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An introduction to the legal structure of Tokelau:
a collection of primary materials, commentary, and online resources
compiled by Peter
Law Librarian at the
Emalus Campus Library
2. Laws of Tokelau
3. How Tokelau is governed
4. Principles of the partnership between Tokelau and New Zealand
5. Role of the Office of the Administrator of Tokelau
6. United Nations documents on self determination for Tokelau
7. Text of the speech by Faipule Pio Tuia, Acting Ulu o Tokelau
to the 35th Pacific Islands Forum
8. Tokelau referendum on self government likely within months after Fono accepts draft treaty
9. Media coverage of the changes in Tokelau's relationship with New Zealand and the move towards self determination
10. Articles about Tonga as identified on the Pacific Law Journal Index.
1. About Tokelau
Tokelau consists of three atolls located about 483 km north of Western Samoa. Each of three atolls has its own administrative centre. Tokelau has a total land area of approximately 12 sq km and a population of approximately 1400.
Originally settled by Polynesian emigrants from surrounding island groups, the Tokelau Islands were made a British protectorate in 1889. They were transferred to New Zealand administration in 1925. In 2004 officials in New Zealand are moving to finalize a draft treaty on self-government for the territory opening the way for a referendum on greater independence for Tokelau and a relationship of free association with New Zealand.
For further more detailed information of Tokelau's history, geography, economy, people and culture see the following online resources:
Official site for the Tokelau Council of Ongoing Government
CIA World Factbook - Tokelau .
Jane Resture's Tokelau Islands Home Page
Tokelau travel | Lonely Planet World Guide
The legislation and judicial systems are based on the Tokelau Act, 1948, and its amendments. A major law reform project is continuing; its purpose is to ensure that Tokelau has a coherent body of law which responds to current needs and gives due recognition to local custom.
Unless it is expressly extended to Tokelau, New Zealand statute law does not apply to the territory. In practice, no New Zealand legislation is extended to Tokelau without Tokelauan consent. The villages have the statutory power to enact their own laws covering village affairs. International covenants on economic, social and cultural rights and civil and political rights, ratified by New Zealand in December 1978, apply in Tokelau.
Civil and criminal jurisdiction is exercised by commissioners and the New Zealand high court.
There are nine Tokelauan police officers - three each on Fakaofo, Nukunonu and Atafu. They are responsible to the village authorities for the enforcement of law and order and to the public service for their various civil duties. There is little crime apart from petty theft and there are no prisons. Punishment generally takes the form of public rebukes, fines or labour.
[Source: http://www.tokelau.org.nz/ ]
Sources of law
[Source: 'Pacific Courts and Legal Systems' / editors Guy Powles and Mere Pulea (Suva, Fiji : University of the South Pacific, 1988).]
see also Delegation of Powers to the Villages of Tokelau
see also articles about Tokelau identified on the Pacific Law Journal Index.
The basis of Tokelau's legislative, administrative and judicial systems is the Tokelau Islands Act 1948 and its amendments. In November 1974 the administration of Tokelau was transferred from the Mšori and Island Affairs Department to the Ministry of Foreign Affairs. From then until September 1980, when the Tokelau administration regulations were amended, the New Zealand Secretary of Foreign Affairs was the administrator of Tokelau. New regulations then came into force whereby the Minister of Foreign Affairs was empowered to appoint a suitable person to be the Administrator of Tokelau. The New Zealand flag is used and the anthem is God Save the Queen.
Most of the powers of the administrator are delegated to Tokelau. As from 1 July 2004 the delegations will be with the 3 council of elders. See section on "Governance" below.
The principal organ of local government on each island is the taupulega (council of elders). Differences exist in the composition of the taupulega of the three atolls. In Atafu the council comprises the head of each family group together with the faipule and the pulenuku. In Fakaofo the council is formed by the faipule, the pulenuku and the village elders; the heads of families are only consulted when the council requires their advice. The Nukunonu council is a combination of the two; the elders, the heads of extended families, the faipule and the pulenuku.
