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Part 2
Establishment and review of new entities

30 Outline of this Part

This Part provides, in 6 subparts, for the establishment, audit, and review of the following new entities:

(a) Te Ohu Kai Moana and Te Ohu Kai Moana Trustee Limited; and

(b) Te Kawai Taumata; and

(c) Aotearoa Fisheries Limited; and

(d) Te Putea Whakatupu Trust and Te Putea Whakatupu Trustee Limited; and

(e) Te Wai Māori Trust and Te Wai Māori Trustee Limited.

Subpart 1—Te Ohu Kai Moana and Te Ohu Kai Moana Trustee Limited

Establishment of trust and trustee

31 Te Ohu Kai Moana to be established

(1) The Treaty of Waitangi Fisheries Commission must, before the appointed day, establish by trust deed a trust called Te Ohu Kai Moana.

(2) Neither the rule against perpetuities nor any relevant provisions of the Perpetuities Act 1964—

(a) prescribe or restrict the period during which Te Ohu Kai Moana may exist in law; or

(b) apply to a document entered into to give effect to the Deed of Settlement (including the trust deed required to be entered into under subsection (1)) if the application of that rule or the provisions of that Act would otherwise make the document, or a right or obligation conferred by that document, invalid or ineffective.

32 Purpose of Te Ohu Kai Moana

The purpose of Te Ohu Kai Moana is to advance the interests of iwi individually and collectively, primarily in the development of fisheries, fishing, and fisheries-related activities, in order to—

(a) ultimately benefit the members of iwi and Māori generally; and

(b) further the agreements made in the Deed of Settlement; and

(c) assist the Crown to discharge its obligations under the Deed of Settlement and the Treaty of Waitangi; and

(d) contribute to the achievement of an enduring settlement of the claims and grievances referred to in the Deed of Settlement.

33 Trustee of Te Ohu Kai Moana

(1) Te Ohu Kai Moana must have only 1 trustee.

(2) The trustee of Te Ohu Kai Moana must be a company formed under the Companies Act 1993 with the name Te Ohu Kai Moana Trustee Limited.

Duties and functions of trustee

34 Duties of Te Ohu Kai Moana Trustee Limited

Te Ohu Kai Moana Trustee Limited must administer the settlement assets in accordance with the purposes of this Act and the purpose of Te Ohu Kai Moana, including performing the following duties:

(a) as required by sections 7 and 196, to determine the appropriate classification of quota shares; and

(b) as required by section 157, to apply to register settlement quota interests against—

(i) the quota shares listed in Schedule 1; and

(ii) any quota shares allocated under section 44 of the Fisheries Act 1996; and

(c) to allocate and transfer the settlement assets; and

(d) to manage on a transitional basis, collectively or separately as Te Ohu Kai Moana Trustee Limited considers appropriate, the settlement assets to be allocated to an iwi, until they are transferred to the mandated iwi organisation of the iwi; and

(e) to determine the coastline entitlements of iwi under section 11 and Schedule 6; and

(f) to maintain the iwi register required by section 40 and to record the matters relating to mandated iwi organisations required by or under this Act; and

(g) if Te Ohu Kai Moana Trustee Limited is satisfied that each commercial fisher is wholly owned by 1 or more mandated iwi organisations, to advise the chief executive of the Ministry of Fisheries as to those commercial fishers who are approved entities for the purposes of section 74(2A) of the Fisheries Act 1996; and

(h) to make extracts of the iwi register available, on request, to mandated iwi organisations or members of iwi, in accordance with any policy prepared under section 53; and

(i) to assist recognised iwi organisations to establish a register of iwi members that includes the contact details and date of birth for every person included in that register; and

(j) to assist iwi to meet the requirements of sections 14, 17, and 130(3); and

(k) where the lack of a mandated iwi organisation for an iwi prevents the mandated iwi organisation of another iwi from making its coastline claims under clause 3 of Schedule 6, Te Ohu Kai Moana Trustee Limited must give priority to assisting the iwi that does not have a mandated iwi organisation, as provided for in paragraph (j); and

(l) to the extent that they relate to matters provided for by or under this Act, to approve constitutional documents under section 17 and any changes made under section 18 or required under section 25; and

(m) to appoint the directors of Aotearoa Fisheries Limited; and

(n) to establish Te Putea Whakatupu Trust, appoint the directors of Te Putea Whakatupu Trustee Limited, and make the payments required by section 90(1) and (3); and

(o) to establish Te Wai Māori Trust, appoint the directors of Te Wai Māori Trustee Limited, and make the payments required by section 103(1), (3), and (4); and

(p) to consider and, if satisfied, approve the annual plans of Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited; and

(q) to prepare the final financial statements of the Treaty of Waitangi Fisheries Commission, as provided for in section 197; and

(r) to perform any other duties prescribed by or under this Act or any other enactment.

35 Functions of Te Ohu Kai Moana Trustee Limited

(1) As a means to further the purpose of Te Ohu Kai Moana, Te Ohu Kai Moana Trustee Limited may—

(a) foster, promote, commission, or fund research into the sustainable management of fisheries:

(b) in relation to fisheries, fishing, and fisheries-related activities, act to protect and enhance the interests of iwi and Māori in those activities:

(c) in relation to other activities, so long as the nature of the business activities of Te Ohu Kai Moana Group, taken as a whole, is not significantly changed from the primary focus on fisheries, fishing, or fisheries-related activities,—

(i) approve other activities, including, but not limited to, activities related to the seafood industry:

(ii) give prior approvals to specified entities of Te Ohu Kai Moana Group to conduct other activities up to thresholds specified by Te Ohu Kai Moana Trustee Limited:

(d) require mandated iwi organisations to demonstrate their progress in meeting the criteria and requirements set out in section 14, 17, or section 130(3)(b), as the case may be, before granting assistance under section 34(i) or (j):

(e) in accordance with the provisions of Part 4, acquire or dispose of income shares, settlement quota, and quota other than settlement quota, and sell annual catch entitlement generated by settlement quota or by quota other than settlement quota:

(f) perform the functions of the voting shareholder of Aotearoa Fisheries Limited:

(g) apply the funds of the trust by way of payments to—

(i) mandated iwi organisations:

(ii) Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited as specified in sections 90(5) and 103(6) respectively:

(h) grant assistance, as permitted by or under this Act, to—

(i) mandated iwi organisations:

(ii) individual Māori and groups of Māori:

(i) maintain reserve funds to the extent that it considers prudent:

(j) perform any other functions permitted by or under this Act or any other enactment.

(2) Te Ohu Kai Moana Trustee Limited must not undertake fishing or hold a fishing permit.

(3) This section and section 34 do not limit the activities (other than fishing or holding a fishing permit) that Te Ohu Kai Moana Trustee Limited may undertake to further the purpose of Te Ohu Kai Moana.

Trust deed

36 Trust deed of Te Ohu Kai Moana

(1) The trust deed of Te Ohu Kai Moana must—

(a) specify the purpose of Te Ohu Kai Moana as stated in section 32; and

(b) require Te Ohu Kai Moana Trustee Limited to develop—

(i) an annual plan; and

(ii) a 5-year strategic plan that is updated annually; and

(c) require Te Ohu Kai Moana Trustee Limited to circulate drafts of the plans referred to in paragraph (b) for comment, prior to their adoption by Te Ohu Kai Moana Trustee Limited, to—

(i) mandated iwi organisations; and

(ii) representative Māori organisations; and

(d) provide for the manner in which the trust deed may be varied and any restrictions on its variation; and

(e) provide for fees or remuneration for attendance at meetings, as the case may be, and reimbursing allowances or actual and reasonable expenses to be paid, in accordance with the provisions included in the annual plan of Te Ohu Kai Moana Trustee Limited under section 37(d) to (g), to—

(i) the directors of Te Ohu Kai Moana Trustee Limited; and

(ii) the directors of Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited; and

(iii) the members and alternate members of Te Kawai Taumata; and

(iv) the members of a committee of representatives; and

(f) provide for—

(i) the termination of Te Ohu Kai Moana; and

(ii) on termination of that Trust, the distribution of the assets of the Trust, including capital and accumulated income, in the percentages specified in column 3 of Schedule 3,—

(A) to each mandated iwi organisation that has charitable status; or

(B) in the case of a mandated iwi organisation that does not have charitable status, to an entity with charitable status nominated by the mandated iwi organisation to benefit the relevant iwi and its members; or

(C) if no mandated iwi organisation exists or no nomination is made under subsubparagraph (B), to an entity with charitable status nominated by Te Ohu Kai Moana Trustee Limited to benefit the relevant iwi and its members.

(2) The trust deed may—

(a) include any other matter that is not inconsistent with this Act; and

(b) be amended, subject to—

(i) the purpose of Te Ohu Kai Moana; and

(ii) any restrictions specified by the trust deed on the way it may be varied; and

(iii) the provisions of this Act.

(3) A provision of the trust deed or an amendment to it has no effect to the extent that it is inconsistent with this Act.

37 Matters to be included in annual plan

The trust deed of Te Ohu Kai Moana must require Te Ohu Kai Moana Trustee Limited to include in its annual plan for the relevant year—

(a) whether Te Ohu Kai Moana Trustee Limited will hold and account separately or collectively for—

(i) the net proceeds of sales referred to in section 152(4); and

(ii) income shares and dividends referred to in section 153(1); and

(b) the matters referred to in section 152(5)(a) (which relates to the sale of annual catch entitlement) for the year to which the plan applies, unless those matters have been included in a panui; and

(c) the budget for Te Ohu Kai Moana Trustee Limited; and

(d) the budget to be paid by Te Ohu Kai Moana Trustee Limited for Te Kawai Taumata, as provided for under clause 19 of Schedule 8, including the daily rate for meetings payable to the members and alternate members of Te Kawai Taumata under clause 18 of Schedule 8; and

(e) when relevant, the budget for—

(i) a review under section 114(2) and (3)(a); and

(ii) a committee of representatives, as provided for under section 115(1), including the daily rate for meetings payable to the members of a committee under section 120(4); and

(f) the scale of fees (expressed in bands of $10,000) that applies for—

(i) the directors of Te Ohu Kai Moana Trustee Limited, to be paid by Te Ohu Kai Moana Trustee Limited; and

(ii) the directors of Te Putea Whakatupu Trustee Limited, to be paid by Te Putea Whakatupu Trustee Limited; and

(iii) the directors of Te Wai Māori Trustee Limited, to be paid by Te Wai Māori Trustee Limited; and

(g) the policy that must apply to the payments referred to in paragraphs (d), (e), and (f) of reimbursing allowances to, or actual and reasonable expenses of, the directors, members, and alternate members, as the case may be.

38 Annual report of Te Ohu Kai Moana Trustee Limited

(1) The trust deed of Te Ohu Kai Moana must set out the reporting obligations of Te Ohu Kai Moana Trustee Limited, as provided for in this section and section 39.

(2) In measuring its performance against the annual plan and strategic plan referred to in section 36(1)(b), Te Ohu Kai Moana Trustee Limited must report annually, not later than 5 months after the end of each financial year, to—

(a) mandated iwi organisations and representative Māori organisations; and

(b) the members and alternate members of Te Kawai Taumata.

