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Last Updated: 22 August 2023
Out and About in the Realm
129
Out and about in the Realm
AH Angelo* and Janielee Avia**
The Realm of New Zealand is an intriguing legal construct.1 It is a grouping of three states, a colony and a dependency, with the Head of State of the three states the same individual as the sovereign of the Realm.2 It has a prerogative instrument as its founding document. 3 Unlike some founding documents, these Letters Patent can be superseded in each country of the Realm by enactment in that country.4This article is stimulated by the change of the Vice Regent for New Zealand. Its purpose is to present a brief survey of the Realm and comment on some matters of recent legal interest. The survey begins with noting the appointment of a new Governor-General for the Realm, notes the development of Te Reo in the state of New Zealand and the release of the He Puapua report (which presages New Zealand Government action in respect of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)), then progresses through Tokelau, the Cook Islands, Niue and the Ross Dependency. The main focus of the paper is on Tokelau and the recent Tokelau litigation in the High Court and Court of Appeal of New Zealand.
II New Zealand
Dame Cindy Kiro was sworn in as the 22nd Governor-General of New Zealand at Parliament buildings in Wellington on 21 October 2021. Under the Letters Patent, she will perform the functions set out in cls 3 and 4 of the Letters Patent and in the laws of the individual countries of the Realm. Changes were made to the Letters Patent before the taking of
* Professor Emeritus, Victoria University of Wellington Faculty of Law.
** BA/LLB; Research Assistant, Victoria University of Wellington.
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office by Sir Anand Satyanand,5 but there was no change to the formal rules before the appointment of Dame Cindy Kiro.
Her appointment came at a time when He Puapua6 had been given publicity and the 2021 celebration of Te Wiki o Te Reo Māori was buoyed by positive statistics in relation to knowledge of Te Reo.7
III Tokelau8
A UNDRIP
The publication of He Puapua raises the interesting question whether a similar exercise has been or will be undertaken for the other indigenous community of New Zealand – that in Tokelau.9 The UN Declaration on the Rights of Indigenous Peoples was endorsed by New Zealand in 2010. The Preamble to UNDRIP indicates that there are many matters potentially of significance to the community in Tokelau: the right to be different (Preamble, para 2); the right to development in accordance with their own needs and interests (Preamble, para 6); the right to practise and revitalise cultural traditions and customs (art 11), the right to the lands, territories and resources they have traditionally owned/occupied/ acquired (art 26); no right to engage in an activity or perform an act contrary to the Charter of the UN, or undermine the territorial integrity of sovereign states (art 46); the right to self-determination (arts 3–4); and the emphasis on international human rights (art 40).10The aspirations set out in the Preamble are in most cases (as indicated above) given substantive articulation in the articles of the Declaration. However, as arts 34 and 46(3) show, full achievement of the aspirations
Introducing Sixteen Gems (Intersentia, Cambridge, 2021) 329.
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are restrictively conditioned: Article 34 requires the promotion of the institutional structures in accordance with international human rights standards; article 46(3) states “the provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”. Under arts 11 and 19, states are expected to provide effective mechanisms for indigenous peoples to practise and revitalise their cultural traditions, and to consult and cooperate with indigenous communities to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
In the case of Tokelau, land rights and the protection of the territorial integrity of sovereign states raise interesting historical questions. The 19th century sale of an islet of Fakaofo to a Portuguese trader was disputed by the elders of Tokelau in the early 20th century. The colonial government at the time accepted that title was clearly held by the trader.11 Part of the islet has since been acquired by the government and vested in the village.12 Descendants of the Portuguese trader are now, as predicted,13 integral members of the village community and, while regularly restating their freehold interests, typically act as customary owners and not as fee simple owners. It may be argued that the Declaration will not enable the village to retake the land. At the international level, the island of Olohega (Swains) has been part of the US territory of American Samoa officially since at least 3 September 1983.14 Article 46 of UNDRIP would not sanction the reintegration of that island into the traditional Tokelau.15
exercise in law translation” (1987) 17(2) VUWLR 125–140.
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B The Tokelau cases16
Leilua-Lei-Sam v Council for the Ongoing Government of Tokelau was the first judgment of the New Zealand High Court as the High Court for Tokelau. Process began in the High Court Wellington Registry with a request for procedural and service directions. The High Court judgment addressed both those matters and decided that, in accordance with s 3 of the Tokelau Amendment Act 1986, r 1.4(1) of the High Court Rules (NZ) applied in the absence of relevant provision in the Tokelau Crimes, Procedure and Evidence Rules. It was stated that the Tokelau:17
...rules of civil procedure, as issued by the General Fono, apply in the present proceeding, and where they may be silent on relevant matters which are otherwise covered by the New Zealand High Court Rules, those latter rules apply.
