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General Fono Decisions October 2004

FONO DECISIONS

GENERAL FONO

22 October 2004

Atafu

TOKELAU

TABLE OF CONTENTS

 

Issue

Page

1

Report of the Special Committee on the Constitution

  

2

Second draft of the Constitution

  

3

Public Service Manual

  

4

Special Referendum for Self-Determination

  

5

Report of the Delegation to the 9th SPA Festival, July 2004 in Palau

  

6

Review of the Tokelau Telecommunication Rules (TeleTok)

  

7

Seawall Project

  

8

Acting Faipule

  

9

Ulu o Tokelau

  

10

Water Catchment Project

  

11

Deferred Maintenance Project

  

12

Department of Education Programme

  

13

Heath Department Issues

  

14

Report of the Committee for the National Anthem, Flag and Symbol

  

15

Health for Women

  

16

Relocation of Apia office to Tokelau

  

17

Dates for the General Fono 2005

  

18

NZAID and AUSAID Study Awards

  

 

Resolution:

1.1 The General Fono:

The Chairperson and Deputy Chairperson of the General Fono shall be designated each year by the Taupulega of the nuku of the Ulu for that calendar year, from among members of that village other than the Faipule and Pulenuku.

The Chairperson and Deputy Chairperson shall be appointed by the General Fono, in accordance with the designation of the Taupulega, on such conditions as the General Fono thinks fit.

 

Resolution:

2.1 The General Fono:

 

Resolution:

3.1 The General Fono:

 

Resolution:

4.1 The General Fono:

 

Resolution:

5.1 The General Fono:

 

Resolution:

6.1 The General Fono:

 

Resolution:

7.1 The General Fono:

 

Resolution:

8.1 The General Fono:

agreed that an Acting Faipule shall have full ministerial responsibilities of a Faipule who is absent from Tokelau for personal reasons.

 

Resolution:

9.1 The General Fono:

 

Resolution:

10.1 The General Fono:

 

Resolution:

11.1 The General Fono:

 

Resolution:

12.1 The General Fono:

 

Resolution:

13.1 The General Fono:

 

Resolution:

14.1 The General Fono:

 

Resolution:

15.1 The General Fono:

 

Resolution:

16.1 The General Fono:

 

Resolution:

17.1 The General Fono:

 

Resolution:

18.1 The General Fono:

  1. MANAGEMENT OF STUDY AWARDS FUNDED BY NZAID AND AUSAID
    1. agreed for the General Manager, Apia to prepare a report for the next General Fono.

 

 

Signed: ______________________________

Maka Toloa, Chairperson

 

 

Date: ............................................................

APPENDIX 1

Custom as a source of law

  1. Where in a case before the High Court, any party to the proceedings or the Court raises a matter of Tokelau custom, the Court shall seek the advice of the General Fono on that question and shall adjourn its proceedings for 30 days or the earlier receipt of advice from the General Fono.
  2. Where the High Court refers a matter to the General Fono it shall-
    1. briefly state the facts relevant to the matter;
    2. enquire whether there is Tokelau custom on the matter; and
    3. if there is Tokelau custom on the matter, request a description from the General Fono of the custom.
  3. On receipt of a reference under this rule, the General Fono shall refer the matter to each Taupulega and shall, on the basis of the Taupulega responses, tender a formal response to the High Court.
  4. Where within 30 days from the date of the request the General Fono gives information on a Tokelau custom, the Court shall determine issues concerning the matter of custom by reference to that information.
  5. Where within 30 days from the date of the request the General Fono does not respond or responds that there is no relevant Tokelau custom, the High Court shall decide the matter on the basis that custom is not applicable.

APPENDIX 2: DRAFT CONSTITUTION OF TOKELAU

Explanatory Note

This compilation has been provided to give a general indication of what the Tokelau Constitution might look like in the future. Current proposals have been taken into account. Much work remains to be done in respect of the order and detail of topics, and in respect of the language of presentation.

Ordinary type indicates what is already Tokelau law. Italics indicate matters that can only become law at the time of self-determination or when New Zealand changes its law.

