In re Pa Ariki [2004] CKHC 3; Application 286.2004 (2 July 2004)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

Application No. 286/04

IN THE MATTER
of section 409(f) of the Cook Islands Act 1915

AND

IN THE MATTER
of the PA ARIKI TITLE

AND

IN THE MATTER
of an application by PA ELIZABETH-TE RITO O TE RANGI ARIKI
to hear and determine her right to hold the title of PA ARIKI

Mr George for Pa Elizabeth
Mrs Browne for Pa Marie

Dates of hearing: 28.6.04, 29.6.04, 30.6.04, 1.7.04
Date of decision: 02 July 2004

DECISION OF GREIG CJ

[1] Section 426 (2) of the Cook Islands Act 1915 makes provision as to the tenure of office of an Ariki and refers to the determination of that by and subject to an enactment and in default of that enactment then by native custom. There is no enactment and so native custom must rule. S. 409(f) of the same Act provides, under the general miscellaneous jurisdiction of this Court, the jurisdiction in the words of the sub-paragraph, "to hear and determine any question as to the right of any person to hold office as an Ariki or other Native chief of any island".

[2] These, provisions seems to have been created because of disputes as to the title of an Ariki and in a desire to provide a place to resolve these disputes, which the Court has often said, should be decided by the families, by the Ariki, by the Rangatira, by the Mataiapo in each case. The provisions of the statute do not give jurisdiction to the Court to appoint Arikis, that has to be done by the family, by the tribe. Nor do any of these provisions provide jurisdiction to remove any Ariki, that again is a matter for the family or tribe.

[3] Once again there is now before the Court, unhappily, a dispute as to the title of Pa Ariki. The application is made by Pa Elizabeth Terito O Te Rangi Ariki to determine her right to hold the title. For convenience I am going to call her Pa Elizabeth. She makes the claim to hold the title on the grounds that it was the decision of the kopu ariki to appoint her to replace her sister, that her genealogy entitles her to lay claim to the title, that she is of outstanding character and is highly respected in the tribe and she has under gone an investiture ceremony.

Pa Marie Tepaeru Upokotini Ariki whom I will for convenience call Pa Marie, opposes this application on various grounds, in particular, relating to her own position as Ariki since 1990.

[4] I go back to what may be described as the immediate background of this matter. Pa Tepaeru also known as Pa Terito, the mother of Pa Elizabeth and Pa Marie and the other siblings, had been the Pa Ariki since 1924 when she was about one year old. She died in 1990 in Auckland on the way to attend the Waitangi Treaty ceremonies on the 6^th of February 1990. Her death was not expected, it was unexpected. Sir Apenera Short, Takau Rangatira and the regent or taunga for Pa Terito brought the body back to the Cook Islands for burial.

[5] Pa Terito had nine children, most of them at that time living overseas and indeed the majority still do. They all came to the funeral in Rarotonga, and they then decided at a family meeting that the eldest daughter be chosen to be Ariki. That was Pa Marie. That choice was confirmed by the Ui Rangatira and the Mataiapo and all the Pa tribe took part in the investiture. It is of some relevance and importance that at that time there were other claimants subject to consideration by the Ui Rangatira but it would end with election and choice of Pa Marie as confirmed Ariki.

[6] In 1996, Pa Elizabeth began proceedings to challenge her sister's succession to Ariki land of Pa; land which the Court after a lengthy hearing and in a lengthy and detailed judgment held to be Ariki land. That is to say land which belongs to Pa Marie alone in right of her title. I note that on that occasion, there were some eight pieces of land involved; two were conceded to be Ariki land, three were found to be Ariki land and three were found to be family land. The application which Pa Marie had made for succession in 1991 related to all the lands, all the eight lands, that was following advice and research by solicitors and others, experts in the matter.

[7] I note also that a large number of other lands of Pa, were under other succession orders, ordered to be held by all nine of the family. That is to say they were family lands. That again was on application made by Pa Marie. It may be observed that although there is a large number of lands now family lands, it is the Ariki lands which appear to have the value and the importance in money terms.

[8] Pa Elizabeth then appealed against the Order in the High Court. The appeal was dismissed on the grounds that it was out of time. But the Court of Appeal observed and stated that it was not persuaded that there were any merits to the appeal which would have outweighed the delay. It is invariable on an application for leave out of time, that the Court considers the merits of the matter and if the merits are clear, it will grant leave because otherwise it would be contrary to justice to dismiss the matter just because of lapse of time.

[9] The Ariki land includes the site of the Hotel at Vaimaanga which is partly built and which is in process of redevelopment. Very large sums of money are involved. It is said that Pa Marie has received more than a million dollars in rent and other payments. The rest of the family do not have a share in that land or the money and it is their complaint that they have not received any share of it. Mr Iaveta Short in his evidence put his finger on the root cause of this dispute in the family when he said that it was land and money.

