In the Matter of the Tribunal Title of Tapetukura Rangatira [1988] CKHC 2 (12 May 1988)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)

IN THE MATTER
of Section 409 of the Cook Islands Act 1915

AND

IN THE MATTER
of the tribal title of TAPETUKURA RANGATIRA

Counsel: Mrs Browne for Applicant, Mr Rena Jonassen
Messrs Short, Tylor and McFadgen for 7 Rangatiras to oppose
Henry for Mrs Kapi to oppose

JUDGMENT

This is an application under the provisions of Section 409 of the Cook Islands Act 1915 "to hear and determine any question as to the right of any person to hold office as an Ariki or other Maori Chief of any Island". In this case the office and title is that of Tapetukura Rangatira.

There have been presented to the Court minutes of family meetings dated 18 January 1983 and 6 March 1985. There have been Court hearings on 28 September 1983; 19 March 1984; 28 March 1985; and 8 September 1986. In addition a reference has been made and submissions have been relied upon many earlier proceedings relating to this particular title, which proceedings have been recorded in the Rarotonga Minute Book 6/226-263; 16/5-7; 16/16-31; 16/192-217; 16/228-236; 16/271-276; 21/41-43; 21/66-67; 58/111-113; 62/1-2; and the evidence recorded at the hearing on 8 September 1986.

Two objections have been lodged to this application. The first by the seven Rangatira's who are recorded as the owners in whom the land Maungaroa 102 is vested; and secondly Exham Wichman and Mrs Kapi.

The Court has studied and considered this substantial volume of material dating back to 1913 and its relevance and application to this present case. From all the evidence submitted in support of and in opposition to this application, the following principal facts are either agreed to by Counsel or established to this Court's satisfaction:

1. The Tapetukura title has not been held or succeeded to for at least 84 years.

2. The title to the Maungaroa 102 block was established by Order of Investigation on 8 October 1913 and vested then in Tinomana Tirangi as trustee for the seven Rangatira's named and in addition in Taarua as to "a small right as to Kiato". Tapetukura having died without issue, his interest in this block was succeeded to by the remaining six out of the seven Rangatira's referred to above.

Based on these considerations Mrs Browne relies on the decision of Judge Morgan dated 29 May 1951 and in particular, as I understand her arguments, the following extracts from that Judgment.

"Whatever may have been the position in heathen time, there seems to be little doubt that Tapetukura, son of Te Au Ariki, was the one and only Tapetukura about the time the gospel arrived. His two sons held the title after him and when they died without issue the title (and the lands) were taken and held by Tinomana Mereana, a descendent of Enua Rurutini, brother of Tapetukura. Succeeding Tinomana's have held the title (presumably in trust) right down to the present day. It would require the strongest of proof to dispossess that family and proof of a better claim has not been produced.

Those descendents of Enua Rurutini who have remained with the Tinomana Ariki family may elect one of their members to hold the title and unallocated lands of Tapetukura, but they must act in accordance with true native custom."

On the other hand the objectors' various arguments and grounds of opposition to this application are probably best summarized by Mr Short's initial submissions:

"I can indicate that the grounds in which we place our arguments are -

1. The title has died out or expired.

2. It has died out because of two factors - (a) because the direct descendents of Tapetukura have died out; (b) that a long period of time has since transpired and has not been held so could not go to any other person.

The second alternative ground to our objection, even if the Court has found that the title has not died out, we claim that it is not only the descendents of Enua Rurutini that is entitled to hold that title. Consequently the decision as to who holds that title should not only be made by the descendents of Enua Rurutini. As the alternative ground in opposing this case if the Court holds this Enua Rurutini's descendents to be the rightful holders of the title, we say that the manner in which Mr Jonassen is elected is not according to Maori custom."

In considering the first of those in effect four grounds of objection, namely that this "title died out or expired" care must be taken to not misinterpret the two Judgments being relied on, the one by the Applicant and the other by the objectors. As far back as 1906 M.B. 3/19, the Court said "the Ngati Tapetukura are dead and gone". Now that finding does not provide Mr Short with a licence to say that the "title" is dead and gone. It is the family that is dead and gone since there were no successors. This is exemplified by reference in 1909 M.B. 5/36 where "the Court declared that the line from Tapetukura had died out and that the lands had reverted to the Tinomana family". This situation then poses the question as to whether if the Ngati Tapetukura are dead and gone and that family held the Rangatira title, can this title now somehow be resurrected, as it were, or revived; and if so by whom; and if so can it be done after the lapse of 84 years; and if it can, does that mean the creation of a new title but with the same name; or is it the same title that has been held in Trust for the last 84 years; and if so, by whom?

Mrs Browne, in this connection, relies on the decision of Judge Morgan where it is stated "succeeding Tinomana's have held the title (presumably in Trust) right down to the present day".

