Dear Editor, I would like to respond to Te Tuhi Kelly’s recent letter/article in the Cook Islands News headed “Traditional title dispute’.

It appears that he is against title disputes going to our Courts for adjudication with the implication that the western legal system has taken over on matters of our culture and traditions. I don’t blame him for taking that view and I am sure most people will side with his view. However, one needs to look at the alternatives and the reality – what other options are there other than going to court?

In the old pre-Christian days, it was the spear and the stone axes and we had tribal wars and most of the people live in the mountains and foothills for protection. With the advent of Christianity and Imperial (white man’s) laws we have the Courts to decide who wins – no more spears and no more clubs. And everyone has a right to have their say in court and in the end a decision is made and if you don’t like the decision, you appeal and if you don’t like the Appellate Court decision you appeal all the way to the Privy Council in London. And guess what? The decisions are normally based on our own Maori Custom because the Cook Islands Act says so. 

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Letter: Ancient custom vs. western law

Letter: Traditional title dispute

Each tribe have customs regarding their tribal leadership – who is eligible to hold the title, how is he or she elected. And no one has yet defined what that Maori custom is. It’s too big a job and no one wants to do it. We have no law which says that these titles have to be elected by the Courts. We go to the courts because we cannot get agreement amongst the tribe/family/kopu as to who should hold the title.  There is no parliamentary law setting out how titles are to be elected. All the law says is that it is to be done by Maori Custom. The poor Judge will then try and drag out from the applicants in Court what they understand to be their tribal/family rule or custom in relating to the election of the new title holder and then the Courts will try and apply it to the facts before it as presented by the opposing parties in Court. 

Let’s be clear, no Court likes doing this kind of cases because there is no written law or rule so they have to work hard to try and make sense from applications before it in order to make a good decision based on both facts and applying it to what they decide is the custom for the election of that particular title. This is not Western Jurisprudence as Te Tuhi Kelly tries to make out – rather it is the result of the failure of our Parliament and or the House of Ariki to do the donkey work of defining our Maori custom and putting it in written form. I have written some rules or guidelines for a couple of families and they are following it with the ability to add or amend or modernise it as they see fit.

At the end of the day, it is up to the Tribe/Family/Kopu to decide what is the best custom/rule for them to follow. Then have it written down and ensure that all the branches are in agreement and then that becomes your law for the election of your tribal title holders and if someone breaks it, the Courts are more likely to follow the set of rules which the family has agreed upon.

I Short