Trust Deed of Kahukuraariki Trust

 In this Trust Deed, unless the context otherwise requires:

“Adult Member of Ngatikahu ki Whangaroa” means a Member of Ngatikahu ki Whangaroa who is 18 years of age or over;

“Adult Registered Member of Ngatikahu ki Whangaroa” means a Member of Ngatikahu ki Whangaroa identified on the Register as being 18 years of age or over;

“Annual Plan” means the annual plan of the Trust which is prepared in accordance with clause 9.1;

“Annual Report” means the annual report of the Ngatikahu ki Whangaroa Group which is prepared by the Trustees in accordance with clause 10.1;

“Balance Date” means 30 June or any other date that the Trustees by resolution adopt as the date up to which the Trust’s financial statements are to be made in each year;

“Business Day” means any day on which registered banks are open for business in Auckland;

“Chairperson” means the chairperson from time to time of the Trust appointed by the Trustees in accordance with rule 4 of the Third Schedule;

“Chief Executive” means the person appointed in accordance with clause 5.1;

“Chief Returning Officer” means as the context requires:

(a)        the person appointed from time to time as chief returning officer for the purposes of Trustee elections in accordance with rule 10 of the Second

Schedule; or

(b)       the person appointed as chief returning officer for the purposes of a Special Resolution in accordance with rule 7.1 of the Fourth Schedule;

(c)        the person appointed as chief returning officer for the purposes of a Restricted Transaction Resolution in accordance with rule 7.1. of the Sixth

            Schedule;

“Consolidated Financial Statements” means the consolidated financial statements of the Ngatikahu ki Whangaroa Group prepared by the Trustees in accordance with clause 10.1;

“Custodian Trustee” means the custodian trustee that may be appointed or Incorporated in accordance with clause 25.1;

“Customary Rights” means rights according to tikanga Māori (Māori customary Values and practices) including:

(a)        rights to occupy land; and

(b)       rights in relation to the use of land or other natural or physical resources;

“Deed” and “Trust Deed” mean this deed of trust and include the background and

the schedules to this deed;

“Deed of Settlement” means the deed dated 07 November 2015 between the mandated body of Ngatikahu ki Whangaroa and the Crown recording the settlement of the Ngatikahu ki Whangaroa Claims;

“Deputy Chairperson” means the deputy chairperson from time to time of the Trust if one is appointed in accordance with rule 4 of the Third Schedule;

A person is “descended” from another person if the first person is descended from the other by;

(a) birth; or

(b) legal adoption; or

(c) Māori customary adoption in accordance with Ngatikahu ki Whangaroa’s tikanga (Māori customary values and practices);

“Disputes Committee” means a committee formed in accordance with clauses 31.4 and 31.5;

“Electoral Review Officer” means the person appointed to act as electoral review officer in accordance with rule 13.2 of the Second Schedule;

“Five Year Plan” means the five year plan of the Trust prepared in accordance with clause 9.2;

“Income Year” means any year or accounting period beginning 1 July of one calendar year and ending 30 June of the following calendar year or any other period that the Trustees by resolution adopt;

“Initial Trustees” means the Trustees identified in clause 3.1;

“Major Transaction” in relation to any member of the Ngatikahu ki Whangaroa Group means:

(a)        the acquisition of, or an agreement to acquire, whether contingent or not, Property by that member the value of which is more than half the value of the Trust’s Assets before the acquisition; or

(b)       the disposition of, or an agreement to dispose of, whether contingent or not, Property by that member the value of which is more than half the value of the Trust’s Assets before disposition; or

(c)        a transaction that has or is likely to have the effect of that member acquiring rights or interests or incurring obligations or liabilities that value of which is more than half the value of the Trust’s Assets before the transaction; or

(d)       the disposition of Stony Creek Station pursuant to clause 33;

but does not include:

(e)        any transaction entered into by a receiver appointed pursuant to an instrument creating a charge over all or substantially all of the Trust’s Assets

(whether the Assets are held by the Trust or any other member of them Ngatikahu ki Whangaroa Group); or

(f)        any acquisition of Property by a member of the Ngatikahu ki Whangaroa Group from any other member of Ngatikahu ki Whangaroa Group; or

(g)        any disposition of Property by a member of the Ngatikahu ki Whangaroa Group to any other member of the Ngatikahu ki Whangaroa Group; or

(h)       the transfer to or receipt by the Trust of settlement redress in accordance with the Deed of Settlement and/or Settlement Act;

Nothing in paragraph (c) of this definition applies by reason only to that member giving, or entering into an agreement to give, a charge secured over assets of the member the value of which is more than half the value of the Trust’s Assets for the purpose of securing the repayment of money or the performance of an obligation. For the purposes of paragraphs (a) to (c) of this definition, the value of the Trust’s Assets shall be calculated based on the value of the assets of the Ngatikahu ki Whangaroa Group;

“Marae” means the marae of Ngatikahu ki Whangaroa recognised by the Trust For the purposes of Trustee representation as specified in the Fifth Schedule;

“Member of Ngatikahu ki Whangaroa” means an individual referred to in paragraph (a) of the definition of Ngatikahu ki Whangaroa;

“Ngatikahu ki Whangaroa” means:

(a) the collective group composed of individuals who descend from one or more of Ngatikahu ki Whangaroa’s Ancestors; and

(b) every whanau, hapu, marae or other group to the extent that it is composed of individuals referred to in paragraph (a) of this definition, including the following hapū:

1. Ngāti Aukiwa
2. Te Hoia
3. Ngāti Kaitangata
4. Te Pohotiare
5. Ngāti Rangimatamomoe
6. Ngāti Roha
7. Ngāti Rua

(c) every individual referred to in paragraph (a)

“Ngatikahu ki Whangaroa Ancestor” means an individual who exercised Customary Rights by virtue of being descended from:

(a)        Kahukuraariki; or

(b)       a recognised ancestor of any of the groups referred to in paragraph (b) of the definition of Ngatikahu ki Whangaroa; and

