New Zealand Maori Council v Federation of Maori Authorities Inc

[2015] NZHC 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-405 [2015] NZHC 2019

UNDER

the Trustee Act 1956

BETWEEN

THE NEW ZEALAND MĀORI

COUNCIL First Applicant

SIR EDWARD TAIHAKUREI DURIE Second Applicant

AND

FEDERATION OF MĀORI AUTHORITIES INC Respondent

Hearing:

25 August 2015

Counsel:

F E Geiringer and M I de Villiers for Applicant

N I Burley and M T Brown for Respondent S A Barker for Trustees (leave to withdraw) D N Soper for Attorney-General (abiding)

Judgment:

26 August 2015

JUDGMENT OF THE HON JUSTICE KÓS

[1]      The Crown Forestry Rental Trust has six trustees. Three appointed by the Crown,  and  three  by  the  Māori Appointor.    The  Māori Appointor  is  a  fiction, comprising the New Zealand Māori Council and the Federation of Māori Authorities. Fiction has given way to faction, and to friction.  For all practical purposes the Māori Appointor is non-functioning.  For all practical purposes, this Court is now serving as the Māori Appointer.  That is regrettable.

[2]      The history of the dispute is set out in [4]–[12] of my judgment of New

Zealand Māori Council v Foulkes.1  In particular, I have issued three judgments:

1      New Zealand Māori Council v Foulkes [2015] NZHC 489.

THE NEW ZEALAND MĀORI COUNCIL v FEDERATION OF MĀORI AUTHORITIES INC

[2015] NZHC 2019 [26 August 2015]

(a)       In July 2014, addressing 13 issues on which trustees were disagreed.

These  concerned  the  funding  approval  process,  trustee  decision- making, conflicts of interest and the appointment of new trustees.2

(b)In November 2014, dealing with three further issues relating to new trustee appointments.3   In that judgment I appointed two trustees and four alternative trustees, filling vacancies left after the expiry of terms of office and non-appointment by the Māori Appointor.

(c)      In March 2015 I gave judgment on costs,4 holding that costs for the preceding litigation were a matter for submission to, and approval by, the trustees.   They could be met out of the trust fund if reasonably incurred and not excessive.

[3]      That is the background.

[4]      The issue before me today is whether I should reappoint one of the present

Māori trustees, Sir Edward Durie.   His first term as a trustee has expired.   On

17 June 2015, and without opposition,  I made an order extending Sir  Edward’s appointment from 1 July 2015 to 24 August 2015.  It is accepted that it has been the past practice of the Māori Appointor to re-appoint trustees for a second three year term.   It is also accepted that that practice does not give rise to a right of re- appointment.   Of course, the Māori Appointor cannot agree anything at all at the moment.  The New Zealand Māori Council (and Sir Edward who co-chairs it) want him re-appointed. The Federation of Māori Authorities does not.

[5]      Should I re-appoint Sir Edward a trustee?  If not, whom should I appoint?

[6]      I have decided that I will re-appoint Sir Edward for a further term.   My reasons for doing so are as follows.

2      New Zealand Māori Council v Foulkes [2014] NZHC 177.

3      New Zealand Māori Council v Foulkes [2014] NZHC 2757.

4      New Zealand Māori Council v Foulkes, above n 1.

[7]      First, there is wisdom in the practice of the Māori Appointor to re-appoint on completion of the first term.  Valuable experience would otherwise be squandered. In the present case, a reappointment for three years from the original date of expiry will not result in all three Māori trustees expiring at the same time.  The two others expire in November 2017. And they will be eligible for reappointment.

[8]      Secondly, it is accepted by all parties that Sir Edward meets the qualities required for trusteeship outlined in my 6 November 2014 judgment.5   It is accepted that Sir Edward has not failed to be impartial.  He has great mana within, and great understanding of the broad interests of, Māoridom.

[9]      Thirdly,  since  my November  2014  decision  appointing  two  entirely new Māori trustees, the Trust (including Sir Edward) has been operating efficiently.   I sought a report from the trustees.  Seven meetings of the newly-configured Trust had been held as at the date of the report. A number of client funding decisions had been made.    Regular  financial  administration  reporting  had  occurred.    The  alternate system  was  working  well  where  trustees  identified  a  conflict  of  interest.    The trustees’ report concluded:

…the trustees consider the Trust is working effectively.

[10]     Fourthly, in these circumstances the Court can have reasonable confidence that the state of deadlock and disagreement that previously existed is unlikely to recur.  Crucial issues of principle have been ventilated, and resolved, in the earlier proceeding.  There is only a very limited appeal from my principal judgment.  I was informed today that it is now likely that appeal will be discontinued.  In short, there is no reason why disagreement at the trustee level should reassert itself.

[11]     Fifthly, the only reason therefore not to re-appoint Sir Edward, consistent with past practice of the Māori Appointor, would be to voice some disapproval of his responsibility for the earlier disagreement and litigation.   I do not consider that embarking on that course now would be a constructive step to take.  I took the same

approach when I dealt with costs in my March 2015 judgment.

5      New Zealand Māori Council v Foulkes, above n 3 at [13]–[17].

Result

[12]     Sir Edward Durie is re-appointed trustee of the Crown Forestry Rental Trust for the period 25 August 2015 to 30 June 2018, provided however that the Māori Appointor may apply to the Court during the term of this appointment for approval of the substitution of another suitable person upon which it is agreed.6

[13]     My view is that costs on this application should lie where they fall. Parties may however choose to submit otherwise. If so, they must do so promptly.

Stephen Kós J

Solicitors:

Woodward Law Offices, Lower Hutt for Applicants Johnston Lawrence, Wellington for Respondent Crown Law, Wellington for Attorney-General

6      A similar proviso was expressed in my November 2014 appointments: New Zealand Māori

Council v Foulkes, above n 3 at [21].