Councils of Elders
Council for the Ongoing Government of Tokelau
Tokelau consists of three atolls: Atafu, Nukunonu and Fakaofo. The village on each atoll is governed by its own Council of Elders (Taupulega) which is the source of authority / pule. Administrative support structures for the 3 Taupulega are being set up to be operational by 1 July 2004.
The 3 Taupulega will have delegated collectively by July 1 2004 the authority of the villages to the General Fono regarding national matters for them to govern / manage on behalf of Tokelau.
The General Fono is the parliament of Tokelau and meets 3-4 times a year for 3-4 days a session on the atoll where the Ulu-o-Tokelau (head of government) resides. The position of Ulu-o-Tokelau rotates each year among the three Faipule (village leaders).
When the General Fono is not in session Tokelau is governed by an executive council called the Council for the Ongoing Government of Tokelau composed of the 3 Faipule and 3 Pulenuku (village mayors). This new composition of the Council was established at the November 2003 General Fono. Originally the Council consisted of the 3 Faipule.
Supporting the General Fono and the Council for the Ongoing Government is the national public service, consisting of the General Manager, Apia, and Directors of Health, Education, Transport and Support Services, and Economic Development, as well as other departmental staff.
Supporting each Taupulega is a General Manager (also known as Director or Coordinator) who heads the villageís "Office of the Taupulega", and other public staff members including teachers, medical staff and the traditional workforce.
Currently Nukunonu has 6 members and Fakaofo and Atafu 7 and 8 respectively. The number of members is based on population figures from the last census.
Both Faipule and Pulenuku automatically become members of the General Fono.
|Faipule of Atafu and Ulu-o-Tokelau (2004)||Mr Patuki Isaako|
|Pulenuku of Atafu||Mr Paulo Kitiona|
|Faipule of Nukunonu||Mr Pio Tuia|
|Pulenuku of Nukunonu||Mr Panapa Sakalia|
|Faipule of Fakaofo||Mr Kolouei OíBrien|
|Pulenuku of Fakaofo||Mr Keli Nemia|
[Source: http://www.tokelau.org.nz/ ]
New Zealand and Tokelau ("the Partners") wish to affirm their ongoing relationship, to honour their shared past and to build upon the close historical, social and cultural links between their people.
By articulating in this Joint Statement the principles underpinning the partnership and each Partnerís expectations of the other, the Partners hope to create a framework within which they can work together to maximise the benefits of the relationship. They wish to strengthen cooperation between New Zealand and Tokelau, and to provide a firm foundation for ongoing and constructive dialogue about their relationship.
The Joint Statement also looks forward, recognising that Tokelau has the right to self-determination, and that New Zealand has a responsibility to facilitate that process in Tokelauís best interests.
1.1 The Partners seek to develop a relationship of partnership in accordance with the principles set out in this Joint Statement. In doing so, the Partners acknowledge that their relationship is dynamic, and must be permitted to grow and evolve freely and constructively. The Partners also acknowledge that the relationship operates within the context of international and domestic law, as the law applies in New Zealand and in Tokelau at any particular time.
1.2 The relationship of partnership requires that all issues should be resolved on a cooperative and consultative basis. New Zealand and Tokelau will continue to work together, to consult on issues as they arise, and to cooperate on matters of mutual interest. The Partners will operate on a "no surprises" basis, by maintaining clear and open communication.
1.3 New Zealand and Tokelau will hold joint senior-level official talks at least once a year ("the joint talks"), in Tokelau, Wellington or Apia (as the Partners decide). The joint talks will cover issues of concern to the Partners, including the detail of practical matters of concern to Tokelau as it works towards self-determination and builds confidence in its future. The joint talks will be additional to (and coordinated with) any other bilateral meetings on specific topics. Partnersí officials will work cooperatively together to advance issues of concern according to priorities and any work plan agreed between them.
