Browne v Munokoa and another

Under Cook Islands customary law, a non-blood adopted child may succeed to an adoptive parent’s Native land if the adoption has matured by the parent’s death. Maturation requires acceptance by the adoptive parents and the near family as if the child were natural, for succession purposes. Unanimous consent is unnecessary. Individual objections and numerical majorities are evidence whose weight depends on the relationship, involvement, influence and strength of the views expressed. Later objections cannot alter rights fixed at death. Statutory adoption carries the succession consequences attributed by custom, while restrictions noted on an adoption order have no legal effect, although they may be evidence of the adoptive parents’ attitude. Custom may vary between islands or tribes. Advisory reports of chiefly bodies are evidence of custom, not binding law; reform is a matter for the legislature.

Richard Browne, who had been adopted at the age of 16 by Richard and Kurai Browne, applied under the Cook Islands Act 1915 for a succession order concerning 19 parcels of Native freehold land. The adoption order contained a restriction concerning succession. The deceased’s nieces opposed the application, contending that a non-blood adoptee required unanimous family consent and that their opposition was fatal.

The High Court held that unanimous consent was required and that consent could be withheld after death. The Court of Appeal allowed the appeal, holding that the relevant question was whether the adoption had matured through family acceptance, assessed at death and without a unanimity requirement. The Privy Council considered the customary law, the House of Ariki and Koutu-Nui papers, the timing and unanimity issues, and an alleged defect of service.

The appeal was dismissed. The Board’s reasoning was as follows.

1. Nature and proof of custom. Customary law concerning land tenure and succession in the Cook Islands is part of the law of the territory, rather than a derogation from it. Evidence is therefore a practical aid, not a legal prerequisite. Courts may take judicial notice of custom where their experience and the records of the Land Court make it sufficiently notorious. Custom is not immutable, and consistent decisions of the Land Court and appellate courts have contributed to the development and stabilisation of the law.
2. Statutory adoption and maturation. Section 465 of the Cook Islands Act 1915 gives a statutory adoption the succession effect attributed by Native custom. The basic customary rule is that a non-blood adoptee may succeed if the adoption has become complete or mature. This requires acceptance by the adoptive parents and the near family, meaning those who would have succeeded without the adoption, that the child is to be treated as a natural child for succession purposes. Variants for particular islands or tribes may be proved.
3. Time and unanimity. Acceptance must have occurred by the deceased’s death. Under section 447, succession rights must be ascertainable at that point. Later objections or consent may provide evidence of the deceased’s lifetime circumstances, but cannot alter the accrued succession rights. Maturation involves a value judgment based on all the facts. A single veto, or even a numerical majority, is not automatically conclusive. The weight of a family member’s view depends on matters including closeness of relationship, involvement in the family, influence and the strength of the view expressed.
4. House of Ariki and Koutu-Nui papers. The reports were advisory recommendations and proposals for legislative reform, not binding opinions of the Aronga Mana. They could be strong evidence of custom, but the court could not judicially restore an earlier system of land law which had been altered by legislation and subsequent case law. That was a matter for the legislature.
5. Application and procedure. The respondent’s long-standing treatment as a family member, his participation in family land transactions and meetings, and the support of most represented family lines established maturation. The adoption-order restriction had no legal effect, although it could evidence the adoptive parents’ attitude at the time of adoption. The prescribed public notice under rule 332(3)(a) of the Code of Civil Procedure had been given; no additional service was required, and the appellants had in any event been heard.

1. Privy Council: dismissed the appeal from the Court of Appeal of the Cook Islands and advised that the respondent was entitled to succeed.
2. Court of Appeal of the Cook Islands: allowed the respondent’s appeal, held that maturation rather than unanimous consent governed succession by a non-blood adoptee, and found that maturation had occurred.
3. High Court (Land Division): held that unanimous family consent was required and that opposition after the deceased’s death was fatal to the succession claim.