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 Mäori 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 "How is Tokelau Governed?"
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.
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.
The Administrator of Tokelau is a statutory position appointed by the New Zealand Minister of Foreign Affairs and Trade. It is charged with the administration of the executive Government of Tokelau. In practice, the statutory powers of the Administrator have largely been delegated to Tokelauan institutions since 1994. The Administrator, however, continues to play a key role in the partnership between NewÂ Zealand and Tokelau, and acts as the principal contact between Tokelau and the New Zealand Government. In this regard he seeks to work constructively with Tokelau to assist it in maintaining a good and satisfactory standard of services and infrastructure in Tokelau.
Jonathan Kings is the current Administrator of Tokelau and his office is staffed by members of the Ministry of Foreign Affairs and Trade (MFAT) and NZAID and a member of the Tokelau Public Service.
His office is part of the Special Relations Unit within MFAT and NZAID in Wellington. This Unit is mandated to oversee New Zealand's relationship with Tokelau and also with Niue.
In recognition of the wide range of needs that Tokelau will have and the limited capacity of Tokelau to meet many of these requirements for the efficient management of the affairs of the Government of Tokelau and the requirements of the atolls, the New Zealand Government, through the Office of the Administrator has sought to make available, at the request of the Government of Tokelau, the full range of services and capabilities within the New Zealand government system.
This commitment by the Government of New Zealand underlines the closeness of the relationship between New Zealand and Tokelau and reflects the ongoing commitment New Zealand has for the people of Tokelau.
Ensuring that there is appropriate substance to this far-reaching commitment is the major responsibility of the Office of the Administrator.
The main activities of the Office of the Administrator are:
Coordinating all New Zealand government activities relating to Tokelau
Management of the Administrative Assistance Scheme for Tokelau
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.
This scheme supports Tokelau, particularly in the areas of:
- constitutional and legislative development
- financial management
- public sector management
- with the involvement and recruitment of other appropriate experts
- Coordinating all New Zealand Ministry of Foreign Affairs and Trade and NZAID activities in and for Tokelau.
- Supporting Tokelau's efforts to establish and enhance appropriate governance structures and assisting with constitutional and legislative
- Acting on behalf of the Tokelau Public Service in New Zealand, including by supporting the Tokelau patient referral scheme, and administrative support for Tokelau leaders and officials visiting New Zealand.
- Maintaining contact with and disseminating information to Tokelau communities and ˜friends of Tokelau' in New Zealand.
- Maintaining dialogue with the UN Committee on decolonisation and other international and regional groupings with an interest in Tokelau.
JOINT STATEMENT OF THE PRINCIPLES OF PARTNERSHIP BETWEEN NEW ZEALAND AND TOKELAU
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 Partner’s 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 Tokelau’s best interests.
1. PARTNERSHIP AND JOINT CONSULTATION
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. Partners’ officials will work cooperatively together to advance issues of concern according to priorities and any work plan agreed between them.
2. SELF-DETERMINATION FOR TOKELAU
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. LANGUAGE AND CULTURE
3.1 The Partners recognise the value of Tokelau’s 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. NEW ZEALAND CITIZENSHIP
4.1 The Partners acknowledge that New Zealand citizenship involves the right to certain benefits and the acceptance of certain responsibilities.
5. SHARED VALUES
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. ECONOMIC ASSISTANCE
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 Zealand’s economic support for Tokelau’s 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 Zealand’s economic assistance to Tokelau will be based on the following principles and factors:
6.3.1 New Zealand’s 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 Tokelau’s 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 Tokelau’s 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 Tokelau’s progress towards full self-government and respect for Tokelau’s 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 Tokelau’s 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 Tokelau’s special constitutional status, which means that economic support to Tokelau represents a first call on New Zealand’s overseas development assistance and that the content and management of the Tokelau programme will continue to be tailored to Tokelau’s status and needs;
6.3.7 Tokelau’s overall development strategy;
6.3.8 Acknowledgement that Tokelau will plan and implement activities in accordance with Tokelau’s 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 Tokelau’s 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 Zealand’s 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 Tokelau’s 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 Zealand’s resources, for the benefit of the Tokelau people and in line with Tokelau’s 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 Tokelau’s changing circumstances, including the provision of administrative assistance under clause 7 below.
7. ADMINISTRATIVE ASSISTANCE
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. OFFICE OF THE ADMINISTRATOR OF TOKELAU
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. DEFENCE AND SECURITY
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. EXTERNAL RELATIONS AND INTERNATIONAL LEGAL OBLIGATIONS
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 Tokelau’s behalf (in consultation with Tokelau, as set out in clause 10.2).
10.2 In conducting foreign affairs on Tokelau’s behalf, New Zealand will:
10.2.1 advise Tokelau as to which international instruments extend to Tokelau through New Zealand’s 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 Partners’ shared values, Tokelau will implement within Tokelau the treaty obligations to which it may be bound through New Zealand’s 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 Tokelau’s 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 Tokelau’s status as a non-self-governing territory.
10.5 Tokelau will consult New Zealand about any such developments.
11 THE TOKELAUAN COMMUNITY IN NEW ZEALAND
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 Tokelau’s relationship with New Zealand, constitutional developments concerning Tokelau, and other issues of potential interest or concern to the Tokelauan community in New Zealand.