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‘We are the people’

Saturday 5 March 2022 | Written by Te Ipukarea Society | Published in On the Street, Opinion

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‘We are the people’
Dame Makea Karika Margaret Ariki and other members of the Aronga Mana lead the most recent protest march against purse seining. PHOTO: CI NEWS/16061728

The following comments are made, in part, as a response to the statements made by Prime Minister Mark Brown on Cook Islands Television on March 1, 2022.

This was in relation to the recent hearing of the purse seine fishing case at the Privy Council in London in November 2021, with the judgment handed down on February 28, 2022.

This was following cases in the Cook Islands High Court in 2017 and an appeal to the Cook Islands Court of Appeal in 2018.

It was very misleading of the Prime Minister to say that our case had been thrown out by the Privy Council. This suggests that our case had no merit. 

Obviously that is not true, as we won important aspects of this case in the Cook Islands Court of Appeal in 2018. 

The Privy Council in fact gave the case very careful consideration and also agreed with certain aspects of the Court of Appeal opinion, particularly on the value of consultation with the Aronga Mana (traditional leaders).

It was also a gross misrepresentation of the facts for the PM to state that we took the Cook Islands people along with the government to court. 

Te Ipukarea Society, along with William Framhein acting on behalf of the Aronga Mana of Te au o Tonga, took only the government to court, and we were acting on behalf of the people. 

This included over 4000 resident Cook Islanders from throughout the country who signed a petition asking government not to allow purse seine fishing in our waters.

The same petition promoted by hundreds of people marching in the streets and chanting “auraka e kupenga” with Dame Margaret Karika proudly leading from the front. The same petition which Government dismissed after a one sided select committee hearing.

We agree that taking the case all the way to the Privy Council was extreme, and costly. However, it was in fact the government that took the issues of environmental impact assessment and precautionary approach to the Privy Council, having lost that very important part of the case in the Cook Islands Court of Appeal. 

William Framhein, acting on behalf of the Aronga Mana of Te Au o Tonga, and also appealed some of the Court of Appeal ruling. That was in regard to the Aronga Mana being key stakeholders, who should be consulted in matters regarding management of our fishery resources.

Both the Aronga Mana of Te au o Tonga and Te Ipukarea Society maintain they should be considered key stakeholders, and that challenging that decision of the Court of Appeal was valid. 

The fact that this case made it all the way to the Privy Council should demonstrate to the government that Te Ipukarea Society and the Aronga Mana both need to be considered key stakeholders.

In fact, we believe the whole legal challenge, costly and stressful for us all, would never have been needed if only Government had been more transparent and consultative in the first place.

Although conceding that the Privy Council ruled, under the strict letter of the law, that government did not have to consult with the Aronga mana, this was because the Aronga Mana’s rights have been removed under the Marine Resources Act. 

The High Court, Court of Appeal and the Privy Council all encouraged a greater level of consultation by the government.

The PM also said the Privy Council ruling showed that the Cook Islands has followed the Constitution and law in regard to the purse seine fishery in the Cook Islands. 

Again, not true. 

In fact, the Cook Islands Court of Appeal in 2018 ruled that government was in breach of the law, in failing to conduct a review of the 2013 Purse Seine Fishery Plan every two years. 

They were ordered to undertake a review within 12 months of the September 2018 Court of Appeal judgement.

Government did not appeal that ruling yet continue to be in breach of this legal obligation.

We call upon the government to remedy that and include the community as part of that and future reviews. 

Despite the results in the Privy Council, the Cook Islands government should not take a narrow, legalistic view of its obligations.

It should not hide behind the legislation it has passed to cut out the wider Cook Islands community from management of its most important resources. 

Only by including the community can sound decisions be made.  

We remain boosted by the fact that we did have a major victory in the Cook Islands Court of Appeal in 2018. We believe this is a court closer to the realities of indigenous rights and natural resources in our region.  

The Privy Council meanwhile has been described in the literature as a relic of the colonial past which should no longer decide a nation’s most important legal issues.

We are unsure what the motivation of the Prime Minister was for attempting to discredit the work Te Ipukarea Society does on behalf of our people and environment.

Belittling the work and opinions of many of the voting public is petty and invalidating.

Te Ipukarea Society will continue to represent the voice of the people on environmental issues and will always advocate for improved transparency and accountability in the Cook Islands.

We invite the PM as well as anyone else to visit our website at tiscookislands.org to see more on the work we do for the people.