Clarke v Karika [1982] CKCA 1; CA Appeal 2.1982 (14 December 1982)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
Appeal No. 2/82

IN THE MATTER
of the Declaratory Judgments Act 1908

AND

IN THE MATTER
of Part IVA of the Constitution of the Cook Islands

BETWEEN

TREVOR CHARLES CLARKE
Appellant

AND

MARGARET KARIKA
Respondent

Coram: Sir Robin Cooke, President
Sir Graham Speight, Chief Justice
Mr Justice K.J. Keith

Counsel: D.A.R. Williams and G.B. Chapman for Appellant
G.P. Barton and J.E. Hodder for Respondent
Solicitor-General (M.C. Mitchell) and P.B. Temm Q.C. as Amici Curiae

Hearing: At Wellington 13 and 14 December 1982
Judgment: Delivered by Chief Justice in Rarotonga

JUDGMENT OF THE COURT

The Litigation

This is an appeal from a judgment of Dillon J. on an originating application to the High Court seeking declaratory orders determining three questions. In answer to the first two questions the Judge made declarations that the Rehearing of Te Puna Lands Act 1980:

(1) is an infringement of the fundamental human rights and freedoms of the Plaintiffs and, in particular, of their right not to be deprived of certain lands except in accordance with law, and

(2) is not a valid enactment of the Legislative Assembly (now Parliament) of the Cook Islands.

He reached those conclusions because he held that the 1980 Act is contrary to provisions of Part IVA of the Cook Islands Constitution, as inserted into the Constitution by the Constitution Amendment (No. 9) Act 1980-81 which came into force on 5 June 1981.

We begin by explaining the background to the case very briefly. In 1908 Colonel W.E. Gudgeon, as Chief Judge of the Cook Islands Land Titles Court, determined that certain lands belonged to the Karika family. But he awarded life interests in the same lands to rival claimants who had lived on the lands for many years as planters but in his view had no case for any greater title. The plaintiff in the present proceedings (the respondent in this Court) represents the Karika family. The defendant (the appellant in this Court) represents descendants of the persons awarded life interests.

At the time of the original decision there was no right of appeal from it. Under provisions enabling rehearings to be granted in the discretion of the Court, applications were made for rehearings regarding part of the lands in 1912 and 1949, but without any success. Each time the Court took the view that there was no new evidence justifying a reopening of the question. From at least the mid nineteen-sixties the title to the lands has been disputed despite those Court decisions. But there was by then no available legal procedure for reopening the question. So there has never been a full rehearing or appeal on the merits.

The controversy became such that in 1980 Parliament passed a private Act especially to deal with it. We shall set out the Act in full shortly. It enabled applications for rehearings regarding these particular lands to be made within six months from the commencement of the Act. And applications were duly made. But in the next year an Amendment to the Constitution was passed. It declared certain 'fundamental human rights'. The plaintiff argues that these provisions take away any rehearing rights given by the 1980 Act; in other words, that the 1980 Act now has no effect at all. This argument has been upheld in the High Court and the defendant has appealed from that decision.

We must make it perfectly clear that the present case is concerned only with whether rehearings can be held for these particular lands. It is not concerned at all with trying to predict the results of any rehearings. If rehearings are held, it will be for the Land Division of the High Court to hear all the evidence and decide who are the true owners. But the respondent says that the 1981 Amendment to the Constitution prevents that from happening and that the title of the Karika family cannot now be questioned.

Three specific questions were put to the High Court in the originating application made by the present respondent:

Question 1: Is the private enactment of the Legislative Assembly of the Cook Islands entitled the Rehearing of Te Puna Lands Act 1980 an infringement of the fundamental human rights and freedoms of the Plaintiffs and, in particular, of their right not to be deprived of the Karika Lands except in accordance with law?

Question 2: If the answer to Question 1 is 'Yes' is the Rehearing of Te Puna Lands Act 1980 a valid enactment of the Legislative Assembly (now Parliament) of the Cook Islands?

Question 3: On the true construction of the Rehearing of Te Puna Lands Act 1980 are the persons represented by the Defendant entitled to a rehearing of the application before the Cook Islands Land Titles Court in 1908 without first satisfying the High Court of the Cook Islands (Lands Division) (as successor to the Land Court of the Cook Islands) that it should, in the exercise of its discretion, grant a rehearing of the application?

After a contested hearing in the High Court Dillon J. reserved his decision, and it was delivered on 27 April 1982. As we have said, he answered the first question Yes and the second No. He did not find it necessary to answer the third.

The defendant in the Court below, who argues that the 1980 Act is valid, has appealed under article 60(2)(d) of the Constitution, also inserted by Amendment No.9, which provides for an appeal as of right from judgments of the High Court involving the interpretation, application or effect of any provision of Part IVA.

In this Court the Solicitor-General and Mr Temm appeared for the Crown by leave as amici curiae, as the validity of an Act is in issue. In that and in other respects we had the advantage of arguments much fuller than and probably to some extent different from those put before the High Court Judge.

The Lands

The lands in dispute, 147 acres in extent, are situated at and near Titikaveka in the District of Takitumu on the Island of Rarotonga. They are known as Te Puna Sections 50A and B. They are attractive and fertile, capable of sustaining many families. In July 1908 the Cook and other Islands Land Titles Court made orders determining that members of the Karika family were the owners. The plaintiff, Margaret Karika, holds the title of Makea Karika Ariki and in this litigation represents all the other members of the Karika family concerned as well as herself. Their names now appear on the Court titles for the two sections as successors to those originally placed on the titles in 1908. As already mentioned, the 1908 orders also granted life interests to ancestors of persons represented by the appellant. The ancestors were, and their successors have remained, in occupation of substantial parts of the lands. Some of the Karika family also occupy various parts of the lands.

