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Angelo, Tony; Perham, Elisabeth --- "The Report of the Foreign Affairs, Defence and Trade Committee on New Zealandís Relationships with South Pacific Countries" [2010] NZYbkIntLaw 8; (2010) 8 New Zealand Yearbook of International Law 181

Last Updated: 10 August 2015


Tony Angelo* and Elisabeth Perham**

I. Introduction

In March 2006, during the 48th New Zealand Parliament, the Foreign Affairs Defence and Trade Committee began an inquiry into New Zealand’s relations with South Pacific countries. The Committee’s key term of reference was “to investigate the role New Zealand plays and can play in assisting Pacific Islands Forum nations (excluding Australia) to develop sustainable economies.”1 An interim report on the inquiry was presented to the House of Representatives in September 2008 and the Inquiry was reinstated in the 49th Parliament. The final report was released in December 2010.

The Select Committee collected the information required for its inquiry in a variety of ways, including inviting and considering written and oral submissions, as well as travelling to the Cook Islands, Kiribati, Niue, Samoa, Solomon Islands, Tonga and Tuvalu to hear from the leaders of these nations and, in Samoa, from the leaders of Tokelau. Further, the Committee held meetings in Auckland, Wellington and Christchurch to hear from the Pacific communities in those centres. Advice was also received from the Ministry of Foreign Affairs and Trade.2

This is a substantial report.3 It covers a wide range of topics and ideas but addresses no comment specifically to the domestic and international laws applicable to the various relationships it discussed.

This article considers the Report, some responses to it, and then addresses matters of law and how they relate or may relate to the ideas and recommendations of the Foreign Affairs Defence and Trade Committee.

II. The Recommendations

The Report contains over 40 recommendations covering various areas of New Zealand’s engagement with the Pacific region. The recommendations emphasise that New Zealand should focus its Official Development Assistance (ODA) on those Pacific countries with which it has special constitutional relationships and whose people are citizens of New Zealand so that these citizens may enjoy the same level of government service as similar sized communities in New Zealand. A major theme discussed in the Report about these countries was their public sectors, which were perceived by the Committee to be somewhat bloated.4 The Report suggested that this should be remedied – though specific suggestions were not forthcoming. It is also suggested that New Zealand’s constitutional arrangements with three of the Realm countries should be reviewed at the government-to-government level, because, it was suggested, in many ways these constitutional relationships are not working.

One of the key recommendations made by the Committee in this respect is that Pacific island countries should be encouraged to consider adaptations of their systems to internationally acceptable norms and standards of democracy, while still retaining respect for their systems of custom and traditional forms of governance.5 Stable leadership and economic prosperity were seen as key to ensuring that New Zealand will be able to protect its interests in the region.

Another major emphasis of the recommendations is that ODA should be focused on developing the education systems and private sectors of Pacific countries in order that they may reach their full economic potential. A number of measures for the economic development of Pacific nations were recommended, including the setting-up of a fund to provide business loans and ensuring access to markets for Pacific island products.6

Much emphasis was also placed on the vital importance of the Pacific

region to New Zealand’s strategic interests, and on the fact that peace and stability in the region is in New Zealand’s best interests. There is a suggestion that if New Zealand does not pay sufficient attention to the region then some other power, without sufficient knowledge of or relationship to the area, may step in and begin exercising more influence. This is especially important as, according to the Report, competition for influence in the Pacific is increasing.7

The recommendations in the Report were not all unanimously agreed upon. The Labour Party did not support the recommendations that ODA should focus on economic development, but believed instead that the focus should be on the elimination of poverty and the meeting of the Millennium Development Goals (MDGs). Further they believed that any discussion of economic development should be about how it can help Pacific nations to achieve the standards set by the MDGs.8 The Green Party and the Maori Party indicated that the primary focus of ODA should be on the reduction of poverty, and not on the development of private enterprise.9 The Labour Party, the Green Party and the Maori Party all believed that the issue of a ‘bloated’ government sector in the Realm was overstated in the Report.. In relation to this, the Maori Party suggested that it would be best to help Pacific nations re-establish more traditional forms of governance, rather than to judge them on their performance in colonially introduced governance structures such as the Western style of democracy.10