(c)        who exercised customary rights predominantly in relation to Ngatikahu ki Whangaroa Area of Interest at any time after 6 February 1840;

“Ngatikahu ki Whangaroa Area of Interest” means the Area of Interest of Ngatikahu ki Whangaroa as identified and defined in the Deed of Settlement;

“Ngatikahu ki Whangaroa Claims” means Ngatikahu ki Whangaroa historical claims against the Crown in repect of the Crown’s breaches of its obligations to

Ngatikahu ki Whangaroa under the Treaty of Waitangi, as identified in the Deed of Settlement;

“Ngatikahu ki Whangaroa Group” means the Trust and its Subsidiaries (if any);

“Ngatikahu ki Whangaroa Register” means the register of Members of Ngatikahu ki Whangaroa that is to be maintained by the Trustees in accordance with the First Schedule to this Deed;

“Property” means all property (whether real or personal) and includes choses in action, rights, interests and money;

“Provisional Vote” means a vote cast pursuant to rule 10.4 of the Second Schedule or rule 8.3 of the Fourth Schedule, as the case may be;

“Registrar-General of Land” or “Registrar-General” means the Registrar-General of Land appointed in accordance with section 4 of the Land Transfer Act 1952;

“Related Person” has the same meaning as provided in the Income Tax Act 2007;

“Restricted Transaction” means the disposition of any Whenua that has been returned to the Ngatikahu ki Whangaroa Group via the Settlement Act, but:

1. Stony Creek Station remains subject to the provisions of clause 33; and
2. does not include any dispositions of Whenua by a member of the Ngatikahu ki Whangaroa Group to any other member of the Ngatikahu ki Whangaroa
3.  

“Restricted Transaction Resolution” means the approval process for a Restricted Transaction as set in the Sixth Schedule;

“Settlement Act” means such Act or Acts of Parliament that may be passed so at to give effect to the Deed of Settlement and the premises contained within that deed;

“Settlement Date” means the date defined as the Settlement Date in the Deed of Settlement or Settlement Act;

“Special Resolution” means a resolution that has been passed with the approval or not less than 75% of the Adult Registered Members of the Ngatikahu ki Whangaroa who validly cast a vote in accordance with the process set out in the Fourth Schedule;

“Statements of Intent” means the statements of intent prepared by a Subsidiary in accordance with clause 11.1

“Stony Creek Station” means the land defined in the Deed of Settlement as the Stony Creek Station;

“Subsidiaries” or “Subsidiary” means any entity or trust that is:

(a) wholly owned; or

(b) controlled directly

by the Trust;

“Te Roopu Kaumatua” means the council of elders appointed by the Trustees under clause 4.1;

“Trust” means the trust created by this Deed which is to be called the Kahukuraariki Trust;

“Trust’s Assets” means the trust fund of the Trust and shall include all assets received or otherwise owned or acquired from time to time by the Trustees, including without limitation all assets received pursuant to the Deed of Settlement and Settlement Act, and any money, investments or other property paid or given to or Acquired or agreed to be acquired by the Trustees;

“Trust’s Purpose” means the object and purpose set out in clause 2.4;

“Trust period” means the period from the date of this Deed until the Vesting Day;

“Trustees” means the trustees appointed from time to time in accordance with clause 3.1 and the Second Schedule of this Deed to represent Ngatikahu ki

Whangaroa and to act as the trustees for the time being of the Trust and “Trustee”

shall mean any one (1) of those persons;

“Vesting Day” has the meaning set out in clause 29;

“Wahi Pooti” means the place or places nominated by the Trustees for the purposes of allowing the Adult Registered Members of Ngatikahu ki Whangaroa primarily affiliated to a particular marae to cast in person their vote on the election of the Trustee to be elected on behalf of that marae in accordance with the Second Schedule;

“Whakapapa Committee” means the committee appointed in accordance with rule 4 of the First Schedule;

“Whenua” means any land returned by the Crown to the Ngatikahu ki Whangaroa Group in accordance with any Deed of Settlement and/or the Settlement Act,

Including any land in or around the land called “Stony Creek”.

In this Trust Deed, unless the context otherwise requires:

(a)        words importing the singular include the plural and vice versa;

(b)       words importing one gender include the other genders;

(c)        references to a person include corporations and unincorporated bodies of persons, governments or other public bodies or agencies whether or not having a separate legal personality;

(d)       references to a statute shall be deemed to be references to that statute as Amended, re-enacted or substituted from time to time;

(e)        references to a clause, recital or a schedule shall be to a clause, recital or a Schedule to this Deed;

(f)        the schedules to this Deed shall form part of this Deed;

(g)        headings appear as a matter of convenience only and shall not affect the Interpretation of this Deed; and

(h)       references to a company are references to a company incorporated pursuant to the Companies Act 1993.

The Trustees acknowledge that they hold the Trust’s Assets upon the trusts and with The powers set out in this Deed.  The Trustees further acknowledge that the trust. Hereby created shall be known as the Kahukuraariki Trust.

The Trust shall be governed and administered by and in accordance with the Deed.

The Trustees continue to have all the powers of the natural person and may exercise those powers in accordance with the terms of this Trust.  Without limiting in any way the generality of the foregoing, the Trustees shall have the powers:

(a) to receive or accept, or to make any disposition of, any real property, including any interest of any type in real property (whether corporeal or incorporeal hereditament);

(b) to receive or accept, or to make any disposition of, any personal property (whether chattels, choses in action, intellectual property, and otherwise howsoever), including any interest of any type in personal property;

(c) to receive or grant any security, including any mortgage, pledge, charge security interest, or otherwise howsoever, in relation to all, or any part of, the Property;

(d) to contract, to grant a release, to grant a power of attorney, to appoint an agent, a receiver, or a stakeholder, to settle property on, or declare, a trust;

(e) to issue or take any debt or equity security; and

(f) to borrow or to lend money.