2.1 The Partners acknowledge that self-determination for Tokelau, as provided for in Article 73 of the United Nations Charter, United Nations General Assembly Resolutions and various international human rights instruments, is an important goal for both New Zealand and Tokelau.
2.2 New Zealand and Tokelau affirm their commitment to work in partnership with the United Nations to achieve a self-determination outcome that fits the local Tokelauan context and has the support of the Tokelauan people. Where a self-determination option involves an ongoing relationship between Tokelau and New Zealand, the Partners acknowledge that the nature of that relationship will be one that is acceptable to both.
2.3 New Zealand will continue to work with Tokelau to provide the people of Tokelau with balanced and comprehensive information concerning the self-determination options of independence, self-government in free association and full integration.
3.1 The Partners recognise the value of Tokelauís unique language and culture as a source of strength and identity, and as the key element that distinguishes Tokelauans from other groups. New Zealand and Tokelau are committed to ensuring the retention and development of Tokelauan culture. This commitment will underlie all aspects of the partnership, and will be taken into account in all joint endeavours.
4.1 The Partners acknowledge that New Zealand citizenship involves the right to certain benefits and the acceptance of certain responsibilities.
5.1 Tokelau and New Zealand affirm their respect for human rights, and their commitment to the purpose and principles of the United Nations Charter, good governance and the rule of law.
6.1 New Zealand acknowledges its obligations with regard to economic support for Tokelau, and affirms its commitment to provide Tokelau with economic support, both before an act of self-determination and after (as long as Tokelau retains a constitutional relationship with New Zealand).
6.2 New Zealand and Tokelau wish to work together in a partnership based on trust, openness, respect and mutual accountability in determining and implementing New Zealandís economic support for Tokelauís budgetary needs and economic and social development. The key goal of the Partners is to maintain and improve the quality of life of the people living in the villages of Tokelau.
6.3 The provision of New Zealandís economic assistance to Tokelau will be based on the following principles and factors:
6.3.1 New Zealandís international legal obligations, including those set out in Article 73 of the United Nations Charter, and the International Covenant on Economic, Social and Cultural Rights;
6.3.2 recognition that Tokelau is entitled to a good and satisfactory standard of services and infrastructure, and that this entitlement will be interpreted in the light of the local context (including the size of Tokelauís population, its remoteness, the physical separation of the three atolls and the fact that the administrations of Tokelau and New Zealand are separate);
6.3.3 acknowledgement of the commitment by both Partners progressively to meet Tokelauís entitlement to a good and satisfactory standard of services and infrastructure (as referred to in clause 6.3.2), to the maximum extent of available resources;
6.3.4 acknowledgement of Tokelauís progress towards full self-government and respect for Tokelauís readiness and ability to determine and shape the budget;
6.3.5 recognition, with regard to the delivery of services in Tokelau, that it is primarily Tokelauís role to deliver those services, and that New Zealand will provide economic and administrative support (as provided in clauses 6 and 7 respectively) to assist Tokelau to do so;
6.3.6 recognition of Tokelauís special constitutional status, which means that economic support to Tokelau represents a first call on New Zealandís overseas development assistance and that the content and management of the Tokelau programme will continue to be tailored to Tokelauís status and needs;
6.3.7 Tokelauís overall development strategy;
6.3.8 Acknowledgement that Tokelau will plan and implement activities in accordance with Tokelauís specified goals and priorities;
6.3.9 acknowledgement and observance of identified obligations that each Partner owes the other, as set out in clauses 6.4 and 6.5;
6.3.10 recognition that the nature and level of support may evolve over time but that the Partners will work together to ensure that such evolution will be on the basis of the principles set out in this Joint Statement.
6.4 New Zealand:
6.4.1 acknowledges its obligations with regard to economic support for Tokelau, now and in the future;
6.4.2 recognises Tokelauís aspiration to achieve the greatest possible level of self-reliance, and will support Tokelau in this endeavour;
6.4.3 expects Tokelau to manage New Zealandís contribution to its budget wisely and in the best interests of the people of Tokelau;
6.4.4 will assist Tokelau to promote good and sustainable use of resources;
6.4.5 will assist Tokelau in the event of emergencies beyond its control;
6.4.6 will support Tokelauís efforts to attract support from other donors and from regional and international agencies.