The present Standing Orders of the General Fono are here divided into matters of constitutional importance (in this Draft) and matters of procedure (presented in the Schedule to this Draft).

PREAMBLE

Foundation

Tokelau is permanently founded on God. This foundation is made manifest in the villages and when the people cooperate and live together peacefully and happily.

Government

It is important to us that we be free to make our own decisions. The relationship with New Zealand is precious and we want to retain the warmth of that relationship by the making of decisions for the future of Tokelau jointly and in a spirit of positive cooperation with New Zealand. We value the voice of all our people in all the decisions we make. We are independent in the use of our resources.

Culture

In the conduct of our daily life we place our culture and customs first and continue to value them. The wishes of our people shall be reflected in our way of life.

Nation

The family is the basis of the nation and the positive approach we use for the raising of our families shall be the basis for making national decisions.

Beliefs

We the people of Tokelau believe:

In the Tokelau way, which includes a commitment to a life of interdependence where the less fortunate are cared for, the inati system of sharing resources, equal opportunity to participate in the life of the community, and the right to live happily.

That all undertakings in Tokelau will be planned to conform to the expressed wishes of the people, and will be performed to achieve the fulfilment of those wishes.

In the importance of good health, education and standard of living, respect for the law, accepting the changes that will benefit Tokelau, respect for the right of all individuals, non-discrimination, and trustworthy leaders.

That our community groups will have clear aims and constitutions, and will have a role in the development of Tokelau.

That our education must be organised to respond to the needs and wishes of the people, and shall give importance to Tokelau knowledge as well as to new knowledge that benefits Tokelau.

THEREFORE we, the people of Tokelau, join together for the protection of our families and culture, for the protection of the independence of the village in the issues that affect them, and for these purposes have now established these principles for the Constitution of Tokelau.

[(1) This Constitution is the supreme law of Tokelau and all other laws shall be interpreted so that they are consistent with the Constitution. Laws inconsistent with the Constitution are invalid.]

[(2) In the interpretation of this Constitution and other laws, the principles set out in the Preamble shall be applied.]

(3) The sources of law are, in descending order of priority, this Constitution, General Fono Rules, Village Rules, and the custom of Tokelau.

(4) Where no source is available, the court shall decide according to the rule which it would make if it had to act as the General Fono.

(5) The Tokelau legislation which is in force on the date which this Constitution comes into effect shall be deemed to be rules of the General Fono.

Every document required to be signed for Tokelau as a result of a policy decision of the General Fono may be signed on behalf of Tokelau by the three Faipule, or the Ulu, as they decide.

The Courts of Tokelau are-

[To be decided by the General Fono consequential on the repeal of the current New Zealand law]

SCHEDULE

Standing Orders of the General Fono

  1. Tokelau

    Tokelau is the atolls of, Atafu, Nukunonu, Fakaofo, and Olohega, and the associated territorial sea and internal waters.