The purpose for which the Trust is established is to receive, manage, hold and administer the Trust’s Assets on behalf of and for the benefit of the present and future Members of Ngatikahu ki Whangaroa in accordance with this Deed. Without limiting in any way the generality of the foregoing, the trustees may:

(a) promote the educational, spiritual, economic, social and cultural advancement or well-being of Ngatikahu ki Whangaroa and its Members;

(b) provide for the on-going maintenance and establishment of places of cultural or spiritual significance to Ngatikahu ki Whangaroa and its Members;

(c) promote the health and well-being generally, including of the aged or those suffering from mental or physical sickness or disability of Ngatikahu ki Whangaroa and its Members; 

(d) undertake commercial activities to support the object and purpose of the Trust.

Notwithstanding clause 2.3, the Trustees must not enter into a Major Transaction; and must ensure that any Subsidiaries are established on terms which provide that such Subsidiaries must not enter into a Major Transaction; unless that Major Transaction: 

(a)        is approved by way of a Special Resolution in accordance with the Fourth Schedule; or

(b)       is contingent upon approval by way of a Special Resolution.

Not withstanding clause 2.3, the Trustees must not enter into a Restricted Transaction; and must ensure that any Subsidiaries are established on terms which provide that such Subsidiaries must not enter into a Restricted Transaction; unless that Restricted Transaction;

(a)         is approved by way of Restricted Transaction Resolution in accordance with the Sixth Schedule; or

(b)         is contingent upon approval by way of Restricted Transaction Resolution.

Pending election and appointment of Trustees in accordance with the Second Schedule, the Initial Trustees shall be:

(a)       Roger Kingi

(b)       Celia Robinson

(c)       Rawiri Henare

(d)       Manaaki Poto

(e)       Martha Selwyn

(f)        Adrian Tua

(g)       David Manuel

Subject to clause 3.1 the Trustees from time to time of the Trust shall be appointed to office in accordance with the rules set out in the Second Schedule.

Subject to any requirements imposed by this Deed, the Deed of Settlement, the Settlement Act and in accordance with law the Trustees shall control and supervise the business and affairs of the Trust in such a manner as they, in their sole discretion, see fit.

Except as otherwise provided in the Deed the proceedings and other affairs of the Trustees shall be conducted in accordance with the rules set out in the Third Schedule.

Trustees’ remuneration must:

(a)        be authorised by a resolution of Adult Registered Members of Ngatikahu ki Whangaroa in accordance with clause 14.2. In recommending trustee  remuneration levels the Trustees must first seek professional advice in that regard; but

(b)       in respect of the Initial Trustees in clause 3.1, who will be appointed before the first annual general meeting, be set by them for the period they hold office as Initial Trustees, on the basis of professional advice they must seek.

1. Trustees will be entitled to be reimbursed reasonable expenses reasonably incurred in relation to their acting as Trustees.

The Trustees may from time to time appoint a council of elders of Ngatikahu ki Whangaroa to be known as Te Roopu Kaumatua on such terms of appointment, and subject to such rules and regulations, meeting procedures and processes, as may be prescribed by the Trustees from time to time.  The Trustees shall appoint one Kaumatua and one Kuikuia to represent each of the marae of Ngatikahu ki Whangaroa taking into consideration the wishes of the relevant marae.

On request from the Trustees, Te Roopu Kaumatua will be responsible for advising the Trustees on matters relating to the tikanga, reo, kawa, korero and whakapapa of Ngatikahu ki Whangaroa and protection of the Mauri of Ngatikahu ki Whangaroa provided that nothing in this Deed shall be deemed or construed so as to make the seeking or following of advice obtained from Te Roopu Kaumatua as binding upon the Trustees.

A Trustee may not contemporaneously with his or her holding office as Trustee be Appointed to or remain part of Te Roopu Kaumatua.

The Trustees may (on such terms as the Trustees determine) appoint a Chief Executive to manage the day to day administration of the Trust including without limitation the implementation of the Trustees’ planning, reporting and monitoring obligations under this Deed.

The Trustees shall ensure that any Chief Executive is appointed on terms which require that the Chief Executive shall be responsible for the employment of all other employees of the Trust and shall exercise such other powers and discretions as are delegated to him or her by the Trustees from time to time.

A Trustee may not hold the position of Chief Executive nor be an employee of, or a contractor to, any entity or trust in the Ngatikahu ki Whangaroa Group.

In receiving, controlling, and supervising the use of the Trust’s Assets on behalf of Ngatikahu ki Whangaroa, whether pursuant to the Deed of Settlement, the Settlement Act or otherwise, the Trustees may establish and oversee the operations of any Subsidiaries.

The Trustees shall ensure that any Subsidiary is established on terms which require the Subsidiary to manage any of the Trust’s Assets it holds solely for the benefit of Ngatikahu ki Whangaroa.  The Trustees shall ensure that they have and retain all the shares in any Subsidiary that is a Company and the sole power to appoint and remove the trustees and directors or any responsible body of any Subsidiary.

The Trustees shall exercise their shareholding or power of appointment in respect of any Subsidiaries in such a way as to ensure that these entities carry out their activities in a manner which is consistent with the Trust’s object and purpose.

The Trustees may fund Subsidiaries (if any) by distributing capital or income or by making advances to the Subsidiary or by such other means as is consistent with the Trust’s object and purpose.

For the avoidance of doubt, and except as expressly provided by this Deed, all entities or trusts with the Ngatikahu ki Whangaroa Group shall be governed by their respective boards or other responsible bodies and the role of the Trustees in respect of those companies and other entities shall be limited to the exercise of the rights conferred on the Trustees as shareholders or (as applicable) appointor and beneficiary of the relevant entity or trust.

The Trustees shall ensure that Subsidiaries are established on terms which give the Trustees the power to determine the remuneration payable to any director or trustee or controlling body of any Subsidiary.

No Trustee receiving any remuneration referred to in clause 6.6 shall take part in any deliberations or proceedings relating to the payment or otherwise of that remuneration nor shall the Trustee in any way determine or materially influence directly or indirectly the nature or amount of that payment or the circumstances in which it is to be paid.

The Trustees shall ensure that Subsidiaries are established on terms which ensure that the directors and trustees or other controlling body of the Subsidiary shall be appointed and removed by the Trustees.

