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Draft Treaty of Free Association Between New Zealand and Tokelau
The Government of New Zealand and the Government of Tokelau,
Acknowledging the long history of friendship and cooperation between New Zealand and Tokelau and the many historical, social and cultural links between their peoples,
Recalling that New Zealand has encouraged and supported Tokelau as it has moved along the path to political self-reliance while leaving it to the people of Tokelau themselves to determine both the direction and the pace of their political evolution,
Recalling further that New Zealand and Tokelau have regularly provided information to the United Nations relating to the situation in Tokelau, including the development of its political institutions, and that the United Nations has been directly informed of developments in Tokelau and the views of its people through visiting missions to Tokelau,
Recalling also the Joint Statement of the Principles of Partnership between New Zealand and Tokelau, signed on 21 November 2003, and affirming their commitment to the continuous development of a relationship based on principles of partnership and shared values,
Honouring the cultural heritage and values of the people of Tokelau and committed to ensuring an ongoing thriving community living in Tokelau,
Noting that in the exercise of their sovereign right to self-determination the people of Tokelau, under the supervision of the United Nations, have freely chosen to be a self-governing state in free association with New Zealand in accordance with this Treaty,
Desiring to establish their relationship of free association and to record its nature, including their commitments to each other,
Have agreed as follows,
Article 1
Relationship of Free Association
The relationship between New Zealand and Tokelau is one of free association characterised by close cooperation and consultation in a spirit of partnership, with a commitment on both sides to clear and open communication.
The relationship shall continue to be founded upon the following principles and shared values:
Recognition and respect for each other’s interests and concerns;
Recognition of Tokelau’s unique language and culture as a source of strength and identity for people of Tokelau both in Tokelau and in New Zealand;
Respect for the principles of the Charter of the United Nations, including human rights and the rule of law.
Article 2
Culture and Heritage
New Zealand and Tokelau recognise that Tokelau’s unique language and culture are a source of strength and identity both in Tokelau and among Tokelauan communities in New Zealand, and New Zealand undertakes to work with Tokelau and to support an agreed programme to ensure their retention and development.
New Zealand undertakes that the right to New Zealand citizenship, including the associated right to live, work and study in New Zealand, shall continue to be accorded to all persons born in Tokelau, at least one of whose parents is a New Zealand citizen or entitled to reside indefinitely in Tokelau, New Zealand, Niue or the Cook Islands, and to Tokelauans born outside those countries, at least one of whose parents is a New Zealand citizen by birth or grant. New Zealand further undertakes to consult Tokelau on any proposed changes to the law of New Zealand concerning citizenship, passports, immigration or any related matter that might affect Tokelauans.
Tokelau undertakes not to make any changes to its laws governing the right to residence in Tokelau that might increase the category of persons entitled to New Zealand citizenship under paragraph 1 of this Article without consultation with New Zealand, and to take all appropriate steps to protect the integrity of New Zealand passports.
Article 4
Economic Support and Infrastructure Development Support
New Zealand undertakes to provide ongoing economic support and infrastructure development support to Tokelau to maintain and improve the quality of life of the people of Tokelau, and Tokelau undertakes to uphold principles of good political and economic governance, including mutually agreed accounting for the expenditure of the monies involved. The economic support and infrastructure development support to be provided by New Zealand shall be sufficient to establish and maintain a good and satisfactory standard of services and infrastructure in Tokelau, taking into account the remoteness of Tokelau, the physical separation of the three villages and the size of Tokelau’s population.
The level of economic support and infrastructure development support shall be determined by agreement on a multi-year basis as specified from time to time.
The economic support and infrastructure development support referred to in this Article shall be separate from the support and assistance to be provided by New Zealand under other Articles of this Treaty, New Zealand's contributions to regional development assistance programmes that may include Tokelau and any special purpose assistance by New Zealand that may be agreed from time to time.
Article 5
Administrative, Technical and Specialist Support
Tokelau is responsible for the delivery of services in Tokelau.
New Zealand undertakes to provide, at Tokelau’s request, administrative assistance and access to technical or specialist advice, support and training in all areas of government activity, including justice, health, education, finance, transport, communications, public sector management, environmental protection, economic development and law enforcement.
