22 Nov 2018

NZ chief justice rejects call for High Court to sit in Tokelau

10:24 am on 22 November 2018

New Zealand's Chief Justice Dame Sian Elias has rejected a bid to have a high-profile court case heard in Tokelau.

Chief Justice Dame Sian Elias at Rimutaka Prison Education Ceremony

Photo: RNZ / Richard Tindiller

It concerns two former Tokelau public servants who were fired last year for their role in the alleged misuse of millions of dollars of government funds.

The plaintiffs, Jovilisi Suveinakama and Heto Puka, wanted their case to be heard in Fakaofo atoll because they say it's an appropriate cultural setting.

They said say the case could resolve important constitutional, political and legal issues in Tokelau if it was heard there.

The pair are suing the government, Ulu Afega Gaualofa and New Zealand's Administrator to the territory, Ross Ardern, over their dismissals.

A hearing has been set for February.

In a High Court judgement from July, which was made available this week, Dame Sian didn't accept the plaintiffs' arguments.

She rejected claims they would face unreasonable costs if the case was heard in Wellington, because neither live in Tokelau.

Tokelau's Ulu, Afega Gaualofa and Faipule of Fakaofo.

Tokelau's Ulu, Afega Gaualofa and Faipule of Fakaofo. Photo: RNZ PACIFIC / MACKENZIE SMITH

A High Court hearing in Tokelau would be costly, logistically challenging and time-consuming, Dame Sian said.

Mr Suveinakama and Mr Puka launched legal action shortly after they were dismissed from government in November last year - on instructions from New Zealand - over their role in the purchase of two helicopters and a property in Apia, which together cost more than $US9 million.

It is alleged they spent the money without proper authorisation.

The pair claim they were wrongfully dismissed and made scapegoats by Tokelau's leaders, a view backed by analysts.

A report from the investigation into their conduct has been withheld from the territory's General Fono, or parliament, until the court case has concluded, which has sparked ire among some local leaders.

In his affidavit, Mr Gaualofa said Tokelau's General Fono hoped to provide infrastructure for High Court hearings in Tokelau in the future, the July judgment showed.

"It may be that there might in the future be a case of such importance where the public interest in holding a hearing in Tokelau would warrant the considerable burden of one-off arrangements being provided," Dame Sian said.

In Mr Suveinakama and Mr Puka's case, the public interest could justify an audio-visual recording for viewing later in Tokelau, she said.

'Culturally friendly justice'

The director of the Pasifika Centre at Massey University, Malakai Koloamatangi, said the case would have been a good test for Tokelau's legal system if it was heard there.

"To my mind there's more to this than just pure administrative justice," he said.

"I think there's also a case for including people, for making justice more friendly, and also to be more culturally friendly."

Dr Koloamatangi said the case could have been a way of marrying traditional Pacific and Western legal systems, which has been replicated across the region.

"[Tokelauans] need to feel included in the system, included in this case, they need to feel that their interests are reflected in the outcome of this court case," he said.

Massey University's Dr Malakai Koloamatangi

Massey University's Dr Malakai Koloamatangi Photo: Massey University

Concerns raised with UN

Last month, New Zealand law firm WCM Legal wrote in a submission to the New Zealand Human Rights Commission that Tokelauans were being shut out of legal processes and denied human rights and freedoms.

John Goddard, a solicitor with the firm who is also representing Mr Suveinakama and Mr Puka, told RNZ Pacific in October that under the law of Tokelau's government, Tokelauans don't have access to a Human Rights Council or Ombudsman.

"There does not seem to be the necessary infrastructure to hold court hearings in Tokelau," Mr Goddard said.