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Te Aho, Linda --- "Corporate governance: balancing Tikanga Maori with commercial objectives" [2005] NZYbkNZJur 23; (2005) 8.2 Yearbook of New Zealand Jurisprudence 300

Last Updated: 19 April 2015

CORPORATE GOVERNANCE: BALANCING TIKANGA MAORI
WITH COMMERCIAL OBJECTIVES¹

Linda Te Aho*

INTRODUCTION

In Aotearoa, the settlement process for redressing breaches of the Treaty of Waitangi has seen the establishment of a number of well-resourced and structured Maori economic entities and the return of substantial assets to claimants. Accordingly more and more iwi² have shifted their focus to post-treaty settlement issues of development.³ This brings about an increasing need to analyse the ways in which iwi assets and resources are being managed.

A number of iwi have created their own distinctive models for overall management and distribution of resources.⁴ They have nevertheless continued to use company structures for wealth creation.

Maori directors of such companies face challenges trying to balance the pursuit of the Maori company's commercial objectives with the

Linda Te Aho is of the Waikato and Raukawa peoples of the central North Island of Aotearoa/New Zealand. Linda is a senior lecturer at the School of Law, University of Waikato, Hamilton. Her teaching subjects include commercial law subjects and post-graduate courses, Maori Women and the Law and Maori Resources and Development Law. Linda is currently a director of New Zealand Railways Corporation and Indigenous Corporate Solutions Limited and was a founding director of Raukura Moana Fisheries Limited, a Maori owned and operated commercial fishing company. She is also currently convenor of environmental issues and resource consent processes for her tribal organisation, Raukawa Trust Board.

1. An abbreviated version of parts of this paper has been published in Te Aho, W and L "Corporate Management of Natural Resources. Legal Issues and Practical Realities regarding Corporate Management of Natural Resources and the Impact on Indigenous Beliefs and Values" in Legal Developments in the Pacific Island Region Proceedings of the 3rd Annual Conference 2000 166.

2 I use the word iwi to mean tribe

3. Examples of iwi in post settlement phases of development include Ngai Tahu, Ngati Whatua o Orakei and the Waikato iwi of the Tainui confederation. Many

other iwi are presently negotiating with the Crown to settle major claims.
4 I belong to the Tainui tribes of the central North Island.
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maintenance of fundamental tikanga Maori.⁵ These challenges are exacerbated when consultants to whom Maori directors turn for advice are often ill-equipped to give advice that ensures accordance with tikanga Maori.

This paper explores some of the difficulties of corporate governance of a company charged with managing iwi resources. Many of these challenges arise because the principles underpinning the traditional corporate structure often conflict with essential Maori beliefs and philosophies.

An associated concern relates to knowledge and application of tikanga Maori. How can a Maori director ensure that a decision or action accords with tikanga Maori, if that director has no knowledge of those laws and values?

This paper will also raise the question of how educators can improve tertiary education opportunities for the future architects of Maori development.

PART ONE - BACKGROUND
Tikanga

For the purposes of this paper, the term tikanga is used broadly to embrace essential Maori beliefs, philosophies, values and custom. One interpretation of `tikanga' is that it is derived from the base word and concept 'tile, meaning right or correct. Tikanga therefore embodies core values or principles that reflect doing what is right or appropriate in the circumstances. Justice Durie uses the word tikanga to describe the norms that maintained law and order in Maori customary society.⁶ As a concept, tikanga is dynamic, rather than being a codified set of rules.?

While themes and concepts of tikanga are universal, the specific expression of them may vary from iwi to iwi.

5 Maori laws and values.

6. ET Durie Custom law, Privately circulated paper, 1994 cited in Maori Land Law, 25.
7. Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) 21, and see the discussion about koha below.

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Whanaungatanga

One example of a deep-seated value from Maori customary society, still revered today is whanaungatanga. It is often said that the Maori world was primarily concerned with human and divine relationships. A fundamental purpose of Maori law was to maintain relationships of people to their environment, their history and each other.⁸

Mauri

Mauri is a core value and therefore a source of tikanga. Mauri can be translated as the principle of vitality, mana and fruitfulness of people, lands, forests and other natural resources.⁹ For example, my tribal river, the Waikato, is often addressed in prayer and oratory as something with a life and aura of its own. Recognition of the esteem in which the iwi holds this river is immortalised in the following tribal saying:

Waikato Taniwharau,

He Piko He Taniwha.