III. Government Responses to the Report

A. New Zealand

The New Zealand Government’s response to the Report was presented to the House of Representatives on 8 March 2011. The New Zealand Government was generally supportive of the recommendations, noting that many of them aligned strongly with the current Government’s existing policies towards the region. It was noted, for example, that the Government already provides more funds on a per capita basis to the Realm countries than to any other Pacific nations, and that New Zealand’s aid programme has already been refocused somewhat towards fostering sustainable economic development. The Government described steps already in place to help Pacific islands with access to finance for developing the private sector and access to markets for their products. The Government questioned, however, the feasibility of the Committee’s recommendations that public services be provided consistently throughout the Realm. It cited the potential constitutional and budgetary implications of such a policy as problematic.

B. The Cook Islands

As at mid-2011 the Government of the Cook Islands had not officially responded to the Report. It may be imagined, however, that if it was to respond it might express similar reservations to those of Niue with regard to the limited mention of the unique cultural identity of the island nations which make up the Realm of New Zealand. It is necessary to address this factor when discussing ways in which to harmonise delivery of services to all citizens living within the Realm. The Cook Islands, as a unique self-governing country with a population of around 20,000 people, could potentially take some offence at being compared to or equated with the small New Zealand town of Eketahuna. The Cook Islands might also be disappointed at the somewhat negative tone of the Report – a sentiment which Niue has expressed – as many of the positive developments in the Cook Islands of the last twenty years have been largely ignored.

C. Niue

The Government of Niue sent its response to the New Zealand High Commissioner to Niue in a letter dated 15 March 2011. The response noted Niue’s disappointment at the wide range of sweeping generalisations contained within the Report, which it considered inappropriate and unconstructive. The special relationship between Niue and New Zealand is mentioned in the Report but the Government of Niue regretted that only the negative aspects of the partnership were pointed out, while the positive aspects of the partnership were largely ignored. It was also of concern to the Government of Niue that there had been no consideration of Taoga Niue, the language and culture of the people of Niue.. It was suggested that this is an important consideration in determining the appropriate size of the public sector. Niue generally supported most of the recommendations on economic development in the region and welcomed New Zealand’s support as Niue’s constitutional partner and primary development partner.

D. Tokelau

The Government of Tokelau in its response expressed concern at the Report’s focus on economic development. It noted that attempting to create a private sector in Tokelau would severely disrupt the communal way of life of its people by placing emphasis on the individual rather than on the community. While it accepted that some changes to life in Tokelau were inevitable, it asserted that any change made should be carefully considered to ensure it is sustainable and responsible before it is implemented. The same caveat was applied to a number of other recommendations made by the Committee, including those about reducing the size of government and the public sector, and that of integrating the delivery of public services with New Zealand agencies. The Tokelau Government also highlighted its concern that the tone of the Report suggested a move towards integrating Tokelau with New Zealand, instead of leaving the option of Tokelau self-government open to Tokelau. The Government of Tokelau noted that attempting to integrate such a small country with a country four thousand times its size would result not in integration but in assimilation.

IV. The Realm of New Zealand

The Realm is a New Zealand conception developed in the Letters Patent, a prerogative instrument, to accommodate the existence of five countries within a common range of interest.11 These are the state of New Zealand, the self-governing states of the Cook Islands and Niue, the colony of Tokelau and the Ross Dependency. These countries are to a greater or lesser extent12 independent of each other in their governance. The Letters Patent make it clear that the Head of State of the Realm operates in accordance with the laws of each of the countries of the Realm.13 The Letters Patent have some bias within the Realm to the state of New Zealand14 but it is equally clear that, except in regard to Tokelau and the Ross Dependency, the state of New Zealand has no constitutional, legislative or judicial role in the government of the other countries.15 At the executive level, the state of New Zealand has obligations rather than rights: there are constitutional obligations relating to extending the privilege of citizenship to the countries of the Realm,16 as well as defence and foreign affairs obligations.17

