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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
Customary Law in the Pacific: A Cautionary Tale
Shani McMullan
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2023
Acknowledgements
First thanks go to Dr Lili Song, for your time, words of support, and for bringing law in the Pacific to Otago students. Your composure and hard work is inspiring - all the best for your time at Harvard next year.
Thanks are also due to Ben Nevell, for helping me during a period of great stress in my studies. Thank you for what you do for the law student community.
Thank you to the Hoffmans – I wouldn’t be here without you guys. Special thanks to Merlin, without whom I would not have got into first year law, and Nikita, for your kindness, strength, and for being a lifeline in troubling times.
Thank you to all the communities who have supported me here at Otago: Arana, Generation Vote, the law community and especially my PILSA family.
#PILSATILIDIE
Thank you to all my friends: to my Newlands crew, thank you for being my forever friends. To the incredible friends I have met here at Otago, thank you for all you have taught me and for giving me a beautiful 5 years in Dunedin.
Thank you to my family for being my foundation, for always supporting me, and for reminding me that I am loved. Special thanks to my parents (all 4 of you!) for everything you do for me and for being the smartest and hardest working people I know.
Finally, thank you to Gian, for your love, support and patience. I could not have done it without you!
Table of Contents
Introduction
The accommodation of indigenous laws in a colonial state legal system is an issue of some complexity. Recent years have seen a global trend towards state recognition of indigenous laws.1 However, differences in customary and colonial systems make integration challenging.2 Many plurally legal countries today find themselves grappling with how to give appropriate expression to indigenous laws.
Aotearoa New Zealand is no exception to this trend. The recent case of Ellis v R marks a milestone in jurisprudential development as a pronouncement that tikanga Māori is a source of law in Aotearoa New Zealand.3 However, the role that tikanga will take on in Aotearoa’s legal system remains unclear. The question of when and how tikanga will be considered has been left open by the court, to be worked out over time in the common law tradition.4
The Pacific courts have been grappling with the application of customary laws within the framework of a plural legal system for some time. Most Pacific nations feature colonial legal systems, but the wave of independence that swept the region in the latter half of the 20th century saw an assertion that indigenous customary laws would play an important part in the newly independent state systems. However, despite the prominence afforded to it at independence, customary law has failed to take the place envisaged for it.
This dissertation presents an outline as to some of the reasons why this failure has occurred. In particular, I argue an operative reason has been the failure to give thorough and specific consideration to the ways in which customary law will be integrated into colonial legal systems, and the lack of guidance given to judges on this matter. In presenting this argument, I have two aims. The first is to outline examples from the Pacific context as a cautionary tale,
1 In the Pacific context, see Don E. Paterson “South Pacific Customary Law and Common Law: Their Interrelationship” (1995) 21(2) Commonwealth Law Bulletin 660 for an outline of the reassertion of Pacific customary laws in the state; in the Aotearoa New Zealand context see Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [102] – [110] for an outline of the resurgence of tikanga in state law; see also Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] 1 New Zealand Law Review 1 at 38 citing United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/ Res/61/295 (2007) [UNDRIP] as the impetus for global recognition.
2 Campbell McLachlan “State Recognition of Customary Law in the South Pacific” (Thesis, University of London, 1988) chap 1.
3 Ellis v R (Continuance), above n 1, at [126].
4 Ellis v R, above n 1, at [127].
to assist Aotearoa New Zealand as it enters an important developmental stage in the recognition of tikanga as a source of law. As a subsidiary aim, I posit that the Aotearoa New Zealand and Pacific experiences are comparable and that research should be undertaken between these contexts to aid the regional development of recognition of indigenous laws.
Chapter one provides a background to the respective contexts. I introduce issues identified in Aotearoa New Zealand as a starting point for my analysis, before outlining the case for looking to the Pacific. Chapter two provides an overview of customary law in the Pacific, outlining some spheres of customary law operation and context surrounding its inhibited development. I focus on the role of the judiciary as a barrier to development. Chapters three and four aim to demonstrate this claim with examples where judges have been confused or constrained as to how customary law should be applied and ascertained. Finally, Chapter five draws general conclusions, before providing some initial recommendations as to how Aotearoa New Zealand can learn from the Pacific experience.
Chapter One: Background
This chapter introduces the challenge of incorporating indigenous law into the state legal system in the New Zealand context as the starting point for my enquiry, before outlining the case for comparative study into the Pacific.
A. The New Zealand Context
Colonial expansion that occurred in the second millennium was usually accompanied by the assumption that the coloniser’s laws would become the exclusive source of authority in the newly acquired territory.5 This was a bold assumption to make. Indigenous communities living in those places already had their own systems of normative values and standards governing their behaviour. In many parts of the world, these normative standards have acquired a general appellation as ‘custom’ or ‘customary laws.’6
Despite colonial efforts, indigenous customs have endured as a ‘persistent fact’ in many post- colonial nations.7 Many post-colonial states today can thus be described as ‘legally plural’, a term referring to a situation where coexisting sets of norms are regarded as legal by actors in the context of the social field in question.8 The continued existence of custom has led to calls for greater recognition of it within the legal system.9 But this is no simple task. Even where a state recognises custom as a source of law, differences in colonial systems and custom pose difficulties in giving practical effect to recognition. Positivist laws issued by colonial states are generally written, certain and binding; in comparison, customs are usually unwritten and
5 McLachlan, above n 2, at 153; see John Griffiths "What Is Legal Pluralism" (1986) 24 Journal of Legal Pluralism and Unofficial Law 1 for an outline of legal centralist theory generally.
6 In the Pacific context see Jennifer Corrin Care, and Vergil Narokobi Introduction to South Pacific Law (5th ed, Intersentia, Cambridge, 2022) at 53 for a definition of ‘custom’ and ‘customary law.’ In the African context see Antony Allot “The Judicial Ascertainment of Customary Laws in British Africa” (1957) 20 M L R 244. In the New Zealand context, see Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023) at 135, where it is noted that tikanga is not synonymous with custom. The terms ‘customary law’ and ‘tikanga as custom’ are used there only where tikanga has been given official recognition in common law.
7 McLachlan, above n 2, at 315.
8 William Twining "Legal Pluralism 101" in Brian Tamanaha, Caroline Sage and Michael Woolcock (eds) Legal Pluralism and Development: Scholars and Practitioners in Dialogue Cambridge University Press, Cambridge, 2012) 112 at 114–115.
9 See McLachlan, above n 4, at 28 where he states that the recognition of indigenous customs is a ‘requirement of justice’; see also Coates, above n 1, for an outline of the case for recognition in Aotearoa New Zealand.
fluid.10 Reconciling these two legal systems has proved to be an undertaking of complexity around the world.
Aotearoa New Zealand is currently facing such an undertaking. Tikanga Māori is the first law of Aotearoa New Zealand, but has historically been afforded limited state recognition.11 However, recent years have seen a change in trend towards a heightened recognition of tikanga as a source of law.12 In the recent case of Ellis v R, the Supreme Court used tikanga values to adapt the common law position that legal proceedings died with the plaintiff.13 A particularly striking feature of the case was that it had no prima facie Māori aspect; Mr Ellis was a pākehā man. The Supreme Court’s decision is seen as a landmark decision affirming the stance that the courts have reached over years of jurisprudential development: that tikanga is a source of law of general application in Aotearoa New Zealand.14
The exact role that tikanga will take as a source of law going forward is unclear. The court noted that the law relating to the place of tikanga in the common law is in a state of development and transition.15 For example, in the course of their analysis the court abolished the historic colonial test in Public Trustee v Loasby stipulating requirements for the legal recognition of tikanga.16 This test had provided that only tikanga which were, among other things ‘reasonable’ and ‘a general custom of all Māori’ could be enforced by the courts.17 Though abolition of this test was desirable, the question of when and how tikanga will be recognised and considered is now completely open, and was left by the court as a matter to develop over time, on a case by case basis in accordance with the common law tradition.18
10 Erika J Techera “Legal Foundations for the Recognition of Customary Law in the Post-Colonial South Pacific” (2009) 12 Law and Anthropology: Current Legal Issues 218 at 219-220.
11 John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law 56.
12 Growing recognition has been reflected in case law: see, for example: Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291; GF v Comptroller of Customs [2023] NZEmpC 101.
13 At [146] per Glazebrook J and [228] per Winkelmann CJ.
14 At [106] per Glazebrook J, and at [172] – [176] per Winkelmann CJ.
15 At [82] and [116] per Glazebrook J.
16 The Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).
17 Loasby, above n 15, at 806. Customs were deemed unreasonable if they were contrary to principles at the “root” of the colonial legal system. Custom were also generally required to be certain, consistent, longstanding and not “repugnant to justice and morality”, nor contrary to principles at the “root” of the colonial legal system. See Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [124]–[127] per Glazebrook and Wild JJ.
18 Ellis, above n 2, at [127] per Glazebrook J.
In their discussion, the court noted particular areas of uncertainty.19 How will the relationship between tikanga and the common law be defined? How will the identity of the parties inform when tikanga is applied? What contexts will tikanga arise in, and how will the courts access information as to what the applicable tikanga is? For the purposes of this dissertation, two broad considerations emerge. The first is the role that tikanga will play in the common law as a source of law and the way it will be applied. I term this broad concern the application issue. The court also expressed that the way tikanga will be accessed by the courts will require careful consideration. New Zealand has historically approached ascertainment of tikanga as a question of fact,20 however the judges in Ellis expressed discomfort with this ‘foreign law’ approach to indigenous law.21 Pūkenga22 consulted in the case stressed that processes and practices of ascertainment must be used that preserve the integrity of tikanga as a system.23 Concerns relating to how tikanga will be ascertained by the courts I term the ascertainment issue.
The nation is at a pivotal point in its history regarding the recognition of tikanga. These questions represent uncharted territory which will the courts will have to answer in the years to come. Much work is needed going forward to consider how tikanga can most appropriately be incorporated into the common law of Aotearoa New Zealand.
B. The Case for Pacific Comparison.
An underlying premise of this dissertation is that comparative law research into the Pacific context is of value for Aotearoa New Zealand as the nation enters this pivotal developmental stage for tikanga. Comparative law analyses involve the comparison of foreign legal systems as a tool to guide and reflect on one’s own legal system, and can provide a source of inspiration for countries undertaking legal reform.24 A growing body of comparative
19 See [117] – [125] per Glazebrook J and [261] – 270] per Williams J.
20 See Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023) at 7.121, citing Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General [2020]
NZHC 3120 at [36]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021]
2 NZLR 1 at [47].
21 Ellis, above n 2 at [151] per Glazebrook J and at [273] per Williams J.
22 Tikanga experts.
23 See Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [53], as cited in Ellis v R, above n 2, at [53].
24 Edward J. Eberle “The Methodology of Comparative Law” (2011) 16(1) Symposium: Methodological Approaches to Comparative Law 51.
indigenous legal research has emerged in recent times discussing indigenous legal issues.25 However, most comparative research undertaken by Aotearoa New Zealand researchers has been directed towards jurisdictions such as Australia, Canada, or the United States.26 Very little attention has been paid to our Pacific neighbours.27
The small island states of the Oceania region are sometimes referred to in scholarship as the ‘South Pacific’ countries,28 but for the purposes of this dissertation I will refer to them as the ‘Pacific countries.’29 Most Pacific countries were colonised during the 19th century, receiving the legal systems of their respective colonial authorities. In the latter half of the 20th century, a wave of independence swept across the Pacific, with most countries gaining independence but retaining the transplanted colonial laws and legal systems.30 Throughout the region, this wave of independence was accompanied by a regionwide reassertion of indigenous identity and a desire for indigenous customary laws to play a central role in the legal systems of the newly independent states.31 Today, most Pacific countries recognise custom as a source of law to some degree, and the primacy afforded to it can be seen in Constitutions throughout the region.32
25 See for example Benjamen Franklen Gussen "A comparative analysis of constitutional recognition of aboriginal peoples" [2017] MelbULawRw 12; (2016) 40 Melb. UL Rev 867; Robert Miller, Robert and Olivia Stitz "The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery." (2021) 32 Duke J. Comp. & Int'l L 1.
26 See for example; Robert J Miller and Jacinta Ruru “An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand” (2008) 111 W Vir L Rev 849; John Chesterman "Indigenous Peoples' Rights in Australia, Canada, and New Zealand." (2000) 35(1) Australian Journal of Political Science 151. For a case example, see Takamore v Clarke, above n 17, at [183] and [312]. I also draw on personal experience in the University of Otago LLB, where the paper ‘Laws and Indigenous Peoples’ focussed on Australia, the United States and Canada.
27 Some research into the Pacific does exist, for example see Robert Joseph “Comparatively Speaking” (Te Mätähauraki Research Institute, Summary Paper for Objective 2, 2001); see also Te Aka Matua o te Ture | Law Commission Converging Currents (NZLC SP17, 2006) for an inquiry into the Pacific context, though very little comparison is drawn between the Pacific contexts and Aotearoa New Zealand.
28 See Corrin Care and Vergil Narokobi, above n 6; Converging Currents, above n 27.
29 This is largely due to the tendency in Aotearoa New Zealand to refer to the region as the ‘Pacific islands’ rather than the ‘South Pacific.’
30 See Paterson, above n 1, at 664 for an overview of the reassertion of customary laws at independence.
31 See Paterson, above n 1 at 664; Michael Ntumy “The Dream of a Melanesian Jurisprudence: The Purpose and Limits of Law Reform” in J Aleck and J Rannels (eds) in Custom at the Crossroads (Faculty of Law, University of Papua New Guinea, 1995) 7.
32 See for example the Constitution of Solomon Islands 1978 (Solomons), Preamble: “We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands”; Constitution of the Independent State of Papua New Guinea, Preamble: “We, the people of Papua New Guinea...acknowledge the worthy customs and traditional wisdoms of our people—which have come down to us from generation to generation.”
However, it is widely considered that customary law has not taken on the role envisaged by many of its proponents at independence.33 The reasons for this are complex, but as will be argued, stem largely from inherent differences between customary and common law systems, and the lack of guidance given to judges who are constrained by the frameworks and systems of the common law. The issue of how customary law is to be applied and incorporated within the framework of a colonial legal system has thus been one that has garnered much attention in Pacific case law and scholarship. There is extensive comparative research into the matter across the region,34 very little of which includes Aotearoa New Zealand.35
Aotearoa New Zealand shares historic and cultural ties with its Pacific neighbours. The original Māori settlers of Aotearoa New Zealand originated in Eastern Polynesia.36 Though there is great diversity of customary laws throughout the Oceania region, similarities can be seen between Pacific custom values (such as genealogy, dignity, leadership, reciprocity and humility and wisdom) and tikanga principles.37
As a result of colonisation, Aotearoa New Zealand and the Pacific countries are legally plural countries. They have Western legal systems and indigenous populations with their own systems of laws and values. Importantly, Aotearoa New Zealand and the Pacific countries
33 See Arnold Amet “Severing the Umbilical Cord from the Common Law” in J Aleck and J Rannels (ed) in Custom at the Crossroads (Faculty of Law, University of Papua New Guinea, 1995) 62 where he argues the idea of an indigenous jurisprudence had become simply “meaningless rhetoric or cliché”; Owen Jessep “The Elusive Role of Custom in the Underlying Law of Papua New Guinea” (1998) 1 MLLJ 26. Kenneth Brown “Customary Law in the Pacific: An Endangered Species?” (1999) 3 Journal of South Pacific Law 2; Miranda Forsyth “Beyond Case Law: Kastom and Courts in Vanuatu” (2004) 35 Wellington L Rev 427; Benedicta Rousseau “This is a Court of Law, not a Court of Morality: Kastom and custom in Vanuatu State Courts” [2008] JSPL 22; (2008) 12(2) Journal of South Pacific Law 15; Jennifer Corrin “Crossing the border from custom to contract: legal pluralism and Pacific Islands’ contract laws” (2021) 21(1) Oxford University Commonwealth Law Journal 73; Jennifer Corrin “Legal Scholarship and Pacific Islands Jurisprudence” (2021) CLJP 139.
