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Angelo, A H; Avia, Janielee --- "Tokelau freehold" [2022] OtaLawRw 6; (2022) 17 Otago LR 321

Last Updated: 9 March 2024

Tokelau Freehold

321

Tokelau Freehold

AH Angelo* and Janielee Avia**

I Introduction

Tokelau consists of three coral atolls in Polynesia about 500 kilometres north of Samoa.¹ The population of 1,500 is divided approximately equally among the three atolls. There is no local industry; income is derived principally from tuna fishing agreements and New Zealand Government grants. Daily life is governed by tradition.

Tokelau is an external territory of the state of New Zealand and is part of the Realm of New Zealand.² As an external territory it has its own legal system – a system dominated by the sovereign power of the New Zealand Parliament, and the regulation-making power of the Governor- General of New Zealand.³ Tokelau is also on the United Nations list of non-self-governing-territories and is entitled to self-determine to end its colonial status.⁴

Because of the international dimension to its existence, executive authority for Tokelau lies with the New Zealand Minister responsible for Foreign Affairs. By the Administration Regulations,⁵ the Administrator of Tokelau has responsibility under the Minister and the Secretary for Foreign Affairs for “the administration of the executive Government of Tokelau, and ... such other functions and powers as are conferred on the Administrator by ... any ... enactment in force in Tokelau”.⁶ The

^* Professor Emeritus, Victoria University of Wellington.

^** Barrister and Solicitor of the High Court of New Zealand, BA LLB (Well).

1. The leading texts on Tokelau and its custom are listed in the footnotes to this article: see eg nn 12, 15, 17 and 26. See also AH Angelo “Tokelau – Its Legal System and Recent Legislation” [1987] OtaLawRw 5; (1987) 6 Otago LR 477 and AH Angelo “Tokelau Constitutional Development” [1995] OtaLawRw 5; (1995) 8 Otago LR 413. For recent comment, see AH Angelo and Janielee Avia “Out and about in the Realm” [2021] OtaLawRw 5; (2021) 17 Otago LR 129.
2. Tokelau Act 1948, s 3; Letters Patent (SR1983/225), cl 1. In addition, the relationship with New Zealand is governed by the Principles of Partnership between Tokelau and New Zealand (21 November 2003).
3. Tokelau Act, s 4.
4. Charter of the United Nations (opened for signature 26 June 1945, entered into force 24 October 1945), arts 73–74; Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose people have not yet attained a full measure of self-government GA Res 742 (1953); Declaration on the granting of independence to colonial countries and peoples GA Res 1514 (1960); Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations GA Res 2625 (1970); and International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, 23 March 1976) [ICCPR], art 1.
5. Tokelau Administration Regulations 1993 as amended by the General

Fono in 2003 and 2004.

6. Regulation 4(1).

courts of record for Tokelau are the High Court and Court of Appeal of New Zealand⁷ and, as a prerogative matter, the Judicial Committee of the Privy Council.

In practice, and particularly since 1996, the New Zealand administration has been light-handed and consistent with the “sacred trust” imposed on administering powers by the United Nations Charter.⁸ In practice the legislative power is usually exercised by the General Fono, a body with representatives of each of the three villages which deals with matters of national concern,⁹ and by the villages themselves for purely local matters such as inshore fishing, village cleanliness and stewardship of local resources. Village governance is by the elders of each village. The authority of the Administrator has reduced in recent decades as a result of the transfer of power to local authorities by legislation¹⁰ and indirectly by delegation of powers to the villages and to the General Fono.¹¹

II History

In 1863, land in Tokelau was acquired by a non-Tokelauan.¹² The purpose of this article is to speculate on how the legal ownership of that land may be traced.¹³ Substantively a number of significant issues arise: (1) What is the law that determines the ownership of the land and, in the light of that, how are the present owners to be identified? (2) To whom and under what conditions may the owners deal with the land? (3) If

