Pacific People’s Constitution Report
First published in September 2000 by the
Ministry of Justice
Ministry of Pacific Island Affairs
P O Box 180
P O Box 833
Wellington
Wellington
New Zealand
New Zealand
www.justice.govt.nz
www.minpac.govt.nz
 Crown Copyright
ISBN 0-478-20145-1
Acknowledgements
It is appropriate to thank many people at this stage of the project for their sponsorship and practical
assistance, which has contributed to the project and the report that follows:
Co-sponsors of the costs – the Ministry of Pacific Island Affairs and The Ministry of Justice.
The Pacific peoples Consultative Panel to the Ministry of Justice, for their persistent strength of
vision for Pacific peoples in New Zealand

Statistics New Zealand staff

MFAT South Pacific Division Director and staff

The Race Relations Conciliator

Human Rights Commission Staff

Parliamentary library staff

Department of Labour

Victoria University
Disclaimer
The information contained in this report is not necessarily the view of the Ministry of Justice. All
information contained is believed to be correct but the Ministry of Justice takes no responsibility for
error or omission.
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CONTENTS
Terms of Reference ..................................................................................................... 7
Preface
...................................................................................................................... 8
Executive Summary .................................................................................................... 9
1 Objectives, definitions and approach .................................................................. 10
1.1
Introduction......................................................................................................................................10
1.2
Definitions and theoretical framework.........................................................................................10
1.3
Nation ................................................................................................................................................10
1.4
State ...................................................................................................................................................11
1.5
An apparent contradiction resolved ..............................................................................................11
1.6
Biculturalism versus multiculturalism ...........................................................................................12
1.7
The relationship between individual freedom and group rights ...............................................13
1.8
Citizenship – the common bond ...................................................................................................14
1.9
Equality - form or substance? ........................................................................................................14
1.10
The rights of minorities ..................................................................................................................16
1.11
Pacific Island communities in New Zealand ...............................................................................17
1.12
Supporting the Polynesian cultures - the holistic approach ......................................................17
2 The history of New Zealand's Pacific connection ............................................... 19
2.1
Introduction: understanding the history ......................................................................................19
2.2
Early expansionist ambitions .........................................................................................................19
2.3
Samoa is added .................................................................................................................................21
2.4
New Zealand's administration of the Island Territories, and of Pacifc people in
New Zealand..................................................................................................................................23
2.5
Decolonisation after World War II ...............................................................................................25
2.6
Independence and self-government ..............................................................................................27
3 Contemporary constitutional status of the homelands and modern
relations with New Zealand ................................................................................ 31
3.1
Introduction......................................................................................................................................31
3.2
The Cook Islands and Niue - associated states ...........................................................................31
3.3
The special relationship between Samoa and New Zealand .....................................................34
3.4
Modern regional relations...............................................................................................................35
3.5
The constitutions of Tonga and Fiji .............................................................................................36
5
4 Description of Pacific populations in New Zealand ............................................ 38
4.1
Population .........................................................................................................................................38
4.2
Health ................................................................................................................................................39
4.3
Education ..........................................................................................................................................39
4.4
Income and Employment...............................................................................................................41
4.5
Housing .............................................................................................................................................43
4.6
Justice ................................................................................................................................................43
5 International and domestic law on minorities ..................................................... 45
5.1
International law – the ICCPR ......................................................................................................45
5.2
Meaning of minority ........................................................................................................................46
5.3
Is Article 27 an individual or a collective right? ..........................................................................47
5.4
Is the obligation of the state under Article 27 active or only passive?.....................................48
5.5
The meaning of the Article 27 right..............................................................................................48
5.6
Specific international expressions of the rights of minorities ...................................................49
5.7
New Zealand reporting to the United Nations on discrimination and minority
rights ...............................................................................................................................................50
5.8
New Zealand domestic law ............................................................................................................51
5.9 Conclusions
6 Implications ............................................................................................................ 55
6.1
The special relationship with Pacific People................................................................................55
6.2
The legal relationship between the New Zealand Government and Pacific
People .............................................................................................................................................56
6.3
Intersection of legal position and special relationship ...............................................................57
6.4
Policy implications ...........................................................................................................................57
6.5
Conclusion ........................................................................................................................................58
Summary of Conclusions
58
6
Terms of Reference
To provide an analysis of the obligations and responsibilities of the New Zealand
Government towards Pacific Island communities in New Zealand against the background
of:
a)
New Zealand’s international obligations under the relevant international
treaties, and the provisions of section 20 of the New Zealand Bill of Rights
Act 1990.
b)
The unique interdependence between the well-being of Pacific Island
communities in New Zealand and that of the home island states with which
New Zealand has historic and sometimes constitutional protective
relationships.
To identify relevant implications for the Ministry of Justice as a State sector policy
agency.
7
Preface
The Ministry of Justice convenes a Pacific peoples Focus Group. This group is an external
advisory body comprising people of Pacific descent with in depth experience in working
with Pacific peoples, and recognised expertise in areas related to Justice. The Focus Group
challenged the Ministry to articulate the nature of the special relationship shared between
Pacific peoples and New Zealand, and to locate Pacific peoples within the constitutional
framework of New Zealand. The Focus Group envisaged that such a location would reflect
the nature of the relationship between New Zealand and Pacific peoples and the implications
of this relationship for Pacific peoples and the New Zealand government. The group also
envisaged that such a location would depict Pacific peoples as having a status and
relationship with the New Zealand government that is distinct from other immigrant groups.
The underlying impetus motivating the Focus Group’s call for this work is a concern for the
well-being of current and future generations of Pacific peoples in New Zealand. Current and
future generations of Pacific peoples require a clear platform from which to meaningfully
interact with government on issues that affect them, and participate in the social, economic
and political arenas of New Zealand society. The composition of this platform will reflect
the historical and contemporary relationships between New Zealand and Pacific nations and
peoples. Many Pacific peoples view New Zealand as ‘home’ and this is likely to increase
with future generations of Pacific peoples in New Zealand.
Disparities between the social and economic position of Pacific peoples and the rest of the
New Zealand population are evident, and in many areas glaring. Government is
demonstrating its commitment to addressing these disparities and this is evidenced by the
Government’s work-programme for Closing the Gaps. The Pacific Focus Group applaud
the current Government’s commitment and are concerned to ensure that the well-being of
Pacific peoples in New Zealand continues to be addressed by successive governments both
as a priority, and as a matter of course.
Pacific people in New Zealand collectively benefit from the rights of minority groups
recognised in international law under Article 27 of the International Covenant on Civil
and Political Rights, incorporated into New Zealand law through section 20 of the New
Zealand Bill of Rights Act. In that sense there is a special constitutional role for the
relationship with Pacific Island people in New Zealand and the New Zealand
Government has legal constitutional obligations in respect of Pacific people. On top of
this legal status as a minority group, Pacific people have a special relationship with New
Zealand, deriving from a range of unique historical, demographic and geographic factors
which are detailed in this report. This gives rise to a moral obligation on the part of the
New Zealand Government to advance the interests of Pacific people, in particular to
address their socio-economic needs and the need to maintain their cultures.
This document is an attempt to trace the involvement and contribution of successive New
Zealand governments to the present situation and circumstances of Pacific people, and to
draw from this and from the international legal context a framework for conducting and
informing interactions between the New Zealand government and Pacific peoples in New
Zealand.
8
Executive Summary
The Ministry of Justice has prepared this Pacific Island Peoples’ Constitution Report in
conjunction with the Ministry of Pacific Island Affairs.
It has endeavoured to assemble a descriptive account of the history and modern
development of some demographically-significant Pacific Island communities in New
Zealand. It includes an assessment of any reasons or principles that might be relevant to
recognition of these communities and the development of policies in regard to them by
New Zealand Governments. The communities chosen are those originating from the
Cook Islands, Niue, Samoa, the Tokelau Islands, Fiji and Tonga.
This report is a constitutional inquiry in three senses.
Firstly, because it seeks to analyse the ways in which the rights and obligations of New
Zealand citizenship - a core constitutional concept - are relevant to the lives and
aspirations of citizens and communities choosing to maintain a link with the cultures of
their particular Pacific Island homelands.
Secondly, because four of the six communities trace their origins to homelands with
current or recent formal constitutional links to New Zealand (the Cook Islands, Niue,
Tokelau and Samoa).
Thirdly, the report proposes how the New Zealand Government might approach policymaking for these communities, while remaining true to the terms and spirit of both New
Zealand and international law, and maintaining the reputation of New Zealand as an
honourable and responsible state in the South West Pacific.
Chapter 1 defines the objectives, definitions and the approach taken in the preparation of
the report. It seeks to clarify the terms ‘nation’ and ‘state’ and the rights of people living
outside of their homeland.
The second chapter follows the history of New Zealand's Pacific connection, including
Seddon’s voyage in 1900 and New Zealand's 'little empire'. It follows subsequent
developments including decolonisation.
Chapter 3 discusses the contemporary character and constitutional status of the chosen
Pacific states – the homelands and modern relations with New Zealand.
Current demographics of the Pacific Island populations in New Zealand are looked at in
Chapter 4. This includes health, education, income and employment, housing and justice.
New Zealand Domestic Law and International Law on Minorities and Ethnic Groups is
the subject of Chapter 5. This includes New Zealand Domestic Law on Minorities, the
Bill of Rights Act, the Human Rights Act, the International Law on Minorities, the
International Covenant on Civil and Political Rights, the UN Economic and Social
Committee (ECOSOC) and the Human Rights Commission jurisprudence on Minorities.
Chapter 6 sets out the implications of the report.
A Summary of Conclusions completes the report.
9
Objectives, definitions and approach
Introduction
The expression “Pacific peoples” refers to the whole nation, those living in the
homelands and those living in New Zealand. The nation as a whole may therefore be
regarded as properly the subject of international law regarding self-determination. But
this is not to suggest that the same applies to those living as citizens in another state - in
this case New Zealand.
Definitions and theoretical framework
The terms state, nation, nation-state, people, culture, bicultural, multicultural, and others,
are the building blocks of modern debate about identity and politics. Unfortunately, they
are often used without either definition or consistency - the result is sometimes
intellectual chaos and misunderstanding. To avoid this result, definitions of some key
terms are proposed and discussed.
It must also be acknowledged that discussion about identity and power has tended to
employ a particular set of terms as if they had universal validity, and while these building
block terms cannot claim universal validity, they do provide the language of the
contemporary debate.1
Nation
The Canadian political philosopher, Will Kymlicka2 proposes the term nation:
'means a historical community, more or less institutionally complete, occupying a
given territory or homeland, sharing a distinct language and culture'.
It will be noticed that Kymlicka expressly disclaims descent and blood connection as a
requirement for the nation. He says ( p.23):
'Such descent-based approaches to national membership have obvious racist
overtones...It is indeed one of the tests of a liberal conception of minority rights
that it defines national membership in terms of integration into a cultural
community, rather than descent. National membership should be open in
principle to anyone, regardless of race or colour, who is willing to learn the
language and history of the society and participate in its social and political
institutions'.
The point is made more laboriously in UNESCO 's Statement on Race (1950):
'One problem of the academic study of racial relations is that it has been dominated by scholars from the
English-speaking world, and particularly by social scientists who have either grown up in the United States
or have unconsciously taken over assumptions originating there…the economic and mass media power of
the United States has permitted that country 's folk definitions on race to be transmitted to other regions
and represented as universal categories ' UN Doc E/CN.4/Sub.2/1987/5
2 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarendon Press, Oxford, 1995. p. 11.
1
10
On the other hand, the internationally-known New Zealand jurist, Sir John Salmond
(1862-1924), writing nearly a century ago3, made descent an essential feature of his
definition:
'A nation is a society of men united by common blood and descent and by the
various subsidiary bonds incidental thereto, such as common speech, religion and
manners'.
For the purpose of this report, a definition which synthesises the Kymlicka and Salmond
proposals, is adopted:
'A nation is a community united by descent or history, and by a distinct language
and culture'.
Accordingly, this report proposes that either a blood connection or a shared history, or
both, together with common language and culture, can constitute a nation.
This widening of the term means it will be possible to speak of a New Zealand nation, a
Maori nation, a New Zealand-based part of the Niuean nation, and perhaps even a
Pacific-wide Polynesian nation as subsisting at the same time and with overlapping
memberships.4
State
Sir John Salmond proposed that a state is:
'a society of men united under one government'.
Modernisation of the gender reference will produce this variation:
'a society united under one government'.
The members of a society so united are properly described as 'citizens' of the state.
An apparent contradiction resolved
Salmond drew attention to two apparently contradictory tendencies. First, he observed:
'in every nation there is an impulse, more or less powerful, to develop into a state
- to add to the subsisting community of descent a corresponding community of
government and political existence'.
He also noted that:
'every state tends to become a nation; that is to say, the unity of political organisation
eliminates in the course of time the national diversities within its borders, infusing
throughout all its population a new and common nationality…'
Sir John Salmond, Jurisprudence, seventh edition, Sweet and Maxwell, London, 1924. This edition was the last
for which Salmond was responsible and is therefore regarded as the most definitive of Sir John's concluded
views.
4 For in depth discussion of the nature of nationhood, see Benedict Anderson Imagined Communities: Reflections on
the Origin and Spread of Nationalism, Verso, London, 1991; E J Hobsbawn Nations and Nationalism Since 1780,
Redwood Press Ltd, Wiltshire, 1990, and Ernest Gellner Nations and Nationalism Basil Blackwell, Oxford,
1983. For a New Zealand perspective, see Angus Ross New Zealand Aspirations in the Pacific in the 19th Century
Oxford University Press, 1964.
3
11
If Sir John Salmond is right, states containing more than one nation seem doomed to
fragmentation as those nations follow the aspiration to separate statehood, unless those
aspirations are overtaken by the counter-tendency of the state to generate a sufficient
sense of commonality in its citizens to constitute a new meta-nation. This report suggests
that the two tendencies are not only compatible, but are simultaneously required if the
potentially negative consequences of each are to be avoided.
The optimal situation is one of balance between the tendencies, so avoiding the extremes
of ultra-nationalism and ultra-statism. The enlightened state, therefore, may encourage
its several national identities and at the same time seek to build the new synthetic
common national identity.
Such a policy is not contradictory, but rather a means of maintaining an equilibrium
under which the respective benefits of diversity and societal order around agreed values
may be realised. If the purpose of encouraging contrary tendencies is recognised, then
governments will detect the point at which that balance has moved too far in either
direction. As Etzioni has observed:
'there are always the twin dangers of too much and too little social pressure. As when
we ride a bike, we need to lean in the opposite direction of where the course of social
history is tilting us'.5
Biculturalism versus multiculturalism
A former Prime Minister of New Zealand, the Rt. Hon. Mike Moore, when an opposition
Member of Parliament, proposed a private Member's Bill that would enable the
convening of a Constitutional Convention for certain purposes. Without in any way
commenting on the merits of the proposal, attention is drawn to the following passage in
the recitals to the proposed Bill as published:
'New Zealand has attained the status of a sovereign nation and become a bicultural
and multicultural society' (emphasis added).
As a matter of logic it would appear untenable because contradictory. But as a matter of
practical politics it is an imperative conclusion from the current jurisprudence of the Treaty
of Waitangi, and the content of domestic and international law regarding minorities.
However, the dichotomy troubles many New Zealanders and it may be worth considering
Tully's complaint that the terms carry the assumption that cultures are fixed and separate
streams:
'The modern age is intercultural rather than multicultural… Cultural diversity is a
tangled labyrinth of intertwining cultural differences and similarities, not a
panopticon of fixed, independent and incommensurable worldviews in which we are
either prisoners or cosmopolitan spectators in the central tower'.6
Another mode of expressing the dichotomy is provided by Kymlicka's system of definitions.
