Monthly Archives: June 2014

After the Kohanga Reo Scandal – Some Observations on Trust Law, Tikanga and Democracy

In the News, Maori Development, Te Kohanga ReoPutatara

Throughout the whole affair involving Te Kohanga Reo National Trust there have been a few things said about what TKRNT should and should not do that seemed to me to be a bit strange in relation to trust law for TKRNT is a very specific type of organisation; it is a trust governed by trust law.

A few examples. The collective of kohanga reo whanau from Mataatua and Tauranga-Moana held that the dismissal of Titoki Black as CEO of TKRNT was not done in accordance with tikanga and that was why they were aggrieved. Minister of Education Hekia Parata was reported in the NZ Herald saying the trust “was not democratic enough”. Hone Harawira was reported saying that the board should comprise two representatives, one male and one female, from each of the ten kohanga reo regions.

Each of those raises an issue in trust law, namely tikanga and trust law, democracy and trust law, and representation and trust law.

In this post I will look at trust law in some detail, at the tension between trust law and Tikanga Maori, and at the end examine the issue of Te Kohanga Reo National Trust, democracy and representation.

I’m not an expert in trust law but I have been a trustee and managed trusts for over four decades. In that time I have consulted with and been advised by several specialist trust lawyers and in the end bought and read the legal texts for myself. In my experience, with both Maori and non-Maori trusts, I have found that few trustees understand trust law and that many are ignorant of their legal powers (and the restrictions on those powers), their obligations, duties, responsibilities and liabilities. Given that there are thousands of trusts operating throughout Te Ao Maori the lack of knowledge of trust law is a major deficiency in the governance of the affairs of Maori.

I have often been dismayed by the appointment of trustees who had little or no understanding of their legal powers, obligations, duties, responsibilities and liabilities. And even more dismayed if and when they have shown no inclination whatsoever to acquaint themselves with trust law, or even to acknowledge that it exists.

And in some cases I have been appalled to witness the appointment of people wholly unsuited to the position of trustee. I have also known proven thieves to be appointed (even as treasurer) and when they have embezzled funds been exasperated that nothing was done about it.

The Attributes of a Trustee

In my opinion there are three important attributes of a trustee; namely integrity, competence and maturity. By maturity I do not mean age but experience and wisdom.

Integrity speaks for itself. Competence includes an understanding of trust law as well as understanding investment, financial governance and financial management among other things. In the case of TKRNT there is also a requirement for competence in Te Reo Maori because the Trust’s purpose is entirely about Te Reo. I have found that a modicum of wisdom is always important, the wisdom of maturity and experience. The appointment of trustees having regard for these attributes is a serious matter that should not be taken lightly yet too often trustees are appointed according to other criteria without any consideration of those three attributes.

In recent public discourse about Te Kohanga Reo National Trust there was much crticism of trustees being appointed for life and an assumption that elderly trustees might be too out of touch. Age however does not preclude the attributes of integrity, competence and maturity and should be no barrier to trusteeship provided that provision is made for smooth transitions of trusteeship in the event of the incapacity or demise of elderly trustees.

E hoa ma, as an elderly trustee myself I would think like that wouldn’t I.

There are estimated to be between 300,000 and 500,000 trusts in New Zealand and I would think that a surprisingly large number of those have trustees appointed for life.

Tikanga Equity – The Origins of Trust Law

Trust law is its own tikanga, a tikanga rooted in roughly 700 years of the development of an aspect of English law called Equity. Equity is that body of law developed by the English Court of Chancery before 1873 and it is a set of legal doctrines that reflect general notions of good conscience and fairness. A trust is one form of Equity in which the trustees have a legal interest in the trust and the beneficiaries have an equitable interest. That is that the trustees are the legal owners of the assets in trust but only insofar as those assets may only be used for the purposes of the trust and for the benefit of the “beneficiaries” and not for their own benefit.

Trusteeship over assets that benefit other people and not yourself requires a high level of integrity and over the centuries the law has developed doctrines or tikanga to codify that requirement.

I have read that this tikanga developed from the time of the Crusades when knights would leave their lands and families for years of crusading in the Holy Land from which they might never return. It developed to protect the lands and other property of the knights “in trust” for the benefit of their families or “beneficiaries” against the predation and dishonesty of some people who would take advantage of the absence or death of a crusader to acquire his lands for themselves. That is a much simplified explanation but it does convey the essence of trust law.

It is important to understand this simple concept and to understand that trust law is its own tikanga.

Common Law was developed in the English common law courts over many centuries. Equity was developed in the English Court of Chancery. They are two separate tikanga both part of the concept and codification of the law we all now live by in Aotearoa New Zealand.

Common law now forms the basis of much New Zealand statutory or parliament-made law but there is still a body of common law that has not been transformed into statutory law and common law is still relevant in the courts. Much of the tikanga of Equity has also been transformed into statutory law primarily in the Trustee Act 1956 and also in the case of Maori lands in Te Ture Whenua Maori Act 1993. However the tikanga of Equity still prevails and all statutory trust law is interpreted according to that tikanga and in consideration of case law. Case law is that law developed in the courts based on interpretation of Tikanga Equity. Case law sets precedents that influence future decisions in the courts.

Where the relevant statutory legislation is silent Tikanga Equity and case law prevail. The Rules of Equity are to be found in case law and in numerous authoritative legal texts which also explain that case law.