(3) In each annual report required by subsection (2), Te Ohu Kai Moana Trustee Limited must—

(a) describe any amendments made to the trust deed of Te Ohu Kai Moana; and

(b) describe the key activities undertaken by—

(i) Te Ohu Kai Moana Trustee Limited; and

(ii) any subsidiary set up by Te Ohu Kai Moana Trustee Limited, including Aotearoa Fisheries Limited; and

(iii) Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited; and

(c) describe any special resolution passed or approval granted during that year in respect of the matters referred to in section 35(1)(c); and

(d) separately describe each of the funds it has reserved under section 35(1)(i), the reason why each reserve fund is held, and any proposed applications of those reserves; and

(e) separately describe each sale of income shares sold under section 71; and

(f) describe how the revenue from annual catch entitlements sold in the previous year was used; and

(g) describe separately or collectively, as provided for in the annual plan, the income shares and dividends held under section 153(1); and

(h) describe separately, in relation to any loan referred to in section 75(4)(f),—

(i) the capital sum of the loans; and

(ii) the money received, in each case by way of capital repayments or interest; and

(iii) loans written off or discharged; and

(i) list any appointments made by Te Ohu Kai Moana Trustee Limited to the board of directors of Aotearoa Fisheries Limited, Te Putea Whakatupu Trustee Limited; and Te Wai Māori Trustee Limited.

(4) The annual report must include—

(a) the audited financial statements of Te Ohu Kai Moana and Te Ohu Kai Moana Trustee Limited; and

(b) a statement of—

(i) the payments made under section 35(1)(g); and

(ii) the fees (expressed in bands of $10,000) and the reimbursing allowances or actual and reasonable expenses paid to each of the directors of Te Ohu Kai Moana Trustee Limited, Te Putea Whakatupu Trustee Limited, and Te Wai Māori Trustee Limited; and

(iii) the remuneration and reimbursing allowances or actual and reasonable expenses paid, collectively, to—

(A) the members and alternate members of Te Kawai Taumata; and

(B) the members of a committee of representatives.

39 Consultation and other reporting obligations

(1) The trust deed must require Te Ohu Kai Moana Trustee Limited—

(a) to hold a general meeting, not later than 8 months after the end of each financial year, to discuss and address issues arising from the annual report; and

(b) to provide, in a timely manner, to mandated iwi organisations, representative Māori organisations, and the members and alternate members of Te Kawai Taumata—

(i) the minutes of every general meeting; and

(ii) the annual report required by section 38, together with information on where the report is publicly available; and

(iii) the annual and strategic plans referred to in section 36(1)(b).

(2) This section does not limit any reporting obligations arising under any other enactment or rule of law.

40 Obligation to establish and maintain iwi register

(1) The trust deed of Te Ohu Kai Moana must include an obligation on Te Ohu Kai Moana Trustee Limited to establish and maintain an iwi register.

(2) The purpose of the iwi register is to provide a record, in respect of each iwi, of the matters set out in subsection (3).

(3) Without limiting the scope of the iwi register, Te Ohu Kai Moana Trustee Limited must record in the iwi register—

(a) its recognition of mandated iwi organisations; and

(b) to the extent that the constitutional documents (and any amendments to them) relate to the matters provided for by or under this Act,—

(i) its approval of the documents of mandated iwi organisations; and

(ii) the approval by mandated iwi organisations of the documents of their asset-holding companies and of any subsidiaries of those asset-holding companies; and

(c) changes to the criteria or requirements that apply to mandated iwi organisations and their constitutional documents made in accordance with section 18; and

(d) its determinations on coastline entitlements or interim coastline entitlements made under clause 11 of Schedule 6; and

(e) the allocation of settlement assets to each iwi; and

(f) the transfer of those settlement assets to the mandated iwi organisation of the iwi or to an asset-holding company of the mandated iwi organisation, as appropriate; and

(g) any transfer of settlement quota made in accordance with Part 4 that results from a sale or exchange.

41 Review of revenue requirements

(1) In this section and sections 42 and 43,—

loan funds means the funds identified in section 42(1)(c)

revenue review means the review conducted in accordance with those sections.

(2) The trust deed of Te Ohu Kai Moana must include an obligation on Te Ohu Kai Moana Trustee Limited to commence and complete, during the 12th year after the commencement of this Act, a review of the revenue requirements of Te Ohu Kai Moana Trustee Limited.

(3) Te Ohu Kai Moana Trustee Limited must include, in the next annual report after the completion of the revenue review, a report on the findings and conclusions of the review.

42 Scope of revenue review

(1) The revenue review conducted under section 41 must consider and report on the following matters:

(a) the activities that Te Ohu Kai Moana Trustee Limited must undertake in carrying out its duties and functions under this Act; and

(b) the revenue that is necessary to enable Te Ohu Kai Moana Trustee Limited to carry out the activities identified under paragraph (a); and

(c) whether, in order to meet the revenue requirements identified under paragraph (b), it is necessary for Te Ohu Kai Moana Trustee Limited to continue to hold and receive any of the funds relating to the loans referred to in section 75(4)(f), as follows:

(i) the capital funds of the loans:

(ii) the income from the capital funds:

(iii) the accumulated income from the loans.

(2) If Te Ohu Kai Moana Trustee Limited determines under subsection (1)(c) that it is necessary that it continue to hold and receive some or all of the loan funds, it must—

(a) state the period of time for which it will continue to do so; and

(b) complete a further revenue review before the expiry of the period of time provided for under paragraph (a).

(3) In conducting the revenue review, Te Ohu Kai Moana Trustee Limited must—

(a) consult with mandated iwi organisations and representative Māori organisations; and

(b) take their views into account.

43 Allocation and transfer of surplus loan funds

If Te Ohu Kai Moana Trustee Limited determines, in the revenue review conducted under section 41, that some or all of the loan funds are not necessary to meet its revenue requirements identified under section 42(1)(b), Te Ohu Kai Moana Trustee Limited must allocate and transfer the surplus loan funds to mandated iwi organisations in the percentage specified for each iwi in column 3 of Schedule 3.

Te Ohu Kai Moana Trustee Limited

44 Constitution of Te Ohu Kai Moana Trustee Limited

(1) Te Ohu Kai Moana Trustee Limited must have—

(a) only 1 share that—

(i) has no distribution rights; and

(ii) is held jointly by the members of the board of Te Ohu Kai Moana Trustee Limited; and

(b) a constitution that is consistent with this Act.

(2) The constitution must provide—

(a) that the role of Te Ohu Kai Moana Trustee Limited is restricted to acting as the trustee of Te Ohu Kai Moana; and

(b) that Te Ohu Kai Moana Trustee Limited must have a board that consists of at least 6, and not more than 7, directors; and

(c) that an extraordinary vacancy of a director does not create a breach of the constitution, so long as—

(i) there is an alternate for that director; and

(ii) a new director is appointed within 6 months of the vacancy arising; and

(d) that, in accordance with sections 46 to 49, Te Kawai Taumata—

(i) must appoint the directors (except the first directors) of Te Ohu Kai Moana Trustee Limited; and

(ii) may remove any director; and

(e) that each of the directors of Te Ohu Kai Moana Trustee Limited must be a Māori; and

(f) that, having regard to the purpose of Te Ohu Kai Moana, the directors of Te Ohu Kai Moana Trustee Limited collectively must have commercial expertise and business skills, and be well versed in matters of tikanga Māori; and

(g) a procedure for the appointment of an alternate for a director to attend and vote at meetings on behalf of that director; and

(h) a method by which the board of Te Ohu Kai Moana Trustee Limited must address conflicts of interest for its directors; and

(i) that no director of Te Ohu Kai Moana Trustee Limited may undertake any contract for services for Te Ohu Kai Moana Group; and

(j) the restrictions that apply to the chairperson and deputy chairperson of Te Ohu Kai Moana Trustee Limited in relation to any other appointment under this Act; and

(k) the criteria that must be taken into account when an alternate director is appointed and any restrictions on eligibility that apply to the appointment of an alternate; and

(l) a procedure for amending the constitution of Te Ohu Kai Moana Trustee Limited; and

(m) that Te Ohu Kai Moana Trustee Limited must convene at least 1 general meeting each financial year; and

(n) that Te Ohu Kai Moana Trustee Limited must give public notice of not less than 20 working days that a general meeting is to be held and the agenda for that meeting, with separate written notice to—

(i) each mandated iwi organisation and representative Māori organisation; and

(ii) each member and alternate member of Te Kawai Taumata; and

(o) that Te Ohu Kai Moana Trustee Limited must put any written motion to a non-binding vote at a general meeting, provided the motion is supported by not less than 20% of the total number of mandated iwi organisations; and

(p) that Te Ohu Kai Moana Trustee Limited may be put into voluntary liquidation only if Te Ohu Kai Moana is terminated; and

(q) a process for putting Te Ohu Kai Moana Trustee Limited into voluntary liquidation.

(3) The constitution must provide for a specific power of sale of income shares or settlement quota or both and may provide for a general power of sale of income shares or settlement quota or both, including in each case any terms and conditions as to the exercise of the power.

(4) A provision of the constitution of Te Ohu Kai Moana Trustee Limited is of no effect to the extent that it is inconsistent with this Act.

(5) Te Ohu Kai Moana Trustee Limited has full powers to act in its role as the trustee of Te Ohu Kai Moana.

Appointment of directors

45 First directors of Te Ohu Kai Moana Trustee Limited

(1) The Minister of Māori Affairs must appoint the first directors of Te Ohu Kai Moana Trustee Limited.

(2) The directors appointed under subsection (1) must not exercise any powers or functions as directors or take any other action before the appointed day.

(3) Each director appointed by the Minister under subsection (1) must, immediately before the appointed day, be a member of the Treaty of Waitangi Fisheries Commission.

(4) Despite section 47(1), 3 of the directors appointed under subsection (1) must be appointed for a term not exceeding 2 years, as specified by the Minister.

(5) Before appointing the first directors, the Minister may consult any person he or she considers appropriate.

46 Subsequent appointments

(1) Te Kawai Taumata must, in accordance with this Act and the constitution of Te Ohu Kai Moana Trustee Limited, appoint to the board of Te Ohu Kai Moana Trustee Limited—

(a) 3 directors to replace the directors whose terms expire under section 45(4); and

(b) all other directors.

(2) If at any time Te Kawai Taumata cannot make all the appointments necessary to fill the board of Te Ohu Kai Moana Trustee Limited, the members of Te Kawai Taumata (or their alternates) must nominate which of the directors will not be replaced for the time being.

47 Term of office of directors

(1) A director is appointed under section 45(1) or section 46(1) for a term not exceeding 4 years.

(2) However, a director—

(a) who has held office for 2 consecutive full terms (disregarding any appointment to fill a vacancy arising during the term of another director) is not eligible to be reappointed as a director within 2 years after ceasing to hold office; and

(b) whose term of office expires, continues in office until his or her successor is appointed in accordance with this Act and the constitution of Te Ohu Kai Moana Trustee Limited.

48 Eligibility for office of director

(1) A person who is, or who has been within the previous 2 years, a member or alternate member of Te Kawai Taumata is not eligible for appointment as a director or alternate director of Te Ohu Kai Moana Trustee Limited or of a subsidiary of Te Ohu Kai Moana Trustee Limited.

(2) If a director of Te Ohu Kai Moana Trustee Limited or of a subsidiary of Te Ohu Kai Moana Trustee Limited becomes a member or alternate member of Te Kawai Taumata, he or she must, within 5 working days, resign as a director or alternate director of Te Ohu Kai Moana Trustee Limited or of the subsidiary, as the case may be.

49 Removal of directors

(1) A director appointed under section 45(1) may be removed from office by the Minister of Māori Affairs, without compensation, for disability affecting the performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Minister.

(2) A director appointed under section 46(1) may be removed from office, without compensation, at any time by Te Kawai Taumata in accordance with the constitution of Te Ohu Kai Moana Trustee Limited and Schedule 8.

50 Effect of vacancy in membership of Te Ohu Kai Moana Trustee Limited

The functions and powers of Te Ohu Kai Moana Trustee Limited are not affected by a vacancy in the membership of the board.