Very well, so based on that Judgment Mrs Browne claims that the Ariki has "held the title (presumably in Trust) right down to the present day". That consequently the fact that no - one has held the title for 84 years is irrelevant; and that the title being held in Trust can be bestowed according to Maori custom. As already noted Mr Short's further objections question the claims as to entitlement and election.

As to the question of entitlement, reference has been made to the resolution passed at a meeting of the Arikis on 23 November 1943 and relating particularly to the question of a Rangatira title under an Ariki. The relevant resolution applying to the facts of this case is contained in Resolution No. 3:

"If a Rangatira dies without issue and have died out, the title and lands revert to the Ariki and that Ariki will elect a suitable person from his Kopu Ariki to the title of Rangatira and to hold such lands as goes with the title of deceased Rangatira."

This resolution states that "the title and lands revert to the Ariki". In this case the interests of Tapetukura in the Maungaroa 102 lands have not reverted to the Ariki but rather have been specifically vested in the remaining six Rangatira's. That was done in 1944 by Judge McCarthy and there has been no objection to that Order. This then raises the question which has not been considered at all in the evidence presented to this Court, namely - "where a title is involved there also is land involved"? Is this statement by the Court in the 1944 decision correct, and in accord with Maori custom? In other words if the land interest in the Maungaroa 102 title previously owned by Tapetukura has been divested by the 1944 Court Order, can the Ariki revive the title when there is no interest in land available on which the title can be based? In other words, if a title involves land and land involves a title, how can a title be revived by a Trustee when the interest previously held by the then titleholder has now been succeeded by others because the previous titleholder's line is "dead and gone"?

It does appear therefore that the revival of this Rangatira title cannot depend on the Maungaroa 102 block as its basis or foundation. There may be other land to which I have not been referred. If this should be so then I am prepared to receive additional written submissions on what appears to the Court at this stage as crucial to the issues involved.

However, I feel I should also refer to the method of the appointment of a replacement Rangatira. As the resolutions of the Ariki's point out "the Ariki will elect a suitable person from his Kopu Ariki to the title of Rangatira and to hold such lands as goes with the title of the deceased Rangatira". Here again is reference to land passing "with the title". I have no information on this crucial point.

Now what was the method of appointment in this case; the procedure adopted; and did it accord with Maori custom? I refer to the following evidence of Tinomana Napa:

1. The six Rangatira's who have objected are the six Rangatira's named on the title of Maungaroa 102 and in whom this block is vested. They were not called to the meeting held and he agreed that they should have been so called. Further he conceded that if they had come to the meeting and opposed the appointment then he would not have gone ahead with the investiture.

2. The meeting appointing Mr Jonassen was attended by only five people of whom one opposed the appointment.

3. Mr Jonassen did not bring the customary Tuikaa for the title.

4. He agreed that the six Rangatiras who have now objected should have been asked to the meeting to consider who should hold the title.

5. He now wants the six Rangatiras shown in the title to the Maungaroa 102 block struck off and replaced by Mr Jonassen.

6. Mr Jonassen issued the invitations to the meeting; was the Secretary to those meetings; and recorded the minutes of those meetings.

The above concessions really throw serious doubt on the manner of the proceedings and the procedure adopted leading up to Mr Jonassen's appointment - and in fact this is now conceded by the Ariki. In addition, however, it is conceded that the original meeting was inadequate; that this was followed by the investiture; and then in an effort to correct what were considered shortcomings in the original meeting, a further meeting was held after the investiture. Mr Tylor submitted that this reverse procedure was completely contrary to Maori custom, which custom of course the Court must recognize and uphold.

Because of the question of this title not being supported by land entitlement; because of the irregularities conceded by the Ariki; and because custom has not been followed in Mr Jonassen's appointment, I do not believe the Court on this occasion can determine that Mr Jonassen is the rightful holder of the Tapetukura Rangatira title. I have already mentioned in respect of the Maungaroa 102 block that there may be other lands on which it is claimed this title is based. In all the circumstances the Court does of not wish to simply dismiss the application and leave the important question of a title in suspense, as it were.

In respect of the three issues about which this Court has expressed concern, Mrs Browne may very well be able to present further submissions upon which the Court can make a more definitive judgment. There does not appear to be any reason for additional evidence to be called as all that can be said has been said in this respect. If Mrs Browne, on behalf of Mr Jonassen, wishes to file further submissions then copies of these should be made available to the objectors who likewise would be entitled to file submissions within one month of receiving those additional submissions. If and when further submissions are received, then the Court is prepared to give further consideration to this application. In the meantime, however, the Court is unable on the evidence presently available to make a decision on the application before it.

No claim or reference to costs have been made by either party. In case this should be relevant, the question of costs is reserved.

DILLON J

12/5/88