This may appear complicated and convoluted but an understanding of statutory trust law is not enough. To be competent a trustee must also understand Tikanga Equity. I will try to explain Tikanga Equity as simply as I can.

Powers of Trustees

The powers of trustees are established in Tikanga Equity and in statutory law. In Tikanga Equity “equitable relationships” are created. We must remember that equity is about good conscience and fairness. These equitable relationships include:

Fiduciary relationships;
Relationships of confidence; and
Relationships of influence.

A trust, established as a creature of Tikanga Equity is a fiduciary relationship subject to fiduciary rules and principles, or obligations. At the core of those obligations a trustee must:

Avoid personal profit or benefit;
Avoid conflict of interest; and
Avoid divided loyalties (the loyalty is to the trust and not to any external persons or organisations).

The avoidance of conflicts of interest is of particular relevance in Maori trusts and is a rule often breached. I think the main reason is that a conflict of interest in Tikanga Equity is generally not considered a conflict of interest in Tikanga Maori. In a later section I will discuss the relationship of Tikanga Maori to Tikanga Equity. A trustee must also:

Act in good faith;
Use his or her powers for their proper purpose; and
Exercise care (i.e. a duty of care). The duty of care requires a trustee to administer a trust in good faith, exercising its powers as a prudent person would with “reasonable care, skill and caution”. There is a whole body of law around this duty alone, including definitions and descriptions of a prudent person. In managing trusts I have sometimes needed to consult a trust lawyer to seek an expert opinion on whether a contemplated course of action would be prudent or not. It may seem a simple matter of judgement but it is not always so.

Other aspects of the law of fiduciary obligation under Tikanga Equity include:

Duty of loyalty;
Duty of impartiality;
Duty to act personally;
Duty to keep full and accurate accounts; and
Duty to preserve trust property.

Duties of Trustees

The first duty of a trustee is to be fully acquainted with the terms of the trust as specified in the trust instrument or instruments, such as deeds of trusts and constitutions. The trust instrument is paramount.

The second duty is to adhere totally to the trust’s terms regardless of any other considerations (including Tikanga Maori if Tikanga Maori is in conflict with Tikanga Equity). The trustee’s only duty and loyalty is to the trust and to the terms of the trust, and therefore to its beneficiaries.

In this sense the trustee represents only the trust, and not any other person or organisation even if the terms of the trust provide for the appointment of that trustee by an external person or organisation. A trustee acts alone in the service of the trust. A trustee is not a representative and a trust is not a democratic institution. It is a legal and equitable institution.

In relation to the beneficiaries trustees must:

Act in the beneficiaries’ best interests;
Maintain impartiality between beneficiaries;
Pay the correct beneficiaries (if they are to be paid under the terms of the trust).

The trustees themselves must:

Not profit from trusteeship;
Act gratuitously (i.e. without payment of sitting fees or other fees, wages or salaries unless payment is specifically authorised by the terms of the trust, but they may be paid actual and reasonable expenses such as for travel and accommodation);
Invest;
Not delegate their obligations, duties and responsibilities;
Be active in their trusteeship;
Act unanimously (unless the terms of the trust allow for voting and for majority decision making). Additionally a trustee, including a chairperson of a board of trustees, may not act alone for decisions may only be made by all trustees acting together unless the trustees have specifically authorised one of their number to act alone on a specific matter; and
Keep proper accounts and provide that information to those entitled to receive it.

Investment of trust assets is a huge and complex area of trust law. Every trustee of a trust that is required to invest assets must be or become knowlegable about investment. Similarly every trustee must be financially literate in order to perform his or her duties to a high standard. A lack of knowledge of trust law and a lack of financial literacy are the two major deficiencies in trusteeship that I have witnessed in my 40+ years of trusteeship.

These deficiencies often lead to breaches of trust.

Breach of Trust and the Removal of Trustees

Any trustee who breaches the terms of the trust, or the obligations of a trustee, or exceeds the powers of the trustee may be held in breach of trust by the courts and dismissed. A breach of trust is therefore any act which is in violation of the duties of a trustee or of the terms of a trust, or any act or omission on the part of a trustee which is inconsistent with the terms of the triust agreement or the law of trusts.

Such a breach need not be intentional or with malice, but can be due to negligence alone.

Additionally under Section 229 of the Crimes Act 1961 every one is guilty of a criminal breach of trust who, as a trustee of any trust, dishonestly and contrary to the terms of that trust, converts anything to any use not authorised by the trust. Anyone so doing is liable to imprisonment for a term not exceeding seven years.

I have seen instances of this in cases where trustees have given favourable consideration when disposing of some assets of a trust by selling them at a discount to themselves or to their own whanau or to another organisation in which they are involved. The duty of the trustee is to sell at the most favourable price and to do otherwise is an act of criminality.

Trusteeship is therefore a position requiring high levels of integrity and competence, and the wisdom and maturity to fulfil those requirements.

The law provides for the removal of trustees through breach of trust. Trustees may also be removed if they become physically or mentally incapacitated, or if a trustee is convicted of dishonest or criminal behaviour. That last reason was perhaps part of the intent of the leaking of financial information to Maori TV.

The law does not provide for the removal of trustees by government ministers, as a few people have advocated in the case of TKRNT.

The Burden of Trusteeship

Trusteeship is not to be taken lightly for it is an onerous responsibility and trustees are individually liable for any breach of trust or imprudent decision making by the trust.

It requires an even higher standard of prudence than one might exercise over one’s own affairs and trustees are held personally accountable to the higher standard. Most trustees do not understand that personal liability.