We repeat that questions about the title to the lands or part of them have come before the Court on three later occasions. In 1912 the Land Titles Court rejected an application to rehear or reinvestigate the title to a part. In 1949 the Native Appellate Court dismissed a further application, made under the general provisions of s. 32 of the Cook Islands Amendment Act 1946, for a rehearing of the 1908 order in respect of the same part. And in 1980 and 1981, in accordance with the 1980 Act and within the six months fixed by it, those represented by the appellant have filed more than 70 applications in respect of all the lands as persons prejudicially affected by the 1908 orders. It was following the enactment of the Amendment to the Constitution and a chambers hearing as to the procedure to be followed on those applications that the respondent commenced the proceedings in which the appeal arises, claiming that the 1980 Act is invalid. Pending the disposition of these proceedings, the applications under that Act stand adjourned.

The 1980 Act

The Rehearing of Te Puna Lands Act 1980 is as follows:

1980, No.1 - Private

An Act to provide for the rehearing by the Land Court of title to certain lands in Rarotonga

(30 October 1980)

WHEREAS by orders of the Cook Islands Land Titles Court made in 1908 the ownership of certain lands in the District of Takitumu, Island of Rarotonga known as Te Puna Sections 50A and 50B were determined;

AND WHEREAS there is widespread dissatisfaction with the said determination of the said Court;

AND WHEREAS it is desired to provide for rehearings of the said determinations;

BE IT ENACTED by the Legislative Assembly in Session, and by the authority of the same, as follows:

1. Short Title - This Act may be cited as the Rehearing of Te Puna Lands Act 1980.

2. Rehearings- (1) Any person claiming to be prejudicially affected by any order of the Cook Islands Land Titles Court made on investigation of title into the lands in the District of Takitumu Island of Rarotonga known as Te Puna Section 50A and Te Puna Section 50B (and formerly known as Pokoinu Section 50A1, Taarara Section 50A2, Te Ruaui Section 50A3, Nukumaatua Section 50A4, Arekakaia Section 50A5, Namuiti Section 50A6, Namunui Section 50A7, Te Puna Section 50A8, and Tupuna Section 50B) such orders being recorded in Minute Book 4 of the said Court may apply in writing to the Land Court of the Cook Islands not later than 6 months from the commencement of this Act for the rehearing of any order made on such investigation.

(2) Notwithstanding any other provisions in any other enactment, in the event of any application being made pursuant to subsection (1) hereof the Land Court of the Cook Islands shall have jurisdiction to investigate the title to the land concerned and on such investigations to affirm, vary, or annul any former order of the Cook Islands Land Titles Court relating to the same and may exercise any jurisdiction which the said Court might have exercised on the original investigations.

3. Protection of rights and interest - No order made on a rehearing pursuant to section 2 of this Act shall take away or affect any right or interest acquired for value and in good faith under any instrument of alienation executed before the commencement of this Act but any such instrument may be perfected and confirmed as if no such order had been made. The consideration for such alienation shall, as from the date of any order made on rehearing, be deemed to belong to the person or persons entitled under that order to the share or interest affected, and all unpaid or accruing purchase money, rent, royalties, or other proceeds of such alienation, as well as any compensation payable, shall be recoverable accordingly. Any bona fide payment shall pursuant to or in reliance upon the original order of the Cook Islands Land Titles Court shall not be deemed to be invalid because that order is varied or annulled on rehearing.

4. Private Act - This Act is hereby declared to be a private Act.

The Constitution Amendment (No. 9) Act 1980-81 repealed Part IV of the Constitution, relating to the Judiciary, and substituted a new Part IV. One of the changes made was that the Land Court was abolished and by the new Article 48(2) the jurisdiction formerly vested in that Court was transferred to the Land Division of the High Court.

The Interpretation Question

The question of interpretation, question 3, is as follows:

On the true construction of the Rehearing of Te Puna Lands Act 1980 are the persons represented by the Defendant entitled to a rehearing of the application before the Cook Islands Land Titles Court in 1908 without first satisfying the High Court of the Cook Islands (Lands Division) (as successor to the Land Court of the Cook Islands) that it should, in the exercise of its discretion, grant a rehearing of the application?

As already mentioned, Dillon J., having held that the Act was invalid, found it unnecessary to consider this question. At first sight interpretation is logically prior to the question of constitutional validity. Until any dispute about the meaning of the challenged legislation is resolved, it may not be possible to measure the legislation against any relevant constitutional restraints on Parliament's power. In some cases, however, the interpretation itself will be affected by those restraints, as Courts dealing with issues of constitutional validity are reluctant to place on an Act an interpretation which would mean that Parliament has exceeded its powers. In the present case we found it useful to have the interpretation point argued first and to give it preliminary consideration ahead of the constitutional issue. In the event, as will be seen, the view that we have reached on the constitutional issue does not cause us to modify the interpretation which we hold that the Act bears in its natural and ordinary meaning.

The appellant sought an affirmative answer to the interpretation question, the respondent a negative one. According to the appellant the words of the s. 2(2) read in their context empower the Court to go directly to the merits of the investigation without any earlier stage of considering whether to grant a rehearing. The respondent contended that it is more usual to require the leave of the Court before any rehearing and that this meaning should be given here. This argument was supported by the permissive language of the Act, the legislative context, the private nature of the Act and associated interpretative presumptions, and broader constitutional considerations.

The crucial provisions of s. 2 read:

(1) Any person claiming to be prejudicially affected.... may apply... to the... Court... for the rehearing of any order...

(2) Notwithstanding any other provision in any other enactment, in the event of any application being made... the... Court... shall have jurisdiction to investigate the title... and on such investigation to affirm, vary or annul any former order...

Subsection (1) appears to empower the persons affected to apply directly for the investigation to be undertaken without any prior application for the grant of a rehearing. Subsection (2) similarly appears to authorise the Court to enter directly into the investigation without any prior stage of determining whether it ought to undertake the investigation. The absence of an express requirement for an application for grant appears the more significant when two closely parallel provisions are compared:

Rehearing - (1) On the application of any person interested, [the ... Court] may, if it thinks fit, grant a rehearing of any matter, either wholly or as to any part thereof. (Cook Islands Act 1915, s. 390(1)).

