30 Oct 2018

NZ law firm says Tokelauans denied legal access, human rights

4:34 pm on 30 October 2018

A New Zealand law firm says Tokelauans are being shut out of legal processes and denied human rights and freedoms.

Tokelau and New Zealand flags flying in Atafu, Tokelau

Tokelau and New Zealand flags flying in Atafu, Tokelau Photo: RNZ PACIFIC / MACKENZIE SMITH

Tokelauans are also New Zealand citizens but local laws apply to people living and working in Tokelau.

On Friday, WCM Legal raised its concerns with the UN Human Rights Council in a submission ahead of its scheduled review of New Zealand's human rights next year.

John Goddard, a solicitor with the firm, says under the law of Tokelau's government, Tokelauans don't have access to a Human Rights Council or Ombudsman.

He said Tokelauans face costly and arduous legal hurdles and were unable to access lower level courts like New Zealanders can.

"It's important that New Zealand provides the same protections, fundamental freedoms and human rights that New Zealand citizens would expect to be able to have."

WCM Legal solicitor John Goddard

WCM Legal solicitor John Goddard Photo: ( RNZ / Phil Pennington )

Mr Goddard is also representing two former public servants in Tokelau's government who are suing their former employer, Tokelau's Ulu, or leader, Afega Gaualofa, and New Zealand's Administrator to the territory, Ross Ardern, over what they allege was their wrongful dismissal.

Their firing in November last year followed their alleged role in the controversial purchase of two helicopters and land using millions of dollars of government funds.

The former public servants, Jovilisi Suveinakama and Heto Puka, are fighting for their case to be heard in Tokelau but so far the High Court in Tokelau has only sat in the Wellington High Court.

"There does not seem to be the necessary infrastructure to hold court hearings in Tokelau," said Mr Goddard, adding that proceedings in New Zealand are costly for Tokelauans to access because of the territory's isolation.

"There does not appear to be any standard provision of legal aid and some of the rules that apply to the law of Tokelau suggest that even if a claimant is successful, they won't end up being paid any money unless they can point to damage to property."

People working in Tokelau's public service - the territory's largest employer - historically were employed by New Zealand's State Services Commission, meaning New Zealand law applied, said Mr Goddard.

"Now, it no longer applies so their position is more marginalised and more vulnerable than it used to be."

Issues raised with the UN

There are no requirements for Tokelau's government to comply with New Zealand's Privacy Act or Official Information Act, Mr Goddard said in WCM Legal's submission to the UN Human Rights Council (UNHCR).

"These arbitrary and unnecessary limits on access to information exacerbate the imbalance in power between Tokelauans and the Government of Tokelau."

Tokelauans must also file all legal proceedings in the High Court of New Zealand sitting as the High Court of Tokelau, despite the court only having jurisdiction for civil disputes worth more than $NZ350,000 in New Zealand, said Mr Goddard.

If the Tokelauan rules of procedure apply instead of the New Zealand High Court rules, "it may be impossible to bring any case against the government of Tokelau, and it may be impossible to obtain any form of monetary compensation," he said.

Tokelauans also have no ability to access New Zealand's employment protections or bring disputes to an employment institution, said Mr Goddard.

The Universal Periodic Review is a five-yearly review by the UNHCR of the human rights records of all UN Member States. New Zealand's third review, which includes its administration of Tokelau, will happen in 2019.

In its submission ahead of the review, WCM Legal recommended the New Zealand government "urgently extend" the Ombudsmen Act, Official Information Act, Privacy Act, Employment Relations Act and Human Rights Commission Act to Tokelau.

The law firm also called for New Zealand to enforce its statute law in Tokelau, urgently provide legal aid and mediation to all Tokelauans involved in or seeking future litigation, put in place all necessary infrastructure for the Court of Tokelau to be able to sit in Tokelau within 12 months and provide Tokelau with air transport within two years.

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