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Samoa and New Zealand's Special Relationship http://waikato.researchgateway.ac.nz/ Research Commons at the University of Waikato Copyright Statement: The digital copy of this thesis is protected by the Copyright Act 1994 (New Zealand). The thesis may be consulted by you, provided you comply with the provisions of the Act and the following conditions of use: Any use you make of these documents or images must be for research or private study purposes only, and you may not make them available to any other person. Authors control the copyright of their thesis. You will recognise the author’s right to be identified as the author of the thesis, and due acknowledgement will be made to the author where appropriate. You will obtain the author’s permission before publishing any material from the thesis. SAMOA AND NEW ZEALAND’S SPECIAL RELATIONSHIP: MORE THAN A NEIGHBOUR? A thesis submitted in fulfilment of the requirements for the degree of Master of Laws at The University of Waikato by Taoa Delphina Kerslake THE UNIVERSITY OF WAIKATO 2010 ABSTRACT This thesis will discuss in detail the special relationship between Samoa and New Zealand. From the Samoa and New Zealand relationship certain equitable obligations arise because of the special features ascertained in the relationship. These features include the historical and ongoing relationship of both countries as well as the Treaty of Friendship, a unique document that assists in regulating the relationship between both countries. The purpose of this thesis is to discover the true meaning of the special relationship between Samoa and New Zealand and discover the obligations that arise out of it. The special relationship of Samoa and New Zealand will be discussed in light of the fiduciary principles of a sui generis relationship. Such relationships have been found to exist in Crown-Aboriginal peoples’ relationship in Canada and Australia. This thesis will develop how the Samoa-New Zealand relationship may be analogous to a Crown-Aboriginal peoples’ relationship. A unique feature between the relationship of Samoa and New Zealand is what is encompassed in the text of the Treaty of Friendship. Discussion will focus on the importance of Treaties and the role treaties play in facilitating relationships between countries. Comparative analysis will be drawn on the Māori-Pākehā relationship and how it has developed since the principles of the Treaty of Waitangi have been identified by the New Zealand Court of Appeal. Through the articulation of the principles of the Treaty of Waitangi its status has been acknowledged. This thesis will use this analogy to show that through recognition of the text of the Treaty of Friendship, the special relationship between Samoa and New Zealand may give more legal and practical effect. Other special features of the Samoa-New Zealand relationship will be discussed in detail emphasising the difference of the Samoa-New Zealand relationship to other types of relationships. The articulation of the special relationship of Samoa-New Zealand will also identify the breaches that have occurred in the relationship. Such breaches include New Zealand maladministration during the colonial period and breaches that occurred during the post-independence era such as the Dawn Raids and the aftermath of the Lesa decision. This thesis will address these breaches and make ii suggestions on a way forward by addressing some of the crucial issues in the relationship to provide a firmer foundation. In this thesis, when reference is made to “Samoa”, this means the Independent State of Samoa, which was formerly known as German and Western Samoa. It is not referring to the Eastern Islands of Samoa known as American Samoa. The words “Samoa” and “Western Samoa” are used inter-changeably throughout the thesis. Both words refer to the Independent State of Samoa and are synonymous except where stated. iii ACKNOWLEDGEMENTS This thesis has been a hard journey full of challenges. It really has been a learning experience where I have rediscovered the true meaning of discipline and focus. The main purpose of this thesis is to contribute to Samoan literature and the many fruitful works of Samoan academics and researchers. This work would not have been possible without the support of colleagues, friends and family. I am indebted to Doug Tennent who encouraged me to take up this study and continued to direct me under his close supervision. I acknowledge my Supervisors Leah Whiu and Gay Morgan for their kind assistance throughout this study. To my family, who I am forever indebted to: My parents Hon. Tagaloa Tuala Donald Charles and Dr Maria Talaitupu Kerslake who instilled in me the seed of knowledge that I have tried to sow over the years. I thank you for your endless support. I am forever blessed to have parents like you. I acknowledge my sisters, brothers, nieces