Rehearing ... (1) Upon the application ... of any person ... alleging that he is prejudicially affected by any order .... the Native Appellate Court may grant or direct a rehearing of the matter, either wholly or as to any part thereof ... (Cook Islands Amendment Act 1946, S. 32, the provision under which the 1949 Court decision was made.)

In each case the legislation has made it explicit that the Court in its discretion is to make a decision on a preliminary issue before it can enter upon the substance again. The 1980 Act confers no such discretion in express terms.

Counsel for the respondent argued that the general rehearing provisions relating to land matters - s. 390 quoted in part above - supported her case in a different respect. Section 390(4) prohibits the varying or annulling of orders once they have been signed and sealed. According to the argument it was merely that limitation that the 1980 Act was designed to remove.

On consideration we cannot accept that argument, for more than one reason. The first is that the introductory words to s. 2(2) of the 1980 Act exclude 'any other provision in any other enactment', not just those of s. 390(4). They are therefore wide enough to extend to all the provisions of s. 390 - including subs.(1), which provides for a discretionary grant of a rehearing. They would extend as well to such provisions as s. 397, which makes every order of the Land Court determining the title to Native Land binding on all persons having any interest in it. The second is that if the Court was required to decide whether or not to exercise the preliminary power to grant a rehearing we would have expected the draftsman to use the express, discretionary models provided by the 1915 and 1946 Acts. It is noticeable, by contrast, that he did use those models when describing the substantive powers of the Court and providing for the protection of rights and interests. This is evident when one compares s. 2(2) of the 1980 Act with s. 390(2) of the 1915 Act and s. 32(2) of the 1946 Act; and s. 3 of the 1980 Act with s. 32(5) of the 1946 Act. And the comparison with the earlier provisions is of interest in a third respect. They confer powers on the Court as to costs on the application for the grant of a rehearing: s. 390(3) and s. 32(4). The 1980 Act does not.

Nevertheless it is also argued for the respondent that the 1980 Act is permissive because it does not expressly direct the Court to conduct the investigation. That is true, but we do not consider it particularly significant. Provisions conferring jurisdiction on Courts do not always expressly require them to exercise it: see for example the Cook Islands Act 1915, ss. 114 and 115 (as originally enacted) and the substituted Articles 47(2) and 60(1) of the Constitution. The obligation need not be expressed.

On the other hand, some provisions of the 1980 Act itself support the view that persons applying under it are entitled to have the whole matter of title reheard. The Long Title states that the Act is 'An Act to provide for the rehearing by the Land Court of title to certain lands in Rarotonga'. The third paragraph of the preamble and the Short Title are in the same direct form. We would not attach major importance to the necessarily abbreviated language of those provisions, but they do support the view based on the wording of the substantive provisions; and the Court is entitled to consider them. The Acts Interpretation Act 1924, s. 5(e), provides that the preamble of every Act shall be deemed to be part thereof, intended to assist in explaining the purport and the object of the Act. This Act of the New Zealand Parliament applies in the Cook Islands by virtue of the Cook Islands Act 1915, s.622.

The preamble to the 1980 Act is helpful in another way. It refers to 'widespread dissatisfaction' with the 1908 order and states that there is a consequent desire to provide for rehearings. This suggests that the legislature has itself, as the principal law-maker for the State, made the decision that the matters are to be dealt with again on their merits. The legislature is of course not itself judging the merits: that is for the Court following its proper and appropriate procedures. The Court is not, however, to make the prior decision whether the matter should be reheard at all. In New Zealand some parallel might be seen in s. 406(a) of the Crimes Act 1961, which empowers the Governor-General in Council, on considering an application for the exercise of the prerogative of mercy, to refer questions directly to an appellate Court for hearing and determination, even if there has already been an unsuccessful appeal. This is in effect a rehearing by direction of the Government, as distinct from a reference for an advisory opinion under s. 406(b).

For the respondent reliance was placed as well on the private character of the Act and its impact on the rights and interests of those she represented. It was argued for her that these considerations should lead to a narrow reading against the promoters of the Act. The wide reading of the Act was also suggested to be inconsistent with the allocation of judicial and legislative powers in the constitutional system (not to the point of invalidity but rather as a guide to interpretation).

It is doubtful whether any differences of the kind suggested should apply to this private Act. The Acts Interpretation Act 1924, s. 5(j), appears to allow for no such distinctions. It provides in part that every Act shall be deemed remedial and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of its object, according to its true intent, meaning and spirit. We will have occasion to refer to it again later in this judgment.

It was argued also for the appellant that the speeches in the House of Lords in British Railways Board v. Pickin [1974] UKHL 1; 1974 A.C. 765 tend against the concept of a different approach at the present day to private Acts as distinct from public ones. That case was concerned with whether the Courts could hold a private Act invalid on the ground that its promoters had obtained it by misleading Parliament. It was held that the Courts should not investigate any such allegation. The decision is not directly in point in the present case. There has been no claim by the respondent here that the Cook Islands Parliament was misled. But it was contended for the appellant that observations of their Lordships suggest that even on matters of interpretation there should be no difference in approach between private Acts and public ones. Particular reliance was placed on what was said by Lord Wilberforce at p. 797.

It is not necessary, however, to express an opinion on whether public and private Acts stand on exactly the same footing as to interpretation when their meaning is truly obscure. The arguments for the respondent invoking the private character of the 1980 Act relate at best to possible presumptions of interpretation. The same applies to the arguments about allocation of powers. No such arguments can stand against what appears to us to be the clear meaning of that Act considered as a whole.

Accordingly we answer question 3: Yes.

The Constitution

The first and second questions, already set out in full, concern the validity of the 1980 Act in the face of Part IVA of the Constitution.