[10] In 2002 Pa Elizabeth made a move to remove Pa Marie. She applied to the Ui Rangatira on that subject. The Ui Rangatira met, rejected the application and gave their support to Pa Marie as a continuing Ariki.

[11] In May 2004, this year, Teariki Upoko o Te Tinitini Peyroux also known as Sonny Peyroux who is the 6^th child but the first son of Pa Terito celebrated his 5^th birthday in Rarotonga. Nearly all his family came to support him and celebrate with him that occasion. At that time the opportunity was taken for meetings of the family except Pa Marie and a decision was agreed by all 8 of the siblings that Pa Marie be removed and Pa Elizabeth be appointed in her place. The Ui Rangatira met after they learnt of this, rejected the family decision and again supported Pa Marie. The family had a meeting with a number of the Mataiapo and received some support. They proceeded with the appointment of Pa Elizabeth and an investiture ceremony took place.

[12] I have heard evidence from all the members of the family, nearly all of them by giving evidence in the witness box and then subject to cross examination. I have also heard evidence from Mataiapo, Rangatira, Taunga and other people who are and have been involved in one way or another and who claim in one way or another expertise in the customs of the Pa family.

There is now a very deep dissension in the family and there is I perceive a grave concern not to say consternation among the Ui Rangatira and others in the family that this matter has come before the Court and that the family dispute has been displayed in open and in public. This is particularly so in what is the Pa Ariki or Puara of Takitumu which I have been told and which I accept is of first ranking status in the important tribe of Takitumu. It is sad that once again an Ariki title is before the Court; that it has not been possible to settle the dispute within the tribe.

[13] The Courts have on a number of occasions made a plea to the family or tribe to resolve the matter. Justice McHugh who gave the decision in the 1996 application ended his judgment by saying this and I repeat it, "quite obviously the Ui Rangatira and Mataiapo present in the family meeting of 19 March 1997 wanted a peaceful and united outcome within Pa Ariki and Kairangi's immediate family [Kairangi being Pa Elizabeth]. There is no need to stress that the relationship between the Ariki and the Ngati is not a one way affair. There is a need for respect and co-operation and a two way obligation for the Ariki and the people to help each other." He ended his judgment with this observation: "the Court and the kopu tangata would like to think that this family will become unified and put any present or past disagreements aside, it can be done." Unfortunately, those observations made in July 1998 have not come to pass but it must still be the Court's hope that it will come to pass.

[14] As I have said I have heard the evidence given in the Court and have read the evidence in affidavit form and many other documents which have been provided to me in evidence. I have read about Pa Marie and observed her demeanor and her attitude in the witness box. I am bound to say that I find it autocratic and to some extent arrogant. There was a certain flippancy in the way she dealt with questions. She was unprepared to make any concession in answers to the question that were given. On the other hand, Pa Elizabeth is equally determined to uphold her position and her view. There has been repeated reference by her and on her side to Pa Marie attempting to convert family land to the Ariki title. That is not the correct phrase to use. On the advice of the experts Pa Marie applied for Ariki title by way of succession. In the end, five out of the eight were held to be Ariki title. She was not attempting to convert them. What was found certainly was that the Court in the first instance was in error in deciding that 3 family lands were Ariki. There was an attitude in this Court on the part of Pa Elizabeth that the Court in the past and the Ui Rangatira had failed her and her siblings. But everyone must be prepared to accept the decision of those who have authority and to whom an appeal is made and who have the right and duty to make the decision. A decision does not always go the way you want it.

[15] The crux of this case is who or what is the kopu ariki.

There was a proposal made by way of a Preliminary point at the beginning of this hearing by Mrs Browne that I should deal with that matter alone but the applicant wished to proceed with the whole matter to deal with the details of the merits of the application and the justification for the removal of Marie and I acquiesced in that matter.

[16] There are two aspects to the crux of this case: the constitution of the kopu ariki and who has the right of removal and the right of appointment. As I have said the Court is to determine who of the two claimants is entitled to the title of Ariki and not to remove or to appoint anybody. There is no law except custom.

[17] The claim of Pa Elizabeth as to the kopu ariki is as set out in Mr George's final submissions and I paraphrase these, I hope correctly, that there is agreement, a unanimity was the word he used, that the children of Pa Terito are kopu ariki but not the only ones as the kopu ariki includes the Rangatiras of Pa and the direct descendants of the three wives of pa Taputapuatea. But it is claimed that the children of Pa Terito should be treated as the first among equals as the superior part of the kopu as a whole with the right to remove and appoint. For the respondent the claim is that the kopu ariki is the whole family descended from the three wives, although now there are only two lines surviving, and that kopu ariki as a whole is represented by the Ui Rangatira.