As I have come to understand trusteeship in greater depth over the years I have become more wary of accepting trusteeship. I now consider the integrity, competence and maturity of those who will be my fellow trustees and also those who may be employed by the trust as managers, for in accepting appointment one is to some extent placing one’s reputation in the hands and integrity of others.

Too often trustees are appointed and trusteeships acccepted as just another committee membership without any understanding of the obligations, duties, responsibilities and liabilities of trusteeship. In the present discussion and consultation over the structure of TKRNT I am sure that few who aspire to be trustees really understand all of that.

Tikanga Maori vs Tikanga Equity

I mentioned earlier that conflicts of interest often arise because of differences between the two tikanga. In my experience the tension between Tikanga Maori and Tikanga Eqjuity has been the cause of much misunderstanding about the powers, obligations, duties, responsibilities and liabilities of trustees.

In Maori trusts it is of course appropriate that trustees conduct themselves and their business in accordance with Tikanga Maori. However, and it is a big and often painful however, without exception and unless provided for in the trust’s terms, Tikanga Equity has precedence over Tikanga Maori in all mattters of trusteeship.

A trust is a creation in Tikanga Equity, not a creation in Tikanga Maori. And although trusteeship is defined as kaitiakitanga in its translation from one to the other the two are not always the same thing and in the case of legal and equitable trust they are not the same thing.

Koha is a case in point and an issue of common misunderstanding. Trustees will often feel obliged to give koha from the funds of the trust but unless the trust’s terms specifically authorise koha in specific instances, or in the promotion of the purpose of a purpose trust (see later), it is not lawful. From my personal experience I have known of trustees who give koha from trust funds at tangihanga of persons not directly involved in the trust, in the mistaken belief that they are representing the trust. I have always assumed that I represent only myself in those circumstances and have given koha from my own pocket. In Tikanga Equity it is the safest option.

In Tikanga Maori matters are often but not always decided in hui and by consensus of those with an interest in the matter. Many people assume that consensus decision making by those with an interest applies to trusts as well. It does not for trustees are required to act personally and only in the interests of the trust as stated in the trust’s terms, and not in anyone else’s interests. And trustees have the sole power to make those decisions.

This is a matter that causes much confused thinking in relation to Te Kohanga Reo National Trust for at least half of Te Ao Maori has an interest in the Kohanga Reo Movement. But the lead organisation in the Movement is a trust in Tikanga Equity.

That is the cross we bear if we are to establish ourselves in legal entities in order to receive public funding or to operate in the regulatory environment established by New Zealand law. The legal entities whether trusts, incorporated societies or limited liability companies are all established, defined and governed in the other tikanga. Even Maori Land Incorporations are established, defined and governed in the other tikanga.

Types of Trust

There are various types of trust such as family trusts and pension trusts, and the putea trusts, whanau trusts, ahuwhenua trusts, whenua topu trusts and kaitiaki trusts that are established through the Maori Land Court. Trusts that do not have specific or named beneficiaries are called purpose trusts and are often charitable trusts with either narrow or broadly defined purposes.

Purpose of Te Kohanga Reo National Triust

Te Kohanga Reo National Trust is a charitable trust. It does not have specific or named beneficiaries but does have a very clear purpose. It was incorporated in 1983 under the Charitable Trusts Act 1957. The Trust’s Deed sets out its objectives which are to promote, support and encourage:

The use and retention of Te Reo.
The Kaupapa of Te Kōhanga Reo, and in particular the goal of total immersion in Te Reo Māori.
The establishment and maintenance within New Zealand of Te Kōhanga Reo.
The provision of financial, advisory, and administrative assistance and support for the whānau of Te Kōhanga Reo.

Despite what many people may think about the role of TKRNT, or what the role should be, that is its purpose. And as readers will know by now that purpose as stated in the trust deed is paramount.

As laws change and as society and circumstances change there may be a need to update trust deeds. The method of changing a deed may be specified in the deed and in some cases it may require application to the High Court (or Maori Land Court), and even the assent of the Attorney General. Unless ordered by the court amendments to trust deeds are the responsibilty of its trustees.

Structure of the Trust Board

The number of trustees and their method and term of appointment are matters specified in the trust deed. A change in structure will require amendments to the deed.

At the national hui held at Turangawaewae in April four proposals for the structure of the Trust were put forward and the working party is presently seeking feedback about those proposals. Before the national hui Hone Harawira called for the resignation and replacement of the TKRNT trustees, to be replaced by a younger generation, and on 13 June he was reported calling for a board of 20 trustees, one female and one male from each of the ten kohanga reo regions.

For a start I think 20 trustees would be way over the top and would turn the trust into more of a parliamentary and political caucus than a trust established in Equity.

I said caucus not circus!

Then I think that the criteria of integrity, competence and maturity should be paramount regardless of region and the very best should be sought from whatever region.

At the moment according to the TKRNT website there are nine trustees and I personally think that is too many and that seven who meet the criteria of integrity, competence and maturity would be about right. Decisions such as this should be made in the best interests of the trust and the workings of the trust, not in the interests of representation which is not a concept in trust law.

However in deference to calls for greater input from kohanga whanau to the decision making of the trustees I would employ the mechanism of advisory trustees. Advisory trustees are provided for in the Trustee Act 1956 and are widely used by the Maori Trustee in the management of Maori lands. Advisory Trustees are not decision makers but are present and can participate in deliberations. The decision making power rests with the Responsible Trustees.