The judgment alluded to the fact that r 87 of the Crimes, Procedure and Evidence Rules of Tokelau stated as a matter of principle that “unless the court otherwise directs [every civil case] be decided on the papers”18 and also that r 143 of the same Rules limits civil claims to damages for property loss.
The decision of the New Zealand Court of Appeal in Puka v Council for the Ongoing Government of Tokelau20 has brought an end to the saga concerning
above n 16.
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what has been dubbed the “helicopter case”.21 It is now appropriate to consider what the High Court and Court of Appeal judgments in this litigation by two former employees of the Tokelau Public Service against their employers, tell about the law of Tokelau, its content and its deficiencies. Several issues of interest arise: the lawyers involved, the settling of venue and court procedure, legal aid, and damage awards.
Two courts, seven judges, seven counsel, and eight judgments later, the plaintiffs failed. Legally this was a predictable result. What the result could have been from a governance or cultural perspective was not before the court.22 The venue was a court of law.
The Finance Rules 1998 of Tokelau provide in r 8 that payments of public money require the payment document to identify the relevant budgeted expenditure item, to have the written authorisation of a senior official, and:23
Fono, no person has the capacity to bind Tokelau in a transaction which –
(i) involves a sum of $50,000 or more...
Paragraph (4) states “any transaction that does not comply with para (3) is void”. The transaction involving the helicopters did not comply with r 8. On account of that the plaintiffs, two senior Tokelau public servants were suspended for their part in the purported transaction, first on pay and later without pay, and finally they were dismissed. They disputed the treatment they had received and brought action in the High Court of Tokelau24 against their employers.
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Following the transfer of responsibility for the Tokelau Public Service from the State Services Commissioner in New Zealand to Tokelau,25 there was a Tokelau Public Service Commission with three Public Service Commissioners26 who had employer responsibilities in respect of the Tokelau Public Service. That regime was followed by the Public Service Rules 2004 which provide that the Council for the Ongoing Government of Tokelau (the Council) is the employer of Tokelau public servants with a power to delegate appointments to some positions.
In addition, the Tokelau Employment Commission Rules were enacted in 2016 for the appointment of a Tokelau Employment Commissioner whose role is inter alia to assist, consult, advise, review matters in respect of matters relating to the operation and reform of the Tokelau Public Service.27 In particular the Tokelau Employment Commissioner can conduct inquiries as instructed by the General Fono,28 and “recommend to the relevant employer the ... dismissal of employees”.29 The Tokelau Employment Commissioner is an appointee of the General Fono, not of the Council. As relevant to this litigation, the Tokelau Employment Commissioner was Casimilo Perez.30 It appears that he was supported in his role in respect of the helicopter inquiry by Aleki Silao who was appointed by the Council as an investigator for the purpose of the inquiry. His powers under the law could only have been those granted in his contract of appointment. Aleki Silao conducted the inquiry and reported to the General Fono. The Tokelau Employment Commissioner recommended to the Council that the plaintiffs be dismissed. According to the judgment of 26 July 2019, the notice of dismissal was sent by the Tokelau Employment Commissioner following the decision of the Council that the plaintiffs be dismissed.
There is currently in law no Tokelau Public Service Commissioner though that title is occasionally used in the judgments31 and is misleading to the extent that it suggests that the Tokelau Employment Commissioner is an employer and an official with power to dismiss.32
27 Rule 5(1).
28 Rule 5(1)(r).
29 Rule 5(1)(l).
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Apart from the reference in the judgments to Tokelau Public Service Commissioner when Tokelau Employment Commissioner is intended, some confusion may have arisen33 also because of the Commissions of Inquiry Rules 1991 under which the Administrator (or delegate) could establish a commission to inquire into, inter alia, any “matter of public importance in relation to Tokelau”. An inquiry was not instituted under those Rules. Had it been, the inquiry would have been formal with the commission having substantial administrative and procedural enforcement powers.
There were a number of interlocutory proceedings before the substantive judgment of 26 July 2019. It concluded that the plaintiffs had been lawfully dismissed but that their suspension without pay was unlawful. In the result, they were awarded interest on the unpaid salary.34 The case had the limited focus of the application of the terms of the contract as they related to suspension, discipline and dismissal.
The proceedings began in earnest with an application for an interim injunction in December 2017.35 The application for an injunction was dismissed after a discussion of the availability of an injunction against the Crown under Tokelau law. Then a week later, there was an application by Radio New Zealand for access to some of the papers in the court file.36 The application was declined on the basis of r 175 of the Crimes, Procedure and Evidence Rules of Tokelau and r 12 and 13 of the Senior Courts (Access to Documents) Rules of New Zealand. The next step in the saga was an application by the plaintiffs for a change of venue from the High Court in Wellington to Fakaofo, Tokelau.37 The application for change of venue was declined.