6.5.1 is responsible for the prudent management and allocation of its own and New Zealandís resources, for the benefit of the Tokelau people and in line with Tokelauís strategic priorities;
6.5.2 will provide New Zealand with accurate, full and timely financial planning and reporting in a form to be agreed between the Partners;
6.5.3 will manage the consequences of its own decisions and management with regard to resource allocation or investment.
6.6 The forms of assistance that New Zealand provides to Tokelau may take a range of forms, tailored to Tokelauís changing circumstances, including the provision of administrative assistance under clause 7 below.
7.1 The Partners recognise that Tokelau will be likely to require an ongoing level of support in administrative and technical areas. New Zealand recognises that administrative capacity, technical skills and professional development are essential for the good governance and economic development of Tokelau. New Zealand is committed to providing Tokelau with appropriate administrative, technical and professional support, both before an act of self-determination and after (as long as Tokelau retains a constitutional relationship with New Zealand).
7.2 New Zealand and Tokelau will identify areas of priority or specific projects requiring technical, administrative or professional support during joint talks or other bilateral consultations. Appropriate support, coordinated through the Office of the Administrator of Tokelau, will be provided from New Zealand public sector agencies, in line with priorities and projects agreed between the Partners.
8.1 The Partners agree that the Office of the Administrator of Tokelau will work with the Tokelau Public Service to ensure that appropriate levels of service are provided in and from New Zealand in a well-coordinated manner.
9.1 New Zealand will remain responsible for the defence and security of Tokelau, and will discharge this responsibility as the need arises, in consultation with Tokelau.
10.1 The Partners acknowledge that, subject to United Nations General Assembly Resolution 2625 (XXV), Tokelau does not have an international legal personality separate from that of New Zealand. New Zealand will accordingly continue to enter into binding treaty obligations on Tokelauís behalf (in consultation with Tokelau, as set out in clause 10.2).
10.2 In conducting foreign affairs on Tokelauís behalf, New Zealand will:
10.2.1 advise Tokelau as to which international instruments extend to Tokelau through New Zealandís treaty action;
10.2.2 ensure adequate consultation with Tokelau with regard to treaty actions that New Zealand is intending to take, and refrain from extending any such treaty action to Tokelau unless Tokelau expressly requests to be included;
10.2.3 assist Tokelau, through the provision of advice and administrative assistance, to implement international legal obligations as required.
10.3 To the best of its ability and consistent with its commitment to the Partnersí shared values, Tokelau will implement within Tokelau the treaty obligations to which it may be bound through New Zealandís treaty action.
10.4 New Zealand acknowledges that Tokelau may wish to further develop its interaction with the regional and international community. New Zealand will support Tokelauís aspirations to enter into arrangements with other countries or to join regional or international organisations in its own right, where such participation is consistent with Tokelauís status as a non-self-governing territory.
10.5 Tokelau will consult New Zealand about any such developments.
11.1 In terms of New Zealand/Tokelau relations, the primary link is between New Zealand and Tokelau.
11.2 Both Partners recognise, however, that there is mutual benefit in continued engagement, by New Zealand and Tokelau, with the Tokelauan community in New Zealand. This engagement will strengthen and reinforce the cultural identity of Tokelauans resident in New Zealand. It will also maximise the potential of the Tokelauan community in New Zealand, in terms of support and assistance for Tokelau.
11.3 The Partners agree that the Tokelauan community in New Zealand should be informed about developments in Tokelauís relationship with New Zealand, constitutional developments concerning Tokelau, and other issues of potential interest or concern to the Tokelauan community in New Zealand.
