In re an application for succession to Occupation Right by Rimunui [2010] CKHC 31; 189 of 2009 (12 October 2010)

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

APPLICATION 189/2009

IN THE MATTER of the land ENUAKURA SECTION 34A2 AMURI, AITUTAKI

AND

IN THE MATTER of an application for succession to Occupation Right by KATHRINE RIMUNUI
Applicant

Date of Hearing: 9 October 2009

Appearances: Kathleen Marsters, appearing on behalf of Applicant (by Power of Attorney)

Judgment: 12 October 2010

JUDGMENT OF P SAVAGE J

[1] On 28 June 1984 Elizabeth Marsters was granted an Occupation Order pursuant to s 50 of the Cook Islands Amendment Act 1946.

[2] Elizabeth Marsters has died and her children have commendably decided who should occupy the site, namely Kathrine Rimunui. She makes application to succeed to the Occupation Right in favour of her mother, and has her siblings' support to that effect.

[3] Section 50 of the Cook Islands Amendment Act 1946 reads:

50. Land Court may make orders as to occupation of Native land – (1) In any case where [the Land Court] is satisfied that it is the wish of the majority of the owners of any Native land that that land or any part thereof should be occupied by any person or persons (being Natives or descendants of Natives), the Court may make an order accordingly granting the right of occupation of the land or part thereof to that person or those persons for such period and upon such terms and conditions as the Court thinks fit.

It is notable that the wish of the majority of the owners in relation to particular land for a particular person or persons is required, and that the Court may only make an Order in favour of that person or those persons.

[4] I have examined the Block file in relation to this land and it is clear that the consent was from the owners for Elizabeth to occupy the land, and the Order is drawn in those terms and on usual terms.

[5] The application now before me deals with the Occupation Order as if it were an interest in land which could pass on transfer or succession and therefore have, in effect, perpetual currency. This would be completely contrary to the spirit of the Cook Islands Act 1915, contrary to the consents given and contrary to the true intent of the Order made. The interest, if it can pass on succession, would be of longer currency than a lease and would become, in effect, a Vesting Order. That is not the intention of s 50 of the Cook Islands Amendment Act 1946, or the intent of the Order.

[6] The application is dismissed. All is not lost for the applicant who should consider obtaining a fresh majority of expression of wishes from the owners and apply for a fresh Occupation Order.

P Savage J