Ngai Tahu SettlementDoug Graham Treaty of Waitangi Negotiations
ANCILLARY CLAIMS TRUST DEED
10 GENERAL POWERS
The Trustees may exercise the powers, authorities and discretions conferred
by this deed in addition to, and not so as to limit, the powers, authorities and
discretions conferred upon trustees generally by the Trustee Act 1956.
The Trustees shall have the following powers and may exercise them either
alone or with any other person(s):
11.1 To Invest
To invest the Trust Fund and the income from it in any form of investment, in
accordance with the Trustee Act 1956 and to vary any such investment from time
to time and to keep separate accounting records for the income from each of the
Claim Properties. Where, for the time being, there is more than one person
acting as a trustee of the Trust Fund, and one or more, but not all, of them is
or are engaged in a profession, employment or business which is or includes
acting as a trustee or investing money on behalf of others, then in exercising
any power of investment, that trustee or those trustees (as the case may be)
shall, in terms of section 13D(1) of the Trustee Act 1956, not be required to
exercise the care, diligence and skill that a prudent person engaged in that
profession, employment or business would exercise in managing the affairs of
others. Rather, that trustee or those trustees (as the case may be) shall be
required only to exercise the care, diligence and skill that a prudent person of
business would exercise in managing the affairs of others.
11.2 To Borrow
To borrow any money at whatever rate of interest and upon whatever other
terms and conditions the Trustees may think fit. The Trustees may not give
security for repayment over the entire Trust Fund or any part of it.
11.3 To Maintain Claim Properties
To maintain and manage the Claim Properties, in whatever manner the Trustees
think fit including the engagement of any contractors or agents to undertake the
maintenance and management of the Claim Properties. For those purposes, the
Trustees may pay and apply any of the income of the Trust Fund as they think
fit, subject to clause 4.1.
11.4 Capital, Income and Blended Funds
Subject to clause 4 and clause 6, to determine whether any
money is to be considered as capital or income, and which expenses should be
paid out of capital and out of income respectively, and also to apportion
blended funds. Each determination or apportionment shall be final and binding on
all persons beneficially interested in the Trust Fund.
11.5 Depreciation or Replacement Funds
Subject to clause 4 and clause 6, to set up and maintain any
depreciation or replacement funds for any purpose the Trustees may consider
advisable, and in this regard to determine in their discretion:
11.5.1 the amount of income to be credited from time to time to any of those
11.5.2 whether those funds are income or capital.
11.6 Bank Accounts
To open any bank accounts in any name(s) either on the Trustees own behalf or
jointly with some other person(s), and to overdraw any such account without
giving security. The Trustees may also make arrangements with any bank for any
one or more of the following persons to operate on any of the Trustees" accounts
at that bank:
11.6.1 the Trustees; and
11.6.2 any delegate(s) named in writing by all the Trustees.
11.7 To Insure
To insure any building or other insurable property forming part of the Claims
Properties to any amount up to its full insurable value, or at the Trustees"
option, up to its full replacement value, against destruction or damage by fire,
earthquake, fire following earthquake and such other risks as the Trustees think
fit. The Trustees may pay the premiums out of income as they think fit, subject
to clause 4.1.
11.8 To Waive Debts
Without being liable for loss, to waive any debts due to the Trust Fund,
either absolutely or on such terms as the Trustees think expedient.
11.9 To Deposit Funds
To deposit all or part of the Trust Fund in any currency in a savings or
other interest or non-interest bearing account with any bank, trust, company or
other financial or investment institution in any jurisdiction in the world. In
making any deposit the Trustees shall not be liable for any loss due to
devaluation or any foreign exchange or other governmental restriction.
11.10 To Hold the Trust Fund Uninvested
To hold any part of the Trust Fund uninvested and in any currency for as long
as the Trustees think fit without being liable for any loss due to devaluation
or any foreign exchange or other governmental restriction.
11.11 To Protect or Enhance Assets
To enter into any type of contract whatever to protect, maintain or enhance
the value of any assets acquired or held by the Trustees or which they have the
right to acquire or hold.
11.12 To Pay Taxes, Rates and Other Expenses
To pay all rates, taxes and assessments (including Goods and Services Tax)
charged upon the Claim Properties and any income tax payable in respect of any
Claim Property Income.
