'Lack of understanding' on Cook Islands-New Zealand realm relationship - expert

An New Zealand academic says there is a lack of understanding on the details of Aotearoa's relationship with the Cook Islands.

Earlier this year, New Zealand extended its funding pause to its realm country "reluctantly", with the total now nearly $30 million over two years.

The disagreement between the two governments stem from several agreements that the Cook Islands signed with China at the beginning of the year.

The New Zealand government believed it was not adequately consulted over the agreements, which Wellington sees as a requirement under the free association agreement.

Cook Islands Prime Minister Mark Brown has pushed back at this, saying the requirement of consultation is mutual, adding New Zealand would not speak to his government prior to signing international deals.

The Cook Islands celebrated 60 years of self-governance this year. Brown said the nation had evolved, having a paternal relationship with New Zealand to now one of friendship.

However, honorary senior lecturer academic researcher at the University of Auckland John McCaffery said it is a sad situation and "neither party really understands the constitutional basis for the relationship".

He said more recent agreements, like the 2001 Joint Centenary Declaration signed between New Zealand Prime Minister Helen Clark and Terepai Maoate, are a "superficial issue".

"The real issue lies in what is the relationship under the provisions of the realm of New Zealand," McCaffery said.

"The realm provisions have remained the same since it was put in place in 1917, when the Cook Islands and Niue were brought into a relationship with New Zealand, not as dependent territories, but actually as an integrated part of the realm of New Zealand, over which the British monarch has absolute authority, which is delegated to the New Zealand Governor-General.

"I'm not saying that I like it or anybody else likes it but that is the historical situation."

The 1917 letters patent established the office of the Governor-General and extended its powers to the Cook Islands and Niue.

Based on this, McCaffery said the New Zealand Governor-General holds the power over both the New Zealand and Cook Islands government, despite the Cook Islands having its own King's Representative.

He said it means the New Zealand government has the power to advise the Crown to withdraw the warrant of the current government of the Cook Islands - effectively toppling Brown.

McCaffery said the Cook Islands should look for amendments to the letters patent, instead of asking for clarification over the more recent self-governing in free association issue, which came into effect in 1965.

"[The Cook Islands] are actually a dependent territory of New Zealand and definitely not an independent country.

"It should have been said a long time ago, these are the limits to the Cook Islands constitution and operation and if you want to remain with New Zealand, you must abide by them.

"If you don't and you wish for independence, as has always been said, you're welcome to go for it; but there are absolute limits that I think New Zealand has failed in its friendship and relationship responsibilities to spell out."

A spokesperson for New Zealand Foreign Minister Winston Peters said they had nothing further to add to their previous statements on the realm relationship.

Last month, Peters said New Zealand's relationship with the Cook Islands is with its people, not the government.

"It's the people who've got this, what we might call a pretty sacred agreement with and we intend to honour it.

"We've got to make sure the Cook Islands people know what's happening in their name, because what's happening at the moment is a breach of the realm special relationship."

He said if the Cook Islands wants to become independent of New Zealand, they should "have a referendum and tell us".

"But in the meantime, we're not going to let the Cook Islands people down."

He also said there had been a series of constructive discussions between New Zealand and Cook Islands officials.

But he said Brown was promoting a vision of the relationship which was "inconsistent with the free association model".

In parliament about two weeks ago, Brown said the Cook Islands has consistently written to Wellington since February, reaffirming its commitment to the relationship while setting out the Cook Islands' legal and constitutional position.

He said the government has tabled several forward-looking proposals, including risk mitigation measures, a modernised consultation process under the Joint Centenary Declaration, direct political engagements, security arrangements that reaffirm New Zealand as the primary partner, and "a workable set of deliverables to rebuild mutual trust and confidence across both government administrations".

Brown reminded parliament that the Joint Centenary Declaration is treated "as a formal codification that is equivalent in status to a treaty."

Although the Cook Islands shares a Head of State and citizenship with New Zealand, he said the islands remain self-governing and independent in external affairs.

First and second-class citizenship

McCaffery said under the current agreement the Cook Islands also has a right to public services in line with that of New Zealand.

"Some people have said that people in New Zealand are first-class citizens and people in the realm are second-class citizens because they do not have the same health care, the same education, the same facilities, the same transport.

"I've always been unsure why the realm territories and the Cooks in particular, didn't exercise that clause of the realm provision saying, 'if we are New Zealand citizens, we need to be on the same basis as the first-class citizens of Aotearoa, New Zealand'."

McCaffery has Cook Islands grandchildren and in 2012 he took a petition to parliament arguing Cook Islands people in New Zealand should have access to their own language and culture, because the Cook Islands is part of the realm of New Zealand.

"The New Zealand Parliament did fundamentally agree with that provision and has extended language rights and language instruction rights in Cook Island Māori to Cook Island students in New Zealand."

He said it's an example of New Zealand rights also extending to the Cook Islands.