorporated society.

Trusts (other than charitable trusts)

105 Application
  • Sections 106 to 109 do not apply to a trust that is a charitable trust.

106 When trustees may apply to register waka umanga
  • (1) The trustees of a trust may apply to register a waka umanga to which section 108 would apply if the waka umanga were registered.

    (2) The trustees may apply under subsection (1) only if—

    • (a) a resolution authorising the trustees to do so is passed at a duly constituted meeting of the adult beneficiaries of the trust by not less than 75% of the adult beneficiaries who are present and cast a valid vote; and

    • (b) the resolution passed under paragraph (a) is confirmed at a subsequent meeting of adult beneficiaries by not less than 75% of the adult beneficiaries who are present and cast a valid vote; and

    • (c) the High Court has approved the resolution and the confirmation of the resolution.

    (3) For the purposes of subsection (2), a meeting of adult beneficiaries must not be held unless a written notice is sent to each adult beneficiary—

    • (a) at least 1 month before the date of the meeting; and

    • (b) specifying the date, time, place, and purpose of the meeting.

    (4) The High Court must not approve a resolution and its confirmation under this section unless satisfied that the adult beneficiaries who did not vote in favour of the resolution or its confirmation will not be unfairly prejudiced by the registration of the trust as a waka umanga.

107 Trustees to comply with Part 2
  • (1) Trustees authorised under section 106 to apply to register a waka umanga must, as soon as is reasonably practicable, proceed to seek registration of the waka umanga in accordance with subpart 3 of Part 2.

    (2) For the purposes of section 28, an application by the trustees to register a waka umanga must include, in addition to the matters specified in section 28, copies of the resolutions passed under section 106(2)(a) and (b) and the High Court order made under section 106(2)(c).

    (3) If changes are needed to the constitutional documents of a trust for the purpose of complying with this Act, those changes must be ratified in the manner provided for under section 106 in respect of the application to register a waka umanga.

108 Effect of approval to register waka umanga
  • (1) On and from the date on which a waka umanga is authorised to be registered under section 106, the trust concerned comes to an end and is cancelled.

    (2) The registration of a waka umanga does not affect proceedings by or against the trustees in relation to the trust immediately before the registration of the waka umanga.

    (3) Without limiting subsection (1), the property held in trust, and the rights and obligations of the trustees in relation to the trust, immediately before the registration of the waka umanga become the property, rights, and obligations of the waka umanga.

    (4) Proceedings that could have been commenced or continued by or against the trustees in relation to the trust before the registration of the waka umanga may be commenced or continued by or against the waka umanga.

109 Final accounts of trust registered as waka umanga
  • (1) As soon as is reasonably practicable after the registration of the waka umanga comes into effect, the waka umanga must cause to be prepared final accounts of the trust as at the close of the day immediately before the date on which the registration of the waka umanga came into effect.

    (2) A copy of the final accounts must be made available, on request, to any person who, immediately before the registration of the waka umanga, was a beneficiary of the trust.

Charitable trusts

110 When trustees of charitable trusts may apply to register waka umanga
  • (1) The trustees of a charitable trust may apply to register a waka umanga to which section 112 would apply if the waka umanga were registered.

    (2) The trustees may apply under subsection (1) only if—

    • (a) a resolution authorising them to do so is passed at a duly constituted meeting of the trustees by not less than 75% of trustees who are present and cast a valid vote; and

    • (b) the High Court has approved the resolution.

    (3) The High Court must not approve a resolution unless a copy of the application has been served on—

    • (a) the Attorney-General, and the High Court has heard any submissions that the Attorney-General wishes to make on the matter; and

    • (b) any other persons that the High Court considers appropriate, and the High Court has heard any submissions that those persons wish to make on the matter.

    (4) For the purpose of deciding whether to give its approval, the High Court may require the applicants to convene meetings of any groups of persons that the High Court considers appropriate, in order to ascertain their views on the matter.

    (5) For the purpose of determining whether or not to approve a resolution, the High Court must have regard to both—

    • (a) the purposes of the charitable trust; and

    • (b) the charter of the proposed waka umanga.

    (6) In this section and sections 111 to 113, charitable trust does not include a charitable trust established by will.

111 Trustees must comply with Part 2
  • (1) Trustees authorised under section 110 to apply to register a waka umanga must, as soon as is reasonably practicable, proceed to seek registration of the waka umanga in accordance with subpart 3 of Part 2.

    (2) For the purposes of section 28, an application by the trustees to register a waka umanga must include, in addition to the matters specified in section 28, copies of the resolution passed under section 110(2)(a) and the High Court order made under section 110(2)(b).

    (3) If changes are needed to the constitutional documents of a charitable trust for the purpose of complying with this Act, those changes must be ratified in the manner provided for by section 110 in respect of the application to register a waka umanga.

112 Effect of approval to register waka umanga
  • (1) On and from the date on which a waka umanga is registered, after the trustees have been authorised to do so under section 110(2), the charitable trust concerned comes to an end and is cancelled.

    (2) If the trustees are registered as a charitable trust board under the Charitable Trusts Act 1957, the charitable trust ceases to be a charitable trust board under that Act, and that Act ceases to apply to it.

    (3) The registration of a waka umanga does not affect proceedings by or against the trustees in relation to the trust immediately before the registration of the waka umanga.

    (4) Without limiting subsection (1), the property held in trust, and the rights and obligations of the trustees in relation to the charitable trust, immediately before the registration of the waka umanga become the property, rights, and obligations of the waka umanga.

    (5) Proceedings that could have been commenced or continued by or against the trustees in relation to the charitable trust before the registration of the waka umanga may be commenced or continued by or against the waka umanga.

113 Final accounts and notice of registration
  • As soon as is reasonably practicable after the registration of the waka umanga comes into effect, the waka umanga must—

    • (a) cause to be prepared final accounts of the trust as at the close of the day immediately before the date on which its registration as a waka umanga came into effect; and

    • (b) give written notice that the waka umanga has been registered and that the charitable trust has come to an end and been cancelled under section 112(1) to—

      • (i) the Attorney-General; and

      • (ii) in the case of a registered charitable trust board, the Registrar of Incorporated Societies.

Limits as to effect of registration

95 Meaning of existing entity
  • In this subpart,—

    existing entity

    • (a) means—

      • (i) a charitable trust board under the Charitable Trusts Act 1957; or

      • (ii) a company under the Companies Act 1993; or

      • (iii) an incorporated society under the Incorporated Societies Act 1908; or

      • (iv) a Maori Trust Board; or

      • (v) trustees of a trust; but

    • (b) does not include the trustees of a trust constituted under Part 12 of the Te Ture Whenua Maori Act 1993

    trustees, in relation to a society registered as a charitable trust board under the Charitable Trusts Act 1957, means the members of the society.

96 Obligation of authorised existing entity to register as a waka umanga
  • An existing entity must apply to register as a waka umanga under Part 2 as soon as practicable after being authorised to do so under this subpart.

97 Authorisation to register as waka umanga
  • (1) This section specifies when an existing entity is authorised to register as a waka umanga.

    (2) A charitable trust board is authorised to register as a waka umanga if it complies with section 99.

    (3) A company is authorised to register as a waka umanga if the shareholders of the company, by special resolution, resolve that the company be registered as a waka umanga.

    (4) An incorporated society is authorised to register as a waka umanga if the society at a general meeting of its members passes a resolution authorising the society's officers to do so.

    (5) A Maori Trust Board is authorised to register as a waka umanga if a resolution authorising the Board to do so is passed at a duly constituted meeting of the Board by not less than 75% of the Board's members who are present and cast a valid vote.

    (6) The trustees of a trust are authorised to register as a waka umanga if it complies with section 98.

98 Ordinary trusts
  • (1) This section applies in relation to trusts other than—

    • (a) a trust that is a charitable trust; or

    • (b) a trust constituted under Part 12 of the Te Ture Whenua Maori Act 1993.

    (2) The trustees of a trust may apply to register a waka umanga, but only if a resolution authorising the trustees to do so is passed at a duly constituted meeting of the adult beneficiaries of the trust by not less than 75% of the adult beneficiaries who are present and cast a valid vote.

99 Charitable trusts
  • (1) This section—

    • (a) applies in relation to a charitable trust if the trust—

      • (i) was in existence at the commencement of this Act; or

      • (ii) came into existence within 1 year after the commencement of this Act; but

    • (b) does not apply in relation to a charitable trust established by will.

    (2) The trustees of a charitable trust may apply to register a waka umanga, but only if—

    • (a) a resolution authorising them to do so is passed at a duly constituted meeting of the trustees by not less than 75% of trustees who are present and cast a valid vote; and

    • (b) the Attorney-General has approved the registration of the waka umanga.

    (3) The Attorney-General must approve the registration of a waka umanga by the trustees, if the Attorney-General is satisfied that—

    • (a) the objectives of the waka umanga, as set out in its charter,—

      • (i) include the purposes of the charitable trust; and

      • (ii) are not inconsistent with those purposes.

    • (b) the property that is subject to the charitable trust will be held and applied by the waka umanga for the same purposes; and

    • (c) the proposed membership of the waka umanga is consistent with the purpose of the charitable trust; and

    • (d) the registration of the waka umanga is otherwise not inconsistent with the purposes of the charitable trust.

100 Order in Council required before registration of Maori Trust Board as waka umanga
  • (1) The Registrar must not register a Maori Trust Board as a waka umanga until an Order in Council is made under this section.

    (2) The Governor-General may, by Order in Council, declare that a Maori Trust Board, on and from the date of its registration as a waka umanga, ceases to be a Maori Trust Board.

    (3) Any Order in Council under subsection (2) may be made only—

    • (a) on the recommendation of the Minister of Māori Affairs; and

    • (b) after the Minister of Māori Affairs has been advised by the Registrar that the registration of the Maori Trust Board as a waka umanga is ready to proceed.

101 Effect of registration as waka umanga
  • (1) On and from the date on which an existing entity is registered as a waka umanga, the existing entity ceases to be (as the case may be)—

    • (a) a charitable trust board under the Charitable Trusts Act 1957; or

    • (b) a company under the Companies Act 1993; or

    • (c) an incorporated society under the Incorporated Societies Act 1908; or

    • (d) a Maori Trust Board under the Maori Trust Boards Act 1955; or

    • (e) a trust.

    (2) To avoid doubt, on and from the date on which a trust is registered as a waka umanga,—

    • (a) the trust is cancelled; and

    • (b) if the trust is subject to the Charitable Trusts Act 1957, that Act ceases to apply to it.

    (3) The registration of an existing entity as a waka umanga does not—

    • (a) create a new legal entity; or

    • (b) affect proceedings by or against the existing entity immediately before its registration as a waka umanga.

    (4) The property, rights, and obligations of the existing entity immediately before its registration as a waka umanga become the property, rights, and obligations of the waka umanga.

    (5) Proceedings that could have been commenced or continued by or against the existing entity before its registration as a waka umanga may be commenced or continued by or against the waka umanga.