Of his own country, Canada, Kymlicka would say that it is both a multination state (the First
Nations, the Francophone Quebecois, and the Anglophone Canadians), and a polyethnic state
(comprising many other ethnic groups, such as Chinese, Hungarians etc.).
5
6
Amitai Etzioni, The Spirit of Community, first published 1993. Fontana Press, 1995 p.37.
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge University Press, 1995.
12
Kymlicka prescribes much greater legal protection and autonomy for nations – especially
where they are in a demographic minority – than for ethnic groups who are viewed as having
waived their autonomy (although not their diversity) by immigrating to the new state.
This report will prefer the expression intercultural, to capture the changing, creative and
adaptive process by which the many cultural identities within New Zealand society interact
and, together, encourage us to speak of a 'New Zealand identity'. Etzioni has used the
expression 'a community of communities' and makes the point that:
'if by multiculturalism one means that young Americans should learn more about the
many backgrounds of those who together make up America, it would enrich us all.
If (however) one means that there would be no shared heroes or values, that there
would be no recognition of one shared core – especially democracy, mutual respect,
and individual rights…it might destroy our unity and thus our society'.7
The relationship between individual freedom and group rights
Modern writers have pointed to a link, overlooked in some quarters, between the
flourishing of individual potential and freedom and the fostering of minority national
cultures.
Kymlicka and Tully have suggested that the realisation of individual freedom is only
possible in the context of a societal culture that supplies the options and values in which
freedom is exercised. To the extent that some citizens languish outside the majority
societal culture, and that the alternative culture to which they belong goes unrecognised
and unsupported by the institutions of state, they are correspondingly deprived of
meaningful freedom, whatever theoretical equality is guaranteed to them by formal
constitutional law.
It cannot be forgotten that the foundation on which this link is built is the liberal tradition,
which is characterised by Martha Nussbaum:
'At the heart of the liberal tradition is a two-fold intuition: that all, just by being
human, are of equal dignity and worth, no matter where they are situated in society;
and that the primary source of this worth is a power of moral choice within them,
which consists in the ability to plan a life in accordance with one's own evaluation of
ends…' 8
A former New Zealand Prime Minister, Norman Kirk, perhaps expressed the essential
balance between unity and diversity, and the connection between culture and civil rights, in
some pungent observations made in the New Zealand Parliament not long before his death
in 1974:
'...we are not one people; we are one nation. The idea of one people grew out of the
days when fashionable folk talked about integration. So far as the majority and the
minority are concerned integration is precisely what cats do to mice. They integrate
them. The majority swallow up the minority; make it sacrifice its culture and
7
8
Etzioni, supra note 5, p.148.
Martha Nussbaum, “The Sleep of Reason,” Times Higher Education Supplement, Feb.2 1966, p.17. Nussbaum is
Professor of Law and Ethics at the University of Chicago.
13
traditions and often its belongings to conform to the traditions and the culture of the
majority...' 9
Citizenship – the common bond
The constitutional status of New Zealand citizens of Pacific Island origin is one shared
with all New Zealand citizens of whatever origin. It entitles all citizens to the same rights
and obligations. In addition, visitors to New Zealand who are not New Zealand citizens
also enjoy rights, and have obligations, under New Zealand law and international law.
Sir John Salmond observes that:
'The state, therefore, consists in the first place, of all those who…are its citizens
or subjects, and, in the second place, of all those who for the time being reside
within its territory, and so possess a temporary and territorial title to statemembership. Both classes are equally members of the body politic, so long as
their title lasts; for both have claims to the protection of the laws and government
of the state, and to such laws and government both alike owe obedience and
fidelity…The practical importance of the distinction between the two forms of
state-membership lies chiefly in the superior privileges possessed by citizens or
subjects'.10
Salmond points to the reciprocal nature of the relationship between a state and its
members:
'The state owes protection to its members, while they in turn owe obedience and
fidelity to it….in return for its protection the state exacts from its members services
and sacrifices to which outsiders are not constrained'.
In a context which will be examined later, then Prime Minister Norman Kirk stated in a
letter to Premier Albert Henry of the Cook Islands in 1973:
'The very survival of a state may depend upon the belief of its citizens in common
ideals and their sense of loyalty towards each other'.11
Citizenship thus provides the common bond, the constitutional glue that underpins the
political and constitutional reality of the state. This chapter suggests that it needs to be
balanced by support for diversity where citizens perceive themselves simultaneously as
members of other cultural groups. But as Norman Kirk warned, the common ideals will be
neglected at the peril of all.
Equality - form or substance?
A question in relation to the position of minorities arises from the demonstrable fact that
formal legal equality does not always translate into equal enjoyment of social benefits
such as health, education, or housing. The reasons for this are complex, and will be
Prime Minister Kirk, NZPD Vol. 391 (1974) at p.2691.
Salmond, Jurisprudence, supra note 5, p.146-147.
11 Prime Minister Kirk to Premier Henry, 4 May 1973, App.J.H.R. 1973, A-10.
9
10
14
investigated later in this report, and any serious and persistent imbalances in relation to
Pacific Island communities identified.
This report argues that equality in substance, rather then merely in form, may sometimes
call for community-specific initiatives. Such an argument might rely on the dispensation
of section 19 (2) of the New Zealand Bill of Rights Act 1990 that contemplates:
'Measures taken in good faith for the purpose of assisting or advancing persons or
groups of persons disadvantaged because of colour, race, ethnic or national
origins…do not constitute discrimination'.
Indeed, Article 2 (2) of the Convention on the Elimination of All Forms of Racial Discrimination
(CERD), to which New Zealand is party, requires that:
'states Parties shall, when the circumstances so warrant, take, in the social economic,
cultural and other fields, special and concrete measures to ensure the adequate
development and protection of certain racial groups or individuals belonging to
them, for the purpose of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms…'
A New Zealand scholar who made a significant contribution to modern thinking on the
rights of minorities, the late Dr Warwick McKean, summarised the position in this way in a
1983 publication:
'It is now generally accepted that the provision of special measures of protection for
socially, economically, or culturally deprived groups is not discrimination, so long as
these special measures are not continued after the need for them has disappeared.
Such measures must be strictly compensatory and not permanent or else they will
become discriminatory. It is important that these measures should be optional and
not against the will of the particular groups affected...The other type of protective
measure which is permissible is the provision of special rights for minority groups to
maintain their own languages, culture and religious practices, and to establish
schools, libraries, churches and similar institutions. These measures are not
discriminatory because they merely allow minorities to enjoy rights that are exercised
by the rest of the population. Such measures produce an equilibrium between
different situations and should be maintained as long as the groups concerned
wish'.12
McKean emphasised that:
'The principle of the equality of individuals under international law does not require a
mere formal or mathematical equality but a substantial and genuine equality in fact'.13
It is in keeping with current government policy that serious and persistent imbalance in the
enjoyment of social and economic benefits as between identifiable ethnic groups should be
the subject of official study with a view to progressive improvement. Indeed, the
Government is currently endeavouring to address the imbalances experienced by Maori and
Pacific people vis a vis other New Zealanders, and to this end has set up a Cabinet
Committee for that specific purpose. This programme can be seen as part of the
W.A. McKean, Equality and Discrimination under International Law, Clarendon Press, Oxford, 1983, at page 288.
McKean here foreshadows Kymlicka 's point noted above, that genuine civic equality may require different
treatment for members of minorities.
13 McKean, supra, p.288.
12
15
Government’s “good governance” obligations in respect of all groups whom it governs. The
question arises whether special treatment for demonstrably disadvantaged groups, or special
recognition of ethnic or cultural identity, are not a form of separate development based on
race, and as such, comparable to the universally-condemned former regime of apartheid in
South Africa.
The contention by the former South African Government in the South West Africa Cases in
the 1960s was that 'geographical, historical, ethnological, economic and cultural differences
and variations between population groups' necessitated the adoption of a policy of separate
development, which was the best method of achieving well-being and social progress.
The list of justifying features is not unlike the support of special treatment for Pacific Island
communities. The answer to the attempted comparison is that different treatment imposed by
the dominant group to the detriment of the minority group is clearly distinguishable from
different treatment requested by a minority for what it perceives as its benefit. Judge Tanaka's
dissenting opinion in the South West Africa Case is widely regarded as the most eloquent
judicial exposition of that distinction.14
The rights of minorities
The rights of minorities are recognised in international instruments to which New
Zealand has bound itself (the International Covenants on Civil and Political Rights and
on Economic and Social Rights) and in domestic law in section 20 of the New Zealand
Bill of Rights Acts 1990:
'A person who belongs to an ethnic, religious, or linguistic minority in New Zealand
shall not be denied the right, in community with other members of that minority, to
enjoy the culture, to profess and practise the religion, or to use the language, of that
minority'.
The link between the ICCPR (Article 27) and section 20 of the New Zealand Bill of
Rights Act is clear both from the almost identical wording and the explicit preambular
declaration in the Act that it is enacted to affirm New Zealand's commitment to the
Covenant. Furthermore, New Zealand's acceptance since 1989 of the process under the
Optional Protocol means that New Zealand citizens are able to invoke scrutiny of New
Zealand laws and practices for conformity with the Covenant. A later chapter of this
report will survey and analyse the pronouncements of the Human Rights Committee of
the United Nations as to the meaning and content of Article 27 in relation to ethnic and
linguistic minorities, and to relate that to the position of Pacific Island communities in
New Zealand.
A tension is evident in the work of the United Nations concerning protection of
minorities, prevention of discrimination and active support for minorities. The difference
14
For discussion, see Thornberry (note 15 infra) at p. 314-318. Judge Tanaka's opinion is reported at ICJ
reports 1966, 4 at p.284-316.
16
is sometimes expressed as one between minorities by will (groups choosing to remain
different), and minorities by force (groups kept in a minority position by discriminatory
action of the dominant culture).15 However, no one doubts that both approaches are
relevant to the human rights of members of minority groups.
A brief survey of New Zealand domestic legislation concerning discrimination on ethnic
and related grounds will also be presented in Chapter 5.
Pacific Island communities in New Zealand
Two features distinguish the six Pacific Island communities chosen for this study:
(i) An historical, geographical, and (in three cases) a current constitutional
relationship between the homelands and New Zealand.
(ii) A significant, and growing, proportion of the total national population of the
homelands is resident in New Zealand.
In addition, all of these communities have homelands within the Polynesian family, and
thus have ethnic and historical connections with the tangata whenua in New Zealand, the
Maori Nation.16 Although this feature does not, of itself, entitle the newer Polynesian
arrivals to rights additional to those attaching to New Zealand citizenship, it is a reminder
that the culture and history of the Pacific Ocean (Te Moana Nui A Kiwa) is part of Maori
culture in accordance with the well-known whakatauki:
E kore e ngaro he kakano i ruia mai i Rangiatea
(the seeds from Rangiatea shall not be lost)
- a reference to the physical and spiritual things which voyaged from central Polynesia to
New Zealand with the first Polynesian settlers.
Each of these features will be developed in subsequent parts of this report. For the
moment it is enough to note that, together, these features distinguish these Pacific Island
communities in New Zealand from other immigrant communities, although much of what
is said about the need to have regard for identity and substantive equality for all ethnic
groups within the state applies to all ethnically conscious groups of whatever origin.
Supporting the Polynesian cultures - the holistic approach
The value of bio-diversity is beginning to be understood in the modern world.
Preservation of the varieties of life forms is now seen as a work of protection for the
future of all humankind. It cannot be predicted which variety may be the key to some
The distinction is found in the very title of the UN's Sub-Commission on Prevention of Discrimination and Protection
of Minorities. For a full discussion of the background to the tension, and the rival views, see Patrick
Thornberry, International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991.
16 The apparent exception, Fiji, also has Polynesian connections: the island of Rotuma has a population mainly
of Polynesian origin (a feature recognised in the special treatment of Rotuma in the Constitution of Fiji (1997)
see Article 6(d)). In addition, Polynesian elements have historically been mixed with the indigenous Fijian
people. It is however true that Fiji presents a different case, especially because of a very strong Indo-Fijian
minority.
15
17
future advance, or prove to be a life-raft in future peril. The same is true for the varieties
of Polynesian and Pacific culture, for example, the preservation of Niuean culture, with
its own variant of the Polynesian language, and its own distinctive accounts of the world
and of the place of people in it.
This report suggests that the history of New Zealand's involvement in the South Pacific
has created at least a moral obligation to support these island nations in the preservation
of their cultures. Furthermore, it is suggested that this supportive role will best be
discharged by viewing these cultures in an holistic manner - that is, in viewing the
culture situated in the homeland and that situated in New Zealand as two parts of a whole.
In policy terms, this blurs the lines between foreign and domestic policy - but it is argued
that the approach will produce gains for each branch of policy. It will be important that
such an approach involve the governments of the homelands while avoiding any
suggestion of interference in their domestic affairs. The existing organisations for
consultation and co-operation in the South Pacific, especially the South Pacific Forum
and its Secretariat, may provide the machinery for such an approach, and indeed may
already be facilitating some initiatives fitting the recommended model.
Although this report points to some obligations the state owes to its minorities in
accordance with international and domestic law, it also draws attention to some features
of the Pacific Island communities in New Zealand, which suggest a particular approach to
policy-making. In the second case, policy-makers are doing no more than heeding the
judgement in the Ministry of Justice's recently commissioned study titled Healthy
Constitutional Relationships in a Culturally Diverse Society that states:
'The characteristics of healthy and robust working relationships between the Crown
and the groups that make up our society and between each of those groups is similar
to the characteristics of healthy and robust working relationships between
individuals, communities or countries. These characteristics can be summarised as
involving commitment and communication leading to co-operation'.17
17
'Healthy Constitutional Relationships in a Culturally Diverse Society.' Internal resource paper prepared for
the Ministry of Justice in 1998, marked 'Not Government Policy ', p.33 of typescript.
18
The history of New Zealand's Pacific connection
Introduction: understanding the history
This chapter traces the history of the process by which the homelands came to be, in four
cases, part of New Zealand's territorial jurisdiction. A second process by which the
homelands under New Zealand jurisdiction came to be seen as political and economic
liabilities, and were encouraged to accede to independence is also relevant to this report.
Those histories are not always appreciated, and there is sometimes a tendency to think
that the island populations have somehow insinuated themselves into New Zealand
without much regard either to invitations or to the duties of guests.
In fact, New Zealand enthusiastically pursued an expansionist policy within the South
Pacific a century ago. It energetically sought the encompassing of the territories and
populations by New Zealand governance. It actively recruited immigrant island labour as
required by the New Zealand economy, and repeatedly assured both the Pacific people
and the world of its good intentions and of the benefits which would accrue to the
populations concerned from adherence to the New Zealand State.
No attempt will be made to catalogue all the legislative steps in the pathway to
independence and self-government of New Zealand's former Pacific territories. Nicola
van der Beek's Annotated Bibliography,18 compiled as part of the present project,
contains much useful material in this regard. That volume should be viewed as a
companion resource to this report, which aims at capturing the broad sweep of
developments rather than duplicating the coverage of the Bibliography.
Early expansionist ambitions
Perhaps the earliest connection is to be found in the aspirations of Governor George
Grey, who, in his first term of office (1845-1853):
'wrought unceasingly in the endeavour to establish an island federation under the British
flag. He induced the chiefs of Tonga, Fiji, New Caledonia, Tahiti and the Loyalty Islands
to consent to the establishment of British sovereignty in their territories, and the
institution of customs duties identical with those of New Zealand, the proceeds from
which would defray the expenses of a simple form of Government. But his enthusiasm
found no echo in the Colonial Office…' 19
By the turn of the century, Premier Richard Seddon found sufficient political momentum
to turn New Zealand aspirations for a wider Pacific influence into reality. An interesting
light is thrown upon Seddon's motives and vision by the following excerpts from his
Nicola van der Beek, Annotated Bibliography of Legal Instruments and other Documents relevant to the Relationship
between New Zealand and Six Pacific Nations, Ministry of Justice, Wellington, 1998. This helpful resource will be
referred to as 'Annotated Bibliography '. Like this report, the Bibliography is also available electronically at
www.justice.govt.nz and www.minpac.govt.nz.