Iwi register

51 Documentation relating to iwi register

(1) Te Ohu Kai Moana Trustee Limited must preserve, for not less than 12 years from the date when the document comes into existence, every document relevant to the iwi register, in respect of—

(a) iwi constitutional documents; and

(b) documents submitted in making a coastline claim under section 11; and

(c) records of the process by which coastline entitlements are determined by Te Ohu Kai Moana Trustee Limited; and

(d) other documents that Te Ohu Kai Moana Trustee Limited considers relevant to the matters set out in section 40(3).

(2) Te Ohu Kai Moana Trustee Limited may create summaries of the records listed in subsection (1) for the purpose of section 52.

52 Access to iwi register

(1) The iwi register must be available for access upon request by—

(a) a mandated iwi organisation:

(b) a member of an iwi:

(c) the members and alternate members of Te Kawai Taumata.

(2) However, access to the iwi register may be restricted under a policy of Te Ohu Kai Moana Trustee Limited prepared under section 53.

53 Policy on iwi register

(1) Te Ohu Kai Moana Trustee Limited may prepare a policy on the iwi register that includes—

(a) rules on access to—

(i) information on the register:

(ii) documents that are relevant to, and included with, information on the register:

(b) criteria that apply to—

(i) protect the confidentiality of information in the iwi register:

(ii) restrict access to the register:

(c) the circumstances when only a summary of information on the iwi register will be accessible, and those when the full documentation will be accessible:

(d) when and where the iwi register may be accessed:

(e) fees and charges that apply for supplying information requested from the iwi register.

(2) In preparing a policy on the iwi register, Te Ohu Kai Moana Trustee Limited must comply with the procedures set out in section 54.

Rule-making procedures

54 Procedures for making or amending rules

(1) Te Ohu Kai Moana Trustee Limited may make or amend rules—

(a) that change the procedures applying to the sale or exchange of settlement quota under Part 4:

(b) that affect the criteria or other requirements applying to the constitutional documents of mandated iwi organisations in accordance with section 25:

(c) that restrict access to the iwi register under section 52.

(2) Te Ohu Kai Moana Trustee Limited must give notice in the Gazette of rules made or amended under subsection (1).

(3) Before notifying a rule or an amendment under subsection (2), Te Ohu Kai Moana Trustee Limited must, in respect of the proposed rule or amendment,—

(a) identify the mandated iwi organisations that will be affected by the proposal; and

(b) inform them of the proposal; and

(c) if Te Ohu Kai Moana Trustee Limited will be a party affected by the proposal, inform the affected mandated iwi organisations of that fact; and

(d) allow not less than 20 working days for affected mandated iwi organisations to make written submissions to Te Ohu Kai Moana Trustee Limited on the proposal; and

(e) take into account submissions made by mandated iwi organisations under paragraph (d); and

(f) notify the affected mandated iwi organisations of significant issues raised by the submissions and how those issues were taken into account.

(4) Rules must not be inconsistent with this Act or any other enactment or rule of law.

Subpart 2—Te Kawai Taumata

55 Establishment of Te Kawai Taumata

(1) The chairperson of the board of Te Ohu Kai Moana Trustee Limited must by written notice request those with responsibility under clause 1 of Schedule 8 to commence the process to appoint the members and alternate members of Te Kawai Taumata.

(2) The duty under subsection (1) must be completed not later than 6 months before the term of office expires under section 45(4) for 3 directors of Te Ohu Kai Moana Trustee Limited.

(3) Schedule 8 applies to the members and alternate members of Te Kawai Taumata.

56 Sole function of Te Kawai Taumata

(1) The sole function of the members and alternate members of Te Kawai Taumata is to appoint and remove directors of Te Ohu Kai Moana Trustee Limited in accordance with—

(a) the requirements of this Act; and

(b) the constitution of Te Ohu Kai Moana Trustee Limited.

(2) In carrying out their function under subsection (1), the members and alternate members of Te Kawai Taumata,—

(a) are not subject to directions from the board of Te Ohu Kai Moana Trustee Limited or any of its directors; and

(b) may collectively seek advice from any source they consider appropriate; and

(c) must act in a manner that is consistent with achieving the purpose of Te Ohu Kai Moana; and

(d) must receive audit reports under section 113 and review reports under section 125, and may comment on the review reports as provided for by section 127(1), to the extent that the review reports are concerned with the role, activities, or performance of Te Kawai Taumata.

57 Membership of Te Kawai Taumata

(1) Te Kawai Taumata must have not more than 11 members, and not fewer than 6, together with an alternate member for each member.

(2) One member of Te Kawai Taumata, and an alternate for that member, may be appointed, in accordance with clauses 1 to 3 of Schedule 8, by—

(a) each of the groups of iwi set out in column 1 of Schedule 3; and

(b) the group of representative Māori organisations listed in Schedule 5.

(3) All members of Te Kawai Taumata and their alternates must be Māori.

58 Alternate members of Te Kawai Taumata

(1) An alternate member may act in place of the member, but only if the member is unable by illness, absence, or other reason to act as a member.

(2) The death, resignation, or removal from office of a member does not cause the removal from office of that member's alternate member, until the new member and his or her alternate member are appointed, which must not be later than 6 months after the death, resignation, or removal from office of the member.

59 Eligibility for membership of Te Kawai Taumata

(1) Any Māori is eligible for appointment as a member or alternate member of Te Kawai Taumata if,—

(a) in the case of a person appointed by mandated iwi organisations, a majority of the mandated iwi organisations in the group have voted for that person; or

(b) in the case of a person appointed by the representative Māori organisations, a majority of those organisations have voted for that person; or

(c) in the case of the person appointed by Ngapuhi, a majority of the directors, trustees, or office holders of the Ngapuhi mandated iwi organisation have voted for that person.

(2) A person is not eligible to be a member or alternate member of Te Kawai Taumata at the same time as he or she is a director of—

(a) Te Ohu Kai Moana Trustee Limited; or

(b) Aotearoa Fisheries Limited or any other subsidiary of Te Ohu Kai Moana Trustee Limited; or

(c) a subcompany; or

(d) Te Putea Whakatupu Trustee Limited; or

(e) Te Wai Māori Trustee Limited.

(3) If subsection (2) is breached, the member or alternate member of Te Kawai Taumata must, within 5 working days, resign as a director of any company listed in that subsection.

Subpart 3—Aotearoa Fisheries Limited

Establishment

60 Establishment of Aotearoa Fisheries Limited

(1) Before the appointed day, unless it has done so before the commencement of this Act, the Treaty of Waitangi Fisheries Commission must form a company under the Companies Act 1993 with the name Aotearoa Fisheries Limited.

(2) Aotearoa Fisheries Limited must have—

(a) voting shares that have—

(i) all the rights to vote under the Companies Act 1993, except those under section 196 of that Act, subject to the decisions taken by income shareholders using their rights under the constitution of Aotearoa Fisheries Limited; but

(ii) No rights to distributions from Aotearoa Fisheries Limited; and

(b) income shares that have—

(i) equal distribution rights; and

(ii) sole rights to vote under section 196 of the Companies Act 1993.

(3) To avoid doubt, Aotearoa Fisheries Limited is not the company of the same name referred to in section 12 of the Māori Fisheries Act 1989.

Duty of Aotearoa Fisheries Limited

61 Duty of Aotearoa Fisheries Limited

(1) Aotearoa Fisheries Limited must manage its assets in a commercial manner.

(2) Despite section 35(2), in carrying out its duty under subsection (1), Aotearoa Fisheries Limited and its subcompanies may undertake—

(a) fishing and fisheries-related activities:

(b) other activities including, but not limited to, activities related to the seafood industry.

(3) However, Aotearoa Fisheries Limited and its subcompanies must not undertake activities referred to in subsection (2)(b) unless they do so in a manner consistent with the terms and conditions of an approval given under section 35(1)(c).

Constitution of Aotearoa Fisheries Limited

62 Requirements for constitution

(1) Aotearoa Fisheries Limited must have a constitution that includes—

(a) a provision that prevents Aotearoa Fisheries Limited from passing a special resolution for the purpose of approving any transaction that would be likely to have the effect of breaching section 35(1)(c); and

(b) a procedure for the appointment of an alternate for a director to attend and vote at meetings on behalf of that director; and

(c) the criteria that must be taken into account when an alternate is appointed, and any restrictions on eligibility that apply to an appointment; and

(d) a method by which the board of Aotearoa Fisheries Limited must address conflicts of interest that may arise for its directors; and

(e) a provision enabling income shareholders to pass non-binding resolutions relating to the management of the company; and

(f) a requirement that Aotearoa Fisheries Limited report to income shareholders with—

(i) formal unaudited half-yearly financial statements; and

(ii) audited yearly financial statements; and

(iii) an annual report that includes a statement of any change in the value of the company for the financial year, together with a statement of the method by which that value was determined; and

(iv) a business plan for the next financial year, including a summary of the key activities to be undertaken in that year; and

(v) the minutes of the annual general meeting and any special general meeting; and

(g) a requirement that Aotearoa Fisheries Limited use its best endeavours to work co-operatively with iwi on commercial matters; and

(h) requirements that Aotearoa Fisheries Limited—

(i) establish a process for the disposal of income shares in accordance with the provisions of sections 69 to 72; and

(ii) maintain a register that records—

(A) all income shareholders; and

(B) all transfers of income shares; and

(iii) record transfers of shares in the register if, and only if, the transfers comply with the requirements of sections 69 to 72; and

(i) a requirement that if Aotearoa Fisheries Limited is put into liquidation, distributions must be made to the income shareholders in proportion to their shareholding at the time of liquidation; and

(j) a provision that the constitution must not be amended in a way that affects the rights or entitlements of the income shareholders, unless the shareholders of at least 75% of the income shares approve; and

(k) a provision enabling Aotearoa Fisheries Limited—

(i) to issue additional income shares; and

(ii) to establish subcompanies; and

(l) provisions for any other matters that are required by this Act.

(2) This section does not limit any reporting obligations arising under another enactment or rule of law.

(3) To the extent that a provision of the constitution of Aotearoa Fisheries Limited or an amendment to it is inconsistent with this Act, that provision has no effect.

Directors

63 Directors of Aotearoa Fisheries Limited

(1) Te Ohu Kai Moana Trustee Limited must appoint, and may remove, the directors of Aotearoa Fisheries Limited.

(2) Aotearoa Fisheries Limited must have not fewer than 5, and not more than 8, directors.

(3) An extraordinary vacancy of a director does not create a breach of this section if the vacancy is filled within 3 months.

64 Restrictions on appointment of directors

(1) Not more than 2 of the directors of Aotearoa Fisheries Limited may be directors or employees of Te Ohu Kai Moana Trustee Limited.

(2) Neither the chairperson nor the deputy chairperson of either Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited may, at the same time, be the chairperson or deputy chairperson of the other.

(3) If subsection (1) is breached, the most recently appointed director of Aotearoa Fisheries Limited who is also a director or employee of Te Ohu Kai Moana Trustee Limited must resign, within 5 working days,—

(a) as a director of Aotearoa Fisheries Limited; or

(b) as a director or employee of Te Ohu Kai Moana Trustee Limited, as the case may be.

(4) A breach of subsection (1) does not—

(a) invalidate an action or decision of Aotearoa Fisheries Limited:

(b) occur in the case of an extraordinary vacancy of a director, if the vacancy is filled within 3 months.

(5) To avoid doubt, subsection (1) does not apply to the appointment of an alternate for a director, as provided for in the constitution of Aotearoa Fisheries Limited under section 62(1)(b).

(6) A person who is, or who has been within the previous 2 years, a member or alternate member of Te Kawai Taumata is not eligible for appointment as a director of Aotearoa Fisheries Limited.