Waikato, river of a hundred taniwha,

at every bend a chief.

This proverb refers to the stretches and bends of the river that were populated with supernatural creatures called taniwha. It alludes to the centuries of occupation of the riverbanks by the chiefs and their tribes of the Waikato valley. ¹⁰

The river served as a rich source of food. It provided irrigation for plantations on land and served as a highway for travel by canoe. The river is also revered as a source of spiritual sustenance. The river's protective and healing powers have long been recognized. According to oral histories, whenever Waikato people were sick, uncertain or about to undertake a journey or a new venture, they would go to the water, invoke their ancestors and sprinkle themselves."

8 Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) 21.
9 Williams, HW Dictionary of the Maori Language
10 King, M Te Puea (1987 (rep)).
11 Ibid, p51.
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Accordingly, it would be abhorrent for a Maori director to consider any course of action that might harm or degrade the mauri of the river for a commercial outcome.¹²

For many corporates, to factor acting consistently with such tikanga into the decision making framework of directors might fall under the category of conservation or 'social conscience' whereby companies take an interest in matters of concern to the community in the formulation of policy. ¹³

I do not propose that tikanga is the same as or even a category of social and political objectives. Rather, I would argue that tikanga comprises the fundamental values that constitute Maori people.

MAORI DIRECTORS - ISSUES OF IDENTITY

There is no precise measure of what constitutes Maori identity.I⁴ The late John Rangihau argued that being Maori is about growing up in a Maori community; earning apprenticeships by participating and by learning the customs and traditions that are part of being of a particular tribal group. ¹⁵ This writer subscribes to this view that Maori identity is not dictated merely by blood quantum but, rather, by the upbringing one has had and by the society in which one grew up observing all the rites of passage in a Maori way. ¹⁶

Judge Williams, Chief Judge of the Maori Land Court, is reported to have categorised Maori in four primary groups: ¹⁷

1. Some 100,000 to 150,000 who live in or near their rohe (tribal

area) as part of their whanau and hapu.

12 See below for examples of such courses of action.
13 CCH Director's Handbook 4-240.

14. Durie, MH Whanau/Families and Healthy Development. Paper Presented to the Fifth Annual conference of the New Zealand College of Clinical Psychologists, Hamilton, 1994.

15 Rangihau, J supra n 17, cited in Moeke-Pickering Ibid.

16. Karetu, T "The Clue to Identity. 1990 New Zealand Geographic 5, 27-28, cited in , Moeke-Pickering, T. "Maori identity Within Whanau: A Review of Literature." Hamilton: University of Waikato, 3.

17 New Zealand Herald Wednesday October 25 2000.
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2. A similar number, increasingly well educated, who live outside their rohe but participate in whanau or tribal activities.
2. About 100,000 dispossessed, often young, people who have no Maori cultural or linguistic connection.
2. Another 170,000-odd "assimilated New Zealanders of Maori descent" who know they have Maori ancestry but mainly identify with European culture.

According to this report, the first two groups are by and large bilingual and bicultural and have a strong sense of tino rangatiratanga and "separateness from the mainstream." The second group, in particular, drives much of the policy debate. Both groups are growing in number.

References in this paper to the dilemmas faced by Maori directors when balancing tikanga are to those directors who identify as Maori, those who would fall into groups 1 or 2 as categorized by Judge Williams: for one must understand tikanga, or at least be aware of what it is, before one can truly attempt to balance tikanga with commercial objectives.

DIFFERENT TYPES OF MAORI BUSINESS ORGANISATIONS

There are many types of organisations, structures and legal regimes used by Maori to conduct business for community or communal purposes; or that have some significant connection with communal purposes or interests. The obvious examples include `iwi authorities', usually trust boards still operating under the Maori Trust Boards Act 1955; charged with managing resources owned by and to be used for the benefit of iwi or hapu. Other common forms in and through which a lot of Maori business is conducted are Maori Incorporations, and Maori Trusts established under the Te Ture Whenua Maori Act 1993.

