Transparency in Trusts: Making Information Work for Māori Land Beneficiaries

The Māori Appellate Court has issued a decision confirming that the trustee duty to provide information to beneficiaries applies to trusts within the Court’s jurisdiction.  The recent decision in Nikora v Trustees of the Tūhoe – Te Uru Taumatua Trust provides important clarification on this duty.  In this case, Mr Timoti Buddy Nikora, a beneficiary of the Trust, requested access to a range of trust information, including budgets, trustee minutes, and financial statements.  The Trust refused to provide some of the requested information, and the Māori Land Court initially declined to order disclosure.  On appeal, the Māori Appellate Court allowed Mr Nikora’s appeal, set aside the Māori Land Court’s decision, and directed that the application be reheard.  The type of information requested included trust budgets, trustee minutes, and balance sheets between 2019–2021.

The Court emphasised that trustees are required to consider the statutory factors set out in the Trusts Act before refusing disclosure.  As there was no evidence that the trustees had properly considered these factors, the Court could not uphold the refusal to provide information.  The Māori Appellate Court confirmed that the Trusts Act 2019 applies to Māori land, including the corresponding duty to provide information to beneficiaries.  It upheld the appeal and sent the matter back to the Māori Land Court for determination.

The Trusts Act 2019 sets out a presumption that trustees will provide information to beneficiaries, reflecting principles of transparency and accountability in trust administration.  Section 49 of the Trusts Act 2019 defines "trust information" as any information regarding the terms of the trust, the administration of the trust, or the trust property, that is reasonably necessary for the beneficiary to have to enable the trust to be enforced.  Sections 50–55 set out the process and presumptions for providing such information, including the factors trustees must consider before refusing a request.  These factors range from consideration of the nature of the beneficiaries interests, confidentiality, age and circumstances of beneficiaries, practicalities including restrictions or redaction and the context and nature of the request.

This decision highlights that Māori land trusts and post-settlement governance entities are subject to the information disclosure regime in the Trusts Act 2019.  Trustees must follow the statutory process when considering requests for information and cannot withhold information without proper consideration of the relevant factors. The matter was remitted to the Māori Land Court for a full rehearing to determine whether the information should be provided in accordance with the law.

Key tips for providing information to beneficiaries include:

• Understand your obligations and what must be provided versus what might be optional and assess the request alongside the factors in section 53 of the Trusts Act 2019.
• Have a clear process to request and provide the information, including timelines; ensure these are workable and practical.
• Ensure your documents are kept in a secure place and are easily accessible.
• Be transparent but balanced in your approach to disclosure.

Our Kahurangi Whenua team at McCaw Lewis are available to provide advice and assistance with a wide range of services for Māori Land Trusts and to answer any pātai you may have.  Please contact us through reception on 07 838 2079.