Traditional Leaders, NGO Flight To Stop Cooks Fisheries Deal

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Pacific Islands Development Program, East-West Center With Support From Center for Pacific Islands Studies, University of Hawai‘i

Government effort to quash judicial review fails

By Florence Syme-Buchanan

RAROTONGA, Cook Islands (Cook Islands News, Dec. 3, 2015) – A submission by Crown Law for an application for a judicial review and interim injunction by aronga mana and Te Ipukarea Society to be struck out was declined yesterday in the High Court by Justice Christine Grice.

Justice Grice accepted the submission by counsel for the plaintiff William Framhein that both cases "go hand in hand" and as such should be heard together.

Yesterday’s preliminary hearing was the first of its kind, traditional leaders and NGO Te Ipukarea Society applying to the courts for a judicial hearing and injunction on the government to try and stop a purse seining licence being entered into between the Cook Islands and European Union.

Crown counsel Alison Mills said that while she was "loathe to oppose" representation by Framhein given the high public interest in the matter, she felt compelled to do so on the grounds that a judicial review is "quite complex" and appropriate legal advice would need to be sought by the plaintiff. Framhein is not a qualified lawyer.

Justice Grice resolved the matter by giving Framhein leave to appear yesterday but cautioned that the plaintiff would be well advised to seek guidance from a legal representative.

To a packed courtroom, the judge acknowledged public interest in the case, its importance and that it dealt with a difficult area of the law.

Mills submitted that one of the plaintiffs, Te Ipukarea Society, had not filed any documentation towards the case and that identification of the aronga mana purporting to support the application for judicial review and injunction hadn’t been made.

One of the first issues Justice Grice raised is the Crown Proceedings Act and whether an injunction can be obtained at all against the Crown by virtue of Section 3 of the Judicature Amendment Act.

She opined that there were gaps in the memorandum submitted by Framhein and advised the plaintiffs to seek legal counsel.

Justice Grice felt the best option would be to adjourn the case to enable plaintiffs to prepare for repleading and to remedy any "legal defects."

The repleadings have to be served by the plaintiff on Crown Law by January 29, 2016.

Justice Grice noted that courts have a limited role to play when it comes to parliamentary processes."

"This an area where the court is very cautious and an area to be discussed in the judicial review."

In adjourning the case, she called for individuals involved to be brought together for a telephone conference to determine a suitable timetable when a judge would be available to hear the case some time in March next year.

The plaintiff applications name the first, second and third defendants respectively as Prime Minister and Minister of Marine Resources Henry Puna, Ministry of Marine Resources secretary Ben Ponia and the European Union.

The plaintiffs are Apai Mataiapo Komono Tekeu Framhein for the aronga mana of Te Au O Tonga, Puaikura and Takitumu and TIS.

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