19 Hight and Bamford, The Constitutional History and Law of New Zealand, Whitcombe and Tombs, 1914, p.205.
18
19
speeches in the New Zealand Parliament in support of motions for Pacific Islands
annexation by New Zealand in 1900:20
'In respect to the resolutions, it will be said, if they are carried that this is the
commencement of New Zealand's foreign policy…I contend that the extension of
our boundaries, the bringing in of people and communities with us whose interests
are identical, is in truth the interests of our colony, and will profit our colony for all
time' (387).
After criticising the London authorities for failing to take opportunities for extending
British influence in the South Pacific, and referring to the possibility of New Zealand
joining the then incipient Australian Commonwealth at some time in the future, Seddon
said:
'They will think more of us as a nation in years to come, with islands of our own,
than as we exist now were we to go to them and ask to be federated' (391).
Seddon's enthusiasm and impatience at the hesitation of some Members of Parliament
appears from another intervention in the debate:
'There is the cruiser Mildura in our harbour buoyant and ready. Her engines are
throbbing. She is tearing at the hawser. She wants to get away as the messenger of
peace and expansion. What is her mission? Her mission is to help you, to help this
colony, and to help the Empire; and then honourable members are so dense as to say
they do not understand the necessity' (423).
Finally, the Premier delivered a classic statement of orthodox nineteenth century
imperialism:
'We are commencing a new century, and with its dawn let us commence a new life –
one of expansion and on the forward path of our ultimate destiny…Our dear old
flag will for ever float over the islands insuring justice and freedom to all' (425).
Soon after, in May 1900, Seddon and a party of family, friends, and officials embarked
on the Government despatch-boat S.S. Tutanekai for a voyage to Tonga, Fiji, Niue, and
the Cook Islands. The Premier's overtures to leaders during the voyage indicate the clear
purpose of soliciting agreement to New Zealand annexation.21 The voyage was successful
in respect of the Cook Islands and Niue – within a few months a Petition from the
principal Ariki in Rarotonga was forthcoming:
'We, the Arikis of Rarotonga…on the 6th day of September, 1900, do hereby
petition His Excellency the Governor of New Zealand to annex the islands of
Rarotonga …to the British Empire. And whereas we are of the same race as the
20
21
All the quotations from Premier Seddon are found at NZPD, Vol.114 (1900) at the pages indicated.
See The Right Hon. R.J. Seddon's Visit to Tonga, Fiji, Savage Island, and the Cook Islands – May 1900, Government
Printer, Wellington, 1900. Edward Tregear kept the account of the voyage: it contains many photographs of
the Premier with leading figures in the Islands visited. The initial publication of the account was withdrawn
on the demand of Premier Seddon who complained that it exhibited photographs of a private nature - a
second publication was produced without the offending items. The intention of annexing the Cook Islands
to New Zealand is evident in the actions of other leading figures. For example, W.E. Gudgeon, who had
been appointed 'British Resident ' in Rarotonga under earlier Protectorate arrangements, worked singlemindedly to that end as is clear from his biographer's account, see Elsdon Craig, Destiny Well Sown,
Monograph No.12, January 1985, Whakatane & District Historical Society. See particularly Chapter XV.
20
Maoris of New Zealand, and all our trade is with those islands, we are willing to
become part and portion of that colony…' 22
On 13 May 1901, the British Government issued an Imperial Order in Council under the
Colonial Boundaries Act 1895 (UK). This extended the boundaries of the Colony of New
Zealand to include the Cook Islands, as the Lower Group were then loosely termed, and
other islands (the Northern Group and Niue) within certain defined limits. Proclamations
issued in Auckland on 10 and 13 June 190123 formally applied the Imperial Order in
Council on 11 June 1901, from which date until the coming into force of the Cook Islands
Constitution Act 1964 (NZ), on 5 August 1965, the Cook Islands was part of New
Zealand. Niue, similarly became part of New Zealand until the coming into force of the
Niue Constitution Act 1974 (NZ) on 19 October 1974.
Samoa is added
On 15 August 1914, eleven days after the declaration of war against the German Empire, the
New Zealand Government despatched a military force to land in and seize from the German
authorities the islands which form the modern independent state of Western Samoa. The
landing took place on 29 August 1914, and the New Zealand Solicitor General, later Sir John
Salmond, described the constitutional status of the territory at that point as follows:
'…it is enemy territory in the temporary occupation of His Majesty's Forces and is
under the despotic government of the Officer Commanding those Forces...' 24
Following the war, it was clear that there would be no return to German control. Both the
Australian and New Zealand Prime Ministers, Hughes and Massey, were determined that
the German territories should accrue to their respective states as visible compensation for
the sacrifices endured in the war. Not even President Wilson's idealistic calls at the peace
conference in Versailles for an end to colonialism and respect for a newly-coined term
self-determination, could shake the determination of the Australasian leaders on this
matter. The British Cabinet Secretary, Hankey, reported the impasse:
'Hughes and Massey, who insist on annexation of the German islands in the South
Pacific are our principal difficulty, but President Wilson, in his insistence on the
affiliation of those Colonies...to the League of Nations, is even more obstinate...'
25
The compromise was what became know as the 'C Mandate'. It relaxed the Wilsonian
insistence on self-determination by creating a special category of Mandate recognised in
Article 22(6) of the Covenant of the League of Nations as follows:
'There are territories, such as...certain of the South Pacific Islands, which, owing
to the sparseness of their population, or their small size, or their remoteness from
See AJHR 1900, Vol. 1, A-3J.The Petition was explicitly subject to some provisos concerning land rights and
other matters.
23 The Proclamation of 13 June appears in New Zealand Gazette, Vol.1 (1901), p.1307.
24 Solicitor-General Salmond to Attorney-General Bell, 23 November 1917, Crown Law Office, Wellington,
Opinions to Attorney-General 1913-1918, quoted in Alex Frame, Salmond: Southern Jurist, Victoria University
Press, Wellington, 1995, at page 189.
25 Quote in Salmond: Southern Jurist, supra, at page 190.
22
21
the centres of civilization.…can best be administered under the laws of the
Mandatory as integral portions of its territory...'
It was in accordance with this formula that a League of Nations Mandate was conferred
on New Zealand, paving the way for the empowering of the New Zealand Parliament 'to
make laws for the peace order and good government of the Territory of Western
Samoa'.26 The result was the Samoa Act 1921, which provided the constitutional
framework for the legal system of Western Samoa until independence in 1962.27
The purpose of this summary is not to attempt any evaluation of the New Zealand
administration of Samoa under the League of Nations Mandate. However, the considered
judgement of a recent New Zealand Attorney-General and Minister of Justice must
represent at least a starting point. In 1982, in the context of the citizenship issue that will
be described below, the Hon. J.K. McLay stated publicly that:
'It would be true to say that, in its early years, New Zealand's administration of
Western Samoa was not particularly auspicious. There was considerable unrest in
Samoa, the most publicised incident being the Mau uprising in 1929 when New
Zealand police fired on a demonstration in the streets of Apia killing, among
others, the leader Tupua Tamasese Lealofi III (the uncle of the present Prime
Minister Tupuola Efi).
'However, it would be equally fair to say that in later years both National and
Labour governments made conscious efforts to improve the situation and that,
unlike many former colonial and trustee territories in Africa, Asia and elsewhere,
Western Samoa moved to a peaceful and democratic independence in 1962. That
is something that reflects favourably on both New Zealand and Samoa'.28
Tokelau. The final accretion to the present Realm of New Zealand were the three Pacific
atolls of Atafu, Nukunono, and Fakaofo. These were made a British protectorate in 1889
and became part of the then Gilbert and Ellice Islands Colony in 1916. They were
governed by the Administrator of Western Samoa by British delegation from 1926, and
from 1 January 1949 were, by effect of the Tokelau Act 1948 (NZ), declared to form part
of New Zealand. That constitutional status remains to the present, although as will be
On 11 March 1920 the Western Samoa Order in Council was made 'At the Court at Buckingham Palace '
pursuant to the Foreign Jurisdiction Act 1890 (UK). See, New Zealand Gazette (1920) Vol.II at page 1819. The
convoluted arguments about the manner in which the power ought properly to be conferred are discussed
in Salmond: Southern Jurist, supra, at pages 191-195.
27 The basis of the Act in the earlier Cook Islands legislation, and some detail as to the philosophy and drafting
of the Act is provided in Salmond: Southern Jurist, supra, pages 196-198.
28 Address by the Hon. J.K. McLay to a meeting of the Island Bay Electorate Branch of the National Party in
Wellington on 27 September 1982, set out in New Zealand Citizenship and Western Samoans, Information
Bulletin No.4, March 1983, Ministry of Foreign Affairs, Wellington, at page 40. The reference to the then
Samoan Prime Minister is to the present leader of the opposition in Samoa, Tuiatua Tupua Tamasese Efi.
The culpability of the New Zealand authorities in relation to the Mau protests, and the killing of Tamasese
when police opened fire on a procession in Apia on 28 December 1929, is judged more severely by some
commentators, for example Michael J. Field, Mau: Samoa's Struggle for Freedom, Polynesian Press, revised,
1991.
26
22
seen in the next chapter, development towards a self-determined autonomy is at an
advanced stage.29
New Zealand's administration of the Island Territories, and of Pacifc
people in New Zealand
Sir Apirana Ngata, and his close friend Te Rangi Hiroa (Sir Peter Buck), were perhaps the
first New Zealand statesmen to advocate a wider pan-Polynesian perspective in New
Zealand's administration of its dependent territories in the South Pacific. Buck wrote to
Ngata in 1934:
'I would like to see a wider Polynesian spirit and consciousness developed among
the various branches…The wider Polynesian Department which you envisaged
would certainly lead in that direction but the pakeha politicians do not see as we
see. It is unfortunate that we made such a bad break with Samoa'. 30
In general, administration - of the island territories and for Pacific peoples living in New
Zealand - has followed a zigzag course as to structure, and philosophical direction. This
does not mean that there was absence of goodwill, or that there were not significant
achievements both in the territories and for Pacific peoples in New Zealand. Study of the
voluminous reporting on the administrations in Samoa, the Cook Islands, Niue, and
Tokelau to be found in the annual volumes of the Appendices to the Journals of the
House of Representatives leaves the reader impressed with the dedication of officials
serving in the territories. However, the judgement of an experienced modern observer
seems fair:
'The pre-war experience had shown that administration of all four territories was
an altogether tougher and less glamorous matter than the late nineteenth century
politicians would have imagined. Indeed policy making was frequently
characterised by muddle or even neglect'.31
The External Affairs Act 1919 set up a Department charged with the oversight of New
Zealand's responsibilities in the South Pacific - Western Samoa and the Cook Islands and
Niue. The Minister, Sir James Allen, explained:
' … if the mandate is to be taken by New Zealand, some responsible Minister
must be appointed here to take charge of and look after the affairs of Samoa, and
with Samoa the affairs of the Cook Islands, and to deal with other external
questions'.32
The External Affairs Act amended the Cook Islands Act 1915 under which the
administration of the Cook Islands had been overseen. The functions, powers and duties
For a recent and helpful account of the developments from an experienced adviser on Tokelau matters, see
Professor Tony Angelo, 'Establishing a Nation - Kikilaga Nenefu', Victoria University of Wellington Law Review,
Vol. 30 (1999), p.75-89.
30 Buck to Ngata, 15 April 1935, Na To Hoa Aroha, Vol.(ii) p. 149. The reference to Samoa is of course to the
attempted suppression of the Mau movement and the consequent alienation of Samoan popular opinion
from the New Zealand administration.
31 Lindsay Watt, Decolonisation Chapter VII in M.Templeton (ed.), New Zealand as an International Citizen: Fifty
Years of United Nations Membership, Ministry of Foreign Affairs and Trade, Wellington, 1995, page 111.
32 Hon. Sir J. Allen, NZPD Vol.185 (1919) p.539.
29
23
previously exercised by the Minister for the Cook Islands was now carried out by the
Minister of External Affairs.33 The Cook Islands function was separated from the
Minister of External Affairs in 1920 under the External Affairs Amendment Act, and the
Minister for the Cook Islands was restored.34 Under the Cook Islands Amendment Act
1932, the Ministry also took on the responsibility for the administration of Niue,
previously exercised by the Cook Islands Minister.
By 1943 the range and complexity of New Zealand's international relations had made
necessary the creation of a fully-fledged Department of State to deal with foreign affairs
in the full sense of relations with the other states of the international community.35 The
then-Prime Minister, Mr Fraser, explained:
'At the present time there is a Department of External Affairs in New Zealand, but
it is confined in its functions to the administration of Western Samoa. The title
was relevant of the time, but today the term external affairs connotes something
much wider in the public mind'.36
Thus the function of the administration of the Pacific islands (Western Samoa only at this
point) was separated out from the Department of External Affairs. In the resulting gap,
the Government created the Ministry of Island Territories under the Island Territories Act
1943, bringing the administration of Samoa, the Cook Islands and Niue together once
again.
In 1968 the Island Territories Act 1943 was abolished and the Department of Island
Territories was amalgamated with the Department of Maori Affairs. The change was
effected on the advice of the State Services Commission, and probably depended in part
on the expertise in both Maori and Island matters of the Permanent Head of the new
Department, Mr Jock McEwen.37 The new Department of Maori and Island Affairs
functioned as a link between the Minister of Island Affairs and the Governments of the
Cook Islands and Niue, and the Tokelau Islands administration. It also retained
responsibility 'for the welfare, housing, and other needs of islanders living in New
Zealand'.38
By 1974 it was evident that this structure sat uncomfortably with the reality of modern
relations:
'The New Zealand Prime Minister (Norman Kirk) was anxious to emphasise that
the island states of the Cook Islands and Niue were truly independent. In his eyes,
it was anomalous that their dealings with his government should be through the
Department of Maori Affairs rather than the Ministry of Foreign Affairs. As a
result, legislation was passed transferring the overseas functions of the Islands
External Affairs Act 1919 s 6(1).
External Affairs Amendment Act 1920 s 2 (1).
35 A.D McIntosh Administration of an Independent New Zealand Foreign Policy in T.C Larkin (ed.), New Zealand 's
External Relations, Pegasus Press, Christchurch, 1967. p.35.
36 Prime Minister Fraser, NZPD Vol.262 (1943) p.569.
37 The change was effected by the Maori and Island Affairs Department Act 1968, No.14. For some explanation see
NZPD Vol.355 (1968) p.510-521.
38 Reports of the Maori and Island Affairs Department for years ended 31 March 1974 and 1975, App. J.H.R.
1974 E.13., and 1975 E.13.
33
34
24
Division to the Ministry of Foreign Affairs and making the Secretary of Foreign
Affairs Administrator of the Tokelaus from 1 April 1975. The Department,
however, retained responsibility for the welfare, housing and other needs of
Pacific Islanders living in New Zealand'.39
Accordingly, and by the Maori Affairs Amendment Act 1974, the Department of Maori
Affairs was reconstituted without its Island Affairs arm.
