Just before Prime Minister Jacinda Ardern was visiting Tokelau – the first New Zealand Prime Minister to do so for 14 years – judgment from the first full hearing of the High Court of Tokelau was issued, but in Wellington (Suveinakama v Council for the Ongoing Government of Tokelau [2018] NZHC 1787). Accompanying Ms Ardern was the Tokelau Administrator, her father Ross Ardern. Also with her was Kris Faafoi, a Cabinet Minister of Tokelauan descent and the MP for Mana – an electorate based around Porirua, a city that reputedly has more Tokelauans than Tokelau.

The High Court of Tokelau, you may ask. Why Wellington? The Prime Minister’s father? Such are some of the, at times, quirky, sometimes bizarre, issues around New Zealand’s administration of its most remote outpost. First things first: the “High Court of Tokelau” is the High Court of New Zealand sitting as the High Court of Tokelau. See section 3 of the Tokelau Amendment Act 1986, and Leilua-Lei-Sam v Council for the Ongoing Government of Tokelau [2012] NZHC 2775. Confused? More is to come.

What is the law of Tokelau?

To employment lawyers, the case might have seemed like a pretty bog standard unjustified dismissal with the odd twist – if you applied New Zealand law. But the Employment Relations Act 2000 does not apply to Tokelau, even though Tokelau is part of New Zealand. Nor does any other New Zealand statute unless that statute specifies that it applies to Tokelau (section 6 Tokelau Act 1948).

So, what is the law of Tokelau? The common law of England – but what common law? Counsel referred to the common law at 1996 or the time the case was heard in February 2019. The Chief Justice, in an interlocutory decision, referred to the common law as received in New Zealand in 1840. Halsbury concurs with the Chief Justice’s view – to an extent. Halsbury’s Laws of England (Hailsham Edn) [990], n 4 refers to the “law of England at 1840 save insofar as inconsistent with the Tokelau Islands Act 1948 or inapplicable to the circumstances of the islands ….” and later laws in force in the Gilbert and Ellice Islands Colony at 1 January 1949. What common law applied was one issue in what, essentially, was a common law wrongful dismissal case

The Chief Justice became involved when some thought the hearing should be in Tokelau rather than Wellington (Suveinakama v Council for the Ongoing Government of Tokelau [2018] NZHC 1670). The court was concerned, among other things, about logistics for the High Court to get to and sit in Tokelau. That concern reflects that the only way to Tokelau is by boat, taking some 36 hours from Apia, Samoa.

Small and isolated

The hearing Judge, Churchman J, explained some of the background. Tokelau, he said, was one of the smallest and most isolated countries on earth consisting of three atolls with a total land area of about 11.7 km. Some 42 Tokelauan officials operate from Apia in Samoa, which is 500 km from the nearest of the three atolls. Total Tokelau population is just under 1500 people.

Tokelau is run in a fairly patchwork way. It has a government comprising various institutions, but the Administrator can overrule government decisions. Also, New Zealand’s Minister of Foreign Affairs and MFAT play quite a role in how Tokelau runs, including having considerable control over purse strings.

These issues came into play when two officials, the plaintiffs before Churchman J, were involved in purchasing two helicopters in late 2016, part of a proposal to provide an air service. Substantial revenues from its fisheries and access to a development fund meant Tokelau could fund projects itself and was no longer entirely dependent on New Zealand aid.

The outcome

Questions arose about whether spending on the helicopters was authorised. Churchman J ruled the two officials were lawfully dismissed but changing their suspension from one “on pay” to one “without pay” was unlawful.

The case was essentially about wrongful dismissal. However, it also highlighted difficulties involved in administering a small group of islands. With some administration in Apia and “government” in Tokelau, potential for misunderstandings arise. The role the Administrator, and New Zealand government officials and advisers have played, sometimes remotely from Wellington, may not always have helped. Reportedly, Mr Ardern, in his time as Administrator, has worked on repairing the sometimes fraught relationship between Tokelau and New Zealand. He has visited the islands several times, once with Mr Faafoi.

The first judgment from the High Court of Tokelau does not specifically address how Tokelau legal processes can deal with other “commercial/contract” matters. There are “contract rules”, some of which the court considered. Dealings with outsiders, including contractors putting in alternative energy generation sources and other infrastructure, raise the spectre of further litigation affected by the unique common law position in Tokelau and the difficulties in administering islands – and during her recent visit, the Prime Minister said she would support an airstrip for Tokelau

Wellington practitioner, Richard Fletcher richard.fletcher@woodsfletcher.co.nz, filed the first proceedings in the High Court of Tokelau. He has maintained an interest in Tokelau administration since then.