The Cook Islands Constitution was enacted in 1964 by the New Zealand Parliament as a principal measure in the attainment by the Cook Islands of self-governing status. The Cook Islands Constitution Act 1964, s. 3, provides that the Cook Islands 'shall be self-governing'. Section 4 of that Act provides that the Constitution, set out in the Schedule to the Act, 'shall be the supreme law of the Cook Islands'. Consistently with that phrase, Article 41 creates more complicated procedures for amending the Constitution than those sufficient for enacting ordinary Acts of Parliament. The Constitution came into force on 4 August 1965 at the request of the Cook Islands Legislative Assembly and after an election, held under United Nations supervision, in which the proposed new status and Constitution were in issue. It has been amended once (prior to its taking effect) by the New Zealand Parliament and on ten occasions by the Cook Islands Parliament (until 1981 the Legislative Assembly). It was the ninth Amendment which introduced the new Part IVA, on Fundamental Human Rights and Freedoms.

Part III, The Parliament of the Cook Islands, establishes, in Article 27(1), 'a sovereign Parliament for the Cook Islands'. Article 39 sets out its principal lawmaking powers:

39. Power to make laws - (1) Subject to the provisions of this Constitution, Parliament may make laws (to be known as Acts) for the peace, order, and good government of the Cook Islands.

(2) The powers of Parliament shall extend to the making of laws having extra-territorial operation.

(3) Without limiting the generality of the power conferred by subclause (1) of this Article to make laws for the peace, order, and good government of the Cook Islands, that power shall, subject to the provisions of this Constitution, include the repeal or revocation or amendment or modification or extension, in relation to the Cook Islands, of any law in force in the Cook Islands.

(4) Except to the extent to which it is inconsistent with this Constitution, no Act and no provisions of any Act shall be deemed to be invalid solely on the ground that it is inconsistent with any law in force in the Cook Islands.

The only change introduced in that Article in 1981 was the substitution of 'Parliament' for 'Legislative Assembly'.

The basic argument for the respondent is that this power is limited by Part IVA and that the 1980 Act violates those limits and accordingly is invalid. The provisions of the Part to which we were principally referred are as follows:

64. Fundamental human rights and freedoms - (1) It is hereby recognised and declared that in the Cook Islands there exist and shall continue to exist, without discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex, the following fundamental human rights and freedoms:

..........

(b) The right of the individual to equality before the law and to the protection of the law;

(c) The right of the individual to own property, and the right not to be deprived thereof except in accordance with law;

..........................

(2) It is hereby recognised and declared that every person has duties to others, and accordingly is subject in the exercise of his rights and freedoms to such limitations as are imposed, by any enactment or rule of law for the time being in force, for protecting the rights and freedoms of others or in the interests of public safety, order, or morals, the general welfare, or the security of the Cook Islands.

65. Construction of law - (1) Subject to subclause (2) of this Article and to subclause (2) of Article 64 hereof, every enactment shall be so construed and applied as not to abrogate, abridge, or infringe or to authorise the abrogation, abridgement, or infringement of any of the rights or freedoms recognised and declared by subclause (1) of Article 64 hereof, and in particular no enactment shall be construed or applied so as to -

(a) Authorise or effect the arbitrary detention, imprisonment, or exile of any person; or

(b) Impose or authorise the imposition on any person of cruel and unusual treatment or punishment; or

........................

The remaining provisions of subclause (1) set out further rights of procedural and criminal justice. They need not be quoted here. Then follows:

(2) Every enactment, and every provision thereof shall be deemed remedial, whether its immediate purpose is to direct the doing of anything that the enacting authority deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of [the object of] the enactment or provisions thereof according to its true intent, meaning, and spirit.

(The words in square brackets were inserted by the Constitution Amendment (No. 10) Act 1981-82.)

(3) In this Article the term 'enactment' includes any Act of the Parliament of England or of the Parliament of Great Britain or of the Parliament of the United Kingdom, being an Act in force in the Cook Islands, and any regulation, rule, order, or other instrument made thereunder.

66. Saving - Nothing in this Part of this Constitution shall limit or affect any right or freedom, not specified in this Part, that may exist in the Cook Islands at the commencement of this Part.

The respondent's case is based on the property and equality rights set out in Article 64(1) (b) and (c). That Article does not itself indicate what effect is to be given to it and how the rights and freedoms in it are to be protected. Obviously that question cannot be answered without considering Article 65 also. Subject to its important opening provisions, Article 65(1) requires first that -

... every enactment shall be so construed and applied as not to abrogate, abridge, or infringe or to authorise the abrogation, abridgment, or infringement of any of the rights or freedoms recognised and declared by subclause (1) of Article 64.

Second, it requires that in -

in particular no enactment shall be construed or applied so as to (a) authorise or effect the arbitrary detention ... of any person; ...

This wording is close to that of s. 2 of the Canadian Bill of Rights 1960 (RSC 1970 App III). But there are significant differences to which we shall refer shortly.

Equality before the law and the 1980 Act

Dillon J. held that any existing statutes which are inconsistent with Part IVA of the Constitution Amendment (No.9) Act are automatically repealed by implication. In that sense he described the Amendment as retrospective, though not regarding that term as really apt. We respectfully agree with him on the point of terminology. No doubt it would be more accurate to say that, on the view taken by him, existing inconsistent statutes cease to be operative - either when the Amendment came into force or when the Court so rules and subject to the terms of any such ruling; it is unnecessary for present purposes to examine those two alternatives further. Later in this judgment we shall consider whether the Amendment does override existing statutes. Before doing so we turn to the grounds on which the Judge held that there was an inconsistency between the 1980 Act and the Amendment.

His starting point was Article 64(1) (c), declaring the right not to be deprived of property except in accordance with law. He referred with evident approval to the argument of Mr Barton for the plaintiff:

... this fundamental human right and freedom referred to in Article 64 entitles the Karika family to absolute and uninterrupted ownership of their lands in the same way as those rights are now enjoyed by all other owners of property in the Cook Islands. It is contrary to Article 64 and to the Constitution he says to discriminate by legislation against the Karika Family only; and to disregard the prior determinations of the court since 1908 and so again place their ownership of these lands in jeopardy. In other words should the Karika Family legally entitled to ownership of this land since 1908; entitled as an acknowledged fundamental human right and freedom to the ownership of this land; now, despite this ownership, and despite the guarantees embodied in the Constitution, be confronted with legislation which may deprive them of their heritage.

