New Zealand Yearbook of International Law
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Tony Angelo[∗]
The Realm of New Zealand is an elusive notion. It is often ignored and frequently misunderstood. The Realm is identified in the basic prerogative instrument of the New Zealand constitution.[1] Elizabeth II is Head of State in right of the Realm of New Zealand which has five components: the State of New Zealand, the self-governing State of the Cook Islands, the self-governing State of Niue, Tokelau, and the Ross Dependency. After the head of the Realm, the State of New Zealand is the second most important element in the Realm: It is the Executive Council of the Government of the State of New Zealand which advises the sovereign on matters relating to the Realm and it is the State of New Zealand that provides the main link for the other four countries to the Realm. The Cook Islands and Niue have their free association arrangements with the State of New Zealand, and Tokelau and the Ross Dependency are territories within the State of New Zealand.
The Cook Islands and Niue are States whose legal systems are independent in every respect from that of the State of New Zealand. Tokelau is a subordinate element of the State of New Zealand and is therefore subject to constitutional control by the State of New Zealand at executive and legislative level. Tokelau has, however, as a consequence of the programme of development of internal self-government, developed to the point where it has an administrative and law-making system which in practical terms operates independently of the New Zealand government in Wellington. The Ross Dependency has a legal system which is undeveloped and uncertain at a number of key points.
Access to legislation is a perennial problem in small States and it is particularly difficult with respect to the small States in the Pacific. The situation in the Cook Islands, Niue and Tokelau has been alleviated by a number of developments.
In 2007 the Cook Islands brought its volumes of legislation up-to-date with a six volume collection of acts and subordinate legislation spanning the period since the last major collection of 1997 to mid-2007. A finding list for the Cook Islands legislation (with alphabetical and chronological tables) was published at the same time as the volumes of annual legislation.
A major legislation review was undertaken by Niue with the publication at the end of 2006 of a four volume consolidated set of the Laws of Niue as at 1 December 2006. The collection was authorised under the Reprint of Statutes Act 1991 and therefore provides prima facie evidence of the law of Niue as at that date. The collection includes finding lists and tables, is available online, and is maintained up-to-date by annual collections of legislation and documents of constitutional significance.[2]
The consolidated collection of the laws of Niue followed a period of substantial legislative activity tidying up the statute book of Niue. In particular, the Interpretation Act 2004 was enacted and all the existing legislation (much of which had continued unchanged in form since before the self-determination of Niue in 1974) was reviewed. Supporting legislation provided for the due reflection of the current constitutional status of Niue, for the removal of obsolete laws, for the repeal or amendment of contradictory legislation and for proper reference to the administrative structures of contemporary Niue.
The major event in Tokelau was the referendum on decolonisation held in October 2007. The Tokelau voters had before them a package which provided for a draft treaty of free association between Tokelau and New Zealand which would be formalised if there was at least a 2/3 majority vote in favour of the package. That draft treaty, in essence, provided for assurances to Tokelau on the matters that it regarded of prime importance to its future: the continued association with the State of New Zealand in a form of partnership; the guarantee of access to New Zealand citizenship; benchmarking and guarantee of budget support and infrastructure development support; and undertakings on matters such as emergency assistance, defence, maritime surveillance and the Tokelau International Trust Fund. Additionally, the draft treaty spelled out the specific relationship between New Zealand and Tokelau on international relations.
Tokelau voted on the same package in February 2006 and 60% of the voters then voted in favour of the package. In October 2007 the number in favour of the package was 64.5%. The package again failed to achieve the 2/3 majority required by the Referendum Rules of Tokelau.
If Tokelau had voted in favour of the package it would have been the third State in free association with New Zealand within the Realm of New Zealand. The arrangements proposed for Tokelau, which had been negotiated over a number of years between the governments of Tokelau and of New Zealand, built on the experience of the Cook Islands and the later experience of Niue and was a development of the model of free association pioneered in 1965 by the Cook Islands and New Zealand. The particular features of the Tokelau package were that the relationship was clearly documented and the rights and obligations of each party identified. This, in relation to economic support and international relations, is a considerable development from the position of both the Cook Islands and Niue and would have provided for secure constitutional and international legal bases for the relationship. The Tokelau development differs from that of Cook Islands and Niue in that the Constitution of Tokelau has developed authocthonously. Those of the Cook Islands and Niue were a product of devolution from the New Zealand Parliament which enacted both of the Constitutions as Schedules to New Zealand statutes.