and nephews for their support. The family network has truly been a great source of comfort. I also acknowledge my extended family, those who have passed away but are present in spirit; and the numerous aunts, uncles and cousins for their encouraging support. I owe a great deal of gratitude to my husband, Shane Joseph Wulf and my two children: Isaac Simanuali’i and Salaneta Elsie who have been my rock and foundation throughout this study. I thank you for your patience, the great times and joy you have given me throughout this study. I especially thank Shane who did not mind the numerous absent moments but continued to play the parent role for both of us, to our children. Lastly but most important of all, I give all thanks and praise to God because through him all things are possible. iv GLOSSARY Aana Refers to the western division of Upolu. Aitu Ghost or spirits. Ali’i One of the two types of matai; refers to a High chief. Also a polite word used to refer to men. Atua Refers to the eastern division of Upolu. Other meaning is refers to God. Fa’alavelave Family obligations and events that may include a wedding, funeral, chief bestowment or any special occasion. Fa’asamoa Cultural and traditional ways of Samoan people. Faipule Refers to chiefs of a village. It is also the term given to members of Parliament. Fale A traditional Samoan house. Fono o Faipule Village council of Chiefs. Hapū Subtribe; extended family. Iwi Tribe. Kawanatanga governorship. Lagi The heavens. Matai Are titled people, either a chief or an orator, whose particular duties are the leadership and care of the family under their control, and who are entitled to the services and cooperation of all members of their families in return for their leadership. Pākehā Refers to the Europeans in New Zealand. Pāpā Refers to the four highest titles: Gatoaitele, Tamasoalii, Tuia’ana and Tuiatua. Pulotu Afterworld; afterlife Tafa’ifa Holder of all four paramount titles of Samoa. These titles are Gatoaitele, Tamasoalii, Tuia’ana and Tuiatua. Tama-a-aiga Reference to the paramount chiefs of Samoa. v Talune Name of vessel that travelled from Auckland to Samoa carrying the influenza epidemic. Tāngata Whenua Referring to the indigenous people of New Zealand, Māori. Literally translates as “People of the Land”. Taonga Treasure or gift. Tapu Sacred. Te Tiriti o Waitangi The Māori text of the Treaty of Waitangi 1840. Tikanga Māori traditional law and custom. Tino Rangatiratanga Sovereignty. Tuamasaga Refers to the central division of Upolu. Tulafale One of the two types of matai; refers to an Orator or talking chief. Tumua and Pule Referring to the people of Samoa distinctly those who originate from the islands of Upolu and Savaii Upolu One of the four main islands of the Independent State of Samoa. Upolu; The capital Apia is located on the island, Upolu. vi TABLE OF CONTENTS: TITLE PAGE i ABSTRACT ii ACKNOWLEDGEMENTS iv GLOSSARY v TABLE OF CONTENTS vii INTRODUCTION xii CHAPTER 1: HISTORICAL CONTEXT 1 A. Pre-Colonial Samoa: The Traditional Samoan Society 2 B. Colonial Contacts: 6 (i)Arrival of Christian Missionaries 7 (ii)Initial Impacts of Colonisation 8 (iii)Competition among Colonial Powers 9 (iv)Consequences of Competition for Samoan people 10 (v)Germany’s Arrival 11 C. New Zealand’s Arrival: 13 (i)New Zealand Administration in Samoa 14 (ii)Influenza 1918 15 D. League of Nations Mandate 1920: Samoa’s integration into New Zealand 19 (i)The Articles of the League of Nations Mandate 1920 20 (ii)Discussion of the League of Nations Mandate 1920 21 E. New Zealand Administrators in Samoa: 23 (i)Robert Logan 1914-1919 23 (ii)Robert Ward Tate 1919-1923 24 (iii)George Spafford Richardson 1923-1928 24 (a) Resistance: Mau Movement 26 (b) Deportation 27 (iv)Stephen Shepherd Allen 1928-1931 29 (a) Black Saturday 30 (v)Robert Ernest Hart 1931-1935 31 (vi)Alfred Clarke Turnbull 1935-1946 32 vii (vii)Francis William Voelcker 1946-1949 33 (viii)Sir Guy Richardson Powles1949-1960 34 (ix)John Bird Wright 1960-1961 35 (x)Conclusion – Administrators 35 F. United Nations Trusteeship Agreement 1946-1961 35 (i)Articles of United Nations Trusteeship Agreement 37 G. Constitutional Convention 1954 40 H. Initial Stages of Independence 43 I. Post Independence 44 J. Treaty of Friendship 1962 44 (i)Discussion of Treaty of Friendship 46 K. Samoan Migration to New Zealand 47 (i)Immigration Policies 48 L. Dawn Raids 50 M. Lesa v Attorney-General - Privy Council Decision 53 N. Protocol & Citizenship (Western Samoa) Act 1982 56 O. Current Relations: 58 (i)Apology 2002 58 P. Summary 59 CHAPTER 2: LEGAL FRAMEWORK 62 A. Fiduciary Duty/Obligation 63 B. Fiduciary Legal Principles: 67 (i)Trust and Confidence 67 (ii)To Benefit or Advance interests of other party 68 (iii)Power imbalance/Vulnerability 70 (iv)Fiduciary must not profit 71 (v)Unconscionability 72 C.
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