7. For an insight into this jurisdiction, see Tokelau Judgments 2012–2021 (Victoria University of Wellington, Wellington, 2022) and Angelo and Avia, above n 1.
8. Charter of the United Nations, art 73: “to promote to the utmost ... the well-being of the inhabitants ... and ... to develop self-government”.
9. Tokelau Act, s 3A. The restrictions under s 3B are to be noted.
10. For example, by the Transfer of Powers Rules 2003 (Tokelau).
11. These were made under the Tokelau Administration Regulations. The delegations themselves are set out in four documents of 27, 28, and 29 May 2004 for the villages and of 1 June 2004 for the General Fono. All were effective from 1 July 2004.
12. He was Benjamin Hughes, an American, who was employed by August Unshelm of Samoa. Among the many accounts about Benjamin Hughes, see Antony Hooper and Judith Huntsman (eds) Ko na fakamatalaga tuhia a ni Papalagi e uiga ki Tokelau 1765–1925 (Office for Tokelau Affairs, Apia, 1986) at 212–214 and 275–276 (translation: Papalagi documents on Tokelau 1765–1925), Antony Hooper and Judith Huntsman (translators) Matagi Tokelau: History and Traditions of Tokelau (Office for Tokelau Affairs and Institute of Pacific Studies, University of the South Pacific, Suva, 1991) at 110, and HE Maude Slavers in Paradise: The Peruvian labour trade in Polynesia, 1862–1864 (Australian National University Press, Canberra, 1981) at 53.
13. It is hard enough in a metropolitan centre to access the relevant laws but impossible in a small Pacific country with few law books and limited access to relevant law databases. The speculations here may be of assistance should the legal issues arise in practice.

the land were alienated, how would its value be determined given that this is the only privately owned land in Tokelau? (4) Finally, there is a question of distribution of any compensation. The details of this article are Tokelau details. However, they provide an interesting example of the difficulties of the often intractable interface of custom and imported law as experienced in many countries.

The islet of Fenuafala¹⁴ was acquired from the King of Fakaofo for six axes and ten bolts of cloth.¹⁵ At the time of the acquisition, Tokelau had been subject to slave raids from Peru; Hughes is reported to have been involved with that trade.¹⁶ Tokelau was not a colony at the time, so the transaction would have been subject to custom. Tokelau custom dictated – “only by consent of every claimant to the land can any part of it be given or sold to any person who has no right to it by heritage”.¹⁷

In 1866, Hughes sold the land to a German trading company, DH & PG, which then leased the land to Antonio Pereira. After the departure of Hughes, the villagers of Fakaofo tried to buy the land from the company but failed. Fenuafala was sold to the son of Antonio Pereira who, in his will of 1912, vested the land in Emanuel Pereira.¹⁸

In due course, Emanuel subdivided Fenuafala for the purpose of resettlement.¹⁹ In 1957 some of the land was acquired by the Government

14. An islet of 82 acres on the leeside of the islet on the North-West end of the atoll. The total land area of Fakaofo is approximately 1,000 acres. For its location, see Appendix 1 of this article. The islet is that on the extreme left of the map.
15. “An account of Fenuafala by Solomona” in Antony Hooper and Judith Huntsman (eds) Papalagi documents on Tokelau 1765–1925, above n12, at 199–301. The most accessible account is in Hooper and Huntsman Tokelau: A Historical Ethnography (Auckland University Press, Auckland, 1996) at

212. See also Hooper and Huntsman Matagi Tokelau: History and Traditions of Tokelau, above n 12, at 110. The arrangement between the King and Hughes may not have been proper according to Fakaofo custom, but the several enquiries into its validity all seem to have proceeded on the basis that if the King knew what he was doing – surrendering Fenuafala to Hughes – the transaction was to be honoured. And it has been, and the right to the land is now legally documented.

16. An exhibition in 2021 Cry of the Stolen People captured the story of blackbirding in Tokelau. See Dominic Godfrey “Installation tells story of Tokelauans sold into slavery” RNZ Pacific <https://www.rnz.co.nz/ international/pacific-news/402286/installation-tells-story-of-tokelauans- sold-into-slavery>.
17. Gordon Macgregor Ethnology of Tokelau Islands (Bernice P Bishop Museum, Honolulu, 1937; Kraus Reprint Co, New York, 1971) at 58.
18. There is no evidence the will was admitted to probate under Tokelau law, but a Certificate of Inheritance was issued by the District Court in Western Samoa in 1916.
19. In 1958 it was reported that over 40 families were resettled to Fenuafala: “They’re Shifting House” Pacific Islands Monthly Vol XXVIII, No 6 (Sydney, 1 January 1958) at 78.

of New Zealand: 53 acres of Fenuafala sold for £6,477.15.²⁰ This transaction is recorded in the Tokelau Amendment Act 1963.²¹ The acquisition related to land on the lagoon side of the motu. The land to the south, on the ocean side, remained in Pereira ownership. The 1963 Act refers to red and blue lines which respectively indicated the land acquired and the areas in it which were reserved for government purposes.²² All land except the government purpose areas was vested by the 1963 Act in the village of Fakaofo.