(7) A director of Aotearoa Fisheries Limited is not eligible to be, at the same time, a director of Te Putea Whakatupu Trustee Limited or of Te Wai Māori Trustee Limited.

65 Directors of subcompanies

(1) In this section, if a subcompany of Aotearoa Fisheries Limited is a trust or an entity other than a company, a reference to a director of a subcompany is a reference to a trustee or office holder of the entity.

(2) Not more than 2 of the directors of a subcompany of Aotearoa Fisheries Limited may be directors or employees of Te Ohu Kai Moana Trustee Limited.

(3) If subsection (2) is breached, the most recently appointed director of the subcompany who is also a director or employee of Te Ohu Kai Moana Trustee Limited must, within 5 working days, resign, as the case may be,—

(a) as a director of the subcompany; or

(b) as a director or employee of Te Ohu Kai Moana Trustee Limited.

(4) A breach of subsection (2) does not—

(a) invalidate an action or decision of the subcompany; or

(b) occur in the case of an extraordinary vacancy of a director of the subcompany if the vacancy is filled within 3 months.

(5) A person who is, or who has been within the previous 2 years, a member or alternate member of Te Kawai Taumata is not eligible for appointment as a director of a subcompany of Aotearoa Fisheries Limited.

(6) A director of a subcompany is not eligible to be, at the same time, a director of Te Putea Whakatupu Trustee Limited or of Te Wai Māori Trustee Limited.

Voting shares

66 Voting shares

(1) On the appointed day, Aotearoa Fisheries Limited must have 125 000 voting shares, all of which it must issue to Te Ohu Kai Moana Trustee Limited, unless it has already done so.

(2) Te Ohu Kai Moana Trustee Limited must retain control of all the voting shares in Aotearoa Fisheries Limited.

(3) However, if a resolution that is supported under section 127(3) requires the transfer or issue of voting shares to mandated iwi organisations, that requirement must be implemented in accordance with the resolution.

Income shares

67 Income shares

(1) On the appointed day, Aotearoa Fisheries Limited must have 125 000 income shares, all of which it must issue to Te Ohu Kai Moana Trustee Limited, unless it has already done so.

(2) Income shares in Aotearoa Fisheries Limited must be held only by—

(a) Te Ohu Kai Moana Trustee Limited, either as an owner or trustee; and

(b) mandated iwi organisations, through their asset-holding companies.

(3) Te Ohu Kai Moana Trustee Limited must—

(a) retain ownership of 20% of all the income shares issued at any time by Aotearoa Fisheries Limited; and

(b) until they are allocated in accordance with section 139, hold the other 80% of income shares issued under subsection (1) in trust for iwi.

68 Additional income shares

If Aotearoa Fisheries Limited issues additional income shares,—

(a) they must be offered to income shareholders in proportion to the income shares they hold at the date of issue, including income shares held in trust under section 67(3)(b); and

(b) in the case of any unsubscribed shares, they must be offered or withdrawn in accordance with the constitution of Aotearoa Fisheries Limited.

69 Disposal of income shares by mandated iwi organisations

(1) A mandated iwi organisation may sell its income shares, but only—

(a) to Te Ohu Kai Moana Trustee Limited; or

(b) to another mandated iwi organisation; and

(c) in accordance with section 70 and the process established in the constitution of Aotearoa Fisheries Limited.

(2) Despite subsection (1), a mandated iwi organisation must not sell income shares allocated to it under section 139 within 2 years after the date on which those shares are transferred to it under section 130 or section 135.

(3) Income shares—

(a) must not be gifted; and

(b) may be exchanged or otherwise disposed of, but only in accordance with this Act and the process established in the constitution of Aotearoa Fisheries Limited.

(4) An exchange or other disposal of income shares must be treated as a sale under sections 69 to 73.

70 Process for disposal of income shares by mandated iwi organisations

(1) Before a mandated iwi organisation may sell its income shares, it must—

(a) notify its proposal to sell income shares, in accordance with the constitutional documents of the mandated iwi organisation; and

(b) obtain the prior approval of at least 75% of the adult members of the iwi who vote—

(i) at a general meeting; or

(ii) in a process prescribed in the constitutional documents of the mandated iwi organisation.

(2) A notice given under subsection (1)(a) must specify,—

(a) in a public notice,—

(i) the approximate proportion of the total value of the income shares of the mandated iwi organisation affected by the proposal; and

(ii) the date on which any approval expires; and

(b) in a private notice, if required under kaupapa 4 of Schedule 7,—

(i) the number of income shares affected by the proposal; and

(ii) a reasonable estimate of the net present value or likely sale price of those shares.

(3) If approval to sell income shares is obtained under subsection (1)(b), the mandated iwi organisation must—

(a) offer the income shares to—

(i) every mandated iwi organisation; and

(ii) Te Ohu Kai Moana Trustee Limited; and

(b) accept the best price reasonably obtainable at the time of the sale, unless the offer permits the mandated iwi organisation to withdraw the income shares from sale.

(4) Approval obtained under subsection (1)(b) to sell income shares is valid for not more than 15 months from the date on which it is given.

(5) As soon as is reasonably practicable after a mandated iwi organisation has sold any income shares under section 69, it must—

(a) notify Aotearoa Fisheries Limited of the sale; and

(b) provide documentation to Aotearoa Fisheries Limited, supported by a statutory declaration if Aotearoa Fisheries Limited so requires, to establish that the sale complied with all the requirements of sections 69, 70, and 72.

71 Disposal of income shares by Te Ohu Kai Moana Trustee Limited

(1) Te Ohu Kai Moana Trustee Limited may sell income shares acquired under section 69 to a mandated iwi organisation, but only if—

(a) it has passed a special resolution giving it a specific power of sale of income shares, or the sale meets the terms and conditions of a general power of sale; and

(b) the shares are offered to every mandated iwi organisation; and

(c) it accepts the best price reasonably obtainable at the time of the sale, unless the offer permits Te Ohu Kai Moana Trustee Limited to withdraw the income shares from sale; and

(d) it acts in accordance with the constitution of Aotearoa Fisheries Limited.

(2) Te Ohu Kai Moana Trustee Limited must not sell income shares held under section 67(3).

(3) As soon as is reasonably practicable after Te Ohu Kai Moana Trustee Limited has sold any income shares under subsection (1), it must—

(a) notify Aotearoa Fisheries Limited of the sale; and

(b) provide documentation to Aotearoa Fisheries Limited, supported by a statutory declaration if Aotearoa Fisheries Limited so requires, to establish that the sale complied with all the requirements of this section.

72 Other constraints on disposal of income shares

(1) Section 70(1) to (4) applies, with the necessary modifications, if a mandated iwi organisation proposes to enter into a transaction with a third party (for example, an option, security, or guarantee) or series of transactions that could result in—

(a) the sale of its income shares; or

(b) the iwi being disentitled to the income from the income shares for a period of more than 5 years.

(2) If a third party to a transaction or series of transactions referred to in subsection (1) exercises a right to sell or requires the sale of income shares,—

(a) section 69(1)(a) and (b) applies as if the vendor were a mandated iwi organisation; and

(b) the third party proposing to sell must notify the proposal to—

(i) Te Ohu Kai Moana Trustee Limited; and

(ii) all mandated iwi organisations.

(3) As soon as is reasonably practicable after a third party has sold income shares under subsection (2), it must—

(a) notify Aotearoa Fisheries Limited; and

(b) provide documentation to Aotearoa Fisheries Limited, supported by a statutory declaration if Aotearoa Fisheries Limited so requires, to establish that the sale complied with subsection (2).

(4) In this section, third party means a party that is not entitled to hold settlement quota or income shares.

73 Remedy for breach of sections 69 to 72

(1) If a contract for the sale of income shares, including a transaction or series of transactions referred to in section 72(1), is in breach of section 67 or sections 69 to 72, the Court may make orders that—

(a) cancel the contract or transaction:

(b) vest in the vendor the income shares that were the subject of the contract or transaction:

(c) vest in the buyer the consideration for the contract or transaction:

(d) the Court thinks fit, if the buyer has on-sold, or has granted any interest in, or security over, the income shares:

(e) the costs of the applicant be met by the parties to the sale or transaction.

(2) Orders made under subsection (1) may be made—

(a) on the application of—

(i) a party; or

(ii) an adult member of an iwi whose mandated iwi organisation is a party; or

(iii) a mandated iwi organisation; or

(iv) Te Ohu Kai Moana Trustee Limited; and

(b) on the terms and conditions that the Court thinks fit, so long as the income shares are not vested other than in—

(i) a mandated iwi organisation, to be held in trust by an asset-holding company of the mandated iwi organisation; or

(ii) Te Ohu Kai Moana Trustee Limited.

(3) In the case of a breach of section 67(2) or sections 69 to 72, the Illegal Contracts Act 1970 does not apply.

74 Exceptions to restrictions on disposal of income shares

(1) Sections 69 to 73 do not apply to transfers of income shares between or among—

(a) asset-holding companies wholly owned by the same mandated iwi organisation; or

(b) subsidiaries of asset-holding companies that are wholly owned by the same mandated iwi organisation.

(2) If an asset-holding company or a subsidiary of an asset-holding company ceases to be wholly owned by its mandated iwi organisation, its income shares must be—

(a) treated as the property of the mandated iwi organisation; and

(b) held by another asset-holding company of the mandated iwi organisation, as required by section 16(1)(c).

Transfer of assets

75 Transfer of assets to Aotearoa Fisheries Limited

(1) In this section, assets includes any assets, whether in the form of quota shares, interests, rights, or liabilities, that, immediately before the appointed day, are owned, controlled, or held by—

(a) the Treaty of Waitangi Fisheries Commission; or

(b) any company or other commercial entity, to the extent that it is owned or controlled by the Treaty of Waitangi Fisheries Commission.

(2) Before the appointed day, the Treaty of Waitangi Fisheries Commission may transfer some or all of its assets to Aotearoa Fisheries Limited or to any of its subcompanies.

(3) On the appointed day, Te Ohu Kai Moana Trustee Limited must transfer to Aotearoa Fisheries Limited, or to any of its subcompanies, all of the assets that have not been transferred under subsection (2).

(4) However, subsections (2) and (3) do not apply to—

(a) quota shares listed in Schedule 1; or

(b) assets described in section 137(1); or

(c) any entities in which Te Ohu Kai Moana Trustee Limited has a controlling interest that hold any of the quota listed in Schedule 1; or

(d) shares in a subsidiary of, or a trust controlled by, Te Ohu Kai Moana Trustee Limited that owns any of the quota shares listed in Schedule 1; or

(e) the shares in ACE Trader Limited, SafeAce Limited, Whangape Mussels Limited, and Southern Abalone Limited; or

(f) any loans issued by the Treaty of Waitangi Fisheries Commission at any time to a company transferred to Aotearoa Fisheries Limited under this Act; or

(g) other assets that continue to be held by Te Ohu Kai Moana Trustee Limited, including administrative and research assets and information that it reasonably needs in order to perform its functions and exercise its powers.

(5) To avoid doubt, subsection (3) does not limit section 66(2) or section 67(3).

(6) A transfer made by the Treaty of Waitangi Fisheries Commission under subsection (2) or subsection (3) must be without charge to Aotearoa Fisheries Limited in respect of—

(a) the value of the assets; or

(b) the costs associated with the transfer.

(7) The transfer of assets by the Treaty of Waitangi Fisheries Commission or by Te Ohu Kai Moana Trustee Limited to Aotearoa Fisheries Limited or to a subcompany in accordance with subsections (2) and (3) are not subject to income tax, goods and services tax, gift duty, or a tax, levy, duty, or other charge imposed or provided for under the Inland Revenue Acts or any other enactment.