34 There is an extensive literature on legal pluralism in the Pacific. See for example Forsyth, above n 33; Graeme Whimp Anthropology of Law in the Pacific Literature Review (Pacific Islands Information Insitute, 2016) for a comprehensive review of Pacific legal research, including comparative research; Jennifer Corrin “Customary land and the Language of the Common Law” (2008) 37(4) Common Law World Review 305; Sue Farran “Palm Tree Justice? The Role of Comparative Law in the South Pacific” (2009) 58 The International and Comparative Law Quarterly 181; Jennifer Corrin, “Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific” (2017) 48 Victoria University of Wellington Law Review 305; Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa Law Reform in Plural Societies (1st ed, Springer Cham, 2018).
35 For an exception to this see McLachlan, above n 2, for a comparative analysis of Pacific countries which includes Aotearoa New Zealand.
36 Michael Belgrave “Māori customary law: from extinguishment to enduring recognition” (unpublished paper for the Law Commission, 1996) at 5; and Richard Walter, Hallie Buckley, Chris Jacomb and Elizabeth Matisoo- Smith “Mass Migration and the Polynesian Settlement of New Zealand” (2017) 30 Journal of World Prehistory 351;
37 See Converging Currents, above n 27, 4.42 – 4.54 for discussion of the Pacific values; see See Hirini Moko Mead and Pou Temara Statement of tikanga, above n 23, for an outline of tikanga values.
have experienced a renaissance in the recognition of indigenous laws. In Aotearoa New Zealand, there are hopes that current developments signal a move to a unique jurisprudence incorporating both the common law and tikanga.38 The Pacific experienced a similar zealous assertion of customary laws, but this has not been fully realised. To best facilitate the development of tikanga going forward, Aotearoa New Zealand scholars should undertake comparative study into the Pacific to see why this has occurred.
Admittedly, there are differences between the contexts. Unlike Aotearoa New Zealand, no mass immigration of settler populations to the Pacific countries occurred. Indigenous populations remain the majority demographic, with custom as the day-to-day lived reality of Pacific populations.39 As is noted at the end of this Chapter, political impetus for recognition may differ between contexts, as does access to resources. But despite differences, I believe comparative study between the contexts is still of value given the recurring nature of issues regarding incorporation of indigenous laws into the common law, and given our geographic proximity and shared heritage and values.
I use the open questions of application and ascertainment outlined in Ellis as the framework for my discussion. I have chosen key examples from the Pacific context illustrating barriers to the application and ascertainment of customary laws. Though the Pacific has both common law and civil law countries, I focus on the common law jurisdictions of the Pacific in order to provide a more appropriate frame of reference for Aotearoa New Zealand.40 In particular, I have drawn on materials from the Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, Niue, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu and Western Samoa. General reference to ‘the Pacific countries’ includes all the common law
38 Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1; Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023).
39 Corrin Care and Vergil Narokobi, above n 6 at 53 -55; Converging Currents, above n 27, chap 4.
40 The common law jurisdictions of the Pacific are the Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu and Western Samoa. The French civil law countries of the Pacific are French Polynesia, New Caledonia, and Wallis Futuna. The legal rationale for recognition of customary law in the French system is slightly different: see on the French approach generally, Michael Hooker Legal Pluralism an introduction to colonial and neo-colonial laws (1st ed, Oxford : Clarendon Press, 1974) Chap IV; and, on the Pacific: Guy Powles and Mere Pulea Pacific Courts and Legal Systems (University of the South Pacific Clayton, Vic,Faculty of Law, Monash University 1988), Chaps 37 and 48.
jurisdictions of the Pacific, excluding Aotearoa New Zealand. Reference to the Oceania region generally includes Aotearoa New Zealand.
The accepted definition of ‘custom’ here encompasses the “values, principles and norms that members of a cultural community accept as establishing standards for appropriate conduct.”41 The term ‘customary law’ is often used to describe customs which are deemed to have become enforceable, either due to community practices or official recognition by the state.42 I do not attempt to draw a firm definition between the terms ‘custom’ and ‘customary law’ although ‘customary law’ will more often be used where a custom is given state recognition.
Finally, I note that this dissertation takes an insider approach to the integration of customary laws. This approach presupposes that integration of custom within the state system is desirable, and proposes ways in which current statutory or common law approaches can be improved.43 In Aotearoa New Zealand, there are varying perspectives as to the appropriateness of this. Many critics argue that integration is not appropriate.44 The general Pacific approach has been towards integration, and short of major constitutional change, it is considered that Aotearoa New Zealand will most likely follow this approach.45 Thus, this dissertation will work within the insider perspective without consideration of its appropriateness, although I may touch on some issues adjacent to that debate.
41 Techera, above n 10, at 219, citing Converging Currents, above n 27 at 4.26.
42 Corrin Care and Narokobi, above n 6 at 53. In Aotearoa New Zealand, ‘tikanga’ and ‘custom’ are not synonymous, but the term ‘customary law’ has been applied to tikanga which has been recognised in the common law: see He Poutama (NZLC SP24), above n 6 at 5.4
43 Jean Zorn and Jennifer Corrin Care Proving Customary Law in the Common Law Courts of the South Pacific
(Occasional Paper 2, British Institute of International and Comparative Law, London, 2002) at 68.
44 See for example Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134; Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7.
45 Dawson, above n 11; this seems to be the approach the courts are taking taken as confirmed in Ellis, above n 1.
Chapter Two: Customary Law in the Pacific
This chapter outlines the scope of customary law operation in the Pacific legal context, before discussing the role of the courts in the development (or lack thereof) of a customary jurisprudence.
A. Spheres of Operation
As noted, most Pacific countries recognise custom as a source of law, although to varying degrees.46 In Kiribati and Nauru the legislature specifies certain civil and criminal matters to be regulated by custom.47 In Niue and Fiji, customary law is only recognised in relation to customary land.48 However in the Cook Islands, Federated States of Micronesia, Kiribati, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tuvalu and Vanuatu, custom is given recognition as a source of law of general application.49
Custom has particular relevance in certain areas of law. The area in which it has most prominence is customary land.50 All countries of the region except Tonga make provision for custom to be used as the basis for determining land rights.51 Family law is another prominent area where custom is relevant. Recognition of customary practices is reflected in Pacific legislation with relation to marriages, divorce, and guardianship of children, and customary
46 Tonga is the only country that does not recognise custom as an official source of law. The Act of the Constitution (Amendment) Bill 2020 (Tonga) has been passed inserting a new clause integrating the Tongan culture, traditions and customary law into the Courts and Tribunal’s court systems, but this change has not been signed off by King Tupou VI to become law.
47 For example, customary law in Nauru is only recognised in relation to land, property, and matters affecting Nauruans only: Custom and Adopted Laws Act 1971 (Nauru) s 3. In Kiribati and Tuvalu, legislation specifies particular instances in criminal and civil proceedings where the courts are required to take custom into account: see Laws of Kiribati Act 1989, sch 1, paras 3-4; Laws of Tuvalu Act 2008, sch 1, paras 3-4.
48 Niue Amendment Act (No 2) 1968 (NZ), s 23; iTaukei Lands Act 1905, s 3.
49 Constitution of the Cook Islands 1964, art 66A(3); Laws of Kiribati Act 1989, s 3; Custom and Adopted Laws Act 1971, s 3; Constitution of the Republic of Palau 1979 art 5(2); Constitution of Papua New Guinea 1975, s 9(f); Underlying Law Act 2000, s 3(1)(a) (Papua New Guinea); Constitution of Samoa, art 101(2); Constitution of Solomon Islands 1978, sch 3, para 3; Constitution of Tokelau 2006, s 12(4); Laws of Tuvalu Act, s 4(2); Constitution of Vanuatu 1980, art 47(1). Note in the Federated States of Micronesia custom is not given legislative recognition but has been recognised as a source of law in case law FSM v Mudong, 1 FSM R. 135, 140.
50 Land is extremely important to Pacific peoples. See Sue Farran “South Pacific Land Law: Some Regional
Challenges, Cases and Developments” (2001) 32 Victoria U. Wellington L. Rev 953 where it is suggested that in Vanuatu "[land] represents life, materially and spiritually."
51 Cook Islands Act 1915 (NZ), ss 421, 422; iTaukei Lands Act 1905 (Fiji), s 3; Magistrates Courts Ordinance, cap 52 (Kiribati), s 58; Custom and Adopted Laws Act 1971 (Nauru), s 3; Niue Amendment Act 1968 (NZ), ss 22, 23; Constitution of Samoa, Art 101(2); Land and Titles Act, Cap 133 (Solomon Islands), s 239; Tokelau Amendment Act 1967 (NZ), s 20; Native Lands Act, Cap 46.20 (Tuvalu), s 12; Constitution of Vanuatu, arts 73- 81.
disputes pertaining to family law often comes before the courts.52 Given the traditional ‘governmental’ nature of custom, it also has relevance in the public law sphere, as many states provide for the recognition the authority of chiefs within certain forums.53 Outside of these areas, express legislative recognition of custom is more limited. Customary practices are sometimes recognised in environmental legislation, for example regarding customary fishing rights or the governance of marine resources.54 In the criminal law sphere, recognition of customary laws is somewhat limited due to extensive codification in the area but is often considered at sentencing as a mitigating effect or when deciding compensation.55
In countries where custom is recognised as a general source of general law, courts are in theory able to draw on and enforce customary laws regardless of express recognition. An ambition held by many proponents of custom was that custom could expand outside its normal spheres of operation with the goal of a development of a unique national or regional jurisprudence. Although views differed on the exact form this would take, it was generally considered thought this new jurisprudence would be founded on customary principles with the potential to blend the best elements of both custom and common law legal systems, creating a culturally relevant and just system.56
This has occurred in limited instances. For example, a developing question is the extent to which custom may be relevant to contract law, as many colonial contractual doctrines do not
52 For example in Papua New Guinea, Solomon Islands and Vanuatu there is statutory recognition of customary marriage: Marriage Act, Cap 280 (PNG), s 3; Islanders Marriage Act. Cap 171 (Solomons), s 18; Marriage Act, Cap 60, s 10 (Vanuatu). See Farran, “Palm Tree Justice? The Role of Comparative Law in the South Pacific”, above n 34, for a comparative analysis of customary regimes in the family arena.
53 For example, see Constitution of the Federated States of Micronesia, art 5(1) “nothing in this Constitution takes away a role or function of a traditional leader as recognized by custom and tradition, or prevents a traditional leader from being recognized, honored, and given formal or functional roles at any level of government as may be prescribed by this Constitution or by statute.” See Guy Powles “Common law at Bay?” (1997) 21 Journal of Pacific Studies 61 at 3 for a discussion of the public element of customary law.
54 Janne Rohe, Hugh Govan, Achim Schlüter, and Sebastian Ferse “A legal pluralism perspective on coastal fisheries governance in two Pacific Island countries” (2019) 100 Marine Policy 90.
55 See Tess Cain Newton “Convergence or Clash? The Recognition of Customary Law and Practice in Sentencing Decisions of the Courts of the Pacific Island Region” (2001) 2 MelbJlIntLaw 48.
56 See Ntumy, above n 34, at 34; Bernard Narokobi The Melanesian Way (Institute of Pacific Studies, University of the South Pacific, 1983); Forsyth “Beyond Case Law: Kastom and Courts in Vanuatu”, above n 33; see also Nair v Public Trustee of Fiji Civ Cas 27/1990) for a discussion of ambitions for a Fijian jurisprudence to emerge; and Jennifer Corrin “Legal Scholarship and Pacific Islands Jurisprudence” (2021) CLJP 139 at 140. This aim is also reflected in the general incorporation of custom as a source of law throughout the country, discussed above, n 49.
translate directly into customary context.57 However, customary rules have sometimes been applied by the courts regarding contractual transactions. For example in Phillip v Aldis, defendant damaged a car he had rented from the plaintiff. 58 The plaintiff refused to accept its return unless it was repaired, but offered as an alternative to sell the vehicle to the defendant, who agreed subject to finance. The defendant was unable to obtain finance, but continued in possession before damaging the car again. The plaintiff repossessed the car, paid for the repair and sued the defendant for rent and damages. The court applied the common law in holding that the agreement to sell the vehicle rescinded the rental agreement, and in what commentators refer to as a ‘rare example of a pluralistic approach,’59 also applied customary law in finding that the plaintiff’s failure to repossess the vehicle and his acceding to the defendant’s continued possession made him guilty of the custom known as Ke Pwurohng Omw Mwur – ‘you reap the fruit of your misdeed.’ This was held to coincide with the common law duty to mitigate a loss, and payment of rent was ordered only up to the date when the defendant had tried to return the vehicle.
Additionally, even where custom is not given express legislative or recognised as a general source of law, the courts recognise the role of custom in Pacific society and will generally take it into consideration as part of the factual matrix of a case.60 Given this, the scope for application of custom across multiple areas of law is broad. However, it is considered that development of a unique jurisprudence based on customary principles has failed to occur.61 Commentators have noted the tendency of judges to resort to common law principles in preference of customary laws, and in some jurisdictions it is noted that the amount of cases considering customary values has decreased since the initial time period following independence, with much of the existing case law considering custom in detail dating from the pre-2000s era.62 Rather than support each other, it is said that the customary and
57 Corrin, above n 33, at 89, where she notes that customary exchanges tend to be based on reciprocal obligations rather than the voluntary assumption of obligations for a one-off transaction, and rules such as the doctrine of privity do not apply well in community focussed societies.
58 Phillip v Aldis [1987] FMPSC 6.
59 Corrin, above n 33, at 79.
60 Corrin Care and Narokobi, above n 6, at 53. For example, custom may also be taken into consideration when considering compensation: see Kupil v State [1983] PGNC 36; [1983] PNGLR 350 and Komba v Duwaba [2006] PGNC 218 for examples of customary compensation taken into consideration for the tortious remedy. 61 See above, n 33. See further Mouton v SELB Pacific Limited [1995] VUSC 2; Powles, above n 53, at 61; Sue Farran “Goodhew v Goodhew [2007] SBHC 140: Towards a South Pacific Jurisprudence?” [2008] JSPL 4; (2008) 12(1) Journal of South Pacific Law 120;; Corrin “Legal Scholarship and Pacific Islands Jurisprudence,” above n 33. 62 Corrin, above n 57, at 74; Jennifer Corrin and Jean Zorn “Barava Tru': Judicial Approaches to the Pleading and Proof of Custom in the South Pacific” (2002) 51 The International and Comparative Law Quarterly 611; The reduced amount of cases has been noted in the Micronesian context: Miranda Forsyth and Robert Torres
transplanted legal systems are often in conflict or sit uneasily side by side, operating in their own fields.63
The reasons for the failure of a customary jurisprudence to develop are complex and varied. At a political level, there has been little initiative to implement custom since independence as governments are preoccupied with economic development, and efforts to incorporate customary law tend to occur in isolated instances as a result of individual effort rather than as a result of comprehensive government policy.64 This dissertation focusses on a specific factor that has been widely noted as inhibiting the development of customary law: the role of the judges in the Pacific.