The consequence of the Tokelau vote is that Tokelau remains a colony of New Zealand. It will continue with the advanced level of self-government which was attained following more than a decade of delegation and devolution of powers from Wellington to the Tokelau government.
Two books on Tokelau appeared during 2007. Peter McQuarrie’s Tokelau: People, Atolls and History is an introductory text written for a general audience.[3] Law matters are addressed in short chapters. The 2006 referendum is addressed under the heading ‘Independence: Pressure from the United Nations’.[4] Clearly here ‘independence’ is used in a non-technical sense. The author concludes:[5]
Perhaps some sort of independence, in free association with New Zealand will be achieved in the not too distant future. Certainly achieving a status akin to independence is needed if Tokelau is to develop in terms of both its nationhood and its infrastructure.
The other book by Huntsman and Kalolo, The Future of Tokelau, is an academic text written by a leading anthropologist and a Tokelauan co-writer.[6] The book is principally and interestingly a history of the New Zealand government’s interaction with Tokelau between 1975 and 2006. The focus is on the work and views of the key New Zealand government servants during that period. The book deals, by way of conclusion, with the period immediately preceding the 2006 referendum. The authors have a view on that and appear to favour an integration model for Tokelau’s self-determination. They express strong criticism of the self-determination process followed by Tokelau.
Parallel to the various constitutional developments, the Niue International Trust Fund and the Tokelau International Trust Fund now both stand at approximately NZ $30 million, assisted significantly by the grant of NZ $5 million to each of them in the final quarter of 2007.
New Zealand too has been actively tidying the legislation relating to the relationship with the countries of the Realm. Many changes were made to the Cook Islands Act 1964, the Niue Act 1966 and the Tokelau Act 1948 as a consequence of the Statutes Amendment Bill 2007. These numerous amendments enable the New Zealand statute book to reflect the legal reality. In the case of the Cook Islands and Niue, the New Zealand law had not been amended to reflect the consequence of the self-determination of those two States and therefore did not reflect the reality of the law of any of the three States concerned. This was a confusing and potentially misleading situation. These three Acts originated with the New Zealand Parliament, but in each of the three countries, the relevant Act is also the law of that country. In the Cook Islands and Niue, the Act is totally independent in that country from the Act as it stands in New Zealand. In the case of Tokelau, the Tokelau legislators are subject to the New Zealand Parliament but in some areas the law has evolved independently of the activity of the New Zealand Parliament.[7] In those areas where that development has occurred, the New Zealand Parliament has now acted to reflect the true situation and bring the Act as it stands on the New Zealand statute book into line with the situation as it has developed in Tokelau by the effect of the Tokelau Amendment Act 1996.
The end product of these amendments in the New Zealand law indicates that there is still much work to be done to systematise the relation of the laws of the Cook Islands and New Zealand on one hand and Niue and New Zealand on the other. The removal of the clearly obsolete material from the New Zealand statute book should make the next step in the exercise – the tidying of the detail of the relationship of those sections of the Act that remain in force – easier.
[∗] Professor of Law, Victoria University of Wellington, New Zealand.
[1] Letters Patent Constituting the Office of Governor–General of New Zealand (28 October 1983), SR 1983/225.
[2] One such document is the joint communiqué between the Governments of the Peoples Republic of China and Niue of 12 December 2007. The signing of this joint statement brings to 170 the number of countries that have diplomatic relations with the Peoples Republic of China. Within the South Pacific most countries have diplomatic relations with the PRC; 6 States recognise the Republic of China.
[3] Peter McQuarrie, Tokelau: People, Atolls and History (2007).
[4] Ibid 227-231.
[5] Ibid 230.
[6] Judith Huntsman and Kelihiano Kalolo, The Future of Tokelau (2007).
[7] As a consequence of the Tokelau Amendment Act 1996.
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URL: http://www.nzlii.org/nz/journals/NZYbkIntLaw/2008/10.html