Cultural Imperatives in Not-for-Profits

Cultural principles and philosophical considerations in Not-for-Profits Neither the Incorporated Societies Act 1908 nor the Charitable Trusts Act 1957 make any provision for the governance or management of not-for-profits to take into account cultural principles or philosophical considerations. Such principles and considerations, however, are very frequently reflected in the purposes of such entities and also in the detail of the constitutions and subsidiary documents. The Law Commission, in a 2001 paper, Māori Custom and Values in New Zealand Law (at [3]-[5]), suggested that “tikanga” be used to describe the rules developed by indigenous societies. Whether and how that issue has been taken into account in the Commission’s current pending report into the Incorporated Societies Act 1908 is not yet known. Tension between tikanga and legal principles Those advising Māori and other ethnic or religious entities often encounter the tension between the underlying motivation for an entity and the “law of the land.” The recent Court of Appeal decision in Rameka v Hall [2013] NZCA 203 (featured in the last issue of this magazine, Removing honest and well-intentioned trustees for incompetence, Anthony Grant, page 9), is a classic and instructive illustration of the tensions that can and do arise between legal principles relating to not-for-profit governance and tikanga, and other cultural principles and philosophical principles. Rameka v Hall [2013] NZCA 203 Two minority trustees appealed unsuccessfully against a Māori Appellate Court decision removing them as trustees of the Opepe Farm Trust under section 240, Te Ture Whenua Maori Act 1994. This ahu whenua trust was created under section 215 of the Act in respect of Maori freehold land, with farming...