B. The Role of the Judiciary
As noted, many Pacific countries recognise customary law as a general source of law, or something to be ‘taken into account’ in a particular area of law. Though this affords it a strong level of recognition, the effect of general incorporation of customary law is to shift the responsibility of its development to those who are in many ways least equipped to deal with: superior court judges.65
The courts of the Pacific have historically been dominated by expatriates.66 Pacific case law demonstrates that many foreign judges do not truly perceive custom as law, and regard the two systems in dichotomy to each other. 67 Law in the Western tradition is perceived as a form of positive state law, asserted via statute or common law in clear, binding rules; on the other hand, custom is perceived as formless, and unsuited to the complex economic and social needs of the modern nation-state.68 Many judges simply do not perceive custom as law, a fact illustrated by a statement from the former Chief Justice of Vanuatu when asked to
“Renewal of custom and tradition in Micronesia’s legal systems” (4 July 2023) DevPolicyBlog https://devpolicy.org/renewal-of-custom-and-tradition-in-micronesias-legal-systems-20230704/. The tendency for cases discussing application of custom in depth to be from the pre 2000s era was also noted by this author during the research process for this dissertation.
63 See Forsyth, above n 33, at 432 where she suggests the systems pass by each other “like ships in the night”; Brown, above n 29; Powles above n 53.
64 Jennifer Corrin “Legal Scholarship and Pacific Islands Jurisprudence” (2021) CLJP 139 (2009) 41(59) The Journal of Legal Pluralism and Unofficial Law 29 at 34.
65 McLachlan, above n 2, at 81.
66 Anna Dziedzic Foreign Judges in the Pacific (1st ed, Hart Publishing, Oxford, 2021), chap 2; see also Brown, above n 33.
67 Brown, above n 33; Forsyth, above n 33.
68 Brown, above n 33.
apply customary principles relating to adultery: “this is not a court of morality, but a court of law.”69
In examining the role of foreign judges in the Pacific, Dziedzic notes that a judge’s membership, knowledge and connection with national culture and values impacts the way they develop the law. 70 Judges who are unfamiliar with national context are less able to accurately draw on cultural principles, and are less likely to feel an invested sense of responsibility for developing issues of national importance.71 Further, as will be discussed, judicial interpretation of constitutional or customary principles is likely be imbued with their own perceptions of morality or justice where there is leeway for discretion in decision making.
But it is not only expatriate judges who contribute to this. Demian notes that in the Papua New Guinean context, it is just as likely to be local judges who declines to apply customary law.72 The majority of regional lawyers and judges have usually studied in Western institutions or in the common law tradition generally. Corrin notes that until the mid-1990s most regional lawyers undertook their legal studies at a law school in Australia or New Zealand, or in some cases at the University of Papua New Guinea.73 Many regional law students now study at the University of the South Pacific Law School where, though it does have an elective course in customary law, the emphasis remains on the common law tradition.74 This training is influential and has been cited as a likely reason for lawyers and judges to consideration application of common law and equity in preference to customary laws.75 The failure of customary law to develop is not only a matter of nationality, but as a result of ‘internal legal attitudes’ of legal professionals and the parameters of the system within which they operate.76
69 Banga v Waiwo [1996] VUSC 5. See also the judge’s comments in In re Nagol Jump [1992] VULawRp 5 where the judge says ‘...this is not a custom court but a court of law... As far as Nagol jumping is concerned, there is no 'rule of law' that is ‘applicable’ to it. ... Since there is no rule of law governing the matter, I...shall have to determine the matter according to ‘substantial justice’ and, if at all possible, in conformity with custom.” 70 Dziedzic, above n 66, chap 4.
71 Dziedzic, above n 66, chap 4.
72 Melissa Demian “On the Repugnance of Customary laws” 2014 56(2) Comparative Studies in Society and History 508 at 509.
73 Jennifer Corrin “Customary land and the Language of the Common Law”, above n 34, at 328.
74 Corrin, above n 73, at 328.
75 Brown, above n 33, Corrin, above n 73 at 328; Amet, above n 33; David Weisbrot "Papua New Guinea's Indigenous Jurisprudence and the Legacy of Colonialism” (1988) 10 U Haw L Rev 1 at 18-21.
76 Brian Tamanaha, Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (Leiden: EJ Brill, New York 1993) at 56.
Further, even where judges wish to develop customary law, they are constrained by the framework of the system in which they function. Narokobi comments that "all state institutions are regulated by former colonisers' assumptions."77 Fundamental differences between the common law and customary law systems compound the challenges of applying custom within the customary law framework. As will be discussed, the common law system and its evidentiary procedures are ill-suited to the unwritten and flexible nature of custom. Judges trained in the common law system will approach the task of judicial reasoning with the frameworks of their training. Judges who lack immersion in custom often struggle to determine the best approach for accessing and applying custom effectively to the cases before them.
As Bourdieu notes: "The individual is always, whether he likes it or not, trapped ... within the limits of the system of categories he owes to his upbringing and training".78 Foreign and local judges alike are unsure of how to best approach the ascertainment and application of customary law. The following Chapters aim to illustrate that in the absence of clear specific guidance, judges will either struggle with or decline to apply customary law in preference to common law or preconceived notions as to best approach.
77 Bernard Narokobi, Ron Crocombe, John D’Arcy May and Paul Roche Lo bilong yumi Yet = Law and custom in Melanesia (Goroka, Papua New Guinea: Melanesian Institute for Pastoral and Socio-Economic Service: University of the South Pacific, Fiji, 1989) at 31.
78 Pierre Bourdieu and Loic Wacquant An Invitation to Reflexive Sociology (University of Chicago Press, Chicago, 1992) 126.
Chapter Three: The Application Issue
For this chapter, I have chosen three key examples demonstrating that uncertainty as to the applicability of custom leads judges to either assume that custom is not enforceable, or to apply it inappropriately.
A. Validity Tests
In legally central colonial systems, rules of recognition act as a test for assessing the validity of laws and governing their enforceability when they conflict with other laws or principles.79 Laws are ranked in a hierarchy of preference of application, usually with written legislation as supreme. Applying this to the Pacific context, customary laws are universally ranked below legislation and written Constitutions,80 though the extent to which customary law will be enforced in relation to other sources of laws like the common law may be more varied.81 Aside from being subject to legislation and the common law, many countries feature other rules of recognition which govern the enforceability of customary law. I use the term ‘validity test’ here to describe these rules of recognition against which customs must be assessed before they may be enforced.
The most prominent example of validity tests in the colonial context is the repugnancy provision. Repugnancy provisions have often been employed to limit application of customs considered contrary to colonial ideas of justice or public policy,82 and can be seen in legislation throughout the Pacific. For example, the Laws of Kiribati Act states that custom shall be enforced by courts except where its application would result in injustice or would not be in the public interest.83 Similar provisions exist in Tuvalu, the Solomon Islands, and
79 Griffiths, above n 5, at 3.
80 Corrin, above n, 33 at 76. See for example Constitution of the Independent State of Papua New Guinea s 11; Underlying Law Act 2000 (Papua New Guinea) s 4(2)(b)-(c); Constitution of Solomon Islands 1978 sch 3 para 3(1)(2); Customs Recognition Act 2000 (Solomons) s 6(b); Constitution of the Independent State of Samoa 1960 art (2)(1); Laws of Kiribati Act 1989 s (4)(1); Laws of Tuvalu Act s 4(1); Constitution of the Republic of Vanuatu 2006 s 2.
81 See Corrin Care and Narokobi, above n 6, at 73 for a discussion of the relationship between custom and the common law. In Papua New Guinea, Solomon Islands, Kiribati, Tuvalu, Nauru. custom is ranked superior to the common law; in Vanuatu and Samoa written legislation does not expressly state what the relationship between custom and common law is.
82 Demian, above n 72, at 510; Raymond Atuguba “Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Sub Saharan Africa” (2022) 3(1) McGill Journal of International Law & Legal Pluralism. 83 Laws of Kiribati Act sch 1 para 2.
Vanuatu.84 Papua New Guinea features multiple versions of the repugnancy provision and serves as an exemplary study to illustrate the problems with validity tests as a limit on the application of customary law.
Papua New Guinean legislation affords custom a prominent position in the law of the nation. Custom is recognised in the Constitution as a general source of law,85 and the courts are under an imperative to develop custom as part of the ‘underlying law’ of Papua New Guinea.86 But despite the prominence afforded to custom, it has not developed as part of the underlying law as hoped.87 This has partially been attributed to confusion as to what the exact limit on customary law actually is.88 The Constitution states that customary law shall not be enforced where it is ‘repugnant to the general principles of humanity.’89 The Customs Recognition Act states that custom shall not be applied where it is ‘contrary to best interest or public policy.’90 The Underlying Law Act contains no general repugnancy provision, but states that customary law is only subject to written law and the rights and principles stated in the Constitution.91 It is uncertain which test applies. In principle, earlier tests were to be repealed by any inconsistent provisions of a subsequent Act on the same subject matter.92 In reality, all three are still cited and applied in case law, and there are essentially multiple grounds upon which courts may decline to apply custom.93 This confusion is evident in the case law, and as will be shown, has led to the imposition of inconsistent and arbitrary limitations on customary law.
84 Laws of Tuvalu Act sch 1 para 2; Custom Recognition Act 2000 (Solomons) s 6(a); and Island Courts Act 1983 (Vanuatu) s 10 states customary law cannot administer customary law which is “contrary to justice, morality and good order.”
85 Constitution of the Independent State of Papua New Guinea sch 2.1(1).
86 Constitution of the Independent State of Papua New Guinea s 5.
87 Corrin Jennifer Corrin "Getting Down to Business: Developing the Underlying Law in Papua New Guinea" (2014) 46(2) The Journal of Legal Pluralism and Unofficial Law 155at 156; Owen Jessep “Developments in the Underlying Law of Papua New Guinea” (2012) 4 PGULJ 25; Demian, above n 84.
88 Corrin; above n 87 at 162; Jessep, above n 87.
89 Constitution of the Independent State of Papua New Guinea sch 2.1(2).
90 Customs Recognition Act 2000 (Papua New Guinea) s 6(a).
91 Underlying Law Act s 4(2)(a)-(b).
92 According to the common law doctrine of implied repeal, which applies in Papua New Guinea: State v Kiap Bangi [1988-89] PNGLR 300; State v Natapalau Tulong [1995] PNGLR 329
93 As will be discussed below, there seems to be no consistent approach as to when a court will cite the respective test in each Act: see Jessep, above n 90. For example, in Magiten v Beggie (No 2) [2005] PGLawRp 30; [2005] PNGLR 647 the court follows the approach set out in the Underlying Law Act 2000; in
Yalu v Yalu [2022] PGDC 25 the court cites the Constitution; in Kane v Kane [2013] PGNC 203 and Yanimba Village Court v Nakur [2010] PGDC 58 the court cites the Customs Recognition Act.
Re Willingal is an oft-cited case in Papua New Guinea regarding the unenforceability of custom.94 A dispute between two tribes led to a tribe member’s death. A ‘head-pay’ customary compensation was demanded in the form of a young woman. A local advocacy group brought a claim on her behalf, asserting that such a ‘payment’ was a breach of the young woman’s rights. The judge ultimately concluded that the ‘head-pay’ custom was inconsistent with Constitutional rights to freedom and equality,95 along with provisions of legislation prohibiting forced marriages.96
But what is of particular note for our purposes is that the judge also took the time to consider whether the custom was contrary to the ‘public interest’ requirements of the Customs Recognition Act,97 and the repugnancy provision under the Constitution. In considering the latter, the judge noted that a definition of the phrase ‘repugnant to the general principles of humanity’ had never received direct judicial consideration, but that “it’s ordinary meaning had never been doubted.” Previous cases had used the term to preclude enforcement of custom in cases of cannibalism, revenge killing, and the mutilation of adulterers. Having considered these cases, the judge then ruled that the custom of giving a woman in the form of payment was repugnant to the general principles of humanity.
There are a few observations to be made here. First, to what “ordinary meaning” does the judge refer? He declines to elaborate. The cases he cite involve killing or bodily mutilation. From these, a ratio may be drawn that repugnancy to ‘general principles of humanity’ refers to cases involving mortal harm or bodily mutilation. The ruling that a person should not be treated as property sets the standard for at a much lower bar. The second observation is that very little reasoning is given for his finding.98 Indeed, the reasoning dedicated to both of these findings is dealt with in a mere two paragraphs. In the absence of reasoning (legal or
94 Application by ICRAF Re Willingal [1997] PNGLR 119. Cited in Jessep, above n 90; Sally Engle Merry “Relating to the Subjects of Human Rights: The Culture of Agency in Human Rights Discourse” in Michael Freeman and David Napier (eds) Law and Anthropology: Current Legal Issues (Oxford University Press, 2009) 385; Marilyn Strathern “Losing (out on) Intellectual Resources” In Alain Pottage and Marthy Mundy (eds) Law, Anthropology, and the Constitution of the Social: Making Persons and Things (Cambridge: Cambridge University Press, 2004) 201; Demian, above n [x] at 522; State v Karawa [2004] PGNC 137;
Police v Minari [2021] PGDC 26.
95 Constitution of the Independent State of Papua New Guinea ss 32 and 55 (rights to freedom and equality)
96 Marriage Act 1963 (Papua New Guinea), s 5.
97 The judge held it was contrary to public interest requirements because it would “subject women to uphold unnecessary life-time obligations and live under pressure and fear.”
98 The reasoning is given in a single sentence “Living men or women should not be allowed to be dealt with as part of compensation payment under any circumstances.”
otherwise), the judge is simply drawing on his own standards as to the meaning of the phrase, and therefore the validity of the custom. Additionally, given that the judge had already found the custom was inconsistent with rights contained in the Constitution, he did not need to further consider repugnancy to the Custom Recognition Act or the specific repugnancy provision under the Constitution. The fact he did so is significant.99
The case of Magiten v Beggie (No 2) was decided after the implementation of the Underlying Law Act, which stipulates a more specific validity test by testing any custom against Constitutional rights and principles.100 During a husband’s absence, his wife married his brother. The husband claimed that this breached custom. Evidence was given of the existence of polygamy as a custom; however, custom dictated that only men were allowed to have more than one spouse. Following the directive of the Underlying Law Act, the judge accepted the existence of polygamy as a general custom, but refused to enforce the custom that women were not allowed to have multiple spouses, on the ground that the right to equality dictated that both men and women should be able to practice polygamy
In light of Magiten and the test in the Underlying Law Act, the Papua New Guinean courts could have taken the line that custom would only be unenforceable where contrary to the Constitution. But this approach has not been taken. Only three years later, the case of Kumbamong v State took a different approach to the issue of polygamy.101 In this case, the defendant killed her husband’s mistress. The issue was whether the defendant’s sentence should be reduced, considering her husband’s conduct in having an extramarital affair. The judge took time to consider the validity of polygamy as a general custom. The judge held that polygamy historically had held a justifiable place in traditional society but this was no longer so.102 Polygamy was considered contrary to Christian principles enshrined in the Constitution, and the reality in the modern day was that men were neglecting their multiple wives and children rather than providing for them all. Based on this reasoning, the judge concluded
99 Demian, above n 72, at 524.
100 Underlying Law Act 2000 ss 4(2)(a)-(b).
101 Kumbamong v State [2008] PGSC 51. I note that this decision took place in a superior court than Magiten v Beggie.
102 Reasons given for the place of polygamy in society included historic high infant mortality rates, and the fact Papua New Guinean ‘big men’ often had large responsibilities that rendered the taking of multiple wives permissible. However, the judge held that these reasons were no longer relevant given access to healthcare reducing infant mortality rates, and the fact that in the modern-day men are neglecting their multiple wives and children rather than providing for them all.
polygamy to be “a major cause of social and law and order problems in [the] country” and ruled it to be repugnant to the general principles of humanity.