While this paper focuses upon companies registered under the current New Zealand Companies Act 1993, many of the observations about company directors could also apply to trustees of trusts and incorporations.
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COMPANIES REGISTERED UNDER THE NEW ZEALAND COMPANIES ACT 1993

Tribal leaders and iwi authorities face a cumbersome range of expectations: from providing educational grants, to negotiating with the Crown for the settlement of further claims under the Treaty of Waitangi, to managing complex commercial enterprises. Those tribal groups who have settled claims have adopted quite complex frameworks of trusts and other corporate bodies to administer assets from the various settlements. Such frameworks invariably include companies registered under the New Zealand Companies Act 1993 as vehicles for wealth creation.¹⁸

Companies are commonly viewed as separate cells to create benefits for the tribe. The most common scenario is for a company to pass financial benefits on to a shareholding trust board. The trust board, in turn, is concerned with the distribution of that wealth in a manner that is appropriate for the tribe. In other words, the commercial activities of the tribe are not an end in themselves but a means to an end - that is the development and enhancement of its people socially, culturally, spiritually and financially.

Role of Directors

Company directors have four key functions:¹⁹

• to formulate corporate policy - that includes developing the purpose, vision, and values of the business;
• to determine strategic direction;
• to supervise performance of the business and of the management, and
• to ensure accountability to shareholders.

18. In some circumstances such companies can be eligible for the advantages of charitable status.

19 CCH Directors Handbook 4-030
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Fundamentally, when exercising powers or performing duties, directors are legally required to act in good faith in what they believe to be the "best interests of the company".²° The test is expressly subjective.

In considering the interests of the company, it is clearly acceptable for directors to look to the future of the company and the interests of future shareholders. The company may therefore carry out acts which have no short-term benefit for the company but which will be to its benefit in the long term.²¹

Nevertheless, directors are often advised and accept the view that acting in the best interests of the company means acting in the best short-term commercial interests of the company.²²

GOVERNANCE ISSUES FOR MAORI DIRECTORS

Generally, there is an expectation gap that exists between what some people perceive as appropriate corporate behaviour and what corporations actually do, and, it has been argued that this is because corporations have abdicated their social responsibility.²³

An expectation gap exists, perhaps even more so, in relation to Maori companies. Maori have extremely high expectations of their corporations. The assets are seen as either taonga tuku iho (treasures passed down from generations of ancestors - particularly in relation to land) or crucial for the benefit of unborn generations.

There has been some discussion in recent years about Maori managers and directors (primarily male) of Maori companies who have been dubbed "corporate warriors ". It has been suggested that the word warrior connotes a desire to retain a distinctive Maori element about the way in which these companies operate. However, the word

20 Companies Act 1993, s131

21. Watson, S, et al, The Law of Business Organisations (Auckland: Palatine Press, 1999)
22. Institute of Directors in New Zealand (Inc) Best Practice for New Zealand Directors publications 1996 and 1998

23 Corcoran, S "The Corporation as Citizen and as Government: Social Responsibility and Corporate Morality" (1997) 2:1 FJLR 53.
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corporate marks the priority that these directors place on achieving efficiency and profitability as is required in the 'real world' of the market place.²⁴

A frightening notion is that these corporate warriors hide behind the veil of these corporate structures whilst mimicking the exploitative behaviour of their non-Maori counterparts. As a consequence things that were treasured in traditional Maori society such as the environment, for example, suffer.

Competing objectives - hypothetical examples.

The following examples of how a focus on profit making can be exploitative of the environment are hypothetical.

A company is established to manage the commercial fishing quota of an iwi. A local subtribe on the shores of a harbour complains of a decrease in the availability of seafood its members traditionally gather. The subtribe believes that the decrease is caused by an increased presence of commercial fishing vessels in the harbour. The company needs the vessels in the harbour to bring in good catches to improve cashflow problems. The local subtribe has requested that the company respect a rahui²⁵ in the harbour. What should directors do, whether they are Maori or otherwise? Many Maori would probably say respect the rahui.²⁶

Other examples abound. A company buys shares in a meat works company that employs many Maori. The works are situated near the tribe's river into which the meat company has been discharging effluent for some time.

Directors must balance competing considerations. While pollution is a wider social consideration it also harms the mauri of the river (see

24. Seuffert, N "Treaty of Waitangi Settlements and Globalisation in New Zealand: Colonisation's next wave" (Unpublished Draft Article).
25. A suspension of use (such as fishing) for a specified period of time, usually to allow for spiritual cleansing after a fatality in the waterway, or for rejuvenation of a species.
26. Indeed this was the unanimous response when I put this same question to the participants at a seminar at the World Indigenous Conference on Education in August 1999, Hilo, Hawai'i.