(8) For the purposes of the Inland Revenue Acts, the value of the assets transferred under subsections (2) and (3) is included in the available subscribed capital of Aotearoa Fisheries Limited or its subcompanies.

76 Payment of dividends by Aotearoa Fisheries Limited

(1) Aotearoa Fisheries Limited may pay dividends only to income shareholders.

(2) Aotearoa Fisheries Limited must ensure that not less than 40% of its consolidated group net profit after tax, as determined in accordance with generally accepted accounting practice, is paid annually to its income shareholders.

(3) Aotearoa Fisheries Limited must use its best endeavours to ensure that the constitution of every subcompany requires the subcompany to make payments that provide Aotearoa Fisheries Limited with sufficient money to enable Aotearoa Fisheries Limited to comply with subsection (2).

(4) If the payments from its subcompanies are insufficient to allow Aotearoa Fisheries Limited to comply with subsection (2), Aotearoa Fisheries Limited may meet its obligations under subsection (2) by other means.

(5) In subsection (2),—

consolidated group means Aotearoa Fisheries Limited and its subcompanies

consolidated group net profit after tax does not include—

(a) asset revaluations; or

(b) unrealised capital gains or losses; or

(c) unrealised gains or losses from financial instruments.

77 Circumstances when payments not required

Section 76(2) does not apply—

(a) until Te Ohu Kai Moana Trustee Limited has made payments—

(i) under section 137(1)(a) to Te Putea Whakatupu Trustee Limited; and

(ii) under section 137(1)(b) to Te Wai Māori Trustee Limited; or

(b) to the extent that compliance would put Aotearoa Fisheries Limited, a subcompany, or any directors of either, in breach of any obligation under the Companies Act 1993.

Subpart 4—Te Putea Whakatupu Trust and Te Putea Whakatupu Trustee Limited

Establishment

78 Interpretation

In this subpart and in subpart 5,—

distribution means, in relation to trust income, the annual distributions made by—

(a) Te Putea Whakatupu Trustee Limited under section 83(b):

(b) Te Wai Māori Trustee Limited under section 95(b)

distribution policy means the statement of objectives, priorities, and criteria that must be used to guide the annual distribution of trust income in order to meet the purpose of Te Putea Whakatupu Trust or Te Wai Māori Trust, as the case may be

investment plan means the proposed investment of the trust capital

trust capital means,—

(a) in the case of Te Putea Whakatupu Trust—

(i) settlement asset money transferred by Te Ohu Kai Moana Trustee Limited in accordance with section 137(1)(a); and

(ii) any further payments made under section 90(5); and

(b) in the case of Te Wai Māori Trust—

(i) settlement asset money transferred by Te Ohu Kai Moana Trustee Limited in accordance with sections 103(3) and 137(1)(b); and

(ii) any further payments made under section 103(6)

trust funds means trust capital and accumulated trust income

trust income means—

(a) in the case of Te Putea Whakatupu Trust,—

(i) funds transferred under section 137(1)(e)(ii); and

(ii) earnings derived from the trust capital; and

(b) in the case of Te Wai Māori Trust—

(i) funds transferred under section 137(1)(e)(iii); and

(ii) earnings derived from trust capital.

79 Establishment of Te Putea Whakatupu Trust

(1) Te Ohu Kai Moana Trustee Limited must, not later than 60 working days after the appointed day, establish by trust deed a trust called Te Putea Whakatupu Trust.

(2) Neither the rule against perpetuities nor any relevant provisions of the Perpetuities Act 1964—

(a) prescribe or restrict the period during which Te Putea Whakatupu Trust may exist in law; or

(b) apply to a document entered into to give effect to the Deed of Settlement (including the trust deed required to be entered into under subsection (1)) if the application of that rule or the provisions of that Act would otherwise make a document, or a right or obligation conferred by that document, invalid or ineffective.

80 Trustee of Te Putea Whakatupu Trust

(1) Te Putea Whakatupu Trust must have only 1 trustee.

(2) The trustee of Te Putea Whakatupu Trust must be a company formed under the Companies Act 1993 with the name of Te Putea Whakatupu Trustee Limited.

81 Purpose of Te Putea Whakatupu Trust

The purpose of Te Putea Whakatupu Trust is to hold and manage the trust funds on trust for and on behalf of the beneficiaries under the Deed of Settlement, in order to promote education, training, and research, including matters that relate to fisheries, fishing, and fisheries-related activities, but not in a manner that could adversely affect the charitable status (if any) of the Trust.

82 Benefits of Trust

The benefits of Te Putea Whakatupu Trust must be made available as widely as possible to all Māori, having regard to—

(a) the extent to which mandated iwi organisations are providing, or are able to provide, benefits for members of their iwi that are the same or similar to those that are able to be provided by Te Putea Whakatupu Trustee Limited; and

(b) the interests of Māori who—

(i) do not associate with their iwi; or

(ii) do not receive benefits from a mandated iwi organisation.

83 Functions of Te Putea Whakatupu Trustee Limited

In achieving the purpose of Te Putea Whakatupu Trust, Te Putea Whakatupu Trustee Limited must—

(a) manage the trust funds; and

(b) distribute the annual trust income for activities that include—

(i) promoting educational and training programmes, courses, and schemes within New Zealand for Māori, with a view to providing educational and training opportunities, including those that have application to the fishing industry:

(ii) funding the development of the skills of Māori, including those relevant to the fishing industry:

(iii) promoting the advancement of Māori by—

(A) offering or funding scholarships and grants to enable Māori students to meet the entry requirements of wananga, universities, or other tertiary institutions in New Zealand or overseas; and

(B) establishing scholarships and grants, or funding wananga, universities, or other tertiary institutions in New Zealand to offer scholarships and grants, with a view to encouraging Māori to develop their education and skills:

(iv) promoting research and development by wananga, universities, or other tertiary institutions in New Zealand or overseas into (but not limited to)—

(A) the involvement of Māori in fishing and fisheries-related activities; and

(B) matters affecting Māori fishing:

(v) facilitating access of Māori working in, or wishing to work in industry (including the fishing industry), to—

(A) education and training courses:

(B) conferences, presentations, and other learning experiences:

(vi) other activities that are necessary to foster or promote the activities set out in subparagraphs (i) to (v).

Requirements for trust deed

84 Contents of trust deed of Te Putea Whakatupu Trust

(1) To enable Te Putea Whakatupu Trustee Limited to carry out the purpose of Te Putea Whakatupu Trust, the trust deed must provide—

(a) that the directors of Te Putea Whakatupu Trustee Limited are entitled to be paid fees and reimbursing allowances or actual and reasonable expenses in accordance with the provisions included in the annual plan of Te Ohu Kai Moana Trustee Limited under section 37(f) and (g); and

(b) for the powers of investment of the directors of Te Putea Whakatupu Trustee Limited (and any prohibited investments); and

(c) for the manner in which the trust deed may be varied and any restrictions on the way it may be varied; and

(d) that the directors of Te Putea Whakatupu Trustee Limited may—

(i) make distributions to Māori, mandated iwi organisations, and other Māori organisations for the purpose of Te Putea Whakatupu Trust, subject to any conditions stated in the trust deed or specified by the directors; and

(ii) decline to make distributions if they consider that, in a particular case, the iwi concerned can or should be able to provide similar benefits to its members from income derived from settlement assets; and

(iii) in relation to any trust income not distributed in a financial year, determine a policy for capitalising, carrying forward, or creating reserves from, that income; and

(e) for the directors to commission an audit of Te Putea Whakatupu Trustee Limited under section 105; and

(f) for the circumstances when Te Putea Whakatupu Trust may be terminated; and

(g) on termination of that Trust, for the payment of the trust funds, in the percentages specified in column 3 of Schedule 3,—

(i) to each mandated iwi organisation that has charitable status; or

(ii) in the case of a mandated iwi organisation that does not have charitable status, to an entity with charitable status nominated by the mandated iwi organisation to benefit the relevant iwi and its members; or

(iii) if no mandated iwi organisation exists or no nomination is made under subparagraph (ii), to an entity with charitable status nominated by Te Ohu Kai Moana Trustee Limited to benefit the relevant iwi and its members.

(2) The trust deed must prohibit Te Putea Whakatupu Trustee Limited from—

(a) undertaking any business other than what is necessary for the purpose of the Trust; and

(b) expending or distributing trust capital, except on termination of the trust.

(3) The trust deed may—

(a) include any other matter that is not inconsistent with this Act or the constitution of Te Putea Whakatupu Trustee Limited; and

(b) be amended subject to—

(i) the purpose of Te Putea Whakatupu Trust:

(ii) the manner of its variation and any restrictions specified in the trust deed:

(iii) the constitution of Te Putea Whakatupu Trustee Limited:

(iv) this Act.

(4) A provision of the trust deed or an amendment to it has no effect to the extent that it is inconsistent with this Act.

85 Annual plan of Te Putea Whakatupu Trustee Limited

The trust deed of Te Putea Whakatupu Trust must require Te Putea Whakatupu Trustee Limited to prepare, and obtain the approval of Te Ohu Kai Moana Trustee Limited for, an annual plan that includes—

(a) the distribution policy of Te Putea Whakatupu Trustee Limited; and

(b) any investment plan of Te Putea Whakatupu Trustee Limited; and

(c) the budget for Te Putea Whakatupu Trustee Limited; and

(d) the administrative services available to Te Putea Whakatupu Trustee Limited.

86 Reporting obligations of Te Putea Whakatupu Trustee Limited

(1) The trust deed of Te Putea Whakatupu Trust must set out the following reporting, accounting, and auditing obligations of Te Putea Whakatupu Trustee Limited:

(a) the directors of Te Putea Whakatupu Trustee Limited must report to Te Ohu Kai Moana Trustee Limited within 4 months after the end of each financial year on—

(i) the performance of Te Putea Whakatupu Trustee Limited, assessed against its approved annual plan; and

(ii) distributions made by Te Putea Whakatupu Trustee Limited, assessed against its distribution policy; and

(iii) investments made (if any) and returns on investments (if any); and

(iv) any matter required by Te Ohu Kai Moana Trustee Limited in order to meet its reporting obligations; and

(b) the directors of Te Putea Whakatupu Trustee Limited must keep separate accounts for and report separately on—

(i) the distributions made by Te Putea Whakatupu Trustee Limited; and

(ii) the cost of administering Te Putea Whakatupu Trust; and

(iii) the cost of administering the distributions; and

(iv) the fees (in bands of $10,000) and reimbursing allowances or actual and reasonable expenses paid to the directors of Te Putea Whakatupu Trustee Limited; and

(v) contracts for service entered into by Te Putea Whakatupu Trustee Limited or any of its directors; and

(c) the directors must ensure that the accounts of Te Putea Whakatupu Trust are audited annually.

(2) This section does not limit any reporting obligations of Te Putea Whakatupu Trustee Limited arising under any enactment or rule of law.

Requirements for constitution

87 Constitution of Te Putea Whakatupu Trustee Limited

(1) Te Putea Whakatupu Trustee Limited must have—

(a) only 1 share that—

(i) has no distribution rights; and

(ii) must be held by the board of Te Ohu Kai Moana Trustee Limited; and

(b) a constitution that is consistent with this Act.