Ten advisory trustees could be appointed, one from each region, against the criteria of integrity, competence and maturity. They would also serve as a pool of potential Responsible Trustees where they would become acquainted with the Trust and be evaluated for suitability for appointment as Responsible Trustees in their turn.

That may be one of the proposals put to the national hui. I wasn’t there.

Whatever course the Trust decides upon I would employ the very best trust lawyer I could find, whether Maori or Pakeha. I would think the best place to look would be in the big legal partnerships. This is a tricky time for the Trust caught between disaffected and crusading whanau, the media, opinionated commentators, and the Minister and Ministry of Education. I have found that the best trust lawyers are worth their weight in gold in finding ways through such demanding situations.

And in the end trust law is all there is in defining the governance of trusts in Tikanga Equity. We need to abide by it and we need to be good at it.

Democracy and Te Kohanga Reo National Trust

I have already observed that there is nothing democratic about trust law. So moving on from trust law let’s look at democracy.

The Kohanga Reo Movement is not a democracy and never has been. The Kohanga Reo Movement is a kaupapa.

Within that kaupapa each kohanga is locally focused on its own mokopuna and is managed by the whanau within the funding provided by Ministry of Education through Te Kohanga Reo National Trust. With that funding comes the obligations and regulations that accompany all government funding. As providers for pre-school aged children each kohanga is also required to abide by a strict regulatory framework designed to ensure the care, health and safety of mokopuna.

There is not much room for deviation and nothing democratic about the funding, care, health and safety regime imposed by government. And just like the government the Trust imposes its own regulatory regime.

What is this talk about democracy and about representation?

If the Minister for Education and others insist on the Movement becoming more democratic the question needs to be asked whether the network of early childhood centres answering directly to the Ministry will be made more democratic as well. As the primary provider to that network will the Ministry itself become a more democratic organisation? I think not.

And if the Kohanga Reo Movement were to come under the direct jurisdiction of the Ministry would the Ministry make it more democratic? I think not. I think it would be less democratic.

So what is this talk about democracy and about representation?

If you look at schools and early childhood centres in the Ministry network they are all self governing and managing within the legislation and regulatory framework and within their allocated budgets but they have no say whatsoever in anything that happens beyond their own boundary fence. If you look at kohanga reo they are all self governing and managing within the legislation and regulatory framework and within their allocated budgets and they don’t have much say in what happens beyond their boundary fence.

In both cases what is important to them happens almost entirely inside the boundary fence and not in Wellington. The difference between them is that one is a mandatory government curriculum and the other is a kaupapa not designed, developed and dictated by government. The Kohanga Reo Movement is a kaupapa, and one that the Trust has fiercely defended and protected for 32 years.

So now some in the Movement and some outside the Movement think it should now be about democracy and representation. In whose interest would that be? In the interest of the kaupapa? In the interest of Te Reo? In the interests of the mokopuna? In the interests of the whanau? Whose interests?

I’m looking for the rationale here. Is this talk of democracy and representation about the kaupapa or is it about something else?

I think it would be a good thing for the Movement to move into a new phase in its evolution and to make provision for more formal input into Trust decision making and more transparency of that decision making. But we don’t need to tear the Trust apart to achieve that. Nor do we need to open trusteeship up to elections or something similar. There are other ways to achieve that.

In my time with the Movement I remember Dame Te Atairangikaahu and Dame Iritana being constantly on the move throughout the Movement meeting, talking and listening to the whanau, letting them know what was happening and listening to their concerns, coming back to Wellington and lighting fires under the staff to fix things that needed fixing. Well, it was just Iritana who lit the fires. And it was Iritana who did most of the talking and the Lady who did most of the listening. It was a great double act. That’s how it was achieved then. I was with them occasionally.

How times have changed.

The author is not an expert in trust law but has picked up a bit of knowledge here and there. This article is intended as a guide to trust law as it affects Te Kohanga Reo National Trust (and all trusts) as well as further commentary on the continuing debate about the Trust.

Postscript

I notice that Dame Iritana Tawhiwhirangi and Maori TV CEO Paora Maxwell have just (18 June) “Friended” each other on Facebook. Now isn’t THAT interesting.

Postscript 20th June 2014

Maori TVs Native Affairs team has won two international awards from the World Indigenous Television Broadcasters Network for their investigative journalism, one of them for the programme “Feathering the Nest” about Te Kohanga Reo National Trust and Te Pataka Ohanga Ltd. See “Anatomy of a Scandal” below for the alternative story to “Feathering the Nest”.

The Origins of Corporate Iwi
TKRNT and Credit Card Usage at Te Pataka Ohanga Ltd
Anatomy of a Scandal- Te Kohanga Reo National Trust

Minister Parata Interview

Native Affairs

Anatomy of a Scandal – Te Kohanga Reo National Trust

In the News, Te Kohanga ReoPutatara

In October 2013 I wrote commentary on an unfolding story about alleged financial mismanagement and corruption in Te Kohanga Reo National Trust (TKRNT) and its business subsidiary Te Pataka Ohanga Ltd (TPO Ltd). The accusers had attempted to link alleged irregularities in credit card use in TPO Ltd to alleged impropriety and misuse of public funds by TKRNT itself. I proposed that we wait for due process to find out the truth of the matter sensationally presented by the Native Affairs programme of the Maori Television Service. Subsequently two investigations were commissioned.

