The bill to restore the New Zealand citizenship rights of Sāmoans who’d been stripped of them by a 1982 law, passed its third and final reading in parliament this week and is expected to become law tomorrow.

And while it’s been generally welcomed by the Sāmoan community, hardly anyone believes that this should be the end of the matter.

That includes former diplomat Nigel Allardyce — who argues in this piece that the 42-year-old grievance remains substantially unresolved — as well as those who’ve spent decades campaigning for the repeal of the 1982 law.

 

Parliament unanimously passed the Citizenship (Western Samoa) (Restoration) Amendment Bill at its third reading on Wednesday. Now it awaits the ceremonial rubber stamp of “Royal Assent”, expected tomorrow, before becoming law.

But despite all the political fanfare and self-congratulation, there is precious little “restoration” in this legislation. Rather, it is tokenism that will achieve very little for very few. While this legislation does mark a step in the right direction, it is the smallest possible step that could have been taken.

For Sāmoans, New Zealand citizenship has been like a rollercoaster ride. First, they had it, then they didn’t, and now a few of them can have it again.

(Western) Sāmoans were by law New Zealand citizens from January 1, 1949. The British Nationality and New Zealand Citizenship Act 1948 provided for that. In 1982, New Zealand’s highest court at the time, the Judicial Committee of the Privy Council, upheld that.

But the government took their citizenship away using the Citizenship (Western Sāmoa) Act 1982. That legislation said Sāmoans had never been New Zealand citizens — although, of course, they had been.

That was like saying a tree that was cut down and removed overnight had never been there at all. That would be a nonsense. But common sense having been abandoned in creating this nonsense and inserting it into the law, the government put itself at odds with earlier legislation and the findings of its highest court.

And now, in yet another about-face, the Citizenship (Western Samoa) (Restoration) Amendment Act 2024 says that a few elderly Sāmoans can have New Zealand citizenship back again — if they apply for citizenship that was once theirs by right in law, but that was arbitrarily taken away from them in breach of their human rights.

On the one hand, the new legislation suggests that the government acknowledges the unfairness and injustice perpetrated by the 1982 Act, now 42 years after it came into effect.

But, on the other hand, the extent to which there is any “restoration” in the new legislation exposes this National-led government’s determination to stop at tokenism.

Despite Sāmoans’ historical and newly legislated rights to citizenship, the government is feeding an increasingly tangled legislative mess.

In July 1982, the Privy Council upheld Falema’i Lesā’s argument that (Western) Sāmoans who were British subjects became New Zealand citizens through the 1948 Act.

But the government of the time didn’t like that. So, it moved with remarkable haste to overturn the effect of its citizenship legislation. Legislation that it had misunderstood, misinterpreted and misapplied for 34 years to the grave disadvantage of New Zealand citizens of Sāmoan ethnicity.

Others, including lawyers George Rosenberg and Dr George Barton QC, who took Falema‘i Lesā’s case to the Privy Council, understood the law. But it took the Privy Council to clarify it for the government.

The government had been unlawfully deporting New Zealand citizens of Sāmoan ethnicity to (Western) Sāmoa. Falema’i Lesā herself was on the cusp of being deported as an “overstayer”.

This was an outrageous violation of Sāmoans’ human rights and constitutional and statutory law. No reparation has been made for that, except that their overstaying convictions were quashed. And that was the very least that should have been done for them.

Within less than two months of the Privy Council’s ruling, the government enacted the Citizenship (Western Samoa) Act 1982 to overturn the citizenship rights in law of New Zealand citizens of Sāmoan ethnicity.

As I’ve written previously, mass deprivation of citizenship hadn’t been seen in the developed world since 1935, when Jews were deprived of their German citizenship by the Nazis. (However, unlike here, those who were stripped of their German citizenship in this way, and their descendants, can now easily restore it.)

The hastily assembled and enacted 1982 legislation said that New Zealand citizens of Sāmoan ethnicity who were in New Zealand at any time on September 14, 1982 (the day before the Act came into effect) could apply for New Zealand citizenship, and they would automatically be granted it.

Of course, this was citizenship that they already happened to have until the government took it away from them.

But just as the government had unlawfully used the Immigration Act 1964 to deport Sāmoans, so the government again unlawfully used the same law to prevent Western Sāmoans from travelling to Aotearoa so they could get here and protect their citizenship in the way that the 1982 Act provided for.