In 1989, the Ministry of Maori Affairs was restructured, and consequentially relieved of
responsibility for the few programmes for Pacific Island people which it still
administered. In the second reading debate on what was to become the Maori Affairs
Restructuring Act 1989, Minister Koro Wetere explained:
'At present, my Department administers several programmes and services for
Pacific Islands people. I state clearly that the Government is committed to
ongoing support of Pacific Islands people resident in New Zealand. The existing
programmes and services provided by my Department to Pacific Islands people
will continue to be funded until the future dictates that they be replaced by more
relevant measures. However, it would be inappropriate for those programmes and
services to be delivered by iwi authorities. At present I am setting up four offices
for Pacific Islands people throughout New Zealand. Discussions have already
commenced with Pacific Islands representatives to determine to whom
responsibility for those programmes will be transferred'.40
Decolonisation after World War II
Lindsay Watt, a senior New Zealand diplomat with extensive experience in Pacific
Affairs, has written that:
'From New Zealand's experience of decolonisation over the past 50 years comes
much of that special character which makes New Zealand truly a country of, and
not simply in, the South Pacific'.41
He has drawn attention to the significance of Prime Minister Peter Fraser's role in the
formation of the United Nations at the San Francisco Conference in 1945, and his
chairmanship of the Trusteeship Committee in which those parts of the Charter
establishing the principle of self-determination for trust territories and non-self-governing
territories were developed. Watt discusses this and other factors in reaching the
conclusion that:
'New Zealand - both aided and abetted by the United Nations - found itself in the
vanguard as a decoloniser in the South Pacific through the 1960's and into the
next decade'.
Certainly, New Zealand was prepared to experiment and innovate. A specific example is
the development of an associated state model for the Cook Islands, and later Niue, which
Maori Affairs, at p. 108-109.
Minister Koro Wetere, NZPD Vol.501 (1989) p.12445.
41 Lindsay Watt, Decolonisation in New Zealand as an International Citizen: Fifty Years of United Nations Membership,
page 110.
39
40
25
proved acceptable to the United Nations, and the key to which was the vesting of all lawmaking powers in the legislature of the associated state. An earlier model designed by
the United Kingdom for its Caribbean territories, and which attempted to retain at
Westminster law-making powers for foreign affairs and defence matters, had been
rejected by the United Nations as falling short of compliance with its intentions.
In December 1960 the General Assembly of the United Nations adopted Resolution 1514
(XV), better known as the Declaration on the Granting of Independence to Colonial
Countries and Peoples. It declared in part that:
(3) Inadequacy of political, economic, social or educational preparedness should
never serve as a pretext for delaying independence...
(5) Immediate steps shall be taken, in Trust and Non-Self-Governing territories or
all other territories which have not yet attained independence, to transfer all
powers to the people of those territories without any conditions or reservations, in
accordance with their freely expressed will and desire, without any distinction as
to race, creed or colour, in order to enable them to enjoy complete independence
and freedom.
It was adopted by 89 votes in favour (NZ), with none against, but nine abstentions.
The next day, the General Assembly adopted a further declaration. Resolution 1541
(XV) contained an annex setting out 'Principles which should guide Members in
Determining whether or not an obligation Exists to Transmit the Information called for in
Article 73(e) of the Charter of the United Nations'. Principle VI set out three options:
'A Non-Self-Governing Territory can be said to have reached a full measure of
self-government by:
(a) Emergence as a sovereign independent state
(b) Free Association with an independent state
(c) Integration with an independent state.
Principle VII stated that:
(a) Free Association should be the result of free and voluntary choice by the
people of the territory...It should be one which respects the individuality and the
cultural characteristics of the territory and its peoples, and retains for the peoples
of the territory which is associated with an independent state the freedom to
modify the status of that territory through the expression of their will by
democratic means and through constitutional processes
(b) The associated territory should have the right to determine its internal
constitution without outside interference...
In 1961 the General Assembly set up a Special Committee of 17 members to study and
report progress on implementation of Resolution 1514. In 1962 it was enlarged to 24
members and became known as the 'Committee of 24'.42
42
It is fair to say that the 'Committee of 24' had a somewhat ideological approach to decolonisation and in that
respect was not always free of cold war politics. One commentator noted that 'Its repeated insistence that
26
The New Zealand response to these pressures is fairly summarised by Lindsay Watt:
'Both New Zealand's mixed but less than satisfactory pre-war record, and the
changed international environment, demanded more coherent and consistent
policies in the post-war period...New Zealand in any event wanted to be seen to be
upholding its international obligations, and certainly had no wish to be arraigned
before world opinion indefinitely as a colonial power'.43
New Zealand's decolonisation in the Pacific was certainly propelled by a mixture of
United Nations pressure and democratic idealism - the proportions of each will continue
to be a matter of debate.
Independence and self-government
It is important that the circumstances of New Zealand's acquisition and later relinquishment
of control over its former colonial territories in the South Pacific be understood, at least in
broad terms, by New Zealand citizens and policy-makers. These circumstances are not
forgotten in the Islands concerned, and future good relations and respect for New Zealand
influence depend on the historical background being taken into account. It is important to
traverse the statements made by New Zealand leaders both at the time of accession of the
territories to independence and self-government.
Western Samoa. The twin concepts of independence and special relationship were
articulated by Prime Minister Nash at the United Nations as early as 1960 in the lead-up
to Samoan independence:
'I wish, at this point, to make it unmistakably clear that the assistance which New
Zealand is ready to give, both internally and in international affairs, to Western
Samoa will be provided with the fullest regard for Western Samoa's independent
status. After independence has been achieved - and I refer to its complete
independence, before any agreement is made - all subsequent relations between
New Zealand and Western Samoa will be conducted as between equal sovereign
states.
'The bonds which link Western Samoa and New Zealand - bonds of friendship,
understanding and affinity between our Maori citizens and other Polynesian
peoples - are stronger and more abiding than any formal agreements can ever be.
These bonds will remain after independence; but they will be enriched and
strengthened by free association, established in mutual trust and confirmed by
mutual respect and affection'.44
When the Bill altering New Zealand law to recognise Samoan independence came before the
New Zealand Parliament, Prime Minister Holyoake told Members that:
' …I gave an assurance to Prime Minister Mata'afa that New Zealand would be
willing, when the Samoans asked, to enter into a formal agreement with the Samoan
government after independence…Such an agreement would enable New Zealand to
Pitcairn Island (population about 90) be granted sovereign independence gives one cause to wonder about
the Committee's awareness of the problems of very small island territories'.
43 Lindsay Watt, Decolonisation, note 31 above, p. 112-113.
44 Prime Minister Nash, from the Official Records of the United Nations General Assembly Fifteenth Session,( Volume I,
20 September - 17 October 1960) 886th meeting, 4 October 1960, p.401, paras 9.1 and 9.2.
27
continue to give to the Samoan Government and people practical help, and also help
in carrying out their international obligations and affairs. I am sure that history will
prove, and that is the best proof, that whatever Government is in power here,
whatever party is on the Treasury benches in New Zealand, that New Zealand will
always continue to regard Western Samoa with sympathy and special
consideration…. I look forward to continued co-operation with the Samoan people
and Government. I look forward to the building up of a new and equal partnership
between New Zealand and Samoa as the years go by. Small as we are, we will play
our part as being very much the major partner in that partnership.
'I can only repeat that we shall do all we can, and whatever seems proper in the
circumstances from time to time, to help the new state and people of Western
Samoa, and to co-operate with the Samoan Government not only for the welfare
of the Samoan people, but in a mutual endeavour to provide a fuller life for the
people of that and other island communities in the South Pacific'.45
Justin Fepulea'i's study of New Zealand policy in respect of Western Samoa's
independence concludes that the accession to full independence by Western Samoa
(following a United Nations supervised plebiscite in May 1961) required departure from
'the prevailing belief amongst the colonial and administering powers... that it was
impractical and, indeed, illogical for small, isolated, and resourceless island territories to
attain sovereign independent statehood'.46
Cook Islands. Minister Hanan spoke at the United Nations of the associated statehood
relationship chosen by the Cook Islands in 1964:
'New Zealand has taken some pride in pioneering the application of United
Nations principles to the situation of small and scattered islands. It has cooperated closely with the Committee of Twenty-Four in examining the practical
means by which a genuine self-determination can be brought about. … None of us
can fail to recognise that the special problems of many Territories now remaining
in dependency go beyond size and isolation to touch the very fundamentals of
nationhood.
'When a multiplicity of languages and peoples have been grouped by history
within the boundaries of one territory, when age-old isolation and suspicions have
not yet been fused into a sense of community - in these circumstances it is not
simply a question of offering the means of self-determination. A common
national purpose and a national consensus have first to be created. As we
recognize the need for urgency in implementing the declaration, we also must
recognize the creation first of a sense of community. To do otherwise is not
merely to raise more problems than are solved: it is a betrayal of our commitment
under the declaration to offer real self-determination to all dependent peoples'.47
Prime Minister Keith Holyoake, 1 November 1961, NZPD Vol. 329 (1961) p.3272-3273.
Justin Fepulea'i, From Self-Government to Independence: The Development of New Zealand's Policy Towards Western
Samoa During the United Nations Trusteeship Period, 1946-62, Thesis, University of Auckland, 1994. Quoted in
Lindsay Watt, Decolonisation, supra note 31, at page 116.
47 From Official Records of the General Assembly Nineteenth sessions; Plenary meetings (Volume II, 15 Dec. 1964 - 1 Sept
1965) speech by Mr Hanan, Wednesday 16 December 1964, at paras.107 and 108.
45
46
28
In the New Zealand Parliament, Mr Riddiford, Chairman of the Select Committee
responsible for the Bill, played a central role in the formulation of the Cook Islands
Constitution Act 1964 (NZ), told Members that:
'It was important to make clear that New Zealand will continue to recognise her
moral responsibilities to the Cook Islands, and that they need feel no fear that they
are being abandoned...I trust the Cook Islands Constitution Bill will bring them
even closer to us and will herald a new era in which they will feel they are not
merely New Zealand citizens by force of circumstance, but New Zealanders by
their own choice'.48
Then Prime Minister, Keith Holyoake, told Members during the second reading of the
Cook Islands Constitution Amendment Bill in 1965:
'They have no reason for worry… the elected representatives of the Cook Islands
can administer their country in complete confidence of continuing encouragement
and support from the Parliament and the people of New Zealand'.49
Niue. Niue is a self-governing state in free association with New Zealand. The people of
Niue freely chose that status in preference to that of full independence or of political
integration with New Zealand. The General Assembly of the United Nations recognised
Niue's act of self-determination in resolution 3285 (XXIX) on 13 December 1974. In
September of that year, New Zealand's Associate-Minister of Foreign Affairs, the Hon.
Joe Walding, informed the General Assembly that:
'On 19 October New Zealand and Niue will end their relationship of administering
Power and non-Self-Governing Territory; we will enter a new period of
partnership on a basis of equality. As a self-governing state, Niue will take its
place as a full member of the South Pacific Forum along with other independent
and self-governing states in the Pacific, including Papua-New Guinea. Niue's
new Constitution contains my Government's assurance that New Zealand's
economic assistance to Niue will continue as before'.50
Tokelau. The associated state model pioneered by New Zealand for the decolonisation of
the Cook Islands in 1964, and Niue in 1974, was a bold initiative. But it is fair to say that
it owed more to the skill of wise and sympathetic New Zealand constitutional advisers
than to the traditions and informed cultural preferences of the people of those territories.
The imperative of that period was deliberate speed, leaving it to subsequent generations
to redesign the model as preference and circumstance required.
Furthermore, there were tensions between the goal of complete executive and legislative
autonomy for the island states and the need for continuing New Zealand economic and
other support. This caused some commentators to wonder whether the Cook Islands/Niue
Hon. D. Riddiford, 21 October 1964, NZPD Vol. 340 (1964) p.2838.
Prime Minister Holyoake, 4 June 1965, NZPD Vol.342 (1965) p.180.
50 Official Record of the General Assembly, Twenty Ninth Session, Plenary Meetings, Vol.1, p.76 [2239th Meeting, 23
September 1974].
48
49
29
model ought automatically to be applied to the last remaining New Zealand Pacific
territory as it moved to self-determination.51
Professor Tony Angelo has written recently of the different approach to the future of
Tokelau: one in which the Tokelauan voice is more prominent. In particular, the
composition, role and powers of the central agency - the General Fono - is to be
determined by Tokelauan processes. The Tokelau Amendment Act 1996 designated the
General Fono as the primary domestic legislator for Tokelau and Professor Angelo states
that:
'It is now... almost unthinkable that the New Zealand Government would use its
legal rights to override a General Fono decision on a Tokelau domestic matter'.52
See, for example, Alison Quentin-Baxter, who with wide experience of modern constitutions in the Pacific,
discusses a concept of sustained autonomy as an alternative political status for small islands, in an article in
the Victoria University of Wellington Law Review, Vol. 24 (1994) at page 1.
52 Angelo, 'Establishing Nation...' note 29 above, at page 85.
51
30
Contemporary constitutional status of the homelands
and modern relations with New Zealand
Introduction
This chapter describes the modern constitutional status of the homelands, and particularly
the residual constitutional links in respect of the Cook Islands, Niue and Tokelau.
The constitutional relationship between New Zealand and the six countries studied in this
report can be briefly stated. In respect of Fiji and Tonga there is no constitutional
relationship, but rather an international relationship between friendly neighbouring
sovereign states in conformity with international law and the comity of nations. The
same is true of the relationship with Samoa, subject to the special relationship, which is
discussed in paragraph 2.6.2.53
In respect of the Cook Islands, Niue, and the Tokelau Islands however, there are different
considerations, which make it appropriate to describe the relationship as having
constitutional elements. In particular, it is necessary to understand concepts fundamental
to the historical evolution of the British Empire into the association of independent states
known in more recent times as the Commonwealth.
The Cook Islands and Niue - associated states
The older Commonwealth states (such as Canada, Australia, and New Zealand) evolved
as autonomous members of the international community by growth of conventions,
advising the Crown, as titular head of the British Empire, that each of these former
Dominions would function separately in respect of their interests.
This doctrine of the divisibility of the Crown enabled the position to be reached in 1926
where, in the Balfour Declaration of that year, it could be agreed by all the Prime
Ministers that:
'(The Dominions) are autonomous communities within the British Empire, equal
in status, and in no way subordinate one to another in any aspect of their domestic
or external affairs, though united by a common allegiance to the Crown, and
freely associated as members of the British Commonwealth of Nations'.
The practice that supported this doctrine was not reflected in constitutional statutes until
much later. Yet, in accordance with the widely accepted analysis of the British jurist
Albert Venn Dicey, the conventions that gave it operational reality were part of the
Constitution. By that analysis, the Constitution was made up of two kinds of rules: rules
of law that it was the job of the Courts to enforce, and conventions that were rules that the
Courts did not enforce.
53
As in the preceding Chapter, it is not intended to set out the range of international obligations that subsist
between New Zealand and the independent States of Fiji, Tonga and Samoa, or the associated States of the
Cook Islands and Niue. Some of these are referred to in the Annotated Bibliography, see note 18 above.
31
This did not mean that the latter were unimportant: to this day the vital principle that the
Monarch (in New Zealand the Governor-General) acts in almost all matters only on the
advice of responsible Ministers is not a rule of law but rather a convention of the
Constitution. Not surprisingly, this arrangement causes much confusion among foreign
observers - and even New Zealand inquirers - who are told to disregard apparent legal
powers which are explained to have been modified, or even displaced, by unwritten
conventions of sometimes mysterious origin.
We are now in a position to understand the concept of the Realm of New Zealand as it is
defined in the 1983 Letters Patent Constituting the Office of Governor General of New
Zealand. Clause I of this instrument declares the Realm to comprise:
(a) New Zealand; and
(b) The self-governing state of the Cook Islands; and
(c) The self-governing State of Niue; and
(d) Tokelau; and
(e) The Ross Dependency...