11.13 To Apply for and Accept New Leases and Licences
To apply for and accept new leases and licences, and amalgamate, surrender,
convert and change tenures of leases and licences, and in particular, to duly
execute and register all leases and licences prescribed for execution and
registration by the Trustees in the Deed of Settlement.
11.14 To Execute and Register Encumbrances
To create, execute and register new covenants, easements and other
encumbrances, and in particular, to duly execute and register all covenants,
easements and other encumbrances prescribed for execution and registration by
the Trustees in the Deed of Settlement.
11.15 To Identify Beneficiaries
To carry out all the procedures set out in Attachment 14.2 of the Deed of
Settlement for the purpose of identifying Beneficiaries.
11.16 To Consult With Beneficiaries
To consult on the preferable method of vesting or transferring the Claims
Properties to be provided as redress for the relevant Ancillary Claims and
ensure that such properties are transferred to or vested in the Beneficiaries.
11.17 To Allow Use of Fenton Entitlements
To allow persons who have been identified as Beneficiaries entitled to a
Fenton Entitlement and Customary Fishing Entitlement to use the relevant Fenton
Entitlement and Customary Fishing Entitlement until the granting of the relevant
Fenton Entitlement and Customary Fishing Entitlement to the Beneficiaries under
clause 14.6.3 of the Deed of Settlement.
11.18 To Delegate or Contract With Te Runanga or Any Other Person
To delegate to, or contract with Te Runanga or any other person the actual
process of advertising and arranging for the necessary searching of the records
of the Whakapapa unit of Te Runanga and the records of the Maori Land Court by
the respective custodians of those records or by parties approved by the
custodians for the purpose.
12 INDEMNITY BY SETTLOR
The Settlor agrees that, in the event that any Trustee, officer or employee
of the Trust incurs a liability for which that person is entitled to be
indemnified under clause 9.7 but cannot be indemnified or fully
indemnified under that clause because the assets or funds available to meet such
indemnity are not sufficient to do so, the Settlor will indemnify the Trustee
against the liability (or so much of it as is not indemnified under clause
9.7). As a condition of the provision of such indemnity, the Trustee shall:
12.1 notify the Settlor immediately the Trustee becomes aware of any actual
or threatened actions, proceedings, claims or demands, or any facts or
circumstances likely to give rise to a claim against the Trustee for which the
Trustee may be entitled to the indemnity under this clause 12;
12.2 fully consult with the Settlor on the steps to be taken, if any, in
defending such actions, proceedings, claims or demands;
12.3 give the Settlor and its representatives (including legal
representatives) such information and assistance and co-operation as may
reasonably be required, having regard to the interests of the Trustee and the
12.4 if required by the Settlor, ensure that the proceedings are conducted in
a manner approved by the Settlor; and
12.5 obtain the Settlor's written consent, which consent will not be
unreasonably withheld before incurring any defence costs or making any
settlement or compromise.
13 COMPLIANCE WITH PUBLIC FINANCE ACT 1989
For so long as the Trust is a Crown Entity as defined in the Public Finance
Act 1989, the Trustees shall ensure that the Trust complies with the
requirements of that Act and of the Official Information Act 1982.
[Execution provisions to come.] SCHEDULE : RULES GOVERNING THE
APPOINTMENT, RETIREMENT AND PROCEEDINGS OF THE TRUSTEES
PART I - CONSTITUTION OF THE TRUSTEES
1 The Trustees
The first Trustees shall be [Names x 5]. [Names x 3] will be
deemed to have been appointed by the Settlor pursuant to clause 9.1 of
the Trust Deed and [Names x 2] will be deemed to have been appointed by
Te Runanga pursuant to clause 9.1 of the Trust Deed. [Name] will
be deemed to have been appointed as chairperson of Trustees by the Settlor
pursuant to clause 9.1 of the Trust Deed.
2 Term of Office
A Trustee shall hold office for a term expiring on the Termination Date,
unless he or she ceases to hold office under rule 4.
Four Trustees shall constitute a quorum at meetings of the Trustees.
4 Termination of Office
A Trustee shall cease to hold office if he or she:
4.1 retires from office by giving written notice to the Trustees or the
secretary of the Trust;
4.2 is removed from office by the person who appointed him or her;
4.3 completes his or her term of office;
4.4 refuses to act;
4.5 is absent without leave from 3 consecutive ordinary meetings of the
4.6 becomes physically or mentally incapacitated to the extent that in the
opinion of the other Trustees, expressed in a resolution, he or she is unable to
perform the duties of a Trustee properly;
4.7 becomes bankrupt or makes any composition or arrangement with his or her
4.8 is convicted of an indictable offence; or
4.9 in the opinion of the other Trustees, expressed in a resolution, is for
any other reason unfit to carry out the duties of a Trustee.
