¶ 201
Overview
Scope of the chapter. A Cook Islands international trust, limited liability company or foundation is governed by a statute of the Cook Islands Parliament. The statute is never the whole of the governing law. It is read against the Constitution, which is the supreme law; against older enactments that have never been repealed, including parts of a New Zealand Act of 1915; against the common law and equity received from England; and against the decisions of the Cook Islands courts and the Privy Council, which draw freely on New Zealand and English authority. This chapter identifies each of those sources, explains how they rank against one another, and shows how the international statutes displace or select the governing law. It closes with the practical questions of where to find the authoritative text and how to cite it.
Why the sources matter to the planner. The protective provisions of the International Trusts Act 1984 are often described as if they operated in a vacuum. They do not. The Act itself preserves "[t]he laws applicable to trusts in force in the Cook Islands immediately prior to the commencement of this Act," except so far as they are inconsistent with or modified by the Act. International Trusts Act 1984, § 3 (Cook Is.). Everything the Act does not address, from the formalities of a declaration of trust to the duties of a trustee in a matter the Act leaves open, is therefore governed by the general law of the Cook Islands, and the general law is largely received law. A planner who knows only the Act knows the exceptions without the rule.
The sources in brief. The Cook Islands High Court Bench Book lists four sources of law: the Constitution; legislation, including Acts, ordinances and regulations; the common law; and custom. Cook Islands High Court Bench Book § I.2.1 (Pac. Judicial Strengthening Programme, current as at Feb. 2024). The list conceals three layers of history. The first is colonial: New Zealand legislated for the islands from 1901 until 1965, and its Cook Islands Act 1915 applied the law of England as it stood on January 14, 1840. The second is constitutional: the Constitution of 1965 continued the existing law and gave the new legislature power to repeal it. The third is contemporary: since 1981 no later New Zealand Act extends to the Cook Islands unless a Cook Islands Act adopts it, and the Cook Islands Parliament has built its international statutes on that foundation.
A source that was lost and restored. The most striking recent event in the history of these sources is the fate of section 615 of the Cook Islands Act 1915, the provision that receives English law. It was repealed in June 2019 by an infrastructure statute, plainly by mistake, and re-enacted in 2020 with retrospective effect. Jennifer Corrin, Turning Back the Clock: The Cook Islands Amendment Act, 28 Comp. L.J. Pac. 83, 87–88 (2022). The episode is examined at ¶ 250. It illustrates two features of Cook Islands law that recur in this treatise: the statute book is old, layered and imperfectly consolidated, and the Parliament acts promptly to restore the law when an error is found.
Organization. Paragraph 210 sets out the hierarchy of Cook Islands law. Paragraph 220 examines the Constitution as supreme law and the clause continuing the existing law. Paragraph 230 examines Acts, ordinances and subsidiary legislation. Paragraph 240 examines New Zealand law in the Cook Islands, including the Cook Islands Act 1915 and New Zealand Acts adopted by Cook Islands legislation. Paragraph 250 examines the reception of English law under section 615 and the rule that equity prevails. Paragraph 260 examines how the International Trusts Act and the other international statutes displace the received law and choose the governing law. Paragraph 270 examines precedent and persuasive authority, with a full discussion of the Privy Council's decision in Webb v. Webb. Paragraph 280 examines custom. Paragraph 290 explains how to research and cite Cook Islands law and closes with a checklist.
Relationship to other chapters. Chapter 1 describes the constitutional settlement of 1965 and the growth of the international sector (see supra ch. 1). Chapter 3 examines the courts that apply these sources (see infra ch. 3). Chapter 5 examines the International Trusts Act in detail, including its amendments (see infra ch. 5). This chapter refers to those discussions and does not repeat them.