Both the Cook Islands and Niue are self-governing states in free association with New
Zealand whose respective Constitutions expressly vest full legislative powers exclusively
in their legislatures.
The New Zealand Parliament has thus ceased to have power to make law of any kind for
the Cook Islands and Niue.54 Even if the New Zealand Parliament were to repeal or
amend the New Zealand statutes conferring the Constitutions of 1965 and 1974 on the
Cook Islands and Niue, those statutes and constitutions would continue as part of Cook
Islands and Niue law, even though they ceased to be part of New Zealand law.
There are no matters on which the Cook Islands and Niue legislatures cannot make laws,
although special procedures (special voting majorities in the legislatures, extended timescales for legislation, and referenda) are required for modification or amendment of
certain designated fundamental elements of the Constitutions.
Constitutional links nevertheless remain with New Zealand. First, the Queen in right of
New Zealand continues to be Head of State of both the Cook Islands and Niue. In the
Cook Islands Her Majesty is represented by the Queen's Representative appointed on
Cook Islands' advice, and in Niue by the New Zealand Governor-General.
Secondly, and of great importance to the island populations, New Zealand citizenship is
retained with full rights of access to New Zealand. Thirdly, a peculiar provision in the
Constitutions of the two Associated States declares that the responsibilities of Her
Majesty the Queen in respect of external relations and defence remain unaffected by the
relocation of law-making power in the respective legislatures. That provision was, in the
early years after self-government, the subject of some misunderstanding in New Zealand
54
See, Cook Islands Constitution Act 1964, No.69 and Niue Constitution Act 1974, No.42. In their original forms the
Constitutions did contemplate that the New Zealand Parliament might legislate in respect of the associated
states where the legislatures of those states expressly so 'requested and consented'. However, the Parliament
of the Cook Islands has subsequently, and in accordance with the special procedures required, amended the
Constitution so as to remove even that ability.
32
and internationally. Now it is widely understood that the effective source of advice to
Her Majesty the Queen in right of New Zealand on Cook Islands and Niuean matters are
Her Cook Islands and Niuean Ministers. As with the emergence of the older
Commonwealth States as autonomous members of the international community, this
position was reached by the evolution of constitutional conventions.55
The Cook Islands Constitution came into force on 5 August 1965 as a result of the Cook
Islands Constitution Act 1964 of the New Zealand Parliament. The New Zealand Act
contained the elements of the associated state model to which reference was made in the
preceding chapter. Specifically it declared that:
Section 3: The Cook Islands shall be self-governing.
Section 4: The Constitution set out in the Schedule...shall be the supreme law of
the Cook Islands.
Section 5: Nothing in this Act or in the Constitution shall affect the
responsibilities of her Majesty the Queen in right of New Zealand for the external
affairs and defence of the Cook Islands, those responsibilities to be discharged
after consultation by the Prime Minister of New Zealand with the {Prime
Minister} of the Cook Islands.56
Section 6: Nothing in this Act or in the Constitution shall affect the status of any
person as a...New Zealand citizen...
Ten years later, the Niue Constitution Act 1974 (NZ) followed a similar pattern to bring
the Constitution of Niue into force on 19 October 1974. It set out the following elements
of the association with New Zealand:
Section 4: The Constitution set out (in the Schedule)...shall be the supreme law of
Niue.
Section 5: Nothing in this Act or in the Constitution shall affect the status of any
person as a...New Zealand citizen...
Section 6: Nothing in this Act or in the Constitution shall affect the
responsibilities of Her Majesty the Queen in right of New Zealand for the external
affairs and defence of Niue.
55
For official statements of this position, see (for the Cook Islands) the prefatory note to the Constitution of the
Cook Islands appearing in the Laws of the Cook Island 1994 (Volume 1, page 165). For Niue, the Report
Submitted by the Government of Niue under the International Covenant on Economic Social and Cultural Rights, Niue,
1992. For a discussion of the growth of the convention as to foreign affairs and defence, see Alex Frame,
“The External Affairs and Defence of the Cook Islands - the ‘Riddiford Clause’ Considered,” Victoria
University of Wellington Law Review, Vol.17 (1987) p.141-151.
This is sometimes referred to as the 'Riddiford Clause', after the Chairman of the Select Committee of the
New Zealand Parliament in which it was devised. For the background, and clear evidence that New Zealand
Parliamentarians thought at the time that the New Zealand Parliament would, under it, retain legislative power
in foreign affairs and defence matters, see Alex Frame, The External Affairs and Defence of the Cook Islands - the
‘Riddiford Clause’ Considered, Victoria University of Wellington Law Review, Vol.17 (1987) p.141-151. As is there
pointed out, however, the argument proved untenable in the face of the exhaustive and exclusive legislative
powers conferred by the Constitution, as a matter of supreme Cook Islands law, on the Cook Islands
legislature.
56
33
Section 7: It shall be a continuing responsibility of the Government of New
Zealand to provide necessary economic and administrative assistance to Niue.57
Section 8: Effect shall be given to the provisions of sections 6 and 7 of this
Act...after consultation between the Prime Minister of New Zealand and the
Premier of Niue, and in accordance with the policies of their respective
Governments...
In relation to Section 6 of the Act just quoted, it is important to stress that, as with the
Cook Islands, the responsibilities of New Zealand for the external affairs and defence of
Niue do not confer on the New Zealand Government any rights of control. Full
legislative and executive powers, whether in those fields or in any others, are vested by
the Constitution in the legislature and Government of Niue. Where the New Zealand
Government exercises responsibilities in respect of external affairs and defence, it does so
in effect on the delegated authority of the Government of Niue.
On 10 November 1988, the New Zealand Government lodged a Declaration with the
Secretary-General of the United Nations concerning the relationship of the New Zealand
treaty-making power to the self-governing States of the Cook Islands and Niue. The
Declaration recited that the Governments of the Cook Islands and Niue have 'exclusive
executive and legislative competence to implement treaties in the Cook Islands and Niue'.
It also stated that those Governments had requested that future New Zealand treaty
actions not extend to the Cook Islands or Niue 'unless the treaty is signed...expressly on
behalf of the Cook Islands or Niue'.58 The Declaration reversed the previous
understanding that New Zealand treaty action applied to all the Realm of New Zealand
unless any part was specifically excluded.
The special relationship between Samoa59 and New Zealand
The enactment of Western Samoa's Constitution in 1962 meant, of course, that from that
date the relations between Western Samoa and New Zealand were those between
independent and sovereign states. The norms and practices of international law and
comity thus superseded the constitutional relationship under which New Zealand could
exercise executive and legislative responsibilities.
The two countries entered into a Treaty of Friendship in 1962. In 1982, circumstances
arose that demonstrated that the special relationship between Western Samoa and New
Zealand was more than a rhetorical flourish. It involved expectations and obligations
which, while not fettering the legislative powers of the respective countries, might
certainly require an unusually close consultation.
In July 1982, the judicial committee of the Privy Council - New Zealand's ultimate
appellate court - delivered its decision in the case Lesa v Attorney-General [1982] 1
NZLR 165. The case concerned an argument that the legislative fiction under which
This provision was absent from the earlier Cook Islands legislation.
The Declaration was circulated to all members of the United Nations as UNGA LE 222 New Zealand.
59 From 4 July 1997, and the coming into force of Constitution Amendment Act (No.2) 1997 (Samoa), the term
Samoa replaced the expression Western Samoa in the Constitution and in all other legislation. The older
form has been employed in this report where the reference is historical.
57
58
34
Western Samoa had been treated as if it were part of New Zealand had the effect of
giving persons born in Western Samoa between 1928 and 1949 the status of New Zealand
citizens. The argument had been rejected by New Zealand Courts, but was upheld by the
court in London. The effect of the decision was that as many as 100,000 Western
Samoan citizens could potentially enter and stay in New Zealand as of right as full New
Zealand citizens. The response of the New Zealand Government to the situation thus
created is found in the Attorney-General's statement to the New Zealand Parliament that:
'...in view of the close relationship between New Zealand and Western Samoa,
and because the Privy Council's decision also had implications for Western
Samoa, even though it related solely to New Zealand law, the Government, rather
than bring down instant legislation, decided to consult the Government of
Western Samoa to try to find a response that both countries could accept. We did
not want New Zealand simply to impose its ideas and pursue its interests
unilaterally. So in the spirit of the 1962 Treaty of Friendship between Samoa and
New Zealand we sat down to talk to each other...From all these talks emerged the
protocol that I signed for New Zealand on 21 August 1982'.60
All Western Samoans in New Zealand at the date of the protocol were granted the right to
become New Zealand citizens on application. Special provision was made for some other
categories, while the general separation of the citizenship’s of Western Samoa and New
Zealand was restored. This compromise was embodied in a Protocol to the 1962 Treaty
of Friendship, in the preamble to which the two Governments set out some
understandings, among which were the following:
'Reaffirming that their relations are founded upon sovereign equality and continue
to be governed by a spirit of close friendship...Recognising that the special
relationship between New Zealand and Western Samoa required that issues
affecting the two countries and their citizens should be resolved on a co-operative
basis....Recognising further that the ties of history, friendship and law between
New Zealand and Western Samoa are such as to give the citizens of Western
Samoa a claim to special treatment under the law governing citizenship...'61
Modern regional relations
The South Pacific Forum.62 The Forum is an annual gathering of the Heads of
Government of the independent and self-governing countries of the South Pacific. It was
established in 1971 as a result of the perceived need for a regional perspective on issues
affecting the countries in the area, and for a collective regional voice of which the
international community might take note.
The Forum quickly became recognised as the principal political organisation in the South
Pacific, and the South Pacific Commission, formed in 1947 under the Canberra
NZPD, 24 August 1982, Hon. J.K.McLay (Attorney-General).
Protocol to the Treaty of Friendship Between the Government of New Zealand and the Government of Western Samoa, done
at Apia 21 August 1982.
62 A useful publication explaining the composition and roles of the Forum and associated bodies is The South
Pacific Forum: Regional Co-operation at Work, Information Bulletin No.56, January 1996, Ministry of Foreign
Affairs and Trade, Wellington.
60
61
35
Agreement63 by the then colonial powers, now confines itself to advisory activities in
social and economic development.
The Forum reaches decisions by discussion and consensus, preferring to avoid formal
votes. New Zealand and Australia each meet just over a third of the regular budget of the
Secretariat, with the island countries together meeting the remaining third.
All six countries whose New Zealand-based populations are the subject of the present
study are full members of the Forum. A Forum Secretariat, based in Suva, was
established in 1972 to act both as a secretariat, and to implement the policies and
programmes agreed by the leaders.
Other specialist regional organisations have subsequently been created to deal with
particular matters of interest: the Forum Fisheries Agency (FFA) and the South Pacific
Regional Environmental Programme (SPREP) are examples.
The Forum is to be known as the “Pacific Islands Forum” from the next Leaders Meeting
in 2000 in order to more accurately represent the present day membership.
Other Significant Institutional Arrangements. Two other informal institutions worthy of
note as reinforcing the affinities between the South Pacific Island States and New
Zealand concern the operation of the respective legal systems. First, over a long period
all the states have actively sought and welcomed the participation of New Zealand judges
in their judicial systems, particularly at the appellate level. When added to the role of
New Zealand law schools in the training of lawyers from the states, this has maintained a
degree of contact, and jurisprudential harmony, between the systems - notwithstanding
important differences in their constitutional and legislative regimes.
A second point of contact has been an annual Pacific Island Law Officers' Meeting
(PILOM) which New Zealand first attended, somewhat belatedly, in 1988. The main
purpose is to exchange views and formulate recommendations on a wide range of
practical matters of common interest including legal training, legislative drafting, the role
of law officers, and access to legal resources.64
The constitutions of Tonga and Fiji
It has already been observed that Tonga and Fiji are independent states whose relations
with New Zealand are of an international, and not a constitutional, character.
The Constitution of Tonga was enacted in 1875, and is often credited with limiting
foreign influence in the Kingdom of Tonga to a British Protectorate proclaimed in 1900
under a Treaty of Friendship. A leading authority ascribes to King Tupou I the intention
For an early indication of New Zealand's approach in the lead-up to Canberra, and that its attitude to the
prospect of responsibilities in the South Pacific was becoming more defensive, see Carl Berendsen's letter
to Alister McIntosh of 10 December 1943, in Ian McGibbon (ed.), Undiplomatic Dialogue, Auckland
University Press, 1993, at page 44 and 45.
64 For an account of PILOM's role, which noted New Zealand's earlier absence from the meeting, see New
Zealand Law Journal (1987) at page 319.
63
36
of setting up a centralising, written constitution so as to deprive colonial powers in the
Pacific of the law and order excuse for annexation.65
The latest Constitution of Fiji was enacted by the Constitutional Amendment Act 1997
(Fiji) and came into force on 27 July 1997. It represented an endeavour to transcend the
racial tensions that led to, and arose from, the 1987 coup d’etat and the subsequent
attempts to protect the position of the indigenous Fijian population by discriminatory
constitutional legislation. A distinguished Maori and New Zealand leader, Sir Paul
Reeves, chaired the Fiji Constitution Review Committee the recommendations of which
formed the basis for the new Constitution.66 At the time of publication of this report the
Constitution has effectively been set aside as a result of the crisis in Fiji which has been
going on since 19 May 2000. This situation led to the President stepping aside, the
assumption of executive authority by the Commander of the Fiji Military Forces and the
imposition of martial law. The nature of the future constitutional framework for Fiji is
not currently clear.
Sione Latukefu, Church and State in Tonga, Australian National University Press, Canberra, 1974, esp. Chapter
11 at page 204.
66 For papers prepared for the Commission, see Fiji and the World, ed. B.Lal and T.Vakatora, University of the
South Pacific, 1997. Another distinguished New Zealand jurist, Alison Quentin-Baxter, served as principal
legal adviser to the Commission.
65
37
Description of Pacific populations in New Zealand
This chapter provides a basic social and economic profile of Pacific peoples living in
New Zealand in the 1990s.
Population
As at the 1996 New Zealand population census the Pacific peoples ethnic group had
202,000 members, an increase since 1991 of around 35,000. The Pacific peoples ethnic
group's share of the population rose marginally, from 5 to 6 percent between 1991 and
1996.
With an established population now living here, many Pacific people’s babies are New
Zealand-born. In 1996, 58 percent of the Pacific people who specified a birthplace were
born here compared with 50 percent in 1991. For those aged less than five years in 1996,
95 percent were born here.
Those who migrate are generally younger and the population distribution reflects this.
This situation will change as migrants enter older age groups. The current structure of
the Pacific peoples population also reflects their relatively recent settlement in New
Zealand as well as their higher fertility and mortality rates. Pacific peoples children
under five years make up one in every nine (or 11 percent) of all New Zealanders under
five years.
Pacific people have some of the youngest age structures of any ethnic group within the
New Zealand population. In all Pacific people groups except Fijian, the median age was
between 20 and 23 years. For Fijians, the median age was 26 years, and for the total New
Zealand population the median age was 33 years.
Table 1
Nation
Percentages of Pacific nation populations compared to New
Zealand resident Pacific Island populations
Population Living in Pacific Island
Number
%
Population Living in New Zealand
Number
%
Fiji
775000
98.6
10647
1.4
Samoa
171000
62.7
101752
37.3
Tonga
98100
75.8
31389
24.2
Cook Islands
20200
30.1
47019
69.9
Niue
2100
10.2
18477
89.8
Tokelau
1577
24.3
4917
75.7
38
Source: United Nations Economic and Social Commission for Asia and the Pacific (except Fiji and Tokelau). Fiji Times Ltd.
(1994) (Tokelau) Fiji Islands Statistics Bureau (Fiji). Statistics New Zealand.
