Trustee Amendment Bill

We come here today, to see what the problem is with an Act that’s been around longer than I have.

The Trustee Act 1956 creates legal entities for specific purposes, as they were relevant for the days gone by.

Problem is, while Maori groups have managed to make these models work, none of the legal entities included in the 1956 Act cater adequately for the multi-purpose objectives of tribal entities.

Nor, surprise, surprise are any of these legal entities specifically based on Maori values and aspirations.

Now while I’m sure the Government will be quick to point that that the overarching governance needs of a tribe are going to be brilliantly catered for by means of the Waka Umanga Maori Corporations Bill, the issue is that the Waka Umanga Bill – no matter how brilliant – is at best a voluntary approach.

In effect then, while those entities which are already managing tribal assets may eventually opt to become waka umanga, in the mean time we need to be sure that the deficiencies of trust, company and incorporated society structures for Maori can be sorted out before then.

Madam Speaker, thinking about this notion of ‘trust’ meaning we should have confidence and hope that these things can work for us – we acknowledge that there are some aspects of the Trustee Act which can be quite complementary to tikanga Maori.

Trustees do not own the property that they are trustees of; instead, they are owned by the trust. Their role is to care for the assets, in trust, for the beneficiaries – in some ways similar to the role of kaitiaki, for the purposes of future generations.

But of course for a trust to be successful, the trustees must be sufficiently ‘on-to-it’ to ensure they understand the full extent of their legal obligations.

It’s not just about putting Uncle in the position of Trustee, because he’s our key speaker on our paepae, or is worthy of our collective respect because of the dedicated service he has given to our iwi.

And it’s also not about putting one of the cuzzies who’s an accountant around the table, simply because we think they should know what the haps is.

The critical issue is that anyone assuming the role of a trustee must be prepared to learn up about the powers and responsibilities that come with the position.

They need to know about the powers they can exercise and the limitations on these powers if they are to avoid being in breach of their fiduciary duties – in other words, their duty to act in accordance with the trust deed.

Well Madam Speaker, that’s all good stuff.

Unfortunately, however, there’s also just a few issues that need attending to.

Although trust deeds can be designed to try to promote participation, essentially the structure of trusts is not democratic.

In essence, the trust structure more often or not creates a system by which tribal members get treated like passive beneficiaries.

Now I can’t speak for anyone else – but I’m pretty sure that if I was to go home and say to the people of Ngati Rangiwewehi or my people of Ngapuhi that they couldn’t have a say, just wait and ye shall receive, I think I’d be told to get out of town pretty smart.

Being part of whanau, hapu and iwi means you get involved in the business of iwi politics for life. It is about leaders being directly accountable to the people.

So while a private trust as set up under the Trustee Act 1956 can be easy and relatively cheap to establish, its basic structure does not reflect the accountability and transparency requirements of a collective entity.

To cut it short, Madam Speaker– it doesn’t fit with being Maori.

Another one of the issues is that Trusts are not corporate bodies in their own right, unless incorporated under the Charitable Trusts Act 1957.

This means that where there are several responsible trustees, as is usually the case with tribal trusts, all significant legal documents have to be signed by all trustees whose own names are shown on share registers and titles to land, even though they hold the property as fiduciaries.

Now I need to say right from the start, that would take forever and a day, believe me.

It’s a process which is extremely cumbersome, and doesn’t suit who we are.

The other related issue of course is that it causes additional legal expense every time a trustee has to be replaced or is unavailable.

To enforce the terms of the trust, beneficiaries must apply to the High Court to review the decisions of the trustees.

Well, just to state the obvious, the cashflow problem can’t be ignored.

We have to remember that the median income of the New Zealand population is $24, 400 but that Maori sit $3500 below that on $20,900.

So there’s not a lot of extra cash left over to go to Court for the technicality of trusteeship.

An earlier Law Commission report entitled the Treaty of Waitangi Claims: Addressing the Post-Settlement Phase: An Advisory Report for Te Puni Kokiri, 2002 found that entities such as companies, trusts and incorporated societies often have limited accountability and transparency requirements, and there is usually no internal disputes resolution mechanism.

Most disputes need to be determined by the High Court, which can involve groups in long and expensive litigation, and often fail to deal adequately with the underlying issues.

Well that’s not going to work for us either, unfortunately. The beauty of hui is that we are put in a position where we have to sit across from our relatives and sort out our stuff.

We do not need lawyers, they are usually expensive and I am not sure about their ability to bring about resolution anyway. What we need is the time to hear the stories of the journey which has ended in our having to meet to sort out our issues.

It is not about winning or losing.

It is about ensuring that at the end of the day, whether we have resolved our issues or not, the unseen bonds which tie us, our whakapapa relationships are sufficiently intact to ensure that in times of crisis we can still awhi each other, we can still hug each other.

So it all comes back again to this crucial belief in someone or something.

Trust is defined as hope or expectation.

And we trust and hope that Labour will pick up on the need to work with Maori in amending the Trustee Act 1956.