(2) The constitution must provide—

(a) that the role of Te Putea Whakatupu Trustee Limited is restricted to acting as the trustee of Te Putea Whakatupu Trust; and

(b) that Te Putea Whakatupu Trustee Limited must have 3 directors; and

(c) that Te Ohu Kai Moana Trustee Limited must appoint, in accordance with the criteria specified in section 88, and may remove, the directors of Te Putea Whakatupu Trustee Limited; and

(d) that a director—

(i) is appointed for a term not exceeding 4 years; and

(ii) may be reappointed for 1 further term; and

(iii) continues in office after the expiry of his or her term until his successor is appointed; and

(e) that an extraordinary vacancy of a director does not create a breach of the constitution, so long as Te Ohu Kai Moana Trustee Limited appoints a new director within 3 months of the vacancy arising; and

(f) a method by which the board of Te Putea Whakatupu Trustee Limited must address conflicts of interest that may arise for its directors; and

(g) that Te Putea Whakatupu Trustee Limited may regulate its own procedure, so long as it provides that—

(i) the quorum is 3 for the purpose of transacting any business; and

(ii) a meeting may be conducted by teleconference or by any means of communication that allows each director to participate effectively in the proceedings; and

(h) a procedure for amending the constitution; and

(i) that Te Putea Whakatupu Trustee Limited may be put into voluntary liquidation only if Te Putea Whakatupu Trust is terminated.

(3) A provision of the constitution of Te Putea Whakatupu Trustee Limited or an amendment to it has no effect to the extent that it is inconsistent with this Act or another enactment or rule of law.

Directors

88 Requirements for appointment of directors

(1) The constitution of Te Putea Whakatupu Trustee Limited must specify that the directors of Te Putea Whakatupu Trustee Limited must all be Māori who, collectively,—

(a) are well versed in matters of tikanga Māori; and

(b) are experienced in working with Māori and Māori organisations; and

(c) have expertise and experience in human resource development, education, and training.

(2) In appointing the directors of Te Putea Whakatupu Trustee Limited, Te Ohu Kai Moana Trustee Limited must consult with the National Urban Māori Authority in order to ensure that the directors have knowledge of, and are able to represent, the interests of Māori who reside in urban areas of New Zealand.

(3) Subsection (2) does not limit the power of Te Ohu Kai Moana Trustee Limited to consider the views of any other person or organisation that it considers has knowledge that is relevant to the interests of Māori who live in urban areas.

89 Eligibility for office of director

(1) Not more than 1 director of Te Ohu Kai Moana Trustee Limited may also be a director of Te Putea Whakatupu Trustee Limited.

(2) However, if a director of Te Putea Whakatupu Trustee Limited is a director of Te Ohu Kai Moana Trustee Limited, then that director's alternate may also be a director of Te Ohu Kai Moana Trustee Limited.

(3) A person who is a director of Te Putea Whakatupu Trustee Limited is not eligible to be, at the same time, a director of—

(a) Aotearoa Fisheries Limited; or

(b) a subcompany; or

(c) Te Wai Māori Trustee Limited.

(4) A person who is a director of an entity listed in subsection (3) must resign as a director of that entity within 5 working days if he or she becomes a director of Te Putea Whakatupu Trustee Limited.

(5) A person who is, or who has been within the previous 2 years, a member or alternate member of Te Kawai Taumata is not eligible for appointment as a director of Te Putea Whakatupu Trustee Limited.

(6) Neither the chairperson nor the deputy chairperson of Te Ohu Kai Moana Trustee Limited or Te Putea Whakatupu Trustee Limited may, at the same time, be the chairperson or deputy chairperson of the other.

Payments

90 Payments to Te Putea Whakatupu Trustee Limited

(1) Te Ohu Kai Moana Trustee Limited must pay the settlement asset money to Te Putea Whakatupu Trustee Limited, as provided for by section 137(1)(a), to be held on trust for the purpose of Te Putea Whakatupu Trust.

(2) Te Ohu Kai Moana Trustee Limited must comply with the obligation under subsection (1) on a date to be determined by Te Ohu Kai Moana Trustee Limited in its discretion, but not later than 31 October 2009.

(3) Subject to the limit specified in section 137(1)(e)(ii), Te Ohu Kai Moana Trustee Limited must, before the date of payment referred to in subsection (2), fund the activities undertaken by Te Putea Whakatupu Trustee Limited, to a maximum of $1 million in each financial year (including directors' fees provided for under section 84(1)(a) and administrative costs provided for under section 85(c) and (d)), in accordance with the annual plan of Te Putea Whakatupu Trustee Limited approved by Te Ohu Kai Moana Trustee Limited.

(4) After the date of the payment referred to in subsection (2), no further amounts are payable by Te Ohu Kai Moana Trustee Limited under subsection (3).

(5) Te Ohu Kai Moana Trustee Limited may make payments of other money as trust capital to Te Putea Whakatupu Trustee Limited, subject to the conditions specified in section 137(2) (if that provision applies).

(6) Te Putea Whakatupu Trustee Limited is not entitled to receive allocations of settlement quota or income shares from Te Ohu Kai Moana Trustee Limited.

Subpart 5—Te Wai Māori Trust and Te Wai Māori Trustee Limited

Establishment

91 Interpretation

In this subpart,—

freshwater fisheries means any fishery in freshwater in New Zealand, excluding any sports fishery or unwanted aquatic life or activities conducted under the Freshwater Fish Farming Regulations 1983

freshwater fishing means fishing activity in relation to freshwater fisheries

sports fish has the meaning given to it in section 2(1) of the Conservation Act 1987

unwanted aquatic life has the meaning given to it in section 2(1) of the Fisheries Act 1996.

92 Establishment of Te Wai Māori Trust

(1) Te Ohu Kai Moana Trustee Limited must, not later than 60 working days after the appointed day, establish by trust deed a trust called Te Wai Māori Trust.

(2) Neither the rule against perpetuities nor any relevant provisions of the Perpetuities Act 1964—

(a) prescribe or restrict the period during which Te Wai Māori Trust may exist in law; or

(b) apply to a document entered into to give effect to the Deed of Settlement (including the trust deed required to be entered into under subsection (1)) if the application of that rule or the provisions of that Act would otherwise make a document, or a right or obligation conferred by that document, invalid or ineffective.

93 Trustee of Te Wai Māori Trust

(1) Te Wai Māori Trust must have only 1 trustee.

(2) The trustee of Te Wai Māori Trust must be a company formed under the Companies Act 1993 with the name of Te Wai Māori Trustee Limited.

94 Purpose of Te Wai Māori Trust

The purpose of Te Wai Māori Trust is to hold and manage the trust funds on trust for and on behalf of the beneficiaries under the Deed of Settlement, in order to advance Māori interests in freshwater fisheries, but not in a manner that could adversely affect the charitable status (if any) of the Trust.

95 Functions of Te Wai Māori Trustee Limited

In achieving the purpose of Te Wai Māori Trust, Te Wai Māori Trustee Limited must—

(a) manage the trust funds; and

(b) distribute the annual trust income for activities that include—

(i) undertaking or funding research, development, and education related to Māori interests in freshwater fishing; and

(ii) promoting the protection and enhancement of freshwater fisheries habitat in lakes, rivers, and other water bodies, particularly those that have traditionally supported iwi and whose shores have been the location of their marae; and

(iii) promoting the establishment of freshwater fisheries; and

(iv) using its resources to bring direct or indirect benefit to Māori in respect of their freshwater fishing interests.

Requirements for trust deed

96 Contents of trust deed of Te Wai Māori Trust

(1) To enable Te Wai Māori Trustee Limited to carry out the purpose of Te Wai Māori Trust, the trust deed must provide—

(a) that the directors of Te Wai Māori Trustee Limited are entitled to be paid fees and reimbursing allowances or actual and reasonable expenses in accordance with the provisions included in the annual plan of Te Ohu Kai Moana Trustee Limited under section 37(f) and (g); and

(b) for the powers of investment of the directors of Te Wai Māori Trustee Limited (and any prohibited investments); and

(c) for the manner in which the trust deed may be varied and any restrictions on the way it may be varied; and

(d) for the directors to commission an audit of Te Wai Māori Trustee Limited under section 105; and

(e) for the directors to determine—

(i) the circumstances when distributions may be made in accordance with section 98; and

(ii) in relation to any trust income not distributed in a financial year, a policy for capitalising, carrying forward, or creating reserves from that income; and

(f) for the circumstances when Te Wai Māori Trust may be terminated; and

(g) on termination of that Trust, for the payment of the trust funds, in the percentages specified in column 3 of Schedule 3,—

(i) to each mandated iwi organisation that has charitable status; or

(ii) in the case of a mandated iwi organisation that does not have charitable status, to an entity with charitable status nominated by the mandated iwi organisation, for the benefit of the relevant iwi and its members; or

(iii) if no mandated iwi organisation exists or no nomination is made under subparagraph (ii), to an entity with charitable status nominated by Te Ohu Kai Moana Trustee Limited to benefit the relevant iwi and its members.

(2) The trust deed must prohibit Te Wai Māori Trustee Limited from—

(a) undertaking any business other than what is necessary for the purpose of the Trust; and

(b) expending or distributing trust capital, except on termination of the trust.

(3) The trust deed may—

(a) include any other matter that is not inconsistent with this Act or the constitution of Te Wai Māori Trustee Limited; and

(b) be amended, subject to—

(i) the purpose of Te Wai Māori Trust:

(ii) the manner of its variation and any restrictions specified in the trust deed:

(iii) the constitution of Te Wai Māori Trustee Limited:

(iv) this Act.

(4) A provision of the trust deed or an amendment to it has no effect to the extent that it is inconsistent with this Act.

97 Annual plan of Te Wai Māori Trustee Limited

The trust deed of Te Wai Māori Trust must require Te Wai Māori Trustee Limited to prepare, and obtain the approval of Te Ohu Kai Moana Trustee Limited for, an annual plan that includes—

(a) the distribution policy of Te Wai Māori Trustee Limited; and

(b) any investment plan of Te Wai Māori Trustee Limited; and

(c) the budget for Te Wai Māori Trustee Limited; and

(d) the administrative services available to Te Wai Māori Trustee Limited.

98 Distributions of trust income

(1) The directors of Te Wai Māori Trustee Limited may make distributions to Māori, mandated iwi organisations, and other Māori organisations for the purpose of Te Wai Māori Trust, subject to any conditions provided for by the trust deed.

(2) Before making a distribution, the directors must take into account the extent to which—

(a) a proposal will assist in co-ordinating and consolidating the activities of the recipients with the activities of agencies involved in freshwater fisheries and habitat management; and

(b) a proposal provides a model that is able to be applied by the groups referred to in subsection (1); and

(c) the activities proposed to be undertaken with the distribution are being undertaken by other mandated iwi organisations or agencies; and

(d) the functions of Te Wai Māori Trustee Limited are being undertaken by other agencies.

99 Reporting obligations of Te Wai Māori Trustee Limited

(1) The trust deed of Te Wai Māori Trust must set out the following reporting, accounting, and auditing obligations of Te Wai Māori Trustee Limited:

(a) the directors of Te Wai Māori Trustee Limited must report to Te Ohu Kai Moana Trustee Limited within 4 months after the end of each financial year on—

(i) the performance of Te Wai Māori Trustee Limited, assessed against its approved annual plan; and

(ii) distributions made by Te Wai Māori Trustee Limited, assessed against the distribution policy; and

(iii) investments made (if any) and returns on investments (if any); and

(iv) any matter required by Te Ohu Kai Moana Trustee Limited in order to meet its reporting obligations; and

(b) the directors of Te Wai Māori Trustee Limited must keep separate accounts for, and report separately on,—

(i) the distributions made by Te Wai Māori Trustee Limited; and

(ii) the cost of administering Te Wai Māori Trust; and

(iii) the cost of administering the distributions; and

(iv) the fees (in bands of $10,000) and reimbursing allowances or actual and reasonable expenses paid to the directors of Te Wai Māori Trustee Limited; and

(v) contracts for service entered into by Te Wai Māori Trustee Limited or any of its directors; and

(c) the directors must ensure that the accounts of Te Wai Māori Trust are audited annually.

(2) This section does not limit any reporting obligations of Te Wai Māori Trustee Limited arising under any enactment or rule of law.