In respect of the Realm, the Report expressed a very strong view about the maintenance of New Zealand standards, particularly of social welfare, for all New Zealand citizens.18 The consequence of such a policy would be that whether a citizen is in a rural area of New Zealand, on an atoll of Tokelau, or in Niue, in broad terms access to and the standard of public services should be the same. This is a goal which has been aspired to by successive New Zealand Governments. Whether the goal is better achieved by providing for local delivery of services or centralised delivery of services is a matter for debate. In the case of Tokelau both systems have been tried,19 each system presenting its own difficulties. Both the Cook Islands and Niue moved from a centralised New Zealand Government provision of services system to the development of local systems for the provision of services.20 In both cases this was consistent with the United Nations requirements for the development of self-government.21 Whether the bias indicated in the Report towards a centralisation of services22 would resolve the practical difficulties experienced at present remains to be seen. History might suggest that such a move would lead to another cycle in which centralised provision of services is increasingly devolved to the local level to reach a point similar to that experienced now.

The Committee says that it does not recommend revisiting any established constitutional structure but rather that a “fresh approach”23 is needed to deal with the challenges that Pacific island countries face. This fresh approach is very clearly a matter for the Government of the state of New Zealand. As the New Zealand Government’s response to the Report indicates, the Government accepts this and will have to develop it in consultation with the countries concerned.

The Committee is adversely critical of the New Zealand pattern of decolonisation – “the decolonisation experiment” – and states that “reasonable outcomes for the people” have not been achieved.24 The Report goes on to say “this limits the extent to which these people have been able to properly determine their own future”. The Report’s statement may be the perception of those in Wellington. It is clearly not the perception of those in Niue or the Cook Islands: neither state is clamouring to be integrated into the state of New Zealand. Those communities do have the power to determine their own future; they have developed their countries in very different ways and to the extent that one might think its powers are limited, that is probably a reflection of its lack of resources rather than of the failure of decolonisation. In terms of social conditions and the development and operation of systems of government in the Cook Islands, Niue and Tokelau, the situation now is better than it was 50 years ago.

The Report’s discussion of “self-government in free association”25 is highly

critical of the New Zealand model of decolonisation.26 The Report speaks of the disproportionate growth of the public sector at the expense of the private sector, the lack of a balanced employment model, and the “choking of local entrepreneurial spirit.”27 These views fail to take account of local cultural factors, the lack of natural economic resources28 and the fact that the present systems are the choice29 of the inhabitants of the countries for their government and for the allocation of their financial resources. Comparisons with systems of representation and economic development between for instance Auckland and Niue or Tokelau are not easily made given the extreme differences in culture and economic possibility in the three communities.

The Report states negatively that the Committee did not “mean that we support these arrangements”.30 The “arrangements” are the constitutional arrangements for the Cook Islands, Niue, and Tokelau. This view denies the right to self-government, ignores the autonomy of these communities and presumes the constitutional authority of the state of New Zealand within the Realm. The authority of the state of New Zealand in the Realm is primarily a moral authority which can only be exercised through political and diplomatic channels. The practical expedient of using financial strength to require constitutional or other legal change in various countries is available, but would, it is submitted, be an unfortunate use of power. It may be argued that the Report takes this into account. It does say “[i]t is not for New Zealand to dictate to Pacific nations how they should manage their futures”,31 but it quickly goes on to say with particular reference to Niue that there is “clear waste of New Zealand-provided resources” and “[a]id to these three countries needs to be redirected”.32

V. Aid to the Countries of the Realm

The relationships that exist between New Zealand and the Cook Islands, Niue and Tokelau are a particular focus of the Report. The conclusion of the Committee was that the relationships between those countries and New Zealand “warrant special attention and different handling from normal aid relationships”.33 The Report does not fully develop how that difference might be recognised in practice. As a matter of history, it is notable that for decades those countries have expressed concern about the fact that they are described as aid recipients and that the distribution of aid to them is dealt with as a foreign affairs matter.34 At least as far as Niue is concerned there is, as the Report notes, a constitutional obligation on the Government of New Zealand to provide economic support and assistance to the Government of Niue.35 It is inappropriate to regard as aid, assistance which is a constitutional obligation. In the case of Tokelau the situation is even clearer. Tokelau is, by the Tokelau Act 1948, a “part of New Zealand.”36 It is therefore inappropriate to describe as aid or foreign aid the economic and administrative assistance provided to Tokelau; it is as much part of New Zealand as for instance the Chatham Islands37 or Stewart Island.