He referred to a contrary argument by Mr Clarke for the defendant based on the qualification at the end of (c) 'except in accordance with law', but said that this means law that does not infringe the Constitution. Later he said:

Now the legislators in the Cook Islands have enhanced the original constitution with the addition of a clear and unequivocal statement on the fundamental human rights and freedoms that shall apply henceforth and which all Cook Islanders can forthwith confidently expect shall be upheld at all times. The Karika Family like all Cook Islanders are entitled to the enjoyment of those rights and freedoms; and are entitled to the protection of the law if those rights are breached. There can be no doubt that the Rehearing of Te Puna Lands Act 1980 may, might or could affect their ownership of lands which they have held since Court orders in 1908. If as a result of a rehearing the Karika Family were again successful in resisting the present attack on their ownership of the land, they would not be deprived of any rights; they would not lose their land; and their fundamental human rights and freedoms would not be interfered with. But that would suggest that a rehearing should be held and if the Karika Family were not able to resist the attack on their ownership of the land then would be the time to apply to this Court for relief on the basis of a breach of their constitutional right. That could not be so. Now is the correct time to make such application; and now is the time to consider any claim for breach of constitutional rights.

In this Court the argument was concentrated less on Article 64(1) (c), which figured prominently in the argument in the High Court, than on Article 64(1) (b) - although Dillon J. in his judgment obviously and correctly paid considerable attention to equality of rights. But in the argument in this Court the right to own property and not to be deprived of it, formerly dealt with as of prime importance, was of course recognised as being limited by the qualification 'except in accordance with law'. So more argument was directed here to such questions as alleged discrimination and the legitimacy of legislating in respect of particular classes of persons. It became common ground that the extent of rights claimed in this case under paragraph (c) will depend on whether or not equality under paragraph (b) is transgressed by any 'law' purporting to affect them.

That is to say, the parties were agreed that the 1980 Act will not violate any of the freedoms or rights listed in Article 64 unless it is inconsistent with 'the right of the individual to equality and to the protection of the law'. They were also agreed that it is not sufficient for the party supporting the legislation - in this case the appellant - to be able to point to 'a law' in the sense simply of an Act duly passed by the legislature. If the Act relied on should itself be declared inoperative as violating a fundamental constitutional right, it is not 'law' for the purposes of (b) or (c). We fully agree with this approach.

No Court has attempted or would attempt an exhaustive definition of what is meant by 'equality before the law' in a constitutional context. As to the criminal law Lord Diplock delivering the judgment of the Judicial Committee in a case relating to the Constitution of the Republic of Singapore, Ong Ah Chuan v. Public Prosecutor 1981 A.C. 648, 673, said:

Equality before the law and equal protection of the law require that like should be compared with like. What Article 12(1) [similar but not identical to paragraph (b) of Article 64(1)] of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others...

That case concerned the validity of a mandatory death penalty for certain drug offences. Their Lordships stressed that whether the dissimilarity in circumstances justified the differentiation in penalties, and if so whether the penalties were appropriate for each class, were questions of social policy, left under the Constitution to the legislature and not to the judiciary:

Provided that the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with article 12(1) of the Constitution. (1981 A.C. at 673-674)

In applying the idea that like should be treated alike it is of course necessary to remember also that groups cannot be singled out for constitutionally unjustifiable discrimination. Thus in delivering the leading judgment in Regina v. Drybones (1969) 9 D.L.R. (3d) 473, 484, Ritchie J. said that he could not agree with an interpretation:

pursuant to which it seems to me that the most glaring discriminatory legislation against a racial group would have to be construed as recognizing the right of each of its individual members 'to equality before the law', so long as all the other members are being discriminated against in the same way.

The question is whether the challenged provisions are discriminatory in a way which singles out persons for reasons not consonant with a legitimate and apparent legislative purpose. In McGowan v. Maryland [1961] USSC 101; 366 U.S. 420 (1961) it is said at p. 425 that equal protection clauses permit State legislatures:

a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's purpose.

Consistently with those judgments, counsel in this case were in substantial agreement that the two major matters for scrutiny are the object of the 1980 Act and the means chosen to pursue it. Is the object constitutionally legitimate and do the means bear a reasonable relation to it? This involves considering on what evidence or other material the questions are to be resolved; on whom the burden lies; and how far the Court should go in reviewing the legislative judgment.

As to the evidentiary and burden points, any Court must begin with the statements of the legislature of the Cook Islands in the preamble to the 1980 Act. That assembly is composed of members elected by the people of the Cook Islands and exercises the power of the self-governing State to make laws for the peace, order and good government of the State. It has made the judgment that 'there is widespread dissatisfaction' with the 1908 order and that rehearings should be provided for. In addition, under the wide discretionary power to admit new evidence conferred by the Court of Appeal Rules 1981, r. 22(2), on the application of the appellant we received the affidavit evidence of a police inspector, who lives in the vicinity, regarding the land and the dispute. We thought that it would provide us with relevant background information, that it would help us to avoid 'the austerity of tabulated legalism', and that it might better enable us to understand the object of the Act and the rational or other character of the means chosen to pursue it.

In his affidavit Tekaotiki Matapo says:

1. I have no direct personal interest in the present proceedings, except for professional involvement in confrontations between the parties, and as a resident in the village in which the disputed lands are situated. I reside approximately half a mile from the lands.

2. THE disputed lands are to my knowledge large in extent, covering the entire Te Puna Tapere (Sub-District). They stretch from the seaside right up to the mountain ridge behind Titikaveka. There are houses and plantations on the Southern areas of the land, while the Northern areas are in bush. I am informed and do verily believe that the disputed lands are approximately 147 acres in size. ...

3. I am aware that there are many people affected by this land dispute. Without searching the title registers, I cannot give a precise figure, but estimate that the total number of interested persons exceeds 500. I base this estimate on my knowledge of the number of Titikaveka residents affected by the dispute as claimants, and of the size of the Karika Family in Rarotonga, and making allowance for interested persons on both sides residing in New Zealand. I think it is fair to say that the issue is watched with interest by many other people on Rarotonga.