    (6) To avoid doubt and without limiting susbsection (2)(a), the registration of a charitable trust board, incorporated society, or company as a waka umanga is not to be treated as a dissolution or liquidation of the charitable trust board, incorporated society, or company.

102 Continuation of certain provisions of Maori Trust Boards Act 1955
  • (1) Despite section 98, if a provision of the Maori Trust Boards Act 1955 specified in subsection (2) applies to a Maori Trust Board immediately before its registration as a waka umanga, the provision continues to apply as if the waka umanga were the Maori Trust Board concerned.

    (2) The provisions are sections 10(2) and (3), 19A, 24A, and 41A of the Maori Trust Boards Act 1955.

103 Final accounts of existing entity registered as waka umanga
  • (1) As soon as is reasonably practicable after the registration of an existing entity as a waka umanga, the waka umanga must cause final accounts of the existing entity to be prepared as at the close of the day immediately before the date on which it was registered as a waka umanga.

    (2) A copy of the final accounts must be sent by the waka umanga to the appropriate persons as follows:

    • (a) the Registrar of Companies, if the existing entity was a company within the meaning of the Companies Act 1993:

    • (b) the Registrar of Incorporated Societies, if the existing entity was—

      • (i) a society incorporated under the Incorporated Societies Act 1908; or

      • (ii) a charitable trust board incorporated under the Charitable Trusts Act 1957:

    • (c) the Attorney-General, if the existing entity was a charitable trust:

    • (d) the Minister of Māori Affairs, if the existing entity was the Maori Trust Board.

    (3) The copy of the final accounts of a waka umanga that was a Maori Trust Board sent to the Minister of Māori Affairs under subsection (2)(a) must be accompanied by an auditor's report.

    (4) If the existing entity were the trustees of a trust, the waka umanga must make a copy of the final accounts available for inspection by any beneficiary of the trust.

114 Matters not affected by registration
  • The registration of a waka umanga authorised under this subpart—

    • (a) is not to be treated as placing a person in breach of, or default under, any contract, or in breach of trust, or in breach of confidence, or as otherwise making the person guilty of a civil wrong; and

    • (b) is not to be treated as entitling a person to—

      • (i) terminate or cancel or modify a contract, agreement, or arrangement; or

      • (ii) enforce or accelerate the performance of an obligation; or

      • (iii) require the performance of an obligation not otherwise arising for performance; and

    • (c) does not release any surety wholly or in part from all or any obligation; and

    • (d) does not invalidate or discharge any contract or security.

Other transitional matters

115 Employees
  • (1) This section applies to a person who is an employee of a Maori Trust Board, an incorporated society, or the trustees of any trust immediately before the registration of a waka umanga under this subpart.

    (2) The registration does not affect the employee’s employment agreement.

    (3) The employee is an employee of the waka umanga and, for the purposes of every enactment, law, award, determination, contract, and agreement relating to the employment of the employee,—

    • (a) his or her employment agreement is unbroken; and

    • (b) the period of his or her service with the Maori Trust Board, incorporated society, or trustees of a trust, and every other period of service that is recognised by the Maori Trust Board, incorporated society, or trustees of a trust as his or her continuous service, is a period of service with the waka umanga.

    (4) The terms and conditions of the employment of the employee with the waka umanga are (until varied) identical to the terms and conditions of his or her employment immediately before the registration and are capable of variation in the same manner.

    (5) The employee is not entitled to receive any payment or other benefit by reason only of the registration.

116 References in documents
  • On and from the registration of a waka umanga under this subpart, references to a Maori Trust Board, an incorporated society, or the trustees of a trust in any contract, lease, notice, order, proceedings, or other document has effect as a reference to the waka umanga.

117 Records and registers
  • (1) Neither the Registrar-General of Land nor any other person charged with the keeping of any records or registers is obliged solely by reason of any provision of this subpart to change any name in those records or registers or in any document.

    (2) In the absence of evidence to the contrary, it is sufficient proof that any property, rights, or obligations become, under this subpart, the property, rights, and obligations of a waka umanga if a person presents to the Registrar-General of Land or another person, as the case may require, an instrument, whether or not comprising an instrument of transfer,—

    • (a) executed or purporting to be executed by or on behalf of the waka umanga; and

    • (b) relating to any property, rights, or obligations in existence immediately before the registration of the waka umanga; and

    • (c) containing a recital that the property, rights, or obligations have become the property, rights, or obligations of the waka umanga under this Act.

Subpart 2Taxation and duties

118 Interpretation
  • In this subpart,—

    Inland Revenue Acts has the meaning given to it in section 3(1) of the Tax Administration Act 1994

    membership means,—

    • (a) in relation to a Maori Trust Board, the adult beneficiaries of the Board:

    • (ab) in relation to a company under the Companies Act 1993, the shareholders of the company:

    • (b) in relation to an incorporated society, the members of the society:

    • (c) in relation to a trust that is not a charitable trust, the adult beneficiaries of the trust:

    • (d) in relation to a charitable trust, the class or classes of persons who may receive benefits from the trust.

    organisation means a Maori Trust Board, incorporated society, or trust an existing entity authorised under subpart 1 to register as a waka umanga.

119 Application
  • Sections 120 and 121 apply—

    • (a) for the purposes of the Inland Revenue Acts and any other enactment that imposes or provides for the collection of any tax, duty, levy, rate, or other charge; but

    • (b) only if the membership of an existing entity immediately before its registration as a waka umanga is the same or substantially the same as the membership immediately after its registration.

120 Taxes and duties
  • (1) A waka umanga registered as a result of an authorisation given under subpart 1 and the organisation that it was immediately before its registration as a waka umanga are to be treated as the same person in relation to the property, rights, and obligations of the organisation that, on the registration of the organisation as a waka umanga, become the property, rights, and obligations of the waka umanga.

    (2) All transactions entered into by, and all acts of, the organisation before its registration as a waka umanga in relation to those property, rights, and obligations are to be treated as having been entered into or performed by the waka umanga on the date on which they were entered into or performed by the organisation.

121 Continuation of declarations after registration of Maori Trust Board as waka umanga
  • Any declaration of trust executed by a Maori Trust Board under section 24B of the Maori Trust Boards Act 1955 and approved by the Commissioner of Inland Revenue under that section before the registration of the Maori Trust Board as a waka umanga—

    • (a) applies only in relation to property that before the registration was acquired by or vested in the Board and (before that date) has been subjected to that declaration of trust; but

    • (b) does not apply to—

      • (i) any redress provided under a deed of settlement or any other property acquired by or vested in the Maori Trust Board pursuant to or consequent upon the settlement of the Board’s historical claims against the Crown in respect of the Crown’s breaches of its obligations under the Treaty of Waitangi; or

      • (ii) any property acquired by or vested in the Board on or after its registration as a waka umanga under this Act.

Subpart 3Waka Umanga Secretariat

122 Establishment of Waka Umanga Secretariat
  • (1) The Minister of Māori Affairs (the responsible Minister) may, after consultation with the Minister for the time being responsible for the administration of the Companies Act 1993, establish the Waka Umanga Secretariat (the Secretariat).

    (2) The Secretariat will cease to exist on and from the fifth anniversary of the commencement of this subpart.

123 Function of Secretariat
  • (1) The function of the Secretariat is to give such advice as the responsible Minister thinks fit in order to promote compliance with this Act by a tribal group, Māori association, or existing entity—

    • (a) wishing to form and register a waka umanga; or

    • (b) that has already formed and registered a waka umanga.

    (2) Assistance given under this section may relate to the matters that must be undertaken—

    • (a) before registration of a waka umanga under this Act, including matters such as the preparation of the charter and any other documents required for registration under this Act:

    • (b) after registration under this Act, including matters such as the preparation of policies and other governance documents required by this Act:

    • (c) at any stage, in relation to setting up or operating a dispute resolution process.

Subpart 4Enforcement provisions

124 Offences and penalties
  • (1) A waka umanga, a governor, an employee of a waka umanga, or other person, as the case may be, commits an offence against this Act who—

    • (a) misuses or fails to use the correct name of a waka umanga, as required by section 33:

    • (b) fails to appoint an auditor, if an audit is required under section 58(2):

    • (c) having appointed an auditor, fails to give that person access to information or explanations that the person requests, as provided for under section 59(4):

    • (d) fails to create, maintain, and retain accurate records of the waka umanga, as required by clause 17 of Schedule 3:

    • (e) fails to provide accurate information to the Registrar, as required by clause 18 of Schedule 3.

    (2) Every person who commits an offence against subsection (1) is liable, on summary conviction, to a fine—

    • (a) in the case of a waka umanga, not exceeding $5,000; or

    • (b) in the case of an individual, not exceeding $2,000.

    (2) Every person who commits an offence against subsection (1) is liable, on summary conviction, to a fine not exceeding $5,000.

    (3) Every person commits an offence against this Act and is liable, on summary conviction, to a fine not exceeding $10,000 who—

    • (a) fails to make accurate declarations as required by section 28(2) and (3):

    • (b) fails to comply with a lawful direction or request of the Registrar:

    • (c) fails to disclose an interest, as required by section 43(1):

    • (ca) being a governor, agrees to his or her board classifying an asset as a protected asset without complying with section 47:

    • (d) fails to comply with the requirements of sections 46 to 50 and the charter in relation to major transactions or protected assets.

    (4) Despite section 14 of the Summary Proceedings Act 1957, an information for an offence under this section may be laid at any time within 3 years after the date of the alleged offence.

125 Defence
  • It is a defence to an offence under section 124 that the waka umanga, governor, employee of the waka umanga, or other person took reasonable steps to comply, or ensure compliance, with the provisions of the Act relevant to the offence for which the charge is laid.

Administrative penalties

126 Power to impose administrative penalty
  • (1) The Registrar may, by written notice to a waka umanga, require the waka umanga to pay the Registrar an amount by way of penalty, as prescribed by regulations made under this Act, for a failure of the waka umanga to—

    • (a) comply with a lawful direction or request of the Registrar, including a direction under section 33 to change the name of a waka umanga:

    • (b) send or deliver to the Registrar, within any specified time, a notice under—

      • (i) section 49 (which requires a waka umanga to notify the Registrar of amendments that must be made to the register of protected assets):

      • (ii) section 57(3) (which requires notice to be given to the Registrar of changes to the charter):

      • (iii) clause 4 of Schedule 3 (which requires notice to be given to the Registrar about changes relevant to a governor):

      • (iv) clause 18 of Schedule 3 (which relates to the obligations of the waka umanga to provide accurate information to the Registrar):

      • (v) clause 34 of Schedule 3 (which requires an annual return to be provided to the Registrar).

    (2) The amounts payable under this section—

    • (a) must be paid to the Registrar by the date specified in the notice; and

    • (b) are recoverable on application by the Registrar as a debt due to the Registrar in any court or tribunal of competent jurisdiction, including the Māori Land Court.

    (3) The Registrar may refuse to perform a function or exercise a power until the amount payable under this section is paid.