In March this year Minister of Education Hekia Parata released an Ernst & Young report into the financial governance and management of public funds by TKRNT. The report exonerated the Trust from allegations of financial impropriety. It did not convince those who had mounted the initial crusade against TKRNT or those who joined the crusade after the story broke in the media.

The report did not examine the activities of its business subsidiary TPO LTD because as Hekia rightly pointed out she did not have the executive power or responsibility to inquire into a privately owned entity. Nevertheless as a result of an outcry amongst those who were calling for drastic action against both entities and accusations of a cover up Hekia then asked the Serious Fraud Office (SFO) to investigate TPO Ltd. This week the Serious Fraud Office announced that it found no evidence of criminality in the activities of TPO Ltd.

The Department of Internal Affairs simultaneously announced that there were some irregularities in TPO Ltd’s compliance with some requirements of its charitable status and that TPO Ltd would be required to attend to those matters to prevent having its charitable status removed. That was seen by some as some vindication of their crusade against TKRNT and TPO Ltd. However based on my own involvement in charitable trusts for over 45 years I would say that is a minor matter easily remedied. A great many other charitable trusts and other charitable entities would also be in breach of the regulations one way or another. In my time as a voluntary trustee I have come across few trustees in community trusts, whether Maori or Pakeha, who actually understand trust law and few trusts that are fully compliant. They must first come to the attention of Internal Affairs before they are investigated and most but not all non-compliance is quite minor.

The reports on TKRNT and TPO Ltd, and the quite mild admonishment by Internal Affairs have still not of course quelled the unrest.

While all of that investigation was in progress TKRNT initiated and held a national hui at Ngaruawahia in April to chart the future of the Trust and the Movement. It came to a number of resolutions and set up a working group to report back later in the year. It was an exercise in damage limitation and damage control as well as, I’m sure, genuine intent to address many of the issues raised by disaffected whanau about the governance and direction of TKRNT and the TKR Movement, and to address concerns raised by the Minister.

In my previous article I wrote in part about the back story which was to my mind the real story behind the story, and still is. The media has in the main ignored the real story in favour of the sensational allegations and expose on Maori TV. In Maori terms the machinations, collusion and intrigue that constitutes the back story was, and ought to be still, by far the more interesting aspect of the whole saga.

The subsequent actions by TKR National Trust and Minister of Education Hekia Parata are also part of the back story and represent a master class in damage limitation and damage control through which the crusaders against the Trust were outflanked and neutralised, but not before they had inflicted considerable damage, at least in public perception. Having said that I’m sure that the crusade has not yet run out of steam and that there will continue to be an ongoing campaign against TKRNT.

This back story is about how a few disaffected kohanga whanau supported by some TKRNT staff and a few in the media pursued a narrow political objective in a way that almost brought down the whole of the autonomous kohanga reo movement and handed it over in pieces to Ministry of Education.

The Crusade

From time to time there have been disaffected whanau in the TKR Movement for as long as the movement has been in existence although in the beginning in 1982 the cohesion was much greater than it is at present. Much of the disaffection has been about the centralisation of power and authority in TKRNT, its sometimes autocratic decision making, and a belief that it wrongly consumes resources meant for kohanga reo. Some of it is fuelled by those who are involved with corporate iwi who want those neo-tribal entities to take over the functions of TKRNT. As the TKR Movement was founded first and foremost as a whanau empowerment and development programme (at the same time as most other development policy focused on “iwi”) that has been fiercely resisted by TKRNT (see The Origins of Corporate Iwi).

I suppose disaffection is to be expected as part of the evolution of any movement, and a natural outcome of the aging of the early leaders. After all there have been about three generations of mokopuna and their whanau involved in the movement and as always in the affairs of the generations the oldest generation is always seen to be past its use-by date and needing to be replaced. In most Maori organisations established during the “Maori Renaissance” there have been gradual retirements of the founding generation; not always willingly retired.

The present outbreak of disaffection started with the dismissal of the then CEO of TKRNT Titoki Black for reasons that are now in the public domain. There may have been underlying rumblings before that but her dismissal sparked a public outcry from her whanau and supporters in Mataatua and Tauranga-Moana. That went on for some months and developed into an orchestrated private and public campaign to have Titoki restored as CEO and to have the trustees of TKRNT removed. One Maori news organisation with links to the Mataatua Tauranga-Moana Collective openly sided with the campaign, or seemed to do so.

There was no legal way that could have the trustees removed except by proving to the High Court that they were in breach of trust, and absolutely no way to force them to reinstate Titoki except through the Employment Court. Neither was a viable course of action. Whether they knew it or not the only alternative was to have Government (i.e. Hekia Parata) defund TKRNT and provide TKR funding through another channel. Probably the only alternative channel acceptable to the government would be Ministry of Education, through its existing early childhood education programme, and that would defeat the original kaupapa of the 32 year old movement that has been fiercely defended by TKRNT especially by Dame Iritana Tawhiwhirangi for the whole of those 32 years. I’m sure the anti-TKRNT crusaders didn’t think that far forward into political reality; a takeover by the Ministry.

I’m sure the Trust itself is fully aware of that possibility and has been fighting on two fronts; firstly to stave off the allegations of corruption and misuse of public funding made through Native Affairs and secondly to prevent the TKR Movement falling into the lap of Ministry of Education.

Would government hand the TKR Movement over to corporate iwi instead? I very much doubt it because the regulatory structure governing kohanga reo is much the same as that governing early childhood providers. It provides for the care, health and safety of mokopuna. It is a very very strict regulatory regime and is tightly monitored. It would be almost impossible to enforce if a plethora of corporate iwi became the providers. At least with TKRNT it has just the one provider to oversee.