In 2006 a Special Relations Unit was established at the Ministry of Foreign Affairs and Trade.38 That Unit was developed from the office of the Administrator of Tokelau within the Ministry of Foreign Affairs and Trade and was created in order that a single division of the Ministry could deal with both Niue and Tokelau. The economic, social and constitutional situations of the two countries are very different. The interests of the governments of the two countries have little in common and the implication of similarities inherent in the notion of the Unit was seen as likely to disadvantage both. Tokelau, which had for decades been accustomed to the particular and dedicated attention of an Administrator,39 opposed the establishment of the Unit. The position of the Government of Niue was less clear.

New Zealand has no statutory obligation in respect of funding to the Cook Islands or Tokelau. In respect of the Cook Islands the obligation would be moral or political; in the case of Tokelau it would be political as informed by the international law responsibilities of New Zealand under the United Nations Charter. The good news in the Report is that assistance to the Pacific is recommended to be “significantly increased,”40 though delivery of some services of the Realm should be incorporated into core New Zealand activity.

VI. The case of Niue

The Report identifies Niue41 as a particularly bad example of the decolonisation experiment.42 It says that the system of democratic representation in Niue is a “burden” on it43 and that there should be dialogue with the members of the New Zealand community of Niueans to establish a new model. However interesting or good this idea may be in theory, it is not a matter which the Government of New Zealand can control. Niue is autonomous, it is self-governing44 and its internal form of government,45 and indeed its external relations,46 are matters for the Government of Niue.

On page 57 of the Report it is stated, that having 20 members of Parliament for a country of 600 voters is an abuse of trust. Niue comes in for further criticism in the Report: the political structure is considered to be well in excess of the needs of the people and that it gives no comfort to the New Zealand taxpayer that money is being well spent.

A simple response to this criticism is that it is for the New Zealand Government to honour its legal obligation to Niue47 and ultimately to answer to its taxpayers. The money in the hands of the Niue Government is a matter between the Niue electors and the Niue Government.48 The New Zealand Government undertook a constitutional responsibility from which it should not resile without international agreement with Niue and any consequent constitutional amendment.

VII. Tokelau

A. Transport

The Report comments on transport matters and recommends that New Zealand increases its funding for “essential commercial air and shipping links”.49 It is acknowledged that Tokelau’s current transport service is a matter of concern.50 This is not a new concern. In the 1990s a purpose-built catamaran was provided for Tokelau.51 It was to be fast for inter-atoll travel and specifically designed for an environment where there are no ready offshore anchorage possibilities and no docking facilities. That vessel did not measure up to expectations and was subsequently reconfigured as a mono-hull vessel.52 This gave it greater speed and load capacity.

The Tokelau service has long been supplemented by other larger vessels carrying heavy cargo and shipments of fuel. Before the Tokelau referenda, there was agreement that a large purpose-built vessel would be provided for Tokelau; it would deal both with the inter-atoll and inter-country transport situations. After many years of consultation that project seems now to be on hold and Tokelau’s transport needs are once again under review. Of all matters in Tokelau, transport is perhaps the major and abiding concern. In 1994, when Tokelau agreed to give positive consideration to the exercise of its right to self-determination, it listed a number of preconditions for the exercise of that right and the primary one was improved shipping services.53 That condition was to be fulfilled with the achievement of decolonisation. When the referenda of 2006 and 2007 failed to change the international status of Tokelau, the shipping project rapidly lost priority in New Zealand.

The Report suggests that an air link would be more viable for passengers though it could not entirely replace a frequent shipping service.54 No mention is made in the Report of the previous extensive study in the late 1980s relating to possible air services, the establishment of airstrips, their location, and the environmental risk assessments undertaken.

