In the High Court of New Zealand Hamilton Registry CIV-2011-419between:

Waikato-Tainui Te Kauhanganui Incorporated Plaintiff T E Martin Defendant

and:

Affidavit of Tukoroirangi Morgan in support of application by plaintiff for interim injunction

Sworn on: 15 June 2011

REFERENCE: M C Sumpter (matt.surnpter@chap ma ntripp.com )

3 W .3 Graham (justin.grahamgchapmantripp.com )

Chapman Tripp
T: +6493579000

F. +64 9 357 9099

23 Albert Street PO Box 2206, Auckland 1140 New Zealand

www.chapmantripp.corn Auckland, Wellington, Christchurch

CHAPMAN dir1

TRIPP W.

AFFIDAVIT OF TUKOROIRANGI MORGAN IN SUPPORT OF APPLICATION BY PLAINTIFF FOR INTERIM INJUNCTION

I, Tukoroirangi Morgan of Auckland, Executive Chairman, swear: I am the Executive Chair of the plaintiff's executive body, Te Arataura. I am familiar with the subject matter of these proceedings and am authorised to swear this affidavit. 2 I am asking the Court for time to get our ducks in a row so that whatever significant constitutional changes our tribe chooses to make at a critical upcoming meeting are lasting and effective. I explain further below. The structure of Waikato-Tainui in brief 3 The plaintiff is an incorporated society which manages assets and distributes income for approximately 60,000 members of the Waikato-Tainui iwi. 4 The society is organised on a parliamentary model. Each of the 66 marae making up Waikato-Tainui is entitled to elect 3 members to Te Kauhanganui, the tribal parliament. Each marae is able to exercise a vote at meetings. 5 Of those elected members, 10 are elected to sit on the executive body of Te Kauhanganui, Te Arataura. The Maori King is also entitled to appoint a representative to Te Arataura. Members of Te Arataura are elected for three year terms. There is due to be an election for membership of Te Arataura later this year. 6 A Chairperson for the tribal parliament is also elected. The current Chairperson is Mrs Martin, the defendant. 7 Using the parliamentary analogy, Te Arataura is like the cabinet, with responsibility for managing and controlling the affairs of the society. The Chairperson of Te Kauhanganui is like the Speaker of the I-louse, with procedural responsibilities for running meetings of the tribal parliament.

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General background
8 It is fair to say that this proceeding has come about, at least in part, because of significant differences of view between Mrs Martin and Te Arataura about the way the society is supposed to function according to its Rules. Mrs Martin has been critical of the way Te Arataura has been managing and controlling the affairs of Te Kauhanganui, and has instituted an internal review of the governance of the tribe which is being undertaken currently by KPMG. 9 Because of this fundamental tension, Te Arataura has for some time been considering obtaining declaratory relief from the High Court about the proper interpretation of the Rules in respect of the governance functions of Te Arataura and Te Kauhanganui. Depending on the outcome of a (properly convened) Half-Yearly General Meeting, which is the subject of this proceeding, that is a course which seems now to be critical for our tribe to take. 10 I attach an exhibit to my affidavit which is marked "TM-1" and which has several tabs which I explain in the course of my affidavit.

The Rules of Te Kauhanganui 11 Tab 1 attaches the Rules of Te Kauhanganui as registered with the
Incorporated Societies Office. 12 The Rules which relate to the convening of meetings of Te Kauhanganui, in particular the Half-Yearly General Meeting which is relevant to this proceedings, are Rules 8 and 10. Rule 10 requires 21 days notice of meetings to be given and for such notice to state the place, day and hour of the meeting and general business to be transacted.

The "hold the date" letter

13 On 13 May 2011, I issued a letter to the members of Te Kauhanganui asking them to hold the date of 18 June 2011 for the Half-Yearly General Meeting.

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14 The Half-Yearly General Meeting had previously been scheduled for 28 May 2011, but further time was needed to complete the Te Arataura report to be presented at the meeting. 15 Tab 2 attaches my 13 May 2011 letter. 16 The 13 May 2011 letter was not a formal notice of meeting under Rule 10. The 13 May 2011 letter does not set out the place or hour of the meeting, or the general business to be transacted. It was intended that a formal notice would be sent out in due course, but this has not, in fact, occurred.

The Half-Yearly General Meeting Agenda

17 On 3 June 2011, Mrs Martin issued to all members of Te Kauhanganui an agenda for the Half-Yearly General Meeting. 18 Tab 3 attaches a copy of the 3 June 2011 agenda and meeting pack sent out by Mrs Martin. 19 In the agenda put forward by Mrs Martin, there are a number of resolutions proposed. Two of those resolutions are particularly relevant, resolutions Sand 6. I first became aware of those resolutions on receipt of the agenda. 20 Resolution 5 proposes significant changes to the Rules of Te Kauhanganui. The key Rule applying to alterations to the Rules is Rule 18. As I understand it, the effect of Resolution 5 is to rewrite the Rules of Te Kauhanganui to substantially divest Te Arataura of the powers given to it in Rule 16. 21 Resolution 6 proposes to disqualify the 10 elected members of Te Arataura. The key Rule applying to disqualification of members of Te Arataura is Rule 15.4. 22 Resolution 6 proposes to disqualify Te Arataura for serious breaches of the Rules. Those breaches are not specified in detail in the resolution, and the explanatory note in the agenda records the "Public excluded documentation to support the [resolution} will be presented on the 18 th of June 2011". From this statement I take it that Te Arataura will not be fully informed of the allegations against

