Under the Bill, a waka umanga is a body corporate with perpetual succession and a legal entity in its own right.The Bill provides for the establishment of two kinds of waka umanga:
The Bill includes a number of formation procedures for organisations wishing to become a waka umanga, including requirements to:
The Bill requires a waka umanga to develop and consult on a charter which contains provisions relating to its rights, powers and privileges.On completion of consultation, but before the charter is adopted, a waka umanga must give public notice of the charter and provide a copy of the charter to its members, the local authority and the Minister of Māori Affairs. The charter can then be adopted in by a special majority of its members.
The Bill also outlines the basic governance matters that must be contained in the charter of a waka umanga.
The Bill provides for the establishment of a Registrar of Waka Umanga in the Companies Office.Applications for registration are made to the Registrarand must, amongst other things, contain:
The Bill outlines what should be considered by the Registrar in the assessment of an application to become registered as a waka umanga.The Registrar may seek guidance from the Māori Land Court where required.
There are three kinds of application that can be made to the Māori Land Court during the process of a waka umanga being formed and registered.
If no objections to registration are received, or the objections are withdrawn or resolved, the Registrar must issue the waka umanga a certificate of registration (clause 32).This certificate provides conclusive evidence that all the requirements for registration have been met.
The Bill provides a mechanism for the recognition of a waka pū as the legitimate representative of a tribal group, for matters specified in their charter.Legitimate representative status is designed to provide certainty to tribal groups, and others who deal with them, that a waka umanga is the principal body representing their interests.The Bill provides that no other body can claim to represent the same tribal group on matters for which the waka umanga has representative status.
A waka pū may be the legitimate representative of a tribal group if, and only if:
The Bill empowers: the Attorney-General; local authorities; Te Ohu Kai Moana; and the Minister of Māori Affairs to apply to appear and be heard on an application to the Māori Land Court to review the formation process or charter of a waka umanga, or, to object to its registration.An objection by these bodies can only be made on matters relating to its status as a legitimate representative.
If a waka pū has outlined in its charter that it is the legitimate representative of a tribal group for the purpose of entering into negotiations to settle a Treaty of Waitangi claim2 with the Crown, the Crown must not negotiate or settle with any other group in relation to that claim.However, nothing in the Act requires the Crown to negotiate or settle any Treaty of Waitangi claim.
The Bill recognises that some entities and persons currently have a mandate to negotiate with the Crown to settle a Treaty of Waitangi claim and contains a schedule listing those entities and persons currently recognised by the Crown.The Bill protects their exclusive right to settle the claims they are mandated for.Persons and entities listed in schedule 1 are the only entities or persons who may apply to become a waka pū for the purpose of negotiating to settle the Treaty of Waitangi claims of the named tribal group.
After the commencement of this Act, if the Crown recognises the mandate of an entity or persons to settle a Treaty of Waitangi claim, only that mandated entity or persons may apply to form and register a waka pū for legitimate representative status to negotiate and settle that claim.The Bill sets out the documentation the Crown must provide to show it has recognised a mandate.The effect of this provision is that groups that have a mandate recognised by the Crown for settlement purposes cannot be undermined by a waka pū forming to claim that same mandate.
It is important to note that these provisions do not limit the ability of other tribal groups forming a waka pū, to be a legitimate representative to negotiate a Treaty of Waitangi claim.Additionally, these provisions do not prevent any tribal group, including those listed in schedule 1, from forming a waka pū for any other purpose.
A primary objective of the Bill is to provide a balance between good corporate governance standards to ensure governors act in accordance with the interests of current and future members, and the need to maintain scope for tribes to develop structures appropriate to their size, structure and cultural traditions.Some of the governance provisions in the Bill derive from the Local Government Act 2002 and the Companies Act 1993.
The Bill provides for the establishment of a governing body, to be known as a rūnanganui.The Bill outlines requirements for the appointment or election of governors but allows individual waka umanga the flexibility to determine the number of governors required and their term of office.
The Bill specifies the general requirements and duties of governors, including requiring them to act in good faith and operate in the best interests of current and future members.Additionally, the Bill requires governors to disclose any relevant conflict of interest and defines the scope and method of disclosure required.