Health
Many of the health problems of Pacific peoples are potentially preventable. Health
problems of Pacific peoples include the highest national rates for meningococcal disease,
measles, rheumatic fever, rheumatic heart disease and obesity. Other health problems of
Pacific peoples are low immunisation rates, and high rates of diabetes, tuberculosis, liver
cancer in adults, and sudden infant death syndrome (SIDS).
Cancer is a major cause of death and hospitalisation for Pacific peoples, and Pacific
people generally present for cancer treatment at advanced stages of the disease.
Coronary heart disease is a major cause of death for Pacific peoples and they have
increased risk factors for developing the disease. Pacific peoples rates of smoking are
lower than those for Mäori, but higher than for the rest of the New Zealand population.
Pacific peoples have an excessive dietary intake of high fat and high cholesterol foods.
Obesity rates for Pacific peoples appear to be high. A study has shown that Pacific
peoples had a higher mean blood pressure level and were less likely to be receiving
treatment.
Diabetes is one of the major causes of death and hospitalisation among Pacific men and
women, especially for those in the 44-64 year age group. Pacific peoples have a higher
risk of developing non-insulin dependent diabetes mellitus than the general population.
The onset of diabetes occurs 10 years earlier in Pacific peoples than in Europeans.
Complications involving the eyes, nervous system, kidneys and high blood pressure also
occur earlier and more severely.
Pacific women have the highest birth rates amongst the different ethnic groups in New
Zealand.
Education
Language ability
The ability to use Pacific indigenous languages is diminishing among New Zealand
resident populations.
Table 2
Indigenous language ability: percentage in each age group who can
hold a conversation on everyday things in their indigenous Pacific
language
Nation
5-24 years old
25-44 years old
Fiji
14%
30%
Samoa
50%
36%
39
Tonga
43%
8%
Cook Islands
5%
6%
Niue
20%
41%
Tokelau
43%
65%
Source: Statistics New Zealand.
The indigenous language ability of Niuean, and Tokelauan peoples is strongest amongst
the older generation. However, as that generation matures there will not be a
corresponding older generation that will be holders of cultural knowledge and language.
The present time could be critical for Niuean and Tokelauan to preserve and promote
their indigenous language and knowledge amongst their youngest generations.
School leavers
Pacific students are more likely to leave school with no qualifications. However, as the
table overleaf demonstrates, Pacific students are slightly more likely to leave school with
school certificate or sixth form certificate. Pacific students are less likely to leave school
having passed the bursary examination.
Table 3
Highest attainment of 1997 school leavers by ethnicity (%)
Mäori
Pacific Peoples
All
Bursary
5%
5%
21%
University Entrance or Higher School Certificate
13%
22%
21%
Sixth Form Certificate
22%
29%
24%
School Certificate
22%
18%
16%
No qualifications
38%
26%
18%
Total
100%
100%
100%
Source: New Zealand Schools - Nga Kura o Aotearoa 97. A report on the compulsory schools sector in New Zealand
published by Ministry of Education 1998.
Post compulsory
Pacific school leavers were less likely to continue on to further education and training
than all school leavers in 1996 (33 percent compared to 50 percent). The most common
type of further education and training for Pacific school leavers were Polytechnic and the
Training Opportunities Programme (TOP).
Table 4
Destination of 1996 school leavers in further education and training
40
Mäori
Pacific peoples
All
0.7%
0.9%
1.2%
Polytechnic
12.3%
12.1%
17.8%
University
7.4%
7.9%
21.8%
Wananga
0.9%
0.5%
0.2%
17.5%
11.0%
6.7%
0.8%
0.7%
2.1%
39.6%
33.2%
49.8%
College of Education
TOP
Private Training Establishments
Total (%)
Total Number
9570
3351
51487
Source: New Zealand Schools - Nga Kura o Aotearoa 97. A report on the compulsory schools sector in New Zealand published
by Ministry of Education 1998
Income and Employment
Employment
In 1996 just over 25% of the employed Pacific males were plant and machine operators
and assemblers, with a further 19% in elementary occupations. The most common
occupations for employed Pacific women were clerical, and service and sales workers,
with almost a quarter of employed Pacific women in each of these occupations.
Table 5
Occupation
Occupation
Male
Legislators, Administrators and Managers
4.5%
4.0%
4.3%
Professionals
4.2%
7.9%
5.9%
Technicians and associate Professionals
6.2%
7.8%
6.9%
Clerks
8.7%
23.8%
15.6%
11.9%
23.8%
17.3%
4.4%
2.1%
3.3%
Trades Workers
15.7%
2.4%
9.6%
Plant and Machine Operators and Assemblers
25.4%
12.4%
19.4%
Elementary Occupations
19.1%
15.9%
17.6%
100.0%
100.0%
100.0%
Service and Sales Workers
Agriculture and Fishery Workers
Total
Female
Total
Source: Statistics New Zealand.
41
Sources of Income
The main source of income for Pacific peoples differs from the total New Zealand
population. For Pacific peoples the main sources of income are wages or salaries (47%),
government benefits apart from unemployment and superannuation (18%), and the
unemployment benefit (14%). The income source pattern is similar for Mäori.
The income sources for all New Zealand show a different pattern, where the main sources
of income are wages or salaries at 37%, interest and dividends or rent at 18%, followed
by superannuation and self-employment at 14% and 12% respectively.
Table 6
Sources of income resident in New Zealand aged 15 years and over,
1996 (percentages)
Source of income
Wages/Salaries
Interest/Dividends/Rent
All New Zealand
Pacific Peoples
Mäori
37.0%
46.4%
41.5%
17.6%
3.4%
6.0%
(2)
13.5%
4.7%
5.6%
Self-employment
11.6%
4.7%
6.7%
Other Government Benefits
10.6%
18.3%
21.5%
Unemployment Benefit
5.5%
13.6%
13.3%
No Source of Income
3.0%
7.8%
4.3%
Other Sources
1.1%
1.1%
1.2%
100.0%
100.0%
100.0%
Superannuation
Total
(1)
(2)
(3)
This table includes the multiple counting of people where more than one income source was specified.
Includes New Zealand superannuation and other superannuation, pensions and annuities.
Source: Statistics New Zealand.
Income
In 1996 half of the Pacific peoples population had an annual income below $12,400. This
is lower than the median annual income for the total New Zealand population income of
$15,600. For both Pacific peoples and the total New Zealand population, males earned
more than females.
Table 7
Nation
Annual median personal income for the population resident in New
Zealand 15 years old and over, 1996, by ethnicity
Men
Women
Total
Fiji
$18,400
$11,600
$14,200
Samoa
$15,200
$11,100
$12,800
42
Tonga
$12,200
$8,400
$9,900
Cook Island
$15,100
$11,200
$12,600
Niue
$17,200
$11,300
$13,400
Tokelau
$13,200
$9,600
$10,900
All Pacific People
$15,000
$10,700
$12,400
Mäori
$16,100
$11,200
$12,900
All New Zealand
$22,040
$12,609
$15,600
Source: Statistics New Zealand.
Unemployment
At the time of the 1996 census eight percent of the total New Zealand labour force was
unemployed. By comparison 17 percent of the Pacific labour force was unemployed.
Housing
Pacific peoples overall economic position means that affordable housing remains a
crucial issue. Pacific peoples are disproportionately represented as tenants with 55% of
Pacific peoples not living in houses they owned, compared with 29% of the total New
Zealand population.
Table 8
Type of tenure
Permanent private dwelling type by tenure, resident in New Zealand
living in households in private dwellings, 1996 (percentages)
Pacific People
Mäori
Total New Zealand Population
Owned
44.4%
52.4%
70.7%
Not owned
55.6%
47.6%
29.3%
100.0%
100.0%
100.0%
Total
Source: Statistics New Zealand.
Justice
Pacific men were under-represented relative to Mäori men but were over-represented
relative to Other67 men among convicted non-traffic cases. The over-representation of
Pacific men compared with Other men was greatest for the 40+ age groups; Pacific men
67
Other means Non Pacific, Non Mäori ethnic group.
43
40 years and over were five times more likely to be convicted of a non-traffic offence
than Other men of the same age group.
Pacific women were under-represented relative to Mäori women among convicted nontraffic cases in 1996, but over-represented relative to Other women. The pattern was
similar to that for men in that over-representation relative to Other women was highest
among those aged 40 years and over.
Pacific men were seven times more likely to be involved in a convicted violent cases
compared to Other men in 1996. They were approximately four and a half times more
likely to be involved in convicted cases against justice, and over three times more likely
to be involved in a convicted property case.
Table 9
Convictions and conviction rates for all non-traffic offences
involving Pacific peoples, Mäori and other men aged 17 and over,
and ratios of rates, by type of offence, 1996
Offence type
Pacific men
Mäori men
Other men
Ratio of
rates
Rate
PP/M
PP/other
Number
Rate
Number
Rate
1408
278.
8
4279
317.9
4276
38.3
0.9
7.3
119
23.6
485
36.0
786
7.0
0.7
3.4
1152
228.
1
6454
479.5
7307
65.4
0.5
3.5
Drug
188
37.2
2074
154.1
3126
28.0
0.2
1.3
Against justice
464
91.9
2546
189.2
2110
18.9
0.5
4.9
Against good order
516
102.
2
2103
156.2
3196
28.6
0.7
3.6
Miscellaneous
104
20.2
532
39.5
1510
13.5
0.5
1.5
3951
782.
4
18473
1372.
4
22311
199.7
0.6
3.9
Violent
Other against
persons
Property
Total
Number
Ratio
of
rates
Sources: Ministry of Justice and Statistics New Zealand.
Rates per 10,000 projected population 1996 aged 17+y
Ratio of rates, Pacific Peoples/Mäori, and Pacific Peoples/other
One in five (24.0%) convicted criminal cases involving Pacific women was for a violent
offence in 1996 compared with only 12.4% and 12.2% for Mäori and Other women
respectively. The comparative figure for Pacific men was 35.6%.
44
International and domestic law on minorities
This chapter assesses the relevance to Pacific Island communities in New Zealand of
international and domestic New Zealand law relating to minorities.
International law – the ICCPR
As observed in the introductory chapter, Article 27 of the International Covenant on Civil
and Political Rights (ICCPR) has a double significance for New Zealand. Firstly,
because it embodies a binding norm of international law, 68 and secondly because it is
essentially replicated in section 20 of the New Zealand Bill of Rights Act 1990 and thus
forms part of New Zealand domestic law. The history, travaux preparatoires, and
subsequent interpretation of Article 27 in the international context are likely to be
important for understanding the content of the international norm, and for statutory
interpretation of the domestic provision. Article 27 declares that:
'In those states in which ethnic, religious, or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language'.
Perhaps the leading work on the history and significance of the Article is Patrick
Thornberry's International Law and the Rights of Minorities.69 He notes the omission of
a Minorities Article from the Universal Declaration of Human Rights in 1948 in
accordance with the view of some states, led by Mrs Roosevelt for the United States, that
'the best solution of the problem of minorities was to encourage respect for human
rights'.70
However, the persistent work of the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities seems to have led to inclusion of Article 27
in the ICCPR. This was intended, in 1966, to translate the general principles of the
Declaration into binding rules, notwithstanding some continuing misgivings on the part
of some states that:
'it (Art. 27) should not become part of, as it were, a consciousness raising exercise
and either create new minorities or awaken others, like Lazarus, from the dead'.71
The International Covenant on Civil and Political Rights (NZTS 1978, No.19) was ratified by New Zealand on 28
December 1978 and came into force for New Zealand on 28 March 1979. The Optional Protocol (NZTS 1989,
No.12) was acceded to on 26 May 1989 and came into force for New Zealand on 26 August 1989.
69 Patrick Thornberry, International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991. Referred to
hereafter as 'Thornberry'.
70 Quoted in Thornberry, p.136.
71 Thornberry traverses the dynamics of this process in Part III of his work. The quotation is from Thornberry
at p. 168. Warwick McKean had also noted this danger, and a preference for the view that 'although
minorities should certainly be protected, it should not be as distinct groups, but as part of a general
assurance of certain basic rights to all members of the population equally', see McKean, note 12 above, at
page 36.
68
45
Meaning of minority
Although the ICCPR offers no definition of minority, and the travaux preparatoires
appear only to confirm that there is no generally agreed definition, the Special Rapporteur
for the Sub-Commission, Professor Capotorti, has proposed this definition of minority for
the purposes of Article 27:
'A group numerically inferior to the rest of the population of a state, in a nondominant position, whose members – being nationals of the state – possess ethnic,
religious or linguistic characteristics differing from those of the rest of the population
and show, if only implicitly, a sense of solidarity, directed towards preserving their
culture, traditions, religion or language'.72
Thornberry notes some features of the Capotorti definition, which he describes as 'widely
cited in the recent legal literature'. First, it excludes foreigners living in a state; secondly,
it excludes dominant minorities (such as prevailed in South Africa under apartheid);
thirdly, it is reliant on a collective choice (at least implicit).
Thornberry notes that a group of restrictionist states argued that minorities do not arise
from immigration, but only from forcible transfers of population into minority status.
The assimilationist fashion of the 1960s is evident in some approaches. The Australian
position, for example, is reported as having been that it 'was doing its best to encourage
new immigrants not to set up separatist minority groups, but to merge completely with
the Australian community and enrich it'.73 The opening phrase in Article 27 – 'In those
states in which …minorities exist' – was inserted at the request of Chile, and is intended
to preserve the position of the restrictionist states who may wish to argue that they have
no minorities. The boldest denial of the existence of minorities is perhaps contained in
the explanation given by France of its reservation to Article 27:
'Article 2 (of the French Constitution) declares that France shall be a Republic,
indivisible, secular, democratic and social. It shall ensure the equality of all citizens
before the law, without distinction …or origin, race, or religion. It shall respect all
beliefs. Since the basic principles of public law prohibit distinction between citizens
on grounds of origin, race or religion, France is a country in which there are no
minorities and, as stated in the declaration made by France, Article 27 is not
applicable so far as the Republic is concerned'.74
Thornberry disputes the adequacy of the French explanation. He usefully summarises the
effect of Article 27 as follows:
'implicit recognition of a minority group through the formal attribution of rights to
the members of that group; the right to maintain identity through the common
activity of members of the group in the cultural, religious and linguistic spheres; and
positive service on the part of the state in support of this identity'.75
Special Rapporteur Capotorti, Monograph 23 towards his 'Study on the Rights of Persons belonging to
Ethnic, Religious and Linguistic Minorities for the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities ', UN Doc. E/CN.4/Sub.2/384/Add. 1-7). Quoted by Thornberry, p.6.
73 Thornberry, pp.154-156.
74 CCPR/C/22/Add.2., quoted in Thornberry at p. 245.
75 Thornberry, p.245.
72
46
The principle of non-discrimination is regarded by Thornberry as 'a necessary, though not
sufficient protection for minorities' and, therefore, he does not view the French
Constitution, by itself, as an adequate fulfilment of the requirements of Article 27.
The Human Rights Committee has supported this view in relation to the Third Periodic
report of France under the ICCPR, stating that:
'the mere fact that equal rights are granted to all individuals and all individuals are
equal before the law does not exclude the existence in fact of minorities in a
country and their entitlement to the enjoyment of their culture, the practice of
their religion or the use of their language in community with other members of
their group'.76
The Human Rights Committee has also pronounced on the question whether immigrants
may constitute a minority, stating:
'The Committee is of the view that article 27 applies to all persons belonging to
minorities, whether linguistic, religious, ethnic or otherwise, including those who are
not concentrated or settled in a particular area or region, those who are immigrants
or those who have been given asylum in Germany'.77
There appears to be little doubt that Pacific people in New Zealand have the status of
“minority” groups at international law, to whom rights flow under Article 27 of the
ICCPR, as members of their national groups. In light of their sense of shared identity, it
is also probable that Pacific people collectively constitute a minority group at
international law.
