HERALD WEEKLY ISSUE 608: 21 March 2012

The Tuarea Nui section 40 case
Ross Holmes, Instructing Lawyer for the Appellant, comments on the decision to dismiss as follows

The Tuarea Nui section 40 case
a. Because of Justice Hingston’s direction that a number of legal issues be dealt with by way of legal submissions prior to the hearing of the case, no evidence was heard. The decision of Justice Hingston, the Court of Appeal and the Privy Council did not therefore deal with the issue of who was entitled to title to the land in accordance with ancient native custom.
b. In the Privy Council the Justices reversed two of the three bases for the decision made by the Court of Appeal, namely:
i. The provisions of section 390A(10) of the Cook Islands Act 1915, do not as the Court of Appeal held, prevent the High Court from using section 44 of the Judicature Act 19080-81 (the slip rule) from amending Court minutes or orders or other records so as to give effect to the true intent of the Court, even in relation to orders on investigation of title.
ii. The Court of Appeal rejection of the Appellant’s case on the grounds of res judicata which is that “… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.” The Privy Council held that “A great deal of evidence relevant both to the basis of the Ngāti Raina’s claim to the land and to the thinking of Chief Judge Gudgeon at the time has since come to light, in particular by the diligence of Mr Holmes. Thus the Court of Appeal was not correct to state that “We have not been referred to any evidence or argument in support of [the current appellant’s] present application that would not have been available to her predecessors in 1937 and 1950” [35]. In addition they held that in the previous Court hearings in 1937 and 1950 “was this subject-matter adjudicated upon by a court of competent jurisdiction. In 1937, Chief Judge Ayson began his judgment by (correctly) stating that he had no jurisdiction to do what he was being asked to do….. The position was a little different in 1950, because a window of opportunity to re-open old decisions had been given by the 1946 Act. But the application before the court was for the case to be re-opened. The court dismissed that application, so there was never an adjudication upon the merits of the subject- matter in dispute. The most that can be said is that had the information currently available been before the court then, the application to re-open the case might have met with more success….this case has certainly never been settled. The dispute is as alive today as it was when the Makea evicted the Ngāti Raina from the land in 1932.”
c. BY a majority judgment 3 of the Justices (with two in favour of allowing the appeal) the Privy Council declined to amend the 1903 Court Order to include the words “a life interest only, no power of devise, which had been crossed out in the Minute Book. They held “the Board is not satisfied on the balance of probability that any slip has been shown, and it considers that Hington J was wrong to conclude that one was.” They upheld the decision of the Court of Appeal “albeit on different grounds”
d. The minority Justices Lady Hale (with whom Lord Walker agreed) held that “All of these considerations combine in my view to make it much more likely than not that the intention of the court was to limit Makea’s interest to a life interest and that the disputed words should not have been deleted from the Minute Book whatever the formal order should have said.”
e. The result of the Privy Council’s decision is as stated by Lady Hale: “Title to the land is currently disputed between two branches of the Makea family. The life interest point is not conclusive on either side, although one side argues for it. Their respective claims will depend upon the evidence to support the Makea claim to this land. Were this appeal to be allowed, the appellant’s claim should obviously be heard along with the Makea dispute, thus enabling all the available evidence to be properly considered and adjudicated upon. It is even possible that such a proceeding would resolve the long-standing sense of injustice felt by more sides than one in this dispute. Without that, I fear that this dispute will never be laid to rest.
f. The Appellant’s position remains that Makea Nui ariki has down to this day not produced any evidence, in accordance with ancient native custom, of entitlement to title to this land. The Privy Council decision has not resolved the Ngati Raina’s long standing sense of injustice concerning this land.
2 What has been established by my research in the Tuareanui case is that there are a substantial number of lands in which Makea Takau was awarded a life interest only, in respect of which Judge MacCormack made subsequent succession orders in favour of the next Makea Nui ariki. Subsequent Cook Islands Native Appellate Court decisisons establish that those succession orders were invalid.
3 Landowners who claim that they should have been awarded title to those lands should consult a Land Court specialist to apply to set aside those succession orders and then to apply for an order for investigation of title to those lands.
4 I am almost finished my book on Southern Cook Islands customary law, which explores the issue of how the ancestry of the present Makea Nui ariki, how they obtained their title and their land, and when the vaka Te au o Tonga was created. The results of that chapter will show that much of what is believed about these matters are invented traditions which have no factual bases. Unfortunately that research has come too late to assist the Ngati Raina in this case.

Herald Issue 608 21 March
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