4. I was born in Titikaveka and have lived there almost continuously all my life. I grew up on the land Kaingavai Section 49C, which is adjacent to the disputed lands. There was no trouble at that time that I can recall. In recent times though, with the Karika Family wanting to come onto the land, relations between the Titikaveka people already on the land and the Karika Family have deteriorated. There have been ugly scenes on the land between the two sides, with damage to crops, and to improvements, and threats of physical violence. The Police Department has become involved in the dispute on a number of occasions as the result of such incidents.

5. MORE generally I can see that the village has suffered because of this trouble. The Te Puna Lands are in the heart of the village, and it is in this area that housing and the population is most dense. Because of these disputes and the resulting uncertainty about ownership and occupation people appear to be unwilling to use or develop the Te Puna Lands to their full potential. Houses are deteriorating, lands lie unplanted (or interfered with) and the people on the land are unsettled. I believe that everyone in the village has felt the effect of this dispute in one way or the other, whether they claim an interest in that land or not. Some of the Titikaveka people who used to live on the land have in fact moved off and gone to New Zealand - and I believe that this dispute has been a significant factor in their deciding to move. The rest remain, determined to hold on.

6. FOR my part - as a Cook Islands Maori familiar with the land and with the personalities on both sides of the dispute - the depth of feeling of the parties is understandable. For us, land issues are always important issues and we take them seriously. The Karika Family rests its claims on the decisions of the Land Court and naturally feels entitled at law to the land. The Titikaveka people on the land feel just as strongly that they have a right in the land due to their use and occupation of that land. Many of them claim that they can trace back their occupation and use of the land for generations, back into pre-European times. They claim to have occupied the land for such a long time that they are entitled to retain possession. Their claim is a claim based on custom, for traditionally ownership of land was decided by use and occupation. Today the same customary principles are still relied upon in the Cook Islands.

The respondent has since the hearing availed herself of the opportunity which we also gave of filing an affidavit in reply. This comes from Mr J.J. MacCauley - presently Commissioner of Crown Lands and formerly a Judge of the Land Court from 1973-8. Mr MacCauley is very knowledgeable in these matters and accordingly his affidavit has been carefully considered.

He puts some gloss on the material from Inspector Matapo by pointing out that no matter how long persons may have been occupying land, they do not thereby by Cook Islands custom qualify as landowners for they may be 'squatters', an expression used to include licensees occupying by express or tacit permission of true but absentee owners. His opinions, in conjunction with the strong views expressed in Colonel Gudgeon's 1908 decisions, tend to discount the strength of the challenge to the Karika titles on the merits - which doubtless will be of importance to the Land Division if a rehearing takes place, but is not the concern of this Court at this stage. Parliament saw fit to pass a private Act, granting rights to apply for rehearings. When that Act became law the persons now represented by the appellant acquired those rights. The question before this Court does not relate to what will be the result of rehearings but to whether that Act of Parliament, valid as it undoubtedly was in 1980, has been rendered inoperative by the ninth Amendment to the Constitution.

The State obviously has a responsibility to ensure that disputes about significant areas of land involving comparatively large numbers of people do not develop so as to threaten the general welfare and the public order. The present matter could properly be seen as having those characteristics. In that sense the Act is intended to serve legitimate and important social objectives.

The step taken in the Act bears a reasonable relation to those objectives. Counsel for the respondent argue that the Karika family has been singled out. There is, they say and we accept, no other similar statute. But so far as the record shows there is no other fully comparable dispute.

In this connection we note what Mr MacCauley says in paragraphs 3(b) and 4(a) of his affidavit:

3(b) The comment at the end of paragraph 3 [of the inspector's affidavit] that "the issue is watched with interest by many other people" is correct, and relates to the source of the dispute on this land. In general terms, Rarotonga is divided into 3 main tribal districts. The District of Takitumu, in which this land is located is under the authority of Pa Ariki, the supreme chief of this district. The District of Avarua, is under the authority of Makea Ariki and the Makea family, one branch of which is the Karika family. However, there are a number of lands within the Takitumu district which are owned by the members of the Makea family - these lands are spread throughout the district of Takitumu, are very large and are mostly not occupied by members of the Makea family. Some of them have been leased out, others, as with the Te Puna lands have been occupied by squatters for many years. The squatters are of course interested in this application as precedent for the other Makea lands. They challenge the right of the Makea family to hold any land in the Takitumu District. The Makea family are also interested because they see this application as a threat to their ownership of lands in the Takitumu District.

..............

4(a) To my knowledge, the squatters on the Te Puna Lands rendered atinga until the mid 1960s. The disputes concerning this land go back to that time. I know of at least 1 family that continued to render atinga, and now occupies under long term leases. The most recent disputes started when a member of the Karika family started to clear a ¼ acre section over which she has been awarded an occupation right by the Court. After she had cleared the section, some of the squatters planted root crops in it. She lodged an injunction application to stop the planting. Disputes then took place on the land culminating with the squatters insulting Margaret Karika, the head of the Karika family. As a result, the Karika family filed the several injunctions referred to.

We think it significant that Mr MacCauley does not cast any doubt on what Inspector Matapo deposes as to 'confrontations', 'ugly scenes' and the like regarding the disputed Te Puna lands with which alone the 1980 Act is concerned. Indeed Mr MacCauley's references to the insult and the injunction proceedings tend to confirm that these lands have been a particular source of local discord.

It is only the Te Puna lands 50A and B for which Parliament has decided to allow rehearings of questions of title. To widen the possible rehearings to cover other lands might well have been to invite arguments that Parliament was going further than could be justified by the particular problem which evidently led to the legislation. It could even be said that by treating similarly people not necessarily in the same position Parliament would deny equality before the law. Moreover, an Act extending to a wider area, such as a whole tribal district would tend to undermine security of title generally. The Courts would not be justified in interpreting the Constitution as requiring Parliament, if legislating for rehearings, to do so on a wider scale than Parliament thinks necessary. And we do not think that the Constitution could possibly be interpreted as altogether denying Parliament any power to legislate for any rehearing.