No more than 40% of the Trustees then in office may be appointed as directors or trustees of any individual Subsidiary.

A director, a trustee or a controlling body of any Subsidiary shall only be appointed by the trustees if that person has the particular skills and expertise that are necessary for the appointment having regard to the activities that the Subsidiary undertakes or is likely to undertake in the future and the mix of skills and expertise that is necessary on the relevant Subsidiary.

During the Trust Period, and subject to any other requirements in this Trust Deed, the Trustees may;

(a) provide for the payment, application or appropriation, or decide to pay, apply or appropriate as much of the available income in any Income Year to or for the benefit of Members of Ngatikahu ki Whangaroa;

(b) use or apply capital of the Trust’s Assets to or for the benefit of Members of Ngatikahu ki Whangaroa for the Trust’s Purpose without first using or applying the whole or any portion of the income of the Trust’s Assets for that year; or

(c) set aside reserves or accumulations for future use or application by the Trustees, as the Trustees in the sole discretion think fit for or towards the Trust’s Purpose.

The Trustees may, in making any decisions about the application of Income in any Income Year, decide to have set aside, deducted from, or paid out of income such amounts as the Trustees in their discretion think fit, including:

(a) as a reserve against losses and contingencies, and the Trustees may write off losses from time to time or resort to any reserve fund in mitigation of losses or for any other purpose; or

(b) as a reserve to meet fluctuations of income in future years and other Contingencies.

In making any decision as to the application of the income in any Income Year, the Trustees shall, in exercising their discretion:

(a) determine how much of the Income should cease to be income and be added to and form part of the capital of the Trust’s Assets, provided that the Trustees may not in the Income Year convert the entire income of the Trust into capital; and

 (b) endeavour to act fairly in considering the needs and interest of present and future Members of Ngatikahu ki Whangaroa.

Any income from any Income Year that is not paid or applied in accordance with this clause 8 during or within the six (6) months from the end of that Income Year shall be accumulated and any income so accumulated shall be added to and form part of the capital of the Trust’s Assets and shall be subject to the trusts and powers herein declared in respect of the capital of the Trust’s Assets.

In addition to the requirement in clause 9.3, the Trustees shall prepare no later than one (1) month before the commencement of each Income Year an Annual Plan which specifies in respect of that Income Year information including:

(a)        the strategic vision of the Trust for the Ngatikahu ki Whangaroa Group, consistent with the longer term vision of the Ngatikahu ki Whangaroa Group as identified in the Five Year Plan;

(b)       the nature and scope of the activities proposed by the Trustees for the Ngatikahu ki Whangaroa Group in the performance of the Trust’s purpose;

(c)        the ratio of capital to total assets;

(d)       the performance targets and measurements by which performance of the Ngatikahu ki Whangaroa Group may be judged;

(e)        the manner in which it is proposed that projected income will be dealt with;

(f)        any proposals for the ongoing management of the Trust’s Assets having regard to the interests of all Members of Ngatikahu ki Whangaroa; and

(g)        any other information as the Trustees in their discretion consider necessary or Appropriate.

In addition to the requirement in clause 9.3, the Trustees shall also produce within 18 months following the execution of this Deed, and update not less than every two (2) years, a Five Year Plan.  Such a plan shall set out the longer term vision of the Trustees in respect of the matters referred to in clause 9.1 (a) to (g) and shall include a statement by the Trustees of the commercial, management and distribution policies that the Trustees intend to follow in respect of the Trust’s Assets.

In addition to the requirements in clauses 9.1 and 9.2 the Trustees shall, within one (1) month of the establishment of the Trust prepare and produce an Annual Plan and Five Year Plan that comply with the matters in clause 9.1 and 9.2.  Those plans shall have effect until such time as they are replaced by new plans as required in clause 9.1 and 9.2.

The Trustees must, within five (5) months after the end of each Income Year, and non later than 20 Business Days prior to an annual general meeting, cause to be prepared an annual report on the affairs of the Ngatikahu ki Whangaroa Group covering the accounting period ending at the end of that Income Year which includes a comparison of performance against the Annual Plan, and Consolidated Financial Statements including a balance sheet and income and expenditure statement and notes to those documents so as to give a true and fair view of the financial affairs of the Ngatikahu ki Whangaroa Group for that Income Year.  The Consolidated Financial Statements shall include as a separate item details of any remuneration or fees paid to any Trustee or any Trustee’s firm (including without limitation any such payment to any Trustee as a director or trustee of a Subsidiary) and details of any premiums paid in respect of Trustees’ indemnity insurance (or any indemnity payments made by an insurer).

The Trustees must also ensure that the Consolidated Financial Statements for each Income Year are audited by a chartered accountant in public practice prior to the date giving notice of the annual general meeting of the Trust for the Income Year immediately following that Income Year to which the financial statements relate.

The auditor shall be appointed by the Trustees prior to the end of the Income Year to which the audit relates and, where possible, the fee of the auditor shall also be fixed at that time.  No Trustee or employee of the Trust (including any firm of which such a person is a member or employee) may be appointed as the auditor.  For the avoidance of doubt, the Trust’s accountant shall not be appointed as the auditor.

The Trustees shall procure that each Subsidiary will:

(a) within three (3) months of the establishment of the Subsidiary, prepare a Statement of Intent setting out its long term objectives and the general principles by which it proposes to operate;

(b) as required by the Trustees, update the Statement of Intent to take into account changes in circumstances that may arise from time to time, including without limitation changes to the nature of its business and the business of any of its subsidiaries;

(c) within three (3) months of the establishment of the Subsidiary, prepare a Five Year Plan which shall be updated not less than every two (2) years, and which sets out its medium term vision and the specific steps that it proposes to take during that period to fulfil the objectives and principles set out in the Statement of Intent referred to in paragraph (a) of this clause;

(d) no later than one (1) month following the completion of the Five Year Plan referred to in paragraph (c) of this clause, and thereafter no later than two (2) months before the commencement of each Income Year, prepare an Annual Plan setting out the steps to be taken in the relevant Income Year to meet its five year planning objectives and fulfil the objectives and principles of the Statement of Intent;

(e) in addition to any normal reporting requirements, within two (2) calendar months after the completion of the first, second and third quarter of each Income Year send to the Trustees reports on it operations and financial position together with an unaudited summary of financial results as at the end of that period (such reports to be in such form as the Trustees may require from time to time).