The objective of administrative, technical and specialist support shall be to establish and maintain a good and satisfactory standard of services and infrastructure in Tokelau, taking into account the remoteness of Tokelau, the physical separation of the three villages and the size of Tokelau’s population.
Article 6
Emergency and Disaster Relief
New Zealand undertakes to continue to assist Tokelau in coping with emergencies and natural disasters and shall include Tokelau in its disaster relief and mitigation schemes in the Pacific.
Article 7
Defence, Security and Maritime Surveillance
New Zealand accepts continued responsibility for the defence and security of Tokelau and shall discharge this responsibility at Tokelau’s request and with its consent.
New Zealand also undertakes to continue to assist Tokelau in maritime surveillance, fisheries protection and search and rescue operations.
New Zealand and Tokelau undertake to continue to support the Tokelau International Trust Fund.
New Zealand undertakes to assist Tokelau to seek contributions to the Fund from other states and international organisations.
Article 9
International Relations
New Zealand and Tokelau recognise that a common approach to relations with the international community based on respect for the principles of the Charter of the United Nations including human rights and the rule of law is one of the shared values upon which their relationship of free association is founded and depends.
Tokelau has the right and the legal capacity to conduct its own international relations and to enter into treaties in its own right.
New Zealand and Tokelau recognise that Tokelau’s practical capacity to undertake its own international relations is limited. New Zealand accordingly undertakes to continue to assist Tokelau in the conduct of its international relations at Tokelau’s request and with its consent.
New Zealand and Tokelau agree that in conducting their international relations they shall respect the shared values referred to in paragraph 1 of this Article and each other’s interests. To that end they agree that international relations shall be one of the matters covered in the regular meetings provided for in Article 10. They further agree that if any such matter that might affect the interests of the other requires action before it can be discussed in these regular meetings they shall provide relevant information and an appropriate opportunity for consultation before action is taken.
Article 10
Consultation
In recognition of the importance of close consultation, as provided in paragraph 1 of Article 1, there shall be regular meetings between New Zealand and Tokelau.
The frequency, timing and level of these regular meetings shall be determined by agreement from time to time but they shall include meetings as appropriate between the political leadership of New Zealand and Tokelau on matters which affect the relationship between the two countries.
If either party requests a special meeting the other party shall make every effort in the spirit of partnership to accommodate that request.
Article 11
Change of Status
New Zealand acknowledges that the people of Tokelau may at some time in the future wish to consider a status different from that of self-government in free association with New Zealand, including independence or integration with New Zealand.
New Zealand undertakes that, at Tokelau’s request, it shall assist the people of Tokelau to exercise this right with appropriate international supervision.
New Zealand and Tokelau shall negotiate in good faith the terms of any change of status.
Article 12
Supporting Documents
The means of giving effect to this Treaty shall be recorded in documents agreed from time to time between New Zealand and Tokelau.
This Treaty shall enter into force on the date of signature.
IN WITNESS WHEREOF the undersigned, being duly authorised for the purpose, have signed this Treaty.
DONE at ... this ... day of ... ... in four originals, two in the English language and two in the Tokelauan language, the texts of both languages being equally authentic.
FOR THE GOVERNMENT OF NEW ZEALAND:
FOR THE GOVERNMENT OF TOKELAU:
Draft Documents Supporting the Treaty of Free Association Between New Zealand and Tokelau
Culture and Heritage (Article 2)
(Provisional draft: text to be settled when the programme referred to is agreed)
In recognition of the commitment of New Zealand and Tokelau to the retention and development of Tokelauan language and culture, a programme is being developed for submission to the Tokelau and New Zealand authorities later this year.
At that point decisions will be taken on the content and management of the programme and on funding. These decisions will be incorporated in the Supporting Documents.
This will be a joint project, involving both Tokelau and New Zealand. It will also involve the Tokelauan communities in New Zealand. It is envisaged that a Steering Group will be established with representatives from all interested parties. A Programme Coordinator is likely to be required both in Tokelau and in New Zealand.
Terms of reference are currently being finalised for the design phase of this programme.
New Zealand will provide financial support for an agreed programme that will include such activities as culture and heritage retention and development, language programmes, a Tokelau language and culture website and an archive database and oral history records.
Tokelauans with New Zealand citizenship will continue to enjoy all the rights and be subject to all the obligations of New Zealand citizens, as provided for in the law of New Zealand concerning citizenship.