127 Defence to administrative penalty
  • It is a defence to an administrative penalty imposed by the Registrar under section 126 that the waka umanga took reasonable steps to comply with the provisions of the Act in respect of which the administrative penalty is imposed.

128 Reference to Māori Land High Court
  • (1) If an administrative penalty is imposed under section 126, a waka umanga may refer the matter to the High Court, not later than 20 working days after a notice is received by a waka umanga under section 126(1), for orders as to—

    • (a) the liability of the waka umanga for the administrative penalty:

    • (b) the amount of that penalty.

    (2) If, in the opinion of the Registrar, there has been a persistent failure of a waka umanga to pay an administrative penalty imposed on it under section 126, the Registrar may refer the matter to the High Court for orders provided for under subsection (1).

Subpart 5Regulations and miscellaneous matters

Regulations

129 Regulations
  • (1) The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

    • (a) prescribing forms for the purposes of this Act:

    • (b) prescribing how documents must be sent or delivered for registration:

    • (c) prescribing criteria for determining the governance documents required in respect of the reporting obligations of a waka umanga or class of waka umanga:

    • (d) prescribing fees payable to the Registrar in respect of any matter under this Act or the manner in which fees must be calculated:

    • (e) prescribing the amounts payable to the Registrar under section 126 by way of administrative penalty, which must not exceed $1,000:

    • (f) prescribing procedures, requirements, and other matters for the Register of Waka Umanga, including matters relating to the operation of that Register:

    • (g) providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

    (2) An Order in Council made under subsection (1) may authorise the Registrar to refund or waive, in whole or in part and on any conditions as may be prescribed, payment of any fee or amount payable under this Act by or in relation to any waka umanga.

Service of documents

130 Service of documents on waka umanga
  • (1) Sections 387, 388, and 392 of the Companies Act 1993 apply to the service of documents on a waka umanga as if every reference in those sections to—

    • (a) the New Zealand register were a reference to the Register of Waka Umanga; and

    • (b) a company were a reference to a waka umanga; and

    • (c) the address for service were a reference to the registered office of the waka umanga.

    (2) Service by email may be accepted if the charter or rules of the waka umanga provide for that method of service.

Saving

131 Application of Maori Fisheries Act 2004
  • This Act does not limit the Maori Fisheries Act 2004.

Amendments to enactments

132 Amendments to other Acts
  • (1) Section HI 2 of the Income Tax Act 2004 is amended by adding the following paragraphs:

    • (m) a waka pū that is—

      • (i) registered under subpart 3 of Part 2 of the Waka Umanga (Māori Corporations) Act 2007; and

      • (ii) is the legitimate representative of a tribal group:

    • (n) a waka pū that is authorised under subpart 1 of Part 5 of the Waka Umanga (Māori Corporations) Act 2007 to register under subpart 3 of Part 2 of that Act, as long as—

      • (i) immediately before its registration it was a Māori authority; and

      • (ii) the membership of an existing entity immediately before its registration as a waka umanga is the same or substantially the same as the membership of the waka umanaga immediately after its registration.

    (1) Section HF 2 of the Income Tax Act 2007 is amended by adding the following heading and subsection:

    Waka umanga
    • (9) A Māori collective (within the meaning of section 14(a) of the Waka Umanga (Māori Corporations) Act 2008) registered as a waka umanga under that Act is eligible to make an election.

    (2) Part 1 of Schedule 2 of the Privacy Act 1993 is amended by inserting, in its appropriate alphabetical order, the following item:

    Waka Umanga (Māori Corporations) Act 2007section 26

Schedule 1
Tribal groups with mandate recognised before commencement of this Act

s 12

Tribal groupMandated persons or entityDate deed of mandate recognised
AupouriWiniata Brown
Aata Kapa
Waitai Petera
6 December 2000
Kurahaupō ki te WaipounamuKurahaupō ki te Waipounamu Trust23 November 2005
MorioriHokotehi Moriori Trust27 November 2003
Ngāi TāmanuhiriNgāi Tāmanuhiri Whānui Charitable Trust17 August 2005
Ngāi TūhoeTe Kotahi ā Tūhoe27 September 2007
Ngāti Apa (North Island)Te Rūnanga o Ngāti Apa Society Incorporated12 November 2004
Ngātikahu ki WhangaroaNgāti Kahu ki Whangaroa Trust Board14 October 2004
Ngāti ManawaTe Rūnanga o Ngāti Manawa18 November 2003
Ngāti Toa RangatiraTe Rūnanga o Toa Rangatira Incorporated22 November 2005
Ngāti WhareTe Rūnanga o Ngāti Whare Iwi Trust18 November 2003
Ngāti Whātua o ŌrākeiNgāti Whātua o Ōrākei Māori Trust Board25 October 2002
Rangitāne o ManawatūTānenuiārangi Manawatū Incorporated5 June 2007 (reconfirmed mandate)
Rongowhakaata / Ngā Uri o Te Kooti RikirangiRongowhakaata Charitable Trust and:
Lewis Ruihi Tawai Moeau
Jody Balneavis Wyllie
Kristen Timothea Maynard
Melissa Heni Mekameka Whaitiri
Stanley Joseph Pardoe
17 August 2005
Tainui Taranaki ki te TongaTainui Taranaki ki te Tonga Limited3 October 2006
Taranaki Whānui (Wellington)Kevin Hikaia Amohia
Neville McClutchie Baker
Spencer Waemura Carr
June Te Raumangi Jackson
Dr Catherine Maarie Amohia Love
Dr Ralph Heberley Ngatata Love
Hinekehu Ngaki Dawn McConnell
Rebecca Elizabeth Mellish
Dr Ihakara Porutu Puketapu
Sir Paul Alfred Reeves
Mark Te One
28 January 2004
Te Aitanga a Māhaki / Ngāriki Kaiputahi / Te Whānau a KaiOwen Rutherford Lloyd
Raiha Miriama Goldsmith
David Thomas Hawea
Ritihia Josephine Ihimaera
Joseph Pere Carol Marino
Eric John Tupai Ruru
Wirangi Tarewa Pera
Annette Zyzalo
Anthony Tapp
17 August 2005
Te Iwi o Whanganui (river claim)Brendon Tiwha Puketapu
Graeme Bell
Rumatiki Linda Henry
Te Kenehi Mair
Piripi Haami
Bernard Mareikura
Robert Cribb
Rangimarie Ponga
Marina Williams
9 November 2002
Te RarawaTe Rūnanga o Te Rarawa15 March 2002
Waikato-Tainui (river claim)Waikato Raupatu Trustee Company Limited19 May 2005

Schedule 2
Contents of charter relating to governance

ss 19, 37, 40, 42, 55, 56, 69

Matters that must be included in charter

Without limiting what may be included in the charter of a waka umanga, every charter must include provisions that provide for the following matters, as long as they are not inconsistent with this Act:

  • General matters
  • (1) The essential information about the waka umanga, including—

    • (a) the matters required by section 19; and

    • (b) the name of the waka umanga; and

    • (c) rules relating to how the register of members of a waka umanga must be compiled, maintained, and made available to members for inspection at the registered office of the waka umanga.

  • Governors
  • (2) In relation to any election or appointment under section 39, any criteria to be taken into account, including matters such as the relevant experience and key competencies required for the operation of the rūnanganui.

  • (3) Any matters that will disqualify a person from holding office as a governor, in addition to those specified in clause 1 of Schedule 3.

  • (4) The number of governors required for the rūnanganui, which, except in the case of a corporate trustee of a mandated iwi organisaiton, must be not fewer than 3.

  • (5) The term of office for a governor, which must not exceed 4 years from the date of the election, and the maximum number of consecutive terms for which a governor may hold office.

  • Election of governors
  • (6) A system for the election of governors under section 39, including—

    • (a) whether governors are to be elected by direct election or indirectly by an electoral college; and

    • (b) if an electoral college is to be set up for the election of governors, how the electoral college must be elected or appointed; and

    • (c) whether governors are to be elected by constituent groups, and if so—

      • (i) the number and names of the constituent groups and a requirement that—

        • (A) there be a register of members of each constituent group; or

        • (B) a register that identifies members by their constituent group; and

      • (ii) the number of governors for each constituent group; and

    • (d) how notice must be given to members that an election is to be held, including—

      • (i) how long before an election that notice must be given; and

      • (ii) the contents of a notice; and

    • (e) how and when nominations must be invited for candidates for election; and

    • (f) the information about a candidate that must be provided with his or her nomination, the date by which nominations must be submitted, and the contact details of the officer of the waka umanga responsible for receiving nominations; and

    • (g) the method of voting, whether by post, in person, or by electronic means or a combination of methods; and

    • (h) except in the case of a waka umanga that is a mandated iwi organisation or iwi aquaculture organisation, how disputes relating to election results are to be dealt with, including—

      • (i) who may apply for review of the election results; and

      • (ii) the time by which any application must be made; and

      • (iii) the appointment and powers of an independent person to review the processes by which an election was conducted.

  • Appointment of governors
  • (7) If the charter provides for the appointment of governors, as permitted by section 40, requirements as to—

    • (a) who may make appointments; and

    • (b) how appointments must be notified; and

    • (c) the role and rights of appointed governors.

  • Meetings of rūnanganui
  • (8) How notice must be given of the meetings of the rūnanganui required by clause 12 of Schedule 3, including—

    • (a) the minimum period of notice required; and

    • (b) the contents of a notice; and

    • (c) who is entitled to receive notices of meetings of the rūnanganui.

  • (9) The requirements for a quorum at ordinary and special meetings of the rūnanganui, including—

    • (a) the number of governors constituting a quorum, which must be at least a majority of the governors; and

    • (b) how meetings may be conducted, including whether by electronic means, and if so, any conditions that must apply.

  • (10) Any requirements for standing orders to regulate the conduct of meetings.

  • (11) If the waka umanga has a common seal, procedures for the custody and use of the common seal.

  • Chairperson and deputy chairperson
  • (12) The procedures for the appointment of a chairperson and deputy chairperson (if any) of a rūnanganui, including—

    • (a) how and by whom the chairperson and deputy chairperson (if any) are to be selected; and

    • (b) the term for which the chairperson and any deputy chairperson may hold their roles, and which may include the number of consecutive terms that an office may be held.

  • (13) The powers, functions, and duties of the chairperson and any deputy chairperson.

  • Decision making in relation to major transactions
  • (14) A policy on major transactions, as required by section 46.

  • (15) Procedures for the rūnanganui when making decisions on major transactions, which—

    • (a) must include—

      • (i) any particular voting requirements; and

      • (ii) the special consultative procedures; and

    • (b) may include any procedures for making special resolutions, which must be no less stringent than those that apply for making ordinary resolutions.

  • Special consultative procedures
  • (16) If the charter provides for a major transaction to be entered into in accordance with section 47(1)(a), the special consultative procedures to be followed, including how the rūnanganui will—

    • (a) notify registered members of a matter; and

    • (b) make information on a matter available to registered members; and

    • (c) undertake consultation on a matter with registered members; and

    • (d) receive submissions on a matter; and

    • (e) make the decision on a matter and advise registered members of the decision.

