Tokelau and NZ relations: A historical perspective and lessons

Realm150 4 Feburary 2017
Tokelau-NZ relationship and history is not well understood by a large cross-section of the New Zealand public. An audience that range from the ordinary Kiwi to academia, including New Zealand politicians, international agencies and perhaps, a number of Tokelauans themselves. This lack of understanding is made more so by the confusion that can exist between what is meant by self-government as compared to what is meant by self-determination.


Tokelau and NZ relations: A historical perspective and lessons

The 9th parliament of Tokelau will begin its three-year electoral cycle on Monday, 6 March 2017. It also draws open the curtain to exciting times as the 21 members, three of them women, prepare for their first General Fono (legislative assembly) that has certain international audiences interested.

A time where they take the helm of the three-atoll group’s journey for self-government and self-determination that in 2017, has its new Public Service Commissioner mechanism in place, will allow them to paddle an approach based on ‘learning by doing’.

They will look at laws, discuss and debate issues shaping economic and social developments, and chisel away at customizing western systems and processes of nation building to fit with their traditional governance framework, founded on the Taupulega (Council of Elders), with advice and support from New Zealand and the United Nations.

This is Tokelau 2017. A non-self-governing territory as listed by the United Nations Special Committee on Decolonization. A territory in which all of its people are New Zealand citizens, and for 92 years, remain the last of New Zealand’s dependent territories to vote on what its political [self-determination] status ought to be.

It is during the course of this journey that a special relationship developed and shared by Tokelau and New Zealand. However, it is a relationship and history that is not well understood by a large cross-section of the New Zealand public. An audience that range from the ordinary Kiwi to academia, well-learned professionals to leaders including New Zealand members of parliament, international agencies and aid donors; and perhaps, a number of Tokelauans themselves.

This lack of understanding is made more so by the confusion that can exist between what is meant by self-government as compared to what is meant by self-determination.

In hindsight, the confusion and lack of understanding is not a surprise when one considers the findings of a 2000 research, ‘Pacific People’s Constitution Report’ by Dame Alison Quentin-Baxter. The research traced two processes that, historically, led firstly, to how Pacific countries – in particular the Cook Islands, Niue, Samoa, and Tokelau – came to be part of New Zealand’s territorial jurisdiction.

And secondly how they, “under New Zealand jurisdiction came to be seen as political and economic liabilities, and were encouraged to accede to independence [self-determination]…”

Wrote Dame Quentin-Baxter: “Those histories are not always appreciated, and there is sometimes a tendency to think that the island populations have somehow insinuated themselves into New Zealand without much regard either to invitations or to the duties of guests.

“In fact, New Zealand enthusiastically pursued an expansionist policy within the South Pacific a century ago. It energetically sought the encompassing of the territories and populations by New Zealand governance. It actively recruited immigrant island labour as required by the New Zealand economy, and repeatedly assured both the Pacific people and the world of its good intentions and of the benefits which would accrue to the populations concerned from adherence to the New Zealand State.”

New Zealand’s empire building aspirations, according to Dame Quentin-Baxter, may have started with Governor George Grey first term in 1845; and turned to reality by Premier Richard Seddon some 50-years later.

In May 1900, “Seddon and a party of family, friends, and officials embarked on the Government despatch-boat S.S. Tutanekai for a voyage to Tonga, Fiji, Niue, and the Cook Islands.

“The Premier’s overtures to leaders during the voyage indicate the clear purpose of soliciting agreement to New Zealand annexation. The voyage was successful in respect of the Cook Islands and Niue,” wrote Dame Quentin-Baxter.

Later, she added, “It is important that the circumstances of New Zealand’s acquisition and later relinquishment of control over its former colonial territories in the South Pacific be understood, at least in broad terms, by New Zealand citizens and policy-makers.

“These circumstances are not forgotten in the Islands concerned, and future good relations and respect for New Zealand influence depend on the historical background being taken into account.”

It is this expansionist movement in the late 19th century that led New Zealand to take over the administration of Tokelau in 1925, after the four atolls became a British protectorate from 1889.

The empire movement remained a fierce commitment for the New Zealand government that when the allies won the First World War, Prime Minister Massey aggressively pushed New Zealand’s case for retaining jurisdiction over Western Samoa, which it claimed for Britain when the war broke out in 1914.

“Following the war, it was clear that there would be no return to German control. Both the Australian and New Zealand Prime Ministers, Hughes and Massey, were determined that the German territories should accrue to their respective states as visible compensation for the sacrifices endured in the war. Not even [US] President Wilson’s idealistic calls at the peace conference in Versailles for an end to colonialism and respect for a newly-coined term self-determination, could shake the determination of the Australasian leaders on this matter,” according to the British Cabinet Secretary, Hankey at the time.