The case would appear to have been eminently suitable for interparty settlement. It is to be noted that Tokelau law provides expressly for the court to give consideration to settlement.38 There is no indication in the judgments that any such action was taken.
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(a) Counsel
New Zealand admitted practitioners predominated in the litigation. The Tokelau law39 is express in stating that the right of audience in a Tokelau court is granted by the Council for the Ongoing Government of Tokelau on being satisfied of the applicant’s knowledge of the law of Tokelau. There is no evidence in the cases that any of the many New Zealand admitted lawyers who appeared in this long running litigation were qualified to appear in terms of r 95. It is not apparent the basis upon which they appeared. Perhaps in the absence of challenge, the maxim omnia presumuntur rite acta esse applied. It is interesting to speculate, in the absence of r 95, where authority would lie for the granting of a right of audience to practitioners in the High Court. It could be argued that the provisions of s 3 of the Tokelau Amendment Act 1986 indicate that New Zealand law would apply – and in that case s 25 of the Lawyers and Conveyancers Act 2006, which is not Tokelau law, would be relevant. Another possibility arises under s 4B of the Tokelau Act 1948 which would make the English Common Law “for the time being” the relevant law for Tokelau,40 which reference could lead back to an inherent jurisdiction in the Royal Courts of England.
What this case exposes is that r 95 is too restrictive. There are very few persons who could qualify under r 95. Therefore, provision should be made for ad hoc exemptions in appropriate cases in the High Court or Court of Appeal of New Zealand to allow non-Tokelau qualified lawyers a right of audience.
A further matter came before the High Court in February 2019 relating to the right of a lawyer to be both counsel and defendant in the same proceedings.41 Tokelau had no legislation on the matter, so Churchman J applied the New Zealand law.
(b) Venue
Given the material in the substantive judgment of 14 December 2019, it is interesting that the plaintiffs, having declined to return from Samoa to Tokelau during the course of the government inquiry into the helicopter
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purchases were, in July 2018, seeking the hearing of the case in Tokelau. Perhaps they planned to return to Tokelau for the hearing because one plaintiff was a Tokelauan of the village of Fakaofo. Comment on the failure to return to Tokelau at the request of the investigator is commented on in the judgment of Churchman J. The comment was that the refusal to return was not reasonable because Tokelau law would apply to the contract regardless.42 That view overlooks the fact that while in Samoa, the government of Tokelau had no control over the plaintiffs other than the fact that they were employees, whereas in Tokelau they would have been subject to the law of Tokelau.
The Crimes, Procedure and Evidence Rules state that, in principle, a case in the High Court will be heard “on the papers”. That occurred in the case before Cull J43 and in the application before the Chief Justice44 but in none of the other proceedings. The plaintiffs chose counsel in New Zealand and papers were filed in the High Court of Wellington. The Tokelau Amendment Act 1986 speaks of appeals from Tokelau but does not address civil proceedings originating in the High Court. This matter was commented upon in the Report to the Chief Justice of New Zealand and MFAT Regarding Tokelau by Sir Ronald Young45 and by Lise Suveinakama.46 The litigation in Puka v COG provides evidence of a need for more direction on the commencement of Tokelau civil proceedings in the High Court.
Access to and communication with Tokelau has always been difficult. Given that contact has for decades been, and to a degree still is, primarily through the Tokelau Government Offices in Apia, using the services of the Administrator and the good offices of the Special Relations Unit in the Ministry of Foreign Affairs may not be inappropriate for communication between Tokelau and the courts in New Zealand.47
The judgment which declined the application for the change of venue mentioned the possible public interest of the case and also the logistical and financial implications of holding a trial in Tokelau. The infrastructure for such a hearing is not readily available in Tokelau but Tokelau has, in the past however, hosted major international events with success.
42 [Suveinakama – 26 July 2019] at [111], [112], [117] and [139].
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On another note, the judgment of the Chief Justice stated:48
[3] ...a proposed constitution which would alter the existing arrangements for the administration and government of Tokelau is not in effect and will come into effect only with the repeal of the Tokelau Act.
This is literally correct but, pace the Chief Justice, is likely to mislead. At the time of the self-determination referenda, there was a constitution proposed which would have altered some government structures of Tokelau by, in essence, making Tokelau legally autonomous. If the referendum had had an affirmative response, complementing legislation in New Zealand would have repealed the Tokelau Act 1948. The referenda proposal was not accepted by the people of Tokelau but the Constitution, most parts of which were already Tokelau law, was reaffirmed by the General Fono and the Rules which had depended on the outcome of the referendum were omitted.49 The Constitution in that form is the basic internal document for the governance of Tokelau. It has been amended four times since 2006.