III Who Are the Owners?

The law relevant to succession to the land is the law of Tokelau; the distribution of land is governed by the law of the place where it is (lex situs).²³ Tracing what that law was, and is, is not without its difficulties. To establish the rights in the land, it is necessary to follow the succession line from Emanuel. Depending on the date of death of the relevant ascendant, there may also be a need to consider the rights of any non- Tokelauan spouse. There are undoubtedly now many descendants both in Tokelau and among the diaspora and therefore increasingly smaller interests in the land.

Tokelau was a British protectorate (1889–1916), part of the Gilbert and Ellice Islands Colony (1916–1926) and under New Zealand administration (1926–1948). None of the Orders in Council passed during the pre-1949 period covered the distribution of intestate estates in Tokelau.²⁴ The Pacific Order in Council 1893 (UK) stated that “the substance of the law

20. Antonio’s son’s will of 1912 was assumed valid to dispose of the Tokelauan land, and a 1957 Deed of Transfer recorded Emanuel’s assertion of ownership.
21. The operative section of the Act is s 2. It is reproduced in Appendix 2.
22. The details are indicated in the documents attached in Appendix 3. Access to the documents was made possible by Archives New Zealand and that assistance is gratefully acknowledged. The lines are barely discernible in the Archive documents. The line described as “red” is the line running on the left of the plan. The areas stated to be marked in “blue” are the four rectangular shapes and the “J” shaped area in the right section of the plan

– the area retained by the New Zealand Government. The areas marked blue have in recent times been treated as Government of Tokelau land and used for school, hospital accommodation etc and, in the period after the devolution of government functions to the villages, as village land. No transmission of the legal title to those areas from the New Zealand government to the Government of Tokelau has been found.

23. Crimes, Procedure and Evidence Rules 2003 (Tokelau), r 157.
24. Although the Solomon and Gilbert and Ellice Islands (Intestates Estates) Regulation 1912 dealt with some intestate estates, neither the Pacific Order in Council 1893 (UK) nor the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) Order in Council 1914 addressed the distribution of intestate estates. A comprehensive review of the law affecting Tokelau through till 1981 is in AH Angelo and Yvonne Chan Research and Revision of the Law of Tokelau – An Interim Report on Progress (Ministry of Foreign Affairs, 1981).

for the time being in force and for England” was the default system of law. In the absence of specific legislation, English law applied.²⁵

Following the law from that provision involves three slightly different

matters:

(a) legislation that retained existing laws;

(b) legislation that retained the law of England as the default source of law for Tokelau; and

(c) legislation specific to succession to land.

a) The Tokelau Act 1948 provided in s 5 for the existing laws to continue in force. It was repealed and replaced by s 4(1) of the Tokelau Amendment Act 1996. This provision remains in force as at 2022.

b) The fate of English law as the source of default rules was clarified by s 3 of the Tokelau Amendment Act 1969; it added ss 4A and 5A which provided for the laws of England to be in force in Tokelau.

4A. The law of England as existing on the fourteenth day of January in the year eighteen hundred and forty (being the year in which the Colony of New Zealand was established) shall be in force in the Tokelau Islands, save so far as inconsistent with this Act or inapplicable to the circumstances of the Tokelau Islands:

Provided that no Act of the Parliament of England or of Great Britain or of the United Kingdom passed before the said fourteenth day of January in the year eighteen hundred and forty shall be in force in the Tokelau Islands, unless and except so far as it is in force in New Zealand at the commencement of this section.

Section 4A as introduced in 1969 was repealed and replaced in 1996 by new ss 4A and 4B. Section 4B states:

... English common law (including the principles and rules of equity) for

the time being shall be in force in Tokelau, except to the extent—

(a) That it is excluded by any other enactment in force in Tokelau; or

(b) That it is inapplicable to the circumstances of Tokelau.

