In re Vaine Nooroa O Taratangi Pauarii (No 2) [1985] CKCA 1; CA 3.1985 (8 October 1985)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
C.A. 3/85

IN THE MATTER
of section 221 of the Code of Civil Procedure
of the High Court 1981

AND

IN THE MATTER
of an order made by the High Court
on the 26^th day of July 1983 granting succession
by VAINE NOOROA O TARATANGI PAUARII
to the interest of PAUARII TANETUAO
in the land TUAROA & VAlPAPA S. 89D ARORANGI
(No 2)

Coram: Sir Thaddeus McCarthy (presiding)
McMullin J.
Sir Clinton Roper J.

Counsel: R.W. Tylor for Appellant
Mrs. T.P. Browne for Respondent

Hearing: 28 August 1985
Judgment: 8 October 1985

JUDGMENT OF THE COURT
DELIVERED BY SIR THADDEUS McCARTHY

This appeal is from a succession order made by Dillon J. in the High Court, Land Division, on 8 March 1985, in favour of Vaine Nooroa O Taratangi Pauarii (the applicant) in respect of the interest of Pauarii Tanetuao (the deceased) in the land Tuaroa & Vaipapa S. 89D Arorangi in the island of Rarotonga. The applicant had been adopted by the deceased in 1955 when he was three years of age. The adoption order signed by Chief Judge Morgan bore the endorsement 'not to affect interests in Native Land'.

The association of the applicant with the deceased was summarised by Dillon J. in the High Court in this passage of his judgment:

The deceased died on the 22^nd of August 1970, aged 70 years. The applicant was born on the 20^th January 1952 and was adopted by the Deceased on the 7^th February 1955. The deceased and the applicant at the time of the adoption lived in New Zealand. The deceased returned to Rarotonga in 1965 or 1966 and the applicant stayed on in New Zealand living with his natural mother. There was a suggestion that because of the deceased's age, health and poor financial circumstances the adopted child may have gone to live with his natural mother some time before the Deceased returned to Rarotonga in 1965 or 1966. There was no definite evidence on that point. Nor was there evidence that the deceased was looking after the applicant prior to his adopted when he was aged 3 years. Assuming that the deceased had the child from birth until her return to Rarotonga in 1965 or 1966 then she looked after the applicant for a maximum period of 14 years. When the deceased returned to Rarotonga she was aged 66 and the applicant 14. Evidence was also given of her poor health, strained financial circumstances, and 'not good' living conditions. These factors were clearly the reason for her being unable to continue looking after the applicant and deciding to return to Rarotonga.

We add to this summary that Pauarii was herself adopted as a child according to native custom by a family referred to in the evidence as the family of Mangavai by whom she was given the land interest in Ruaroa and Vaipapa S. 89D to which Vaine sought to succeed. His application was opposed by Rongorangi Brown seeking succession on behalf of himself and other descendants of Mangavai. Dillon J. however held in favour of the applicant. He said:

In the present case we have a 52 year old lady adopting a child, living in New Zealand together where she brings up the child until he is 14; and then when she is 66, in poor health; and not good living conditions; and financially not well off; she arranges for her child to stay on in New Zealand to be looked after by his natural mother while she returns to Rarotonga where she dies fours years later. I have no doubt that if she had remained in New Zealand for the last four years of her life and continued to look after her child and had died there then this would have clearly indicated a maturity of adoption justifying entitlement to succession. Taking into account the factors which compelled the deceased to leave the child for the four years of her life, I believe the evidence justifies a recognition of this adoption and a consequential maturity which according to native custom entitles this adopted child to succeed to his adopted mother's interests in this land. There will be a Succession Order in his favour solely.

The retention of the use or control of land within the group is a central feature of Polynesian philosophy throughout the Pacific. Land is often scarce and it is always precious; it must be retained for those of the tribal blood and not eroded by allowing others of different descent to occupy it. Native custom is moulded by this inherited instinct and has made blood connection that primary consideration in succession to native land.

So, though an order for adoption has in respect of succession to the estate of any native in the Cook Islands 'the same operation and effect as that which is attributed by native custom to adoption by native custom' (s. 465, Cook Islands Act 1915), and whereas native custom as a rule provides for a child to succeed to the land interest of both his natural parents, nevertheless that custom is somewhat changed when the rights of an adopted child to succeed to his adoptive parents are considered. What is generally accepted as the leading discussion of the custom as it then applied is to be found in a judgement of Chief Judge Morgan in the Land Court, Re Succession by Emma Moetaua (MB. 28/156). As we have noted recently in another judgment, Re an application for succession to Teaukura Roi, Chief Judge Morgan was a Judge of very considerable experience and knowledge of the customs of the Cook Islands Maoris, especially in relation to succession to land. The authority of his statements on native custom are widely admired and accepted. Mr Tylor has extracted what he considers the most important observation by that Judge in the Emma Moetaua decision. These are not challenged by Mrs Browne. So we think it helpful to include them in this judgement:

(a) 'As the adoption order itself does not confer upon the adopted child an unqualified right to succeed the Court is required to determine the issue in accordance with Native Custom'. (p. 156);

(b) '...there are degrees of recognition of an adopted. ...the making of a Court Order of adoption (are) only the first steps in what might or might not lead to a final recognition by the foster parent and his near family of a complete adoption'. (p. 156);

(c) 'The need for recognition by the near family can be better appreciation if it is remembered that the adopted child will probably want to use some or all the lands of his foster parent'. (p. 157);

(d) 'Between the first steps and the final complete adoption, there are degrees which govern succession to the foster parents' estate'. (p. 157);

(e) 'An adopted child may return to its own parents, or it may live partly with its foster parents and partly with its natural parents. In such cases, the adoption never becomes complete, but particularly in the second case, the foster parent and his family may and usually do set aside certain lands...' (p. 157);

(f) '...it still remains for evidence to show what lands if any the adopted child will take that evidence will almost certainly have to come from the next of kin of the foster parent'. (p. 158).