The Act also said that New Zealand citizens of Sāmoan ethnicity who’d obtained a New Zealand passport before the 1982 legislation was enacted would retain their New Zealand citizenship. But the government then ran interference with the New Zealand passport-issuing process to obstruct those New Zealand citizens of Sāmoan ethnicity from being issued with a passport, as was their right in law before the 1982 Act was passed.

So, on September 15, 1982, most Sāmoans had their citizenship arbitrarily taken away from them. An estimated 100,000 were affected. But this number has never been verified. It could have been tens of thousands higher.

This arbitrary deprivation of citizenship clearly breached the United Nations Universal Declaration of Human Rights, which New Zealand helped to draw up and voted for in 1948. And in preventing Sāmoans who were New Zealand citizens from travelling to Aotearoa, the government committed a further human rights breach.

Significant protest about the impending legislation back in 1982 made no difference to the then government. Resurgence of the grievance in 2003, when around 90,000 people petitioned parliament, made no difference either.

Unsurprisingly, a strong sense of grievance persists within and beyond the Sāmoan community because of the government’s breaches of human rights, together with its unconstitutional and unlawful behaviour in the passing of the 1982 legislation and its subsequent actions.

Some might see potential lawsuits in all this on a similar scale to that of the 1982 Falema’i Lesā case. Then the government could be looking at compensation.

Green MP Teanau Tuiono’s well-intentioned private member’s bill has arguably achieved the very limited purposes that it originally set out to. Perhaps a little progress would be better than no progress at all.

But that approach risks a little progress being politically touted as having adequately resolved the grievance. The self-congratulatory speeches in parliament during the bill’s third reading on Wednesday might have made some people think that “restoration” had substantially been achieved. That is far from the case.

The select committee that considered the bill, and reported its recommendations back to parliament, ignored an important theme among the nearly 25,000 public submissions on the bill.

There was significant support for the full restoration of New Zealand citizenship rights to all those who had been arbitrarily deprived of them by the 1982 Act. In other words, support for the repeal of the 1982 law and a return to the situation that existed previously.

That’s what honest “restoration” would look like: Giving back what was wrongly taken.  Not just giving back as little as possible of it. But the new legislation stops way short of anything like meaningful restoration.

Questions will rightly be raised about the select committee process, and particularly the extent to which even very large numbers of public submissions are paid any meaningful attention.

Elderly Sāmoans are now offered a different class of New Zealand citizenship from what was arbitrarily taken off them in 1982. They must apply for New Zealand citizenship by grant — a second-class invention that prevents those who get it from passing on citizenship to their descendants.

All this on application only, rather than conferred as of right in law, and the payment of an application fee of NZ$204.45 that will be refunded if the application is successful.  The fee is just another obstacle — and to complicate matters further, Sāmoa, of course, has its own currency. And so, the fee will vary in Sāmoan currency from day to day.

Why not restore Sāmoans’ citizenship as of right, without the requirements for an application, a fee, and all the associated and obstructive raruraru? Surely, it’s easy enough to determine from a birth certificate where and when someone was born.

And what about the 42 years during which Sāmoans were deprived of New Zealand citizenship that was once their right in law?

Those Sāmoans might have exercised their right to live and work in New Zealand.  Their children would have been New Zealand citizens by birth. They would likely have qualified for National Superannuation. If they had children overseas, those children would have been New Zealand citizens by descent. These were some of the constitutional and statutory rights that were confiscated from them in breach of their human rights. Other rights included ease of access to New Zealand’s public education and healthcare services.

The legislation passed on Wednesday is estimated to apply to around 3,500 Sāmoans now aged between 75 and 100 years.

But very few elderly Sāmoans are likely to take up this offer. An unknown number are dead, others are incapacitated by old age, others are not inclined to leave their homeland. Those who do take up the offer will not qualify for National Superannuation and will become a financial burden on their families here.

And there remains a troubling question about the citizenship status of Sāmoans who were born in Western Sāmoa between January 1, 1949, and January 1, 1962, when Western Sāmoa became independent of New Zealand and established Sāmoan citizenship. Remarkably, it appears that Sāmoans were stateless while still under New Zealand’s hardly benevolent colonial administration.