12.1 This Joint Statement will be subject to review by the Partners as part of their ongoing consultation.
Signed on 21 November 2003
at Fakaofo, Tokelau
|On behalf of Tokelau||On behalf of New Zealand|
|Kolouei OíBrien||Hon Taito Phillip Field|
|Ulu-o-Tokelau||Associate Minister of Pacific Island Affairs|
"We, the elders of Tokelau, being the holders of the power of the villages of Tokelau, and ever conscious of our role in Tokelau society, commit ourselves to the following principles for our joint government of Tokelau in matters beyond those properly undertaken by each village alone. The authority we have in matters of national interest is hereby delegated to our representatives in the General Fono for exercise through the General Fono and when the General Fono is not in session, to our representatives in the council of Faipule. This, is for the express and limited purpose of managing the following matters in the interest of the nation:
Any matters related to any of these items and any matter unanimously referred
by us to the General Fono for its consideration and decision."
The Administrator of Tokelau is a statutory position appointed by the Minister of Foreign Affairs and Trade to provide support to Tokelau. Neil Walter is the current Administrator. The Tokelau Unit supports the Administrator and Tokelau with both policy advice and administrative support. The Unit is part of the Ministry of Foreign Affairs and Trade in Wellington. John Fleming and Sio Perez are the staff.
The main activities of the Unit are:
The purpose of the Administrative Assistance Scheme is to assist the
Tokelau Public Service by arranging short term secondments of staff, training
or mentoring by NZ government departments. Administrative assistance may cover
all areas of government activity including specialist areas such as health,
education and economic development. (Clive Kirby's - from the Police - work
with the ICT Review and Murray Gimblett's - from the State Services Commission
- work for the Department of Transport & Support are two recent examples of
[Source: http://www.tokelau.org.nz/ ]
6.United Nations documents on self determination for Tokelau
Question of Tokelau - United
Nations  - A/RES/41/26
Question of Tokelau - United Nations  - A/RES/42/84
Question of Tokelau - United Nations  - A/RES/49/47
Question of Tokelau - United Nations  - A/RES/51/145
Decolonisation Committee Concludes Committee 2003 Session, adopts resolutions on territorial self-determination economic activities: Situations in Tokelau, Pitcairn Discussed - [United Nations Press release GA/COL/3089]]
see also Main documents on Decolonization - United Nations
Honourable Prime Minister of Samoa and Chair of this 35th Pacific Islands Forum
Rt Honourable Helen Clark, Prime Minister of New Zealand.
[Mr Chairman, I had to say her full title and name because after all she is my Prime Minister!]
Honourable Heads of Governments present here today,
Secretary General of the Forum Secretariat
Heads of Delegations and CROP Agencies
Ladies and gentlemen
As I speak before you now I feel very much like a little bird amongst eagles. Like Nimo the little fish looking from the safety of the coral crevice out beyond the deep blue yonder and the descending drop down to the bottom of the sea. It is a feeling that is at once very scary and somewhat daunting but at the same time exciting and full of wonder of the unknown. It is a feeling that makes me want to run away.
So why am I still here addressing you?
Well - I am comforted by the fact that at one time or another you, your "tupuna" or ancestors, filled with the adventurous spirit of early pioneers and settlers - would have probably felt something similar Ė as you and them laid down the foundation stones of your emerging respective nations. For throughout your countriesí histories, you would have had to take the same first faltering flying attempts of the little bird. Trying to fly with half out stretched wings.
But look at you now. You are all accomplished flyers - some soaring, some cruising at high altitudes, some hitting air turbulence, while some are coming in to land Ė in order to refuel.
Well here I am. I am here to watch, listen and learn how to fly Ė from you.
And I already have a few pointers. Like you, I want my people to live lives that are "free and worthwhile". Your vision is consistent with the vision of the people of Tokelau. As we strive to achieve full self-government with the ultimate goal of exercising our inalienable right to an act of self-determination, we seek to be self-reliant to the greatest extent possible. We seek to maintain a viable and living community. We want to continue and maintain our vitality. We seek to protect our environment, our fisheries resources, our song and dance Ė and yes - our dreams.