The Bill requires a waka umanga to develop a policy in relation to major transactions.Under the Bill a major transaction is one that:
A major transaction can only be entered into where it is authorised by a special resolution of the rūnanganui, after consultation with its registered members in accordance with the special consultative procedures in the charter, or in accordance with procedures for adopting a charter.
The Bill provides for the classification of any asset held by a waka umanga as a protected asset.Under the Bill a protected asset cannot be sold, transferred or used to finance a mortgage. Additionally, a protected asset cannot be used to satisfy the demands of creditors.
To give effect to this policy, the Bill requires a waka umanga to maintain a register of protected assets (and include this list in its annual report).The purpose of this provision is to protect those assets determined by the waka umanga as not being for commercial benefit; for example, wāhi tapu or other tribal lands.
A waka umanga is required to develop a privacy policy setting out the extent to which registers and other documents relating to registered members of the waka umanga are to be treated as personal information under the Privacy Act 1993.This requirement responds to concerns expressed during consultation about the need to maintain privacy in relation to tribal affiliations.
Accountability of waka umanga
The Bill sets out the accountability requirements of a waka umanga in relation to its registered members.This includes:
Specifically, a waka umanga must provide its registered members with access to certain information, including the minutes of meetings of the rūnanganui and any governance, planning or reporting information required by the Bill.
The Bill also requires every rūnanganui to call an annual general meeting of the registered members of the waka umanga to present the previous year’s annual report and accounts, and provide registered members the opportunity to consider the performance of the waka umanga over the past year.Special meetings of waka umanga may be called; the Bill sets out the procedure for calling such meetings.
Clauses 57 and 58 set out the key governance documents that a waka umanga must have, these include:
In order to provide accountability directly to members, the Bill makes provision for the accounts to be audited where this is required by the charter, upon a court order, or request of 1% or 15 of the registered members.
The Bill includes provision for the voluntary administration of a waka umanga and outlines the administrator’s role.The Bill also outlines the procedure for liquidation of a waka umanga and the vesting of surplus assets.A waka umanga may be put into liquidation by a resolution at a meeting of its members or by the Māori Land Court.
One objective of the Bill is to provide a strong internal dispute resolution mechanism for waka umanga, to avoid Court intervention and associated litigation costs.As such, the Bill requires that the charter of every waka umanga contain an internal dispute resolution mechanism, consistent with the principles of natural justice, outlining the process that a party must follow to hear those disputes.
The Bill defines the scope of an internal dispute as a dispute arising between:
An internal dispute is defined as a dispute arising in relation to:
Internal disputes do not, however, include matters which are within the exclusive jurisdiction of the Māori Land Court or any another court or tribunal.
The Māori Land Court is the default Court of the Bill, owing to its expertise in dealing with legal issues in a Māori context and experience in dealing with land based trusts and incorporations under other enactments.Where a matter cannot be resolved by internal dispute resolution mechanisms, the Bill provides the Māori Land Court with jurisdiction to hear such matters.
The Court’s jurisdiction to hear and determine disputes includes hearing:
The Bill also provides the Court with the power to make injunctions in relation to any application before the Court.
The Bill provides for the transfer of proceedings from the Māori Land Court to the High Court on the consent of all parties involved in the dispute (clause 88).The Bill further provides that any appeals made on the decision of the Māori Land Court must be made to the High Court.
Existing legal entities such as Māori Trust Boards and incorporated societies can transition to become waka umanga by following the relevant provisions in the Bill.
Applications by mandated iwi organisations, iwi aquaculture organisations or Treaty settlement entities to register as a waka umanga must include confirmation that its constitutional documents or charter comply, or substantially comply with the Bill.
The Bill empowers the Minister of Māori Affairs in consultation with the Minister responsible for the administration of the Companies Act 1993, to establish a Waka Umanga Secretariat.The Secretariat may provide assistance to waka umanga before registration, including assisting with the preparation of a charter; after registration, including assisting in the preparation of procedures and governance documents; and at any stage in the setting up or operating of dispute resolution processes.
1 Entity is defined as any body corporate or trust (clause 4).
2 For the purposes of this Bill a 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.
Last modified: 16/04/2008