Browne v Munokoa and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 16 July 2018 |
| Neutral Citation | [2018] UKPC 18 |
| Docket Number | Privy Council Appeal No 0054 of 2017 |
| Court | Privy Council |
| Date | 16 July 2018 |
[2018] UKPC 18
Privy Council
Trinity Term
From the Court of Appeal of the Cook Islands
Lady Hale
Lord Mance
Lord Sumption
Lord Hodge
Lord Briggs
Privy Council Appeal No 0054 of 2017
Appellants
Gerard McCoy QC
Tim Parker
Zoe McCoy
(Instructed by Martha Henry)
Respondent
Isaac Hikaka
Tony Manarangi
(Instructed by Tony Manarangi)
Heard on 21 and 22 May 2018
This appeal relates to the succession to 19 parcels of Native freehold land on the island of Rarotonga, Cook Islands, which were owned by Richard Pare Browne at the time of his death on 21 November 2005. The deceased had been married for many years to Kurai Browne, who died in 2013. He had no natural issue, but on 6 July 1964, he and his wife had adopted the respondent Richard Browne by court order. The respondent, who was then aged 16, had been living with his adoptive parents since the age of three, but he was not related to them by blood. At the adoption hearing, Kurai Browne had stated on oath:
“I agree boy will not get our lands (he has already succeeded to a number of his natural mother's lands).”
The judge duly noted on the order “Not to affect succession to lands”. It will be necessary to say more about the manner of the respondent's adoption and his relations with his adoptive parents in due course, but it is sufficient at this point to say that he was treated in every way as part of the Browne family and has for many years lived on one of the parcels of land in dispute. He claims to be entitled to succeed to the deceased's land as his adopted son.
The respondent's claim was contested by the appellants, who are two of the deceased's nieces. Apart from a procedural objection based on an alleged defect of service, their case is that Maori customary law in the Cook Islands does not recognise the right of a child adopted from outside the blood family to succeed to the land of the adoptive parents without the unanimous consent of the family, and that their objection is therefore fatal to the respondent's claim.
The Cook Islands are a remote archipelago in the South Pacific Ocean, some 2,000 miles north- east of New Zealand, between Tonga and Samoa on one side and French Polynesia on the other. They comprise 15 major islands, inhabited by a Maori people with a combined population of about 15,000 at the last census in 2011, of whom about 10,500 lived on the principal island of Rarotonga. These numbers are understood to have declined somewhat since 2011. The islands had no prolonged contact with Europeans until 1827, when the first European missionaries arrived, and no political connection with them until 1888, when they became a British protectorate. They were subsequently annexed to the then British colony of New Zealand with effect from 1901. The islands were administered as a dependency of New Zealand until 1965, when they became an independent territory. But New Zealand continues to be responsible for their external relations and provides a number of significant public services to the islands, including the provision of judges of their superior courts.
Section 66A of the Constitution of the Cook Islands provides:
“(3) Until such time as an Act otherwise provides, custom and usage shall have effect as part of the law of the Cook Islands, provided that this sub-clause shall not apply in respect of any custom, tradition, usage or value that is, and to the extent that it is, inconsistent with a provision of this Constitution or of any other enactment.”
Subject to a number of statutory modifications, rights over land and the succession to land have at all times been governed by the customary law of the islands. The Judicial Committee has previously had occasion to refer to some of the essential features of customary land law in the Cook Islands. In The Descendants of Utanga and Arerangi Tumu v The Descendants of Iopu Tumu [2012] UKPC 34 at para 2, Lord Walker and Lord Carnwath, delivering the advice of the Board, referred to “the special character and importance of ancestral property to the indigenous peoples of the Cook Islands, which transcends any commercial significance”. In Baudinet v Tavioni [2012] UKPC 35, Lady Hale, expanding on this point at para 61, observed:
“… the case does not concern the property law of any part of the United Kingdom. It concerns the property law of the Cook Islands. We are told by both parties that the relationship between the indigenous people and their ancestral land through Tikanga (right, authority) is an essential component of their identity. This was recognised by the Waitangi Tribunal in New Zealand ( Report on the Crown's Foreshore and Seabed Policy, Chapter 1, paragraph 1): ‘Tikanga is both a consequence and a source of Maori identity. … Without his relationship through tikanga to land by whakapapa, in a fundamental sense, he does not exist. Tikanga defines him; protects him; shapes his idea of himself and his place in the world.’ Nobody disputes that this is equally true of the Maori of the Cook Islands.”