Is Article 27 an individual or a collective right?
The travaux show that the expression 'persons belonging to minorities' appeared at the
drafting stage of Article 27 and was intended to emphasise that:
'minorities as such were not subjects of the law, whereas persons belonging to
minorities could be defined in legal terms'.78 The right that the Article goes on to
declare is of a collective nature: 'in community with other members of the group'.
Article 27 may be seen as a 'hybrid between individual and collective rights' but on the
crucial point of standing, it appears to contemplate that only individuals may assert the
right, and from the point of view of minorities this must be one of its most serious
weaknesses.
The interpretation just noted is confirmed by the Human Rights Committee, which has
stated that:
'The Covenant draws a distinction between the right to self-determination and the
rights protected under article 27. The former is expressed to be a right belonging to
peoples…Self-determination is not a right cognisable under the Optional Protocol.
Article 27, on the other hand, related to rights conferred on individuals as such…and
Report of the Human Rights Committee, Vol.1, General Assembly Official Records, Fifty Second Session,
Supplement No. (A/52/40) at page 65, para. 411.
77 Ibid. at page 33, para.183 emphasis added.
78 Thornberry, p.173.
76
47
is…like the articles relating to other personal rights conferred on
individuals…cognisable under the Optional Protocol'.79
Is the obligation of the state under Article 27 active or only passive?
Commentators have disagreed on this issue. Those who argue for the passive
interpretation point to the unusually restrained form of Article 27 – 'shall not be denied
the right'. Nowak, for example, considers that, while Article 27 provides minorities with
more rights than the rest of the population,80 a direct positive duty to guarantee rights
'cannot be found in the text, the context, the purpose or the historical background' to the
ICCPR.81 However he is of the view that States parties to the ICCPR are obliged to
positively protect the rights of minorities against greater threats from other groups of the
population.82
Thornberry, however, claiming the support of Special Rapporteur Capotorti, takes the
more expansive view, urging that the Article be given both meanings:
'(1) the state should not interfere with whatever action a minority takes on its own
initiative to preserve and strengthen its culture, religion, and language…and
(2) the state should, in the spirit of true equality between majority and minority, take
such measures as are necessary in order to assist the minority to preserve its values'.83
The Human Rights Committee seems to prefer the Capotorti/Thornberry view, stating
that:
'Although Article 27 is expressed in negative terms, that article does recognise the
existence of a “right” and requires that it shall not be denied. Consequently, a state
party is under an obligation to ensure that the existence and the exercise of this right
are protected against their denial or violation. Positive measures of protection are,
therefore, required not only against the acts of the state party itself, whether through
its legislative, judicial or administrative authorities, but also against the acts of other
persons within the state party'.84
The meaning of the Article 27 right
The Hon. Elizabeth Evatt, a distinguished Australian human rights lawyer, and a member
of the Human Rights Committee has given this useful summary of the scope and content
of Article 27 as interpreted by the Committee:
United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, HRI/GEN/1/Rev.3, at para.3.1.
80 Manfred Nowak UN Covenant on Civil and Political Rights CCPR Commentary (1993) N P Engel, Strasbourg, p.
500.
81 Nowak, p. 504.
82 Nowak, p. 503.
83 Thornberry, p. 185-186.
84 United Nations, Compilation of General Comments….supra, at para.6.1, emphasis added. Even more explicit
comments to the same effect by Members Higgins and Ndiaye are collected by Alexander B. Blades in his
article 'Article 27 of the International Covenant on Civil and Political Rights: A case Study on
Implementation in New Zealand ', [1994] 1 C.N.L.R.
79
48
'The Committee has turned away from an integrationist or assimilationist approach
to article 27, and has emphasised the obligation of states to take positive measures to
protect the language, religious and cultural rights of members of minority groups. In
the committee's view, the rights under article 27 are directed to ensure the survival
and continued development of the cultural religious and social identity of the
minorities concerned, thus enriching the fabric of society as a whole. A proviso is
that the rights protected may not be used in a manner inconsistent with other
provisions of the covenant, e.g. to undermine or violate the rights of others'.85
Specific international expressions of the rights of minorities
In 1992, the General Assembly adopted a “Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious or Linguistic Minorities.”
This declaration elaborates and expands on the principles contained in Article 27 of the
ICCPR. Its preamble states that it was '[i]nspired by the provisions of Article 27 of ICCPR'.
The declaration supports the view that the obligations of Article 27 are active. Declarations
of the General Assembly are not binding on States, but provide a basis for the progressive
development of international law.86
Article 1 sets up the general obligations on States vis a vis their minorities. It says:
'States shall protect the existence and the national or ethnic, cultural, religious and
linguistic identity of minorities within their respective territories and shall encourage
conditions for the promotion of that identity.'
The Declaration also suggests that States have specific duties in respect of minorities. The
most significant duties are contained in Article 4. Article 4(2) says that States:
'shall take measures to create favourable conditions to enable persons belonging to
minorities to express their characteristcs and to develop their culture, language,
religion, traditions and customs except where specific practices are in violation of
national law and contrary to international standards.'
Article 4(3) says that States should take appropriate measures so that persons belonging to
minorities have adequate opportunities to learn or have instruction in their mother tongue,
and article 4(4) says that in the field of education, states should, where appropriate,
encourage knowledge of the history, traditions, language and culture.
As well as setting out obligations of States, the Declaration also sets out various rights of
minorities. Article 2(3) says that:
'persons belonging to minorities have the right to participate effectively in decisions
on the national, and where appropriate, regional level concerning the minority to
which they belong or the regions in which they live, in a manner not incompatible
with national legislation.
In 1995 the Council of Europe adopted a Framework Convention for the Protection of
National minorities, which as of October 1999 had been ratified by 28 member states.
Similar themes to the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious, or Linguistic Minorities can be seen. This Convention is not directly applicable to
The Hon. Elizabeth Evatt, 'The Role of the United Nations in the Protection of Civil and Political Rights: A
Personal Perspective', speech at Global Diversity Conference 1995.
86 Ian Brownlie Principles of Public International Law, 5th ed. Oxford, New York, 1998, p. 14.
85
49
New Zealand, as New Zealand is not a member state of the Council of Europe. However it
has been ratified by 28 European States, so is indicative of international trends on minority
rights.
Under Article 5 of the Convention, parties undertake to promote the conditions necessary
for persons belonging to national minorities to maintain and develop their culture, and to
preserve the essential elements of their identity, namely their religion, language, traditions
and culture heritage. This is similar to Article 1 of the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious or Linguistic Minorities, i.e. a general obligation
to create favourable conditions for preservation of minority cultures.
Under Article 14(1), parties undertake to recognise the right of persons belonging to national
minorities to learn their minority language. Under Article 14(2), parties shall endeavour to
allow adequate opportunities for being taught or receiving instruction in their language.
However that clause is heavily caveated in that the persons have to be in 'areas inhabited by
persons belonging to national minorities traditionally or in substantial numbers', there has to
be ‘sufficient demand’, and the endeavours to ensure the opportunities for language
education only have to be 'as far as possible and within the framework of [the State’s]
education system'.
Thus, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
or Linguistic Minorities, and the Framework Convention for the Protection of National
Minorities are indicative of evolving international norms in favour of an obligation on States
to create a favourable environment for the preservation of minority cultures.
New Zealand reporting to the United Nations on discrimination and
minority rights
As part of this project, the Ministry of Justice has commissioned a survey of New
Zealand's reporting under the principal international instruments that concern Pacific
Island communities in New Zealand. From the point of view of Pacific Island
communities in New Zealand, the consultant's extensive survey would seem to support
the following general conclusions:
1. That New Zealand's reporting often links the position of Pacific people with that
of Maori in unequal enjoyment of social and economic benefits as compared with
other New Zealanders.
2. The reporting acknowledges that special measures are in some cases needed to
enable Pacific Island people to develop and deliver appropriate social services using
traditional cultural approaches.
3. There is a danger that Pacific Island communities may fall into a no man's land
where their situation is seen as comparable to Maori in social and economic
disadvantage, but not amenable to the growing compensating power of the Treaty of
Waitangi in respect of Maori.
4. The institutional structure for addressing the special needs of minorities is
described in New Zealand's report for the 1998 Five-Year Implementation Review
of the 1993 Vienna Declaration. After noting the establishment of the Ethnic
Affairs Service within the Department of Internal Affairs in 1992, the report
observes:
50
'The creation of this service was based on a recognition that while a number
of Government agencies existed to represent the interests of New Zealand's
important Maori, and Pacific Island communities, no specific point of
contact existed for the more than 50 other ethnic groups represented in New
Zealand society…The Service's goals have been …to foster the acceptance
and valuing of ethnic communities, encourage their equitable access to
services, and to support communication within such communities, and with
the government…' (page 16)
New Zealand domestic law
New Zealand has affirmed its commitment to the ICCPR through the New Zealand Bill of
Rights Act 1990, which sets out parameters for government action. Sections 19 and 20
relate to non-discrimination and minority rights.
Section 19(1) provides that everyone has the right to freedom from discrimination on the
grounds of discrimination in the Human Rights Act 1993. Section 19(2) excludes positive
discrimination from the definition of discrimination. Section 19(2) says:
'Measures taken in good faith for the purpose of assisting or advancing persons or
groups of persons disadvantaged because of discrimination that is unlawful by virtue
of Part II of the Human Rights Act 1993 do not constitute discrimination'.
The cases of Lal v Residents Appeal Authority [1999] 5 HRNZ, 11 and Quilter v the
Attorney General [1998] 1 NZLR 523 both contain extensive comment on the meaning of
discrimination under section 19.
The directly prohibited grounds of discrimination under the Human Rights Act 1993 most
likely to be relevant to New Zealand citizens of Pacific Island origins, or to Pacific
people otherwise in New Zealand, are those of colour, race, and ethnic or national
origins, including nationality or citizenship (section 21(1)(e), (f) and (g)). The Human
Rights Act governs the actions of all citizens and the Government (although the
Government is excluded from the ambit of the Act in respect of certain grounds of
discrimination until 31 December 2001).
Section 20 of the New Zealand Bill of Rights Act 1990 gives legislative effect to Article
27 of the ICCPR. It states:
'A person who belongs to an ethnic, religious, or linguistic minority in New Zealand
shall not be denied the right, in community with other members of that minority, to
enjoy the culture, to profess and practise the religion, or to use the language, of that
minority. '
The Court of Appeal case of Mendelssohn v Attorney General briefly addressed the issue
of the nature of the government’s obligations under section 20 of the New Zealand Bill of
Rights Act 1990, stating that the section does not impose positive obligations on the
Government. The relationship between the section and Article 27 was not discussed.
The extent to which the Courts would take into account the views of the Human Rights
Committee that Article 27 imposes positive obligations on States Parties to the
Convention, in any future cases where section 20 was a more central issue, remains to be
seen.
51
Under the Human Rights Act 1993 it is unlawful to discriminate in matters of
employment, education, access to public places, the provision of goods and services, and
housing and accommodation. Similarly to s19(2) of the New Zealand Bill of Rights Act
1990, section 73 of the Human Rights Act excludes positive discrimination (affirmative
action) from the ambit of discriminatory practices prohibited under the Act.
It is also unlawful under the Human Rights Act 1993 to 'excite hostility against or bring
into contempt any group of persons in or who may be coming to New Zealand on the
ground of the colour, race, or ethnic or national origins of that group of persons' (s.61), to
racially harass a person (s.63), or to incite racial disharmony(s131).
Under s65 of the Human Rights Act 1993, indirect discrimination (i.e. discrimination that
has the effect of treating a person differently on one of the protected grounds) is also
unlawful unless the person undertaking the practice can establish good reason for it.
Two recent cases indicate the approach of the New Zealand Courts to the relationship
between international and domestic law on human rights. The first is Wellington District
Legal Services Committee v Tangiora [1998] 1NZLR129, which concerned a complaint
by the respondent to the Human Rights Committee of the United Nations under the
Optional Protocol. Although the case decided only the narrow point whether legal aid
was available to pursue the complaint (the Court held, reversing the result at first
instance, that it was not) the judgement of Justice Keith contains a broad discussion of the
development of the international jurisprudence on human rights. Justice Keith underlined
the huge significance of the recognition in the Universal Declaration that fundamental
human rights were not just a matter within the concern of individual states, and provides
a summary of the role of the Human Rights Committee:
'The Human Rights Committee which consists of 18 members elected to four-year
terms under Part IV of the Covenant by the states parties to it has three functions.
The first is to consider the reports submitted to it on a periodic basis by states parties
to the covenant on the measures they have adopted to give effect to the rights
recognised in the covenant and on the progress made in the enjoyment of those
rights (art.40). Secondly, a procedure is available between states which accept it
enabling one state to make a communication to the effect that another state is not
fulfilling its obligations under the covenant (arts. 41-42). The third procedure, the
one in issue in the present case, is also available only against states which have
separately accepted it, by becoming party to the Optional Protocol. Under Article 1
of the Protocol the committee is competent to receive and consider communications
from individuals who claim to be victims of a violation by such a state party of any
of the rights set out in the covenant'.87
However, Justice Keith pointed out that:
'All (the Human Rights Committee) can do under the Optional Protocol is to
forward its “views” to the state party in question and the individual concerned…(the
language of the Protocol) is not the language of binding obligation, as the legislative
history once again emphasises…'88
Justice Keith was careful to stress that the Court did not question in any way:
87
88
[1998] 1 NZLR 129 at p. 134.
Ibid, p.136.
52
'the duty of the states parties to the covenant to consider in good faith what steps
they must take to give effect to their obligations under the covenant….No doubt the
views stated and the comments made by the committee should where appropriate
have an important relevance to the states' parties assessment of those obligations…'
The second recent judicial pronouncement on the international jurisprudence is found in
the judgement of Justice Cartwright in Northern Regional Health Authority v Human
Rights Commissioner [1998] 2NZLR 218. With respect it is suggested that the Judge's
discussion attracts an added force from her other role as an independent member of the
UN Committee overseeing application of the CEDAW Convention. Justice Cartwright
found that the Health Authority had acted improperly in seeking to differentiate between
medical practitioners with overseas qualifications and those with New Zealand
qualifications - to the disadvantage of the former. The policy was found to be in breach
of s. 19 of the New Zealand Bill of Rights Act 1990, and also of ss. 22(1)(a) and (b) of the
Human Rights Act 1993 by operation of s.65 of that Act dealing with indirect
discrimination.
In the course of judgement, Justice Cartwright traced the connection between the
International Bill of Human Rights (made up of the Universal Declaration of 1948,
together with the two 1966 Covenants on Civil and Political Rights and Economic Social
and Cultural Rights) and New Zealand law. She also made reference to a general
comment of the United Nations Human Rights Committee to arrive at an expansive
definition of discrimination, stating that:
'In interpreting human rights legislation the New Zealand Courts have resisted any
attempt to limit their impact, noting that such legislation is to be “accorded a liberal
and enabling interpretation”… New Zealand Courts have increasingly been prepared
to look to international interpretations and authorities to gain a better understanding
of our own rights-based legislation'.89
Justice Cartwright found that:
'Any analysis of policy which may directly or indirectly discriminate must be done in
the light of the international principles and experience as stated in the relevant
conventions and covenants …Moreover, when the ancestry of the New Zealand
legislation is understood it is inevitable that it must be read as broadly as is necessary
to comply with the overarching themes promoting and protecting human rights'.