The rights enjoyed by Tokelauans with New Zealand citizenship include the right to consular protection and assistance in other countries.
Tokelauans with New Zealand citizenship who are ordinarily resident in Tokelau will continue to have access to New Zealand social welfare benefits and services, except where such access requires ordinary residence in New Zealand.
Economic Support and Infrastructure - Development Support (Article 4)
This document records the following:
The process for reviewing the economic support and infrastructure development support needs of Tokelau;
The process for determining levels of support;
Operating arrangements relating to the making of payments, the management of funds and reporting on expenditure; and
General matters.
The priorities of infrastructure development support will be in those areas where there is no current infrastructure or the current infrastructure is deficient and specific support is required to address that lack or deficiency for the purpose of maintaining a thriving community living in Tokelau.
New Zealand will provide economic support and infrastructure development support to Tokelau on a multi-year basis. Major long-term infrastructure development projects necessary to maintain a thriving community living in Tokelau will be considered on a case by case basis.
The level of economic support and infrastructure development support will be determined on the basis of a joint review of Tokelau’s needs conducted by the New Zealand Agency for International Development (NZAID) and Tokelau in the last year of each multi-year period. The review will take into account such factors as inflation, the performance of Tokelau’s economy, the cost of government services in Tokelau, the quality and effectiveness of expenditure, external developments bearing on Tokelau’s budget and the need to maintain a thriving community living in Tokelau.
The first such review will be undertaken in October 2006, reflecting the fact that the current agreed multi-year programme runs from 1 July 2004 to 30 June 2007.
In the event that agreement on the level of support for the next multi-year period is not reached by 31 December of the review year, a rollover of support for the next multi-year period will take place at the level set for the review year. This interim measure is to provide a basis for forward planning of Tokelau’s budget only until such time as agreement is reached on levels of support for the next multi-year period.
Annual meetings
Before the end of each financial year New Zealand and Tokelau will meet to review the progress achieved against the multi-year plan (including a review of the annual budget outcomes and forecasts) and to consider any requests for infrastructure development support that fall outside the scope of the agreed multi-year arrangement. These meetings will normally take place in October each year, to fit in with Tokelau and New Zealand budget cycles.
Operating arrangements
Tokelau will not budget for deficits and will make every effort to balance expenditure with total revenue flows. It will not draw on savings scheme funds belonging to individual persons or village store accounts.
In the event that Tokelau’s local revenue falls below an agreed level in any one year, discussions will be held on how to manage the shortfall. Should local revenue exceed an agreed level, Tokelau will consider transferring the excess into the Tokelau International Trust Fund.
Tokelau commits to uphold principles of good governance and financial transparency and to regular auditing of its expenditure. It will provide timely and satisfactory reporting on expenditure in accordance with Tokelau’s financial and reporting systems.
The arrangements recorded in this document are intended to promote a multi-year programme that meets the objectives and requirements of the Treaty and accords with Tokelau’s strategic objectives and priorities.
The agreed multi-year programme for the period 1 July 2004 to 30 June 2007, signed at Atafu in August 2004, will be used as the basis for future multi-year programmes.
Administrative, Technical and Specialist Support (Article 5)
Administrative, technical and specialist support will be provided under the administrative assistance scheme, as provided for below.
Purpose
The purpose of administrative assistance is to supplement the limited resources of the Tokelau Public Services. Administrative assistance covers all areas of government activity including specialist areas such as health, education, justice and economic development.
Types of assistance include mentoring relationships, the provision of advice, secondments and attachments (in both directions) and training programmes.
New Zealand public servants may be asked to provide direct assistance where there is a temporary gap in Tokelau’s capacity to provide an essential service or where it would be unreasonable to expect Tokelau to develop resident capacity.
Coordination
New Zealand’s administrative assistance to Tokelau will be coordinated by the Tokelau Unit.
Process
Proposals for administrative assistance should be submitted to the Tokelau Unit in the first instance. The Unit will then liaise with the relevant government agency in New Zealand and coordinate the response. Costs will be shared between the agency concerned (staff costs) and Tokelau (other direct costs).
Specific sectoral assistance
Health
In recognition of the special importance of health services to Tokelau, the coordination of assistance to Tokelau’s Health Department will be a priority of the Tokelau Unit. There will continue to be regular contact between the Tokelau Unit and the New Zealand Ministry of Health, with the aim of facilitating ongoing advice and support to Tokelau as well as special assistance in circumstances such as the outbreak of disease.