[18] Custom is not like enactments or statutes which are written down. It is to be drawn, elicited from evidence of those who can say from their memory and from what they have been told, what has been done in the past, how members of the tribe have acted in the past. Frequently it will be from oral evidence, but it can also be written, recorded or gathered from written and oral evidence.

[19] There has been a considerable amount of evidence about the appointment of Rangatira and of Mataiapo. I distinguish the status and the Position and the election of those. It seems to me that the Rangatira, and the Mataiapo represent one part of the family or whole tribe whereas the Ariki and the status of the Ariki is to represent and to be the head of the whole of the tribe.

[20] In the distant past, various succession to the Ariki title, has taken place by it seems the force or mana of the Pa Ariki of the family in the appointment for example of Mere Pa. Mere Pa arranged or enforced the appointment of Maretu, not a person of the blood of Pa and an adopted child, but by her mana and her status she had Maretu appointed.

It seems that even Pa Terito appointed in 1924, was brought in to the status through the actions of Tupe Short. It is to be observed however that the correspondence and applications made in 1924, which have been exhibited to me, indicate that at least on that occasion that the Ui Rangatira took control and confirmed afterwards the appointment. In those cases it seems that the Ui Rangatira was side stepped. What it may well be, and I am inclined to think that that only shows some particular recognition of the ability of Pa and the mana of the Ui Rangatira but on the other hand the side stepping of that by those who had greater power to carry the matter through.

[21] In the case of Pa Marie's appointment in 1990, that was given a full consideration by the Ui Rangatira. There was at that time other claimants. The Rangatira did not just act as a rubber stamp but considered the matter and went along in the end with the decision of the family.

[22] An important part of the evidence of the custom in this case, is the reports of the House of Ariki and the Koutu Nui which were brought together over a number of years and which had been subject to lengthy consideration by the members of these bodies. There was a very clear consistent thread in those reports that the election of the Ariki is by the kopu ariki and that the kopu ariki is the family which comes from the common ancestor and that common ancestor is the ancient ancestor who was the source of the land, in the words of the report, from whom the children have descended. That is not the immediate ascendant, but the ancient ascendant, and in this case Pa Taputapuatea and the families of his three wives. There is also a consistent theme in those reports that the Ui Rangatira as representative of the kopu ariki make the decision.

[23] That evidence is supported by the observations of the Court in a number of cases which have been decided over the years. I refer in particular to the Tinomana Ariki Title Land Appellate Court decision of 19^th June 1976 and that of Kainuku Ariki decision, of the Court of Appeal on the 19^th November 1991 the Tinomana Ariki title decision of the Court of Appeal on 8^th August 1994 and the Makea Nui Title decision of 18^th September 1995. Again there is a common thread which approves of and is consistent with the decisions of the House of Ariki and the Koutu Nui and their reports.

[24] Removal of an Ariki appears to be an unprecedented occurrence. There is no evidence before me in spite of researches and the knowledge of the witnesses of any previous removal not just out of the Pa family, but out of any tribe. Clearly that is a matter of extreme seriousness, a matter which requires very careful consideration and needs in my view to be based and grounded upon what can only be classified as grave misconduct. In the reports that I have mentioned, the question of removal is considered and recognized in the case of conduct described as sins and particularized in the reports.

[25] The case for the applicant, while it accepts these reports that I have mentioned, is based immediately on the assertions in evidence of Pa Elizabeth and her family, on the result of the meeting of the Mataiapo in April and other evidence given before me by those versed in custom and in particular in the custom of investitures. Pa Elizabeth has claimed that she has received tutoring, but when questioned about this it appeared that this was from a number of people who had given advice. It did not appear to be any lengthy course of tutoring or education in the customs of the tribe.

[26] It is necessary to observe, as I have already noted, that a number of the family, in fact nearly all of them have spent a large part of their lives overseas. To that extent I must discount their asserted knowledge of customs. The Mataiapo meeting in April is claimed to provide a majority support for the prerogative of the issue of Pa Terito to make the decision as to removal and replacement. I do not think that that goes as far as that. That meeting was attended by only part of the Mataiapo group. It includes Mataiapo who are not part of the Pa family. When I analyze the minutes of that meeting, there was a reluctance on the part of a number to make any decision at all. Only one or two gave what could be said to be a clear go ahead to Pa Elizabeth. Even those who were prepared to say that the kopu ariki was the family from the womb of Pa Terito, there was an acceptance that this would also depend on the context. Some who gave evidence by affidavit were not called to be cross-examined, and so their evidence unchallenged is of less significance and importance than if they had come forward and given the evidence and been subject to challenge on that. That refers particularly to Papa Tangaroa Kainuku and some others.