  • Annual general meeting of waka umanga
  • (17) Provisions for conduct of an annual general meeting, which must include the following:

    • (a) the percentage of the registered members and governors of the waka umanga required for a quorum; and

    • (b) any requirement that each of the constituent groups (if any) of the waka umanga be represented; and

    • (c) further provisions relating to the conduct of the annual general meeting, including voting rights, how voting procedures must be determined, and whether voting is to be by voice, show of hands, or secret ballot; and

    • (d) a requirement for an agenda setting out the matters to be transacted at the meeting; and

    • (e) a requirement for minutes to be taken to record the proceedings of the meeting; and

    • (f) quorum requirements, including requirements that no business may be transacted at a meeting unless a quorum is present.

  • Special meetings
  • (18) Provisions relating to special meetings of the registered members of a waka umanga, which must—

    • (a) not be inconsistent with the requirements of section 55; and

    • (b) specify the minimum number of registered members of the waka umanga required to call a special meeting (which must be at least 1%, or 15 or more, of the registered members of the waka umanga, whichever is the greater).

  • (19) The requirements for passing ordinary and special resolutions at meetings of the registered members of a waka umanga.

  • Notice requirements
  • (20) Notice requirements, so long as they are not inconsistent with the provisions of this Act, for—

    • (a) the annual general meeting and any special meetings of the registered members of the waka umanga; and

    • (b) any other meetings required by or under this Act.

  • Reporting
  • (21) The manner in which the annual report will be published, which may include electronic publication as well as the provision, on request, of a paper copy.

  • Allocation
  • (22) Provision for how any assets (including any protected assets) are to be allocated on any winding up of the waka umanga (but must not include provision for the distribution of assets to or amongst the registered members of the waka umanga upon dissolution of the waka umanga).

  • Dispute resolution
  • (23) The policy of the waka umanga for resolving internal disputes, including the matters required under subpart 1 of Part 4.


Schedule 3
Further provisions on governance, management, and accountability of waka umanga

ss 28, 37, 46, 51, 53, 56, 58, 67, 73

Part 1
Governance, management, and accountability of waka umanga

Eligibility for office of governor

1 General disqualification
  • (1) The following persons are not qualified to be elected or appointed to, or hold office as, a governor of a waka umanga:

    • (a) a person who is under 18 years of age:

    • (b) a person who is an undischarged bankrupt:

    • (c) the chief executive or an employee of a waka umanga:

    • (d) a person who is prohibited from being a director or promoter of, or from being concerned or taking part in the management of, a company under section 382, 383, or 385 of the Companies Act 1993:

    • (e) a person who has been convicted of a crime involving dishonesty (within the meaning of section 2(1) of the Crimes Act 1961) and has been sentenced for that crime within the last 7 years:

    • (f) a person who is subject to a property order or personal order under the Protection of Personal and Property Rights Act 1988.

    (2) In addition, a charter may include provisions to disqualify a person from holding the office of governor on the basis of having been convicted of a specified criminal charge within a specified period of time.

2 Waiver of general disqualification
  • (1) A rūnanganui or a registered member of a waka umanga may apply to the Court for an order waiving the application of a disqualifying factor set out in clause 1(1) in relation to—

    • (a) a governor; or

    • (b) a person who seeks election to the office of governor; or

    • (c) a person who is nominated for appointment to the office of governor.

    (2) A person who is granted an order waiving the application of a disqualifying factor must not be treated as being disqualified by reason of the factor for which the waiver was granted.

    (3) An order may be granted under subclause (1) on any terms and conditions that the Court thinks fit.

Tenure and conduct of governors

3 Resignation or dismissal from office
  • (1) A governor may resign from office by giving written notice to the chairperson of the rūnanganui board.

    (2) A rūnanganui board may, by special resolution, dismiss a governor from office if the rūnanganui board believes, on reasonable grounds, that—

    • (a) the person has become ineligible under the disqualification provisions of clause 1 or under the charter is disqualified from holding office under the charter; or

    • (b) the person is unable to perform the role or duties of a governor; or

    • (c) the person has seriously neglected a duty as a governor under this Act; or

    • (d) the person has brought the waka umanga into disrepute; or

    • (e) the person has failed to declare a significant benefit or material financial interest, as required by section 43(1).

    (3) The chairperson of the rūnanganui board must give written notice to the person of the resolution of the rūnanganui board, with reasons.

4 Notice of change of governors
  • (1) A rūnanganui board must ensure that the Registrar is notified, in the form approved for the purpose by the Registrar, of—

    • (a) the persons who are appointed to be governors of the waka umanga; and

    • (b) any change of persons who hold office as governors.

    (2) A notice under subclause (1) must—

    • (a) specify the date of the change; and

    • (b) include the full name, date and place of birth, and place of residence of every person who is a governor of the waka umanga from the date of the notice; and

    • (c) in the case of a new governor, be accompanied by—

      • (i) his or her consent to be a governor; and

      • (ii) a written statement that he or she is not disqualified from holding office as a governor.

    (3) The notice required by this clause must be delivered to the Registrar within 20 working days of any change taking effect.

5 Effect of dismissal or vacancy
  • (1) A governor is not entitled to compensation or other payment or benefit if he or she for any reason ceases to hold office as a governor.

    (2) The powers and functions of a rūnanganui board are not affected by a vacancy in its membership, provided it has the quorum required by the charter.

Remuneration and indemnity

6 Policy for remuneration of governors
  • A waka umanga must develop and publish in its annual plan its policy for—

    • (a) the remuneration and other benefits to be paid to governors for their services as governors; and

    • (b) the reimbursement of governors for their actual and reasonable expenses incurred in carrying out their duties as governors.

7 Indemnity and insurance
  • A waka umanga, to the extent authorised by its charter,

    • (a) must may indemnify the governors of the rūnanganui board in respect of—

      • (i) costs and damages incurred by 1 or more governors for any civil liability arising from an action brought by a third party, as long as the governors concerned were acting in their capacity as governors in accordance with—

        • (A) this Act, including the duties set out in section 41; and

        • (B) the duties set out for governors in the charter of the waka umanga:

      • (ii) costs arising from a successfully defended criminal action relating to acts or omissions of 1 or more governors in their capacity as governors; and

    • (b) may effect insurance cover for a governor or employee in relation to his or her acts or omissions in the capacity of a governor or an employee, except an act or omission that is—

      • (i) in bad faith; or

      • (ii) not in the performance or intended performance of the activities of the waka umanga.

Validity of actions of governors and waka umanga

8 Validity of governors’ acts
  • The acts of a person acting as a governor are valid, even if—

    • (a) the person’s election or appointment was defective; or

    • (b) the person was or has become disqualified from being a governor.

9 Validity of actions of waka umanga
  • (1) No act of a waka umanga or transfer of property to or by a waka umanga is invalid merely because the waka umanga did not have the capacity, right, or power to do the act or transfer or take a transfer of the property.

    (2) Subclause (1) does not limit section 87 (which provides for the jurisdiction of the Court to grant injunctions if a waka umanga is acting contrary to its charter or this Act).

    (3) The fact that an act is not, or would not be, in the best interests of a waka umanga does not affect the capacity of the waka umanga to do the act.

10 Dealings between waka umanga and other persons
  • (1) A waka umanga, or the guarantor of an obligation of a waka umanga, may not assert against a person dealing with the waka umanga or with a person who has acquired or disposed of property, rights, or interests from or to the waka umanga that—

    • (a) this Act or the charter of the waka umanga has not been complied with:

    • (b) a person listed in the Register of Waka Umanga as a governor of the waka umanga—

      • (i) is not a governor of the waka umanga; or

      • (ii) has not been duly elected or appointed; or

      • (iii) does not have authority to exercise a power that a governor of a waka umanga carrying on business of the kind carried on by the waka umanga customarily has authority to exercise:

    • (c) a person held out by the waka umanga as a governor, employee, or agent of the waka umanga—

      • (i) has not been duly appointed; or

      • (ii) does not have authority to exercise a power that a governor, employee, or agent of a waka umanga carrying on business of the kind carried on by the waka umanga customarily has authority to exercise:

    • (d) a person held out by the waka umanga as a governor, employee, or agent of the waka umanga with authority to exercise a power that a governor, employee, or agent of a waka umanga carrying on business of the kind carried on by the waka umanga does not customarily have authority to exercise, does not have authority to exercise that power:

    • (e) a document issued on behalf of a waka umanga by a governor, employee, or agent of the waka umanga with actual or usual authority to issue the document is not valid or not genuine.

    (2) However, a waka umanga or the guarantor of an obligation of a waka umanga may assert any of the matters set out in subclause (1), if the person dealing with the waka umanga has knowledge of those matters, or ought to have that knowledge, by virtue of his or her position with, or relationship to, the waka umanga.

    (3) Subclause (1) applies even though a person of a kind referred to in subclause (1)(b) to (e) acts fraudulently or forges a document that appears to have been signed on behalf of the waka umanga, unless the person dealing with the waka umanga or with a person who has acquired or disposed of property, rights, or interests from or to the waka umanga has actual knowledge of the fraud or forgery.

    (4) A person is not affected by, and is not to be treated as having had notice of knowledge of the contents of, the charter of a waka umanga or other document relating to the waka umanga merely because it is available for inspection—

    • (a) on the Register of Waka Umanga; or

    • (b) at the registered office of the waka umanga.

Conduct of business of rūnanganui board

11 Procedures of rūnanganui
  • A rūnanganui may regulate its own procedures, except to the extent provided for by or under this Act or the charter of the waka umanga.

12 Meetings of rūnanganui
  • (1) Every rūnanganui must hold the meetings necessary for it to perform its functions and carry out its duties.

    (2) Special meetings of a rūnanganui may be convened at any time by—

    • (a) ordinary resolution of the rūnanganui; or

    • (b) written request to the chairperson signed by not fewer than half of the governors of the rūnanganui; or

    • (c) the chairperson.

    (3) A rūnanganui must give notice of its meetings to the governors and the registered members of the waka umanga in the manner provided for in the charter under subclause (8) of Schedule 2.

13 Attendance at meetings of rūnanganui
  • (1) Unless a governor is excluded from a meeting of a rūnanganui under a provision of the charter, every governor has the right to attend every meeting of the rūnanganui or of any committee of the rūnanganui appointed under clause 23.

    (2) If permitted under the charter or by ordinary resolution of a rūnanganui, other persons who do not have voting rights may attend meetings of that rūnanganui.

    (3) If persons other than governors are attending a meeting of a rūnanganui, the chairperson may close the meeting to all but the governors if there are matters that must be treated as confidential or private, such as commercially sensitive or employment matters, or if a person unduly disrupts a meeting.

    (4) Every person attending a meeting of a rūnanganui under this clause is bound by the requirements of clause 19 (which relates to the confidentiality of information).