B. Social Ordering

The “rich bicultural heritage” of New Zealand is suggested as a model for filling gaps in the social ordering systems for Tokelau.55 Certainly, the state of New Zealand has a long history of dealing with these matters. Not only, however, is the situation of New Zealand different from that of Tokelau but the practice of the New Zealand Governments, even in the most recent times, such as the settlement of the Tuhoe claim56 and the difficulties in respect of the foreshore and seabed,57 might suggest that New Zealand Governments still have much to learn in relation to biculturalism.

C. Decolonisation

Self-government for Tokelau seems, says the Report, “quite inappropriate”.58

The statement of the Committee ignores the international legal obligations on the state of New Zealand to advance the self-government of Tokelau. This is a requirement of art 73 of the Charter of the United Nations which is supplemented by various General Assembly Resolutions.59

The Report urges the New Zealand Parliament to resist pressure to implement self-government reform in Tokelau. The Tokelau draft treaty of 2006 should, the Report says, be placed in “abeyance” and a private sector should be created.60 There is no mention of the international law on decolonisation, nor of the commitment of successive New Zealand Governments61 to the development of self-government in Tokelau and progressive steps towards self-determination under the aegis of the United Nations Committee of 24.

VIII. The Diaspora

The question of dialogue with the Pacific island communities in metropolitan New Zealand is one that has some appeal both because of the significant numbers of Niueans and Tokelauans that are in New Zealand62 relative to the number in the cultural homeland63 and also because of the nature of the land-holding system in both those countries. Most or all of the Niueans and Tokelauans in New Zealand have land rights in the home country, and that is so even for those who have never been to the home country. In the case of Tokelau for instance it is often the case that the senior member of the land-holding group lives in New Zealand. The New Zealand community is therefore of significance to the situation in the home country.64 Unless they return to their homeland, their influence is limited to that which they exercise through the members of their family who are residents in the countries concerned or through political pressure on the New Zealand Government. In both Niue and Tokelau, the legal responsibility in respect of the land-holding is with the residents of those countries.65

The question of the role of the New Zealand-based communities, however, remains problematic. Many have left the home country and, from the point of view of those still in the home country, have ‘voted with their feet’.. Therefore, at the political level, they are encouraged to express their views but their influence is solely that reflected through those resident in the countries. In the case of Niue and Tokelau, voting66 is restricted to residents.67 Further, in Tokelau there is the question of the exercise of the right to self- determination68 which in international law terms is qualified as the right of the inhabitants of the territory.69

IX. Conclusion

The countries of the Pacific have plural systems of law. Customary forms of law and the colonially established systems of law (the state law) are both operating. The Report indicates that there should be respect for “custom and traditional forms of governance”,70 but that Pacific island countries should be encouraged towards adopting “internationally acceptable norms and standards of democracy.”71 It is, however, very difficult to respect custom and, at the same time, to maintain that there are some external norms which are better and which should be accepted. What are “internationally accepted norms and standards of democracy” is elusive. The definition of democracy varies from country to country. The Committee seems to be indicating in a somewhat insular way that the norms and standards relating to democracy of the state of New Zealand are those that should be adopted by Pacific countries.

The benefit of hindsight in respect of what is unhelpfully described as “the Westminster model” of government should inform. It is a heavily culturally influenced model which has over recent decades provided a touchstone for governing in Pacific countries but rarely has it worked as envisaged by the departing colonial powers. In many cases it has failed remarkably to meet the needs of the relevant community. By and large the Pacific countries have no political parties or sense of political party of the European kind, the legislatures are typically unicameral, and legislation is not the focus of the Assembly’s activities. The strongest “Westminster” feature of Pacific government is that of cabinet-style government which probably gains strength from the fact that it reflects the hierarchical nature of many of the traditional systems of Pacific government.