  2. Head of State
    1. The Head of State is the symbol of the unity of Tokelau, and of the special relationship between Tokelau and New Zealand.
    2. The Head of State is the same as that for New Zealand.
  3. Sources of Law
  4. General Fono
    1. The General Fono has the purpose of managing the following matters in the interests of the nation:
      1. National budget appropriation and national financial management;
      2. National public service;
      3. The relationship of Tokelau with the Government of New Zealand and the United Nations;
      4. External relations matters referred to Tokelau by the Government of New Zealand;
      5. National integrity;
      6. National resources;
      7. National transport;
      8. Telecommunications;
      9. Postal services;
      10. Policy and structures for national health and education;
      11. Tokelau currency for coin collectors; and
      12. Any matters related to any of these items and any matter unanimously referred by the Taupulega to the General Fono for its consideration and decision.
      1. There shall be two delegates from each nuku, plus one delegate from each nuku for every 100 inhabitants of that nuku, rounded to the nearest 100 inhabitants. The population count shall be based on a census taken for the purpose in December 2004 and every third year thereafter. The criteria for the census shall be decided by the Council for the Ongoing Government.
      2. The General Fono encourages the inclusion of women as members of the nuku delegations.
      3. The members shall be designated by each nuku in accordance with the rules established by that nuku.
      4. The term of office of members of the General Fono shall coincide with that of Faipule.
      5. Where a need arises to replace a member during the course of the three-year term, the replacement shall be made by the nuku in accordance with the rules established by that nuku.
  5. Chairperson of the General Fono
    1. The Chairperson and Deputy Chairperson shall be designated each year by the Taupulega of the nuku of the Ulu for that calendar year, from among members of that village other than the Faipule and Pulenuku.
    2. The Chairperson and Deputy Chairperson shall be appointed by the General Fono, in accordance with the designation of the Taupulega, on such conditions as the General Fono thinks fit.
    3. If the person who chairs the General Fono is a General Fono delegate, the nuku of that person shall designate a substitute delegate.
  6. Meetings of the General Fono
    1. Meetings of the General Fono shall be held where possible at least twice a year.
    2. The Council of the Ongoing Government shall fix the date for each meeting of the General Fono.
    3. The General Fono shall meet at such place as the Council of the Ongoing Government decides.
    4. A notice shall be posted by the Executive Officer in the Executive Office of each nuku specifying the date and place of each meeting of the General Fono.
    5. The Council of the Ongoing Government shall give as much notice as possible in each nuku and to the Administrator of the date, place, and business of each meeting of the General Fono.
    6. No decision shall be taken by the General Fono unless at least 12 members are present, including no fewer than four members from each nuku.
      1. All matters coming before the General Fono for a decision shall, where a vote is to be taken, be decided by a majority of the votes cast by members of the General Fono.
      2. Voting shall be by voice, secret ballot, or show of hands, as the Chairperson decides.
      3. If a matter receives an equal number of votes for and against, the matter has not been approved.
      1. Subject to subparagraph (iii), meetings of the General Fono shall be open to members of the public.
      2. The Chairperson may allow any person who is not a member of the General Fono to speak on any matter under consideration at a meeting of the General Fono.
      3. The Chairperson may-
        1. call on any person present at a meeting of the General Fono to withdraw at any time if the business of the General Fono should properly be continued with the public excluded; or
        2. exclude from a meeting of the General Fono any person who is behaving in a disorderly manner; or
        3. call on any police officer to eject from a meeting of the General Fono any person who refuses to withdraw following the request of the Chairperson.
      4. Subject to these rules, the General Fono shall conduct its business and regulate its proceedings in such manner as it thinks fit and in accordance with its Standing Orders.
  7. Council of the Ongoing Government
    1. When the General Fono is not in session, business of the General Fono shall be referred to the Council of the Ongoing Government, which shall, after such consultation as it thinks fit, take the decisions necessary for the effective administration of Tokelau.
    2. All such decisions shall be reported to the General Fono at its next meeting.
    3. It is the duty of the Council to-
      1. conduct the ongoing government of Tokelau in accordance with General Fono decisions;
      2. implement General Fono decisions, both externally and within Tokelau;
      3. monitor expenditure by villages of project money granted by the General Fono;
      4. respond to national emergencies;
      5. follow General Fono decisions unless there is a necessity to do otherwise, and then only after consultation with the members of the General Fono.
    4. The Council of the Ongoing Government shall include the three Faipule and the three Pulenuku, and portfolios shall be allocated to each member of the Council.
  8. Signing authority
  9. Law making [with effect from 1 July 2005]
    10. >
