Mandate for Appointing a Commissioner
Frequently Asked Questions
Tuesday 20 September 2022

Why was the decision made to appoint a Commissioner? 
This recommendation was made because the Trust has struggled to achieve a quorum for a very long time which was due to Trustees’ behaviours. This has therefore put the Trust into a precarious position and has demonstrated that the Trust Deed is perhaps no longer fit for purpose. 

The decision to appoint the Commissioner was made at a special meeting of the elected Trustees in May, where the CEO presented a report to the Board which outlined where Trustees and the Trust as a collective are non-compliant, and the legal risks associated with that.  

Following that presentation, the elected Trustees were given two recommendations to consider. The first was that a Commissioner/Convenor/Kai Kōmihana be appointed to carry out some of the functions of the Board while at the same time to assist the Board to get back on track.  The second was that the Māori Trustee be appointed to administrate the Trust. A unanimous decision was made by the Trustees to support the appointment of a Commissioner. 

That full recommendation was:
That the Board supports seeking the guidance and assistance of a Commissioner/Kai Kōmihana to assist the Ngā Maunga Whakahii o Kaipara Development Trust Board toward transformational change. This intention includes a strategic organisational reset of the following:

•    Constitutional Trust Deed reform
•    Governance re-organisation
•    Operational re-shape

And, that a staged approach toward transformational change be adopted.  This includes the restructure of the Ngā Maunga Whakahii o Kaipara Development Trust Board (NMWK) subsidiaries.

How is the Board non-compliant?
The most consistent problem has been absenteeism preventing meetings proceeding and therefore decisions for responsibilities not being made.  Or, meetings starting and not being able to be completed because Trustees have walked out.  We have had almost a whole year without meeting with a quorum as per our Trust Deed. There are legal issues with Trustees which have resulted in litigation that need to be worked through also. This has incurred significant legal costs for the Development Trust over the last few years.

How was the Board able to make this decision?
Our Trust Deed gives us sole discretion to employ professionals to assist us, as this is part of enabling the Board to control and supervise the business of the Trust.  The Trusts Act 2019 gives us the ability to appoint others and should it be required, delegate authority under circumstances where necessary.

Also, NMWK’s Governance Manual sets out the process for delegated authority.
A fuller explanation can be found here.

How is the Kai Kōmihana to be appointed?
A Terms of Reference outlining the role of the Kai Kōmihana has been prepared and a road map outlining the process. The first action of which is to form a selection panel. 

Why then was the online meeting called on 08 September?
The Chair called the meeting to explain the current situation to iwi members.  Since the meeting in May, a Trust meeting with a quorum has not been able to be confirmed to consider the Terms of Reference and appoint a selection panel to get the process underway.  This means the Board continues to be in breach of its Trust Deed. 

Is this a Crown appointment process?
No.  This is NMWK’s process to ensure our Mana Motuhake and prevent the intervention of the Crown because we are not compliant with our Trust Deed. Because of this our PSGE status can be at risk.  We have a Settlement Act, but that does not make us exempt from consequence for poor performance. If we don’t take control of this issue ourselves and fix it ourselves, we risk the Crown getting involved and having a solution imposed on us, for example, the Māori Land Court or Māori Trustee. 
 

Kai Kōmihana / Commissioner

What would the Kai Kōmihana do? 
Take over some of the governance function to make NMWK compliant and discharge our legal obligations. While at the same time working with the Board to resolve the governance issues and implement the Annual Plan and the Road Map to Tomorrow’s Ngāti Whātua. 

Who would appoint the Kai Kōmihana?
As mentioned above: the Kai Kōmihana would be appointed by a panel as recommended in the Terms of Reference. 

How much is the Kai Kōmihana being paid?
The Terms of Reference currently with Board members recommends that it is expected that would be determined by the selection panel. But it would be based on market rates for similar roles. 

Who oversees the Kai Kōmihana performance?
The Kai Kōmihana performance and what is expected of them would be specified in their contract to NMWK.   

How long is the term of appointment?
That would be determined by how much progress is made and how quickly.  It is envisaged the contract period would be 12 months plus 6 months. 

Will the Terms of Reference for the Kai Kōmihana  be made available to iwi members?
It is planned to make it available after feedback has been received from the Development Trust.