Sunday, September 29, 2013

Mike Butler: Self-interest hobbles forestry trust



The organisation which funds Maori lodging Treaty of Waitangi claims over Crown forests remains unable to fulfil its obligations because of High Court action by a trustee, Sir Eddie Durie, supported by fellow trustee Maanu Paul, and one of the trust’s appointors, the New Zealand Maori Council. This boardroom stoush offers a snapshot of treaty industry politics.

The Crown Forestry Rental Trust was created in April 1990, as required by an agreement between the Crown and the New Zealand Maori Council to transfer Crown forestry assets, to receive forestry rentals, fund claims, and disburse rentals should forestry land be transferred to Maori.

A message to clients posted on the trust's website, dated March 28, 2013, said the proceedings sought to clarify the process for the appointment of alternate trustees to the trust to act in place of a permanent trustee on matters where there is a conflict of interest. (1)

Proceedings were initiated on March 22. The trust was in the mean time restricted to considering matters where there was no conflict of interest. A court hearing was set down for April 15. There is no further information on the trust’s website on the outcome of the hearing.

The trust, which funds Waitangi Tribunal hearings, said it has had to defer $8-million worth of funding to claimants this year. That put Ngapuhi hearings in doubt, so the Government funded the first four weeks of those hearings at a cost of $300,000. (2)

Deals that involve conflict of interest are listed in trust annual reports. A total of $7.5-million of such transactions have been listed in reports from 2001 to 2012, with the biggest such transactions connected with trustees Whaterangi Winiata ($3.8-million), Graham Latimer ($1.9-million) and Janet Mason ($976,370).

But these amounts pale into insignificance when considering the trust, which has been operating since 1990, has received a total of $836.53-million (forestry rentals and interest) and disbursed to claimants over that time a total of $671.99-million.

The trust deed has a clear process to deal with such cases. Clause 6.8 requires a trustee to declare a conflict of interest should it arise, and 6.9 said that the relevant appointor, in this case is the Maori Council and Federation of Maori Authorities, should appoint an alternate. (3)

The Crown appoints three trustees and the chairperson, while Maori Council and Federation of Maori Authorities appoint three trustees.

Durie wanted to have politician, media personality and political commentator John Tamihere, whose wife is a Durie, take his place, arguing that the person proposed to sit instead of him risks "skewing the delicate political balance". Peter Charlton had been proposed, but Durie and the Maori Council said Charlton was more aligned to the Federation of Maori Authorities, which he used to lead, than the Maori Council, which Durie co-chairs. (4)

John Tamihere is a member of the Maori Council executive. But he is not one of the appointed alternates. Durie and the Maori Council say the court should interpret the trust deed to mean that each trustee has a designated alternate.

The three Crown-appointed trustees and one Maori appointee are happy for alternates to be chosen from a pool. The remaining Maori appointee, Maori Council co-chair Maanu Paul, sided with Durie, saying he regretted the delays in funding for claimants, but maintained the legal action they've taken was necessary. (5)

Ngapuhi claimants have been most affected by Durie's court action. Kaikohe lawyer Moana Tuwhare said if the trustees can't work together, it may be time to replace them, adding "the trust's argument about alternate trustees should have been able to be sorted out in half a day". (6)

The Maori Council should not purport to speak for all Maori, according to Ngati Kahu chairperson Margaret Mutu. (7) It appears to be controlled by Durie, Paul, and Durie’s wife legal counsel Donna Hall, whose collective self-interest has hobbled the activities of the Crown Forestry Rental Trust.

Sources:
1. Email to Crown Forestry Rental Trust clients, http://www.cfrt.org.nz/doclibrary/public/thestorehouse/HighCourtproceedingsCrownForestryRentalTrustFundingAssistance.pdf
2. Ngapuhi call for forestry trust to get act together, http://www.radionz.co.nz/news/te-manu-korihi/213936/ngapuhi-call-for-forestry-trust-to-get-act-together
3. Trust Deed for the Crown Forestry Rental Trust. http://www.cfrt.org.nz/doclibrary/public/aboutthetrust/CrownForestry_TrustDeed.pdf
4. Bid for Tamihere to sit in for Durie, http://www.stuff.co.nz/national/politics/8505835/Bid-for-Tamihere-to-sit-in-for-Durie
5. Maanu Paul's health on the improve, http://www.radionz.co.nz/news/te-manu-korihi/217931/maanu-paul's-health-on-the-improve
6. Ngapuhi call for forestry trust to get act together, http://www.radionz.co.nz/news/te-manu-korihi/213936/ngapuhi-call-for-forestry-trust-to-get-act-together
7. Maori Council lacks accountability - Ngati Kahu, http://www.radionz.co.nz/news/te-manu-korihi/222584/maori-council-lacks-accountability-ngati-kahu

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