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above). Other pressing concerns include cost and the interests of the employees. Which should take primacy?

A company becomes the majority shareholder in a company that operates a power station. The practice of the station is to take cold water from the iwi's tribal river, process the water to create electricity and return warm water. Disturbing the temperature of the water is a form of pollution that will affect taniwha and the mauri of the river. Directors will have to balance these effects with the costs involved in seeking out alternatives.

Despite the negative effects on the environment, when faced with some of these situations, some directors take the view that the real issue is that the wealth gets to the right people at the end of the day, and not so much how the money is made. Very often, financial considerations or the best commercial interests of the company take precedence over aspects of tikanga.

There are several possible explanations for the presence of such an approach.

Firstly, this type of attitude that focuses on profit maximisation at the expense of caring for our environment is a symptom of the radical restructuring by successive governments in Aotearoa/New Zealand over the past decade. Policy and legislation have incited the application of pure neo-liberal economic theory that prioritises markets and profits over people.²⁷

A second possible explanation as to why indigenous peoples generally (including Maori) internalise oppressive values, comes from the seminal work of Paulo Freire.²⁸ Freire theorises about how the oppressed individuals and peoples of the world might struggle for their liberation from those that oppress and exploit by virtue of their power.²⁹ He argues that the oppressed internalise the image and the guidelines of their oppressor. They are caught in a contradiction "in which to be is to be like, and to be like is to be like the oppressor".³°

27 Kelsey, J The New Zealand Experiment (1995).
28 Freire, P Pedagogy of the Oppressed (1997).
29 Ibid, 26.
30 Idem.
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Freire's analysis may explain why some Maori, such as the corporate warriors, appear to have adopted or "internalised" exploitative colonial values at the expense of various tikanga and ways of doing things.³ I For example the Maori negotiators attracted widespread criticism following three of the major Treaty of Waitangi Settlements.³² The settlements themselves have been condemned as one-sided and oppressive.³³ The corporate warriors, it is argued, were constructed by the corporate nature of the state-initiated settlement deals.³⁴

Possible Solutions

The tendency for some Maori directors to cite their legal obligation to act in the best interests of the company as justification for disregarding tikanga has been discussed above, together with an offering of possible explanations as to why they might do so. It may also be that the motives for mimicking structures that impede tikanga Maori are not opportunistic and greedy but rather that Maori directors are ill informed as to their options within a corporate structure.

One possible solution, yet untested as far as the writer is aware, is to explicitly prescribe in the constitution of the company the tikanga Maori that must not be compromised.

The Companies Act 1993 allows for, but does not compel, a company to have its own constitution to regulate itself in a way which is not inconsistent with the Act.³⁵ There is considerable latitude for a company to arrange its affairs to suit its own individual needs. The provisions of the constitution can be enforced by a shareholder or the

31. Te Aho, L EEO for Maori Women in Maori Organisations (Unpublished Dissertation, University of Waikato).
32. Ngai Tahu, Waikato and the pan-tribal fisheries settlement commonly referred to as the Sealord's Deal.
33. See Coxhead, C and Richards, P "Developing Non-court process for the Resolution of Land Claims: The Aotearoa/New Zealand Experience", Legal Developments in the Pacific Island Region, Proceedings of the 3rd Annual Conference, October 2000, which sets out the advantages and the disadvantages of settlements achieved via direct negotiation between Maori and the Crown.

34 Seuffert, supra n 13, part II.
35 Sections 26, 31.
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company as a statutory right. The legislation does allow for companies to express in the constitution those customs or tikanga that must take precedence over purely commercial considerations.

A difficulty arises here because there remains a lack of professional legal and commercial expertise in terms of drafting constitutions that provide for tikanga. There is a real need for more professional advisers who are able to respond to the needs and concerns of people in a bicultural society.