Well that is not too much to ask for. But if you can do it, so can this little bird! But I cannot do it alone. That is why I now feel a lot more comfortable because I know if I fall, you the great leaders of this great region of ours will reach out and not just cushion my fall - but to point me in the right direction.
Mr Chairman, with your patience and forbearance, as the Prime Minister of Samoa, please allow me to thank you, your government and the people of Samoa most sincerely - for the warm and generous hospitality that you accorded to me.
May I also take this wonderful first opportunity to personally offer my countryís deep appreciation to all of the Heads of Governments and organisations around this table - for the support that you have given to Tokelau throughout the years and even now. That which you have given so generously, may God replenish and replace manifold.
Lastly Mr Chairman, thank you for allowing me to make a few remarks. I would like to end by giving some advice to my Prime Minister, Helen Clark. As you all know Graham Henry lost his first game as coach of the All Blacks last night. Note, Graham Henry lost and not Rokocoko, Howlett, Mealamu or Muliaina. My advice Prime Minister, is that you must pick more Islanders to be in the All Blacks - and I think it is about time a Tokelauan is picked Ė especially as we are very tough and hardened from playing on coral rugby fields Ė as you will see when we arrive in Tokelau tomorrow! If you and the good Prime Minister of Australia think "The Islanders" were good Ė well have I got some news for you Ė you ainít seen nothing yet! Thank you Prime Minister.
Mr Chairman - malo ma fakafetai!
[Source: http://www.tokelau.org.nz/ ]
8. Tokelau referendum on self government likely within months after Fono accepts draft treaty
Posted at 07:36 on 01 September, 2005 UTC - http://www.rnzi.com/pages/news.php?op=read&id=19065
Tokelauans are likely to vote in a referendum on self government in free association with New Zealand before the end of this year.
The General Fono, the territoryís main political body, has reached agreement on a draft treaty which now needs to be endorsed by the New Zealand Cabinet.
The general manager of the Tokelau government administration, Falani Aukuso, says the draft includes a referendum in which all Tokelauans 18 and over, who normally reside in the atolls, will answer this simple question:
ďDo you agree to an act of self determination in which Tokelau becomes a state in free association with New Zealand on the basis of the constitution and the draft treaty. so you choose I agree or I reject - simple as that"
The referendum will require a two thirds majority for self determination to proceed.
9. Media Coverage of the changes in Tokelau's relationship with New Zealand and the move towards self determination
TOKELAU TO TRY ANOTHER REFERENDUM - 6 June 2006
TOKELAU COUNCILS TO HAVE NEW POWERS - March 24, 2004
TINY TOKELAU SAYS IT DOESNíT WANT INDEPENDENCE - May 21, 2004
UN CRIES FREEDOM TO CONTENTED COLONIES - May 23, 2004
TOKELAU WONDERS, ĎWHAT HAVE WE DONE WRONG?í - June 2, 2004
TOKELAUNS RESIST OFFER OF AUTONOMY - June 2 2004
CLARK PREDICTS FREE ASSOCIATION FOR TOKELAU - August 12, 2004
TOKELAU LOOKS TO THE 'MOTHERLAND' - 13 August 2004
THE UNíS MISGUIDED PLAN TO CUT TOKELAU ADRIFT - September 15 2004
TOKELAU: Finalising Registration For Referendum - 2 February 2006
TOKELAU: NZ-Based Tokelauans Not Able To Vote On Referendum
TOKELAU: Unable To Join UN Even If It Becomes Self-Governing
TOKELAU: Vote On Political Status Begins Today - 11 February 2006
NEW ZEALAND: Our Man In The Last Outpost Of Empire--Tokelau -
Tokelau votes to stay with New Zealand - 16 February 2006
10. Articles about Tonga identified on the Pacific Law Journal Index
Last Updated on: Tuesday, 06 June 2006