Role of Trustees
There are three different types of trustees appointed for trusts established by the Māori Land Court. Each type of trustee has distinct and different roles.
Before making the appointment of any one of these three trustees, the Court must have regard to the ability, experience, and knowledge of the individual or body proposed to be appointed and must satisfy themselves that the appointment would be broadly acceptable to the beneficiaries of the trust.
Normally, the Court will require the owners to have met to discuss and nominate trustees for a trust or make changes to trustees.
Every trust has at least one responsible trustee.
Te Ture Whenua Māori Act 1993 notes responsible trustees' general responsibilities as:
- Carry out the terms of the trust
- The proper administration and management of the business of the trust
- The preservation of the assets of the trust
- The collection and distribution of the income of the trust
Responsible trustees also have trustee duties which have been recognised by law. A summary of these duties can be found on the Māori Land Court website.
A responsible trustee is also entitled to receive remuneration for services provided to the trust if permitted by the terms of trust or otherwise by law.
The Māori Trustee is empowered by the Māori Trustee Act 1953 and the Māori Trustee Regulations 2009 to charge for its services.
Responsible trustees are entitled to be indemnified from the trust for costs and liabilities personally incurred in the course of carrying out their role.
A trust established by the Māori Land Court is not required to have advisory trustees. However in practice many do.
Advisory trustees of the trust provide advice to the responsible trustees on matters relating to the trust and whenua. They do not have the legal responsibilities or liabilities of a responsible trustee and do not have governance and management responsibility or decision-making power.
There is no requirement for advisory trustees to provide advice or for the responsible trustee to actively obtain advice from advisory trustees unless the trust order requires this. However, in practice advisory trustees are generally consulted for advice on important issues affecting the whenua and the trust.
Advisory trustees are usually owners, but they may be non-owners nominated with particular skills and expertise to help provide advice in relation to the trust or whenua. The Māori Trustee does not accept appointment as advisory trustee.
Advisory trustees cannot receive a fee for carrying out their advisory trustee role unless approved in the trust order.
How can you become an advisory trustee?
Becoming an advisory trustee for your trust is a great way to learn about what it takes to become a responsible trustee in the future.
If you'd like to get more involved in your trust and whenua, you can seek nomination to become an advisory trustee at an owner hui.
If your whenua is administered by us, you can also kōrero with the Mātanga Tuarā Kawea (Trust Specialist) for your whenua to find out what's involved in being an advisory trustee or speak to other advisory trustees of your trust.
There is no requirement for a trust established by the Māori Land Court to have a custodian trustee.
Normally responsible trustees hold trust property in their name. However, where a custodian trustee has been appointed for a trust, the trust property is held in the name of the custodian trustee.
Te Ture Whenua Māori Trustee Act 1993 sets out a very limited role for a custodian trustee. Importantly, the custodian trustee has no governance role or responsibilities for the trust.
The management of the trust property and the exercise of all powers and discretions exercisable by the trustees under the trust remain with the responsible trustees. The custodian trustee is not liable for any act or default on the part of any of the responsible trustees.
Te Ture Whenua Māori Act 1993 states that the sole function of the custodian trustee is to get in and hold the trust property, invest its funds, and dispose of its assets, as the responsible trustee in writing direct, for which the purpose the custodian trustee shall execute all such documents and perform all such acts as the responsible trustees in writing direct.
However, the custodian trustee is not required to follow a direction if it considers that it:
- Conflicts with the terms of the trust, or
- Is contrary to law, or
- Exposes the custodian trustee to any liability, or
- Is otherwise objectionable
If the Māori Trustee has been appointed as custodian trustee and the responsible trustees would like the Māori Trustee to provide additional services to the trust, these would need to be agreed and set out in an agency services agreement, which is commonly referred to as a Service Level Agreement (SLA).
A custodian trustee is generally entitled to receive remuneration for services to the trust. The Māori Trustee is empowered by the Māori Trustee Act 1953 and the Māori Trustee Regulations 2009 to charge for its services.
Responsible trustees and owners who no longer want a custodian trustee for their trust can apply to the Māori Land Court for termination of the custodian trusteeship.