The Privy Council reports: an introduction

Ross Holmes, 26 October 2026.

The Judicial Committee of the Privy Council is the final court of appeal for the Cook Islands, as it is for several other Pacific states, and that places it at a meeting point of two systems of law. One is the property law of England and New Zealand, built on alienable title, limitation and finality. The other is the customary law of the Cook Islands, in which land is held through the generations by families and tribes, cannot be sold, and cannot be lost by the passage of time. Five Cook Islands appeals have reached the Board since 2012, and this page reports all five in full: the judgment as the Judicial Committee delivered it, with a headnote, the cases relied on, the result and an editorial note.

Descendants of Utanga and Arerangi Tumu v Descendants of Iopu Tumu [2012] UKPC 34 was the first. In 1912 a judge sitting alone struck five names out of Chief Judge Gudgeon’s 1905 orders for three lands at Takuvaine, “by consent”, at the request of the head of the family. Ninety-seven years later the courts of the Cook Islands validated what he had done. The Board set the validation aside: the 1912 order was made without jurisdiction, consent could not confer jurisdiction or override a land law built to protect the people against their chiefs, and lapse of time weighs little where land is inalienable and nothing passes by prescription. What made the restoration of a 1905 title possible after so long was the appellants’ undertaking to respect the existing occupations of those who had built and lived on the land in good faith.

Baudinet v Tavioni [2012] UKPC 35, decided the same day, is the counterweight. The Ngāti Raina sought to restore to the 1903 order for Tuarea Nui section 40 the words “a life interest only no power of devise”, written in the clerk’s minute and crossed out. The Board held, for the appellant, that the slip rule reaches orders on investigation of title and that the failed applications of 1937 and 1950 were no bar; but a majority held that no slip had been proved and that, after a century, the discretion would not be exercised in favour of a family outside the Makea, for whose protection against their own Ariki the words had been written. Lady Hale and Lord Walker would have found a slip, on the strength of Chief Judge Gudgeon’s declared policy that an ariki took no more than a life interest, and would have had the claim heard with the pending dispute between the Makea Ariki and the Makea family.

Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 is a constitutional case and not a land case, but it changed the law for every constitutional question in the Cook Islands. The Board held that a challenge under the Constitution is decided by a proper proportionality analysis, not by the test of “arbitrariness” the Court of Appeal had taken from Clarke v Karika in 1985; it upheld the compulsory national superannuation scheme and struck down the section that forfeited departing migrant workers’ employer contributions.

Browne v Munokoa [2018] UKPC 18 is the leading authority on how custom is found. The Board held that native custom concerning land tenure and succession is not a derogation from the law of the land but, subject to statute, the law of the land itself; that the decisions of the Land Court over its century are the starting point for finding it; and that custom is not immutable. On the succession of an adopted child not of the blood it confirmed Chief Judge Morgan’s account of the custom in the first Emma case of 1968, and it held that the House of Ariki and Koutu Nui papers of the 1970s were proposals for law reform and not statements of the law.

Framhein v Attorney General of the Cook Islands [2022] UKPC 4 is the Board’s fullest treatment of Article 66A of the Constitution. The signed statements of the Aronga Mana of Rarotonga, Aitutaki and Atiu were their opinion of the custom, and the courts below should have accepted them as such; but the custom of the Aronga Mana as guardians of the kai moana was inconsistent with the Marine Resources Act 2005, and to that extent was no longer part of the law. A custom yields to an enactment, the Board held, only where and to the extent that the two are inconsistent. The Board also reversed the Court of Appeal on the environmental questions: no environmental impact assessment was required by international or domestic law, and the precautionary approach had been applied.

Read together, the five judgments establish the framework within which every question of customary land and custom in the Cook Islands is now decided. Custom is law, found from the people who hold it and from the court’s own record where that record rests on evidence; it gives way to an enactment only so far as the two cannot stand together; time does not cure what the land law forbids; and a court will not reopen a century-old record on ambiguous evidence. What they do not decide is the content of the custom of any island on any point. For the warning that follows from that, and for the New Zealand cases that bear on it, see the Kōrero article Custom before the Privy Council: what five Cook Islands appeals decide, and what they do not.

The judgments are Crown copyright of the United Kingdom and are reproduced under the Open Government Licence v3.0. The headnotes and editorial notes are mine.

Ross Holmes LLB (Hons), Director, Ross Holmes Virtual Lawyers Limited; a solicitor of the High Courts of the Cook Islands and New Zealand. I appeared for the appellants in Tumu v Tumu and Baudinet v Tavioni.