Prior to being implemented all Statements of Intent, Five Year Plans and Annual Plans must be approved by the Trustees.  Such approval shall be given in light of the Trust’s overall plans and policies in respect of the Trust’s Assets.

The Trustees shall produce that all annual reports by any Subsidiary that is company comply in all respects with the requirements of the Companies Act 1993, including without limitation:

(a) the description required by section 211(1)(a) of the Companies Act 1993 of the nature of the business of the company or any of its subsidiaries, or the classes of business in which the company has an interest, whether as a shareholder of another company or otherwise;

 (b) the financial statements (or as appropriate group financial statements) for that Income Year completed and signed in accordance with the Financial Reporting Act 1993;

(c) the auditor’s report of the financial statements (or group financial statements) of the company for that Income Year.

All reports of any Subsidiary that is a trust shall be provided to the same standard, including as to form and content, as is required under clause 11.3 as if the Subsidiary was a company.

In addition to the matters set out in clauses 11.3 and 11.4, the Trustees shall procure that all reports by any Subsidiary include a comparison of its performance against both its respective annual plans for that Income Year and its medium and longer term planning objectives (as set out in the Five Year Plan and Statement of Intent).

For the avoidance of doubt, nothing in this clause 11 limits or affects the rights of the Trustees, as shareholders in any Subsidiary that is a company, to agree pursuant to section 211(3) of the Companies Act 1993 not to include information in the annual report of the Subsidiary.

The Trustees shall hold at their offices and make available for inspection by any Member of Ngatikahu ki Whangaroa during normal business hours on any Business Day:

(a) the Annual Report for each of the preceding three (3) Income Years;

(b) the Consolidated Financial Statements for the preceding three (3) Income Years;

(c) the Annual Plan;

(d) the Five Year Plan;

(e) any Statements of Intent;

(f) the minute book kept in accordance with clause 14.14 of all decisions taken and business transacted at every annual general meeting and special general meeting;

(g) their own personal details on the Register;

(h) the Deed and any amendment to the Deed; and

(i) the current constitution or trust deed of any Subsidiary.

Any Member of Ngatikahu ki Whangaroa shall be entitled to obtain copies of the Information referred to in clause 12.1.  However the Trustees shall also be entitled to recover at their discretion all reasonable copying or postage costs (if any).

For the avoidance of doubt, but subject to the Trustees reporting obligations in clauses 10.1, 12.1(a), 12.1(b), 12.1(f), 14.1(a) and 14.1(b), the Trustees may at their sole discretion limit disclosure of any information about the activities or proposed activities of the Trustees and Ngatikahu ki Whangaroa Group which the Trustees consider on reasonable grounds to be commercially or otherwise sensitive.

The Trust shall, no later than six (6) calendar months after the end of each Income Year, and in any event no more than 15 months after the date of the last annual general meeting of the Trust, hold a general meeting for the Members of Ngatikahu ki Whangaroa, to be called its annual general meeting, and shall at that meeting:

(a) report on the operations of the Ngatikahu ki Whangaroa Group during the preceding Income Year;

(b) present the Annual Report and duly audited Consolidated Financial Statements;

(c) present the proposed Annual Plan;

(d) announce the names of all newly appointed Trustees;

(e) approve the appointment of the auditor for the next Income Year

(f) approve the Trustees’ remuneration;

(g) undertake all other notified business;

(h) at the discretion of the chairperson of the meeting, undertake any other general business raised at that meeting.

(a) Except in the case of the Initial Trustees, no remuneration will be paid to a Trustee in his or her capacity as a Trustee unless that remuneration has been authorised by a resolution of the Adult Registered Members of Ngatikahu ki Whangaroa present at the annual general meeting.  Each such resolution will express the remuneration to be paid to the Trustees as a monetary sum per annum payable either to all Trustees taken together or to any person who from time to time holds office as a Trustee.  This clause does not apply to any remuneration paid to any Trustee in his or her capacity as a director or trustee of a Subsidiary and that remuneration shall be determined by the Trustees pursuant to clause 6.

 (b) The appointment of the auditor for the next Income Year must be authorised by a resolution of the Adult Registered Members of Ngatikahu ki Whangaroa present at the annual general meeting.

The Trustees shall give not less than twenty one days’ notice of the holding of the annual general meeting, such notice to be posted (including, by electronic form where available) to all Audit Registered Members of Ngatikahu ki Whangaroa at the last address shown for each such Adult Registered Member of Ngatikahu ki Whangaroa on the Ngatikahu ki Whangaroa Register.  If notice sent to an electronic address fails, and the Trustees are aware of the failure, then the notice must subsequently be sent to the last known physical address.  Notice of the meeting shall also be inserted prominently on at least two (2) separate days in appropriate major metropolitan newspapers and in any provincial newspapers circulating in regions where the Trustees consider that a significant number of members of Ngatikahu ki Whangaroa reside.  All such notices shall contain:

(a) the date, time and place of meeting;

(b) an agenda of matters to be discussed at the meeting; and

(c) details of where copies of any information to be laid before the meeting may be inspected.

In addition to the annual general meeting of the Trust, the Trustees shall convene a special meeting of the Trustees for the Members of Ngatikahu ki Whangaroa on the requisition of:

(a) the Chairperson and Deputy Chairperson for the time being of the Trust; or

(b) any Three Trustees; or

(c) 5% of the Adult Registered Members of Ngatikahu ki Whangaroa. Notice of such a meeting shall be given in the same manner as for a notice of the annual general meeting and those requisitioning the meeting shall be required to provide a statement to the Trustees setting out the purposes for which the meeting has been requisitioned and the specific agenda items proposed for such a meeting. The Trustees shall not be required to give notice calling the meeting until such a statement with agenda items has been received.