New Zealand and Tokelau will continue to provide for access to New Zealand health services for residents of Tokelau, under the Patient Referral Scheme. The Tokelau Unit will liaise with service providers where necessary to facilitate the operation of the scheme.
In recognition of the special importance of education services in Tokelau, the coordination of assistance to Tokelau’s Education Department will be a priority of the Tokelau Unit. There will continue to be regular contact between the Tokelau Unit and the New Zealand Ministry of Education, with the aim of facilitating ongoing advice and support to Tokelau.
Particular attention will be paid to curriculum development and the provision of teaching resources. The Ministry of Education will continue to supply to the schools of Tokelau at no cost to Tokelau copies of all school publications and Tokelauan language texts produced for the Ministry of Education.
Justice
New Zealand will continue to make available to Tokelau the facilities and judicial services of the High Court and Court of Appeal of New Zealand as courts for Tokelau, as provided for in the law of Tokelau and New Zealand.
Accused and prisoners in criminal proceedings may be transferred to New Zealand for trial and imprisonment as provided for in the law of Tokelau and New Zealand.
New Zealand and Tokelau will take steps to provide for continuous jurisdiction in respect of such accused and prisoners notwithstanding their passing through a third country during transfer between Tokelau and New Zealand.
In criminal proceedings before the High Court and Court of Appeal Tokelau will bear all costs arising out of the transport of accused, prisoners, legal and judicial officers and court staff to and from Tokelau. New Zealand will bear all other costs of facilities and judicial services in criminal and civil proceedings, and will bear all ongoing costs associated with the imprisonment in New Zealand of Tokelauan prisoners.
New Zealand will, as part of its administrative assistance to Tokelau, provide all necessary advice and assistance in the investigation and prosecution of criminal matters, including making available New Zealand police officers to be designated as police officers of Tokelau as provided for in the law of Tokelau.
General guidelines
An information paper sets out the guidelines for the provision of general administrative assistance to Tokelau. New Zealand and Tokelau may from time to time agree on changes to the guidelines as well as specific forms of assistance not covered by the guidelines.
Emergency and Disaster Relief (Article 6)
Emergency and disaster relief will include the provision of assistance in respect of disaster preparedness and risk mitigation, as well as relief and reconstruction assistance in the event of an emergency or natural disaster in Tokelau.
Disaster preparedness and risk mitigation
New Zealand will provide assistance to Tokelau in disaster preparedness and risk mitigation under the Emergency Management and Disaster Response (EMDR) Programme managed by the New Zealand Agency for International Development (NZAID).
Disaster preparedness and risk mitigation initiatives may include:
Institutional strengthening and capacity building at the national and village levels to assist effective planning, management and development of knowledge and skills relevant to emergency management response; and
Risk management and risk reduction initiatives at the national and village level to reduce the impact of natural disasters on the villages.
New Zealand will assist with the maintenance of a national Tokelau Emergency Plan. An information paper contains the currently agreed Plan. Assistance in the maintenance of this Plan will be provided in consultation with the New Zealand Ministry of Civil Defence and Emergency Management.
Tokelau will maintain direct links with weather advice providers for early warning of adverse weather that may affect Tokelau. The Tokelau Unit will advise the Government of Tokelau of any adverse weather information received by the Unit.
In the event of a major emergency or disaster in Tokelau, New Zealand will provide help under the EMDR Programme.
The provision of relief will be based on assessed needs as reported by Tokelau officials, New Zealand overseas posts and other assessment agencies, and will be coordinated as necessary with other governments and agencies.
Relief may include provision of post-disaster aerial and on-the-ground assessment, supplies, equipment and technical assistance. Where appropriate, support may be sought from relevant international organisations.
Reconstruction
NZAID, in consultation with the Tokelau Unit, will determine New Zealand’s response to applications for post-disaster reconstruction assistance. Applications should contain a full analysis of damage and estimated costs.
Defence, Security and Maritime Surveillance (Article 7)
Actions relating to defence and security responsibilities, maritime surveillance, fisheries protection and search and rescue operations will be coordinated by the Tokelau Unit, in consultation with the New Zealand Defence Force and other relevant government agencies.
