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New Zealand Law Commission

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5. Recommendations

105 THE COMMISSION recommends that:

(a) A new model settlement entity be created by statute through which a settlement group can receive, and have administered on its behalf, assets transferred to it in the settlement of grievances. An issue for further consideration and consultation is whether this entity should be the sole entity capable of receiving and administering settlement assets, or whether other forms of entities, which comply with the core obligations that we have identified, may also be used.

(b) The constitution of the settlement entity should prescribe the following core obligations:

i) principles of stewardship, to which those responsible for the management of the entity are to be subject, including the standard and duty of care that they are to owe to the members of the settlement group;

ii) categories of information, to be disclosed to members of the settlement group to enable them to scrutinise the actions of those responsible for the management of the entity;

iii) accountability obligation to members of the settlement group of those responsible for the management of the entity;

iv) methods by which any disputes involving members of the group, in respect of the distribution or use of the assets of the entity, are to be resolved.

(c) A standard form constitution be settled that ensures the four core obligations apply. Any settlement group might, however, define the core obligations in the constitution in some other way, subject to satisfying the approval mechanism.

(d) An approval mechanism, consistent with the current Office of Treaty Settlements practice be established, to provide certification verifying that the constitution of the proposed settlement entity contains the appropriate core obligations, and that the settlement group has agreed to the terms of the constitution.[112] Further thought will need to be given to this approval mechanism, and whether or not some form of appeal to a body (like the Mäori Land Court) should be available if certification is not forthcoming.

(e) The Chief Registrar of the Mäori Land Court be empowered to issue a certificate of incorporation for the entity, on deposit with the Mäori Land Court of the constitutive documents (including the verifying certification), and act as the Registrar of the entity once it is incorporated.

(f) Once certified, in line with current practice, any subsequent changes to the constitution of the entity be approved by a 75 per cent majority of members of the group who are exercising votes in terms of the constitution.

(g) The Mäori Land Court be empowered to resolve those disputes that claimant groups elect to have mediated, or determined, by the Court. Appropriate legislation might provide that a judge of the Mäori Land Court may sit with pükenga, if that option is envisaged by the constitution.

(h) Consideration be given to making this settlement regime applicable to settlements completed after the date on which the new statute comes into force, and any prior settlements where the settlement group decides to vary its constitution to adopt the settlement regime. (This should be optional rather than mandatory.)

(i) Any entity created to receive settlement assets be capable of being used by the settlement group for wider purposes, for example, for the running of its marae.

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