    1. Draft rules may be introduced to the General Fono by any member at any time.
    2. The General Fono shall refer draft rules to the Taupulega for consideration if it had not been previously done so.
    3. Draft rules to be considered by the respective Taupulega and submit any comments before the next session of the General Fono.
    4. The General Fono shall consider any comment or notice received from the Taupulega and may approve, amend, or reject the draft rules as it sees fit.
    5. In case of urgency, or where the General Fono considers it necessary, the General Fono may approve rules that have not been considered in draft by the Taupulega.
    6. Rules made without prior consideration by the Taupulega shall expire on the first day of the next General Fono session if one or more Taupulega disapproves of the Rules and gives written notice of that disapproval to the Council for the Ongoing Government within one month from the date of approval by the General Fono.
    7. The expiry of the Rules should be publicly notified in the nuku by the Council for the Ongoing Government.
  11. Courts of Tokelau
    1. the Commissioner's Court and Appeal Committee of each village;
    2. the High Court;
    3. the Court of Appeal.
      1. Commissioners
      2. Custom as a source of law
        1. Where in a case before the High Court, any party to the proceedings or the Court raises a matter of Tokelau custom, the Court shall seek the advice of the General Fono on that question and shall adjourn its proceedings for 30 days or the earlier receipt of advice from the General Fono.
        2. Where the High Court refers a matter to the General Fono it shall-
          1. briefly state the facts relevant to the matter;
          2. enquire whether there is Tokelau custom on the matter; and
          3. if there is Tokelau custom on the matter, request a description from the General Fono of the custom.
        3. On receipt of a reference under this rule, the General Fono shall refer the matter to each Taupulega and shall, on the basis of the Taupulega responses, tender a formal response to the High Court.
        4. Where within 30 days from the date of the request the General Fono gives information on a Tokelau custom, the Court shall determine issues concerning the matter of custom by reference to that information.
        5. Where within 30 days from the date of the request the General Fono does not respond or responds that there is no relevant Tokelau custom, the High Court shall decide the matter on the basis that custom is not applicable.
      3. Public Service
        4. >
        1. National Employer
          1. The Employer for the National Public Service is the Tokelau Administration.
          2. The Council for the Ongoing Government shall appoint a General Manager Apia and Directors who shall be responsible for the appointment, discipline, and termination of employment of members of the National Public Service and for issuing general instructions on standards of behaviour expected of employees.
          3. The General Manager Apia shall coordinate the activities of Directors and shall monitor and report to the Council for the Ongoing Government on these activities and the performance of Directors.
          4. The Council for the Ongoing Government is responsible for discipline and termination of employment of the General Manager Apia and Directors and for the final decision of any appeal against a decision of the General Manager Apia or of a Director.
          5. The General Manager Apia shall be appointed for such term (not exceeding 3 years) and on such conditions as the General Fono thinks fit.
          6. The General Manager Apia and each Director may delegate authority in writing to any person in the public service.
          7. The General Manager Apia and each Director shall before 1 April each year, and at any time requested in writing by the Faipule responsible for public service matters, report on the activities of the National Public Service for which that person is responsible.
        2. Employment in the National Public Service
          1. No person shall be employed in the National Public Service unless appointed to that employment under these Rules.
          2. Paragraph (1) does not apply to the appointments of members of the General Fono, the Chairperson of the General Fono, Law Commissioners, or to appointments made by a village.
          3. Appointments to the National Public Service shall be made on the basis of merit.
          4. The Council for the Ongoing Government, the General Manager Apia and Directors may consult and take advice about public service matters, but shall at all times respect the privacy and personal information of individuals, and all decisions shall be taken in the exercise of independent judgment.
        3. Employment Conditions
          1. Decisions on the range of positions in the National Public Service and the Village Public Services, and the salary levels and other payments within these services shall be established by the General Fono and clearly stated in the Tokelau Employment Manual.
          2. Every person employed in the National Public Service or in the public service of a village shall, unless otherwise expressly provided in the employment contract, be employed in accordance with the conditions set out in the Tokelau Public Service Manual and with any instructions issued by the employer
          3. Amendment to the Tokelau Public Service Manual shall be by resolution of the General Fono.
      5. Finance and Audit
        1. All Tokelau public money shall be invested by the General Fono in such places and on such terms as the General Fono thinks fit.
        2. No payment of Tokelau public money shall be valid unless authorised in writing by the relevant Minister or by the signature of a person authorised for the purpose by the Minister.