Applying that approach, Her Honour decided that section 19 of the New Zealand Bill of
Rights Act 1990, which provided that:
'Everyone has the right to freedom from discrimination on the grounds of
discrimination in the Human Rights Act 1993'.
referred to discrimination in purpose or effect, in accordance with the Human Rights
Committee's understanding. The plaintiff's contention that only direct discrimination could
be covered by section 19, and not the indirect discrimination covered by section 65 of the
Human Rights Act, was accordingly rejected. Justice Cartwright stated that:
89
[1998] 2 NZLR 218 at p.234. Reference was also made to observations of the Court of Appeal in Tavita v.
Minister of Immigration [1994] 2 NZLR 257, particularly those of Cooke P. at p.266.
53
'There is therefore a clear link in purpose between s21 and s65 of the Human Rights
Act; one section is the obverse of the other and prohibited grounds of
discrimination, whether applied directly or indirectly, are proscribed in that Act and
under s19 of the New Zealand Bill of Rights Act'.90
Conclusions
I.
Remedies will be available to individual persons (and to legal persons, such as
incorporated societies, see section 29 NZBOR) from New Zealand Tribunals and
Courts under the anti-discrimination provisions of the Human Rights Act 1993 and
the New Zealand Bill of Rights Act 1990, remembering that these cover both
direct and indirect discrimination.
II.
The denial of the rights of minorities is contrary to section 20 of the New Zealand
Bill of Rights Act 1990. The Court of Appeal has to date indicated support for the
passive approach to the Government’s obligations under section 20. The meaning
given to that section may be influenced by the view taken by the Human Rights
Committee as to the meaning of Article 27 of the ICCPR in future cases where
section 20 is a more central issue. It is important to note that the Court will be
bound to give effect to an Act of Parliament which is inconsistent with the 1990
Act in terms of section 4 of that Act, if there is no possible interpretation
consistent with that obligation.
III.
As a state party to the CERD, ICCPR and ICESR, New Zealand is obligated to
ensure that remedies are provided such as to secure to New Zealand citizens and to
others in New Zealand the rights set out in those instruments. New Zealand is
obligated to report periodically on its performance in this regard, and to submit its
record to international scrutiny.
IV.
In the case of the ICCPR, individual persons in New Zealand may complain (by
way of communication) under the Optional Protocol to the Human Rights
Committee in regard to any alleged failure to meet the standards of that Covenant.
A complainant must first exhaust domestic remedies. The Human Rights
Committee is likely to take a flexible view of who may constitute a minority, and
in particular not to regard immigrant groups as excluded for that reason. The state
may justify any acts or omissions complained of by demonstrating that they are
reasonably required by objective conditions.
90
ibid. p.236. The indirect discrimination aimed at by section 65 occurs where the effect of discrimination
appears without any directly prohibited act.
54
Implications
The special relationship with Pacific People
New Zealand has a special relationship with Pacific people. The nature of the special
relationship cannot be isolated to one factor. Instead, it derives from a combination of
intersecting factors including:
 the historical relationships between New Zealand and Pacific nations, that in many instances
were deliberately fostered by the early colonial aspirations of the New Zealand Government;
 the high proportions of Pacific people in New Zealand;
 the geographic relationships and proximity between New Zealand and the Pacific homelands;
 the fact that New Zealand is host to the majority, and in some instances almost all, of the
nationals of some Pacific nations;
 the constitutional links that continue to exist between New Zealand and a number of Pacific
nations;
 New Zealand’s identity in the twenty-first century as a Pacific nation.
These intersecting factors mean that the place of Pacific people, both individually and
collectively, in New Zealand society, is unique, and that New Zealand has particular
moral responsibilities vis a vis its Pacific people. The special relationship is not,
however, a hard core legal obligation, but rather a part of the Government’s responsibility
to act reasonably and appropriately towards the individuals and groups whom it governs
and with whom it interacts, and its recognition of Pacific people as significant groups in
this respect.
The special relationship is a generic one that exists in respect of all the Pacific nations
discussed in the report. When preparing this report, thought was given to whether it
would be possible or appropriate to analyse the nature of the relationship on a nation by
nation basis. Such an analysis could, however, set up a hierarchy of rights as between
nations, which would be undesirable and counterproductive. Furthermore, any attempt to
break down the relationship into sub categories or gradations of “specialness” risks
becoming esoteric.
The special relationship between the New Zealand government and Pacific people
manifests itself in a need to protect and foster Pacific cultures and identities, particularly
when they are threatened. It also manifests itself in a need to recognise that Pacific
people should have the same socio-economic opportunities as non-Pacific people.
The special nature of the relationship is already recognised by the Government in a
number of ways. There is a separate Ministry of Pacific Island Affairs charged with the
task of developing policies with respect to Pacific people in New Zealand, and
monitoring the impact of policy initiatives on Pacific people. The Government has
recently set up a Cabinet Committee committed specifically to closing the gaps between
Maori and Pacific people, and other New Zealanders. The Ministry of Pacific Island
55
Affairs has also recently released a Pacific Directions Report (1999), which suggests a
pathway for the Government to offer a co-ordinated policy response to help improve
outcomes for Pacific People. The Ministry of Justice and other departments have
developed goals in the context of the Report. The Government has formally accepted the
Report to inform its work plan for Pacific peoples in its programme for Closing the Gaps.
In many areas need must remain the primary basis on which resources are allocated, for
example in the health area. How these needs are met, however, will frequently
necessitate taking account of cultural imperatives and the desirability of empowering
communities to design and deliver services for their own communities. Such an approach
would lead to both cultural empowerment and contribute to improving the position of
Pacific peoples in New Zealand. These twin goals are recognised in the Government’s
programme for Closing the Gaps. In areas where need is not a primary determinant of
resource allocation, the special place of Pacific cultures and the moral obligation to help
foster these cultures should be key factors in the Government’s decision-making process
The legal relationship between the New Zealand Government and Pacific
People
Article 27 of the ICCPR
Article 27 of the International Covenant on Civil and Political Rights provides that
minority groups shall not be denied the right to exercise their culture, religion or
language. This right is incorporated into New Zealand law through section 20 of the New
Zealand Bill of Rights Act. Given that Pacific people can, both as members of their
separate national groups, and collectively, be viewed as minority groups at international
law, this provides Pacific people with a legal platform on which to base the right to
maintenance of their culture.
The 1992 Declaration on the Rights of Persons belonging to National, Ethnic, Religious
and Linguistic Minorities indicates a strengthening of the status of minority rights at
international law in favour of a positive duty on the part of States to create conditions
which enable members of minority groups to manifest their cultural identities, including
their language. In light of the Declaration’s express link to Article 27 of the ICCPR, it
may be used by the Courts as a tool in interpreting New Zealand’s obligations under
section 20 of the New Zealand Bill of Rights Act, although to date the Courts have held
that the Government’s obligations under section 20 are passive only.
This international and domestic legal context underlines the importance of New Zealand
continuing to be proactive in its approach to maintaining the cultural identities of Pacific
people.
Fiduciary relationship
The question of whether there can be seen to be a fiduciary duty on the part of the
Government towards Pacific people in New Zealand has been raised in the context of
preparing this report. The question of whether Governments owe a fiduciary duty
towards non-indigenous peoples whom they govern has, to our knowledge, not been
developed in international law or practice.
56
It should be noted that the existence of property rights on the part of indigenous peoples
has generally been a key component of the fiduciary relationships that have to date been
established by Courts in other countries. This suggests that fiduciary relationships in
respect of Pacific people in New Zealand might be difficult to establish. However, the
existence of a “good government” obligation in respect of Pacific cultures means that the
establishment of a fiduciary relationship is not a necessary prerequisite to recognition of
the special relationship with Pacific people.
Intersection of legal position and special relationship
Pacific people therefore have a complex and unique position in the New Zealand
constitution. They have status as a minority group to whom legal rights flow collectively
under section 20 of the New Zealand Bill of Rights Act, which incorporates Article 27 of
the ICCPR. Furthermore, over and above their legal rights as a minority group, historical
and contemporary factors give rise to a special relationship with the New Zealand
Government. These dual factors underline the significance of continuing to respond to
Pacific people’s socio-economic and cultural needs.
Policy implications
Ways to facilitate the creation of favourable conditions to enable Pacific people to
maintain their cultures, particularly as language knowledge, an important determinant of
cultural vitality, is decreasing among the younger generation of Pacific people in New
Zealand, will be an important policy challenge. Bridging the socio-economic gaps
between Pacific people and other New Zealanders, and building on ways of involving
Pacific people in decision making, particularly in decisions relating to themselves, will
also be an important issue. The structural frameworks discussed above that have been
recently developed for addressing issues relevant to Pacific people (i.e., the Cabinet
Committee on Closing the Gaps and the Pacific Directions Report) will assist in
consolidating the government’s focus on these pivotal issues.
In the Ministry of Justice, examples where the need to maintain Pacific cultures and
identities have been taken into consideration in the policy context are:
 Research on attitudes to sentencing, which has a specific focus on Pacific peoples;
 Research on the use of s16 of the Criminal Justice Act relating to cultural
considerations in sentencing;
 The development, in consultation with the Ministry of Pacific Island Affairs, of best
practice programmes for violent offending for Pacific young people;
 Development of the Ministry of Justice research strategy;
 The Pacific principles of Justice report;
 Closing the Gaps – Pacific Youth Justice Strategy and Victims;
 The appointment of community magistrates.
These will provide useful precedents for future research and policy projects.
57
Conclusion
A key determinant of a healthy constitutional arrangement is whether it is acknowledged
as legitimate by the relevant citizens. Thus the constitutional arrangements need to be
dynamic, and to have the capacity to respond to the reasonable aspirations of Pacific
people. Because there is a constitutional dimension to the relationship with Pacific
people it will be important to maintain processes to identify issues relevant to the health
of the relationship with Pacific people and also ensure that the responsibilities resulting
from that relationship are appropriately reflected in policy and legislative initiatives.
Summary of Conclusions
Chapter 1
1.
A nation is a community united by descent or history and by a distinct language
and culture.
2.
The enlightened state may encourage its several national identities and at the
same time seek to build the new common national identity. Such a policy is not
contradictory, but rather a means of maintaining an equilibrium under which the
respective benefits of diversity and societal order around agreed values may be
realised. If the purpose of encouraging contrary tendencies is recognised, then
Governments will detect the point at which that balance has moved too far in
either direction.
3.
To the extent that some citizens languish outside the majority societal culture, and
that the alternative culture to which they belong goes unrecognised and
unsupported by the institutions of state, they are correspondingly deprived of
meaningful freedom, whatever theoretical equality is guaranteed to them by
formal constitutional law.
4. The constitutional status of New Zealand citizens of Pacific Island origin is one shared
with all New Zealand citizens of whatever origin, and will entitle all citizens to the
same rights and obligations.
5. Formal legal equality does not always translate into equal enjoyment of social benefits
such as health, education, or housing. Where serious and persistent imbalances in
the enjoyment of such benefits by minority groups as compared to the wider society
can be demonstrated, domestic law as well as international norms and practice
permits Government to consider community-specific initiatives aimed at
progressively reducing the gaps.
6.
Two features distinguish the six Pacific Island communities chosen for this study:
(i) An historical, geographical, and (in three cases) a current constitutional
relationship between the homelands and New Zealand.
(ii) A significant, and growing, proportion of the total national population of the
homelands is resident in New Zealand.
58
7.
The history of New Zealand's engagement in the South Pacific has created at least
a moral obligation to support the island nations of the region in the preservation of
their cultures. This supportive role will best be discharged by viewing these
cultures in an holistic manner - that is, in viewing the culture situated in the
homeland and that situated in New Zealand as two parts of a whole.
Chapter 2
1.
New Zealand enthusiastically pursued an expansionist policy within the South
Pacific a century ago. It energetically sought the encompassing of the territories
and populations by a New Zealand governance and actively recruited immigrant
island labour as required by the New Zealand economy. It also repeatedly assured
both the Pacific people and the world of its good intentions and of the benefits
that would accrue to the populations concerned from adherence to the New
Zealand state.
It is important that the elements of this historical relationship between New Zealand and
the peoples of the six countries studied, and the history of the decolonisation process, be
better documented and understood within New Zealand.
Chapter 3
1.
The constitutional relationship between New Zealand and the six countries
studied in this report can be stated briefly. In respect of Fiji and Tonga there is no
constitutional relationship, but rather an international relationship between
friendly neighbouring sovereign states in conformity with international law and
the comity of nations. The same is true of the relationship with Samoa, subject to
the special relationship.
2.
In respect of the Cook Islands, Niue, and the Tokelau Islands, it is proper to
describe the relationship as having constitutional elements. In particular, it is
necessary in these cases to understand concepts fundamental to the historical
evolution of the British Empire into the association of independent states known
in more recent times as the Commonwealth.
Chapter 4
1. Pacific people comprise approximately 6% of the population, and over half of those are
New Zealand born.
2. Pacific people have low health status compared to the general population, and many of
the problems suffered are preventable.
3. The ability to speak Pacific languages is diminishing among Pacific people in New
Zealand, particularly younger people.
4. Pacific people are more likely to leave school with no qualifications, and less likely to
pursue further education or training.
59
5. Pacific people in the workforce are concentrated in low skilled jobs, and the number of
Pacific people unemployed is approximately double that of other New Zealanders. A
significant proportion of the income of Pacific people comprises Government benefits,
and the mean annual income of Pacific people is lower than that of other New
Zealanders.
6. Pacific people are over-represented in the criminal justice system. In particular, Pacific
men are seven times more likely to be convicted for a violent offence than other New
Zealand men.
Chapter 5
1.
Where discrimination can be demonstrated, remedies will be available to
individual persons of Pacific Island origin from New Zealand Tribunals and
Courts under the anti-discrimination provisions of the Human Rights Act 1993 and
the New Zealand Bill of Rights Act 1990. These Acts cover both directly
prohibited discrimination and indirect discrimination.
2.
Denial of the Rights of Minorities is contrary to section 20 of the New Zealand
Bill of Rights Act 1990.
3.
As a state party to the CERD, ICCPR and ICESR, New Zealand is obligated to
ensure that remedies are provided such as to secure to New Zealand citizens of
Pacific Island origin and to all others in New Zealand the rights set out in those
instruments. New Zealand is obligated to report periodically on its performance
in this regard, and to submit its record to international scrutiny.
4.
In the case of the ICCPR, individual persons of Pacific Island origin in New
Zealand may complain (by way of communication) under the Optional Protocol
to the Human Rights Committee in regard to any alleged failure to meet the
standards of that Covenant. A complainant must first exhaust domestic remedies.
The state may justify any acts or omissions complained of by demonstrating that
they are reasonably required by objective conditions.
Chapter 6
1.
New Zealand has a special relationship with Pacific people, deriving from a
combination of historical, constitutional, geographic and demographic factors.
This is not a hard core legal obligation, but rather part of the Government’s
responsibility to act reasonably and appropriately towards the individuals and
groups whom it governs, recognising that Pacific people are a significant group in
this respect.
2.
The special relationship is a generic one that exists in respect of all the Pacific
nations discussed in the report.
60
3.
The special relationship manifests itself in a need to protect and foster Pacific
cultures and identities, and a need to recognise that Pacific people should have the
same socio-economic opportunities as non-Pacific people. This is already
recognised by Government through a number of institutional structures.
4.
New Zealand also has a responsibility towards Pacific people as a minority group
under international law, through Article 27 of the ICCPR, which is incorporated
into domestic law through section 20 of the New Zealand Bill of Rights Act.
International legal norms are moving in favour of a positive duty on the part of
States to create conditions favourable to the manifestation of minority cultural
identities including language. This underlines the need for New Zealand to
continue to be proactive in maintaining the cultural identities of Pacific people.
5.
When making laws and policies it is important that the Government recognises the
need to maintain Pacific cultures and language, the need to bridge the socioeconomic gaps between Pacific people and other New Zealanders, and the need to
involve Pacific people in decision making, particularly in relation to decisions
about themselves.
61