14 Resolutions of rūnanganui board
  • (1) The following principles apply to the passing of resolutions by a rūnanganui board:

    • (a) unless otherwise provided for in the charter, each governor has 1 vote; and

    • (b) the voting rights of the chairperson are deliberative only and do not include the right to make a casting vote; and

    • (c) voting may be done by a show of hands unless the chairperson determines that voting is to be by formal ballot; and

    • (d) in the event of a tied vote on a resolution, the status quo prevails.

    (2) Ordinary resolutions of the rūnanganui board require a majority of the governors entitled to vote and voting, and special resolutions require a majority of not less than two-thirds of the governors entitled to vote and voting.

    (3) A resolution in writing, signed or assented to by all the governors entitled to receive notice of a meeting of the rūnanganui board, is as valid and effective as if it had been made at a meeting of the rūnanganui board duly called and held.

    (4) A resolution made under subclause (3) may consist of exact copies of documents (including documents transmitted by facsimile or electronic means) each assented to by 1 or more governors.

    (5) A copy of every resolution made under subclause (3) must be entered in the minute book of the proceedings of the rūnanganui board.

15 Reliance on information
  • (1) A governor, when acting as a governor, is entitled to rely on reports, statements, financial data, and other information prepared or supplied, or professional or expert advice given, by—

    • (a) an employee of the waka umanga whom the governor believes on reasonable grounds to be reliable and competent in relation to the matters concerned:

    • (b) a professional adviser or expert in relation to matters which the governor believes on reasonable grounds to be within that person’s professional or expert competence:

    • (c) any other governor in relation to matters within that person’s designated authority:

    • (d) a committee of which the governor was not a member, in relation to matters within that committee’s designated authority.

    (2) Subclause (1) applies to a governor only if that governor—

    • (a) acts in good faith; and

    • (b) makes proper inquiry where the circumstances indicate that inquiry is needed; and

    • (c) has no knowledge that reliance on the information is not warranted.

16 Minutes
  • (1) The proceedings and decisions of every meeting of the rūnanganui board must be—

    • (a) recorded in writing and distributed to the governors; and

    • (b) confirmed at the next meeting of the rūnanganui board by those present at the previous meeting; and

    • (c) certified as a true and correct record by the chairperson.

    (2) As soon as is reasonably possible, the certified copy of the minutes must be made available to registered members in accordance with section 53.

17 Records of waka umanga
  • The rūnanganui board must ensure that all the records it is required to create and maintain by or under this Act are retained for a period of not less than 12 7 years.

Information required by Registrar

18 Obligations on waka umanga to inform Registrar
  • (1) Every waka umanga must—

    • (a) provide accurate information to the Registrar as required by or under this Act; and

    • (b) as soon as is reasonably practicable, notify the Registrar of any material changes to the information held by the Registrar on or about the waka umanga.

    (2) A notice given under subclause (1)(b) must be in the form approved for the purpose by the Registrar and must specify—

    • (a) the nature and effect of the change; and

    • (b) the date of the change; and

    • (c) any other matters the Registrar directs.

    (3) Unless otherwise specified, a notice required by this clause must be given within 20 working days of the change taking effect.

Confidentiality

19 Confidentiality of information of waka umanga
  • (1) This clause applies if a governor has information about or relating to the waka umanga—

    • (a) in his or her capacity as a governor; and

    • (b) that would not otherwise be available to that governor.

    (2) Unless the charter of a waka umanga provides otherwise, a governor must not disclose information to any person or make use of it or act on it except—

    • (a) in performing the functions of the waka umanga:

    • (b) as required by law:

    • (c) if the policy of the waka umanga authorises the disclosure of particular information:

    • (d) in compliance with the requirements for governors to disclose their interests:

    • (e) if the rūnanganui board has first authorised that governor to disclose, make use of, or act on the information, or to make any public statement.

    (3) Despite subclauses (1) and (2), unless the rūnanganui board has, by resolution, prohibited the disclosure of particular information on the grounds of privacy or commercial sensitivity, this clause does not prevent the activities of the waka umanga being reported on generally—

    • (a) by the chairperson; or

    • (b) by any governor, to his or her constituent group (if any).

    (4) The charter may set out any circumstances in which a governor may disclose or make use of information about or relating to the waka umanga.

Access to information for registered members

20 Inspection of information
  • (1) Information made available to the registered members of the waka umanga under clause 21 or 22

    • (a) must be available for inspection at the registered office of the waka umanga; and

    • (b) may be made available by other means, such as in electronic form or a paper copy, as provided for in the charter.

    (2) The charter may provide—

    • (a) that registered members have a right of access to more information than is available under this clause; and

    • (b) for any conditions that are to apply to the disclosure of that information, including the recovery by the waka umanga of its actual and reasonable costs of disclosure.

21 Requests for information
  • (1) A registered member may request the waka umanga in writing for information that is not available under section 53.

    (2) The waka umanga must either—

    • (a) make the information available within 20 working days of receiving the request; or

    • (b) advise the requester—

      • (i) that an extension of time will be required, the reason for the extension, and the amount of extra time required; or

      • (ii) of the reason for declining the request and that he or she may seek to resolve the matter through a dispute resolution procedure of the waka umanga; or

      • (iii) that the information will be released, but only on specified conditions that may be imposed under section 53.

22 Limits to availability of information
  • (1) Information on a waka umanga that may be requested by a registered member of a waka umanga under clause 21(1) may be withheld under clause 21(2)(b), but only to the extent that this is necessary to—

    • (a) avoid prejudice to the maintenance of law; or

    • (b) avoid endangering the safety of any person; or

    • (c) avoid prejudice to the commercial position of the waka umanga or of another person; or

    • (d) protect the privacy of natural persons to the extent provided for in the privacy policy required by clause 29; or

    • (e) respect traditional knowledge and the culture and practices of the tribal group or Māori association; or

    • (f) protect information supplied in confidence or under a legal obligation, if release would prejudice the supply of further information and be against the best interests of the waka umanga; or

    • (g) protect the free and frank expression of opinion within the waka umanga, and protect its governors and employees from improper pressure or harassment; or

    • (h) maintain legal professional privilege; or

    • (i) protect negotiations in which the waka umanga is involved, including industrial relations and commercial negotiations; or

    • (j) prevent disclosure or use of information for improper gain or advantage.

    (2) A waka umanga may decline to make information available if—

    • (a) the information requested is already available to the member or will shortly be available; or

    • (b) the information requested cannot be made available without substantial collation or research; or

    • (c) the particular request for information, or series of requests, is vexatious or trivial.

    (3) If a waka umanga considers that the information requested is sensitive, it may, before releasing the information, require an undertaking that the information will not be disclosed to persons who are not registered members of the waka umanga.

    (4) Every request for information must be considered by the chief executive or an employee with delegated power to consider requests.

    (5) In appropriate cases, the chief executive may refer a request for information to the rūnanganui for a decision.

    (6) In the following circumstances, a dispute may be referred to a dispute resolution procedure of the waka umanga in accordance with subpart 1 of Part 4:

    • (a) if a request for information is declined by the waka umanga:

    • (b) if a restriction is placed on the terms of the release of information:

    • (c) if there is a breach of an undertaking given under subclause (3).

Committees

23 Appointment of committees
  • (1) A rūnanganui may—

    • (a) establish 1 or more committees as it considers appropriate; and

    • (b) delegate in writing, whether generally or specifically, any of its powers, except this power of delegation, to any committee established under paragraph (a); and

    • (c) set out any objectives for the committee or rules of procedure it considers appropriate for the conduct of the business of the committee.

    (2) For the purposes of subclause (1)(a), the rūnanganui has the sole power to—

    • (a) appoint the persons to serve on a committee, who—

      • (i) may, but need not, be governors; and

      • (ii) if not governors, must have the skills, experience, and knowledge that, in the opinion of the rūnanganui, will assist the work of the committee; and

    • (b) discharge any or all of the members of a committee; and

    • (c) reconstitute a committee.

    (3) A committee may regulate its own procedure, except to the extent provided for by the rūnanganui under subclause (1)(c).

24 Status of committees
  • (1) A committee is subject to the control of the rūnanganui and must carry out the directions of the rūnanganui to the committee.

    (2) A person appointed to a committee who is not a governor is subject, when discharging his or her duties or functions as a member of that committee, to the duties of a governor under this Act.

    (3) A rūnanganui that delegates a power to a committee is responsible for the exercise of the power by the committee, unless the rūnanganui—

    • (a) had reasonable grounds to believe that the committee would exercise the power in accordance with the objectives and rules of procedure set out by the rūnanganui under clause 23(1)(c); and

    • (b) has properly monitored the exercise of the power by the committee.

Provisions relating to management of waka umanga

25 Role of chief executive
  • (1) The chief executive appointed under section 51 is responsible for—

    • (a) ensuring the prudent and effective management of the resources and activities of the waka umanga; and

    • (b) maintaining systems and processes to enable effective planning and accurate reporting of the financial performance of, and activities undertaken by, the waka umanga; and

    • (c) providing adequate advice, information, and assistance to the rūnanganui; and

    • (d) implementing the resolutions of the rūnanganui; and

    • (e) ensuring, as far as practicable, that the management structures and processes of the waka umanga reflect and reinforce—

      • (i) the need for the separation of governance and management responsibilities; and

      • (ii) the need for the separation of commercial and non-commercial activities; and

      • (iii) the tikanga of the waka umanga; and

      • (iv) best management practices; and

      • (v) the delivery of adequate advice and information to the rūnanganui; and

      • (vi) achievement of the long-term objectives of the waka umanga.

    (2) The rūnanganui and chief executive must enter into a written agreement as to how—

    • (a) performance requirements will be set for the chief executive; and

    • (b) the performance of the chief executive will be assessed.

Contracting and employment policies

26 Contracting policy
  • (1) The chief executive must ensure that the waka umanga has a contracting policy that requires competitive and transparent tendering of contracts above a stated minimum sum, as determined by the rūnanganui.

    (2) Section 180 of the Companies Act 1993 applies to the method by which a waka umanga enters into contracts as if every reference in that section—

    • (a) to a company were a reference to a waka umanga; and

    • (b) to a director were a reference to a governor; and

    • (c) to a constitution of a company were a reference to the charter of a waka umanga.

27 Employees of waka umanga
  • (1) The chief executive is responsible for—

    • (a) employing, on behalf of the waka umanga, the staff of the waka umanga; and

    • (b) exercising the rights, duties, and powers of an employer, including negotiating the terms of employment of the staff of the waka umanga; and

    • (c) providing leadership for the staff of the waka umanga.

    (2) The chief executive must establish and maintain a system for the impartial selection of staff of the waka umanga to ensure that persons best suited to positions or functions in the waka umanga are appointed, including policies for—

    • (a) competitive and transparent employment processes; and

    • (b) rules for the management of conflicts of interest.

    (3) The chief executive may appoint members of the waka umanga to the staff, as long as the appointment is made having regard to the skill, attributes, and experience required for the position.

