Correspondence: The role of the courts in ownership disputes

Dear Editor, I would like to respond to Te Tuhi Kelly’s recent letter/article published in the Cook Islands News entitled “Traditional Title Disputes”.

It seems that he is against taking ownership disputes to our courts for adjudication, suggesting that the Western legal system has taken over our cultural and traditional affairs. I do not blame him for holding this view, and I believe most people would support his point of view. However, people need to look at the alternatives and the realities – what are the other options besides going to court?

In ancient times before Christianity, people used spears and stone axes, there were wars between tribes, and most people lived in the mountains and hills for refuge. With the advent of Christianity and Imperial (white) law, we had courts to decide who was the winner – no more spears and sticks. Everyone had the right to be heard in court, and eventually a decision would be made, and if you didn’t like the decision you could appeal, and if you didn’t like the decision of the Court of Appeal you could appeal all the way to the Privy Council in London. And guess what? These decisions were usually based on our own Maori customs, because that’s what the Cook Islands Act said.

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Letter: Ancient Customs and Western Law

Letter: Traditional title disputes

Every tribe has customs about tribal leadership – who is eligible to hold a title and how he or she is elected. But no one has yet defined what Maori custom is. It’s too big a job and no one wants to do it. We have no law that says these titles must be elected by the courts. We go to the courts because we can’t agree between tribes/families/kopu on who should hold titles. There is no parliamentary law that says how titles are elected. The law just says it’s to be done in accordance with Maori custom. The poor judge will try to drag out from the applicant in court what they understand the tribal/family rules or customs are about electing a new title holder, and then the court will try to apply that to the facts presented by the other party in court.

Let’s be clear, no court likes dealing with this kind of case, because there is no written law or rule, so they have to work hard to try and understand the application that comes before the court in order to make the right decision based on the facts and apply it to what they believe is the custom that elected that particular title. This is not Western jurisprudence that Te Tuhi Kelly is trying to articulate – it is the result of our Parliament or Ariki House not doing the heavy lifting of defining our Maori customs and putting them in writing. I have written some rules or guidelines for several families and they are following it and can add to it, amend it or modernise it as they wish.

At the end of the day it’s up to the tribe/family/kopo to decide what the best customs/rules are for them to follow. Then write it down, make sure all branches agree, then it becomes the law for electing tribal title holders, and if anyone breaks it the courts are more likely to follow the rules the family agreed to.

I’m short