The crusade against TKRNT then ramped up with the leaking of financial information about credit card spending at TPO Ltd to Native Affairs. There ensued a legal battle between Maori TV and TKRNT, eventually won by Maori TV and the allegations were aired by Native Affairs and reported in most media outlets. The collective at Mataatua Tauranga-Moana were clearly involved in leaking information to Native Affairs as they were later quoted by Maori TV:

“However the collective of Kōhanga Reo from Mataatua Tauranga-Moana stand by their decision to go public and say that if Māori protocol was followed in the case of dismissing its former CEO Titoki Black, the issues thereafter would never have been made public”.

That was of course long before both TKRNT and TPO Ltd were cleared by two investigations.

The disaffected collective of Kohanga Reo has achieved neither of its aims but has seriously damaged the public perception of TKRNT, for the time being at least. Whether or not they have caused the TKR Movement to be handed over to Ministry of Education remains to be seen but I doubt that will be the case. They will have provided some impetus for TKRNT to re-evaluate itself and its continuing relevance to the kaupapa and to the movement and that is perhaps the one positive to emerge from the whole rather taudry public affair in which a collective of kohanga reo attempted to subvert the governance of TKRNT because they were aggrieved by a legitimate staffing decision.

The expose alleging financial impropriety was a means to a political end and not the main story at all.

Was there some irregularity in credit card use at TPO Ltd? Probably but not serious enough to warrant prosecution by the SFO, and certainly not indicative of financial impropriety in TKRNT itself.

The second part of the back story concerns the involvement of the Native Affairs team at Maori Television.

I followed the unfolding of the expose by watching Native Affairs broadcasts, by following most of the reportage and commentary in other media, but most importantly by following it in the Twitterverse. There were hundreds of tweets about the issue over a period of many weeks but the most interesting and revealing were those from three Twitter accounts associated with Native Affairs itself; one from the Native Affairs account and two from the personal accounts of two of the Native Affairs team. There was some commentary from the Maori TV corporate account. I also followed commentary in Facebook.

Whilst the public broadcasting face of Native Affairs was presented as that of an objective investigative team the fairly intense activity in Twitter revealed a subjective and personal face; the two faces of Native Affairs.

It became obvious in the Twitterverse that the Native Affairs team had taken personally the legitimate legal attempt by TKRNT to shut down the broadcast and it seemed that Native Affairs then joined the crusade against TKRNT as participants rather than objective observers. That personal involvement became more and more obvious after the allegations were broadcast and as TKRNT attempted to minimise the damage through the media. In the aftermath there was some public antagonism towards the Native Affairs team and they complained that they had wrongly become the story. That was disingenous because the twittering and tweeting couple on the Native Affairs team had already made themselves part of the story.

The tone of the Native Affairs response on Twitter was self righteous and triumphalist. It clearly showed that the Native Affairs team had gone beyond the bounds of objective investigative journalism and had joined the crusade. The Native Affairs team was conducting its own crusade through Twitter. It was a display of immaturity and a lack of professionalism. It wasn’t very smart either.

I have to admit that Te Putatara cannot abide righteousness and triumphalism whether in priest, politician or pundit.

The other thing that Native Affairs did not do was to tell the complete story in its total context, although it was well aware of the context. It withheld important information from its viewers in order to present just a single aspect of the dispute. That was unprofessional. Julian Wilcox and Jim Mather did the right thing in publicly and loyally defending their Native Affairs staff. In private one would hope they delivered a swift kick to the collective arse but perhaps they were not watching the antics on Twitter.

TKRNT itself could have taken a different course and participated in the Native Affairs report to present its own perspective although there was always the risk that its perspective would end up on the editing room floor.

The third part of the back story concerns the damage limitation and damage control measures taken by TKRNT and by Minister Hekia Parata.

The actions taken to limit and control the damage were bog standard and completely predictable. Although I didn’t write it at the time it happened exactly as I thought it would. Referring these matters to independent investigators is exactly the right thing to do especially if you know the outcome in advance and that the allegations will not be proven. If you know you’re guilty then you need to do something else. It also takes time and time will often take the heat out of any dispute or scandal.

The finding of the Ernst & Young report also gave Hekia Parata an opportuntiy to warn TKRNT to smarten its act lest it be defunded, probably intending that TKRNT smarten its act and keep its funding, although I couldn’t possibly claim to know the mind of the Honourable Minister of Education from Ngati Porou.

TKRNT itself embarked upon the obvious course by calling a national hui. It has been calling national hui to chart the progress of the movement (and dampen disaffection) for all the years of its existence. This one was perhaps the most crucial but it was just another one in a long succession. The hui in the domain of TKR patron Kingi Tuheitia was in exactly the right location to ensure a minimum of disruption and dispute and to rally support for the Trust. Standard Maori political stuff.

The appointment of a working party (Sir Toby Curtis, Ruka Boughton, Dr Tania Simpson, Dr Kathie Irwin, Dr Kathie Dewes, Dr Rawinia Higgins and Ropata Hepi) to progress the resolutions of the hui brought undisputed mana and expertise to the kaupapa and added valuable time to the process, especially to allow time for the SFO investigation to be completed.

I would confidently predict that after the report of the working group TKRNT will continue its role with perhaps some structural and procedural modification.