28 Communication and consultation policy
  • The chief executive must ensure that a communication and consultation policy is prepared for the waka umanga, the purpose of which is to—

    • (a) assist the rūnanganui to recognise at an early stage when consultation with registered members is required; and

    • (b) promote systematic and effective communication and consultation between the waka umanga and the tribal group.

Privacy

29 Privacy policy
  • (1) The chief executive must ensure that a privacy policy is prepared for the waka umanga, setting out the extent to which the registers and other documents relating to registered members of the waka umanga are to be treated as personal information for the purposes of the Privacy Act 1993.

    (2) The policy must not exclude access to the names of registered members.

Meetings of waka umanga

30 Notice requirements for meetings of waka umanga
  • (1) The annual general meeting of the registered members of a waka umanga must be notified not later than 20 working days before the date of the meeting, in accordance with the method of notification provided for in the charter of the waka umanga.

    (2) A special meeting of the registered members of a waka umanga must be notified not later than 15 days after a request has been received under section 55.

    (3) The notices required by subclauses (1) and (2) must state—

    • (a) the time and place of the meeting; and

    • (b) the agenda for the meeting; and

    • (c) whether votes to be taken at the meeting are to be—

      • (i) determinative of the relevant matter; or

      • (ii) indicative only, requiring the rūnanganui to consider the results of the indicative vote; and

    • (d) in the case of the annual general meeting, where copies of the annual report, audited accounts, and any other reports may be obtained; and

    • (e) in the case of a special meeting, where copies of the relevant papers may be obtained.

Key governance documents

31 Long-term plan
  • (1) As a basis for the rūnanganui to be accountable to the registered members of the waka umanga for its long-term intentions for the waka umanga, every rūnanganui must prepare a long-term plan that provides—

    • (a) a focus for the activities of the waka umanga over a period of not less than 5 years; and

    • (b) a financial plan, including a statement of the projected income and expenditure over the period to which the plan relates and information on funding of the proposed activities; and

    • (c) a framework for managing the resources of the waka umanga, including its cash and commercial assets, lands (whether or not classified as protected assets), and its human resources; and

    • (d) the distribution policies of the waka umanga, as required under clause 36; and

    • (e) information on how progress will be measured and reported on during the period to which the plan relates.

    (2) However, a resolution of the rūnanganui to adopt a long-term plan—

    • (a) does not constitute a decision to undertake any specific activity included in the plan; and

    • (b) does not entitle a person to require a waka umanga to implement the provisions of the long-term plan.

    (3) A long-term plan must—

    • (a) be prepared and adopted by the rūnanganui in accordance with the requirements for major transactions provided for by the charter; and

    • (b) be adopted before the commencement of the first year to which it relates by special resolution of the rūnanganui.

    (4) If a rūnanganui wishes the waka umanga to undertake activities that differ significantly from those provided for in its long-term plan, it must amend the long-term plan in accordance with the requirements for a major transaction.

32 Annual plan
  • (1) Every rūnanganui must prepare an annual plan for the waka umanga that must—

    • (a) set out the matters in the long-term plan that are relevant to the year to which the plan relates; and

    • (b) set out the proposed budget for the year to which the plan relates; and

    • (c) identify any variation from the funding information included in the long-term plan for the waka umanga for the year to which the annual plan relates; and

    • (d) provide a basis for the waka umanga to be accountable to its members.

    (2) The annual plan must be adopted by the rūnanganui by ordinary resolution.

Financial reporting documents

33 Annual report
  • (1) Every rūnanganui must prepare an annual report for the waka umanga within 4 months of the end of the financial year to which it relates.

    (2) Section 211 of the Companies Act 1993 (except subsection (1)(c) of that section) applies with any necessary modifications to the requirements for the annual report of a waka umanga, as if every reference to—

    • (a) a company were a reference to a waka umanga; and

    • (b) a director were a reference to a governor; and

    • (c) shareholders were a reference to the registered members of a waka umanga.

    (3) The annual report must—

    • (a) be prepared and adopted by the rūnanganui by ordinary resolution; and

    • (b) be made available to registered members—

      • (i) not later than 20 working days before the annual general meeting of the waka umanga; and

      • (ii) in the manner set out in the charter under subclause (21) of Schedule 2; and

    • (c) provide the information necessary to enable registered members of the waka umanga to make an informed assessment of the operations and performance of the waka umanga for the relevant financial year.

Annual return and accounting records

34 Annual return
  • Every rūnanganui board must provide to the Registrar an annual return in the form approved for the purpose by the Registrar.

35 Accounting records
  • (1) Every rūnanganui board must create and maintain accounting records that—

    • (a) record accurately and explain every financial transaction made by the waka umanga; and

    • (b) enable the financial position of the waka umanga to be determined at any time with reasonable accuracy; and

    • (c) facilitate an accurate audit to be made of the financial statements of the waka umanga.

    (2) The accounting records of a waka umanga must be completed not later than 5 months after the end of the financial year to which they relate.

Distribution of benefits

36 Contents of distribution policy
  • (1) A distribution policy must—

    • (a) set out the basis for the distribution of benefits to the tribal group, registered members, constituent groups, subsidiaries, or other groups; and

    • (b) provide that distributions must be made prudently and in a manner that promotes the current and future well-being of the tribal group or Māori association for which the waka umanga is formed and registered.

    (2) A distribution policy must include—

    • (a) the objectives for which distributions are able to be made; and

    • (b) how the rūnanganui will determine each year what proportion (if any) of the net income and other assets—

      • (i) is to be distributed in that year; and

      • (ii) is to be reinvested in, or applied to, the activities of the waka umanga or its subsidiaries; and

    • (c) the form in which the rūnanganui may make distributions, for example by way of grants, loans, or scholarships; and

    • (d) the categories of persons, groups, or entities that the rūnanganui is permitted to make distributions to; and

    • (e) the procedures and criteria by which decisions must be made on any specific distributions; and

    • (f) how the rūnanganui must report on the distributions made in a financial year.

Part 2
Further provisions relating to voluntary administration

37 Appointment of administrator
  • (1) An administrator may be appointed to a waka umanga by—

    • (a) the rūnanganui board of the waka umanga; or

    • (b) if the waka umanga is in liquidation, the liquidator; or

    • (c) if an interim liquidator has been appointed, the interim liquidator; or

    • (d) a secured creditor holding a charge over the whole, or substantially the whole, of the property of the waka umanga (other than any protected assets); or

    • (e) the Court.

    (2) If the waka umanga is already in administration, an administrator may be appointed only by—

    • (a) the Court; or

    • (b) the creditors, as a replacement administrator for an administrator that the creditors have removed; or

    • (c) the appointor of the first administrator, if that administrator has died, resigned, or become disqualified.

    (3) Every appointment must be in writing and state the date on and from which the appointment takes effect.

    (4) To avoid doubt, the provisions of sections 43 to 45 (which relate to the disclosure of interest) apply in relation to the appointment of an administrator.

38 Appointment by rūnanganui board
  • (1) The rūnanganui board of a waka umanga may appoint an administrator if the rūnanganui board has resolved that,—

    • (a) in the opinion of the governors voting for the resolution, the waka umanga is insolvent or may become insolvent; and

    • (b) an administrator of the waka umanga should be appointed.

    (2) The rūnanganui board must not appoint an administrator if the waka umanga is already in liquidation.

    (3) If an application has been filed for the appointment of a liquidator of the waka umanga by the Court under section 241(2)(c) of the Companies Act 1993 (as applied by section 67 of this Act), the rūnanganui board may appoint an administrator, but only if the administrator is appointed within 10 working days after service on the waka umanga of the application.

    (4) Subclause (3) does not apply after the application has been finally disposed of.

39 Appointment by liquidator or interim liquidator
  • (1) The liquidator or interim liquidator of a waka umanga may appoint an administrator if he or she thinks that the waka umanga is insolvent or is likely to become insolvent.

    (2) The liquidator or interim liquidator may appoint himself or herself to be the administrator if he or she first obtains—

    • (a) the permission of the Court; or

    • (b) in the case of a liquidator but not an interim liquidator, the approval of the creditors of the waka umanga in the form of a resolution passed at a meeting of the creditors.

    (3) A liquidator or interim liquidator must not appoint as administrator a person who is the liquidator’s or interim liquidator’s business or professional partner, employer, or employee, unless the appointment has been approved by the creditors of the waka umanga in the form of a resolution passed at a creditors’ meeting.

    (4) An administrator who is appointed to a waka umanga already in liquidation may apply to the Court for an order under section 250 of the Companies Act 1993 (as applied by section 67 of this Act) terminating the liquidation.

40 Appointment by secured creditor
  • (1) A person who holds a charge over the whole, or substantially the whole, of the property of a waka umanga (other than any protected assets) may appoint an administrator if the charge has become, and is still, enforceable.

    (2) A secured creditor must not appoint an administrator if the waka umanga is already in liquidation.

41 Appointment by Court
  • (1) The Court may appoint an administrator on the application of a creditor, the liquidator (if the waka umanga is in liquidation), or the Registrar.

    (2) The Court may appoint an administrator if—

    • (a) the Court is satisfied that the waka umanga is or may become insolvent, and that an administration is likely to result in a better return for the creditors and members of the waka umanga than would result from an immediate liquidation of the waka umanga; or

    • (b) it is just and equitable to do so.


Schedule 4
Further provisions relating to subsidiaries

s 72

Part 1
Directors of subsidiaries

1 Appointment of directors
  • (1) A waka umanga must adopt a policy that sets out an objective and transparent process for—

    • (a) the identification and consideration of the skills, knowledge, and experience required of directors; and

    • (b) the appointment of directors; and

    • (c) the remuneration of directors.

    (2) The policy must also state—

    • (a) whether governors of the rūnanganui and employees of the waka umanga may be appointed as directors; and

    • (b) if so, any terms and conditions on which an appointment may be made; and

    • (c) whether there is a limit on the number of governors of the rūnanganui who may be appointed as directors of a subsidiary; and

    • (d) if there is, what the limit is.

    (3) A rūnanganui may appoint a person to be a director only if the person has, in the opinion of the waka umanga, the skills, knowledge, and experience to—

    • (a) contribute to the achievement of the objective of the subsidiary; and

    • (b) contribute to the effective governance of the subsidiary, given the nature and scope of its activities.

    (4) An employee of a subsidiary who is appointed to be a director of the subsidiary must resign from his or her position as an employee of the subsidiary before taking up his or her position as a director.

    (5) However, subclause (4) does not apply to the employee if the rūnanganui of the waka umanga resolves, before the employee takes up his or her position as director, that the employee does not have to resign his or her position as an employee.

2 Duties of directors
  • (1) The directors are accountable to the waka umanga for the governance of the subsidiary in accordance with the statement of intent of the subsidiary.

    (2) The directors must ensure that the subsidiary complies with—

    • (a) its statement of intent; and

    • (b) any other obligations under any other enactment.

    (3) This clause does not limit or affect any other duties of directors.

3 Performance monitoring
  • (1) A waka umanga must, at intervals of not more than 6 months, monitor the performance of each subsidiary to evaluate its contribution to the achievement of—

    • (a) the objectives of the waka umanga for the subsidiary; and

    • (b) the long-term outcomes of the waka umanga.

