30 Jul 2019

Tokelau High Court finds government withheld pay, in 'historic' decision

4:47 pm on 30 July 2019

Tokelau's High Court has backed the government's dismissal of two public servants, but found it unlawfully withheld pay from them, in the first-ever decision from the New Zealand territory's highest court.

no caption.

Photo: RNZI / Koro Vaka'uta

The ruling on Friday follows a nearly-two year legal fight brought by the two men, Jovilisi Suveinakama and Heto Puka, who were fired in connection with spending $US2.3 million on two helicopters.

The aircraft - which were part of a plan to build a long-desired airstrip on one of the remote atolls - were later sold off after their purchase sparked legal and political turmoil unseen in Tokelau in recent years.

Suspended public service manager Jovilisi Suveinakama

Suspended public service manager Jovilisi Suveinakama Photo: sprep

At times, the helicopters and their fallout have also frayed the territory's relationship with New Zealand, which provides it with tens of millions of dollars in aid each year.

In the judgement, Justice Churchman said the plaintiffs' dismissals in November 2017 were lawful but not the Tokelau government's move to suspend them without pay for the three months prior.

"While those suspensions were withdrawn, and salary backdated, no interest was paid on that salary for the period it was unlawfully withheld," the judgement said, adding that the plaintiffs were entitled to a five percent interest rate on their backpay.

The court decision marks a victory for the plaintiffs and their backers, who include one of Tokelau's three Taupulega, or village councils, which committed to fund some of their legal fees.

Still, Justice Churchman stressed in his judgement any success for the pair was "only to a very minor extent".

Heto Puka

Heto Puka Photo: RNZ Pacific / Mackenzie Smith

He did not accept a number of other claims made by Mr Suveinakama and Mr Puka, including that investigations into their conduct by New Zealand and Tokelau were flawed and their eventual dismissals were unjustified.

The interest to be paid on their backpay is also far less than the months of salary and benefits both plaintiffs sought from the government, and, in Mr Puka's case, his reinstatement as Finance Director.

Still, Justice Churchman did side with the plaintiffs over the controversial purchase of land in Apia, Samoa, where some of Tokelau's government offices are based.

The government had partly justified the pair's dismissals by claiming they had paid above-value for the property, which was bought from an investment group which had showed commercial interest in Tokelau's plans to set up air services.

"I do not accept that there was an appropriate basis for the Council's findings that the plaintiffs were guilty of serious misconduct," Justice Churchman said in response to the government's claims over the land purchase.

If the plaintiffs and the defendants - Tokelau's government and its ulu, or leader, Kelihiano Kalolo - cannot agree on a sum of interest to be paid, the plaintiffs have 30 days to submit a calculation, which the defendants will then be able to respond to.

"Historic moment"

A New Zealand lawyer not involved in the case, Richard Fletcher, said Friday's decision marked an "historic moment" for Tokelau.

"It does give us a little more clarity as to what the law of Tokelau is and how it might apply in the future," he said in an interview.

The court judgement also came on the eve of New Zealand Prime Minister Jacinda Ardern's departure for Tokelau, the first such visit since Helen Clark in 2004.

Ms Ardern has said the trip is an important signal of the government's commitment to its Pacific Reset policy. Her father, Ross Ardern, is the administrator of Tokelau and is joining her on the mission, which will traverse all three atolls and ends Thursday.

Tokelau Administrator, Ross Ardern, in Apia, Samoa.

Tokelau Administrator, Ross Ardern, in Apia, Samoa. Photo: RNZ PACIFIC / MACKENZIE SMITH

Mr Ardern was a third defendant in the case brought by Mr Puka and Mr Suveinakama until his lawyers won a bid in January to strike him out.

His predecessor, David Nicholson, who presided over the helicopter buy, was ousted by Tokelau after disagreeing with the territory's leaders over a response to the incident. A request by another New Zealand official, Jonathan Kings, prompted Tokelau's ulu to suspend Mr Puka and Mr Suveinakama. New Zealand also drafted documents to take back some fiscal responsibility from Tokelau in response to the incident, although these were never actioned.

Since then, Mr Ardern has taken a more diplomatic approach in a bid to repair New Zealand's relationship with its sole territory. After taking up the role last year, he made several visits to the territory including one in September alongside New Zealand's first cabinet minister of Tokelauan descent, Kris Faafoi.

In June, the ulu, Mr Kalolo, told a meeting of the UN Special Committee on decolonisation that Tokelau's village councils were considering a site for a runway on the atolls.

Get the RNZ app

for ad-free news and current affairs