The amusing sideline to the hui was that Native Affairs was excluded, complained about it long and loud, and received support from other media. They should not have been at all surprised as they had openly joined the crusade against TKRNT and were no longer objective observers and reporters.

And although TKRNT through its media advisor Derek Fox has called for apologies perhaps it will be enough for two talented but momentarily misguided young women to call on Dame Iritana. I’m sure she will be her usual forgiving self. She’s forgiven Te Putatara often enough.

The whanau from Mataatua and Tauranga-Moana will have to be satisfied with the outcome of the working party and subsequent decisions by the Minister. Here is their press release issued after the national hui at Turangawaewae.

After the Kohanga Reo Scandal – Some Observations on Trust Law, Tikanga and Democracy

Postscript

Draining the Swamp – Some Fundamentals for Maori Policy Makers

Maori Development, Maori Policy#MaoriPutatara

In previous posts I have been looking at Maori policy and have come to a few conclusions about past and present policy, primarily;

Channelling policy initiatives through neo-tribal organisations or corporate iwi has not and will not address the development or advancement needs of most Maori;
Such policy most benefits the Maori elites rather than Maori most in need;
A focus on the Treaty of Waitangi and on cultural and language retention and revitalisation, whilst a beneficial policy for Maori, has not and will not address the real social and economic advancement needs of MOST Maori.

I am yet to be persuaded about the present Whanau Ora initiative. It seems to me to be an “ambulance at the bottom of the cliff” policy focused on helping whanau to cope with life at the bottom of the socio-economic heap, perhaps giving false hope that they might be able to climb out of where they are, rather than dealing to the complete environment and to the societal and economic reasons why they are trapped at the bottom of the heap.

If that is so what then should be the focus of Maori policy.

It should focus on the social and economic advancement of all Maori wherever they are and where they are, in relatively large numbers at the bottom of the socio-economic heap, and mainly in the cities rather in than the rural homelands which are the domain of most corporate iwi,
It should prioritise the needs of those Maori MOST IN NEED and should DIRECTLY address those needs;
It should address causes of disadvantage rather than symptoms or effects.

Statistics that form the narrative of Maori disadvantage have been used as the basis of Maori policy for decades beginning in my living memory in 1961 with the Hunn Report on the Department of Maori Affairs. Perhaps the main consequence of that report was a rapid rise in migration of Maori to the cities. In the last thirty years that same but evolving narrative has underpinned a bewildering succession of reports and policies. Te Putatara has a somewhat different perspective and statistical narrative (see here). The telling and retelling of the statistical narrative by the policy makers has rarely resulted in policies that meet the above criteria.

There are perhaps three reasons why that is so:

Firstly, once the narrative has been retold in the form of yet another report policy purportedly designed to address the identified needs has actually been designed to conform to prevailing beliefs and ideology rather than real need. The belief in the relevance of iwi, based on the false post-colonial whanau-hapu-iwi construct, has dominated since the 1980s and has resulted in the formation of corporate iwi and in their capture of resources, and the present dominance of “Iwi Leaders” in matters of Maori policy. A belief in a neoliberal “trickle down” theory of economic policy has resulted in the present focus on Maori business grandiosely described as the Maori economy, and despite the telling and retelling of the success of this mythical “Maori economy” little movement can be seen at the bottom of the heap.

The retention and revitalisation of language and culture was a powerful pou whakapono that brought with it many policies notably in education and broadcasting. Those policies were believed by many of their ardent proponents to be the key that would unlock the social and economic barriers to Maori social and economic advancement. It has not been so. Having said that I do not quibble with the desirability of cultural and language retention. I do however question it as a policy designed to address the social and economic advancement of those most in need. An intellectual justification can be found in the argument that identity and self-esteem should be enhanced through cultural and language revival and that may lead to greater success in climbing out of socio-economic disparity. But the statistical record says that that is no more than theory.

The Treaty of Waitangi was another powerful pou whakapono used to drive the so-called Maori Renaissance and to justify much policy but of and in itself has delivered little to those most in need and much to the elites who control Maori resources.

A great deal of Maori policy has therefore delivered the ideology and has not dealt to needs.

Secondly, using poverty as an example, policy seems not to take into account the phenomenon of reproductive replacement. For instance every person or whanau that is moved out of poverty into the middle class, whether by their own efforts or with help from community or state, is replaced by those who are born into poverty (or other disparity). Policy designed to move people out of poverty must aim to do so faster than the birth or replacement rate. To do otherwise is to accept that no matter how many are rescued from poverty the number of poor will nevertheless continue to increase.

The lesson is that framing policies aimed at individuals or their whanau rather than at the whole problem of poverty will be self-defeating except in the case of fortunate individuals or individual whanau.

Thirdly, policies that would address the real needs of those most in need are too hard, beyond the purview of Maori policy makers, and beyond their ability to deliver policy that would work. And that is because those policies that would work would focus almost entirely on broad national social and economic ideology and policy rather than just on Maori. National social and economic policy is itself driven by prevailing ideologies, at the moment a political and somewhat corrupted version of neoliberal economics. Ministers of Maori Affairs or Maori Development do not have their hands on the social and economic levers of power and are therefore powerless to make a real difference, even if they knew how.

What they and their policy advisors then do is to focus on what they can do within Vote Maori and that is invariably guided by their own ideology and by the prevailing ideology of the Maori elites and so the circle is complete and we are back where we started.