        3. The Audit Office of New Zealand shall be the auditor of accounts containing Tokelau public money.
      6. Land [approved in principle by the General Fono, Nov 2003]
        1. All land is under the control of the Taupulega.
        2. No land shall be transferred to a person who is not a Tokelauan.
        3. No land shall be transferred without the approval of the Taupulega.
        4. Land which does not belong to a family or a special land, is communal land.
        5. The National Government does not own land in Tokelau. If land is to be used for a national purpose, this is to be done by agreement between the Government of Tokelau and the Taupulega.
        6. If the Government requires land but the Taupulega does not get the consent of the landowners, the Taupulega may use the land for the public purpose and the landowners shall be entitled to a prompt and appropriate compensation from the Taupulega.
      7. Human Rights
        1. Individual human rights for all people in Tokelau are those stated in the Universal Declaration of Human Rights, and reflected in the International Covenant on Civil and Political Rights.
        2. The rights of individuals in Tokelau shall be exercised having proper regard to the rights of other individuals and to the community to which the individual belongs.
        3. If a person thinks that one of their human rights provided by the Human Rights Rules has been denied or may be denied, that person may apply to the Council of the Ongoing Government for protection of that right, and if the Council of Ongoing Government agrees with that complaint, it may make any order it thinks appropriate for the protection of that right.
      8. Emergencies
        1. The Ulu o Tokelau shall advise the outside world if Tokelau is affected by an emergency.
        2. Where there is a serious threat to the environment of Tokelau, or where an emergency or sudden disaster endangers life or property on an island of Tokelau, the Faipule in consultation with the Taupulega, as is appropriate in the circumstances, may notwithstanding any other rule give such orders and take such actions affecting persons and property as are reasonably necessary to deal with the situation.
      9. Amendments to the Constitution
        1. This Constitution may be amended only by a Resolution approved by the General Fono.
        2. A proposal to amend this Constitution-
          1. shall be presented to the General Fono and then referred by the General Fono to each Taupulega for their consideration; and
          2. shall not be approved unless each Taupulega, has before the vote in the General Fono, advised the General Fono in writing that it supports the proposal.
    1. Chairperson
      1. The Chairperson of the General Fono shall be responsible for the good conduct of the meetings of the General Fono.
      2. The Chairperson shall consult with the Council of the Ongoing Government about the agenda for each meeting of the General Fono and shall ensure that the matters on the agenda are addressed by the General Fono.
      3. The Chairperson shall not speak in relation to any agenda item and shall have no vote on any General Fono resolution.
    2. Conduct of meetings
      1. The Chairperson shall introduce the matters to be discussed or decided at a meeting of the General Fono.
      2. A member of who wishes to speak at a meeting of the General Fono shall do so only with the approval of the Chairperson.
    3. Secretary
      1. The General Fono shall designate a person to act as its secretary.
      2. The Secretary shall ensure that minutes of every meeting of the General Fono are kept, and that they are, after consultation with the Chairperson of the General Fono, distributed to each Taupulega as soon as possible after the meeting of the General Fono.
      3. The minutes shall include the name of every person present at the meeting of the General Fono as a member.
      4. The decisions of a meeting of the General Fono shall be written and confirmed by the General Fono at the end of that meeting.
      5. The signature of the Chairperson shall be evidence of that confirmation.
    4. Committees
      1. There shall be such committees of the General Fono as the General Fono may appoint
      2. A committee shall consist of such person as the General Fono determines.
      3. A committee shall consider such matters as are referred to it by the General Fono, and shall report on those matters to the General Fono.
      4. The General Fono may give such directions as it thinks fit with respect to the procedure to be followed at meetings of a committee, and in particular may give directions with respect to the convening of meetings of the committee, the number of members of the committee which shall constitute a quorum, and the manner in which questions arising at a meeting of the committee shall be decided.
    5. Change of rules

      These rules may be changed by decision of the General Fono.
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About Tokelau


Tokelau consists of three atolls located about 483 km north of Western Samoa. Atafu is the northernmost atoll, 92 km north of Nukunonu, which in turn lies 64 km north of Fakaofo.

Each atoll consist of a number of reef-bound islets (motu) encircling a lagoon. The islets vary in size from 90 m to 6 km in length and from a few metres to 200 metres in width. The largest atoll is Nukunonu at 4.7 sq km. Fakaofo and Atafu are 4 sq km and 3.5 sq km respectively. From Atafu in the north to Fakaofo in the south, the group extends for just under 200 km. The atolls are three to five metres above sea level.

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