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The Privy Council has given a ground breaking Opinion on the interpretation and application of indigenous customary law in former colonial territories.

The Privy Council has given a ground breaking Opinion on the interpretation and application of indigenous customary law in former colonial territories.

Browne v Munakoa & Anor [2018] UKPC 18 concerns the status of Māori traditions and customs under the Constitution of the Cook Islands, and the Cook Islands Act 1915 [NZ] (“the 1915 Act”). The question in the case was whether (and if so in what circumstances) an adopted child with no blood relationship to the adoptive parents could succeed to the parent’s interest in “Native freehold land” under section 465 of the 1915 Act. The Opinion of the Board was given by Lord Sumption.

The Privy Council held that the customary laws of the Cook Islands occupy a fundamentally different position in the legal system to that traditionally understood of English customs. In England, custom involves a derogation from the ordinary law of the land. But under Article 66A(3) of the Constitution of the Cook Islands, subject to statute, custom is the law of the land. Moreover, while English customs were deemed to be of immemorial antiquity, the customs and practices of Cook Islands Māori are not immutable, and are bound to develop with changing norms of social life.

The decision casts doubt on the correctness of the long-held rule in Angu v Attah [1916] UKPC 53 (PC), according to which the indigenous customs of territories subject to British colonial rule were treated as foreign law – and therefore a question of fact to be proved by evidence. In departing from that rule, the Board held that the Courts of the Cook Islands were in principle able to take judicial notice of their own law, including customary law. Any need for evidence in interpreting custom was purely practical, not conceptual or legal. The Courts were in principle entitled to draw on their own experience, partly personal and, in the case of the Lands Court of the Cook Islands, partly vicarious through the records of the Court itself.

Applying that approach the Board held that, as a matter of Cook Islands Māori custom, non-blood adoptees could succeed to an interest in Native freehold land where the adoption had “matured”, or had been “completed”, for the purposes of succession to land. This turned primarily on the attitudes of the near family. On the facts, maturation had been established, and the applicant was entitled to an order for succession under section 465 of the 1916 Act.

The full judgment is available here.

Tim Parker acted for the Appellants.

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