At the discretion of the chairperson of the meeting, any general business raised at the designated time for general business at any annual general meeting may be transacted in addition to the business expressly referred to in the notice calling that meeting.

No business shall be transacted at any special general meeting other than the business expressly referred to in the notice calling that meeting.

The proceedings of a meeting are not invalidated by the accidental omission to give notice to, or a failure to receive notice of an annual or special general meeting by, a Member of Ngatikahu ki Whangaroa.

Subject to clause 14.6, a deficiency or irregularity in a notice of any special or general meeting will not invalidate anything done at the meeting if the deficiency or irregularity is not material.

The quorum required for any annual or special general meeting of the Trust shall be 20 Adult Registered Members of Ngatikahu ki Whangaroa present in person, and one or more Trustees present in person.  For the avoidance of doubt, if a Trustee is an Adult Registered Member of Ngatikahu ki Whangaroa he or she is entitled to vote.

The Chairperson for the time being of the Trust will be the chairperson of any annual or special general meeting and will preside over and have control over the meeting. If the Chairperson is not present at the time appointed for holding a meeting, then the Deputy Chairperson shall be the chair.  If the Deputy Chairperson is also not present, then the Trustees present shall elect one (1) of their number to substitute as the chairperson for the meeting.

To the extent that a vote is sought or required at any annual or special general meeting, every Adult Registered Member of Ngatikahu ki Whangaroa present shall have one (1) vote.  All resolutions except Special Resolutions require the approval of not less than a majority of the Adult Registered Members of Ngatikahu ki Whangaroa who validly cast a vote.  Voting may be by voice or on a show of hands.  The chairperson of the meeting may also demand a poll on a resolution either before or after any vote, which among other things, requires the Adult Registered Members to verify their eligibility by a process directed by the chairperson of the meeting. However, except as provided in clauses 2.5, 14.1(e), 14.1(f), 14.2, 26.1, 27 and 28 and where Special Resolutions have been passed in accordance with the Fourth Schedule the Trustees shall not be bound by a resolution passed at an annual or special general meeting, but will only be required to give consideration to any such resolution in administering the Trust’s Assets and carrying out the Trust’s purpose. The latest version of the Ngatikahu ki Whangaroa Register will be present at any Annual or special general meetings.

If after one (1) hour of the time appointed for an annual or special general meeting, a quorum is not present, the meeting will stand adjourned to be re-convened seven (7) days after the date of the meeting.  On that later day, the meeting will be held again at the same time and in the same place as the adjourned meeting.  If a quorum is not present after one hour from the time appointed for that adjourned meeting, the Adult Registered Members of Ngatikahu ki Whangaroa present will constitute a quorum.

If any general meeting becomes so unruly or disorderly that in the opinion of the chairperson of the meeting the business of the meeting cannot be conducted in a proper and orderly manner, or if any meeting in the opinion of the chairperson becomes unduly protracted, the chairperson may, and without giving any reason, adjourn the meeting or may direct that any uncompleted item of business of which notice was given and which, in his or her opinion, requires to be voted upon, be put to the vote by a poll, without further discussion and the meeting will be considered closed.

The Trustees shall keep a proper record in a minute book of all decisions taken and business transacted at every annual general meeting and special general meeting.

Any minute of the proceedings at an annual general meeting or a special general meeting which is purported to be signed by the chairperson at that meeting shall be evidence of those proceedings.

Where minutes of an annual general meeting or a special general meeting have been made in accordance with this clause then, until the contrary is proven, the meeting shall be deemed to have been properly convened and its proceedings to have been conducted properly.

A Trustee will be interested in a matter if the Trustee:

(a) is a party to, or will derive a material financial benefit from, that matter;

(b) has a material financial interest in another party to the matter;

(c) is a director, officer or trustee of another party to, or person who will or may derive a material financial benefit from, the matter, not being a party that is wholly owned, or in the case of a trust controlled, by the Trustees or any other member of the Ngatikahu ki Whangaroa Group;

(d) is the parent, child, spouse, de facto or civil union partner of another party to, or person who will or may derive a material financial benefit from, the matter; or

(e) is otherwise directly or indirectly interested in the matter.

A Trustee must forthwith, after becoming aware of the fact that he or she is interested in a transaction or proposed transaction with the Trustees, disclose to his or her co-Trustees at a meeting of the Trustees:

(a)        if the monetary value of the Trustee’s interest is able to be quantified, the nature and monetary value of that interest; or

(b)       if the monetary value of that Trustee’s interest cannot be quantified, the nature and extent of that interest.

A disclosure of interest by a Trustee (and the nature and the extent or monetary value of that interest) shall be recorded in the minute book and the interest register of the Trust.

An interested Trustee shall not take part in any deliberation or vote in respect of any  matter in which that Trustee is interested, nor shall the Trustee be counted for the purposes of forming a quorum in any meeting to consider such a matter.

In the carrying on of any business by any member of the Ngatikahu ki Whangaroa Group under this Deed, and in the exercise of any power authorising the remuneration of the Trustees, no benefit, advantage or income shall be afforded to, or received, gained, achieved or derived by any Related Person where that Related Person, in his or her capacity as a Related Person, is able by virtue of that capacity in any way (whether directly or indirectly) to determine, or to materially influence the determination of the nature or amount of that benefit, advantage or income, or the circumstances in which that benefit, advantage or income is, or is to be, so afforded, received, gained, achieved or derived.

The Trustees, shall in accordance with clause 10.1, shoe the amount of any remuneration paid to any Trustee or any Trustee’s firm and the amount of any premiums paid out of the Trust’s Assets for any Trustee indemnity insurance separately in the financial statement including any payments made pursuant to clause 21.

The Trustees may, when exercising their powers or performing their duties, 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 Trust whom the Trustees believe on reasonable grounds to be reliable and competent in relation to the matters concerned; and

(b) a professional adviser or expert in relation to matters which the Trustees believe on reasonable grounds to be within the person’s professional or expert competence.