Chapter 7 of the Report focuses on what were seen by the Committee as the clearly unacceptable forms of governance operating in some countries in the Pacific. While the Report says New Zealand should not impose its own approach, it goes on to say that donors’ money should be directed to governments that are sensibly sized. The Governments of the Realm states are, however, free to choose the structures that suit their communities. These are matters within the competence of those Governments and the Committee says it is gratified that there is active consideration of them. If in fact the existing systems are “unworldly and unaffordable for the community they represent”, the countries concerned clearly wish to retain them!

There is little evidence in the Report that its principles of respecting custom and traditional forms of government are compatible aims. The “experiment”, in relation to the Cook Islands, Niue, and Tokelau, the Report says has not worked and is quite unsustainable.72 The fact is, however, that it is being sustained, New Zealand does not have a choice in respect of Niue, should respect its undertakings in respect of the Cook Islands, and should hold fast to the international law on decolonisation in respect of Tokelau.

* Professor of Law, Victoria University of Wellington.

** Law Research Assistant, Victoria University of Wellington.
1 Foreign Affairs Defence and Trade Committee Inquiry into New Zealand’s relationships with the South Pacific countries (House of Representatives, Wellington, 2010) at 9 [“Report ”].

2 Ibid at 82.

3 Though not well edited nor always consistent in its use of figures.

4 Report, above n1, at 27 and 51.

5 Ibid at 20.

6 Ibid at 54.

7 Ibid at 19 - 20. New Zealand should “own” a space for aid with Pacific governments.

8 Ibid at 79.

9 Ibid at 80-81.

10 Ibid.

11 Letters Patent Constituting the Office of Governor-General of New Zealand (SR 1983/225), cl 1.

12 The links, if any, of the countries are to the state of New Zealand and through the Executive Council of the Realm (Letters Patent, above n 11, cl 7). Tokelau and the Ross Dependency are subordinate to the state of New Zealand.. There is no constitutional subordination of any of New Zealand, Niue or the Cook Islands to each other.

13 See Letters Patent, above n 11, cls 4 and 6.

14 Ibid at cl 8: The Executive Council members are the Ministers of the state of New Zealand.

15 See for example Constitution of Niue, arts 35 and 36.

16 Niue Constitution Act 1974, s 5; Cook Islands Constitution Act 1964, s 6; Citizenship Act 1977 (NZ), s 29.

17 Niue Constitution Act 1974, s 6; Cook Islands Constitution Act 1964, s 5.

18 Report, above n 1, at 52.
19 Tokelau Amendment Act 1967 (all public service is appointed by the State Services Commissioner in New Zealand under the State Services Act 1962); Tokelau Amendment Act 1999, s 2(1) (“The Governor-General may, by Order in Council, recognise any body, institution, or office in Tokelau as successor to the State Services Commissioner as the employer for the Tokelau Public Service”); Tokelau Public Service Rules 2001 (establishment of the Tokelau Employment Commission as successor to the state Services Commission); Tokelau (Employer for Tokelau Public Service) Order 2001; Public Service Rules 2004; Tokelau Amendment Act 2007 (repeal of the Tokelau Amendment Act 1967 in its Schedule part (1)).
20 Cook Islands Constitution Act Commencement Order 1965, ss 659 – 671 (the New Zealand Commission appoints and controls the public service under the State Services Act 1962); Independence Constitution Act 1974, s 64 (establishment of the Niue Public Service Commission under the control of the New Zealand State Services Commission); Niue Amendment Act 1974, s 2(2)(h) (“In the case of a reference to the New Zealand State Services Commission, being a reference in relation to the Niue Public Service, as a reference to the Niue Public Service Commission”); Constitution Amendment Act 1992 s 5 (provides that s 64 is repealed and replaced). Between 1974 and 1992 the Niue Public Service was controlled from New Zealand with two of its three members being members of the NZ State Services Commission. From 1992 the Commission is wholly appointed by the Niue Cabinet.

21 Charter of the United Nations, art 73.

22 Report, above n 1, at 54.
23 Ibid at 13. “We have no view on the future constitutional arrangements of the Realm entities, but it is clear the New Zealand Government should take responsibility for ensuring the proper delivery of core services to New Zealand citizens in these countries” (Ibid at 15). “It is not for New Zealand to dictate to Pacific nations how they should manage their futures” (Ibid at 39).