I note that the judge’s discussion of societal values and policy provides more in-depth reasoning is provided than in Re Willingal. But does immoral behaviour and disruption of social order equate to repugnancy against ‘general principles of humanity’? The standard is lowered from murder and bodily mutilation, to the treating of people as property, to morally reprehensible infidelity causing social disruption.
The overall image is one of vagueness and inconsistent standards. In the absence of clarity as to what test applies, Papua New Guinean judges have sidestepped the test against constitutional rights and principles in favour of the more forceful ‘repugnant to the general principles of humanity.’103 One only has to do a brief review of Papua New Guinea cases to see the recurrence of judicial use of this term.104 Most judges do not even attempt an explanation as to what constitutes repugnancy against general principles of humanity.105 The major problem with this validity test is that it is drafted in ambiguous terms, leaving broad scope for the exercise of value judgments informed by the judge’s own standards and conceptions as to what is right. Although detailed reasoning is not given in the case law, the cases discussed above are all contrary to Western conceptions standards of rights or principles. Demian suggests that Papua New Guinean judges are not using repugnance in a strictly legal sense as contrary to other laws or principles, but instead in “a morally freighted sense” that it has acquired in colonial settings as they pertain to customary law.106 She states that the repugnancy test has become a test as to the kinds of practices that ‘educated, middle- class Papua New Guineans can bear to tolerate’ and an exercise in imposing limits on rural Papua New Guineans.107 The vagueness of the phrase has thus become a vehicle for the
103 Demian, above n 72, at 513.
104 See Yalu v Yalu, above n 94, at [27] where the defendant’s claim to a customary right to make decisions over family property was repugnant to the general to the general principles of humanity because ‘no one family member should presume ownership and dictate matters over issues that they are not authorized to do so’; see also Police v Minari, above n 94, at [49] where the judge refused to accept that a custom of chasing family members to ascertain information about his wife’s whereabout counted as an extenuating circumstance, stating that “I remain steadfast to be guided by the principles, set out in the case of [Willingal]... where the repugnancy provision was applied.” No further explanation as to why this was or what the exact principles laid out in Willingal are exactly.
105 Demian, above n 72, at 524 where she notes that the judge from the Willingal case appears as the only one to comment on the lack of definitive meaning.
106 Demian, above n 72, at 513.
107 Demian, above n 72, at 513.
imposition of value judgements by those trained in Western institutions in a way that limits the applicability of custom. This is particularly inappropriate in the Papua New Guinean context, where customary law is supposedly afforded primacy over application of the common law.
Where specific repugnancy provisions do not exist in legislation, the Pacific experience indicates that courts will create validity tests limiting its application. In Vanuatu, kastom is ranked below legislation and the Constitution, but its relationship with other sources of law has historically been more ambiguous.108 The Constitution provides that customary law is a part of the law of Vanuatu,109 and that the courts are to "resolve proceedings according to law,"110 implying recognition of custom as a general source of law. However, art 47(1) of the Constitution provides that if no rule of law is applicable to a matter before the court, the matter shall be determined “according to substantial justice and wherever possible in conformity with custom.” This implies that kastom only has a "fill-in" role where no other law available that custom will be applied.111 Despite the fact that it was not strictly necessary under the Constitution to take this approach, the courts have favoured this interpretation. In the case of Banga v Waiwo, the Chief Justice interpreted a provision continuing the application of British and French laws as also applying to ni-Vanuatu, and stated that custom could only be applied where it did not conflict with colonial laws. This precedent has been followed in subsequent cases.112
The operation of validity tests like repugnancy provisions have acted as obstacle to the application of customary laws and principles throughout the Pacific.113 Where the status of custom is ambiguous or validity tests do not exist, the courts will create one. Where that test is vague, the courts will apply varied standards guided by values that do not reflect those of the people over whom they are adjudicating. In the face of ambiguity, judges of the common
108 Forsyth, above n 33, at 431; Morsen Mosses “Custom as a Source of Law in Vanuatu: A Critical Analysis” (2017) 2017 Journal of South Pacific Law 37 at 42.
109 Article 95(2).
110 Article 47(1).
111 Forsyth, above n 33, at 439.
112 For example see In Re MM, Adoption Application by SAT40 [2014] VUSC 78 where it was found that since there was no written national law applicable to the particular adoption matter at hand, the Supreme Court first sought to apply colonial law which in this case was the Adoption Act 1958 of United Kingdom.
113 Demian, above n 72; Powles, above n 53 at 61; Mosses, above n 108, at 48.
law have declined to apply custom in favour of their own conceptions of the correct approach.
B. Personality of Laws
Another issue of complexity with regard to the application of customary law in the Pacific context has been deciding who customary law applies to.114 When recognising custom as a source of law, the question arises as to whether customary laws bind everyone in a country (territorial application) or only those members within the customary group within which the law has evolved (personal application).115
In the Pacific, this issue has usually manifested in two ways.116 The first is when deciding which customs should apply when a dispute involves two indigenous peoples from different customary areas. Confusion existed on this point in Papua New Guinea for many years. For many years, it was held that a custom could not be enforced unless it could be shown that the custom was common or widespread throughout the country.117 Surprisingly little reasoning for this assumption is provided in the caselaw, but critics theorise that judges may have felt that enforcement of a particular regime’s custom would be contrary to the notion of a national ‘underlying law’, and that the practical consequences of adopting a particular regime’s custom would be to either make it available to claimants from every region, or to inflict that custom on claimants from different regions.118 However, nothing in the legislation specifically provided for the notion of a ‘universality’ of custom.
The issue has since been clarified in Papua New Guinea. The Underlying Law Act now provides that disputes shall be determined in accordance with the customary law that the parties intended to govern the subject matter, and if no such intention can be discovered, the customary law that the court thinks is most appropriate to the subject matter, allowing for the application of customary rules from a specific region.119 Similar approaches exist in other
114 See Paterson, above n 1, at 670; Corrin Care and Narokobi, above n 6, at 69-73.
115 Jennifer Corrin “A Question of Identity: Complexities of State Law Pluralism in the South Pacific" (2010) 42(61) The Journal of Legal Pluralism and Unofficial Law 145; see further McLachlan, above n 2, at 80 where he terms this challenge the ‘interpersonal conflict of laws.
116 Corrin Care and Narokobi, above n 6, at 69-73.
117 See for example Supreme Court Reference No 4 of 1980 [1981] PNGLR 265; Kolta Development and others v PNG Defence Force and the State [1996] PGNC 23; [1997] PNGLR 585.
118 Owen, above n 87.
119 Section 17. I note that it was difficult to find any case law where this section has actually been applied.
Pacific countries. In Vanuatu, the courts have outlined an approach where if the case involves two ni-Vanuatu of different customary regimes and there is uncertainty as to which custom was intended to apply, the court is to look for a common foundation of the customs and turn it into a rule.120 In Kiribati and Tuvalu, where courts are uncertain of what custom should be applied, the court can adopt either customary or common law “with modifications as the justice of the case requires.”121 However, the confusion in the Papua New Guinean context as to whether custom needed to be ‘universal’ to be enforced demonstrates the tendency for application of customary laws to be limited in the face of ambiguity, and demonstrates the need for clear legislative drafting.
The second situation in which the personality of laws arises has proved even more ambiguous. This is where one party is indigenous and the other is non-indigenous. There is very little case law on the issue,122 and that which exists has shown inconsistent or scant reasoning. In the Solomon Islands case of Funua Cattle Development, the judge was asked to consider whether damages in a negligence claim between a local man and a public authority could be given in accordance with custom, which would take impact on the plaintiff’s honour into account rather than only assessing the quantifiable physical harm.123 The judge declined to do this, saying “this might be the approach of the Local Court, where both parties are part of, and well aware of a common system; but it cannot be right in a dispute between an islander and a public corporation and I shall not follow it.” Why it ‘simply cannot be right,’ the judge does not explain.
The reasoning in the Papua New Guinean context relating to ‘universality of custom’ discussed above has also acted to inhibit the application of customary law to non-indigenous. In the case of Re Somare, the court stated that before a custom could enforced, it first had to be established that there was a ‘community of indigenous inhabitants which recognised a certain customary rule,’ and then shown that the custom which the court proposed to adopt as law was recognized and extended to both parties.124 Implicit in the judges’ reasoning is the presumption that customary law cannot apply to non-indigenous peoples who do not
120 Waiwo v Waiwo [1996] VUMC 1.
121 Laws of Kiribati Act 1989 Sch 1 para 6; Laws of Tuvalu Act, Cap 1.06, Sch 1, para 6.
122 Corrin Care and Narokobi, above n 6; I found very little case law on the subject during research for this dissertation.
123 Funua v Cattle Development Authority [1983] SBMC 1; [1984] SILR 55.
124 Re Somare: Supreme Court Reference No 4 of 1980 PGSC 22; [1982] PNGLR 65.
recognise the customary rule. This reasoning was taken up in Kolta Development Pty Ltd v PNG Defence Force, where the court looked at the Constitutional definition of custom as meaning ‘the customs and usages of indigenous inhabitants of the country.’125 The judge ruled that the defendants (the State Defence Force) were not "indigenous inhabitants of the country", and so custom therefore did not apply to them. The judge said it could not be shown that the customs of the country extended to the defendants, saying “if those customs are not used or practiced by the defendants, why should those customs apply to the defendants?”
The irony of this last sentence is lost on the judge. It is generally accepted in Pacific countries that colonial laws are the general binding on the entirety of the populations. Yet customary law is treated as the personal law of certain people, applicable only to them.126 This is a surprising stance in countries where custom is recognised as a general source of law (sometimes of superior status to the common law), and is particularly surprising in Papua New Guinea where the emphasis has been placed on the development of a single underlying law of mixed common and customary law.127 Additionally, the stance that general law applies to everyone, but customary law does not, seems particularly inappropriate given that customary law remains the de facto law of many Pacific communities.
A more principled approach to declining to apply custom can be found in the Federated States of Micronesian case of Semens v Continental Airline.128 The plaintiff claimed damages for personal injuries suffered while unloading cargo from a Continental Airlines plane.
Interpretation of a contractual clause was required to decide the claim. No principle of custom was asserted by any of the parties as being applicable, however the court noted it was under a constitutional imperative to consider custom of its own account.129 The court focussed on the nature of the activities at hand, and ruled that where business activities are not of a local or traditional nature, and the work setting is of a non-local, international character, the court need not conduct an intense search for applicable customary laws and traditional rules when none have been brought to its attention by the parties and none were apparent. Additionally, the contract revealed no intention for local custom to serve as a guide
125 Kolta Development Pty Ltd v PNG Defence Force, above n 117.
126 Jean Zorn “Common Law Jurisprudence and Customary Law” in RW James and I Fraser (ed) Legal Issues in a Developing Society (Faculty of Law, University of Papua New Guinea, 1992) 103 at 109.
127 Constitution of the Independent State of Papua New Guinea, s 9; Underlying Law Act 2000, s 3.
128 Semens v Continental Air Lines Inc [1985] FMSC 3; 2 FSM Intrm. 131.
129 Constitution of the Federated States of Micronesia, art 11.
for interpretation. This analysis provides a more principled approach to deciding when custom will be applicable, by assessing the context and intention of the parties as to whether custom should apply.130
There have been few reported cases where judicial recognition of customary laws has extended to a non-indigenous person, and the few that exist have been in relation to customary marriage. 131 In Hepworth v Sikela, the court ruled that customary marriage could extend to a non-indigenous person. The judge considered that the only instances in legislation where clear distinctions between non-indigenous and indigenous were made were in relation to automatic rights to customary land and citizenship. The judge said that such a distinction would be unnecessary in this case, given that the essence of marriage was a voluntary assumption of status.132 In Rebitai v Chow, similar reasoning was employed, where the judge ruled that the Islanders Marriage Act allowed indigenous islanders to marry in custom but did not in any way prohibit non-islanders from doing so.133
In both cases, the court focussed on the fact that the marriage was entered into voluntarily.134 From this, a general ratio could be drawn that customary law is to be applied where there has been a voluntary assumption of its application. This approach is consistent with the legislative directives noted earlier as to deciding what customary law will be applied to two parties from different customary regimes, as these approaches start with a focus on intention. It is also consistent with the rationale for not applying customary law in Semens and the
130 This approach has been cited with approval in subsequent cases. Other instances which were ruled as not have a Micronesian context to it included Mailo v. Twum-Barimah [1986] FMSC 19; [1986] 2 FSM Intrm. 265 (issues related to business ventures in the FSM by non-citizens); In re Extradition of Jano [1993] 6 FSM Intrm. 23 (international extradition) and Chuuk v Secretary of Finance [1998] FMSC 19; 8 FSM Intrm. 353 (the governmental right to receive revenue from commercial fishing ventures at the EEZ limit, as only customary water right claims from families, tribes, clans were considered as having a customary context). I also note that I couldn’t find any cases after 2001 on this issue.
131 See Corrin Care and Narokobi, above n 6, at 72 where the lack of case law on the matter is noted. The other case not cited here recognising customary marriage as extending to non-indigenous is Samoan Public Trustee v Collins [1933] WSLawRp 2; [1930-1949] WSLR 70, where an American citizen had entered into what was recognised as a customary (polygamous) marriage with a Samoan, and was found legitimate under colonial laws in force at the time of the customary marriage around the early 1900s.
132 Hepworth v Sikela [1994] SBHC 2. Additionally, in upholding the marriage the judge held that "the reality of Solomon Islands changing circumstances" would make the suggestion that only indigenous Solomon Islanders could marry under the customary regime "difficult to maintain and in some cases impracticable.”
133 Rebitai v Chow SBHC 2001.
134 In discussing marriages generally the judge said “The common thread that runs through [the English cases discussed] is that a marriage is a contracted into knowingly and by consent of the parties intended to bind the parties to it... the most important factor in custom marriage was the customs had been adhered to ... and had been accepted by their families.”
Papua New Guinean cases, where the focus was on the fact that there was no rule of custom that had been generally recognised as applying to the parties.
However, there has been no attempt at pulling a general test as to whom customary law will apply. Little guidance is given at a legislative level indicating to whom customary laws apply,135 and little case law exists on either of the situations discussed.136 It is hard to establish the reason for this, though given the general trend already noticed for judges to have a preference for applying common law principles to customary laws, it is quite likely that where there is uncertainty as to what customary law applies, judges of the Pacific will default to applying the common law. An indication of this can be seen in the recent case of State v Adrian, where the judge briefly noted that compensation for grievous bodily harm offending could not be assessed in accordance with custom as the prisoner and victim were from different custom localities, and defaulted to a monetary calculation based on medical expenses.137
The Pacific experience shows that customary law is generally assumed to only apply as personal law for indigenous parties.138 However, in the Pacific, where customary law is the de facto law for the majority of the population, one might assume the opposite should be true.
