From: Sonny Tau
Date: Mon, 26 Mar 2018, 19:52
Subject: ORT Moving Forward.
To: Sonny Tau, Te Tuhi Robust, Taoko Wihongi, Rachel Witana, Colleen Bermingham-Brown, Heidi Tau Cc: John Parmenter, PJ Jones
Tena Tatou katoa e nga Tarahiti
After the discussions at the ORT SGM on Saturday 24 March 2018, Te Tuhi Robust, Colleen Bermingham-Brown, Bruce Cutforth and I have had time to reflect on the decision we made to tender our resignations on the day. We have since had a korero and sought legal advice on what we could or could not do in this situation. One thing is for sure, our resignations are on the table if this issue of Trustee rogue behaviour is not addressed.
The advice that has come from our legal advisor is this:
First of all, I appreciate that you have all resigned on Saturday because your two fellow trustees were making your situation untenable.
Please note that until you are actually removed by order of the Maori Land Court, you do continue to be Trustees, with all the responsibilities and rights that the positions entail.
This means, among other things, that you continue for the present to be responsible to see that the finances and operations of the trust are run properly.
I am very disappointed to hear that apparently Taoko has sought benefit for one marae from a side payment from Top Energy; this is a blatant breach of trust, and in my opinion also a criminal activity under the Secret Commissions Act 1910.
The majority Trustees who are acting properly in their good conscience in the interests of all beneficiaries and according to their respective professional judgements should not allow themselves to be effectively railroaded like this.
Section 240 of TTWMA provides the jurisdiction of the Court:
Removal of trustee
The court may at any time, in respect of any trustee of a trust to which this Part applies, make an order for the removal of the trustee, if it is satisfied—
(a) that the trustee has failed to carry out the duties of a trustee satisfactorily; or
(b) because of lack of competence or prolonged absence, the trustee is or will be incapable of carrying out those duties satisfactorily.
It is the failure – and threatened continued failure – to carry out the duties satisfactorily that is the problem here. We could go into the lack of competence issue, even though we are so soon after appointment of Rachel and reappointment of Taoko.
On the matter of legal representation:
(a) I am acting as lawyer to the Trust Board.
(b) In event of dissension, and given the trust order and TTWMA provisions allowing majority rule, I am required to act as the majority instruct.
Regent Law will have to consider our position as legal advisers to the Trustees; we have no serious concerns as long as you four continue to be formally appointed, however. But replacement Trustees may not be persons who are inclined to take our – or any – legal advice, and that would be untenable for us.
We also fear destruction of all the good work you have put in over the years, and that is very sad.
I am copying John Parmenter in on this email, so he can be clear as to continuing financial management and business oversight.
Having taken that advice, we have resolved to stay on as responsible Trustees until such time as we are removed by the Court. It was frightening hearing a lot of Beneficiaries on Saturday condoning illegal and immoral behaviour. That does not augur well for the type of trustees who may put their names forward as potential replacement trustees!
However, with our four resignations the Trust would effectively go into legal limbo because there is no longer a quorum of trustees that can legally make decisions or sign any documents.
For example, tomorrow morning a meeting is scheduled with TPK on the papakainga project. I don’t know in what capacity I would be sitting at the table and negotiating on behalf of the Trust if we were to literally walk away from the Trust today. This project now has an additional threat due to the governance situation as well as cost overruns. Any contracts that require approval and signing to build houses can’t happen because there would be no quorum to approve such decisions. I will be attending this meeting as a full Trustee of ORT.
Te Tumu Paeroa, JV partner in Rangihamama Dairy Limited Partnership – If Bruce and I were to resign as trustees of ORT, does that mean we will also resign as directors of RDF 1 Ltd, even though we don’t have to?
What will the Maori Trustee attitude be to this situation. As still the major shareholder, of any shareholders, they need to be appraised of this extremely serious situation. They may decide to exercise their vote, if necessary, for the benefit of the trust as a whole.
Despite all the legal advice the Trustees received, Taoko and Rachel still had the option under the Trust Deed (Clause 6) to appeal the decision to sign the easement to the Maori Land Court. This requires written application but none has been made. They had a process that could have aired their differences but have chosen to simply stonewall the whole legal, logical and reasonable process.
An urgent application will be required to the Maori Land Court seeking authority to act until such time as a quorum of trustees are around the table. That is why we are not immediately acting on our intended resignations.
I have today been contacted by many shareholders who strongly feel that this situation is untenable and will bring a challenge directly to the Maori Land Court seeking Taoko and Rachel’s immediate removal from the Board. They have informed me that they will do this as, in their minds, that is the right thing that needs to happen.
They have informed me that in their view, these two Trustees are holding the trust, probably the majority of shareholders (once they are appraised of all of the facts which unfortunately on Saturday were drowned out in a cacophony of misinformation and emotional outpouring of misinformation), their non-shareholding whanau and the Far North community (50% of whom are Maori) to ransom. Ransom? Because this simple easement is for the benefit of the whole community which by the way owns Top Energy! And the meeting did not get the fact that the trust continues to control the land and anything that happens on it with the perfectly normal matter of access to check powerlines!
The potential fallout from this matter could include Lawyer resignation, Accountant resignation, staff resignations and God knows what else?
All of this because a minority is lording it over a majority. No organisation, Maori or non-Maori can ever operate under those circumstances. To allow this to happen is a disaster and potentially the undoing of several years work on a massive scale.
We don’t want this chaos and potential ruin of the Trust be our legacy.
I hope that explains how the Trust will move forward in the immediate short term.
Sonny Tau on behalf of Myself, Te Tuhi Robust, Colleen Bermingham-Brown and Bruce Cutforth.