If the Trustees are in doubt over any matter relating to the management and administration of the Trust’s Assets, or over the exercise of any power vested in them, they may obtain and act upon the opinion of a lawyer who has held a practising certificate for at least seven (7) years.  The right to obtain and act upon a legal opinion, however, will not restrict any right on the part of the Trustees to apply to the High Court of New Zealand for directions.

A Trustee shall only be liable for losses attributable to his or her dishonesty or to his or her wilful commission or omission of an act which he or she knows or should have known to be a breach of this Deed.  In particular, no Trustee shall be bound to take, or be liable for failing to take, any proceedings against a co-Trustee for any such breach or alleged breach.

Any Trustee, officer or employee of the Trust may be indemnified or have their insurance costs met out of the Trust’s Assets against any liability which he or she incurs in defending any civil or criminal proceedings issued because of his or he actions in relation to the Trust, where
(a) those proceedings do not arise out of any failure by the Trustee, officer or employee; and

(b) he or she was acting in good faith in a manner that he or she believed to be in the best interests of the Trust with the object of fulfilling the Trust’s Purpose.

All indemnities and insurance costs may only be provided to the extent that the Trustees in their discretion think just and equitable.

If any assets are held by the Trustees on any separate specific trust, they any Trustee, officer or employee of the Trust may in respect of proceedings brought in relation to that separate specific trust only be indemnified or have their insurance costs met out of those assets.

All decisions made under this clause to give or approve indemnities or meet or approve any insurance costs shall be recorded in the minutes of the meeting of the Trustees at which such a decision was made together with the reasons why such indemnities or insurance costs were thought by them to be just and equitable.

The Trustees shall also ensure that Subsidiaries are established on terms which provide that the directors or trustees of any such Subsidiary are not to act in a manner which brings or is likely to bring the Trust or any member of the Ngatikahu ki Whangaroa Group into disrepute.

Any Trustee that acts in a manner that brings or is likely to bring into disrepute the Trust or any member of the Ngatikahu ki Whangaroa Group may, by a resolution passed by a majority of not less than 75% of the other Trustees, be formally censured or removed from office.

The censure or removal of a Trustee in accordance with this clause shall, together with reasons, be reported to the Members of Ngatikahu ki Whangaroa at the next annual general meeting of the Trust following such censure or removal.

A Trustee removed from office in accordance with clause 22.3 shall cease to hold office as a Trustee forthwith and shall not be entitled to be re-elected as a Trustee for a period of not less than three (3) years following his or her removal.

The removal of a Trustee in accordance with clause 22.3 shall give rise to a casual vacancy which shall be filled in accordance with rule 4.6 of the Second Schedule. The election process must take place within three (3) months of any removal of a Trustee in accordance with this clause.

Notwithstanding any other provision in this Trust Deed, the Trustees may accept or otherwise deal with any property upon trust for the purpose of the Trust or for any specific purpose that comes within the Trust’s Purpose.  Such a trust may include any trust for the benefit of the Members of Ngatikahu ki Whangaroa or any of them. Any property held by the Trustees pursuant to this clause shall be dealt with in accordance with the terms of that trust and shall not constitute part of the Trust’s Assets.

If the Trustees accept a trust for any specific purpose as outlined in clause 23.1 above they must keep the property subject to such trust and any income derived from it separate from the Trust’s Assets, and administer that property and income as a separate specific trust in terms of the trust under which it was accepted.

The Trustees shall not use the assets of any separate specific trust to make good any deficit, loss, damage or breach of trust relating to any other assets that the Trustees may hold, and the Trustees shall also not use the Trust’s Assets to make good any deficit, loss, damage or breach of trust relating to any specific trust.

The receipt of payments by the Trustees signed by any person or persons authorised to give receipts on behalf of the Trustees shall be a complete discharge from the Trustees for payment.

The Trustees may appoint or incorporate a Custodian Trustee and on any such appointment or incorporation the following provisions shall have effect:

(a)        The Trustees shall require the Custodian Trustee to sign this Deed agreeing to be bound by its terms;

(b)       The Trust’s Assets may be vested in the Custodian Trustee as if the Custodian Trustee were sole Trustee;

(c)        The Custodian Trustee hold the title so vested in him or her or it on trust for the Trustees;

(d)       The management of the Trust’s Assets and the exercise of all powers and discretions exercisable by the Trustees under this Deed shall remain vested in the Trustees as fully and effectively as if there were no Custodian Trustee;

(e)        The sole function of the Custodian Trustee shall be to hold the Trust’s Assets property, invest its funds and dispose of the assets in accordance with any direction in writing by the Trustees for which purpose the Custodian Trustee shall execute all such documents and perform all such acts as the Trustees in writing direct;

(f)        The Custodian Trustee shall not be liable for acting on any such direction provided that if the Custodian Trustee is of the opinion that any such direction conflicts with the trusts or the law or exposes the Custodian Trustee to any liability or is otherwise objectionable the Custodian Trustee may apply to the Court for directions and any order giving any such directions shall bind both the Custodian Trustee and the Trustees providing the Trustees are made parties to the proceeding;

(g)        The Custodian Trustee shall not be liable for any act or default on the part of any of the Trustees, provided the Custodian Trustee is not knowingly a participant in any wilful breach of trust by such Trustee(s);

(h)       All actions and proceedings touching or concerning the Trust’s Assets may be brought or defended in the name of the Custodian Trustee at the written direction of the Trustees and, as between the Trustees and the Custodian Trustee, the Custodian Trustee shall not be liable for the costs and the Trustees shall indemnify the Custodian Trustee for such proceedings; and

(i)        No person dealing with the Custodian Trustee shall be concerned to enquire as to the concurrence or otherwise of the Trustees or be affected by notice of the fact that the Trustees have not concurred.

Subject to clause 26.2 and clause 26.3, all amendments to the Deed shall only be made with the approval of a Special Resolution passed in accordance with the Fourth Schedule.