Section 4A(2) was in turn repealed by the Tokelau Amendment Act 2007. Section 4B now governs the role of the law of England – in a form, not very different in effect from the 1893 provision in the Pacific Order in Council. United Kingdom legislation has no application.

100. Legislation specific to land has taken two forms. Purchase and alienation of land has in various formulae remained the same through the provisions in the Constitution. Succession to non-customary land has undergone some changes over time – from the law of England back to the law of England!²⁶

25. Pacific Order in Council, art 20.
26. A short note specific to land is included in Tony Angelo and Talei Pasikale Tokelau: A History of Government – The constitutional history and legal development of Tokelau (Tokelau Government, Apia, 2008) at 37–38.

Emanuel died intestate in 1961.²⁷ From his death till 1969, the laws in force in 1961 continued in force. In 1969, the New Zealand Administration Act 1952 was extended to Tokelau by regulations made under s 4 of the Tokelau Act 1948.²⁸ The 1952 Act was repealed and replaced by the Administration Act 1969 which came into force in Tokelau on 1 January 1971.²⁹ The 1969 Act applied between 1971 and 2004. The application of the 1969 Act was repealed by the Succession Rules 2004 of the General Fono of Tokelau.

The sources of law for Tokelau in 2022 are the Tokelau Act 1948, regulations made by the Governor-General for Tokelau under the Tokelau Act, the Constitution of Tokelau, General Fono Rules and Village Rules in accordance with r 12 of the Constitution of Tokelau. The absence of provision in the Succession Rules for the distribution of a non-resident’s land rights means that they are governed, by way of default, by s 4B of the Tokelau Act 1948. Therefore since 2004, intestate succession to an interest in the Pereira land is governed by the English common law, subject to the effect of s 8 of the Tokelau Amendment Act 1969 (which removed the status of illegitimacy) and to rules relating to non-discrimination on the grounds of sex and status.³⁰

As at 2022, the Tokelau legislation relevant to succession does not apply to Tokelau land³¹ but does apply to “all immovable property which is not subject to Tokelau custom”.³² The Succession Rules have therefore applied to the Pereira land since 2004. That land may be disposed of by will in accordance with the Succession Rules. In the absence of a will, the land of a person whose place of habitual residence is a village of Tokelau will be distributed by the family (kaiga) in accordance with custom. If the inheritor is not a resident of Tokelau, the “special land”³³ (the Pereira land) is governed by the Common Law of England.³⁴

27. It is unclear whether there was a testamentary document, but it is clear that if there were such a document it has been lost. No such document was admitted to probate. 28 Tokelau (New Zealand Laws) Regulations (SR 1969/109) reg 2.
28. Tokelau (New Zealand Laws) Regulations (SR 1969/109) reg 2.
29. By virtue of the Tokelau Act 1948, s 7.
30. In principle, this would have applied to Tokelau from 1978 when New Zealand ratified the ICCPR.
31. Tokelauan land is governed by custom: Constitution of Tokelau, r 15.
32. Succession Rules 2004 (Tokelau), r 2.
33. Fenua fakapitoa – there is no Tokelauan word for “freehold”. In English,

the phrase used refers to the land as “special”.

34. Constitution of Tokelau, r 15(4). See also the Tokelau Islands Amendment Act 1967, s 18(2): “Any land in the Tokelau Islands which at the commencement of the principal Act was owned in fee simple by any person other than the Crown shall for the purposes of this Part of this Act be deemed to be held in fee simple by grant from the Crown, and accordingly shall be deemed not to be Tokelauan land for the purposes of this Part of this Act.”

In England the law of intestate succession to realty has been dominated by legislation since at least the 19^th century. The Common Law therefore may be expected to have changed little since the 19^th century. The key principles then were that succession to land went to legitimate issue with preference of male over female and older over younger.³⁵

IV Alienation

The alienation of the land in Tokelau is governed by r 15 of the Constitution. In respect of the Pereira land the relevant provision is r 15(4): “All matters relating to the ownership of special land shall be determined by the High Court in accordance with the common law of England.” Rule 15(5) states: “No land or any interest in land shall be transferred to a person who is not a Tokelauan.”³⁶ These rules limit the persons who may acquire an interest in the Pereira land whether by sale, lease or the grant of an easement, gift or exchange. A non-Tokelauan could therefore not inherit the land.

