The challenges of legal pluralism in the cook Islands and beyond: An insight from hunt and tupou & ors v miguel, Cook Islands court of appeal, 19 February 2016

Abstract

The Cook Islands Court of Appeal handed down an important decision in early 2016 dealing with the issue of whether the state or a customary authority had the right to decide entitlement to a major customary title in the Cook Islands. As such, the case raises an issue that continues to be highly contested in many Pacific island nations: the limits of adjudicatory responsibility of customary authorities within the nation’s constitutional framework. That such issues continue to arise in the Cook Islands, even fifty years after internal self- governance, is a testimony to the complexity of the task of determining the role of custom, customary leaders and institutions within an introduced legal and governance framework. This extended case-note article discusses the judgment and its main findings, and then draws out some of the case’s broader implications for questions for plural legal orders. Principally amongst these are the issues of conceiving of customary law as a comprised of separable rules and processes, and also questions of the limit and type of court oversight of decision-making by customary authorities. This latter issue is very relevant given the prevalence of initiatives to create custom-based registers (for example of traditional knowledge in the Cook islands and Fiji and of by-laws in Samoa) and also to codify custom through by-laws and local constitutions. Show more