Land Tenure in the Cook Islands
B. Protectorate Period 1888–1900
B. Protectorate Period 1888–1900
1888: Laws of Penrhyn Islands - CM. Only the ‘chief laws', copied by Hunter. No express provisions about land.’
(Hamilton Hunter to High Commissioner 10.9.1896 WPHC)
1890: E Akamoni i te au ture (For upholding the law) - IC. Gave the ariki of Rarotonga the power to appoint judges (apparently confirming what was in most instances the de facto situation), and confirmed the validity of all existing laws meantime.
(NZPP A3 1891:33)
1890: Power of Pardon Act - IC. Gave the Council power to pardon persons sentenced in any Court, and to remit or reduce punishments.
(NZPP A3 1891:34)
1891: Letter of instructions from Governor of New Zealand to Mr Moss (first British Resident) 25.2.1891 - Gov. ‘…you hold your appointment under the Governor of this colony, who instructs you after consultation with his Advisers. …leave the natives in the possession of their existing right of legislating for themselves, reserving to yourself a veto on all laws which may seem to interfere with the liberties of Her Majesty's subjects…’. Pointed out that it was the policy of the British government in the Pacific page 317 not to allow the purchase of land by private persons excepting through the government, and enjoined Mr Moss to adhere to that policy in the Cook Islands.
(NZPP A1 1891)
Various dates: Laws of Mangaia as at 1891 - CM. (Being a listing of laws then in operation.) Clause 16 read: ‘Disputed boundaries - The Judge shall inspect the land and decide. If the disputants still fight, they shall be fined $20 each - namely, $4 cash and $16 trade.’
(NZPP A3 1892:17)
1891: A Law to Provide for the Good Government of the Cook Islands - FP. Constituted the Federal Parliament and provided that ‘each island shall continue to govern itself as much as possible’ subject to all future local laws being approved by the British Resident.
(NZPP A3(a) 1891:6–7)
1891: Law for the future govenment of Mangaia - IC. Appointed judges for each district and made future appointments of judges the responsibility of the ariki and ‘governors’. Created a Council which was henceforth to be the only law-making body on the island.
(NZPP A3 1892:13–14)
1891: A Law to Provide for the good government of Aitutaki - IC. Set up a council similar to Mangaia's with powers, inter alia, to appoint judges. (Judges were appointed by ‘Law No. 3 - The Judges’ on the same day.)
(NZPP A3 1892:23)
1891: To settle disputes about Land (Aitutaki) - IC.
That all disputes as to the boundaries or ownership of land shall be heard by the three Judges, whose decision shall be reported to the Government [i.e. the four ariki plus six members of the local Council] for confirmation.
Any person feeling himself aggrieved by the Judges decision must appeal to the Government. The Government shall then refer the whole case to the Council, whose decision shall be final.’
(NZPP A3 1892:27)
1891: For Electing the Au (Rarotonga) - IC. Clause 5 empowered local Au (district councils) to impose ra'ui on crops. Other powers of the Au were very loosely defined but included a duty to ‘maintain order’ and a right to make laws. A clearer definition of their powers was given in The Au Empowering Act 1899: see under that heading. (A similar law was enacted by the Council of Mangaia.)
(NZPP A3(a) 1891:22)
1891: Amendment to Law 11 (of the Laws of Rarotonga 1879) - IC. Provided that this law would henceforth be executed not by district courts but by the judges of the three districts sitting together. (The law referred to dealt with disputes involving land between senior and junior relatives in the same authority structure.)
(NZPP A3(a) 1891:23)page 318
1891: A Law to establish a Supreme Court - FP. Established a Supreme Court for the Cook Islands Federation and gave that Court exclusive jurisdiction in dealing with breaches of Federal laws. It also provided that any case involving foreigners might, at the request of either party, be transferred to the Supreme Court. (The title of the Court was changed in 1894 to the Federal Court.)