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it prior to the currently scheduled 18 June 2011 Half-Yearly General Meeting. 23 I note that there is no reference to business of the type proposed in resolutions 5 and 6 in the 13 May 2011 letter. Concerns about the Agenda 24 I am concerned that resolutions 5 and 6 have potentially farreaching, and damaging, implications for the plaintiff. 25 While I am advised that these are legal issues, I understand that there may be problems associated with the effectiveness of the HalfYearly General Meeting taking place on 18 June 2011, in that: 25.1 adequate notice of the meeting may not have been given; and 25.2 resolutions 5 and 6 may be resolutions which are required to be put by Special Resolution (which, under the Rules, requires a vote of 75% of Total Marae Votes). 26 I am also very concerned, as a Te Arataura member, that my colleagues and I have been accused of committing serious breaches of the Rules, but we have not been given any or adequate notice of what those breaches actually are. 27 I do not believe I have breached any of the Rules of Te Kauhanganui. I am upset at the allegations that I have done so. I would like to understand the allegations, take legal advice if necessary, and have the opportunity to fully respond, in writing. I do not think it is fair to be ambushed with the allegations "on the day". 28 While that is a personal concern, I must say that in no way do I, or any member of Te Arataura, not want the Half-Yearly General Meeting to proceed in due course. Nor do 1, or any member of Te Arataura, have any wish for properly constituted resolutions not to be put to Te Kauganganui. If it is the will of Te Kauhanganui to vote out Te Arataura and to rewrite the Rules, then so be it. We will respect the wishes of our tribe.

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29 The overriding concern that 1, and the members of Te Arataura have, however, is that this meeting is becoming defective in several respects and the outcome of the meeting may have disastrous consequences. It does not appear to have been properly notified and the procedure for certain of the resolutions proposed does not appear to be right. 30 The resolutions being put are about the most serious it is possible to imagine for an iwi the size of Waikato-Tainui. They will, if passed, completely change the management, structure, organisation and direction of the iwi. Again, if that is the will of the tribe, then so be it. However, if the meeting on 18 June 2011 takes place, and the resolutions are put, then whatever the outcome, the meeting and the resolutions could legitimately be the subject of subsequent legal challenge. 31 For example, if 50% of marae vote to disqualify Te Arataura, and there is a legitimate legal view that such a vote would require 75% of marae votes, then there will be a constitutional crisis. The Chair of Te Kauhanganui might require Te Arataura to stand down, and Te Arataura might refuse to do so. There would then be a crisis of leadership which would undoubtedly require judicial intervention to resolve. 32 In the meantime, the society could not function. To state the obvious, that is highly undesirable. Te Arataura members are currently heavily engaged on a range of critical initiatives, including proceedings before the Environment Court in relation to Puketutu Island and whanau ora programmes. 33 In a leadership vacuum, those initiatives are likely to stall or unravel, I am also concerned at the reputational implications for our tribe and our organisation in such a situation.

Notification of the Dispute to Mrs Martin

34 Te Arataura and I want the Half-Yearly General Meeting to take place in the proper way. We have raised a Dispute under the Rules with Mrs Martin and tried to resolve the situation without involving the Court.

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35 On 9 June 2011, our solicitors wrote to Mrs Martin's solicitor and advised a Dispute under the Rules, That letter is at Tab 4. In that letter, we asked for: 35.1 Mrs Martin's agreement to defer the meeting; 35.2 Mrs Martin's agreement to withdraw Resolutions 5 and 6; and 35.3 Mrs Martin's agreement to meet to discuss and attempt to resolve the Dispute. 36 On 10 June 2011, Mrs Martin's solicitor wrote back saying that the meeting would proceed from her perspective, and that he would only act for Mrs Martin in the matter if Te Arataura agreed to meet her legal costs. That email is at Tab 5. 37 On 13 June 2011, our solicitors wrote to Mrs Martin's solicitor and offered to meet and to pay Mrs Martin's legal expenses for the meeting. That letter is at Tab 6. 38 On 14 June 2011, Mrs Martin's solicitor wrote to our solicitors and advised that Mrs Martin's participation in a meeting was conditional on previous outstanding costs items being paid by Te Arataura. That letter is at Tab 7. 39 That same day our solicitors responded and invited Mrs Martin to participate in a meeting given the urgency of the situation and advising that outstanding costs items were being addressed. That letter is at Tab 8. 40 Despite our efforts to arrange a meeting with Mrs Martin, it has not been possible to resolve the Dispute in the limited time available. The next step under the Disputes procedure in the Rules would be to refer the matter to mediation, but we cannot require that to happen until 10 days have passed, which would not be until 20 June 2011. The Half-Yearly General Meeting would have taken place by that time. 41 Accordingly, and regrettably, there has been little option but to bring this matter before the Courts.

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42 I have signed an undertaking as to damages. I confirm that the plaintiff is in a position to meet any award of damages which may be made in the defendant's favour. In the 2010 Annual Report for the Waikato Raupatu Lands Trust (of which the plaintiff is trustee) it was noted in the financial statement that the tribe had net assets of in excess of $537m. The relevant extract is at Tab 9. 43 I am seeking, on behalf of the plaintiff, the Court's assistance, not to cancel the Half-Yearly General Meeting or prevent it from taking place, but to get it back on track so that whatever changes are made to our iwi are done properly and fairly and for the enduring benefit of our people. There is little point in proposing drastic changes to our society only for those changes, if passed, to be bound up in further litigation which leaves the tribe rudderless, confused, and in crisis. Sworn at Auckland on 15 June 2011 before me:
,

Tukoroirangi Morlan

A Solicitor/6f the High CoLirt of New Zealand

KyIle An Taylow Solicitor Auckland ktaylor elllsgould.co.nz

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