The descendants of Utanga and Arerangi Tumu v The descendants of Iopu Tumu
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath,Lord Walker |
| Judgment Date | 22 October 2012 |
| Neutral Citation | [2012] UKPC 34 |
| Date | 22 October 2012 |
| Docket Number | Appeal No 0083 of 2010 |
| Court | Privy Council |
[2012] UKPC 34
Privy Council
Lord Phillips
Lord Walker
Lady Hale
Lord Mance
Lord Carnwath
Appeal No 0083 of 2010
Appellant
Kate Davenport
Ross Holmes
Justin Wall
(New Zealand and Cook Islands Bar)
(Instructed by Ross Holmes Lawyers L.P)
Respondent
Rebecca Edwards
Tina Browne
Sarah Inder
(New Zealand and Cook Islands Bar)
(Instructed by Brown Harvey & Associates P.C)
Heard on 18–19 April 2012
Lord Walker and
This is the first appeal to the Judicial Committee from the Cook Islands since their people attained internal self-government in 1965. The Cook Islands are two scattered groups of small islands in the Pacific Ocean, the Southern Cook Islands in the general region of 20°s 160°w and the Northern Cook Islands in the general region of 10°s 165°w. They are therefore on the other side of the International Date Line from New Zealand, of which they formed part during much of the 20 th century. This appeal relates to land in Rarotonga, the largest of the Southern Cook Islands. It has an area of about 67 square kilometres. It is roughly oval in shape, with a mountainous core surrounded by a fringe of low ground, some cultivable and some swampy. The indigenous people are Maori. The inhabited parts of the island are divided into three vaka (or tribal territory): Avarua on the north coast, Takitimu on the south, and Arorangi on the west. The land relevant to this appeal consists of three plots within the Takuvaine tapere ((district) in the Avarua vaka (territory).
The judgment of the Board in the associated case of Baudinet v Tavioni [2012] 35 emphasises the special character and importance of ancestral property to the indigenous peoples of the Cook Islands, which transcends any commercial significance. This has been recognised by domestic legislation since the islands became part of New Zealand in 1901. As will be seen, such property is generally inalienable, subject to restrictive conditions supervised by the courts.
By an Order in Council made on 13 May 1901 under the Colonial Boundaries Act 1895, the Cook Islands became part of New Zealand. The Order in Council came into force on 11 June 1901. Shortly afterwards, on 7 November 1901, the General Assembly of New Zealand passed the Cook and other Islands Government Act 1901 ("the 1901 Act"), which was deemed to have come into force on 11 June 1901. It was described as "An Act to provide temporarily for the Government of the Cook and other Islands in the Pacific within the Boundaries of the Colony of New Zealand."
Section 2 of the 1901 Act provided as follows:
"Subject to the provisions of this Act, the laws in force in the said Islands at the commencement of this Act (including the local laws, customs, and usages of the Native inhabitants, in so far as the same are not repugnant to the general principles of humanity) shall continue untilother provision is made, and, subject as aforesaid, the statute laws of New Zealand shall not be in force in the said Islands:
Provided that the Governor, by Order in Council, may from time to time direct that any of the laws in force in the said Islands at the commencement of this Act, may be modified or repealed."
By section 4 existing courts of justice in the Cook Islands were to continue, but subject to new rights of appeal to superior courts in New Zealand. Section 6 provided as follows:
"The Governor, by Order in Council, may from time to time establish a tribunal or appoint an officer or officers, with such powers and functions as he thinks fit, in order to ascertain and determine the title to land within the said Islands, distinguishing titles acquired by native customs and usage from titles otherwise lawfully acquired; and may provide for the issue of instruments of title, and generally make such provisions in the premises as he thinks fit."
Section 15 made provision for the setting aside of Crown lands.
So apart from Crown lands, the general effect was to keep in place the substance of the land law of the indigenous Maori population, while providing for the introduction of a new system for its administration. This new system was provided for by an Order in Council ("the 1902 Order in Council") made on 7 July 1902. This established the Cook and other Islands Land Titles Court ("the Land Court", that expression being used to include its successor under the Cook Islands Act 1915, initially called the Native Land Court and later the Land Court).
Section 3 of the 1902 Order in Council provided as follows:
"The Court shall consist of such Judges, not less than two, as the Governor may from time to time appoint. One of such Judges shall be the Chief Judge, who shall be a European."
