Written evidence from the New Zealand High Commission, UK (OTS0116)

Dear Tom

Thank you for your letter of 23 October in which you requested information on the constitutional status of New Zealand’s overseas territories.  We have answered your questions in the attached document, and I am happy to provide further assistance as needed.

Yours sincerely

HE The Rt Hon Sir Jerry Mataparae, GNZM, QSO

New Zealand’s Overseas Territories                           

1.           What is the constitutional status of New Zealand’s overseas territories?

• Tokelau is New Zealand’s only overseas territory.
• The three atolls of Tokelau became a British protectorate in 1877. 
• In 1926 the administration of Tokelau passed from Britain to New Zealand, and in 1948, the Tokelau Act made Tokelau a territory of New Zealand. 
• Tokelauans became New Zealand citizens and Tokelau became part of the Realm of New Zealand, with Her Majesty the Queen in right of New Zealand as its head of state.
• Under the Tokelau Act regulations were made for the administration of Tokelau.  These regulations state that the executive government of Tokelau will be exercised by an Administrator who is appointed by and subject to the control of the New Zealand Minister of Foreign Affairs. 
• In accordance with our obligations under the UN Charter[1], over the past thirty years New Zealand has progressively devolved its administrative powers to Tokelau and supported the development of its governance institutions: in 1986 a separate court system was established; in 1993 public service responsibilities were transferred; and, in 1996 Tokelau’s national decision-making body (the General Fono) was given the power to make national laws. 
• In 1994, the Administrator delegated most[2] of his powers to the General Fono, and in 2004 a revised delegation recognised the village councils (Taupulega) as the source of administrative authority. In turn, the Taupulega delegated their authority in national matters to the General Fono, and to the six-member ‘Council for Ongoing Government’ when the Fono is not in session. 
• Under the Tokelau Act 1948 the General Fono has the power to make rules for the peace, order and good government of Tokelau. Rules of the General Fono have legal effect in Tokelau provided they are not inconsistent with other New Zealand laws in force in Tokelau or any international obligation.  The Administrator has the power to disallow rules, though in practice this has never been exercised. Similarly, although the New Zealand Parliament and Governor-General in Council retain the power to legislate for Tokelau, most law making in respect of domestic matters in Tokelau is now done by the General Fono.  
• These developments mean that by the 2000s Tokelau had attained a substantial degree of self-government.  Today, the Administrator plays a largely advisory role.
• The current formal statement of the bilateral relationship is the “Joint Statement of the Principles of Partnership” signed in 2003.  It sets out the obligations and responsibilities of New Zealand and Tokelau, including in respect of budgetary support and New Zealand’s economic and administrative assistance to Tokelau.

2.                How long has this system been in place and when was the last time it was reviewed or amended?

• This system has been in place since 1948 but as above, has evolved and been amended over this time.
• In 2006 and 2007 Tokelau held referenda on becoming self-governing in free association with New Zealand.  Both votes narrowly missed the two-thirds majority required for a change of status. 
• In his statement to the UN in June this year, the Ulu of Tokelau noted that while Tokelau is very much committed to self-determination, it will be several years before the issue of another referendum on self-government is reconsidered by the General Fono. 
• As Tokelau navigates this path, New Zealand remains committed to helping build Tokelau’s capacity and confidence to self-govern, in accordance with our obligations under Article 73 of the UN Charter. 

3.           Which government department in Wellington is responsible for overall policy towards the overseas territories and how much resource does it devote to them?

• The Ministry of Foreign Affairs and Trade is responsible for Tokelau, through the Office of the Administrator which has two FTEs.

4.           How are the overseas territories represented in the Parliament of New Zealand?

• Tokelau is not represented in the Parliament of New Zealand.

5.           What committee(s) in the Parliament of New Zealand scrutinises the New Zealand government’s policies towards the overseas territories?

•   The Foreign Affairs, Defence and Trade Committee.

6.           How are the views and interests of the overseas territories taken into account in the formulation of New Zealand’s foreign policy?

• New Zealand retains responsibility for Tokelau’s foreign relations and consults with Tokelau on foreign policy matters where relevant, e.g. international climate change negotiations.  However, in recognition of Tokelau’s emerging practice of self-governance, New Zealand has in recent years allowed Tokelau to establish and manage its relationships within the region (for example, Tokelau is an associate member of the Pacific Islands Forum).  This practice is reflected in the 2004 delegation of authority from the villages to the General Fono, which includes “external relations matters referred to Tokelau by the Government of New Zealand”[3].

November 2018