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Cook Islands Legal Research


Southern Cook Islands Customary Law, History and Society Akapapa‘anga, Kōrero Tupuna, e te kono‘anga Ture ‘Enua o te Pā ‘Enua Tonga i te Kūki ‘Airani

I have co-authored the above.a book, and am making available access to the books, manuscripts and resources which I have located.

The primary objective of the book is to piece together the surviving bits of the jig-saw-like puzzle that constitutes our knowledge of Cook Islands customary law and culture. There is fortunately a relatively large volume of source material, much of which has not been previously analysed or readily accessible. The material contained in this book consists of a compilation, and analysis, of the material which I have located. In preparing this book I have carried out research in the Cook Islands, Honolulu, and New Zealand (Auckland and Wellington). A copy of the material obtained, which includes full copies of the manuscripts located by me, Land Court Minute Books for Aitutaki, Atiu, Mangaia, Manahiki, Mitiaro, Mauke, Penryhn, Pukapuka and Nassau, Rakahunga, Rarotonga to April 1975, and Land Appellate Court Minute Books Volumes 1 to 3 (8 September 1948 when the first Land Appellate Court sat to 27 April 1970), has been donated by me to the Cook Islands Library and Museum Society Incorporated, and the Natonal Archives, so that it is readily accessible to all Cook Islanders. It is not well known that that Society has one of the best collections of Polynesian literature in the world.

Another objective is to provide a detailed resource on Cook Islands customary law. As Ron Crocombe wisely counseled me in 2006, in order to prosecute any application to successfully challenge historical land title decisions it is necessary to provide to the Court historical evidence which is more comprehensive than has been previously provided to any Land Court or Land Appellate Court.

However as Ron Crocombe succinctly advised me in 2008, the following matters need to be borne in mind when reading material on customary law:

"1. In pre-Missionary times There was no writing, and when the same "principles" are applied without written records it will soon end up in a very different situation from what would result in a literate situation. Writing, making a permanent record, changes any system anywhere, even if it is intended to perpetuate it....

2. Asking a formal Western-derived court to decide on land cases is fine, but asking it to do so "according to indigenous custom" is a contradiction in terms. The aim of the court is to be "objective" -.i.e. to apply principles devoid of emotion, social commitments, and all the other factors in a total relationship, and so on. The whole point about custom, here or anywhere, is that its application in any instance is always subjective and conditioned by a range of factors that a formal Western-style court would consider improper for it to consider. And having lawyers appear in the court distances any action vastly more away from custom as it was.

3. The Cook Islands legislation and court has shifted a complex system in which a range of factors was in constant interplay, to one of accident of birth and mathematical shares of rights. It is a travesty of Maori custom as it was - likewise in New Zealand. Okay, if Cook Islanders want to change the system, that's fine, but it has been changed in an irreversible way without thinking through what was being done. It needs a total deep rethink.

4. As Rusiate Nayacakalou of Fiji (who got his Ph.D. in London and taught at Auckland and Sydney universities before his untimely death at a young age) always pointed out, custom provided guidelines, not rigid frameworks. The guidelines had to be interpreted by the leaders of that community of that day, in the way they considered most appropriate.

As Jean Guiart said in his 1996 paper on Land Tenure and Hierarchies in Eastern Melanesia published in the Hawai'i journal Pacific Studies volume 19 number 1 pp. 1-29 (but applies much more widely) "there is no formal ownership of land in Western terms but systems regulating access to land for each individual in each generation" and that people "spend as much time evading the consequences of the theoretical models as following their component rules".

And as Jim Ritchie said in his 1992 book Becoming Bicultural, Huia Press, Wellington (p.104) "the notion of authenticity is heavily weighted with manipulative intent" and again (p.99) he says that culture anywhere is "messy, confusing, paradoxical, ironical, unclear, allowing alternatives and interpretations.The headstuff gets mixed up with the heartstuff, the realities with the ideals and ideologies, and all that gets intertwined with the personal motivations of individuals."

I would get those points in neon lights above your computer as you work on this project whenever the concept of custom or culture comes up (here or anywhere else in the world). I wish I had understood them when I undertook my first research on land tenure, here in Rarotonga, 50 years ago."

I have taken Ron Crocombe's advice when writing this book.


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