In the end a compromise was reached, which became known as the ‘C Mandate’ wrote Dame Quentin-Baxter. It relaxed the Wilsonian insistence on self-determination by creating a special category of Mandate recognised in Article 22(6) of the Covenant of the League of Nations as follows:

“There are territories, such as…certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilization….can best be administered under the laws of the Mandatory as integral portions of its territory…”

In accordance with this formula, a League of Nations Mandate was conferred on New Zealand, paving the way for empowering the New Zealand Parliament “to make laws for the peace order and good government of the Territory of Western Samoa”. [On 11 March 1920 the Western Samoa Order in Council was made ‘At the Court at Buckingham Palace ‘ pursuant to the Foreign Jurisdiction Act 1890 (UK). See, New Zealand Gazette (1920) Vol.II at page 1819.]

The result was the Samoa Act 1921, which provided the constitutional framework for the legal system of Western Samoa until independence in 1962.

However, by the end of the Second World War, Prime Minister Peter Fraser as Chairman of the UN Trusteeship Committee played a significant role in developing those parts of the UN Charter that look into establishing the principle of self-determination for trust territories and non-self-governing territories, according to Mr Lindsay Watt, a senior New Zealand diplomat with extensive experience in Pacific Affairs (he spent 10 years, 1993 to 2003, as Administrator of Tokelau).

For Tokelau, it was on 1 January 1949 that its four atolls, by effect of the Tokelau Act 1948 (NZ), were declared to form part of New Zealand. A constitutional status that remains to this day and also led to the establishment of a separate Tokelau Office in Apia and the appointment of the first Tokelau District Officer who perished in the fateful voyage of the Joyita in 1955.

In 1967 The Tokelau Act was amended to allow the establishment of a Tokelau Public Service with its headquarters in Apia but operated by New Zealand State Services Commission in Wellington. In 1975 responsibility for Tokelau was transferred from the Department of Maori and Island Affairs to the Ministry of Foreign Affairs.

During these times, New Zealand – forced by a mixture of United Nations pressure and democratic idealism – found itself in the vanguard as a decoloniser in the South Pacific through the 1960’s and into the next decade’.

However, behind the scenes, New Zealand’s decolonization successes in respect of Samoa, the Cook Islands and Niue “owed more to the skill of wise and sympathetic New Zealand constitutional advisers than to the traditions and informed cultural preferences of the people of those territories,” wrote Dame Quentin-Baxter.

She surmised that the imperative of that period was deliberate speed, leaving it to subsequent generations to redesign the model as preference and circumstance required.

Furthermore, there were tensions between the goal of complete executive and legislative autonomy for the island states and the need for continuing New Zealand economic and other support. It caused a number of commentators to question whether the Cook Islands/Niue model ought automatically to be applied to New Zealand’s last territory.

For Tokelau’s Constitutional Advisor, Professor Tony Angelo, he called for a different approach.

An approach in which the “Tokelauan voice is more prominent”.

In particular, the composition, role and powers of the central agency – the General Fono – is to be determined by Tokelauan processes.

This is reflected in the Tokelau Amendment Act 1996 stipulating the General Fono as the primary domestic legislator for Tokelau, giving it the power to make rules for peace, order and good government in Tokelau.

“It is now… almost unthinkable that the New Zealand Government would use its legal rights to override a General Fono decision on a Tokelau domestic matter,” Professor Angelo commented in 1999. [‘Establishing a Nation – Kikilaga Nenefu’, Victoria University of Wellington Law Review, Vol. 30 (1999), p.85]

That has been the approach by both New Zealand and Tokelau since the early 1990s, a slow but steady process was put in place to devolve the powers of governance from Wellington to the seat of power in Tokelau – the Taupulega.

This is the self-government process for Tokelau (as compared to self-determination).

Beginning in 1993, the Council of Faipule was established as a Cabinet-style structure, to operate when Tokelau’s General Fono (legislative assembly) is not in session.

In 1996, the General Fono was empowered by the Tokelau Amendment Act to make rules for peace, order and good government in Tokelau.

In 1998, a new project called The Modern House of Tokelau was launched with the theme: Returning to the Village.

“It was [Tokelau’s] reaction against the imposition of a modified Westminster model of centralised government that was gradually encroaching into traditional nuku (atoll) governance,” according to a paper by Kelihiano Kalolo.

Kelihiano Kalolo in discussions with Ulu-o-Tokelau elect, Siopili Perez (L) upon arrival in Nukunonu, 3 March 2017.

This project revived the concept of the elder leader and Taupulega as the main authority in the governance of Tokelau. It led to electoral reforms in January 1999 where the General Fono’s 21 delegates were elected by universal suffrage for a term of three years. The Fono would now include the Faipule (customary leader) and Pulenuku (village mayor) of each of Tokelau’s three atolls.

In 2003, the Council of Faipule was extended into the Council for the Ongoing Government of Tokelau (OCOG) and composed of the three Faipule and three Pulenuku. The chair of the Council, the Ulu-o-Tokelau or titular leader, rotates between Faipule from the three atolls with each Faipule serving for one year as the Ulu o Tokelau.

But in the same year, the Modern House project collapsed, with devolution partially implemented. First, Public Works Department was relocated from Apia to Tokelau and placed under Taupulega control. The Departments of Education, Health, Economic Development, National Resources and Environment followed, while the departments of Finance, Transport, Support Services and the OCOG Office remained in Apia.
Devolution turned out to be problematic.