24 Ibid at 21.

25 Ibid at 27.

26 Ibid at 76.
27 Ibid at 27. The public service system is inherited (see above nn 19 and 20). The Niue and Tokelau public service was controlled by the New Zealand State Services Commission. At 31 March 1974, there were 392 permanent appointed staff and 312 casual employees in Niue. At the same time, there were 217 permanent and 115 casual labourers working in the Tokelau Islands Public Service under the control of the New Zealand State Services Commission. See JM McEwen and PA Amos “Reports on Niue and the Tokelau Islands for the Year Ended 31 March 1974” [1974] III AJHR E14 at 11 and 36; the number in Niue has steadily declined since 1974. In Tokelau the numbers remain approximately the same. They rose then declined with a major shift from national public service to village employment; see Statistics New Zealand and the Office for the Council of the Ongoing Government of Tokelau, 2006 Census of Tokelau Analytical Report (2006) < v1-TOKELAU__2006_Census_ Analytical_Report.pdf> .
28 The Cook Islands, Niue and Tokelau all have some fisheries revenue from their Exclusive Economic Zones but little else. The Cook Islands has a significant tourist industry, and Niue a nascent one.
29 Independence of Cooks Islands in 1964 and Niue in 1974. Tokelau established its first National Government in 1993; United Nations Documents “United Nations Visiting Mission: Tokelau’s Voice ‘New Wind, New Waters, New Sail – The Emerging Nation of Tokelau” in AH Angelo Tokelau – A Collection of Documents and References Relating to Constitutional Development (3rd ed, VUW, Wellington, 1999) at [3]. See also AH Angelo and Talei Pasikale Tokelau: a history of government: the constitutional history and legal development of Tokelau (Council for the Ongoing Government of Tokelau, Apia, Samoa, 2008) at 27 and 64.

30 Report, above n 1, at 28.

31 Ibid at 39.

32 Ibid at 40.

33 Ibid at 9.

34 The Report notes this anomaly at 29.
35 Niue Constitution Act 1974, s 7: “It shall be a continuing responsibility of the Government of New Zealand to provide necessary economic and administrative assistance to Niue.”

36 Tokelau Act 1948, s 3.
37 Chatham Islands Council Act 1995. It is to be noted that there is a special statutory local government regime for the Chatham Islands (see ss 5 and 6). However, non-local generated finance is provided by New Zealand domestic state agencies (see for example Chatham Islands Council Annual Report 2009/2010 < report-2009-2010.pdf> .
38 David Bruce Payton was the first Director of the Special Relations Unit as Administrator of Tokelau from 2006 until 2009. See website of the Ministry of Foreign Affairs and Trade <>.
39 Section 9 of the Tokelau Act 1948 states that the Minister of Foreign Affairs and Trade administers the Act. Under the Act, the Tokelau Administration Regulations have been made and those regulations empower the Minister to appoint an Administrator of Tokelau. See also Angelo and Pasikale, above n 29.

40 Report, above n 1, at 52.

41 Much in the Report is reminiscent of the comments of the Committee Chairperson in other contexts:
In Niue, development assistance – about NZ$20 million allocated by New Zealand after the last cyclone – is ultimately damaging to Niueans and their culture. We need to work in a real partnership with Niueans and to walk together with them at their pace, a pace that allows Niueans to make changes both to their political system and to land ownership in Niue. It is irresponsible of New Zealand to give an additional NZ$8.2 million annually to a ‘country’ (perhaps ‘community’ is more accurate) of about 1,100 people, with a Parliament of 20 politicians. Niueans need to be invited to get real – for example by reducing the number of politicians to a level appropriate to their population. Niue is about the size of a medium secondary school in New Zealand. It is unsatisfactory to continue to accommodate the 20,000 Niueans living in New Zealand who hold those on the island to ransom by refusing consent to economic activity on land they communally own. There needs to be change to land tenure arrangements.
John Hayes “Bringing Peace to Bougainville” in John Henderson and Greg Watson (eds) Securing a Peaceful Pacific (Canterbury University Press, Christchurch, 2005) 140 at 141.