In the judgement that we have just discussed, Chief Judge Morgan refers to a judgement of this Court Appeal in Re Moeau (Deceased) AMB. 2/398 at p.393, and applies the test stated by the Court in two further passages, which we will also quote:

(a) '...it would be in accordance with Native Custom for the family of the foster parent to set aside lands, in addition to those allotted to the adopted child at the time of adoption, at a later date either during the lifetime or after the death of the foster parent...';

(b) 'The persons who have the right to set aside such lands would be those entitled to succeed if no adoption had taken place.'

Applying these judicial statements of native custom to the facts of this case Mr Tylor makes two submissions which he says entitled him to have Dillon J's judgment set aside. The first is that the Judge failed to have sufficient regard to the need for the fact of recognition and acceptance by the near family of the adoptive parent to be established by proper evidence. In his words such recognition and acceptance must be shown to have 'matured' to the stage where the right of the adopted child to succeed to the interest claimed must be positively established by evidence and especially the evidence of those who would succeed to the land interest in question, if the adoption had not been undertaken. The burden of satisfying the Court that the appropriate degree of recognition existed lies upon the applicant, and in this case, Mr. Tylor contends, that onus had not been discharged.

In many of the discussions of this principle and, as we have noted, in the judgement appealed from, the term 'maturing' is adopted - it is said that recognition must have matured, etc. the word is doubtless a useful one, and has the weight of some years' use; but we would like to stress that the maturity which is spoken of in this context is not necessarily the slow continuing biological-type maturing which is often associated with that word: rather it is a development, which can move spasmodically; it is far from constant, it can be quick, it can be slow, and it can be precipitated by events rather than time. We prefer to use the term develop.

Though the need for an adoption to develop in the manner we have discussed before giving right of succession to native land was widely, if not universally, accepted, it does appear that what was seen as sufficient to meet the test could vary somewhat from time to time and locality to locality. Custom was never immutable in all its aspects.

Returning now to Mr Tylor's argument we find it irresistible. The learned Judge seems to have concentrated mainly on the attitude of the adoptive mother towards the child and he asks what more she could have done. That, with respect, seems to us to be viewing the application from the wrong direction. The dominant issue was whether it was established that there was sufficient recognition by her family to enable the court to say that the adoption had developed to the degree which satisfies the test set out in the decision of Chief Judge Morgan in the Emma Moetaua case. In our view the evidence fell a long way short of meeting that test, even after allowing for any reasonable variation in its application: indeed the evidence emanating from the family, and especially that of Rongorangi Brown, was to the effect not only that recognition had not been bestowed sufficiently by the family, but also that such development towards that recognition as there was at an early time had retreated as a result of the child being handed back to his natural mother before Pauarii left New Zealand, when the child could have been given to the Mangavai family to look after.

Mrs. Browne, as we have already indicated, does not challenge the requirements of the custom which we have outlined. Instead, she points to the fact that Pauarii as herself an adopted child and as a consequence of that adoption had been given a share of some Mangavai lands. So, she claims that as a matter of fairness the family that gave those lands to Pauarii should be required to accept the succession to them by Vaine Noora. We do not find that argument convincing. What we are required to do is to follow the appropriate native custom, not to impose what we ourselves might think was a more fair result than the custom produces.

We would like to say something concerning the notation on the Adoption Order 'Not to affect interest in native land'. Mr. Tylor lays a major stress on those words saying that the Court should interpret such words of limitation as indicating that a position of status quo with that which existed before the adoption should be maintained. We prefer to approach the notation rather differently. The use of such a limiting phrase is not authorised by legislation. Chief Judge Morgan, who was the Judge who made the Adoption Order in this case, recognised and drew attention to this lack of statutory authority. In the Moetaua case p. 158 he did that and said:

The wording of the restriction may however indicate what the Court considered to be custom pertaining to that particular case although no evidence of custom was tendered on that occasion and no objection was made to the adoption either by any blood relative or by any other person.

We agree with this. We think that the words are intended to do no more than emphasise that succession to any native lands does not arise by virtue of the Adoption Order per se, but that such rights are acquired only by satisfying native custom in the way we have endeavoured to outline above.

The limitation therefore should not be treated as an absolute bar. Indeed, Mr Tylor and Mrs Browne were in agreement that if this appeal succeeds, as we think it should, it could be open to the applicant to apply for a succession order to some interest in Mangavai lands, if he can at a future time establish that his adoption has secured the recognition which is essential to success in such an application.

Mr. Justice Dillon commented that the meaning of the notation was uncertain, in that its words do not clearly indicate, whether they were intended to apply to interests of the natural mother of the child, or to those of the adoptive mother. We think it is sufficient to say for the purposes of this argument that we have no doubt that they were at least intended to cover the interest in which the deceased Pauarii possessed in the Mangavai family lands and to which the respondent claims succession.

The appeal will be allowed, and the succession order made in the Court below cancelled. Instead an order will be made in favour of Rongorangi Brown and those whom he represents. The case will be sent back to the High Court for the terms of an appropriate order to be settled. The appellants will be entitled to costs in the sum of $400 with disbursements to be fixed by the Registrar.

THADDEUS McCARTHY P.