The levers of power that if pulled in the right direction would deliver real social and economic advancement to those Maori most in need are the economic levers held closely by the small group of cabinet ministers in the inner sanctum, whatever their political hue. For at least three decades social policy that might address the real needs of most Maori has been subservient to questionable economic policy. Only when economic policy is designed to serve society and social policy will those needs be addressed, not just for Maori but for all those in need. At the moment policy first addresses the interests of the elites, whether Maori or Pakeha.

The landscape over which this policy saga plays out stretches from the low lying swamp in which the least well off survive, to the distant mountain and the clear air where the rich have their palatial homes. In between the two are the lowland plains where most New Zealanders live and the foothills of increasing height that are the domain of the better off. In the highest of these foothills is the castle called Parliament which houses the levers of power over this whole landscape. It also houses those who have their hands on those levers and are the lords of the landscape but who are by choice (i.e. ideology) also the servants of the mountain dwellers. A few of them are themselves mountain dwellers.

The swamp is where disease is most prevalent; diseases of both body and mind and the diseases of society including chronic poverty and unemployment. There are alligators in the swamp in the form of drugs and alcohol, crime and violence. The alligators not only devour many of the swamp dwellers, they also serve to corral them inside the swamp. On the banks of the swamp are the tents of the well-meaning including the Whanau Ora tent, It is from these tents that intrepid community and social workers, health workers and educators, both state and volunteer, venture into the swamp to work with the swamp dwellers to try to alleviate the condition of their lives and hopefully to bring some individuals and whanau out of the swamp onto the plains.

The statistical evidence clearly indicates that they are fighting a losing battle.

An engineer would approach the challenge of the swamp in an entirely different way. The engineer would drain the swamp and convert it into fertile ground, an extension of the plains.

The lords of the landscape and their mountain dwelling puppet-masters have absolutely no interest in diverting resources to the engineers to apply their expertise to the challenge. Over the last thirty years the resources have been moving in exactly the opposite direction, from the swamp and the plains into the foothills and up the mountain. That has been despite thirty years of assurances that the more resources the mountain dwellers acquire the more will trickle down to the plains and the swamp. Money it seems does not behave at all like the water that falls on the mountain and eventually forms the swamp. The mountain dwellers know that and do whatever it takes to preserve the status quo and the lords of the landscape remain blinded by perverse ideology to the dominant agenda of the mountain folk.

The hill dwellers also benefit from this reverse flow of resources. And it is in these hills that the Maori elites dwell, some of them on the hill they have named the Maori Economy. Somewhat amazingly some on that hill maintain that they too live in the swamp alongside their less fortunate whanaunga.

The challenge for Maori policy makers is first of all to free themselves from the ideology of the Maori elites and then to obtain and divert sufficient resources to the engineers. To do that Maori have to storm the castle called Parliament and get their hands on the levers of power. Maori have actually been storming that castle for decades now and have established footholds on the ramparts. Indeed the Maori Party has accepted an invitation to climb down from the ramparts to dine at the long table in the great dining hall. There they feast with the lords of the landscape and send doggy bags of goodies to the Maori elites and crumbs to the plains and swamp dwellers.

But they still do not have their hands on the levers of power for those are safe within the inner sanctum or citadel. They talk of having to sit at the table before anything can be achieved. They try to convince themselves and the rest of us that the great dining hall is the citadel. But it isn’t. That’s deep inside the castle and has its own moat and drawbridge. The Maori Party have been given the keys to the house but not the combination to the safe.

How then do Maori get their hands on the levers in the safe; in the citadel. The bald reality is that Maori cannot do it alone. The swamp is home to Maori, Pasifika and Pakeha and the draining of the swamp will be a joint undertaking. The storming of the citadel will also need to be a joint campaign which will require a broad political coalition of Maori, Pasifika and Pakeha with the singular intent of draining the swamp through making economic policy serve the needs of society rather than the reverse.

So much for the metaphor of the swamp, the plains, the foothills, the mountain, the castle, and the citadel. Almost.

The storming of the citadel is not a narrow Maori policy matter. It is a matter of broad social and economic policy which are areas largely ignored by Maori policy makers including Maori politicians, cabinet ministers, their advisors, Maori academics and researchers. It follows then that what is urgently needed in Maori policy is to refocus from the present narrow scope of policy deliberation onto broad social and economic policy. And economic expertise in Maori policy making is the single greatest deficiency preventing that.

The rationale for draining the swamp cannot be developed without it. It behoves politicians, bureaucrats, academics, researchers and activists to become not just economically literate but economically expert if they are to challenge the status quo. This is no short term quest.

There are those on the “Left” who are advocating a coalition of the Labour, Green, Internet and Mana Parties to defeat the Key-led Government in the coming elections who might interpret this article as support for that notion. You’re dreaming. “Te Putatara” doesn’t support any political party. And in any case there is no-one with economic literacy or expertise in the Mana Party, none visible in the Internet Party, perhaps one person in the Green Party and certainly none in the parliamentary Labour Party. So you’re dreaming anyway. Even if you do pull it off you’ll need more than ideological intent to defeat the entrenched economic ideology in the Treasury, Reserve Bank and many other government agencies, you’ll need real economic expertise. You don’t have it. Mind you nor does the parliamentary National Party but they don’t need it. They’ve got Treasury pulling their strings, as Treasury has done ever since it subverted and captured the Lange/Douglas Labour Government in 1984. You’ll need to capture Treasury as well.

In the next post I will explore what economic literacy and expertise looks like.