The most obvious possibilities for alienation are that the land or an interest in it pass to a Tokelauan or to the village of Fakaofo. However, the neatest solution to the many issues relating to this land would be its acquisition by the New Zealand government by way of Act. The Government might then vest the land in the village. In order to maintain the Pereira family interest, it could be converted to kaiga land and become subject to custom as all other land in Tokelau. The Act of 1963 was confirmatory of a sale by Emanuel Pereira to the Government of New Zealand. The government could equally have compulsorily acquired the land by statute and provided statutorily for appropriate compensation.

35. Halsbury’s Laws of England (2^nd ed, Butterworth and Co, London, 1933) vol 10 at 610–623; O Hood Phillips A First Book of English Law (6^th ed, Sweet and Maxwell, London, 1970) at 287–288: “A fee simple descended to the lineal descendants according to the principles of primogeniture, which were originally framed to suit military tenure. Male issue took before females, and the eldest male excluded younger males in the same degree; but in the absence of male descendants, all females in the nearest degree took the land as coparceners. A descendant who had already died was not passed over, but was represented by his descendants.”
36. The origins of this specific rule were in s 25 of the Tokelau Islands Amendment Act 1967 which stated: “... it shall not be lawful or competent

for a Tokelauan to make any alienation or disposition of Tokelauan land, or of any interest in Tokelauan land ... other than an alienation or disposition in favour of the Crown ...”. Section 25(6) stated however that nothing “shall affect the power of Tokelauans to dispose of Tokelauan land amongst themselves according to the customs and usages of the Tokelauan inhabitants of the Tokelau islands”. Precursors of these provisions were in the Small Islands Native Lands Regulation 1896 (HCWP) and the Native Lands Ordinance 1917 (WPHC Gazette).

V If Alienated

A Compensation

If alienated, the first question that arises would probably relate to compensation. To provide an answer to that question is complicated by the fact that there is no market for land in Tokelau. There are no market price comparisons to use as the basis of compensation, so the metropolitan standard for valuation is not available.

Methods of valuation in such cases are discussed in a few publications.³⁷ The main ways to assess the 2022 value are likely to be:

• inflation adjustment of the price paid in 1957;³⁸
• capitalisation of the income value of the land (eg rents or produce) to identify the sum required to produce that income³⁹ established, for instance, on the basis of current Tokelau bank interest ra tes; and

– use of a hypothetical development method.⁴⁰

Factors to be taken into consideration are likely demand,⁴¹ position of the site and access, community interests, and the particular purpose for which the land is acquired.

B Distribution

Following valuation there is the matter of distribution. That will require identification of all who have acquired interests in the land after Emanuel. A full genealogy is required for that purpose with consideration of the law’s application at each transfer of an interest and in particular whether the ascendant died testate or intestate.

Given the likely difficulties involved, a possible strategy for dealing with distribution would be to establish a scheme which would include a trust to hold any compensation money for the persons entitled. The terms of the scheme would include a duty on the trustees to advertise widely and appropriately the fact of the alienation of the land and the method for distribution of compensation, and invite any person who claimed

37. Eg Darroch Valuations Niue Land Evaluation Project (Government of Niue, June 2010); Leveki Magafaoa of Fifinehoua, Folikimua and Ikimau of Niue v Cabinet of Ministers of the Government of Niue (1996) Niue LR 65 (CA); AH Angelo “Compulsory Land Acquisition in Small Pacific Communities – Thoughts on Land Valuation” (1995) 23 Melanesian Law Journal 183.
38. £6,477 was paid for 53 acres. At the time of Emanuel’s death, the 29 acres he held on Fenuafala would, on the basis of the price paid by the government, have had a value of £3,544.
39. In 1957 the coconut trees that cover the land would have had a value for copra production. That revenue source is no longer available. The most likely basis would now be the rental value of the land.
40. For explanation of this method, see Angelo, above n 37, at 190.
41. In 2016, the de jure usually resident population of Fakaofo was 484. Demand is therefore not likely to be high given that small number and the low level of employment. For 2015/16 the per capita GDP was US

$6,275.

to be entitled to give notice to the trustees within a designated period of time. The approval of the High Court could then be sought for the scheme and the distribution strategy. Precedents which have dealt with uncertainty as to the identity of beneficiaries at the time of distribution of trust or estate money could indicate an appropriate procedure.⁴² Those precedents suggest that the High Court would authorise distribution after the terms of the scheme presented had been fulfilled and probably with the addition of a requirement for the trust to obtain insurance for the benefit of any who missed out on a share of the compensation on the distribution date but who within a reasonable time satisfactorily prove their inheritance right.