An attempt to pass a series of private Acts providing for rehearings of a series of individual cases not legitimately capable of being regarded as in any special category would raise different issues. It might conceivably be open to successful challenge under the Constitution. But there is no evidence before the Court of any proposal on those lines. Indeed counsel for the respondent rightly did not seek to put the case in that way. So far as this Court is aware, persons interested in other Takitumu lands would have no justification for expecting Parliament to treat the Te Puna Rehearing Act as a precedent for them.

What counsel for the respondent did seek to place some reliance on is that the owners affected by the Act are a blood-related group. Insofar as this is a claim of discrimination or unequal treatment because of family origin, the answer is that the family relationship is inherent in the land tenure system. The terms of the 1980 Act indicate that the essential reason why that group of people is affected is that titles to a particular tract of land are in dispute; it is not their relation to one another. The Court cannot impute to Parliament a hidden intention to legislate against a particular family. There is nothing in the Act or the evidence to warrant an inference of that sort.

Counsel for the respondent contend that the legislation disturbs a duly adjudicated title. One central feature of the legislation provides part of the answer: the legislation makes no judgment about the merits of the dispute. Rather it confers jurisdiction on an impartial forum which, having allowed those affected a full opportunity to be heard, will rule on the merits of the case. Of course that is not a complete answer. The Act does place a duly adjudicated and quite long-standing title in jeopardy, although the persons represented by the appellant evidently claim that their ancestral rights can now be shown to be older. But we know of no principle, nor were counsel able to cite any authority from any jurisdiction, for a proposition that a fair rehearing before a competent judicial tribunal of an issue of civil rights is necessarily an infringement of equality before the law or the protection of the law. And, as already stressed, there is nothing before the Court to establish that in legislating for a rehearing in this instance Parliament discriminated between like cases.

In the latter connection counsel for the appellant appositely cited Lindsley v. Natural Carbonic Gas Co. [1911] USSC 42; 220 U.S. 61, 78-9, where as long ago as 1911 the Supreme Court of the United States laid down criteria for determining whether legislative classifications violate the equal protection clause of the Constitution. The fourth of these is 'One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary'. The present is not strictly a classification case, but we find that principle as to onus helpful by analogy. The respondent has not shown that the 1980 Act is arbitrary in legislating for an investigation of this particular dispute.

The 1980 Act, counsel for the respondents claim, is an arbitrary interference in an essentially private dispute. But the legislation and the facts show that it has a wider social significance. A rigid line cannot be drawn between matters of public and private importance. Parliament was entitled to take the view that this dispute was of sufficient public importance to call for special legislation.

We conclude that the 1980 Act is not inconsistent with the rights covered by either paragraph (b) or paragraph (c) of Article 64(1). In so holding we do not rely on Article 64(2), which was invoked in an alternative argument for the appellant. The 1980 Act is not concerned with the exercise of rights of ownership, or limitations thereon, but with determining where ownership lies.

In summary, we consider that it has not been shown that there is anything arbitrary or unreasonable in a constitutional sense about the decision that the legislature has made, in the exercise of its wide responsibilities, to provide for the rehearing of this matter. In reaching this view we are conscious of the distinct functions of the legislature and the Courts in terms of the judgments to be made, the material to be weighed, the procedures to be followed, and responsibilities under the constitutional system. We would require a much stronger case, convincingly made out by those attacking the legislation, before we were willing to upset legislation such as the 1980 Act by reference to the broad principles in Article 64(1) (b).

The Effect of Articles 64 and 65 on Existing Legislation

We have held that the 1980 Act is not inconsistent with the right of the individual to equality before the law and to the protection of the law, nor with the right to own property and not to be deprived of it except in accordance with law. So it is strictly unnecessary for us to consider whether inconsistency would have made the 1980 Act inoperative against the Constitution Amendment (No. 9) Act. But because of the general importance of the question of the effect of that Amendment on previous statutes, we will state our view on that question. Another reason why we do so is that, particularly if it favours a result - differing from our view, Parliament may wish to take steps by further constitutional amendment to put the matter clear beyond all argument.

Articles 64 and 65 are perhaps uniquely unclear as to their effect on earlier legislation. Modern constitutions stating human rights often have express provisions on this important point. For instance the Western Samoan Constitution is express that existing as well as subsequent laws are void to the extent of inconsistency therewith.

The introductory words to Article 64(1) strongly suggest that it does no more than capture the present state of the law. The Constitution recognises and declares that these rights and freedoms exist in the Cook Islands, and shall continue to exist.

As to constitutions on the Westminster model, such as those of various Caribbean countries, the leading case is the decision of the Privy Council on the Jamaican Constitution, Director of Public Prosecutions v. Nasralla 1967 2 AC 238. That Constitution provided expressly that nothing contained in any law in force immediately before the commencement of the Constitution 'shall be held inconsistent' with the human rights provisions. The case is accordingly not on all fours with ours. It is interesting, however, to note that the Judicial Committee treated the human rights provisions in issue there as declaring or intended to declare rights already afforded by the existing statutory and common law.

The indication of this intention was seen in the wording of s.13: 'Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual ... the subsequent provisions ... shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations ...' Lord Devlin said at pp. 247-8 that: 'This chapter, as their Lordships have already noted, proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of their provisions is to ensure that no future enactment shall ... derogate from the rights which at the coming into force of the Constitution the individual enjoyed'. Lord Devlin then said that 'Accordingly' the express saving provision provided as it did. It appears that their Lordships treated the latter provision as confirmatory, rather than as the basis of the decision.

In a considerable line of later cases the Privy Council has consistently acted on the view that in such constitutions earlier legislation is not superseded by the human rights provisions. The cases include de Freitas v. Benny [1975] UKPC 12; 1976 AC 239; Maharaj v. Attorney-General of Trinidad and Tobago [1978] UKPC 3; 1979 AC 385; Riley v. Attorney-General of Jamaica 1982 3 All ER 469. The first two of those cases concerned the Constitution of Trinidad and Tobago, which is in a sense more explicit than the Jamaican one on the point. Like Article 64 of the Cook Islands Constitution, it uses the formula that the declared rights 'have existed and shall continue to exist'. Further it expressly provides that the section declaring them shall not apply to any law in force in Trinidad and Tobago at the commencement of the Constitution.