It was also during this time that Tokelau’s political leaders and New Zealand’s Ministry of Foreign Affairs and Trade began preparations for Tokelau’s self-determination. It failed. The two referenda in 2006 and 2007 failed to reach the required 2/3rd majority.

“There was no single explanation as to why the referenda failed but there were theories and speculation. But the oft stated reasons for voting ‘no’ include confusion, misunderstanding and disunity, and reflect the lack of consultation, the near absence of educational explanation and the differing interests of certain elected leaders,” wrote Kalolo.

In 2011 and 2012, the Taupulega and the Council for the Ongoing Government expressed concern about the quality of services provided by the Village and National Public Servants.

A Devolution Review Team was appointed by the General Fono. And the Ministry of Foreign Affairs and Trade and the Ongoing Government of Tokelau responded by proposing changes to the Tokelau Public Service Management, as well as Tokelau’s central political structure in a paper titled: ‘Peleni mo te Pulepulega o na Huiga i Tokelau’ 2014-2015 (‘Plan for the Management of the Changes in Tokelau’).

The three Taupulega rejected the report’s recommendations at the 2015 General Fono.

In effect their rejection was indignation at the non-appearance of the Devolution Review Team according to Kalolo, and summed up by three common responses from Taupulega members and elders:
  • Big changes like these should begin from within not from outside. Tokelau is unique and is not proper for other people to come and impose any changes forcefully.
  • The General Fono will ensure that the changes are by the people of Tokelau….
  • The villages are concerned that the changes are proposed by outsiders.
Kalolo stated: “There are issues that need to be addressed and the Planning Team could learn from the challenges and mistakes of the past and in more recent changes.

“Administering from the distance will continues to be a barrier as it separates the administered from the administrator, the village and the malo (government) and the indigenous insider and the expert visitor.”

In relation to the Public Service, “Ever since 1981 the General Fono and Taupulega have requested, even demanded, that the Public Service be relocated from its headquarters in Apia to Tokelau, but some key departments are still in Apia. The highest authority in Tokelau is village-based and correspondingly this is where all the key advisers and managers should be based.”

Wrote Kalolo, “History reveals that any changes that were not gradual or systematic are viewed by the Taupulega as a threat to their authority.
“Tokelau had actually been ‘self-governing’ for years and in the Modern House project the Taupulega have been statutorily declared the Authority, and the Foundation of Tokelau.”

However, projects like the Modern House, and the two referenda failed because of personal agendas, differing interests, in combination with unresolved misunderstandings and confusion.

But the perseverance for a system of governance based on Tokelau’s traditional authority of the Taupulega will continue as it is the foundation, Tokelau believes will provide “Checks and balances [that] would prevent elitism and unbridled power in the future, the more reasons why the roles of the Taupulega must be clearly spelled out,” concluded Kalolo.

It is around these historical developments and unique way of life of the Tokelauan people that the first sitting of Tokelau’s 9th parliament takes place.

It is also the background on which the new Administrator of Tokelau, HE David Nicholson will need to note in order to navigate the relationship and obligations between these two countries of the Realm of New Zealand.

A relationship that notes for Tokelau, in its unique context, practice of and experience in; self-government is important. And even more so when the governance model is set in Tokelau’s culture, and not imported from abroad. If done confidently, self-government can lead to self-determination.

Building confidence in self-government stands to be the best preparation for self-determination, as and when the decision to take that step is made. It is at that later stage, the United Nations as well as New Zealand have a direct interest.

It means as Mr Nicholson steps into this new space, fertile with aspirations and expectations, it may pay to revisit and reflect on some of the lessons from history so that the first step is confidently made moving forward. In particular, the self-determination comments by former Administrator of Tokelau, Lindsay Watt in 1995 when New Zealand, as an International Citizen, celebrated 50 years of United Nations membership.

“Both New Zealand’s mixed but less than satisfactory pre-war record, and the changed international environment, demanded more coherent and consistent policies in the post-war period…New Zealand in any event wanted to be seen to be upholding its international obligations, and certainly had no wish to be arraigned before world opinion indefinitely as a colonial power.”

Tokelau is a non-self-governing territory of New Zealand. It is located in the Pacific Ocean north of Samoa and south of the Equator (9 00 S, 172 00 W).

It is made up of three small atolls separated from each other by high seas. The total land area is approximately 12 km². The total sea area of the exclusive economic zone is approximately 518,000 km². The height above sea level is between 3-5 metres, the maximum width is 200 metres. Tokelau is therefore particularly vulnerable to natural disasters.

The people of Tokelau are New Zealand citizens.

The population of 1499 (2016 census) is spread approximately equally among the three atolls (Atafu (541); Fakaofo (506) and Nukunonu (452). The traditional lifestyle was subsistence but Tokelau has moved to a cash economy. The only natural resource of any current economic significance is the fishery of the exclusive economic zone.

Tokelau has no main town; each island has its own administrative centre, hospital, school and basic infrastructure. There are no airstrips or harbours. Access is only by ship; through the Port of Apia, Samoa.

There are approximately 7000 Tokelauans living in New Zealand, and smaller communities live in Australia, Samoa, and Hawaii.