(NZPP A3(a) 1891:13)
1894: Declaration as to Land - FP. ‘We, the Parliament of the Cook Islands Federation…hereby declare the customs of the Maori in that matter from time immemorial to the present day…. The land is owned by the tribe; but its use is with the family who occupy that land. The family consists of all the children who have a common ancestor, together with the adopted children, and all the descendants who have not entered other tribes. The control of that land rests with the head of the family; but it is for the support of all the family…. No Maori can sell to another Maori, or to a foreigner. Therefore on that point we need not say more.
Land has been leased in two ways: (1) For fixed periods, and with rent to be paid in money; (2) for indefinite periods on the Maori tenure, and with rent to be paid in services or in kind…. [Leases] are to be interpreted according to Maori law, and not according to foreign laws or customs….’
It also provided that the right of access to water and to the use of roadways could not be denied except by a law of the Council.
(NZPP A3 1895:8)
1894: Animals Act (Rarotonga) - IC. Provided for the impounding of wandering stock and penalties for allowing animals to stray onto the land of others.
(NZPP A3 1895:18)
1894: Guavas Act (Rarotonga) - IC. Required landowners to destroy all guava trees growing on their land. (This was the first provision relating to noxious plants in the group; later provisions for the control of noxious weeds and pests have been enacted from time to time, but are not included in this list.)
(NZPP A3 1895:19)
1894: Tax for Roads Act (Rarotonga) - IC. Imposed a road tax of one dollar per year on every householder, and an additional tax of one-quarter cent per foot to one cent per foot on the road frontage of all other occupied lands. (This was the first provision relating to any form of taxation on the basis of landholding.)
(NZPP A3 1895:19)
1894: Land Occupants Act (Rarotonga) - IC. Clause 1 provided that disputes over the ownership and use of land were to be heard by the judge of the relevant district.
Clause 2 required that ‘The Judge shall then hear the case, and send his judgement to the Ariki of the district, whose decision thereon shall be final’.
Clause 3 provided that persons occupying village lands were guaranteed ‘full and quiet possession of such land’ so long as the person concerned or his page 319 descendants continued to occupy. If the occupier died without issue the land was to revert to the donor or his issue.
Clause 4 provided that if the original owner of any land died without issue, such land was to revert to ‘the people and Government of Rarotonga’, to be dealt with by the Council for public purposes.
(NZPP A3 1895:20)
1895: Land for Public Purposes Act (Rarotonga) - IC. Empowered the government to acquire land for public purposes and provided procedures for determining compensation for lands taken.
(NZPP A3 1896:23)
1895: An Act to Guard against secret dealings in Native Lands - FP. Required that all land transactions must be registered within three months of negotiation and that all past transactions must be registered before 31.12.1895 or they would not be recognized in any court. Registration was designed to give security to the deed itself, but did not give it any additional validity. All deeds registered were to be publicly notified.
(NZPP A3 1896:10–11)
1896: Te Au Ture Enua i Manihiki (The Land Laws of Manihiki) - CM. Part 1 provided that all land claims were to be based on the current situation, and that old claims, past wars, etc., were not to be considered.
Part 2 concerned the resolution of disputes between landowners and persons who planted by permissive occupation.
Part 3 dealt with cases where coconut trees were owned separtely from the land on which they were planted (a special feature found on the atolls).
Part 4 concerned the land of sub-chiefs.
Part 5 regulated the planting of land other than one's own, and delimited the period of non-use after which land rights lapsed.
Part 6 specified the rights of orphan children.
Part 7 concerned relations between chiefs and commoners on the land.
Part 8 dealt with tribute.
Part 9 concerned lands which changed hands during heathen times.
Part 10 dealt with customs relating to coconut trees.
Part 11 specified the conditions under which gifts of land were permissible.
Part 12 and 13 dealt with wills relating to land.
Part 14 dealt with delegation of rights by absentees.
Part 15 provided penalties for breaches of the law.