Where customary law is incorporated as a general source of law, but is not to apply to everyone, it is vital to know what criteria must be satisfied for a person to be bound by it,139 as where judges are uncertain as to the scope of application of customary law, they will default to limiting its application as a source of personal law in a way that is inconsistent with its recognition as a source of general law.
C. Commensurability
I touch briefly on a final example which demonstrate how the influence of common law training impacts application of customary law principles. The previous two examples have
135 The exceptions are generally specific areas of law, such as with relation to customary land. See Corrin, above n 115, for controversy surrounding who counted as an ‘islander’ for the purposes of the Islanders Marriage Act. Cap 171 (Solomon Islands).
136 Corrin Care and Narokobi, above n 6, at 69 and 72 note this; The lack of case was also noted by this author during research for this dissertation.
137 State v Adrian [2021] PGNC 671.
138 See Zorn, above n 126, for further commentary to this effect.
139 Corrin, above n 115 at 163.
highlighted instances where judges have been reluctant to enforce customary law or believe that it cannot be applied. Here, I discuss situations where attempts have been made to give effect to customary principles and contexts, but have failed due to lack of thorough consideration of the differences in customary and colonial concepts and language.
Customary land is the most prominent example of where this has occurred. Throughout the Pacific, attempts to capture and give effect to customary land rights have often been defined in common law terms of ‘ownership.' However, the term ‘ownership’ does not have a specific equivalent in Pacific societies, and fails to capture the complexities of multiple customary rights which may exist in relation to land.140 An example demonstrating difficulties posed by the use of this term can be seen in the Solomon Islands with regard to the granting of timber rights.141 Any person wishing to acquire logging right on customary land must negotiate with the ‘owners’ of customary land.142 A public consultation must be held where any parties with a customary interest in the land may attend in order to identify the appropriate ‘landowners’ for negotiation.143 However, Corrin highlights the perils of this process, as in reality notices often go unnoticed, and those identified as landowners may not necessarily represent those with more pervasive interests in the land. 144 In practice, logging operations in the Solomon Islands frequently proceed without sufficient information being provided to the customary landowner group, and without the full consent of most of the customary right holders.145
Further, Brown observes that attempts to regulate the relationship between the signatories to a logging agreement and the other customary 'landowners' has led to the inappropriate importation of another common law concept: the trust.146 In the case of Allardyce v Laore, the judge extended the Trusts Act to cover signatories to logging agreements, establishing a constructive trust between signatories and the other landowner ‘beneficiaries,’ on the basis that such signatories owe fiduciary duties to the other customary landowners upon whose
140 Kenneth Brown “The Language of Land: Look Before You Leap” (2000) Journal of South Pacific Law.
141 See Corrin “Customary land and the language of the common law’ above n 34; Brown, above n 140; Farran, above n 50; and Jennifer Corrin Care “Customary Land in the Solomon Islands: A Victim of Legal Pluralism” (2012) Droit Foncier Et Gouvernance Judiciaire Dans Le Pacifique: Land Law and Governance in the South Pacific 12.
142 Forest Resources and Timber Utilisation Act 1996 (Solomons), s 7(1)
143 Forest Resources and Timber Utilisation Act 1996 (Solomons), s 8(1)
144 Corrin, “Customary land and the language of the common law” above n 34, at 320.
145 Siobhan McDonnell, Joseph Foukona, Dr Alice Pollard “Building a Pathway for Successful Land Reform in Solomon Islands” (2015) https://dpa.bellschool.anu.edu.au/sites/default/files/publications/attachments/2017 01/building_a_pathway_report_web_version_complete_low_bandwidth_rev1.pdf.
146 Brown, above n 140.
behalf they have signed.147 However, the judge gave no further consideration as to what the full of extent of the trustee duties between the signatories and the ‘beneficiaries' would be. Concerns as to the appropriateness of the importation of the trust concept were voiced in the case of Kasa v Biku:
“The concept of trust is not known in customary law and hence, the use of such expression when describing a relationship between the parties in a customary land dispute must be carefully guarded. It is not only that the parties have resorted to the trust concept... but the Courts too, have the tendency, whether consciously or unconsciously, of adopting and applying the concept... Blindly adopting legal and equitable concepts under received law must be avoided where such concepts do not apply or cannot accommodate the fundamental principles of customary law jurisprudence.”148
In that case, the defendant was a signatory on behalf of his tribe to a lease of customary land. He did not distribute any of the lease payments to other members of the tribe, who applied for an order that the defendant be made to account for payments received. The Registrar of the High Court granted the order, stating that a trust was implied by the defendant's status as a customary landowners' representative. The defendant appealed the decision, stating that the concept of a trust was unknown to customary law and therefore not applicable to customary land. In this case, the High Court judge made a distinction between the concept of a general trust between landowners and signatories, and a specific form of trust where the money obtained from the logging agreements would be held by signatories and then distributed. He considered that such a trust relating to the payment moneys would be appropriate, a precedent which has been followed.149
147 Allardyce v Laore [1989] SBHC 1; [1989] SILR 78.
148 Kasa v Biku [2000] SBHC 101; 1[2001] LRC 133. See Lilo v Ghomo [1981] SBHC 8; [1980-1981] SILR 229
where similar comments were made: “[A problem arises] in dealing with customary land cases in the modern Solomon Islands. That problem is how can one express customary concepts in the English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, that is the rules of common law and equity.”
149 See Lilo v Ghomo, above n 148; and Success v Premier of Guadalcanal Province , Rima, Attorney-General
It has since been recognised that use of the word ‘trust’ has acquired a specific meaning in the Solomons context different to general usage elsewhere in the realm of equity.150 However, this example highlights the potential dangers of judges approaching customary issues as framed by their common law training, and the dangers of implementing common law terms without consideration of the consequences. Brown notes that application of the 'trust' term may be dangerous as the term can ‘trigger ideas and concepts embedded by years of training in the mind of lawyers and administrators.151 The judge in Kasa v Biku noted that unthinking espousal of the term had led to ‘confusion and unnecessary litigation’ in the area.152 What the courts should have done in the first instance was to either use a framework or terminology specific to the context at hand, or define the exact parameters of the term’s application.Instead, the judge blindly applied the common law terminology without regard to the potential consequences of such an exercise.
Examples exist outside of land law illustrate the dangers of attempting to capture customary concepts in legal language. In the Solomons, it has been noted reference to ‘chiefs’ in legislation has given rise to disputes as to what exactly the definition of a ‘chief’ is.153 Even where attempts are made to give representation to customary concepts in specific terminology, these are not always appropriate. An example can be found within the realm of family law, where upon colonisation, colonial authorities adopted various English language terms of a non-legal nature such as ‘brideprice’ or ‘marriage payments’ to describe the practice of the exchange of goods or livestock upon the occurrence of a customary marriage.154 However, Brown notes that these terms conjure in the western mind a picture of ‘wife-buying’ and demotes the institution to the level of a commercial transaction,155 and it has been pointed out that the meaning evoked by use of these terms is not equivalent to the
150 Harry v Kalena [2000] SBCA 1; [2001] 3 LRC 24 and Lilo v Ghomo, above n 148.
151 Brown, above n 140.
152 Kasa v Biku, above n 148.
153 Corrin “Customary land and the language of the common law” above n 34. The Local Courts (Amendment) Act 1985 states that any dispute must be heard before ‘chiefs’ before a local court, however the term ‘chiefs’ is not certain and may encompasses many types of people that do not fit with traditional concepts of a customary leader (Reinunu v Usa [2015] SBHC 61). In Lauringi v Lagwaeano Sawmilling and Logging Limited [1997] SBHC 61, the defendants contested a land dispute on the grounds that council members did not meet the definition of ‘chiefs’ in the land's specific area. Corrin notes a surprising instance where on a visit to the Solomons, she was asked what the definition of chiefs was in the Act, as they wanted to ensure they were doing things ‘legally.’
154 Brown, above n 140.
155 Brown, above n 140.
meaning held by the indigenous peoples whose practice it is.156 These examples further demonstrate how colonial language can fail to accurately capture principles and concepts that exist in a completely foreign context.
Read suggests that active limitations on application of customary law like repugnancy clauses were actually the least transforming aspect of colonial law; rather, it has in fact been the attempt to apply custom in new institutions which has caused the greatest changes to customary laws.157 The preceding discussion highlights the danger of judges giving expression to customary principles in ways that are guided by their familiarity with common law concepts and legal language, leading to failures to accurately capture customary principle, or doing so in ways that gives rise to even more challenges.
156 For example Alice Pollard Bride price and Christianity (State Law and Government in Melanesia Project’s 1998 Workshop: Women, Christians, Citizens: Being Female in Melanesia Today, at Australian National University, Research School of Pacific Studies, Canberra, 1988) points out that the use of the quasi-common law term ‘bride price’ to describe the Areare institution of horia keniha misinterprets the idea the expression evokes in the mind of an Areare speaker.
157 H Morris and James Read “Indirect Rule and the Search for Justice” (1972) 18(2) Journal of African Law at 183.
Chapter Four: The Ascertainment Issue
Ascertainment of customary law is intimately connected to its application. Practical and conceptual approaches to ascertainment affects the way that the courts access and subsequently apply custom. A question which has received much consideration in the Pacific is whether custom should be treated as a question of fact or law, as each approach has a distinct effect on methods of ascertainment and the standard of proof required.158 I argue that failure to thorough consider the most appropriate methods of ascertainment inhibits full realisation of custom as a source of applicable law.
A. Custom as Fact
In many plurally legal countries, the paradigm approach to ascertainment of customary law has been to treat it as a question of fact, proved by evidence presented to the court.159 This approach has historically been justified by the unwritten and diverse nature of customary laws.160 Legal professionals unfamiliar with customary rules need to access evidence as to their content and operation. Even where judges are familiar with the customary context, they may be unfamiliar with the specific custom in question.
However, this approach raises both practical and theoretical concerns. On a practical level, treating custom as a question of fact subjects it to the formal rules of pleading and evidence.161 This is undesirable for two main reasons. First, the rules of evidence do not properly accommodate the ascertainment of customary law. The hearsay exclusionary rule is a prominent examples of this. The hearsay rule prohibits admission of out-of-court assertions being relied on for its truth value, with an aim of excluding oral evidence that cannot be
158 See Jean Zorn and Jennifer Corrin Care Proving Customary Law in the Common Law Courts of the South Pacific (Occasional Paper 2, British Institute of International and Comparative Law, London, 2002); Jennifer Corrin “Round Pegs and Square Holes: Pleading Indigenous Customary Laws in Australia and the South Pacific” (2014) 33 CJQ 475; Corrin and Zorn “Barava Tru': Judicial Approaches to the Pleading and Proof of Custom in the South Pacific”, above n 62; Jennifer Corrin "Accommodating legal pluralism in Pacific courts: problems of proof of customary law” (2011) 15(1) The International Journal of Evidence & Proof (1); Ian Fraser “Legal Theory in Melanesia: Pluralism? Dualism? Pluralism Long Dualism” (1999) 3 Journal of South Pacific Law 3. Pacific legislative approaches to ascertainment also reflect focus on the question of fact/law distinction as will be discussed below.
159 As will be discussed, this approach is taken in many Pacific countries; see further Corrin “Proving Customary Law in the Courts of the South Pacific” above n 158. In the African context, see Allot, above n 6. This has been the approach in the Aotearoa New Zealand context: see Takamore v Clarke (SC), above n 20, at [95].
160 Corrin Proving Customary Law in the Common Law Courts of the South Pacific, above n 158 at 33; see also
Ellis, above n 1, at 141 per Williams J.
161 Corrin and Zorn “Barava Tru”, above n 62, at 619.
cross-examined to help ensure reliability of given evidence.162 However, custom is usually information that has been passed down orally through generations and is by its nature hearsay.163 Additionally, in cases where oral evidence of history is given, parties may offer differing accounts of events, yet all be recounting the truth it as it has been told to them.164 The complexity of customary claims can be seen in the case of Manassah v Koko, in which seven different parties claimed ancestral heritage to the same plot of land, all adducing evidence of customary connection.165
In recognition of these issues, many Pacific countries have relaxed the hearsay rule to some extent.166 For example, in the Samoan case of Fuimaono v Public Trustee the judge noted that much of the evidence given to prove a historical ancestor was hearsay, but that the Samoan courts have often had regard to hearsay evidence of custom and considered all oral evidence alongside written evidence such as family books and church records.167 Although a relaxed approach to hearsay exclusion allows for a more holistic consideration of custom evidence, it is still not without challenges. Assessing reliability of custom may not be straightforward.
This difficulty was noted in Malas Family v Songoriki Family, where the judge commented:
“I find it difficult at times to accept ... hearsay evidence. Some witnesses convince me they are telling the truth or really trying to remember what their father or grandfather told them, whereas other witnesses have a tendency to exaggerate in an attempt to convince the Court their version is the correct one.”168
Where oral evidence is disputed, focus on reliability means that witness demeanour and presentation become paramount.169 In that case, counsel for the Songoriki family prepared them exceptionally well by rehearsing testimonies and recording evidence of genealogy in
162 Corrin "Accommodating legal pluralism in Pacific courts: problems of proof of customary law”, above n 158, at 8; Judson Falknor “The Hearsay Rule and Its Exceptions” (1954) 2 UCLA L Rev 43.
163 Corrin and Zorn “Barava Tru”, above n 62 at 628.
164 Corrin Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 46.
165 Manassah v Koko [2005] VUIC 3.
166 See for example Laws of Tuvalu Act 1987 sch 1 para 1 and Laws of Kiribati Act 1989 sch 1 para 1 which state that the judge shall consider all evidence including hearsay and opinion evidence; Customs Recognition Act (Solomon Islands) s 5 which states that the court is not bound to observe strict rules of procedure or technical rules of evidence; Fuimaono v Public Trustee [2017] WSSC 33; Rosokow v. Bob, [2002] FMCSC 14; 11 FSM Intrm. 210, 215; Waiwo v Waiwo , above n 120.
167 Fuimaono v Public Trustee [2017] WSSC 33, citing Alii and Faipule of Laulii v Trustees of Jacob Helg Estate [2011] WSSC 48.
168 Malas Family v Songoriki Family [1986] VULawRp 14; [1980-1994] Van LR 235 (8 October 1986).
169 Corrin “Barava Tru”, above n 62, at 628.
written accounts.170 One author notes that though the Songoriki family may have won on the merits anyway, the judge’s appreciation of their evidence is reflected in the judgment and likely contributed to their victory.171 In Killet v Niptik, evidence given by a witness of a verbal agreement that he had heard about from his family was rejected as untrustworthy due to the witness seeming “shifty, argumentative and over-confident.”172 The more reliable seeming the witness and their evidence, the more likely it is their evidence will be accepted. Assessing reliability of oral evidence may be a challenging task in all cases, however, focus on reliability becomes particularly problematic when dealing with customary evidence, which is typically conveyed orally and may relate to beliefs, practices, or historical events, making verification difficult.