[27] Having considered all the matters before me, and what can be described as the wealth of authority from the Court and from the deliberations and the writings of the House of Ariki and the Koutu Nui, I am satisfied that the kopu ariki in the context of this case, is not just the family of Pa Terito or any one family, but the family of all of the descendants of the common ancestor, Pa Taputapuatea. I am satisfied that the kopu ariki in matters of removal and appointment is represented by the Ui Rangatira.

[28] It is necessary in every case of appointment that someone is to be put forward as a candidate, chosen by the last Pa perhaps as in Maretu's case or chosen by the family as in Pa Marie's case or put forward perhaps as an independent candidate, as was the case in the Pa Marie's election or in the time before her election. But the choice, the election is by the kopu ariki and that is the Ui Rangatira. The Pa Ariki represents not just the immediate family but the whole tribe of Pa. In logic it must be wrong that only one part of the Pa can appoint and even more so, remove an Ariki. The family of Pa Terito in my judgment has no additional power or strength only the right among themselves to choose one of their number.

[29] Reference has been made to what has been described as the oral will of Pa Terito by which she said on a number of occasions, words to the effect that until all nine of her children died, they should always be the Ariki. Whether or not that has any particular significance is beside the point in this case. Because it is not in fact an issue, the only persons involved at this stage, have been members of the family.

[30] I should say something about the question of behaviour, the justification as it has been presented of the removal of Pa Marie. This is pre-eminently a matter for decision by the tribe and that means by the Ui Rangatira who represent the families of the tribe. It is a decision that has to be made in the 21^st century and bad behavior of a sexual nature, for example, may not be treated as a sin as it might have been in the past. It is not as in a Criminal Court of Law, a matter of conviction of a crime. There are matters as described in the House of Ariki reports, which are crimes: murder and, incest are two of those. But those clearly are matters which are contrary to all laws at all times, especially for those who believe in God and under the Bible scriptures.

For some reason the phrase cohabiting was introduced in place of the word adultery it seems, in the reports and writings of the Koutu Nui and the House of Ariki. It is not clear why that was done or what it means. As I observed during the hearing cohabiting takes place between married people and there can be nothing sinful presumably in that.

[31] Reference has been made as bad behaviour, that Pa Marie has not shared with her family any of the proceeds of benefits of Ariki or other land. Ariki land is a special situation. It is in the title solely of the person who holds the Ariki title. It is, according to the writings of the Koutu Nui and the House of Ariki for the upkeep of the status and mana and the general welfare of the Ariki. The person who holds the title, must be a guardian, a tiaki, of the title for the whole family and for the future Ariki and the future members, the descendants to come. If there is any trust involved, then it is not a trust just for the immediate family, her siblings or his siblings but for the whole of the family.

[32] There is reference also to other bad behaviour in mistreatment, ill treatment of the rest of the family. Evidence was given that at least at an earlier stage the family had friendly and happy relations. Recourse to Court in 1996 and more recent actions against Pa Marie must necessarily cause some concern and it is difficult to ignore such matters and continue happy relations. It would take extraordinary detachment to put aside challenges of one's status and rights by other members of the family and yet treat them as if nothing had happened. The important thing on this aspect of the matter is that in face of the conflict between the family, first, Mataiapo and Ui Rangatira in meetings have continued their support of Pa Marie. It may be that there has never been a full hearing of the complaints such as took place in this courtroom, but I cannot believe that in this community in 2002 and 2004 after what had gone on, the members of the Rangatira and the Mataiapo as a whole were not aware of the behavior of Pa Marie. One of the matters is a tattoo which is visible at all times on her hand. Her relationship with a person of some prominence in Rarotonga was certainly known to a number of people. The Ui Rangatira and the Mataiapo have spoken and it would be bold indeed for this Court to say that the behaviour was such, in spite of the decision of those parts of the family, as to justify removal.

[33] A challenge has been made as to the investiture ceremony of Pa Elizabeth. I am not prepared to pronounce upon that. That must be a matter for decision by the Kopu Ariki. I observe that an investiture is not it seems vital to the confirmation or the continued status of an Ariki. So the absence of such a ceremony is not fatal. Equally, the existence or the occurrence of such a ceremony could not be determinative without a proper election by the Kopu Ariki represented by the Ui Rangatira. I do find on the evidence that is given before me that the investiture of Pa Elizabeth did not take place on the traditional Pa marae and it was not conducted or attended by all those who would traditionally have done so.

[34] I have already repeated and endorsed the hope for conciliation and peace in this family. It needs a gesture, a conciliatory approach to be made. Some magnanimity, some swallowing of pride and humbling of the parties to try to get together and while a number of the family are here, this might be an opportunity in spite of this case to make that approach.

[35] The determination of this Court is that Tepaeru Teariki Upokotini Ariki has the right to hold office as Pa Ariki. Kairangi Elizabeth does not have the right to hold the title. I will reserve costs.

CHIEF JUSTICE