Heirs to the ocean and all that is in it; the difficulty of gaining recognition for customary law: William Framheim v AG of the Cook Islands [2022] UKPC 4

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I hope to return to this case in due course as it highlights the difficulties that indigenous populations can experience in persuading common law courts about what amounts to law. It also highlights the difficulties that arise when a state’s constitution states that it recognises the customs and practices of a particular group but then the state’s parliament fails to set out the means for making that recognition work in practice.

At this stage one can simply sit back and gaze in wonder at a very old philosophy (circa 1,000 bce) speaking of the link between the environment and the humans who live in it.

Here I set out the evidence received by the Court, a fuller extract case extract and comment will appear in due course.

Heirs to the ocean and all that is in it

  1. What emerges clearly from the evidence filed by Mr Framhein and what the Board fully recognises is the deep and sincere concern that many of the Aronga Mana express at the extension of purse seine fishing. Pa Tepaeru Teariki Upokotini Marie Ariki who is a member of the Aronga Mana of Takitumu vaka on the island of Rarotonga expressed this movingly in her evidence:

“ … our children and grandchildren are heirs to the ocean and all that is in it, just as much as to our land. They should be able to set out confidently on the vaka of our ancestors upon an ocean that is filled with the fish that I have seen with my own eyes, be able to catch that fish as we have caught it.

I fear for them having to sail out over an ocean emptied of fish – our waters deserted of the rich life that has been our heritage for hundreds of years. [16]

We are guardians of that abundance; I call on Government to obey its own legislation. I am sure, in their heart, Cabinet know that these purse seiners will seriously damage our marine resources – but because it will happen beyond the horizon, and not next to Rarotonga, they think it does not matter. [17]

I challenge them to do as I have done; climb aboard a voyaging canoe, take a long ocean voyage; come face to face with our ocean and its marine resources. See it with your own eyes, see it as our ancestors saw it – and then explain to our young people how they can justify allowing this purse seining to proceed.” [18]

This undeniable truth

Manarangi Tutai O Pore Ariki said this,
“27. Listening to old people when I was growing up, and from reading over the years, I understand that custom has changed over the years, that some customs have died out and others grown up. However, all my life custom has encouraged respect for nature and sustainable living. I do not think the Crown could point to anything different.

The reasons for this are simple – and my understanding as a woman with both Pukapukan and Aitutakian blood confirms this. The resources of a small island (especially an atoll) are limited and precious. The ability of a small island to support the people on it is limited. …

And so I state with confidence that our customs and usages were wrapped around, this basic, fundamental, reality – on atolls especially, human existence depended on this undeniable truth – if you eat everything, take everything … then you starve and die.”