Evidence of custom may also be drawn from written work, such as books or reports. The written word tends to occupy a superior position in the common law tradition than oral testimony. 173 In Grundler v Namaduk, the Supreme Court preferred an expatriate anthropologist’s written report on custom which had been written four decades earlier to the parties’ oral testimony of the and the findings of the Nauru Land Commission (comprised of Nauruans versed in custom). 174 The issue with written accounts is that they are not actually custom, but merely attempts to capture custom, and may not accurately reflect the customary norms recognised by a customary communities.175 Such an approach does not account for the fact that customs are fluid and may change and adapt as society changes. Additionally, where reports are written by someone who is not part of the customary group, they are likely to miss cultural nuance or important cultural context.176
Customary assessors or expert witnesses are another method of ascertaining evidence of custom in the Pacific. Customary assessors are non-lawyers who provide specialist opinions
170 Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, where she cites a conversation with the counsel (Mr Hudson), Oct 1999.
171 Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, citing Malas Family v Songoriki Family, above n 168: “The Respondent, who impressed me as a truthful witness confirmed that his grandfather often told him the story of the history of the Songoriki family and that Rongoana was the first man to occupy the disputed land ... I was very impressed in the manner in which this comparatively young man gave evidence. He did not attempt to exaggerate any evidence. He was careful in his answers and if he did not know the answer to a question he frankly admitted it. The witnesses for the Appellants did not impress me and their evasiveness to many questions led me to place little reliance on their evidence.”
172 Killet v Niptik [2012] VUSC 117.
173 Corrin Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 36.
174 Grundler v Namaduk & Ors [1974] NRSC 7; [1969-1982] NLR (B) 101.
175 Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 36.
176 Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 37.
on customary law.177 The role of customary assessors may differ; they may be given a role as fact-finder in lieu of a jury, or may be given more of an advisory role to the court to assist the judge in accessing and understanding custom law.178 Expert witnesses play a similar role to customary assessors, although are usually witnesses are called by the courts and can be examined by counsel.179 However, the use of customary assessors or expert witnesses also has its flaws. In the first instance the role of customary assessors (such as whether they are called to provide advice or merely to answer specific questions) may affect the outcome of the case. For example, the use of assessors as only answering specific questions has been criticised as unsatisfactory because it assumes that the judge knows what the pertinent questions to ask are, and because questions may be framed in a way that suggests a certain outcome. 180 Further, considering who is appropriate to be an assessor may be difficult. Who qualifies as knowledgeable in custom? Is it those who study it, those who live it, or both? Assessors may also bring their own biases to the role, informed by to factors like age, gender or cultural association, which may affect the tenor of the advice they give.181
This discussion aims to highlight that a major problem with the requirement that custom be found in the same manner as facts is that none of the usual methods commonly used to prove custom as a fact seem to consistently be able to do. Evidence of custom is limited by the parameters of the evidentiary rules. This is problematic as it may mean that custom evidence may not be given appropriate weight or consideration by the court.
This is reinforced by the second practical effect of treating custom as a question of fact, which is that this approach usually means that parties must provide evidence of it and bring it
177 Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 38.
178 Converging Currents, above n 27, at 13.52.
179 Australian Law Reform Commission “Assessors” (18 August 2010) Australian Government https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/26-other- methods-of-proof-assessors-court-experts-pre-sentence-reports/assessors/.
180 For example, see Regenvanu Family v Ross [1987] VULawRp 3; [1980-1994] Van LR 284 for an example of particularly leading questions put to a customary chief: “It would be an unenviable task to attempt to trace their descendants after an interval of nearly 80 years. On the other hand, it is unlikely that Mr Corlette would have entered into these transactions without making full enquiries as to ownership. This conclusion must raise doubt as to the genuineness of the claims to custom ownership, whether of the Appellants or the Respondents.
May I have the opinion of the Custom Advisers whether the claim made by each of the parties raises such a doubt to custom ownership?” Corrin, “Proving Customary Law in the Common Law Courts of the South Pacific, above n 158, at 40 critiques this use of leading questions to customary experts.
181 Corrin “Accommodating legal pluralism in Pacific courts: problems of proof of customary law”, above n 158, at 20.
to the court’s attention.182 The onus to demonstrate applicable customary law under this approach is placed on counsel, which is problematic where insufficient evidence is provided, as it restricts the judge’s ability to determine the most appropriate outcome. This can be seen in the Federated States of Micronesia, where the burden of proving custom lies on the party asserting its effect.183 The case of Heirs of Taulung v Heirs of Waku was an appeal of a land ownership dispute. The initial decision had been awarded taking into consideration customary evidence relating to gifts and use of land.184 The appellate Land Court was asked to consider and explain the effect that custom may have on the dispute, and gave opportunity to parties to present evidence of the applicable custom. However, neither did so. The appellants argued they were under no obligation to provide evidence, and the respondents argued they had already presented evidence to support their claim. Because neither party presented evidence, the appeal court concluded that no customary principles could be considered, and overturned the decision of the lower court. Although fault must lie with the parties for failing to present evidence, the existence of custom was clearly a relevant consideration in the case. Had the court had been able to take steps to ascertain evidence from an advisor or on its own inquiry, a different outcome may have been reached, taking custom into account, and more accurately reflected the reality of the circumstances.
Even in countries where there is no explicit requirement on counsel to provide proof, Pacific courts have held that pleadings are necessary in order for the court to consider custom. The Solomon Islands provide an example of this. The case of Sukutaona v Houanihou concerned an award of child custody.185 The local court ruled that evidence given of local custom dictated that custody would usually be awarded to the father. On appeal, the High Court judge ruled that evidence of customary rights regarding child custody needed to be adduced to prove its existence. The judge considered that the evidence given on custom to the local court was 'very slim,’ and insufficient to warrant the finding that the child should go to the father. Instead, the judge applied the common law welfare of the child principle and ruled that the child would go to the mother. This precedent has been followed in subsequent
182 See Corrin “Accommodating legal pluralism in Pacific courts: problems of proof of customary law”, above n 158, at 17 for this in the customary context; for the burden of proof in a ‘foreign law’ case generally, see Yaad Rotem “Foreign Law as a Distinctive Fact- To Whom Should the Burden of Proof Be Assigned?” (2014) 14(2) Chicago Journal of International Law 625.
183 Senda v Semes [1998] FMSC 34; 8 FSM Intrm. 484.
184 Heirs of Taulung v Heirs of Wakuk [2007] FMKSC 17; 15 FSM Intrm. 294.
185 Sukutaona v Houanihou [1981] SBHC 1; [1982] SILR 12.
cases,186 and the courts continue to hold that pleadings of custom are necessary to be considered.187
The ruling in Sukutaona is particularly problematic given that in the Solomons, custom is technically ranked above the common law in preference of application. Instead, due to the judge deeming the pleadings ‘insufficient’, common law was applied in preference to custom. Such a decision is inconsistent with the assertion of customary law as a superior source of law. If the judge had sought further evidence, a different outcome may have been reached giving proper realisation to the rhetoric that custom is a superior source of law, and respecting the customary practices of the parties. Further, statements by the judge indicates a preference for applying the welfare of the child principle to the customary law at hand, saying:
“In any event it remains open to question to what extent rules of custom law of the kind discussed in this case should be firmly applied to cases where the welfare of children is at stake.”
It can be inferred from this statement that the judge questioned the appropriateness of the custom in this case, and wanted to apply the welfare of the child principle because they thought it would achieve the best outcome. Given that custom is a source of law in preference to the common law, applying common law principles in preference to the custom of the parties is entirely inappropriate, and does not respect the customary practices of the parties.
This example reflects the tendency of judges to decline to apply customary law where it is inconsistent with their own standards. Further, even if such an inference cannot necessarily be drawn from the judge’s statement, the default to the common law demonstrates that where custom is not proven to the judge’s satisfaction, they will default to applying principles they are familiar with instead of searching for the applicable customary rule.
Aside from practical concerns, treatment of custom as a question of fact negatively impacts custom on a more theoretical level. Treatment of custom as fact automatically demotes
186 K v T and KU; In re Custody Application [1985] SBMC 2; [1985-1986] SILR 49; Sasango v Beliga [1987]
SBMC 5; [1987] SILR 91, In re Tiokobule Bero (an infant) [2007] SBHC 94.
187 See Tavasi v Meke - Maleiali Water Source Land [2010] SBCLAC 2, citing Sasango v Beliga, above n 186, which in turn cites Sukutaona, above n 185. See also To’ofilu v Oimai [1997] SBHC Civ APP 5/96 an evidentiary hearing was required before a local court’s findings about custom could be overturned, despite there being no legislative requirement to do so.
custom from its constitutional status as formal law.188 As noted, justifications given for the ‘question of fact’ approach is usually that it is made necessary by the unwritten and diverse nature of customary laws. This is valid, as judges unfamiliar with customary rules will need to access it in some way. However, conceptions of custom as a question of fact where it has been recognised as a source of law has been called ‘juristically inelegant,’189 as there is a dissonance between the recognition of custom as a source of law, and treatment of custom as a question of fact. Further, Sukutaona and Heirs of Taulung show that treating custom as a question of fact inhibits application of customary rules, demoting it from its status as a source of applicable law.
The above discussion shows that treatment of custom as a question of fact is not an appropriate approach for the ascertainment of custom. Custom is forced to squeeze it into the confines of the evidentiary rules. As a corollary of this, where judges are unable to obtain sufficient evidence of custom, they will decline to apply it in a way that does not give effect to the realities of the parties lived values, and merely pays lip-service to the notion of custom as law.
B. Custom as Law
In Pacific countries where custom is recognised as a source of law, this recognition provides a strong theoretical basis for approaching ascertainment as a question of law rather than fact.190 The biggest practical difference between the two approaches is that where custom is treated as law, judges may undertake their own inquiry into the existence and application of customary laws as part of the judicial research process.191 Under this approach, the tools and techniques of ascertainment are simply suggestions rather than technical rules about how courts must find evidence.192 Judges may on their own motion look for customary laws in the places they usually look for laws, for example in written documents, precedents, or by taking
188 Converging Currents, above n 27, at 13.16.
189 Allott, above n 6, at 250.
190 Corrin “Round Pegs and Square Holes: Pleading Indigenous Customary Laws in Australia and the South Pacific,” above n 58, at 476.
191 This is often termed taking ‘judicial notice’ of laws: see Te Aka Matua o te Ture | Law Commission Evidence Law: Documentary Evidence and Judicial Notice (NZLC PP22, 1994).
192 Converging Currents, above n 27, at 13.6.
notice of customs whose existence are widely recognised, and parties may rely on customary rules without adducing evidence in support.193
Some countries have made specific provision for custom to be treated as a question of law.194 Where this has occurred, it usually includes directive that judges may consider submissions but may also search for evidence of custom on their own motion. For example in Tuvalu, the existence and potential application of a customary rule is a question of law, and a judge may raise any question of customary law whether or not it has been raised by parties.195 The judge must first consider submissions made by parties, and if they entertain any doubts as to the existence or application of a customary law, must undertake their own inquiry into the matter.196 Additionally, in considering the application of customary law, the judge is not bound by the technical rules of evidence and may call and have regard to any evidence as they see fit.197 Given the problems outlined above in Heirs of Taulung and Sukutaona, this seems like a desirable approach to take, as in cases where insufficient pleading of custom has occurred, judges may investigate what the applicable customary rule is and consider all relevant information.
However, even in countries which have deemed custom to be a question of law, the problems discussed above endure. In Papua New Guinea, the Underlying Law Act specifically states that ascertainment of custom is to be approached as a question of law.198 Section 11 places a duty on counsel to assist the court by submitting evidence as to whether a customary rule applies, and that the court shall decide upon receiving these submissions. Section 16 states that a judge shall consider the submissions of the parties but may also on its own motion call and obtain evidence as it thinks fit. Read together, these sections could suggest that parties are under a duty to provide evidence, but that the judge will take these submissions into consideration but can also undertake their own inquiry. Noting the concerns outlined in preceding discussion, this approach appears desirable, as courts would not be inhibited by deficiencies in pleading.
193 Corrin "Accommodating legal pluralism in Pacific courts: problems of proof of customary law”, above n 158, at 7.
194 See for example Underlying Law Act 2000 (Papua New Guinea), s 16; Laws of Tuvalu Act 1987 (Tuvalu), sch 1 s 1(1), Law of Kiribati Act 1989 (Kiribati) sch 1 s 1(1).
195 Laws of Tuvalu Act 1987 (Tuvalu) sch 1 s 1(1).
196 Laws of Tuvalu Act 1987 (Tuvalu) sch 1 s 2.
197 Laws of Tuvalu Act 1987 (Tuvalu) sch 1 s 4.
198 Section 16(1).
Despite this, the Papua New Guinean courts have held that evidence of custom must be adduced before the custom may be considered. In New Britain Oil Palm Ltd v Sukuramu the court interpreted s 11 to mean that a rule of custom could not be enforced without first receiving pleadings of the relevant custom.199 The rationale for this ruling was that the phrase ‘upon receiving such evidence’ in s 11 meant that the court could consider customary law only after first having received pleadings on the subject matter. The court justified this by stating that all parties should have the opportunity to hear what was being considered in order to have a chance to respond, and that judges should not exercise unilateral power to create a new underlying law.200 This interpretation has since been codified in the National Court of Justice (Underlying Law Amendment) 2011 r 20(a), which amends the rules to provide that unless customary law is pleaded, it shall be deemed to have been pleaded that no rule of custom is applicable at all.201
The effect of this can be seen in Hariwaja v PNG Power Ltd.202 In that case, the plaintiff’s son was electrocuted. Among other things, the plaintiff sued for loss of dependency income that the child would have provided in the future. The judge noted the common law position that children were dependent on their parents, but stated that this was not necessarily the case in Papua New Guinea, noting that awards for future dependency loss for a child’s death had been awarded in previous cases.203 However the court held that in this case, r 20(A) stated that insufficient pleadings of the customary principle had been given which precluded the court from finding that future dependency loss was available.204 It seems irregular that the rule had been recognised in previous cases, yet failed here purely due to lack of pleadings.
The ruling of the case demonstrates a default to the common law position of child dependency in a way that does not take into account the reality of the Papua New Guinean context. Further, the Papua New Guinean approach shows that even where custom has been treated as a question of law, the courts have continued to treat it as a fact which must be adduced and proved by the parties.
199 New Britain Oil Palm Ltd v Sukuramu [2008] PGSC 29.
200 At [16]–[20]
201 Rules of the National Court of Justice (Underlying Law Amendment) 2011 (PNG), s 1.
202 Hariwaja v PNG Power Ltd [2018] PGNC 388.
203 See Simin Dingi v. MVIT. [1994] PNGLR 385; Muna Uokare v The State [1988-89] PNGLR 655; and Komba v Duwaba, above n 60.
204 At [19] – [22].
These examples illustrate some of the more general problems with treating custom purely as a question of law. The place that judges generally look to find evidence of laws is in precedent. The doctrine of stare decisis is inappropriate for custom, because custom rules are fluid and are often specific to the particular facts before it, with no assumption that a rule that has been applied before will be applied again.205 Additionally, the applicable custom may change every time in response to immediate facts, there will likely be a need to ascertain the exact scope of applicable custom rules every time a case comes before the court. This will particularly be the case where common law judges are unfamiliar with customary rules. These reasons go some way to explaining why judges, in countries custom is treated as a question of law, insist on treating it as if it were a question of fact. It has thus been commented that the need to ascertain custom in each case as if it were a question of fact has been deemed an unavoidable necessity.206
C. In a Category of its Own
The preceding discussion illustrates difficulties with conceptions of custom as either a question of law or fact. Treating custom as a question of fact confines it to the parameters of the evidentiary rules and limits judicial application. Treatment of custom as a question of law affords custom a strong level recognition and encourages judges to investigate the applicable custom rule on their own, yet this approach does not seem to work, as judges seem fixated on the fact that custom must be ascertained in every case as if it were a question of fact.
