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Land Tenure in the Cook Islands

Appeals and rehearings

Appeals and rehearings

Until 1946 there was in practice no functional system of appeal. Both the Order in Council of 1902 and the act of 1915 made provision for rehearing1 but the granting of a rehearing was subject to the approval of the Land Court, and if approved it was usually heard by the same judge as took the case originally.2 The act of 1915 did make provision for appeal to the Supreme Court of New Zealand, but this, too, was conditional on the approval of the Land Court. It was unlikely that many islanders were aware of this provision, or in a position to finance such an undertaking if they had been.3

In 1946, following recommendations made in the report of Judge Harvey of the New Zealand Native Land Court,4 an Appellate Court was established which was to comprise any two or more judges of the New Zealand Native Land Court or of the Cook Islands Native Land Court (other than the judge who determined the issue in dispute).5 At the same time provision was made for appeals from decisions of the Cook Islands Native Land Court to lie as of right in future.6 Moreover, to meet the requests of numerous persons who claimed to be adversely affected by earlier decisions of the Court, special provision was made to enable such persons to appeal (within one year) against any decision of the Court back to the time of its inception. This was intended particularly to open the way for re-investigation of title to those page 210 lands which Judge Gudgeon had awarded for life interests only to ariki and which Judge McCormick had turned into fee simple by succession order.

The Appellate Court first sat in 1948 and held annual sittings until 1952 in order to clear up a backlog of appeals. As intended, a significant proportion of the appeals against earlier decisions of the Court were in relation to lands which had been awarded originally to ariki for life interests only. The most important of these dealt with lands in the Avatiu and Nikao tapere and resulted in the loss of those lands by the ariki and their award to the issue of the persons found to have been the original owners. Many of my informants claimed that they would have appealed against other decisions as well but were unable to do so owing to the fact that the elders of the family who knew the relevant details had died (while the bases of the claims had not been recorded by the younger generation as they considered that nothing could be done). Some who did successfully contest rights to one section of land stated that they would have claimed for others also but were not sure how the Court would function in practice and accordingly did not wish to commit themselves too deeply. By the time the first cases were heard, of cours the time for the lodgement of appeals had expired.

Having dealt with the outstanding appeals the Appellate Court became a routine adjunct to the work of the Land Court and has since sat at three-yearly intervals. While sittings are normally held in Rarotonga, every attempt is made to ensure that it is accessible to the island people and sittings have been held in Aitutaki, Mauke and Atiu.

1 Order in Council 1902 clause 10 (15-a) and ‘Cook Islands Act’ 1915 section 390.

2 Actual rehearings were few indeed.

3 So far as I am aware no land case has ever been taken to the Supreme Court.

4 Harvey, ‘Report to the Right Honourable the Minister of Island Territories’ 35–6.

5 ‘Cook Islands Amendment Act’ 1946 sections 19–40.

6 Ibid. section 25.