The decision of the Supreme Court of Canada in the Drybones case, previously cited, was to the opposite effect on different wording. It held that a collision with a freedom in s. 1 of the Bill of Rights (the equivalent of article 64 of the Cook Islands Constitution) made inoperative the provisions of earlier legislation. But it is important to note that the Canadian Bill contained a feature not present in the Cook Islands Constitution. Section 2 of the Canadian Bill provided:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate...

And s. 5 expressly defined 'law of Canada' so as to include Acts enacted before the Bill of Rights came into force. This combination of provisions led to a majority decision, by six Judges to three, that the Canadian Bill overrode prior legislation.

While Articles 64 and 65 in the Cook Islands are less than clear on the point, we think that the better view is that Article 65 lays down no more than rules of interpretation applying to all 'enactments' - an expression partly defined in Article 65(3) - whether past or future. We prefer this view because of the opening provision in Article 65(1) that it is subject to subclause (2). This provision had no counterpart in the Canadian Bill of Rights. Subclause (2) in effect repeats and re-emphasises s. 5(j) of the Acts Interpretation Act 1924 - which is in any case in force in the Cook Islands, as has already been seen. So far as Article 65 is concerned, the result of giving paramountcy to subclause (2) is that the plain meaning of whatever Act is in question, according to its own intent, must prevail.

Mr Barton submitted that the foregoing result could be avoided by giving weight to the words 'and applied' and 'or applied' in subclause (1). But, with all respect to the argument, this seems to us altogether too refined a distinction, especially in a constitutional instrument. References to 'interpretation' are sometimes supplemented by express references to 'application', but largely out of caution. A clear line cannot be drawn. The application of an Act is commonly spoken of as one aspect of its interpretation: see for instance, among innumerable examples that could be found, Attorney-General for Alberta v. Huggard Assets Ltd 1953 A.C. 420, 442 per Lord Asquith of Bishopstone delivering the judgment of the Privy Council; 36 Halsbury's Laws of England, 3rd ed. paragraphs 649-54. Article 65(2) governs as to what it calls 'construction and interpretation'. In our view this includes application.

The view that prior statutes are not made inoperative by Articles 64 and 65 harmonises with Article 66, which saves existing unspecified rights and freedoms. The argument for the respondent that this is limited to matters of a fundamental and general nature is difficult to accept. It raises problems of vagueness and of finding general rights and freedoms which are not specified in Articles 64 and 65. We are inclined to think that the rights to a rehearing vested under the 1980 Act in the class of persons represented by the appellant would in any event be saved by Article 66. But we have preferred to rest this judgment on wider grounds.

This limits the effect of the ninth Amendment on existing enactments, but such a result is not at all surprising. It is not to be presumed that possibly massive changes across the whole body of the law could be brought about by implication - with consequent uncertainty which could take many years to resolve and would be subject to the chance of whether or not someone chose to bring legal proceedings. The usual reluctance to find that legislation has been impliedly repealed is even more applicable here. Consider for instance the arguments that might be raised about the impact of any guarantee of freedom of speech and expression contained in Article 64(1) (e) on the existing law relating to defamation, obscenity, sedition, public order, the political activities of public servants. Certainly such issues could arise in the future. But there are important differences. The Part is now in existence and can be weighed by the legislators. If they wish to proceed in the face of the declared rights they can seek to employ the special procedure laid down in Article 41 for constitutional amendment. Those responsible for legislation enacted before 5 June 1981 have not had that opportunity. A related point is that much of that legislation has been enacted since self-government was introduced in 1965 - and even more since the introduction of the Legislative Assembly with elected members in 1957.

On the other hand, as regards enactments passed after the Constitution Amendment (No. 9) Act came into force, we prefer a different view, although the present case does not call for a decision. We would be disposed to hold that Article 64 should be treated, from the time when it came into force, as establishing rights that are truly, fundamental. As has been shown, there are ample reasons, both in the wording of the Articles concerning fundamental rights and in their very subject-matter, for concluding that they were not meant to invalidate existing legislation. As for the future effect of the Amendment, however, to adopt the words of Ritchie J. in the Drybones case at p. 481, we would be reluctant 'to convert it from its apparent character as a statutory declaration of fundamental human rights and freedoms which it recognises, into being little more than a rule for the construction of ... statutes'. Indeed this approach may have even more to be said for it as regards the Cook Islands provisions. They are contained in a Constitution Amendment Act made by the special procedure required for such Acts; whereas the Canadian Bill of Rights considered in Drybones was passed by an ordinary Act of Parliament.

Accordingly we would be disposed to hold that if an enactment passed after 5 June 1981 can be shown to violate any of the constitutional human rights and freedoms set out in Article 64 the Court will have jurisdiction to declare it to that extent inoperative. The approach to interpretation enjoined by Article 65 would apply equally to enactments passed after that date; but if inconsistency with a fundamental right could not be avoided by that approach, the right would prevail and could be preserved by an appropriate Court order.

But we should say again that this question does not arise in the present case. For the reasons already given, we hold that the Rehearing of Te Puna Lands Act 1980 is not inconsistent with the rights of individuals to equality before the law and to the protection of the law; nor with their rights to own property and not to be deprived thereof except in accordance with law; and further that in any event it would not be rendered inoperative by the subsequent Constitution Amendment (No. 9) Act. It follows that question 1 should be answered No. Question 2 as worded does not require an answer. For clarity, however, there will be a declaration that the Act is a valid enactment of the Legislative Assembly.

The appeal is consequently allowed and the three questions answered as we have indicated. As in the High Court, there will be no order for costs.

SIR ROBIN COOKE, PRESIDENT
SIR GRAHAM SPEIGHT C.J.
MR JUSTICE K.J. KEITH

Solicitors: Clarke Ingram & Co., Rarotonga, for Appellant
Short & Tylor, Rarotonga, for Respondent