Another difficulty is that on many boards of indigenous corporates, directors are appointed on the basis of business acumen, commercial expertise and so on. Sadly, many of those directors are ignorant about matters of tikanga. A possible solution is the appointment to boards of directors of an elder or kaumatua with an expertise on matters of tikanga. Such an appointment would be based on knowledge of tikanga rather than business expertise, and would carry with it the specifically defined role and responsibility to ensure that tikanga is not overlooked or undermined in any way.³⁶

Nominee directors of joint venture companies

It is common for a director to be appointed as the nominee for a particular shareholder. For example, it is common practise for iwi to come together in joint ventures, for example, in the areas of forestry and fisheries. Nominee directors are appointed by each iwi on the understanding that their function is to represent and protect the interests of the appointing shareholder. As such, the nominee occupies a position of acute conflict of interest. As directors, there is a primary duty to act bona fide in the interests of the company.³⁷

English courts have generally approved of the concept of the nominee director. But they have also imposed a strict proviso. Should any conflict arise between the interests of the company and those of the appointor, the nominee must uphold the former.³⁸

36. Another option is to specifically require the presence of a kaumatua advisor in the decision making process. One tribal authority has stipulated in its constitution that no decisions can be made by trustees if a representative of the Kaumatua Council is not present.
37. SI31 Companies Act 1993; See also Beck and Borrowdale, Guidebook to New Zealand Companies and Securities Law, para 313.
38. Scottish Co-operative Wholesale Society Ltd v Meyer [1958] 3 All ER 66; Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1993] NZLR 513.

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The New Zealand Companies Act 1993 slightly modifies the position of nominee directors of companies that have been incorporated to carry out a joint venture between the shareholders.

Section 131 sets out the powers and duties of directors:

131. Duty of directors to act in good faith and in best interests of company

(1) Subject to this section, a director of a company, when exercising powers or performing duties, must act in good faith and in what the director believes to be the best interests of the company...

Section 131(4) sets out an exemption to this general duty:

(4) A director of a company incorporated to carry out a joint venture between the shareholders may, when exercising powers or performing duties as a director in connection with the carrying out of the joint venture, if expressly permitted to do so by the constitution of the company, act in a manner which he or she believes is in the best interests of a shareholder or shareholders, even though it may not be in the best interests of the company.

It is said that this exemption provides a balance between commercial reality and the common law by allowing directors to act in the interest of their nominating shareholders in limited circumstances.³⁹ It would be naive to assume that nominee directors would disregard the interests of their appointing shareholders when acting as directors of the company. In Re Broadcasting Station 2GB Pty Ltd^4° it was decided that nominee directors may advance the interests of their appointing shareholder, as long as this does not breach the duties owed by those directors to the joint venture company. If there is a conflict between the interests of the joint venture company, and the interests of the appointing shareholder, then the director must act in the best interests of the joint venture company.

However, to take advantage of the rule in s131(4) specific provision must be made in the constitution to permit the directors to depart from their general obligation to act in the best interests of the company as a whole.

39. Watson et al, The Law of Business Organisations para12.01; see also Dairy Containers Case Ltd v NZ Bank Ltd [1995] 2 NZLR 30.

40 [1964-65] NSWR 164.
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This means that tikanga Maori that should not be compromised should be explicitly recognised in the constitution.

State Owned Enterprises - an analogy

If the exemption for nominee directors is not applicable (that is if Maori businesses do not choose to use a joint venture structure) the dilemma of Maori directors resembles that faced by those who are in governance positions on State Owned Enterprises (SOEs) and other types of crown corporations

SOEs were established in the 1980s as new structures to improve the performance of the public sector. The principal objective of an SOE is to "operate as a successful business".⁴¹ To achieve that objective an SOE must be:

• as profitable and efficient as comparable businesses that are not owned by the Crown;

• a good employer, and

an organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so.

These objectives were intended to clarify the role and focus of SOE managers. Much of the litigation that has arisen from the operation of the Act relates to the interpretation of section 4 of the SOE Act; and in particular the relationship between the requirement to be profitable and the requirement to exhibit a sense of social responsibility.

It is not within the scope of this paper to explore the considerable legal analysis of the tension between the "commercial" and "social" objectives enshrined within section 4 Act in any detail. However, the Courts in

41 State Owned Enterprises Act 1986, s4(1).
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most instances have been consistent in determining that commercial objectives take priority over maintaining social responsibility.⁴²

Conflicts in relation to the management of SOEs will ultimately be determined by a Court's interpretation of the relevant statutory provision in light of the facts of the case. The requirement to exhibit a sense of social responsibility is expressly stated in the statute. The courts have consistently found that the pursuit of commercial objectives overrides the requirement about social responsibility.