    (2) The monitoring undertaken under subclause (1) must be consistent with the size of the subsidiary and the scale of its business.

4 Annual report
  • (1) Within 3 months after the end of each financial year, the directors must deliver to the waka umanga a report on the subsidiary’s operations during that year.

    (2) The report must include the information required by—

    • (a) clauses 5 and 6; and

    • (b) the subsidiary’s statement of intent for that year.

    (3) This clause does not apply to a subsidiary if it has issued shares that are listed on a stock exchange.

5 Contents of report
  • A report on the operations of a subsidiary under clause 4 must—

    • (a) contain the information that is necessary to enable an informed assessment of the operations of the subsidiary, including—

      • (i) a comparison of the performance of the subsidiary with the statement of intent; and

      • (ii) an explanation of any material variances between that performance and the statement of intent; and

    • (b) if the subsidiary is a company, state the dividend (if any) authorised to be paid, or the maximum dividend proposed to be paid, by the subsidiary on its shares (other than fixed-interest securities) for the financial year to which the report relates; and

    • (c) state the remuneration paid to each director of the subsidiary by way of—

      • (i) fees; and

      • (ii) reimbursing allowances or actual and reasonable expenses.

6 Financial statements and auditor’s report
  • A report on the operations of a subsidiary under clause 4 must include—

    • (a) financial statements for that financial year for the subsidiary prepared in accordance with the requirements in the subsidiary’s statement of intent; and

    • (b) if required by a subsidiary’s statement of intent, an auditor’s report on—

      • (i) the financial statements; and

      • (ii) the performance standards and other measures by which performance was judged in relation to the subsidiary’s objectives.

Part 2
Statement of intent

7 Statement of intent for subsidiaries
  • (1) Despite section 72(3), if a subsidiary has issued shares that are listed on a stock exchange,—

    • (a) the subsidiary is not required to have a statement of intent; and

    • (b) a statement of intent in force at the time that this subclause first applies ceases to have effect from that time.

    (2) A statement of intent must not be inconsistent with the constitution of a subsidiary.

8 Purposes of statement of intent
  • The purposes of a statement of intent are to—

    • (a) state the objectives of a subsidiary for the year; and

    • (b) describe the activities that will be undertaken to achieve those objectives; and

    • (c) provide a basis for the accountability of the directors of the subsidiary to the waka umanga for the performance of the subsidiary.

9 Preparation of statement of intent
  • (1) The directors of a subsidiary must each year deliver to the waka umanga a draft statement of intent not less than 4 months before the end of the waka umanga’s financial year.

    (2) The directors of a subsidiary must—

    • (a) consider, not less than 2 months before the end of the waka umanga’s financial year, any comments made by the waka umanga to the directors on the draft statement of intent; and

    • (b) deliver the completed statement of intent to the waka umanga before the end of the waka umanga’s financial year.

10 Waka umanga must agree or disagree with statement of intent
  • A waka umanga must, as soon as practicable after a statement of intent is delivered to it,—

    • (a) agree to the statement of intent; or

    • (b) if it does not agree, require the statement of intent to be modified under clause 11.

11 Modifications of statements of intent by resolution of waka umanga
  • (1) Despite any other provision of this Act or of the constitution of a subsidiary, a waka umanga may, by resolution, require the directors of the subsidiary to modify the subsidiary’s statement of intent by including or omitting any provision or provisions of the kind referred to in clause 14(1), and the directors to whom notice of the resolution is given must comply with the resolution.

    (2) Before giving notice of the resolution under subclause (1), the waka umanga must consult the directors as to the matters to be referred to in the notice.

12 Modifications of statements of intent by directors
  • The directors of a subsidiary may modify its statement of intent at any time if—

    • (a) the directors have given the waka umanga written notice of the proposed modification; and

    • (b) the waka umanga has agreed to the modification.

13 Obligation to make statements of intent available
  • A completed statement of intent and each modification that is adopted to a statement of intent must be made available, on request, to registered members of the waka umanga.

14 Contents of statements of intent
  • (1) To the extent that it is appropriate to the organisational form of a subsidiary, the following information must be specified in a statement of intent:

    • (a) the objectives of the subsidiary; and

    • (b) the principles of sound governance that the directors of the subsidiary will apply to the governance of the subsidiary; and

    • (c) the nature and scope of any activities to be undertaken by the subsidiary and how the activities will contribute to the objectives of the subsidiary and to the long-term objectives of the waka umanga, as specified in its long-term plan; and

    • (d) if applicable, the ratio of consolidated shareholders’ funds to total assets, and the definitions of those terms; and

    • (e) the accounting policies of the subsidiary; and

    • (f) whether the subsidiary’s financial statements must be audited; and

    • (g) the performance standards and other measures by which the performance of the subsidiary may be judged in relation to its objectives, and any assumptions on which they are based; and

    • (h) any internal and external factors that will or may affect the extent to which the subsidiary is likely to achieve its objectives, and how these factors have been taken into account when setting the objectives, performance standards, and performance measures; and

    • (i) if applicable, an estimate of the amount or proportion of accumulated profits and capital reserves that is intended for distribution to the waka umanga; and

    • (j) the kind of information to be provided to the waka umanga by the subsidiary during the course of those financial years, including the information to be included in each report to the waka umanga (and, in particular, what prospective financial information is required and how it is to be presented); and

    • (k) the procedures to be followed before the subsidiary—

      • (i) subscribes for, purchases, or otherwise acquires any interest or investment in another entity; or

      • (ii) purchases or acquires any land or interest in land; and

    • (l) any activities for which the directors seek payment from the waka umanga; and

    • (m) the directors’ estimate of the commercial value of the waka umanga’s investment in the subsidiary and the manner in which, and the times at which, that value is to be reassessed; and

    • (n) any other matters that are agreed by the waka umanga and the directors.

    (2) If a subsidiary has undertaken to obtain, or has obtained, payment from the waka umanga in respect of any activity, this undertaking or the amount of the payment obtained must be recorded in—

    • (a) the annual report of the subsidiary; and

    • (b) the annual report of the waka umanga.

    (3) The information required under subclause (1) must relate to—

    • (a) the financial year immediately following the financial year specified in clause 8; and

    • (b) each of the immediately following 2 years.

15 Saving of certain transactions
  • A failure by a subsidiary to comply with any provision of this schedule or with any provision in the statement of intent of the subsidiary does not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by the subsidiary.


Schedule 5
Optional processes for resolution of internal disputes

s 74

If any or all of the dispute resolution processes included in this schedule are adopted by a waka umanga, they must be included in the charter of the waka umanga, but may be varied as the waka umanga considers appropriate.

The following dispute resolution process may be included in the charter of a waka umanga with or without modification.

Part 1
Kairongomau (peacemaker)

1 Role
  • (1) The function of kairongomau is to consider complaints from—

    • (a) registered members of the waka umanga or those claiming they are entitled to be registered members:

    • (b) constituent groups:

    • (c) subsidiaries.

    (1) The function of kairongomau is to consider complaints from registered members of the waka umanga or those claiming they are entitled to be registered members.

    (2) The purpose of kairongomau is to ensure, as far as possible, that—

    • (a) the persons lodging complaints are treated fairly in their dealings with the waka umanga; and

    • (b) a resolution of a dispute is achieved that satisfies all parties; and

    • (c) the future relationship between the person or group and the waka umanga is improved, by making recommendations, for example, for changes to policies and practices; and

    • (d) if the complaint is that access to information has been declined, for release of information on a general or limited basis, if and as appropriate.

2 Appointment of kairongomau
  • (1) A person or committee of persons may be appointed by the rūnanganui board to be kairongomau for a term of not more than 5 years, but may be reappointed in the same manner for further terms, as provided for in the charter.

    (2) Kairongomau—

    • (a) may, but need not, be registered members of the waka umanga; but

    • (b) must not be governors of the rūnanganui board or directors of a subsidiary.

    (3) The rūnanganui board must make available to the registered members of the waka umanga—

    • (a) the terms and conditions on which kairongomau are appointed; and

    • (b) the remuneration that is to be paid to kairongomau.

3 Complaint procedure
  • (1) The persons or bodies entitled to make complaints under this Part must do so in writing to kairongomau.

    (2) Complaints may relate to a decision or action of the waka umanga affecting the complainant, directly or indirectly.

    (3) Kairongomau may consider complaints in the manner they think fit, as long as the principles of natural justice are observed by means such as—

    • (a) hearing individually from complainants and the person or body that is the subject of complaint, and if relevant, any other person with an interest in the matter complained of:

    • (b) convening formal or informal meetings of those involved in, or with an interest in, the matter complained of:

    • (c) receiving written submissions.

    (4) Kairongomau may also seek expert assistance, for example, on accounting or legal questions, to assist the kairongomau or the parties.

    (5) The cost of advice received under subclause (4) must be met by the waka umanga unless kairongomau direct otherwise.

4 Determination
  • (1) In determining complaints, kairongomau must endeavour to seek a resolution that satisfies all the parties involved in, or who have an interest in, a matter complained of.

    (2) A rūnanganui board or person or body that is the subject of a complaint is not obliged to adopt the recommendations of kairongomau, but the rūnanganui board, person or body that is the subject of complaint must give reasons in writing to kairongomau in relation to any recommendations that are not adopted.

    (3) A settlement reached as a result of a recommendation of kairongomau is binding on the parties.

5 Reporting obligations of kairongomau
  • (1) Kairongomau must report in writing annually to the rūnanganui board as to the outcome of any complaints referred to them, in a way that does not breach the confidentiality of the complainants.

    (2) The reports of kairongomau must be included in the annual report of the waka umanga.

Part 2
Mediation

6 Interpretation
  • In this Part, unless the context otherwise requires,—

    dispute means the internal dispute described in the dispute notice

    dispute notice means a notice relating to an internal dispute, as provided for by clause 8

    mediation agreement means an agreement, whether or not in writing, as to the process by which the mediation is to be conducted, as provided for by clause 11

    mediator means an impartial third person appointed under clause 10 to assist the parties to reach an agreed settlement of the dispute

    notice in response means a notice provided for by clause 9

    party means a person, including a group of persons, whether or not incorporated

    settlement agreement means an agreement, whether or not in writing, reached at or after a mediation in settlement of part or all of a dispute.

7 Reference to mediation
  • Any party to an internal dispute may refer an internal dispute to mediation, in accordance with this Part, or as this Part is varied by the waka umanga in its charter.

8 Dispute notice
  • (1) A party to an internal dispute may serve a dispute notice on any party to that dispute.

    (2) A dispute notice must—

    • (a) state that it is served under this Act; and

    • (b) state the nature of the dispute and give a brief description of the subject matter of, and the parties to, the dispute; and

    • (c) describe where and when the dispute arose; and

    • (d) set out the names and contact addresses of the parties; and

    • (e) state that the party issuing the dispute notice wishes the dispute to proceed to mediation; and

    • (f) provide the full name and contact address of the party or person serving the dispute notice.