"European" was defined as a person other than a Native, and "Native" as "an aboriginal native" of the Cook Islands. Section 10 set out the jurisdiction of the Land Court in numerous subsections, the first six being as follows:
"The Court shall have jurisdiction –
(1) To investigate the title to and to ascertain and determine the owners of any land within the said Islands, distinguishing titles acquired by Native custom and usage from titles otherwise lawfully acquired:
(2) To determine the relative interests in any land of the persons entitled thereto, and to partition any land among such persons:
(3) To effect an exchange between Natives on any land owned by them:
(4) To determine any successor:
(5) To grant probate of the will and letters of administration of the estate and effects of any Native now dead, or who shall hereafter die:
(6) To render any land inalienable, or to impose such limited restrictions on the alienation of any land as the Court may think fit, and to vary or remove any restrictions:"
Section 10 (15A) (which was, despite its unusual numbering, part of the statute from its original enactment) gave the Land Court jurisdiction,
"(15A) To rehear any claim or other matter whatsoever the finding in relation to which has been appealed against within two months from the date thereof. Every such rehearing shall take place before at least two Judges, and the finding thereon shall be final and conclusive, and shall be substituted for the original finding, which shall thereupon become void:"
Section 13 provided that the Chief Judge, or any other judge who was European, might exercise all the powers of the court while sitting alone. Section 25 provided as follows:
"All amendments necessary to remedy or correct defects or errors in any proceeding or document, or to give effect to or record the intended decision in any proceeding, may be made at any time by the Court, whether applied for or not, and upon such terms as to the Court may appear just."
By an Order in Council made on 14 July 1902 the Governor of New Zealand appointed judges and officials of the Land Court: Lieutenant-Colonel Walter Edward Gudgeon ("Colonel Gudgeon") to be a judge and also Chief Judge; Pa Ariki Maretu (an ariki or tribal chief of the Takitumu vaka) to be a judge; Edward Blaine to be the registrar; and Stephen Savage to be an interpreter. Colonel Gudgeon had been present in the Cook Islands as Resident since September 1898, and from 1903 he held the offices of Resident Commissioner (under section 5 of the 1901 Act) and Chief Judge until he left the Cook Islands in 1909 (returning, as explained below, in 1913).
In 1902 Colonel Gudgeon made detailed rules and regulations for the conduct of proceedings in the Land Court. They were procedural in nature, but from the rules and the schedule of standard forms (40 in all) it is possible to discern how the Chief Judge exercised his jurisdiction under section 10 of the 1902 Order in Council. There were forms of application and forms of order for investigation of title; partition; determination of relative interests as between co-owners; succession to land (on intestacy); probate or letters of administration; exchange; removal of restrictions on alienation; and confirmation of alienation. Form No 2 (order on investigation of title on certified plan) set out the form of schedule to be included in such orders (it appears on the back of the printed form which was sealed with the court seal and signed by the Chief Judge and the registrar). The schedule was in this form:
| First Column | Second Column | Third Column | |
| Name | Sex, and if Minor, Age | Relative Interest | Part declared Inalienable |
The Land Court held its first sitting on 2 April 1903. This appeal is concerned with three orders of the Land Court made by Colonel Gudgeon sitting as Chief Judge together with Judge Pa Ariki. The three orders were drawn up and signed by him on 10 November 1905 after hearings in April and July of that year. The three orders were altered on 13 May 1912 after a hearing on that date before Judge MacCormick, who was appointed as a judge of the Land Court (but not as Chief Judge) by an Order in Council made on 13 January 1912. The essential issues in this appeal are whether the alterations were invalid and if so whether they were properly validated by the order of Williams CJ made in these proceedings on 24 June 2008, from which the Court of Appeal of the Cook Islands dismissed the appellants' appeal on 10 July 2009.
Before going further into the law it may be useful to sketch in what happened between 1905 and the enactment of the Cook Islands Act 1915 ("the 1915 Act"). During the decade before the 1915 Act, and especially after Colonel Gudgeon left the Islands, the Land Court seems to have suffered something of a malaise. Pa Ariki Maretu, the Maori judge, died in 1906 and was not replaced. Captain James Eman-Smith was appointed as a judge, and also as Chief Judge, and sat from October 1909 until September 1911, Judge...
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June Margaret Baudinet v Ellen Tavioni and Meremaraea Velma Tinirau MacQuarie
...given to him by section 6 of the Cook and Other Islands Government Act 1901 (see the associated " Tumu" case: Descendants of Utanga and Arerangi Tumu v Descendants of Iopu Tumu [2012] UKPC 34, para 4). Lieutenant Colonel Walter Gudgeon was appointed the first Resident Commissioner of the I......
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Browne v Munokoa and another
...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 prope......