The relevance of this comparison is that Maori directors, like all directors, have a statutory duty to act in the best interests of the company. In addition, as Maori directors they also have other duties by virtue of their Maori identity. But those duties to maintain tikanga are not expressed in statute. Nor have they been recognised by common law. Accordingly, if the situation arose where Maori directors acted in a manner that allowed tikanga to override their statutory duties owed to the company, a court would find that the statutory duty had been breached. In any case, if there is going to be provision made in the constitution that in some circumstances tikanga is overriding it must be made absolutely clear.

APPOINTMENT OF DIRECTORS • THE ROLE OF KAUMATUA IN THE BOARDROOM

A further difficulty that arises is the appointment of directors based on abilities other than business expertise.⁴³ The appointment of a director who is not versed in commercial matters may well raise concern from consultants. For example, a kaumatua appointed on the merit of his or her expertise in tikanga is one way in which a Maori company could ensure that tikanga is not overlooked or undermined in any way.⁴⁴

42. Wellington Regional Council v Post Office Bank Ltd (unrep) 22 December 1987; Federated Farmers of NZ Inc v New Zealand Post Ltd [1990] NZBORR 339 (HC); Vector Ltd v Transpower New Zealand Ltd [1993] 3 NZLR 646, 667.

43 This issue also arises in relation to employees.

44. Another option is to specifically require the presence of a kaumatua advisor in the decision making process. Te Runanga o Turanganui a Kiwa is based in Gisbome and represents the iwi of Rongowhakaata, Te Aitanga a Mahaki and Ngai Tamanuhiri. Its constitution states that no decisions can be made by trustees if a representative of the Kaunihera Kaumatua (Kaumatua Council) is not present.

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However, financial and legal consultants have consistently provided literature for boards stressing the need to consider the requirements of an 'effective' director. These requirements include such things as `business acumen', 'commercial expertise', 'strategic vision' and so on. This sort of advice might be understandable given the higher levels of responsibilities and stricter penalties now imposed upon directors. Nevertheless it reiterates that the commercially driven consultants do not recognise the value of tikanga Maori and accordingly the value of a kaumatua.

This highlights two issues. Firstly, the appointment of directors ought to reflect a suitable balance of persons taking account of business and industry skills as well as stakeholder awareness. Indeed, the latter point should be given as much importance in board membership as other more commercially oriented skills.⁴⁵

Secondly there is the need to improve the understanding of those who

provide consultancy and advisory services to boards. Such a need was recognised by Waikato University when it proposed to create a Waikato law school. The committee which examined the need for a law school at Waikato stated:

New Zealand is a society that needs not only more lawyers but lawyers who must respond to the needs and concerns of people in a bicultural society."

Te Piringa, the Maori legal academic team of the Waikato Law School will readily admit that the School has much work to do if it really seeks to achieve the goal of biculturalism. But that is not reason to stop trying to achieve the goal. At the very least, all schools of law and management in our tertiary institutions must acknowledge the needs of this bicultural society.

In the meantime there is a need for training and development of our people as directors by people who at least understand the dilemmas of working in an iwi environment. Courses run by the Institute of Directors, and advice from consultants concentrate on legal duties, but often fail to address some of the conflicts that arise.

45. This is currently the appointment practice of the Minister for State Owned Enterprises, correspondence dated 6 August 2001.
46. University of Waikato, Te Matahauariki: The Report of the Law School Committee (1988) 1.

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SUMMARY

This paper serves to highlight some of the dilemmas that Maori directors face in Aotearoa/New Zealand when making decisions involving the balancing of competing commercial objectives with custom. It is suggested that some indigenous directors are tempted to disregard tikanga for a commercial outcome. Such directors need not ignore tikanga or custom when they step into the boardroom. Being both indigenous and a company director need not be mutually exclusive. That some people think they are, including professional consultants, highlights an obvious need for training and development of our people as directors by people who at least understand the dilemmas of working in an iwi environment. In addition, there must be experts on custom law or tikanga either as directors and part of the board, or in some other advisory capacity to ensure that custom or tikanga is not undermined. Furthermore, companies can prescribe in their constitutions those customs or tikanga that must take priority over purely commercial considerations.