5 Record of Changes of Trustees
Upon every appointment, retirement, re-appointment or termination of office
of any Trustee the Trustees will ensure that an entry is made in the minute book
of the Trust to that effect and that any statutory requirements as to the
vesting of the Trust Fund in the Trustees are satisfied.
6 Validity of Proceedings
Where, for any reason, a Trustee is not properly appointed or is disqualified
from holding office, anything done by that Trustee (or by a meeting at which he
was present as a Trustee or committee member) before discovery of the
irregularity, shall be as valid as if that Trustee had been duly appointed or
had not been disqualified (as the case may be).
7 Appointment of Secretary and Others
The Trustees may appoint a secretary and any other officers or employees that
the affairs of the Trust may require on such terms and conditions as they think
fit. The Trustees may also remove and replace any persons so appointed.
8 Do all Other Necessary or Desirable Things
The Trustees may, subject to clause 11 of the Trust Deed, do all other
lawful things that are necessary or desirable in their opinion for the carrying
out of the purposes of the Trust.
PART II - ADMINISTRATIVE PROVISIONS
9 Ordinary Meetings
The Trustees shall meet as often as they consider desirable for the efficient
and proper conduct of the affairs of the Trust, but in any event at least twice
in each Income Year.
10 Special Meetings
A special meeting may be called at any time by 1 or more Trustees.
11 Notice of Meetings
11.1 Written notice of every ordinary or special meeting, shall be either
hand-delivered, posted or sent by facsimile to each Trustee at least 5 Business
Days before the date of the meeting. The secretary or some other person acting
under the direction of the Trustees or, in the case of a special meeting, acting
under the direction of the Trustee(s) calling the meeting, shall give the notice
of the meeting. No notice shall be required for adjourned meetings except to
those Trustees who were not present when the meeting was adjourned.
11.2 Every notice of a meeting shall state the place, day and time of the
meeting, and in the case of a notice of a special meeting, shall also state the
subject-matter of the meeting.
11.3 The requirement for notice of a meeting may be waived if all of those
Trustees who are for the time being in New Zealand give their written consent to
such a waiver.
The chairperson of Trustees shall take the chair at all the meetings of the
Trustees and shall have a casting as well as a deliberative vote. If the
chairperson cannot be present, or is not present within 10 minutes of the time
appointed for any meeting, the Trustees present shall elect one of their number
to be chairperson of the meeting.
If a quorum is not present within 30 minutes after the time appointed for any
meeting the Trustee or Trustees present may adjourn the meeting. The chairperson
may adjourn any meeting on the adoption of a resolution for its adjournment.
The Trustees may appoint sub-committees, ad hoc committees or executive
committees as they may from time to time think expedient for carrying out the
purposes of the Trust. Any such committee may co-opt any other person, whether a
Trustee or not, to be a member of that committee. Subject to these rules and to
any directions that the Trustees might give, each committee may regulate its own
15.1 Except where these rules or the Trust Deed provide otherwise, a
resolution is validly made when it is passed by a simple majority of those
present and voting at a duly convened and conducted meeting of the Trustees or
of a committee (as the case may be).
15.2 The Trustees may vary or cancel any resolution at an ordinary or special
15.3 A written resolution signed by all the Trustees or by all the members of
a committee shall be as effective for all purposes as a resolution passed at a
properly convened and conducted meeting of the Trustees or of that committee (as
the case may be). Such a resolution may comprise several duplicated documents,
each signed by one or more of the Trustees or members of the committee (as the
case may be).
16.1 The Trustees shall keep a proper record in a minute book of all
decisions taken and business transacted at every meeting of the Trustees.
16.2 Any minute of the proceedings at a meeting which is purported to be
signed by the chairperson of that meeting or by the chairperson of the next
succeeding meeting shall be evidence of those proceedings.
16.3 Where minutes of the proceedings at a meeting of the Trustees have been
made in accordance with the provisions of this rule then, until the contrary is
proved, the meeting shall be deemed to have been properly convened and its
proceedings to have been properly conducted.