Maori Fisheries Act 2004 | 114 - 128

Māori Fisheries Act 2004 (Download Complete Act | PDF - 2.2MB)

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—
    1. 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
    2. 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—
      1. a specified entity or entities; or
      2. the matters set out in section 122(1)(b).
  4. The entities referred to in subsections (2) and (3) are—
    1. Te Ohu Kai Moana Trustee Limited; and
    2. Aotearoa Fisheries Limited; and
    3. Te Putea Whakatupu Trustee Limited; and
    4. 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—
    1. the budget for a committee of representatives; and
    2. 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—
    1. the budget for a committee of representatives; and
    2. 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,—
    1. request those with responsibility under clause 1 of Schedule 8 to commence the process to appoint the members of a committee of representatives; and
    2. 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—
    1. to set the terms of reference for the review in respect of which the committee has been appointed; and
    2. to appoint the reviewer; and
    3. 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—
    1. 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
    2. 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,—
    1. provide the draft terms of reference to—
      1. all mandated iwi organisations and representative Māori organisations; and
      2. the members of Te Kawai Taumata; and
      3. the entity under review; and
    2. 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,—
    1. a quorum for a meeting of a committee is 6 members; and
    2. 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,—
    1. remuneration for attendance at meetings; and
    2. 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—
    1. appointed by the committee of representatives; and
    2. appropriately qualified to conduct the review.
  2. In carrying out a review, the reviewer must—
    1. maintain the appropriate degree of impartiality and independence; and
    2. 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—
    1. the effect on the entity under review of the governance arrangements provided for by or under this Act as those arrangements relate to—
      1. the performance of that entity in achieving its duties and functions; and
      2. the ability of that entity to deliver benefits to the beneficiaries of the entity; and
      3. the ability of that entity to contribute to achieving the purposes of the Act; and
    2. the effect of the restrictions on the disposal of settlement assets as they relate to the ability of—
      1. 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
      2. Aotearoa Fisheries Limited to deliver benefits to its income shareholders; and
    3. 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—
      1. the governance arrangements of an entity:
      2. the restrictions on the disposal of settlement assets.
  2. In this section,—

    beneficiary of an entity means—

    1. in the case of Te Ohu Kai Moana Trustee Limited, the beneficiaries of the Deed of Settlement; and
    2. in the case of Aotearoa Fisheries Limited, its income shareholders; and
    3. 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—

    1. the procedures and criteria to appoint—
      1. the directors of Te Ohu Kai Moana Trustee Limited, Aotearoa Fisheries Limited, Te Putea Whakatupu Trustee Limited, and Te Wai Māori Trustee Limited; and
      2. the members and alternate members of Te Kawai Taumata; and
    2. the ownership structure of each entity, including the shareholding structure of Aotearoa Fisheries Limited; and
    3. the procedural requirements that enable the beneficiaries of an entity to hold directors accountable for management performance; and
    4. 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—

  1. the findings and reports of relevant audits conducted under section 105 or section 106; and
  2. 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),—
    1. the reviewer must—
      1. include the finding in the review report; but
      2. not recommend that the restrictions be changed; and
    2. 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—
    1. prepare a written report that includes—
      1. the findings made in the review; and
      2. the recommendations of the reviewer; and
    2. present the review report to—
      1. the committee of representatives; and
      2. each entity under review.
  2. As soon as practicable after receiving the review report, the committee of representatives must distribute the report to—
    1. Te Ohu Kai Moana Trustee Limited; and
    2. all mandated iwi organisations and representative Māori organisations; and
    3. 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—
    1. Te Ohu Kai Moana Trustee Limited; and
    2. all mandated iwi organisations and representative Māori organisations; and
    3. 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—
    1. the review report; and
    2. any plan prepared under section 126(1) by the entity under review; and
    3. any comments from mandated iwi organisations on the review report or on any plan; and
    4. 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—
    1. adopt all or some of the recommendations set out in the review report; or
    2. adopt all or part of the plan prepared under section 126(1); or
    3. 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),—
  4. the entity under review must—
    1. 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
    2. include in its next annual plan a description of any action required as a result of the resolutions implemented under subparagraph (i); and
  5. 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—

  1. has or controls the information; or
  2. is contractually entitled to the information; or
  3. can obtain the information by reasonable effort.