In Vanuatu, custom is recognised as part of the law of the country. At the Magistrate Court level, direction is given that magistrates are to regard custom as a question of law.207 However, no similar directive is provided to the superior courts. The question arose in Poilapa v Masaii as to whether a customary dispute on appeal from the Magistrate court could be heard by the Supreme Court, which is entitled to hear ‘questions of law, questions of fact, or questions of mixed law and fact.’ 208 The Supreme Court judge ruled that custom was
205 Corrin “Barava Tru”, above n 62, at 632.
206 Converging Currents, above n 27, at 13.6; Corrin “Round Pegs and Square Holes: Pleading Indigenous Customary Laws in Australia and the South Pacific” at 478.
207 Vanuatu Magistrates Bench Book 2004 (Vanuatu), chap 2 at 1.3.
208 Poilapa v Masaii VUSC 69; SC-CAC 128-2009 (6 June 2011)
a question of neither law or fact, but a question of custom, and thus was outside the jurisdiction of the Supreme Court and could not be considered.209
This reasoning was revisited and overturned a few years later by the Court of Appeal in Bob v Mala.210 The court in this case found that customary disputes were allowed from the lower courts, before stating that the custom in that instance was a question of fact and that, given that custom must be proved each time, questions of custom would “generally be questions of fact.” However the Court also opined that there was “no reason why simply because a court is considering a question of custom a question of law could not also arise.” The overall image is one of inconsistency and uncertainty. Attempts to slot it neatly into a particular category fail. Judges are unsure exactly what they are dealing with when it comes to the ascertainment of custom, as evidenced by Poilapa. It is also of note in that case that despite directive in the Magistrates book that custom is to be treated as a question of law, the Court of Appeal were definitive in stating that custom is generally to be considered as a question of fact.
When balancing the two approaches, commentators have noted that both are problematic, but generally suggest that treating custom as a matter of law is preferable as it more likely to facilitate access and understanding by the courts.211 However, given the inherent difficulties in ascertaining custom and the criticisms of both approach, the obvious answer seems to be that custom is neither strictly law nor fact, but something in between, or rather, in a category of its own.
Approaches around the Pacific demonstrate recognition of the need for tailored approaches to ascertainment. Some Pacific countries have made provision for Parliament to make specific rules for the ascertainment of custom.212 For example, the Solomon Islands Customs Recognition Act states that custom is to be treated as a question of fact, but states that the
209 I note that part of the reasoning for this conclusion was that surrounding legislation indicated that disputes relating to custom were not intended to go to the Supreme Court, but rather to be dealt with by the Island and Magistrate Courts due to the fact they would have a greater expertise in custom than Supreme Court judges. The judge in distinguished between issues of custom and pure questions of fact, and accepted that a question of pure fact relating to a customary dispute could come before the Supreme Court, giving the example of a dispute as to who is eligible to assume a particular chiefly title: “A finding that a particular chiefly title is to be passed on to the eldest son of the chief is a question of custom. Who that eldest son might be is be a question of fact.”
210 Bob v Mala [2015] VUCA 3. Note that in Vanuatu, the Court of Appeal is superior to the Supreme Court.
211 Converging Currents, above n 27, at 13.19
212 See for example Constitution of the Independent State of Papua New Guinea sch 2.1 3(a) and Constitution of Solomon Islands 1978 sch 3 3(3)(a); which states that an Act of Parliament may provide for the proof and pleading of custom.
court is not bound to observe strict procedural rules or technical rules of evidence.213 Even where countries do not have legislation specifically regarding the ascertainment of custom, all of the Pacific countries have relax the strict evidentiary rules to some extent especially with regard to hearsay.214
The need for a different, in-between approach to the ascertainment of custom has also been noted in case law. In Waiwo v Waiwo, the senior magistrate advocated for an approach somewhere between using judicial notice and the technical rules of evidence.215 In Palau, the court in Beouch v Sasao noted that custom had originally been held to originally be a question of law, but subsequent decisions had relegated custom to a question of fact. 216 The court in this case noted the ‘shifting and uncertain’ grounds of customary jurisprudence and entered into consideration of what the correct approach should be, stating that the Constitution “demanded better.”217 The court in Beouch subsequently held that ascertainment of custom and whether a customary rule meets the requisite test for recognition is a mixed question of law and fact, but that determination of whether a custom is binding is a pure determination of law.218
The need for a unique approach is clear. However, what is evident throughout the above discussion is the continued insistence to approach the ascertainment of custom within the common law frameworks of treating custom as fact or law, and the subsequent confusion this causes. Poilapa v Masaii is a particularly poignant example of this, as the judge precluded custom from the Supreme court jurisdiction by considering that customary issues met neither the definition of question of fact or law. When judges approach ascertainment as a matter of fact, they insist on evidence of its existence, and adherence to the rules of evidence. When custom is treated as a question of law, judges cannot escape the fact that it must be adduced every time, and default to treating it as fact. It is this continued insistence to fit custom into
213 Customs Recognition Act 2000, s 5.
214 See above, n 166.
215 Waiwo v Waiwo, above n 120.
216 Beouch v Sasao [2013] PWSC 1, citing Udui v. Dirrecheteet [1984] 1 ROP Intrm. 114 where custom had originally been held to be a question of law. This position had later been reversed in Remoket v. Omrekongel Clan [1996] 5 ROP Intrm. 225, 227, a decision which the court in Beouch termed ‘a clearly erroneous standard of review.’
217 At 8.
218 At 13.
the framework of the common law, and the confusion that this has caused, that contributes to the inhibited ascertainment of customary law and subsequent application.
This discussion demonstrates that strict adherence to either the question of fact or law approach is inappropriate, and further, the distinction hinders the ascertainment of customary law by confusing judges as to the correct approach to take. Custom has defining features, such as being fluid and unwritten, which demand certain approaches for ascertainment. It will need to be ascertained in every case, in order to respond to the facts at hand. I suggest that in recognition of the difficulties posed by the paradigm framework, an approach to ascertainment of custom should be crafted which recognises it as being in a category of its own, on the same level as law, but with specific appropriate requirements as to methods of ascertainment.
Chapter Five: A Cautionary Tale
This chapter draws general conclusions from the preceding discussion. I then outline the relevance of these lessons to Aotearoa New Zealand before providing some initial recommendations.
A. The Need for Proper Guidance
The starting point of my analysis was that where customary law is incorporated generally into the common law, the onus of development is shifted onto those who are furthest away from customary law and closest to the colonial law: judges. However, the capacity and desire for judges to apply customary law is framed by their common law training and limited by the confines of the system within which they operate.
In chapter three, I discussed instances where judges have either struggled with the application of customary law or declined to apply it. Where judges are given discretion as to the enforceability of customary law, they create arbitrary validity tests of limitation informed by their own value judgments. The lack of principled consideration as to who customary law will apply to has led to an automatic assumption that customary law does not apply to non- indigenous, which is inconsistent with the fact that it is the practiced reality of Pacific populations and a recognise source of law in many Pacific countries. Discussion in the commensurability section shows that application of customary principles may be framed by common law concepts in a way that does not appropriately capture the customary principle at hand. Though all these examples differ, they all point to tendencies of judicial decision making to be framed by their own context and resort to colonial principles and standards in instances of uncertainty and discretion.
Further, judges are constrained by the parameters of the common law system in which they operate. Evidence of custom must squeeze into the confines of the evidentiary rules to be considered. The distinctions as to whether custom is to be treated as a question of fact or question of law has created confusion as to what approach should be taken to ascertainment. Further, case law demonstrates that even where custom is recognized as a source of law or treated as a question of law, courts will insist on treating it as a question of fact. Problems with ascertainment are intimately connected with application, so where the courts do not access evidence of custom, they will decline to apply it.
The overall image is one of uncertainty and inconsistency, with a lack of principled consideration as to the resolution of these issues. Judges are guided by common law frameworks and systems without consideration as to the appropriateness of these approaches to customary law. The key barrier to the development of customary law has thus been the lack of thorough consideration as to how customary law will be applied in the common law system, and the lack of specific and considered guidance given to judges as to how to approach this. In the absence of specific directive (and even sometimes where there is specific directive) judges of the Pacific resort to application of common law principles in preference to customary laws.
The lack of guidance as an operative factor in the development of custom has been noted by commentators and judges. Commenting on the duty to develop the underlying law, one Papua New Guinea Supreme Court Judge has said “in some quarters it is fashionable to suggest that the Supreme Court is shirking this duty. It is not so. We are not given the tools with which to work.”219
B. Relevance to New Zealand
Although this dissertation has not attempted to make any comparisons between the two contexts, I draw briefly on an example from Aotearoa New Zealand noted in chapter one to make a comparison in support of my claim. Aotearoa New Zealand has never featured an express legislative repugnancy provision against which tikanga must be assessed.220 However, the common law courts created a validity test in the form of the now abolished colonial recognition test in Loasby. As noted earlier, one of the elements of the test was that any tikanga practice needed to be ‘reasonable’ to be enforced. Such vague wording recalls the ambiguous repugnancy provisions noted in Chapter three, and it has been noted that the benchmark of what constitutes “reasonableness” has historically been inconsistently applied
219 Tatut v Cassimus [1978] PGSC 11; [1978] PNGLR 295.
220 I note that one was nearly implemented in the proposed New Zealand Constitution Act 1852 (UK), s 71 which was drafted in very similar wording to the Papua New Guinean provision: “And whereas it may be expedient that the Laws, Customs, and Usages of the Aboriginal or Native Inhabitants of New Zealand, so far as they are not repugnant to the general principles of Humanity... It should be lawful for Her Majesty... from time to time to make Provision for the purposes aforesaid, any repugnancy of any such Native’s laws, customs, or usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding.”
by New Zealand courts.221 Further, it has been noted that this test imported colonial standards onto the assessment of tikanga, which was a key reason for its abolition in Ellis 222
Although abolition of this test was desirable, this now puts New Zealand in a situation where there is no guidance as to limiting factors on the application of tikanga at all. Pacific case studies indicate that any bright line must be considered and precise, or else judges will deliver inconsistent and value driven decisions. Where will the validity test be drawn in future?
Certainty and clarity is needed to ensure that tikanga is not subordinated at the discretion of those who prefer to rely on familiar principles and values.
The need for judicial guidance has been noted in Aotearoa New Zealand. Regarding the limited incorporation of tikanga Māori participation in state law, Williams comments:
“The problem may well be that judges are untrained and therefore poorly equipped to address the issue [of tikanga] even if it comes up...My own experience of judicial colleagues is that most are aware of the imbalance of Māori participation in the criminal and family courts and are willing both professionally and personally to address it. They just don’t quite know where to start.”223
The court in Ellis stated that the relationship between tikanga and the common law is one which will be defined and develop over time. Ambitions to this effect were held in the Pacific, but this has not occurred. Any attempt by Aotearoa New Zealand to give effective and appropriate recognition to tikanga in the common law going forward must involve supplying the judiciary with sufficient and specific guidance. New Zealand must give thorough consideration as to what the relationship between tikanga and the common law will be, and reconsider how the rules of the common law system will give effect to this.
221 See Coates, above n 1, at 45, citing Takamore v Clarke (CA), above n 17: The High Court examined reasonableness by looking at whether the custom was consistent with “other principles” of the common law and whether it was reasonable taking “the whole of the circumstances into account,” on the basis of maintaining the internal coherency of the state legal system. The Court of Appeal applied a stricter test by considering whether the custom was inconsistent with fundamental principles of the legal system.
222 At [113]–[116] per Glazebrook J, [177] per Winkelmann CJ and [260] per Williams J.
223 Williams, above n 38, at 33.
I note Te Aka Matua o te Ture | Law Commission has recently released a report mapping the place of tikanga in Aotearoa New Zealand, which aims to provide a principled framework for engagement with tikanga by the courts.224 I gladly note this report as consistent with my recommendation for the need for guidance. However, given the recent nature of this release, this dissertation has not engaged with any of the substantive recommendations or findings contained therein.
Specific recommendations for law reform are outside the scope of this dissertation. It is for Aotearoa New Zealand’s legal experts and pūkenga to consider what is best for the country going forward. However, I draw some initial recommendations from the identified issues.
C. Recommendations
Aotearoa New Zealand should implement specific and considered rules thoroughly considering the place that tikanga will have in the common law system, and the ways in which the systems of the common law must adapt to accommodate this.
Discussion in Chapter three demonstrated that validity tests have acted as a barrier to the application of customary law. Where none exist or the discretion limiting customary law is wide, judges will create validity tests or apply inconsistent limitations informed by their own value judgments. Aotearoa New Zealand should consider what rules of recognition will govern the enforceability of tikanga and implement specific and principled guidelines as to the relationship between tikanga and other laws or principles.
Regarding the question of to whom tikanga will apply, Ellis has officially established that tikanga values may inform development of the common law even where one of the parties is not Māori. However, the question of when a tikanga practice may be binding on non- indigenous parties is less clear. Examples in the Pacific context show that some sort of test based on intention to be bound by tikanga principles could be drawn. Aotearoa New Zealand should consider creating some sort of test with clear parameters, taking into account what will be most appropriate under tikanga Māori.
224 He Poutama (NZLC SP24, 2023), above n 6. See Te Aka Matua o te Ture | Law Commission “Tikanga Māori” https://www.lawcom.govt.nz/our-projects/tikanga-maori?id=1742.
Regarding commensurability, courts must be hesitant when giving effect to tikanga principles. Judges must carefully consider any tikanga principle at hand and whether proposed legal language or frameworks to be applied accurately captures the concept as understood by Māori. The Law Commission report will likely assist in familiarising judges with tikanga; but judges should still hesitate before attempting to give effect to a tikanga practice or attempting to blend tikanga with common law principles. Tikanga experts should be consulted before any attempt to ensure appropriate application of tikanga principles.
Regarding ascertainment, specific reconsideration of the most appropriate ways of ascertaining tikanga must be undertaken. I recommend actively abolishing the framing of ascertainment of tikanga as a matter of fact or law, and recognising tikanga as a system in a category of its own which requires specific rules and frameworks to ascertain it. Legislative provision should be made relaxing the rules of evidence, such as the rule surrounding hearsay, to take recognition of the specific needs that ascertainment of tikanga requires.
Further, guidance should be given as to how judges may investigate questions of tikanga where they are unsure on a matter. Additionally, there should be an imperative on judges to make their own inquiry where they are unsure on a matter, as there may be scope for more conservative judges to decline to exercise such an inquiry if there is no directive to do so.
Finally, I am a teine Samoa, 225 and proud of my Pacific heritage. This dissertation has unfortunately presented a negative account of Pacific legal systems for the sake of this argument. I would like to note the rich and thorough scholarship that has emerged from the Pacific, crafted by incredibly bright and considered scholars.226 Although I have written this dissertation as a cautionary tale, comparative study into the Pacific context by Aotearoa New Zealand should also consider inquiry into positive initiatives and legal discourse regarding the development of customary law in the Pacific, to aid Aotearoa New Zealand’s understanding of the role of indigenous values in a state legal system generally.
