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CI Times Weekly | Current Issue 262 | 04 August 2008

Manihiki airport case given more time

In a landmark decision in the High Court on Thursday 17 July, Justice Patrick Savage adjourned all court proceedings pertaining to the investigation of customary lands involved in the proposed runway extension in the island of Manihiki.
The granting of the adjournment is in deference to the Manihiki concept of ‘Fangai Ngai’ which all parties agreed is the Manihiki custom of ‘sitting down and discussing matters’ to resolve contentious issues
Justice Savage remarked that investigation of customary lands in the land courts here and Aotearoa had an ‘unhappy history’ where custom had been trampled on and tradition eroded and proposed that the land court will take a ‘more cultural approach’ to the Manihiki customary landowners.
In his ruling, his Honour also noted that apart from two exceptions, all lands in Manihiki were still according to customary ownership and title has not been investigated by the land court.
Justice Savage said the adjournment would give the customary landowners time to discuss their positions further and once there is a consensus, the court will reconvene in Manihiki ‘where the land is’ in the first instance, after which there will be a sitting in Rarotonga to receive evidence from owners based here and overseas.
When the court does reconvene, the court will hear evidence from experts on custom and the proceedings will have two parts:
What is Manhiki custom and tradition regarding land?
Who are the owners to be awarded title of the land in accordance with custom
Justice Savage said it will be up to the Manihiki people to agree on who are those experts to guide the court as to their custom and tradition with regard to land ownership.
The courtroom submissions that persuaded the Judge
This was a complex case with the Panui listing some 46 applications for investigation of customary land for the proposed runway extension in Manihiki.
Legal counsels, Tina Browne, Norman George and Henry Puna made detailed submissions as to the pros and cons of whether the investigations could proceed on the day or whether they ought to be adjourned to a future date. Acting Solicitor General, Tingika Elikana was in court but made no submissions.
In her submissions, Tina Browne said she represented all the landowners and urged the court to adopt the strategy of proceeding with the ‘unopposed’ applications and adjourning the ‘opposed’ applications. She cited the Cook Islands Act 1925, section 422 where the court is required to grant title to landowners according ‘to ancient custom’ and in this case, it would be ‘Manihiki custom’ that would apply.
Counsel told the court that costs usually fall on the landowners for the investigation of lands, however, in this case, because the initiative had come from the authorities and in light of the circumstances of the Manihiki landowners, she had negotiated a deal whereby the authorities pay the legal costs in lieu of the customary landowners.
Norman George on behalf of his clients said they did not object to the investigations as such, but were seeking an adjournment because the authorities were rushing matters and not giving the customary landowners enough time to consider their position.
Counsel explained that all Manihiki land is currently held by customary rights except for the Telecom station (under lease) and the Cyclone Centre (under warrant).
Norman George differentiated ‘informed’ and ‘uninformed’ consent telling the court that no steps were taken to circulate the applications to the Manihiki people in the community except perhaps for a request to compile their genealogies or a land court hearing to investigate the land.
Counsel urged the court to ‘go back to Manihiki’ within a year perhaps in June 2009 which is the least busy time for the pearl farmers so they could attend court in Manihiki and perhaps another session in Rarotonga in August 2009 when many participants from the outer islands are here for the Maeva Nui Constitution celebrations anyway.
Legal counsel, Henry Puna told the court he represented the Tumu families in particular, and had also been asked to convey a message on behalf of several other landowners to the court. Puna told the court he is a now a pearl farmer but also a former Minister of Transport with responsibility for shipping and aviation matters.
In that time, he had approached Air Rarotonga and asked if it were possible for the domestic airline could use the larger Saab aircraft so they could carry a larger passenger load and using ‘economies of scale;’ the fares might be lowered as a result.
However, if that were to become a reality, there would need to be an upgrade of the airport including a longer runway and stricter aviation rules and addressing ‘clearance’ issues but the major obstacle would be land issues.
Puna said the customary landowners wanted time to think about it and have all the implications explained before they would feel comfortable about proceeding. Concerns include being told the extension would be to the standard of Aitutaki but have noted the ‘absence of trees’ at Aitutaki airport and did not want their trees to be similarly cleared.
Puna added that in Rarotonga trees are removed ‘all the time’ if they are adjudged to affect the flight path saying that ‘aviation rules are such’ that the authority does not have to own the land to require the removal of any obstacles in the flight path.
Other concerns are not having been given any information such as the likely rental agreements or terms and conditions whereas the customary landowners wanted to know the benefits of change before they agree to go ahead with the investigation of customary lands.
Some also felt ‘pressurised’ and ‘extreme positions’ were taken by those not the ‘papa’a way’ of the land court making determinations about their lands. However, with more information, these same owners were beginning to say ‘bring the land court back but just give us time’.
All three counsel acknowledged the concept of ‘Fangai Kai’ as being Manihiki custom.

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