1898: High Court Act - FP. Repealed the ‘Law to Establish a Supreme Court’ of 1891 and created a High Court for the Federation and gave it exclusive jurisdiction in all offences against Federal laws, in all cases between foreigners or between foreigners and Maoris. Under certain circumstances also cases were to be transferred from district courts to this Court. Judge Gudgeon took land cases under this Act - e.g. Ioi Karanga 14.4.1900.
(NZPP A3 1899:11–12)page 320
1899: The Land Act - FP. The full title of this act was ‘An Act to Secure uniformity in Leases and Security of Tenure to Foreign Lessees within the Island of Rarotonga’.
Clause 2 established a Land Board to consist of the British Resident and the five ariki of Rarotonga. Any mataiapo whose land was the subject of enquiry was entitled to a seat on the Board during the course of the enquiry.
Clause 3 required the Board to protect the rights of the native population.
Clause 4 required that before a lease could be registered it had to have the approval of the British Resident and at least three ariki.
Clause 5 empowered the Board to impose conditions on leases, including the condition that specified numbers of commercial trees be planted.
Clause 9 prohibited the leasing of land which was in the beneficial occupation of a native, or when a native had been ejected in order that the land may be leased.
Clause 16 forbade the payment of rental more than one year in advance.
Clause 18 read ‘And whereas a large portion of the best land…is not in the beneficial occupation of any person…and whereas there are large numbers of persons of the Maori race in this island who have no land rights, and who will never become producers unless fixity of tenure is given to them; it shall therefore be the duty of the Board to consider the means whereby land on perpetual lease may be secured to all of the deserving members of the native-born Rarotongans’.
When enacted on 26.7.1899 this act was applied to all islands in the group.
(NZPP A3 1900:8–9)
1899: An Act to Provide for the Rating of Land in the Occupation of Foreigners - FP. Empowered the government to impose an annual tax not exceeding one shilling in the pound of the rental value of land occupied by foreigners. The purpose of this act was to raise revenue for public works.
(NZPP A3 1900:5)
1899: The Au Empowering Act - FP. Defined the powers of the existing Au (district councils) to include the imposition of ra'ui, the right to order any landowner to plant such crops as might be specified by the Au, the duty to report to the government those landowners who neglected their lands, the duty to protect the land rights of the sick and under-privileged, the right to contract for the bulk sale of the produce of the district, and the right to impound wandering stock.
(NZPP A3 1900:4–5)
1899: Statute of Mangaia - FP. Clause 21 gave the local judge power to hear land cases, but a right of appeal to the Chief Judge of the High Court (Gudgeon) was provided for.
(NZPP A3 1900:9)
1899: Statute of Atiu, Mauke and Mitiaro - FP. Clause 24: as for clause 21 of the Statute of Mangaia.
(NZPP A3 1905:73–5)page 321
1899: Statute of Rarotonga - FP. Clause 24: as for clause 21 of the Statute of Mangaia.
(NZPP A3 1905:71–3)
1899: Statute of Aitutaki - FP. Clause 50 established a separate court for land cases, to comprise the Resident European Magistrate and two assessors (one to be chosen by each of the parties).
(NZPP A3 1900:19–20)
1899: Rules for the Conduct of the Resident Magistrate's Court and Native Land Court under the Statute of Aitutaki 1899 - RC. Rules of procedure. Provided for an appeal from this court to the High Court. Scale of fees for court services scheduled.
(Cook Islands Gazette 11.12.1899)
1900: The Islands Statutes Amendment Act - FP. ‘8. The High Court of the Cook Islands may, at the request of the Chief of the Government, do any one of the following things in order to decide or prevent land disputes:-
May order a survey of the land.
May ascertain, and inscribe on the rolls of the Court, the names of all the owners of any block of land.
May assess the land-tax payable by such land in each year in order to defray the costs of surveying and of the hearing.’
(NZPP A3 1901:10)