VI Conclusion

The Pereira land of Tokelau provides an intriguing study of the interaction of custom and legislation, of British colonial and New Zealand and Tokelau legislation, and currently of New Zealand and Tokelau legislation and the English Common Law. The interaction of indigenous custom and post-colonial legislation is not unique to Tokelau. It is a live issue in many countries around the world. Sometimes it is dealt with creatively⁴³ and sometimes it remains a matter of ongoing dispute. The Tokelau example discussed here has no parallel in Tokelau – there is no other freehold land. Dealing with the land is complicated by the interaction of custom and common law relating to the land and the blurring of their respective zones of operation.

In recent decades there have been questions raised about rights in the land. This has been particularly so in respect of possible airstrips being established in Tokelau. On one environmental/meteorological survey, the Pereira land in Fenuafala was reported as a good site for an airstrip.⁴⁴

Writing in 2004, Huntsman and Hooper noted:⁴⁵

Peleila willed Fenuafala to his two surviving sons, but from then on Tokelau custom prevailed, so that rights to the islet fairly rapidly became dispersed among a diverse group ... . Fenuafala became, in effect, the property of just another local kāiga.

42. Though not precisely on point, the cases of Trustees Executors & Agency Co Ltd v Margottini [1960] VicRp 66; [1960] VR 417 (SC) at 421 and Re T W Hodgson CIV- 2021-485-155 [2021] NZHC 906 are of assistance and indicative of the interests to be considered. See generally Dal Pont G E and Chalmers D R C Equity and Trusts in Australia and New Zealand (2^nd ed, LBC, Sydney, 2000) at 274–275. The provisions in the Charitable Trusts Act 1957 (NZ) for the establishment of distribution schemes where a trust has failed are also informative.
43. Eg Unaisi Narawa “Australasian Conference Association Ltd v Mere Sela and Ors [2007] FLR 12: A Case Analysis” (2021) 26 CLJP 45.
44. A more recent report regarding airstrips in Tokelau was carried out in 2010: Eagle-i Airline Planning Tokelau Air Services Study – Stage 1 (Auckland, 7 January 2010). Fenuafala is not a preferred location in that report.
45. Huntsman and Hooper Tokelau: A Historical Ethnography, above n 15, at 277.

They commented further⁴⁶ that “it would have been easier to let demography take its course”⁴⁷ rather than for the government to purchase the land in 1956. However, “... politics and principle militated against the natural solution”.⁴⁸ In 2022 this leaves interesting and arcane legal issues. A concern for principle at government level may also in the 21^st century militate against taking the line of least resistance in respect of the land.

Working through the labyrinth of laws and the genealogy will be a task for the future when and if a decision is made which involves alienation of the land.

46. At 339, footnote 4.
47. The degree to which the popular understanding of who has rights in the land corresponds with who are the owners at law is not known.
48. The legal rules of evidence may too resolve any descent issues and coincidentally perhaps identify those with rights in the land as being the same persons as would be identified by custom: Crimes, Procedure and Evidence Rules 2003, r 171.

Appendix 149

Map of Fakaofo

49. Sourced from Toitū Te Whenua Land Information New Zealand. Crown Copyright reserved. Fenuafala is the islet in the north-west corner (left).

Appendix 2

Tokelau Islands Amendment Act 1963 (now the Tokelau Amendment Act 1963), s 2

Appendix 3⁵⁰ Map of Fenuafala Plan of Fenuafala⁵¹

50. Documents sourced from Archives New Zealand, Code R17587173.
51. Circa 1950s. Prior to the passage of the Tokelau Amendment Act 1963.

Plan of Fenuafala showing red/blue coloured outline