The annexation of the Cook Islands was followed by important legislation of the New Zealand Parliament governing land tenure in the islands. The background to this legislation is explained in part in the advice of the Board in the Tumu case, supra. This may be supplemented by the valuable historical survey of the origin and development of customary land law by R G Crocombe, Land tenure in the Cook Islands (Victoria University of Wellington, 2016) [ http://nzetc.victoria.ac.nz/tm/scholarly/tei-CroLan-c9.html]. In summary, during the protectorate which preceded the annexation of the islands, customary rights over land became a significant political issue. Land had traditionally been treated as a collective asset owned by the Arikis (tribal paramount chiefs) or the Mataiapo (heads of clans) for the benefit the whole body of occupiers. The First British Resident, Mr B J Moss, a prominent New Zealand politician and ethnologist appointed in 1890, created a federal structure, with a government covering the southern group of islands and a Parliament of the Arikis and their nominees, to which he served as an adviser. In 1894, he persuaded the Islands Parliament to issue a “Declaration as to Land”, which was based on a paper that he had prepared in the previous year. The Declaration attempted to record “the customs of the Maori in that matter from time immemorial to the present day”. It declared, so far as relevant:
“The land is owned by the tribe; but its use is with the family who occupy that land. The family consists of all the children who have a common ancestor, together with the adopted children, and all the descendants who have not entered other tribes.
The control of that land rests with the head of the family; but it is for the support of all the family; and all children have a right to that support, as well as the others of the family who may be in distress from sickness, weakness, or old age.”
At that time, it was the policy of the New Zealand government to improve the productivity of land exploited by the indigenous population and to encourage European settlement on land which was not in active use by the indigenous population. It was perceived that both objectives were liable to be frustrated by the collective character of rights over land, the lack of definition of rights of use and the role of the Ariki, who exercised extensive discretionary powers over the use of land, including a right to evict the current occupants. Mr Moss proposed the creation of a land court which would serve as a court of appeal from the Ariki courts on questions of land tenure and would have exclusive jurisdiction over cases involving foreigners. This proposal, which would have undermined the position of the Ariki, was rejected by the islands Parliament. It led to a loss of confidence in Mr Moss and to demands for his recall. As a result, the New Zealand government sent Sir James Prendergast, Chief Justice of New Zealand, to the islands to report. Among other things, Sir James drew the attention of the New Zealand government to the problems arising from the powers of the Ariki over land, and prevailed upon the islands Parliament to introduce a system of registration of leases administered by a Land Board. The annexation of the islands, which followed four years later, was an initiative of the New Zealand government. One of its objectives was to enable more extensive reforms to the system of land tenure to be introduced in order to serve the government's policy objectives. The Colonial Office in London, however, was prepared to consent to the annexation only on certain conditions, one of which was that the land rights of the indigenous population were to be properly protected. The result was a pragmatic compromise between Maori traditions of collective rights over land and European concern with security of tenure, legal clarity and judicial enforceability.
In 1901, the New Zealand Parliament enacted the Cook and Other Islands Government Act, which was expressed to be provisional and came into force simultaneously with the Order in Council annexing the islands. This provided for existing laws and customs to subsist, unless and until amended or abrogated by the Governor in Council, and conferred power on the Governor in Council to create a court empowered to ascertain and declare title to land. That power was exercised in 1902 by an Order in Council creating the Native Land Court. The court has been through a number of changes of name. For convenience, the Board will refer to it throughout as the Land Court.
The Act of 1901 was in due course replaced by the Cook Islands Act 1915, a much more elaborate enactment covering most aspects of the government of the islands, and making fuller and...
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