Requirements for constitution

100 Constitution of Te Wai Māori Trustee Limited

(1) Te Wai Māori Trustee Limited must have—

(a) only 1 share that—

(i) has no distribution rights; and

(ii) must be held by the board of Te Ohu Kai Moana Trustee Limited; and

(b) a constitution that is consistent with this Act.

(2) The constitution must provide—

(a) that the role of Te Wai Māori Trustee Limited is restricted to acting as the trustee of Te Wai Māori Trust; and

(b) that Te Wai Māori Trustee Limited must have 3 directors; and

(c) that Te Ohu Kai Moana Trustee Limited must appoint, in accordance with the criteria specified in section 101, and may remove the directors of Te Wai Māori Trustee Limited; and

(d) that a director—

(i) is appointed for a term not exceeding 4 years; and

(ii) may be reappointed for 1 further term; and

(iii) continues in office after the expiry of his or her term until his successor is appointed; and

(e) that an extraordinary vacancy of a director does not create a breach of the constitution, so long as Te Ohu Kai Moana Trustee Limited appoints a new director within 3 months of the vacancy arising; and

(f) a method by which the board of Te Wai Māori Trustee Limited must address conflicts of interest that may arise for its directors; and

(g) that Te Wai Māori Trustee Limited may regulate its own procedure, so long as it provides that—

(i) the quorum is 3 for the purpose of transacting any business; and

(ii) a meeting may be conducted by teleconference or by any means of communication that allows each director to participate effectively in the proceedings; and

(h) a procedure for amending the constitution; and

(i) that Te Wai Māori Trustee Limited may be put into voluntary liquidation only if Te Putea Whakatupu Trust is terminated.

(3) A provision of the constitution of Te Wai Māori Trustee Limited or an amendment to it has no effect to the extent that it is inconsistent with this Act or another enactment or rule of law.

Directors

101 Criteria for appointment of directors

The constitution of Te Wai Māori Trustee Limited must specify that the directors of Te Wai Māori Trustee Limited must all be Māori who, collectively,—

(a) are well versed in matters of tikanga Māori; and

(b) are experienced in working with Māori and Māori organisations; and

(c) are experienced in fisheries management, enhancement, and development; and

(d) have expertise and experience in matters relevant to freshwater fisheries; and

(e) have knowledge of the special interest of iwi in freshwater fisheries.

102 Eligibility for office of director

(1) Not more than 1 director of Te Ohu Kai Moana Trustee Limited may also be a director of Te Wai Māori Trustee Limited.

(2) However, if a director of Te Wai Māori Trustee Limited is a director of Te Ohu Kai Moana Trustee Limited, that director's alternate may also be a director of Te Ohu Kai Moana Trustee Limited.

(3) A person who is a director of Te Wai Māori Trustee Limited is not eligible to be, at the same time, a director of—

(a) Aotearoa Fisheries Limited; or

(b) a subcompany; or

(c) Te Putea Whakatupu Trustee Limited.

(4) A person who is a director of an entity listed in subsection (3) must resign as a director of that entity within 5 working days if he or she becomes a director of Te Wai Māori Trustee Limited.

(5) A person who is, or who has been within the previous 2 years, a member or alternate member of Te Kawai Taumata is not eligible for appointment as a director of Te Wai Māori Trustee Limited.

(6) Neither the chairperson nor the deputy chairperson of Te Ohu Kai Moana Trustee Limited or Te Wai Māori Trustee Limited may, at the same time, be the chairperson or deputy chairperson of the other.

Payments

103 Payments to Te Wai Māori Trustee Limited

(1) Te Ohu Kai Moana Trustee Limited must pay to Te Wai Māori Trustee Limited the settlement asset money, as provided for by section 137(1)(b), to be held on trust for the purpose of Te Wai Māori Trust.

(2) Te Ohu Kai Moana Trustee Limited must comply with the obligation under subsection (1) on a date to be determined by Te Ohu Kai Moana Trustee Limited in its discretion, but not later than 31 October 2009.

(3) After the date of payment referred to in subsection (2), Te Ohu Kai Moana Trustee Limited must pay not less than $1 million per year, until Te Wai Māori Trustee Limited has received in total the sum of $20 million (including the sum referred to in subsection (1)) from Te Ohu Kai Moana Trustee Limited (but excluding the sums referred to in subsection (4)).

(4) Subject to the limit specified in section 137(1)(e)(iii), Te Ohu Kai Moana Trustee Limited must, before the date of payment referred to in subsection (2), fund the activities undertaken by Te Wai Māori Trustee Limited (including directors' fees provided for under section 96(1)(a) and administrative costs provided for under section 97(c) and (d)), in accordance with the annual plan of Te Wai Māori Trustee Limited approved by Te Ohu Kai Moana Trustee Limited.

(5) After the date of payment referred to in subsection (2), no further amounts are payable by Te Ohu Kai Moana Trustee Limited under subsection (4).

(6) Te Ohu Kai Moana Limited may make payments of other money as trust capital to Te Wai Māori Trustee Limited, subject to the conditions specified in section 137(2) (if that provision applies).

(7) Te Wai Māori Trustee Limited is not entitled to receive allocations of settlement quota or income shares from Te Ohu Kai Moana Trustee Limited.

Subpart 6—Audits and reviews

104 Interpretation

In this subpart, unless the context otherwise requires,—

auditor means a person appointed in accordance with section 107

restrictions on the disposal of settlement assets means either or both, as the case may be,—

(a) restrictions imposed on the disposal of the income shares of Aotearoa Fisheries Limited under subpart 3 of Part 2:

(b) restrictions on the disposal of settlement quota

restrictions on the disposal of settlement quota means the restrictions imposed under subpart 2 of Part 4

reviewer means a person appointed in accordance with section 121.

Audit of entities

105 Audits

(1) Not later than 4 years after the commencement of this Act,—

(a) Te Ohu Kai Moana Trustee Limited must arrange for an audit of Te Ohu Kai Moana Trustee Limited; and

(b) Aotearoa Fisheries Limited must arrange for an audit of Aotearoa Fisheries Limited and its subcompanies; and

(c) Te Putea Whakatupu Trustee Limited must arrange for an audit of Te Putea Whakatupu Trustee Limited; and

(d) Te Wai Māori Trustee Limited must arrange for an audit of Te Wai Māori Trustee Limited.

(2) The cost of an audit conducted under this section or section 106 must be paid by the entity being audited.

106 Subsequent audits

Each of the entities referred to in section 105, or 2 or more jointly, must arrange for subsequent audits to be conducted not later than 4 years after the preceding audit, unless,—

(a) in the case of Te Ohu Kai Moana Trustee Limited, Te Putea Whakatupu Trustee Limited, or Te Wai Māori Trustee Limited, at least 75% of the mandated iwi organisations and representative Māori organisations at a general meeting convened by Te Ohu Kai Moana Trustee Limited, vote not to conduct an audit of 1 or more of the relevant entities; or

(b) in the case of Aotearoa Fisheries Limited, the shareholders of at least 75% of the income shares vote at an annual general meeting of Aotearoa Fisheries Limited, not to conduct an audit.

107 Person to conduct audit

(1) Each of the audits referred to in sections 105 and 106 must be carried out by an independent person—

(a) appointed by the entity that is to be audited; and

(b) who is appropriately qualified to conduct the audit.

(2) A person appointed to conduct an audit is not required to be—

(a) a chartered accountant within the meaning of section 19 of the Institute of Chartered Accountants of New Zealand Act 1996; or

(b) qualified to undertake financial audits.

(3) In carrying out an audit, the person appointed must—

(a) maintain the appropriate degree of impartiality and independence; and

(b) take all reasonable steps to ensure that his or her judgment is not impaired by any relationship with, or interest in, the entity subject to audit.

(4) The independence of a person appointed to conduct an audit is not compromised merely because that person has a beneficial interest under this Act.

108 General scope of audits

An audit conducted under section 105 or section 106 must consider and report, in relation to the entity being audited, on—

(a) the objectives established by the board of directors of the entity; and

(b) the extent to which those objectives are consistent with the effective implementation of the duties and functions of the entity under this Act or any other enactment; and

(c) the progress made by the board of directors towards achieving the objectives; and

(d) the policies and strategies established by the board of directors to achieve the objectives and perform the duties and functions of the board and its directors; and

(e) the effectiveness of the policies and strategies referred to in paragraph (d); and

(f) the quality and timeliness of the reporting documents prepared to meet the reporting obligations under this Act or another enactment.

109 Audit of Te Ohu Kai Moana Trustee Limited

In the case of an audit of Te Ohu Kai Moana Trustee Limited, the audit must consider and report on—

(a) the progress that Te Ohu Kai Moana Trustee Limited has made towards allocating and transferring settlement assets; and

(b) the contribution that Te Ohu Kai Moana Trustee Limited has made towards assisting iwi to meet the requirements for recognition as mandated iwi organisations.

110 Audit of Aotearoa Fisheries Limited

(1) In the case of Aotearoa Fisheries Limited, an audit must consider and report on—

(a) the performance of Aotearoa Fisheries Limited in meeting its constitutional requirement to work cooperatively with iwi on commercial matters; and

(b) the commercial performance of Aotearoa Fisheries Limited in comparison with other participants in the fishing industry, including its net profit after tax as determined in accordance with generally accepted accounting practice, and changes in the value of the company.

(2) In this section a reference to Aotearoa Fisheries Limited includes its subcompanies.

111 Audits of Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited

(1) In the case of Te Putea Whakatupu Trustee Limited, an audit must consider and report on the contribution that Te Putea Whakatupu Trustee Limited has made towards promoting education, training, and research in relation to Māori involvement in fisheries, fishing, and fisheries-related activities.

(2) In the case of Te Wai Māori Trustee Limited, an audit must consider and report on the contribution that Te Wai Māori Trustee Limited has made in advancing the interests of Māori in freshwater fisheries.

Procedure after completion of audit

112 Procedure for auditor and entity audited

(1) As soon as practicable after conducting an audit under section 105 or section 106, the auditor must—

(a) prepare a written audit report that includes—

(i) the findings made in the audit; and

(ii) the recommendations of the auditor; and

(b) distribute the audit report to—

(i) each entity that is subject to audit; and

(ii) Te Ohu Kai Moana Trustee Limited, in the case of an audit of Aotearoa Fisheries Limited, Te Putea Whakatupu Trustee Limited, or Te Wai Māori Trustee Limited.

(2) Not later than 40 working days after receiving an audit report under subsection (1), each entity subject to audit must—

(a) prepare a plan specifying the actions that it intends to take to address the findings and recommendations of the audit report; and

(b) provide a copy of that plan to Te Ohu Kai Moana Trustee Limited.

(3) After an audit has been completed, an entity subject to audit must include in its next annual report a description of the progress it has made in addressing the matters specified in the plan prepared under subsection (2)(a).

113 Procedure for Te Ohu Kai Moana Trustee Limited

(1) Not later than 60 working days after receiving an audit report under section 112(1), Te Ohu Kai Moana Trustee Limited must distribute to the members and alternate members of Te Kawai Taumata, to all mandated iwi organisations, and to all representative Māori organisations—

(a) the audit report; and

(b) the plan prepared under section 112(2) by each entity that is subject to audit; and

(c) in the case of an audit of Aotearoa Fisheries Limited, Te Putea Whakatupu Trustee Limited, or Te Wai Māori Trustee Limited, any further plan prepared by Te Ohu Kai Moana Trustee Limited to address the findings and recommendations of the audit report.

(2) At its next general meeting after it has received an audit report under section 112(1), Te Ohu Kai Moana Trustee Limited must provide for consideration of—

(a) the audit report; and

(b) the plans referred to in subsection (1)(b) and (c), as relevant; and

(c) any comments from mandated iwi organisations or representative Māori organisations on the audit report or any plans.