Defence
New Zealand will continue to fulfil its defence responsibilities in respect of Tokelau through the New Zealand Defence Force. The Tokelau Unit will coordinate New Zealand’s response to any requests for assistance in defence matters.
Maritime surveillance and fisheries protection
New Zealand will continue to provide aerial and maritime surveillance in Tokelau and its exclusive economic zone through such measures as the despatch of available aircraft and naval vessels, and will cooperate with other governments and regional organisations in the coordination of maritime surveillance and fisheries protection activities.
New Zealand will continue to work closely with Tokelau in the context of meetings of bodies such as the Forum Fisheries Agency (FFA) and the Western and Central Pacific Fisheries Commission (WCPFC), to help ensure that activities undertaken in those forums protect and promote the fisheries interests of Tokelau.
The New Zealand Ministry of Fisheries will continue to work cooperatively with Tokelau and to provide assistance with the development of Tokelau's fisheries management policies and operations.
Search and rescue
In the event that a ship or aircraft is lost in Tokelau’s territorial waters or exclusive economic zone, and Tokelau authorities have exhausted all means at their disposal to locate the missing vessel, New Zealand will provide search and rescue assistance to Tokelau. Requests for assistance will be managed by the New Zealand Rescue Coordination Centre.
New Zealand will, at Tokelau’s request and with its consent, act as the channel for communications between the Government of Tokelau and other governments and international organisations. New Zealand will also stand ready to represent Tokelau at international conferences that Tokelau is entitled to attend.
It is understood that where Tokelau conducts its own international relations without assistance from New Zealand, and where New Zealand undertakes international relations solely as Tokelau’s agent (for example, in attending an international conference on Tokelau’s behalf), it will be the international legal responsibility of Tokelau, and not that of New Zealand, that will be engaged.
New Zealand treaty actions will extend to Tokelau only if the extension is requested and consented to by Tokelau and the instrument of ratification, accession or other treaty action so provides.
New Zealand and Tokelau will work cooperatively to resolve questions of treaty succession where New Zealand treaty actions have extended to Tokelau.
Tokelau Unit
The implementation of several articles of the Treaty requires the presence of a coordinating unit in New Zealand with special responsibility for Tokelau and the relationship between New Zealand and Tokelau.
The New Zealand Ministry of Foreign Affairs and Trade will establish and maintain a unit charged with responsibility for coordinating New Zealand's support for Tokelau in accordance with the objectives and provisions of the Treaty.
The unit will have a coordinating role both within the Ministry and among other government agencies. It will be the central liaison point for all assistance requested and provided under the administrative assistance scheme referred to in Article 5 of the Treaty as well as under other articles of the Treaty and in the Supporting Documents. It will assist Tokelau to gain access to files relevant to its ongoing government.
The unit will monitor and supervise the relationship between New Zealand and Tokelau and ensure that Tokelau receives the support intended and provided for in the Treaty and under any other arrangements made between New Zealand and Tokelau.
The unit will be responsible for organising and supporting the regular and special consultations and meetings between New Zealand and Tokelau provided for in Article 10 of the Treaty. It will also act as a support base for Tokelauan representatives visiting New Zealand on official business.
The Secretary of Foreign Affairs and Trade will appoint a Director of the unit, in consultation with the Government of Tokelau. The Director will be provided with such staffing and technical support as is necessary for the successful carrying out of the unit's duties.
By agreement with the Director, Tokelau may from time to time appoint one or more Tokelau public servants to be located in and work with the unit to carry out tasks for Tokelau. The appointments may be of an ongoing kind or on a fixed term basis where a specific task is involved.
Consultation (Article 10)
The Treaty provides for both regular and special consultations between New Zealand and Tokelau, covering subjects of general interest as well as particular issues.
New Zealand and Tokelau will implement the consultation provisions of the Treaty in good faith and in a constructive spirit, as befits the special relationship between them.
Every effort will be made through the consultation mechanisms to anticipate any potential areas of difficulty that might arise in the relationship and to address them in a proactive way. If any actual disagreements arise, every effort will be made to resolve them through consultations including, if necessary, discussions at political leadership level.
In the event that consultation fails to resolve a particular disagreement, New Zealand and Tokelau may engage the services of a mutually acceptable third party mediator and enter into a conciliation process in order to assist them to arrive at a mutually satisfactory solution.
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