No amendment shall be made to the Deed which:

(a) changes the Trust’s purpose so that the Trustee are no longer required to act for the collective benefit of the present and future Members of Ngatikahu ki Whangaroa;

(b) changes this clause 26.2;

(c) changes clause 28;

(d) changes the finally agreed definition of Member of Ngatikahu ki Whangaroa, Ngatikahu ki Whangaroa Ancestor, Ngatikahu ki Whangaroa Area of Interest, or Ngatikahu ki Whangaroa Claims after settlement legislation has been passed;

(e) changes the requirement for a Special Resolution (as defined from time to time) in clause 26.1;

(f) changes the membership and beneficiary of the Trust;

(g) changes rule 3.1 of the Fourth Schedule relating to the voting threshold of 75% of the Adult Members of Ngatikahu ki Whangaroa;

(h) changes the definition of Restricted Transaction Resolution; and

(i) changes rule 3.1 of the Sixth Schedule relating to the voting threshold of 75% of all Adult Registered Members of Ngatikahu ki Whangaroa.

Notwithstanding any other provision in this Deed to the contrary, this Deed must be amended by the Trustees to make the definition of Member of Ngatikahu ki Whangaroa, Ngatikahu ki Whangaroa, Ngatikahu ki Whangaroa Ancestor or Ngatikahu ki Whangaroa Claims the same as that set out in the final Deed of Settlement and the Settlement Legislation.  If the Deed is amended due to operation of this sub-clause a Special Resolution passed in accordance with the Fourth Schedule is not required.

Every Adult Registered Member of Ngatikahu ki Whangaroa may put forward for consideration by the Trustees proposals for amendments to the Deed.  Any proposal put forward under this clause 26.4 must be in writing and addressed to the Chairperson at the registered office of the Trust.  Any proposal put forward under this clause 26.4 must be considered by the Trustees at their next available meeting.  If the proposal for an amendment to the Deed complies with clauses 26.2 and 26.4, the Trustees must call a special general meeting to consider the proposal.  If the Trustees do not discard the proposal in accordance with clause 26.5 they may, in their discretion, discuss it at the next annual general meeting.

Where a proposal for amendments to the Deed does not comply with clauses 26.2 and 26.4, the Trustees may discard the proposal and the Trustees will not be required to call a special general meeting in accordance with the Fourth Schedule.

If the Settlement Act provides that the rule against perpetuities, and the other rules of law regulated by the Perpetuities Act 1964, are not to apply to the Trust, clause 29(1) shall be void.

At the expiry of seven (7) years the Trustees shall archive the records of the Trust and the Subsidiaries in the Ngatikahu ki Whangaroa Group for such period as the Trustees consider necessary.

Notwithstanding clause 30.1 and 30.2 the Trustees and any of the Subsidiaries within the Ngatikahu ki Whangaroa Group may hold on to any records for a period exceeding seven (7) years if in their discretion such records contain information that is commercially or otherwise sensitive or is still required by the Trust or the Subsidiary to which the information relates.

All disputes referred to the Trustees in accordance with clause 31.1 shall be submitted to the Trustees by notice in writing and the Trustees shall acknowledge receipt in writing within 10 Business Days of the date of receipt of the notice.

If a dispute is not settled with 30 days of the receipt by the Trustees of written notice of the dispute in accordance with clause 31.2 then ti shall be referred to a Disputes Committee constituted in accordance with clause 31.4 and 31.5.

There shall not be a permanent Disputes Committee.  Disputes Committees required to be appointed under this clause shall be appointed on a case by case basis, having regard to the precise subject matter of the dispute in question, and only after the expiry of the 30 day period referred to in clause 31.3

A Disputes Committee required to be appointed under clause 31.4 shall comprise three members who shall be appointed by the Trustees as follows:

(a)        Where Te Roopu Kaumatua has been established in accordance with clause 4.1, three (3) members of Te Roopu Kaumatua who, in the view of the Trustees, have the necessary skills and expertise to deal with the relevant dispute; or where no Te Roopu Kaumatua has been established

(b)       One (1) Independent (non-Ngatikahu ki Whangaroa) member nominated by the President from time to time of the Auckland District Law Society or his or her nominee, such member to be a barrister or solicitor with seven (7) or more years experience, to act as the chair of the Disputes Committee; and

(c)        Two Adult Registered Members of Ngatikahu ki Whangaroa appointed for their skills and expertise in dealing with the issues that are the subject of the relevant dispute, provided that such members cannot also be Trustees or employees of the Trust.

The role of a Disputes Committee shall be to facilitate and make findings and decisions on the disputes referred to it.

In dealing with any dispute a Disputes Committee shall, subject to meeting the requirements of natural justice, have the sole discretion to call for evidence and determine the manner in which a dispute before it should be dealt with.  The findings and decisions of a Disputes Committee shall be final and binding on the parties.

In facilitating the resolution of any dispute a Disputes Committee may convene a general meeting of Ngatikahu ki Whangaroa in order to discuss the matters that are in dispute.

Any general meeting called by a Disputes Committee in order to try to settle any disputes shall be called in accordance with the requirements as to notice and meeting procedure that apply in respect of general meetings of Ngatikahu ki Whangaroa as set out in this Deed.

A Disputes Committee shall give its findings and decision, together with the reasons Therefore, in writing to the Trustees and any other party to the dispute.

In conducting this review the Trustees shall engage and consult with Ngatikahu ki Whangaroa in order to seek the views of Ngatikahu ki Whangaroa on the terms and operation of this Deed and, in particular, the arrangements relating to the election of Trustees and all other aspects of the representation of Ngatikahu ki Whangaroa by the Trust and shall have regard to the tikanga of Ngatikahu ki Whangaroa.

The process of engagement and consultation required by clause 32.2 shall be undertaken by an independent facilitator appointed by the Trustees.  The role of independent facilitator shall be to:

(a)        liaise with the Trustees in the preparation of any discussion materials to be distributed to Ngatikahu ki Whangaroa;

(b)       facilitate any hui;

(c)        receive, compile and review any written submissions received from Ngatikahu ki Whangaroa; and

(d)       make recommendations to the Trustees as to the amendments that should be made to the Deed as a consequence of the information received from the process of engagement and consultation.