Requirement for review of entities

114 Review of entities

(1) Independent reviews must be conducted in accordance with this section and sections 115 to 127.

(2) For each of the entities listed in subsection (4), the first review must be completed not later than the end of the 11th year after the commencement of this Act.

(3) Subsequent reviews, which may be of 1 of the entities listed in subsection (4) or of 2 or more jointly, must be commenced—

(a) not later than the beginning of the fifth year after the date of completion of the review under subsection (2), if the reviewer found, as provided for in section 124(2), that the interests of the beneficiaries of the Deed of Settlement would be better served by changes to section 161(1) or section 168 (that restrict the disposal of settlement quota to mandated iwi organisations and Te Ohu Kai Moana Group); or

(b) not sooner than the beginning of the fifth year after the completion of the preceding review, if at least 75% of mandated iwi organisations agree, at a general meeting of Te Ohu Kai Moana Trustee Limited, that a review should be conducted in relation to—

(i) a specified entity or entities; or

(ii) the matters set out in section 122(1)(b).

(4) The entities referred to in subsections (2) and (3) are—

(a) Te Ohu Kai Moana Trustee Limited; and

(b) Aotearoa Fisheries Limited; and

(c) Te Putea Whakatupu Trustee Limited; and

(d) Te Wai Māori Trustee Limited.

115 Funding of reviews

(1) Te Ohu Kai Moana Trustee Limited must provide adequate funding for reviews conducted under section 114(2) and (3)(a), including—

(a) the budget for a committee of representatives; and

(b) remuneration of the members of that committee for attendance at meetings and reimbursing allowances or actual and reasonable expenses to be paid to the members in undertaking their functions under this Act.

(2) Mandated iwi organisations must fund reviews conducted under section 114(3)(b), in the proportion that each mandated iwi organisation represents of the notional iwi population specified in column 2 of Schedule 3, including—

(a) the budget for a committee of representatives; and

(b) remuneration and reimbursing allowances or actual and reasonable expenses for the members of a committee of representatives, in accordance with the provisions included in the annual plan of Te Ohu Kai Moana Trustee Limited under section 37(e) and (g).

Committee of representatives

116 Committee of representatives

(1) For each review conducted under section 114, a committee of representatives must be appointed.

(2) A committee of representatives must consist of not more than 11 and not fewer than 6 members.

117 Appointment procedure

(1) Clauses 1 and 3 of Schedule 8 apply, with the necessary modifications, to the appointment of a committee of representatives.

(2) Not later than 6 months before the commencement of the year referred to in section 114(2), the chairperson of the board of Te Ohu Kai Moana Trustee Limited must, by written notice,—

(a) request those with responsibility under clause 1 of Schedule 8 to commence the process to appoint the members of a committee of representatives; and

(b) specify the date by which the appointment of the committee of representatives must be complete, which must be not later than 60 working days after the notice is given.

(3) In the case of subsequent reviews referred to in section 114(3), not later than 6 months before the commencement of a subsequent review, the chairperson of the board of Te Ohu Kai Moana Trustee Limited must give written notice, as required by subsection (2).

(4) The appointments to a committee of representatives expire on the day after the date on which the review report is distributed by that committee under section 125(2).

118 Functions of committee of representatives

(1) The only functions of a committee of representatives are—

(a) to set the terms of reference for the review in respect of which the committee has been appointed; and

(b) to appoint the reviewer; and

(c) to receive and distribute the review report in accordance with section 125.

(2) The committee of representatives must complete its functions in subsection (1)(a) and (b) not later than 60 working days after the date specified under section 117(2)(b).

119 Terms of reference

(1) The terms of reference required by section 118(1) must include—

(a) the date for the commencement of the review (which must be not later than 6 months after the date of the notice given under section 117(2)(b)); and

(b) the date by which the review report must be presented under section 125(1) (which must be not later than 6 months after the commencement date set under paragraph (a)).

(2) Before finalising the terms of reference for the review, the committee of representatives must, for the purposes of consultation,—

(a) provide the draft terms of reference to—

(i) all mandated iwi organisations and representative Māori organisations; and

(ii) the members of Te Kawai Taumata; and

(iii) the entity under review; and

(b) allow 20 working days for written comments to be provided to the committee.

(3) The terms of reference must be consistent with the requirements of sections 122 to 124.

120 Procedure and remuneration of committee of representatives

(1) A committee of representatives must regulate its own procedure.

(2) However,—

(a) a quorum for a meeting of a committee is 6 members; and

(b) a committee must not transact business unless the quorum is present at the meeting.

(3) A meeting of a committee may be conducted by teleconference or by any means of communication that allows the members of the committee to participate effectively in the proceedings.

(4) As provided for in section 115, the members of a committee are entitled to receive from Te Ohu Kai Moana Trustee Limited or from mandated iwi organisations, as the case may be,—

(a) remuneration for attendance at meetings; and

(b) reimbursing allowances or actual and reasonable expenses incurred in undertaking the functions of a committee of representatives.

Conduct of review

121 Reviewer

(1) Every review conducted under this subpart must be carried out by an independent person—

(a) appointed by the committee of representatives; and

(b) appropriately qualified to conduct the review.

(2) In carrying out a review, the reviewer must—

(a) maintain the appropriate degree of impartiality and independence; and

(b) take all reasonable steps to ensure that his or her judgment is not impaired by any relationship with, or interest in, the entity under review.

(3) The independence of a reviewer is not compromised merely because that person has a beneficial interest under this Act.

122 Scope of review

(1) Every review conducted under section 114 must consider and report on—

(a) the effect on the entity under review of the governance arrangements provided for by or under this Act as those arrangements relate to—

(i) the performance of that entity in achieving its duties and functions; and

(ii) the ability of that entity to deliver benefits to the beneficiaries of the entity; and

(iii) the ability of that entity to contribute to achieving the purposes of the Act; and

(b) the effect of the restrictions on the disposal of settlement assets as they relate to the ability of—

(i) mandated iwi organisations (and their asset-holding companies and subsidiaries of the asset-holding companies) to deliver benefits to the members of their iwi; and

(ii) Aotearoa Fisheries Limited to deliver benefits to its income shareholders; and

(c) whether, without creating an inconsistency with the purposes of this Act or with the purpose of Te Ohu Kai Moana, the interests of the beneficiaries of the Deed of Settlement would be better served by changes to—

(i) the governance arrangements of an entity:

(ii) the restrictions on the disposal of settlement assets.

(2) In this section,—

beneficiary of an entity means—

(a) in the case of Te Ohu Kai Moana Trustee Limited, the beneficiaries of the Deed of Settlement; and

(b) in the case of Aotearoa Fisheries Limited, its income shareholders; and

(c) in the case of Te Putea Whakatupu Trustee Limited and Te Wai Māori Trustee Limited, those individuals and groups entitled to apply for distributions provided for under the distribution policy of the relevant trust deed

governance arrangements include—

(a) the procedures and criteria to appoint—

(i) the directors of Te Ohu Kai Moana Trustee Limited, Aotearoa Fisheries Limited, Te Putea Whakatupu Trustee Limited, and Te Wai Māori Trustee Limited; and

(ii) the members and alternate members of Te Kawai Taumata; and

(b) the ownership structure of each entity, including the shareholding structure of Aotearoa Fisheries Limited; and

(c) the procedural requirements that enable the beneficiaries of an entity to hold directors accountable for management performance; and

(d) the provisions required by this Act for the constitution and the trust deed (if any) of an entity.

123 Further relevant considerations

Every review conducted under section 114 must take into account—

(a) the findings and reports of relevant audits conducted under section 105 or section 106; and

(b) in each case, the plan prepared under section 112(2) by the entity subject to audit.

124 Limits to recommendations that may be made

(1) A reviewer must not recommend a change to the requirement in the trust deeds of Te Ohu Kai Moana, Te Putea Whakatupu Trust, or Te Wai Māori Trust that, upon termination, the trust assets or funds be distributed to iwi in the percentages specified in column 3 of Schedule 3.

(2) If, in conducting a review under section 114(2), a reviewer finds that the interests of the beneficiaries of the Deed of Settlement would be better served by changes to section 161(1) or section 168 (which restrict the disposal of settlement quota to mandated iwi organisations and Te Ohu Kai Moana Group),—

(a) the reviewer must—

(i) include the finding in the review report; but

(ii) not recommend that the restrictions be changed; and

(b) a subsequent review must be carried out, as provided for by section 114(3)(a), not later than 5 years after the completion of the review under section 114(2).

(3) If, in conducting a review of Te Putea Whakatupu Trustee Limited or Te Wai Māori Trustee Limited under section 114(2) or (3), a reviewer finds that the entity continues to fulfil its purpose under this Act, the reviewer must not recommend that the relevant trust be wound up.

(4) If a reviewer makes findings of the kind referred to in subsections (2) or (3), mandated iwi organisations must not amend a recommendation to achieve a change to the restriction.

Procedure after completion of review

125 Report on review

(1) As soon as practicable after conducting a review under section 114, a reviewer must—

(a) prepare a written report that includes—

(i) the findings made in the review; and

(ii) the recommendations of the reviewer; and

(b) present the review report to—

(i) the committee of representatives; and

(ii) each entity under review.

(2) As soon as practicable after receiving the review report, the committee of representatives must distribute the report to—

(a) Te Ohu Kai Moana Trustee Limited; and

(b) all mandated iwi organisations and representative Māori organisations; and

(c) the members and alternate members of Te Kawai Taumata.

126 Consideration of review report by entity under review

(1) Not later than 40 working days after receiving a review report under section 125(1), the entity under review may prepare a plan specifying the actions that it intends to take to address the findings and recommendations of the reviewer.

(2) A plan prepared under subsection (1) must be distributed to—

(a) Te Ohu Kai Moana Trustee Limited; and

(b) all mandated iwi organisations and representative Māori organisations; and

(c) the members and alternate members of Te Kawai Taumata.

127 Consideration of review report

(1) At a general meeting of Te Ohu Kai Moana Trustee Limited convened not later than 60 working days after the distribution of a review report under section 125(2), Te Ohu Kai Moana Trustee Limited must make provision on the agenda for consideration of—

(a) the review report; and

(b) any plan prepared under section 126(1) by the entity under review; and

(c) any comments from mandated iwi organisations on the review report or on any plan; and

(d) any comments from members or alternate members of Te Kawai Taumata on the review report, as provided for in section 56(2)(d).

(2) At the meeting referred to in subsection (1), the mandated iwi organisations may resolve to—

(a) adopt all or some of the recommendations set out in the review report; or

(b) adopt all or part of the plan prepared under section 126(1); or

(c) without creating an inconsistency with the purposes of this Act or the purpose of Te Ohu Kai Moana, amend, and adopt as amended, any of those recommendations.

(3) If 75% or more of the mandated iwi organisations, representing over 50% of the total notional iwi population, support a resolution made under subsection (2),—

(a) the entity under review must—

(i) within a reasonable time implement the resolutions to the extent that they are not inconsistent with this Act or any other enactment or rule of law; and

(ii) include in its next annual plan a description of any action required as a result of the resolutions implemented under subparagraph (i); and

(b) if amendments to the Act are required, Te Ohu Kai Moana Trustee Limited must request the Minister to promote the necessary amendments.

Requirement to provide information

128 Information requested by auditor or reviewer

Information requested by or on behalf of the auditor in relation to an audit conducted under section 105 or section 106, or by or on behalf of the reviewer in relation to a review conducted under section 114, must be provided promptly by the person or entity that—

(a) has or controls the information; or

(b) is contractually entitled to the information; or

(c) can obtain the information by reasonable effort.