(c) Legal Aid
Heto Puka obtained legal aid to appear in the Court of Appeal. It is to be noted that Tokelau law also provides for the grant of legal aid.50
(d) Damages
The question of damages arose and the High Court did its best with what is not a clear provision. The intention at the time it was enacted was to exclude personal injury by accident claims. Consideration was also given to defamation claims. The General Fono decided that because each village had an injury compensation scheme and because of the criminal offences related to eg rumour mongering, such claims should not be dealt with through the civil court proceedings. With the passage of time and the spotlight placed on the clause by the High Court judgment, it is clear that the provision needs to be reviewed. If the original intention is maintained or there is a desire for change of policy, the Rule can be amended accordingly.
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(e) Court of Appeal
On 9 March 2021, one of the plaintiffs in the High Court case sought leave to appeal. Leave to appeal out of time was declined on the basis that a period of more than 18 months after the appeal period had expired and the evidence presented for extension of the appeal period was “insufficient by a significant margin to justify an extension of time of the length sought”.51
3 Public interest
Several of the decisions mention the possible or actual public interest of the case in Tokelau. The case would almost surely have had considerable popular interest within the Tokelau communities in Tokelau and elsewhere.52 Whether the case had any public interest in the constitutional sense is to be doubted.Counsel for the appellant in the Court of Appeal application described the litigation as “historic, unprecedented and ground-breaking”53 He was also quoted as saying “over the course of this litigation, the status of the Constitution has changed from being the foundation of the nation of Tokelau to being a nullity in the legal sense...”. The litigation was as counsel described it, in the sense that it was the first case fully litigated in a New Zealand court sitting as a Tokelau court. It is not clear whether the litigation otherwise warrants the epithets. The statement about the Constitution may well have been stimulated by the comment of the Chief Justice in her judgment.54 The Constitution of Tokelau is and remains an important set of governance rules for Tokelau; it is however not the foundation of the nation – that is incontrovertibly provided in the Tokelau Act 1948 and the Letters Patent.
A Seal of Niue
Niue began its life as a self-governing state in free association with New Zealand in 1974. At that time it had no state seal of its own and art 81
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of the Constitution provided for continuation of the colonial system till Niue approved a seal specific to it. As a consequence of the art 36 request and consent procedure, the Seal of New Zealand Act 1977 (NZ) became Niue law. Since then no obvious interest had been shown in changing that situation till recently.56 There is no evidence of a pressing practical need for such a seal, however, art 15 of the Constitution is clear in its provision for the Seal. The requirements of art 15 are, as a result of the written entrenched Constitution, quite different from those which apply to the Seal of New Zealand and its use. Article 15 states that the form of the public Seal of Niue will be as approved by the Cabinet of Niue and that the Seal will be held in the custody of the Speaker of the Niue Legislative Assembly; the Seal will be used by the Speaker for the authentication of public documents.57 This provision is different from that of New Zealand and also from that of the Cook Islands where the existence and use of a seal is set out in art 26 of the Cook Islands Constitution.58 Until 1977, the constitutional provisions in both the Cook Islands59 and Niue60 covered the situation.61
The Seal of Niue Act 2021 followed the wording of art 15 of the Constitution exactly. Though public notification of the approval of a Seal of Niue is not dealt with in Niue legislation, notification was necessary for instance for the requirements of art 15(4) to be fulfilled. Judicial notice cannot be taken of the Seal if there is no notification of it. Notification by way of the Act has had the added advantage of enabling appropriate offences, in relation to the Seal and its use, to be created. The Seal of
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Niue Act 2021 is complemented by the Seal of Niue and Coat of Arms Regulations 2021.
B Looking Forward
The Government of Niue arranged for the legislation of Niue to be consolidated as at 31 December 2019. That collection has now been published as an authoritative publication under the Reprint of Statutes Act 1991.Following the legislative elections in Niue of 2020 the Constitutional Review Committee of the Assembly was reconvened to consider possible amendments to the Constitution in order to adapt it to the needs of the 21st century. The Committee was to report during 2021 but the reporting date has been postponed because of Covid-19.
V The Cook Islands62
A The Travel Bubble63
The Cook Islands has suffered greatly from the absence of tourists because of the pandemic and particularly the lockdowns in New Zealand which is a major tourist market for the Cook Islands. For a brief period the Cook Islands came within the travel bubble of the state of New Zealand but as at 1 October 2021, the Cook Islands were once again isolated from the New Zealand market because of the Auckland region lockdown.
B Seabed Minerals
The Cook Islands was attracted at an early date to the prospect of the mining of seabed minerals – the nodules on the sea floor – and enacted specific legislation in 2009 (with supporting regulations in 2015)64 for prospecting and exploration. That interest was further developed in 2019 with the passage of a new Act, the Seabed Minerals Act 2019. It was followed by other enactments amending that Act65 and by supporting
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regulations.66 The Cook Islands is one of a small number of Pacific
countries which are actively pursuing the prospects of seabed mining.67
VI Ross Dependency68
It is still frozen – thank goodness.69
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