Tapu Misa: Samoans stand little chance of getting NZ citizenship

The Wellington barrister Dr George Barton, QC, is far too gentlemanly to tell me what his feelings were when Parliament overturned the 1982 Privy Council ruling declaring that Western Samoans were New Zealand citizens.

"It would be unprintable," says Barton, with old-fashioned restraint.

It's been 21 years since the barrister and another Wellington lawyer, George Rosenberg, first convinced the Law Lords in London that people born in Western Samoa between 1924 and 1948 were New Zealand citizens by law.

They had taken the case on behalf of Falemai Lesa, a Western Samoan woman who was facing deportation for overstaying, arguing that she was a New Zealand citizen by virtue of legislation passed in 1923 and 1928, when New Zealand still administered Western Samoa.

The clincher for their lordships was the 1928 British Nationality and Status of Aliens (in New Zealand) Act, which held that the Cook Islands and Western Samoa were "in the same manner in all respects ... [and] for all purposes part of New Zealand". The term "New Zealand" was "to be construed as including the Cook Islands and Western Samoa".

The Privy Council decision came as quite a shock, considering that the immigration dawn raids of the 1970s were a recent memory, and "overstayer" and "Islander" were still pejorative terms.

But it was a short-lived victory. Within two months of the Privy Council decision, the ruling was overturned by the 1982 Citizenship (Western Samoa) Act.

The issue, though, has always rankled with many Samoans, among them Samoan businessman and former National MP Arthur Anae, who has organised an 85,000-strong petition calling for the repeal of the act. Tomorrow, Barton will present the petition to Parliament, flanked by several thousand Samoans.

To Barton it's a question of law, which in his eyes has always been clear-cut. That law had been framed during a time when New Zealand fancied itself as a Pacific power. Its expansionist ambitions were articulated by more than a few politicians who publicly proclaimed that New Zealand had complete sovereignty over Western Samoa, which it had conquered by military force in 1914.

Those imperialistic tendencies led to it administering the Cook Islands, Tokelau and Niue - the inhabitants of which are all, as a result, New Zealand citizens. But while our Court of Appeal refused to see Samoans in the same way, the Privy Council had no such difficulty. Barton says it took the Law Lords about 10 minutes to come to the same "inescapable" conclusion.

"It was so obvious in the course of the argument that we had persuaded them. It was even more obvious when the Solicitor-General began his arguments that he was not persuading them. They gave him extra time to think things over, and then when he had finished they gave a very clear signal that we had won. They said they did not wish to hear me."

But their deliberations weren't widely welcomed. Racist abuse poured into the Western Samoan High Commission in Wellington. Within weeks, the Government began moves to repeal the decision.

Introducing the Citizenship (Western Samoa) Bill, the Attorney-General said that "even though there was no evidence of an immediate wave of migration from Samoa ... we simply could not live with the situation whereby scores of thousands of people born and living outside New Zealand could come and reside here at any time".

A delegation from Samoa tried to assure the Muldoon Administration that the fears were exaggerated. Maiava Iulai Toma, who was then Secretary to the Samoan Government, said it pleaded with New Zealand to do nothing.

"New Zealand's answer from the highest levels possible was simple and unequivocal. The National and Labour parties were of one mind to negate by legislation the implications of the 'Lesa' decision for Samoans in general."

National's Jim McLay - in the company of David Lange - was dispatched to Apia, where McLay stitched together a deal that became known as the Protocol. That deal was widely interpreted as having signed away the New Zealand citizenship rights of Western Samoans, but Maiava says that wasn't the case.

Samoa had signed the Protocol because it contained clear benefits for migrating Samoan citizens. The terms were non-negotiable.

Maiava says the Government had signed on behalf of Samoan citizens, but "it did not sign, could not sign, nor pretended to sign for New Zealand citizens".

Once the Protocol was signed, the citizenship bill was rushed through Parliament, supported by both sides of the House.

Our Human Rights Commission said the bill had "an unfortunate racist implication" and involved "a denial of basic human rights in that it seeks to deprive a particular group of New Zealanders of their citizenship on the basis that they are Polynesians of Samoan descent".

Hansard records it was the Mt Albert backbencher Helen Clark who pointed out that New Zealand already lived with a situation in which 160,000 New Zealanders resident overseas and 14 million Australians were able to enter at any time. "Why is the Government so worried about the remote possibility of 100,000 Samoans exercising their right to live here?"

Presenting a petition signed by 16,000 Western Samoans, Clark called the bill "discriminatory". "If we pass the bill in this form, we are making another very bad blunder in our relationship with Western Samoa and there have been far too many blunders in our history. It is time for a fresh start ... "

But despite last year's apology, that seems unlikely.

George Barton is not a politician, of course. While he's sure of the law, he's not so certain about the political realities of getting this black act overturned. I tell him I don't think the environment is any friendlier than it was 21 years ago.

"That may be so," he says. "But it is no more unfriendly."

* Email Tapu Misa