42 Samoa is complimented, and Tokelau is said to be on the wrong path. Report, above n 1, at 58 – 60.

43 Ibid at 12.

44 Niue Constitution Act 1974, s 3.

45 See generally the Constitution of Niue.
46 See for example Joint Communique on the Establishment of Diplomatic Relations between Niue and the People’s Republic of China (Wellington, 2007); Treaty between the Government of the United States of America and the Government of Niue on the Delimination of a Maritime Boundary (Wellington, 1997). See also Niue Constitution Act 1974, s 6.

47 Niue Constitution Act 1974, s 7.

48 Constitution of Niue, arts 26 and 59.

49 Report, above n 1, at 48. The Committee’s interest is in economic development.

50 Ibid.
51 The MV Tutolu; for further information see Tokelau Department of Transport “A Case Study of Options for Providing Appropriate Services to Meet Tokelau’s Shipping Needs” (Paper presented in the Seminar Leading Strategic Change in the Public Sector 2005, School of Government and the Centre for Continuing Education and Executive Development, Wellington, 2005).

52 MV Tokelau.
53 See for example United Nations Documents, above n 29, at [23] and [24]: “Tokelau would ... need special assistance if air services were to be introduced, if a ship has to be purchased, or if charter vessels were not readily available ...” “Tokelau would therefore wish its basic transport and telecommunication system to be in place and assured before self-determination.”

54 Report, above n 1, at 48.

55 Ibid at 60.

56 See Prime Minister John Key’s statement about the Tuhoe claim (18 May 2010) 663 NZPD 10869.

57 Marine and Coastal Area (Takutai Moana) Act 2011 (NZ).

58 Report, above n 1, at 27.

59 See below n 68.

60 Report, above n 1, at 59.
61 For example, Village Incorporation Regulations 1986; Tokelau Amendment Act 1996 (grant of law-making power); Tokelau Amendment Act 2007 (repeal of Tokelau Amendment Act 1967).
62 According to the New Zealand Statistics Department’s Census 2006, 22,473 Niueans are living in New Zealand <>. Additionally, there are 7,100 Tokelauans living in New Zealand <>.
63 In 2006 there were 1,538 residents living in Niue (Niue Population Profile Based on 2006 Census of Population and Housing – A Guide for Planners and Policy-makers (prepared for the Secretariat of the Pacific Community 2008)). The Tokelau 2006 Census of Population provides that there are 1,074 usual residents plus 392 usual absentees recorded in Tokelau (Statistics New Zealand and the Office of the Council for the Ongoing Government of Tokelau 2006 Tokelau Census of Population and Dwellings (2006)). It is to be noted that the Report gives different and inconsistent numbers when it mentions the populations of Niue and Tokelau.
64 There is nothing in the law of Tokelau which prevents the return of Tokelauans to the home country (Immigration Rules 1991 (TK L), r 3). In the case of Niueans who are New Zealand passport holders, return is easy (Immigration Act 2011(Niue), ss 4 and 5).

65 Constitution of Tokelau, art 15(5); Land Act 1969 (Niue), ss 12 – 16.
66 Constitution of Niue, art 17; Niue Assembly Act 1966, s 12. Referendum Rules (TKL), r 8; Village elections are held under the Tokelau village rules and run in accordance with rules made by each village; voting is typically restricted to residents present in the village on the day of the election.
67 Charter of the United Nations, art 73; and Repertory of Practice of United Nations Organs Supplement No 9 (vol V, art 73).
68 Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose people not yet attained a full measure of self-government A/RES/742 (1953); Declaration on the granting of independence to colonial countries and peoples A/RES/1514 (1961); Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter A/RES/1541 (1961); and Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations A/RES/2625(X XV).

69 Charter of the United Nations, above n 21, art 73; “people of the territory” see above n 68, A/ RES/742 (1953).

70 Report, above n 1, at 20.

71 Ibid.

72 Ibid at 76.

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