So, a Sāmoan born there at 11:59 pm on December 31, 1948 was a New Zealand citizen, yet someone born there two minutes later was stateless. Well done, New Zealand!

You might think that New Zealand would have handed out better treatment to the people of a country that it invaded and colonised for 48 years. A people who, in the 1950s, were encouraged to come to New Zealand to provide cheap, unskilled labour.

Then, too, Sāmoans have made substantial contributions to all walks of New Zealand life. Those contributions include distinguished professional careers in law, medicine and politics, the arts, and international sporting achievements so cherished by Kiwis.

But successive New Zealand governments have form when it comes to creating massive grievances that linger unresolved for decades. Consistent with that history and New Zealand’s poor track record in Sāmoa — both during colonisation as well as after Sāmoa’s independence — the human rights breaches and the constitutional and statutory excesses of the Citizenship (Western Sāmoa) Act 1982 survive the new legislation.

The grievance is substantially still there.

And tens of thousands of Sāmoans who would have been entitled in law to New Zealand citizenship have been left behind. The benefits and privileges of New Zealand citizenship to which so many Sāmoans were entitled in law have not been honestly or meaningfully restored.

Wednesday’s token legislation merely kicks the can down the road. Again.

Nigel Allardyce is a former New Zealand diplomat who worked for the Ministry of Foreign Affairs and Trade from 1980 to 2003. During that time, he was assigned to five diplomatic postings overseas, including to Apia, Sāmoa, from 1987 to 1990. Nigel retired in 2018 and lives in Whanganui.

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‘Today, we celebrate the small wins and the small steps’

Despite the new citizenship restoration law falling short of real restoration, members of the Sāmoan community who were in parliament on Wednesday to witness its passing were looking on the bright side.

Maiava Visekota Peteru, a Sāmoan lawyer who organised the 2003 petition to repeal the 1982 law, told RNZ’s Grace Tinetali-Fiavaai, that the passing of Teanau Tuiono’s bill meant a lot.

“There is still a lot of work to be done, but today we celebrate the small wins and the small steps.”

Afamasaga Toleafoa, Sāmoa’s High Commissioner to New Zealand, is among the estimated 3,500 affected by the law change. “I don’t think there’s an awful lot of morale when you look at the numbers,” he told RNZ. “Most of them have passed away — there is a small number of them alive.”

He added that the support for the bill from New Zealand has been surprisingly strong.

“Beneath it all, there is a recognition of the injustice being done to those who are now eligible.”

Arthur Anae, a former National MP and long-time campaigner for the repeal of the 1982 Act, told E-Tangata:

“We all rejoice that we’ve got a decision that was favourable after 42 years. Personally, I’m very happy that we did that, and that they’ve acknowledged that there was an error.

“But they didn’t go the whole destination, as far as I was concerned.

“What I wanted was for them to give us the full citizenship rights as set out in the Privy Council decision, which said that those born between May 13, 1924 and January 1, 1949 and their heirs were New Zealand citizens. They’ve only given us [citizenship rights] for the old people. They’ve left out their descendants altogether.

“So, firstly, I’d say, let’s add the descendants in there.

“And secondly, I believe that, because they denied and deprived these people their rights for 42 years, those who are still living should get 50 percent of their eligible pension on the proviso they stay and live in Sāmoa. There’s only a few of them left, and they only have five or 10 years left, at the most. This is nothing major to settle a grievance that’s so old. But, at this point, that’s been denied.”

As for the $204 application fee, “it’s idiot economics. First of all, they have to pay the fee which, including GST is $204. Once the application has been completed and accepted, that will be refunded. So you go through the process of collecting it, actioning it, refunding it. That is a lot more costly than just saying it’s all yours for free.”

And finally, Falema’i Lesā, the woman who started all this with her appeal to the Privy Council back in 1982, has been clear all along that while she “wholeheartedly” supported Green MP Teanau Tuiono’s bill, it didn’t go far enough.

“The government should reinstate the rights of the descendants of those Sāmoans who would have been New Zealand citizens under the 1982 Privy Council ruling. It’s the right thing to do after all this time, and it’s a respectful way of reflecting our voices as well as the historical and ongoing contribution of Sāmoans to this country.”

© E-Tangata, 2024