225 Sāmoan girl.
226 See Whimp, above n 34, for a comprehensive summary of legal literature from around the Pacific region.
Conclusion
This dissertation has outlined some reasons for the failure of customary law to develop in Pacific legal systems as a cautionary tale for Aotearoa New Zealand as it enters a revolutionary period in the recognition of tikanga. The role of tikanga has been left open in Aotearoa New Zealand to develop over time. The general thrust of my argument has been that the Pacific context shows that this is not sufficient. General incorporation of indigenous laws into the common law leaves development in the hands of judges, who are hampered by the frameworks and systems of the common law. Considered rules and guidance are needed to give appropriate recognition to indigenous laws.
In Chapter one, I introduced open questions identified in the Aotearoa New Zealand context as the guiding framework for my analysis. In Chapter two I explained the Pacific context, discussing how although the scope for application of customary law is broad, a customary law jurisprudence has failed to emerge in the Pacific, which can be attributed in part to the role of judges who are guided by their common law training and the frameworks of the common law system.
Subsequent chapters provided examples of instances where judges have struggled with the application of customary law or declined to apply it. Chapter three illustrated that where judges are uncertain of the limits on customary law, who it will apply to, and how to best give expression to customary concepts, custom will either be inappropriately applied or not at all. In Chapter four, I argued that the paradigm framework for ascertainment is not appropriate for customary law, and that those frameworks confuse judges, and by way of restricting access to customary law, inhibits their application of it.
Finally, underlying this dissertation has been an assertion that further comparative study between the two contexts should be undertaken. Aotearoa New Zealand and the Pacific countries are neighbours of the Oceania region, and comparative study investigating these issues will take steps towards the region shaking the shackles of colonial structures towards more ‘fair, just and culturally relevant’ legal systems.
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Vanuatu
Banga v Waiwo [1996] VUSC 5.
Bob v Mala [2015] VUCA 3.
In Re MM, Adoption Application by SAT40 [2014] VUSC 78.
In re Nagol Jump [1992] VULawRp 5.
Malas Family v Songoriki Family [1986] VULawRp 14; [1980-1994] Van LR 235.
Manassah v Koko [2005] VUIC 3.
Mouton v SELB Pacific Limited [1995] VUSC 2.
Noel v Toto [1995] VUSC 3.
Poilapa v Masaai [2011] VUSC 302.
Regenvanu Family v Ross [1987] VULawRp 3; [1980-1994] Van LR 284.
Waiwo v Waiwo [1996] VUMC 1.
A. Legislation New Zealand
Cook Islands Act 1915. Niue Amendment Act 1968.
Tokelau Amendment Act 1967.
Cook Islands
Constitution of the Cook Islands 1964.
Federated States of Micronesia
Constitution of the Federated States of Micronesia 2014.
Fiji
Kirbati
Magistrates Courts Ordinance cap 52 1977.
Nauru
Palau
Constitution of the Republic of Palau 1979.
Papua New Guinea
Constitution of the Independent State of Papua New Guinea 1975. Marriages Act Cap 280 1963.
Underlying Law Act 2000.
Samoa
Constitution of the Independent State of Samoa 1960
Solomon Islands
Constitution of Solomon Islands 1978. Custom Recognition Act 2000.
Forest Resources and Timber Utilisation Act 1996. Islanders Marriage Act Cap 171 1996.
Land and Titles Act Cap 133 1996.
Tonga
Act of the Constitution (Amendment) Bill 2020.
Tuvalu
Laws of Tuvalu Act Cap 1.06 2008 . Native Lands Act, Cap 46.20 2008.
Tokelau
United Kingdom
New Zealand Constitution Act (UK) 1852.
Vanuatu
Constitution of the Republic of Vanuatu 2006. Marriage Act Cap 60 2006.
B. International Instruments
United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/ Res/61/295 (2007) [UNDRIP].
C. Chapters in Books
Arnold Amet “Severing the Umbilical Cord from the Common Law” in J Aleck and J Rannels (ed) in Custom at the Crossroads (Faculty of Law, University of Papua New Guinea, 1995) 62.
Jean Zorn “Common Law Jurisprudence and Customary Law” in RW James and I Fraser (ed) Legal Issues in a Developing Society (Faculty of Law, University of Papua New Guinea, 1992) 103.
Marilyn Strathern “Losing (out on) Intellectual Resources” In Alain Pottage and Marthy Mundy (eds) Law, Anthropology, and the Constitution of the Social: Making Persons and Things (Cambridge: Cambridge University Press, 2004) 201.
Michael Ntumy “The Dream of a Melanesian Jurisprudence: The Purpose and Limits of Law Reform” in J Aleck and J Rannels (ed) in Custom at the Crossroads (Faculty of Law, University of Papua New Guinea, 1995) 7.
Sally Engle Merry “Relating to the Subjects of Human Rights: The Culture of Agency in Human Rights Discourse” in Michael Freeman and David Napier (eds) Law and Anthropology: Current Legal Issues (Oxford University Press, 2009) 385.
William Twining "Legal Pluralism 101" in Brian Tamanaha, Caroline Sage and Michael Woolcock (eds) Legal Pluralism and Development: Scholars and Practitioners in Dialogue Cambridge University Press, Cambridge, 2012) 112.
D. Books
Anna Dziedzic Foreign Judges in the Pacific (1st ed, Hart Publishing, Oxford, 2021).
Bernard Narokobi The Melanesian Way (Institute of Pacific Studies, University of the South Pacific, 1983).
Bernard Narokobi, Ron Crocombe, John D’Arcy May and Paul Roche Lo bilong yumi Yet = Law and custom in Melanesia (Goroka, Papua New Guinea: Melanesian Institute for Pastoral and Socio-Economic Service : University of the South Pacific, Suva, Fiji, 1989).
Brian Tamanaha Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (Leiden: EJ Brill, New York 1993) .
Guy Powles and Mere Pulea Pacific Courts and Legal Systems (University of the
South Pacific Clayton, Vic,Faculty of Law, Monash University 1988), Chaps 37 and 48.
Jean Zorn and Jennifer Corrin Care Proving Customary Law in the Common Law Courts of the South Pacific (Occasional Paper 2, British Institute of International and Comparative Law, London, 2002).
Jennifer Corrin and Tony Angelo Legal Systems of the Pacific: Introducing Sixteen Legal Gems (Intersentia, Cambridge, 2021).
Jennifer Corrin Care and Vergil Narokobi Introduction to South Pacific Law (5th ed, Intersentia, Cambridge, 2022).
Michael Hooker Legal Pluralism an introduction to colonial and neo-colonial laws (1st ed, Oxford: Clarendon Press, 1974)
Michael Hooker Legal Pluralism an introduction to colonial and neo-colonial laws (1st ed, Oxford: Clarendon Press, 1974)
Pierre Bourdieu and Loic Wacquant An Invitation to Reflexive Sociology (University of Chicago Press, Chicago, 1992).
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa Law Reform in Plural Societies (1st ed, Springer Cham, 2018).
E. Journal Articles
Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134
Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7.
Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7
Antony Allot “The Judicial Ascertainment of Customary Laws in British Africa” (1957) 20 M L R 244.
Benedicta Rousseau “This is a Court of Law, not a Court of Morality: Kastom and custom in Vanuatu State Courts” [2008] JSPL 22; (2008) 12(2) Journal of South Pacific Law 15.
Benjamen Franklen Gussen "A comparative analysis of constitutional recognition of aboriginal peoples" [2017] MelbULawRw 12; (2016) 40 Melb. UL Rev 867
Bruce Ottley and Jean Zorn “Criminal Law in Papua New Guinea: Code, Custom and the Courts in Conflict” (1983) 31(2) The American Journal of Comparative Law 251.
David Weisbrot "Papua New Guinea's Indigenous Jurisprudence and the Legacy of Colonialism” (1988) 10 U Haw L Rev 1.
Don E. Paterson “South Pacific Customary Law and Common Law: Their Interrelationship” (1995) 21(2) Commonwealth Law Bulletin 660.
Edward J. Eberle “The Methodology of Comparative Law” (2011) 16(1) Symposium: Methodological Approaches to Comparative Law 51.
Erika J Techera “Legal Foundations for the Recognition of Customary Law in the Post- Colonial South Pacific” (2009) 12 Law and Anthropology: Current Legal Issues 218.
Guy Powles “Common law at Bay?”(1997) 21 Journal of Pacific Studies 61.
H Morris and James Read “Indirect Rule and the Search for Justice” (1972) 18(2) Journal of African Law.
Ian Fraser “Legal Theory in Melanesia: Pluralism? Dualism? Pluralism Long Dualism” (1999) 3 Journal of South Pacific Law 3.
Janne Rohe, Hugh Govan, Achim Schlüter, and Sebastian Ferse “A legal pluralism perspective on coastal fisheries governance in two Pacific Island countries” (2019) 100 Marine Policy 90.
Jennifer Corrin "Accommodating legal pluralism in Pacific courts: problems of proof of customary law” (2011) 15(1) The International Journal of Evidence & Proof (1)
Jennifer Corrin "Getting Down to Business: Developing the Underlying Law in Papua New Guinea" (2014) 46(2) The Journal of Legal Pluralism and Unofficial Law 155.
Jennifer Corrin “A Question of Identity: Complexities of State Law Pluralism in the South Pacific” (2010) The Journal of Legal Pluralism and Unofficial Law 145.
Jennifer Corrin “A Question of Identity: Complexities of State Law Pluralism in the South Pacific." (2010) 42(61) The Journal of Legal Pluralism and Unofficial Law 145
Jennifer Corrin “Crossing the border from custom to contract: legal pluralism and Pacific Islands’ contract laws” (2021) 21(1) Oxford University Commonwealth Law Journal 73.
Jennifer Corrin “Customary land and the Language of the Common Law” (2008) 37(4) Common Law World Review 305.
Jennifer Corrin “Legal Scholarship and Pacific Islands Jurisprudence” (2021) CLJP 139 (2009) 41(59) The Journal of Legal Pluralism and Unofficial Law 29
Jennifer Corrin “Moving Beyond the Hierarchical Approach to Legal Pluralism in the South Pacific”
Jennifer Corrin “Round Pegs and Square Holes: Pleading Indigenous Customary Laws in Australia and the South Pacific” (2014) 33 CJQ 475.
Jennifer Corrin and Jean Zorn “Barava Tru': Judicial Approaches to the Pleading and Proof of Custom in the South Pacific” (2002) 51 The International and Comparative Law Quarterly 611.
Jennifer Corrin Care “Customary Land in the Solomon Islands: A Victim of Legal Pluralism” (2012) Droit Foncier Et Gouvernance Judiciaire Dans Le Pacifique: Land Law and Governance in the South Pacific 12.
Jennifer Corrin, “Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific” (2017) 48 Victoria University of Wellington Law Review 305
John Chesterman "Indigenous Peoples' Rights in Australia, Canada, and New Zealand." (2000) 35(1) Australian Journal of Political Science 151.
John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law 56.
John Griffiths "What Is Legal Pluralism" (1986) 24 Journal of Legal Pluralism and Unofficial Law 1.
Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1.
Judson Falknor “The Hearsay Rule and Its Exceptions” (1954) 2 UCLA L Rev 43.
Kenneth Brown “Customary Law in the Pacific: An Endangered Species?” (1999) 3 Journal of South Pacific Law 2.
Kenneth Brown “The Language of Land: Look Before You Leap” (2000) Journal of South Pacific Law.
Melissa Demian “On the Repugnance of Customary laws” 2014 56(2) Comparative Studies in Society and History 508.
Miranda Forsyth “Beyond Case Law: Kastom and Courts in Vanuatu” (2004) 35 Wellington L Rev 427.
Morsen Mosses “Custom as a Source of Law in Vanuatu: A Critical Analysis” (2017) 2017 Journal of South Pacific Law 37.
Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] 1 New Zealand Law Review 1.
Owen Jessep “Developments in the Underlying Law of Papua New Guinea” (2012) 4 PGULJ 25.
Owen Jessep “The Elusive Role of Custom in the Underlying Law of Papua New Guinea” (1998) 1 MLLJ 26.
Raymond Atuguba “Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Sub Saharan Africa” (2022) 3(1) McGill Journal of International Law & Legal Pluralism.
Richard Walter, Hallie Buckley, Chris Jacomb and Elizabeth Matisoo-Smith “Mass Migration and the Polynesian Settlement of New Zealand” (2017) 30 Journal of World Prehistory 351.
Robert J Miller and Jacinta Ruru “An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand” (2008) 111 W Vir L Rev 849.
Robert Miller, Robert and Olivia Stitz "The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery." (2021) 32 Duke J. Comp. & Int'l L 1.
Sue Farran “Goodhew v Goodhew [2007] SBHC 140: Towards a South Pacific Jurisprudence?” [2008] JSPL 4; (2008) 12(1) Journal of South Pacific Law 120.
Sue Farran “Palm Tree Justice? The Role of Comparative Law in the South Pacific” (2009) 58 The International and Comparative Law Quarterly 181.
Sue Farran “South Pacific Land Law: Some Regional Challenges, Cases and Developments” (2001) 32 Victoria U. Wellington L. Rev 953
Tess Cain Newton “Convergence or Clash? The Recognition of Customary Law and Practice in Sentencing Decisions of the Courts of the Pacific Island Region” (2001) 2 MelbJlIntLaw 48.
Yaad Rotem “Foreign Law as a Distinctive Fact- To Whom Should the Burden of Proof Be Assigned?” (2014) 14(2) Chicago Journal of International Law 625.
F. Government Materials
Vanuatu Magistrates Bench Book 2004.
G. Papers and Reports
Alice Pollard Bride price and Christianity (State Law and Government in Melanesia Project’s 1998 Workshop: Women, Christians, Citizens: Being Female in Melanesia Today, at Australian National University, Research School of Pacific Studies, Canberra, 1988)
Graeme Whimp Anthropology of Law in the Pacific Literature Review (Pacific Islands Information Insitute, 2016).
Michael Belgrave “Māori customary law - From Extinguishment to Enduring Recognition (unpublished paper for the Law Commission 1996).
Robert Joseph “Comparatively Speaking” (Te Mätähauraki Research Institute, Summary Paper for Objective 2, 2001).
Siobhan McDonnell, Joseph Foukona, Dr Alice Pollard “Building a Pathway for Successful Land Reform in Solomon Islands” (Department of Pacific Affairs, Report, 2015).
Te Aka Matua o te Ture | Law Commission Converging Currents (NZLC SP17, 2006).
Te Aka Matua o te Ture | Law Commission Evidence Law: Documentary Evidence and Judicial Notice (NZLC PP22, 1994).
Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023).
Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023).
H. Theses
Campbell McLachlan “State Recognition of Customary Law in the South Pacific” (Thesis, University of London, 1988).
I. Internet Materials
Miranda Forsyth and Robert Torres “Renewal of custom and tradition in Micronesia’s legal systems” (4 July 2023) DevPolicyBlog. https://devpolicy.org/renewal-of-custom-and- tradition-in-micronesias-legal-systems-20230704/
Australian Law Reform Commission “Assessors” (18 August 2010) Australian Government https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report- 31/26-other-methods-of-proof-assessors-court-experts-pre-sentence-reports/assessors/
J. Other Resources
Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020, as cited in Ellis v R Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.
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