    (3) The dispute notice may nominate 1 or more mediators.

9 Notice in response
  • (1) Each party on whom a dispute notice is served under clause 8 must, not later than 10 working days after receiving the dispute notice, serve a notice in response on—

    • (a) the party that served the dispute notice; and

    • (b) every party named in the dispute notice.

    (2) A notice in response must state—

    • (a) that it is served under this Act; and

    • (b) whether the party serving the notice in response agrees—

      • (i) with the description of the dispute set out in the dispute notice; and

      • (ii) that the dispute notice correctly identifies the parties to the dispute; and

      • (iii) to the dispute being mediated; and

    • (c) which of the mediators nominated in the dispute notice, if any, are acceptable to the party responding.

    (3) A notice in response may nominate 1 or more alternative mediators.

10 Appointment of mediator
  • (1) A mediator may be appointed as soon as the parties have agreed on who is to be appointed.

    (2) If the parties are unable to agree on a mediator, the parties must jointly request that a mediator be appointed by the person designated for that purpose in the charter.

11 Mediation agreement as to procedure
  • The mediator and the parties must, within 20 working days after the mediator has been agreed under clause 10(1) or appointed under clause 10(2), settle the procedure for the mediation, which must include agreements on the following matters:

    • (a) who has the authority to represent and bind the parties:

    • (b) who may attend the mediation, including legal counsel and experts:

    • (c) an agreement as to whether the mediation is to be confidential, including who may be informed about any confidential matter:

    • (d) the extent, if any, to which the marae procedures are to be adopted:

    • (e) requirements as to privilege in respect of the mediator, the parties, and other persons attending the mediation:

    • (f) how the costs of the mediation are to be met:

    • (g) whether te reo Māori is to be used and, if so, whether there is to be a translator present:

    • (h) whether the mediator may engage an expert assessor or co-mediator for a stated or any purpose:

    • (i) exclusion of liability for the mediator:

    • (j) disclosure of conflict of interest by the mediator:

    • (k) how the mediation agreement may be terminated:

    • (l) any other matter that the mediator and the parties agree, having regard to the nature of the dispute, is appropriate to best meet the needs and interests of the parties.

12 When mediation must proceed
  • A dispute must proceed to mediation as soon as is reasonably practicable after all notices in response have been served under clause 9, as long as all parties agree—

    • (a) that the dispute should be mediated; and

    • (b) as to the mediator; and

    • (c) on the procedure for the mediation, as recorded in the mediation agreement required by clause 11.

13 When mediation cannot proceed
  • (1) The mediation of a dispute cannot proceed if—

    • (a) a party on whom a dispute notice is served does not serve a notice in response in accordance with clause 9; or

    • (b) a mediation agreement is not entered into in accordance with clause 11; or

    • (c) at any time a party to the dispute gives notice of that party’s withdrawal from the mediation.

    (2) However, if 1 party to the dispute gives notice of withdrawal from the mediation, that does not prevent other parties to the dispute from agreeing to enter into a new mediation agreement.

14 Confidentiality, privilege, and costs
  • (1) Except as required by law or unless otherwise agreed in the mediation agreement, the matters discussed, raised, agreed, admitted, or determined in, or in the course of, a mediation—

    • (a) must not be disclosed by the parties, the mediator, or persons attending the mediation; and

    • (b) are not admissible in a court, tribunal, or other forum or before a person acting judicially, unless for the purpose of enforcing a settlement agreement.

    (2) A breach of the confidentiality required by subclause (1)(a) is a breach of an essential term of the settlement agreement.

    (3) Unless the charter or the mediation agreement provides otherwise, the parties must—

    • (a) meet their own costs and expenses in relation to the mediation; and

    • (b) pay on an equally shared basis the fees and expenses of the mediator.

15 Resolution of dispute
  • (1) If resolution is reached on the whole or part of a dispute as a result of or in the course of mediation, the terms of the settlement must be recorded in a settlement agreement.

    (2) A settlement agreement is binding on the parties.

    (3) A party may enforce the settlement agreement (including the time within which the parties agree to comply with the agreement) by way of an application to the Court under section 84(1)(d).

16 No court proceedings or enforcement action
  • (1) If a dispute notice is served under clause 8, no party may commence or continue proceedings in any court or tribunal in relation to any matter related to the dispute described in the dispute notice until—

    • (a) the steps required by clauses 9 to 11 have been completed; and

    • (b) the mediation agreement entered into under clause 11 has been terminated.

    (2) However, subclause (1) does not prevent a party from applying to the Court for—

    • (a) an interim injunction under section 87, pending the resolution of the dispute by mediation or other dispute resolution process provided for by the charter; or

    • (b) a stay of proceedings commenced or continued in breach of subclause (1).

Part 3
Arbitration

17 Arbitration for internal dispute
  • (1) If the parties consent, an internal dispute may be referred to arbitration under the Arbitration Act 1996.

    (2) The arbitrator must be appointed—

    • (a) by agreement of the parties to the internal dispute; or

    • (b) if the parties are unable to agree,—

      • (i) by the person designated for the purpose in the charter; or

      • (ii) if the parties so request, by the President of the Arbitrators and Mediators Institute of New Zealand.

18 Application of Arbitration Act 1996
  • If a dispute is referred to arbitration under section 75(1) or clause 17, the rights of the parties are limited to those conferred by the Arbitration Act 1996.


Schedule 6
Applications to Māori Land Court

ss 76, 80, 84, 86

1 Contents of applications to Māori Land Court
  • (1) An application to the Court must be made in form 1 of the Māori Land Court Rules 1994.

    (2) If the applicant seeks—

    • (a) an interim injunction, the application must include a memorandum of the grounds on which it is sought and any undertaking offered in respect of damages or other matters:

    • (b) to transfer the proceedings to the High Court, the application must include—

      • (i) a memorandum of the grounds on which the transfer is sought; and

      • (ii) if applicable, the consent of the other parties.

    (3) Applications must be filed in the office of the Chief Registrar of the Court, regardless of the location of the registered address of the relevant waka umanga.

2 Persons who must be served
  • Every application made under subpart 2 of Part 4 must be served on—

    • (a) the entities and constituent groups referred to in section 20(1)(b); and

    • (b) unless otherwise provided for, the Minister of Māori Affairs and entities referred to in section 21(2)(b).

3 Persons entitled to appear and be heard
  • The persons entitled to appear and be heard in applications made under subpart 2 of Part 4 are—

    • (a) the applicant; and

    • (b) the entities and constituent groups whose status as a party is provided for in that subpart; and

    • (c) persons who, by order of the Court, must be served; and

    • (d) any other persons whom it is sought to bind by the decision of the Court or whose presence the Court considers necessary for the just determination of the issues; and

    • (e) the Registrar, if service on the Registrar is provided for in that subpart.

Interlocutory matters

4 Applications to be assigned to Judge
  • (1) Within 10 working days of receiving an application under subpart 2 of Part 4 (other than an application for an interim injunction), the Chief Judge of the Māori Land Court must assign the matter to a Māori Land Court Judge for consideration.

    (2) The Judge to whom an application is assigned may be from a district other than the district in which the registered office of the relevant waka umanga is located.

5 Judicial conference required
  • (1) Within 20 working days of an application being assigned to a Judge under clause 4, the Judge must convene a judicial conference of the parties to give directions as to how the case is to proceed.

    (2) The parties may agree to a longer period than 20 working days.

6 Orders that may be made at judicial conference
  • (1) In addition to the powers of a Māori Land Court Judge under section 67 of Te Ture Whenua Maori Act 1993, the Judge may, at a judicial conference convened under clause 5, make orders in relation to the substantive issues of the application, as by—

    • (a) agreeing to any consent orders requested by the parties:

    • (b) in relation to an internal dispute, declining to hear the application unless the appropriate dispute resolution processes required under the charter have been completed:

    • (c) with the consent of the parties, referring the application to a mediator appointed by the Court in accordance with clause 7 or to another agreed dispute resolution process:

    • (d) dismissing the application as vexatious or an abuse of process.

    (2) The Māori Land Court Judge may, by order, in relation to the future conduct of an application,—

    • (a) add or remove any party to the proceedings:

    • (b) give directions as to discovery and inspection of documents by the parties in relation to specified matters:

    • (c) if required under subpart 4 or 5 of Part 3, appoint an investigator, commissioner, receiver, or liquidator:

    • (d) if the Court considers it necessary, appoint counsel to assist a party or the Court, on terms specified by the Court, including terms as to the payment from the Māori Land Court Special Aid Fund.

    (3) Section 98 of Te Ture Whenua Maori Act 1993 applies with any necessary modifications to any order made under subclause (2)(d).

    (4) If the Registrar is not a party to proceedings in which a judicial conference is convened under clause 5, the Chief Registrar of the Māori Land Court must notify the Registrar of any orders made under this clause.

7 Power to appoint mediator
  • (1) Before a Māori Land Court Judge may make an order under clause 6 to refer an application to a mediator, he or she must consult the parties about whom to appoint as the mediator.

    (2) The parties may, by agreement, appoint 1 or more persons with the skills and experience to undertake mediation on the issues relevant to the application.

    (3) If the parties do not agree on the person to be appointed as the mediator, the Judge to whom the application is assigned must—

    • (a) appoint 1 or more persons to act as mediator; but

    • (b) before doing so, be satisfied that the person appointed has the skills and experience to undertake mediation on the issues relevant to the application.

8 Power to appoint additional members
  • (1) The Chief Judge of the Court, or any other Judge of the Court with the consent of the Chief Judge, may, in relation to an application made under subpart 2 of Part 4, appoint 1 or 2 additional members of the Court who are not Judges of the Court.

    (2) In making appointments under subclause (1), the Chief Judge or other Judge must be satisfied that—

    • (a) the appointment of persons with particular knowledge and experience will assist the determination of the application; and

    • (b) the proposed additional members have the knowledge and experience relevant to the application.

    (3) Before making an appointment under subclause (1), the Chief Judge or other Judge must consult with the parties as to whether—

    • (a) it is appropriate to appoint additional members to the Court; and

    • (b) the proposed additional members have the relevant knowledge and experience.

9 Decision of Court
  • In a proceeding where 1 or 2 additional members are appointed under clause 8,—

    • (a) the decision of a majority of the members present at a sitting of the Court is the decision of the Court; and

    • (b) if, in the proceeding, the members present are equally divided in opinion, the decision of the Judge is the decision of the Court.

Directions

10 Directions of Court
  • Directions given by the Court under this Act become final on the latest of the following dates:

    • (a) any date specified in the direction:

    • (b) the date by which an appeal may be lodged against the direction and no appeal has been lodged:

    • (c) if an appeal has been lodged against the direction, the date by which the appeal has been finally disposed of.


Legislative history

21 November 2007Introduction (Bill 175–1)
11 December 2007First reading and referral to Māori Affairs Committee
8 September 2008Reported from Māori Affairs Committee (Bill 175–2)