Land Tenure in the Cook Islands
C. Dependency Period 1901 – Present
C. Dependency Period 1901 – Present
1901: Cook and Other Islands Government Act (and amendments) - NZP. Section 2 provided that all existing laws and customs were to remain until alternative provisions were made.
Section 3 permitted any New Zealand enactment to be applied to the Cook Islands.
Section 4 confirmed the existing courts of justice but provided an appeal from the High Court of the Cook Islands to the Supreme Court of New Zealand.
Section 6 provided for the establishment of a Land Court in the following words: ‘The Governor, by Order in Council, may from time to time establish a tribunal, or appoint an officer or officers, with such powers and functions as he thinks fit, in order to ascertain and determine the title to land within the said islands, distinguishing titles acquired by native custom and usage from titles otherwise lawfully acquired, and may provide for the issue of instruments of title, and generally make such provision in the premises as he thinks fit’.
Section 7 required that future ordinances of the Federal and Island Councils be assented to by the Governor before coming into effect.
Section 12 empowered the Governor to take land for defence or public purposes. (This was an act to provide temporarily for the administration of the Cook Islands and was to have effect only until the next session of the New Zealand Parliament. It was subsequently extended for a further two years by the Cook and other Islands Government Amendment Act of page 322 1902, and made permanent by the Cook and other Islands Government Amendment Act of 1904.)
(Statutes of New Zealand 1901)
1902: Order in Council - OIC. Part 2 established the ‘Cook and Other Islands Land Titles Court’ under Section 6 of the Cook and Other Islands Government Act of 1901. It was to consist of not less than two judges, one of whom was to be a European and he was to be designated Chief Judge. The Chief Judge was empowered to appoint assessors as required.
Part 3 laid down the jurisdiction of the Court as follows.
To investigate title to land.
To determine the relative interests of various owners.
To effect exchanges.
To determine successors.
To grant probate on wills.
To limit alienation of particular lands.
To determine, confirm or alter leases.
To restrain persons from certain acts in relation to land.
To determine that certain lands should be held in trust.
To reserve land for public purposes.
To fix rents for lands occupied by natives other than the owners of the lands concerned.
To issue instruments of title.
To appoint trustees.
To rehear cases which had been appealed against. (There were in addition other minor provisions.)
Part 4 dealt with the operation of the Court and provided, inter alia, that:
while the Chief Judge could sit alone, no native Judge could sit except with the Chief Judge;
no person could be represented or assisted by an agent or counsel without the prior consent of the presiding Judge, and such consent could be withdrawn at any time;
the Court could amend any ‘defects or errors’ in any proceeding or document in order to give effect to ‘the intended decision’;
the Chief Judge could make rules of practice and procedure for the Court.
(NZPP A3 1903:7–10)
1902: Rules and Regulations of the Cook and Other Islands Land Titles Court - RC. Made under the above Order in Council. In addition to procedural matters these rules empowered the court, inter alia:
to partition land;
in the case of multiple ownership, to define the relative interests of the various owners in shares or fractions of a share;
to amend wills relating to land if the testator made inadequate provision for some of his heirs;
to control and confirm alienations of land, and generally to implement the provisions of the above Order in Council. Rule 127, however, empowered the Court to dispense with any of the rules excepting rules 111 to 119 (re instruments of title, etc.).
(Cook Islands Gazette 14.11.1902)page 323
1902: The Protection of Property Ordinance - FC. Provided for the compulsory fencing by all occupants of a tapere of the land of any man within that tapere whose lands had suffered repeated acts of petty larceny. Also provided for punishment of trespassers.
(Cook Islands Gazette 29.4.1902)
1902: Regulations for the leasing of land at Aitutaki - RC. Required that before any lease could be registered or recognized on Aitutaki, the Resident Magistrate had to certify that the lessor was in fact the owner of the land concerned, and that the terms of the lease were fair and reasonable.
(Cook Islands Gazette 24.6.1902)
1903: The Coast Timber Conservation Ordinance (Rarotonga) - IC. Placed all coastal lands under the control of the district ariki and forbade landowners to exercise any act of ownership on those lands without the written permission of the ariki concerned and the Resident Commissioner.
(Cook Islands Gazette 23.2.1903)
1903: The Manihiki Ordinance No.1 - IC. Gave the Island Council power to control wandering stock and trespass and to impose ra'ui over all lands on the island. Limited the number of coconuts which could be used for ceremonial exchanges.
(Cook Islands Gazette 1.9.1904)
1903: The Fencing Ordinance (Rarotonga) - IC. Required all lands in the occupation of Europeans and ‘half-castes living as Europeans’ to be boundary fenced at the expense of the occupier.
(NZPP A3 1904:14–15)
1904: The Au Empowering Act Amending Ordinance - FC. Transferred the ‘duties, obligations and powers’ of the Au to the Island Councils (see The Au Empowering Act 1899).
(NZPP A3 1905:11–12)
1904: Order in Council - OIC. Applied Section 50 of ‘The Native Land Claims Adjustment and Land Amendment Act 1901’ (of New Zealand) to the Cook Islands. This provided that the Land Court would not recognize claims by adoption unless the adoption had been registered, and made provisions to facilitate such registration.
An additional Order in Council in 1905 made certain amendments of detail to the above order.
(NZPP A3 1905:40A–41)
1904: Cook and Other Islands Government Amendment Act - NZP. This act made the Cook and Other Islands Government Act of 1901 permanent. It also empowered the Land Court to fix compensation for land taken for public purposes. It abolished ariki courts (which had dealt with land cases) on those islands where a European Resident Agent was stationed, and made provision for lagoons containing pearl shell to be declared Crown land.
(Statutes of New Zealand 1904)page 324
1906: Proclamation - GG. Proclaimed the Manihiki and Penrhyn lagoons to be Crown lands set aside as public pearl-shell fisheries. (Regulations governing the use of the lagoons were thereupon promulgated by the British Resident.)
(NZPP A3 1907:27–8)
1906: Regulations dealing with land taken for township purposes in the Cook Islands - GG. Provided for the administration of lands taken for township purposes. (It was at that time intended to develop the Tutakimoa tapere of Avarua as a model township.)
(Cook Islands Gazette 5.7.1906)
1906: Regulations as to Making and Assessing Compensation claims for lands taken for public works - GG. Provided that compensation claims were to be determined by the Court, but that two assessors would be appointed to sit with the Court. One assessor was to be nominated by the Crown and the other by the claimant.
(Cook Islands Gazette 26.2.1906)
1906: The Unimproved Land Tax Ordinance - FC. Empowered any Island Council to inspect lands and submit to the Resident Commissioner a list of lands which were ‘unimproved and unplanted’; and empowered the Resident Commissioner to impose a tax on such lands up to one shilling per acre per annum.
(Cook Islands Gazette 1.8.1906)
1906: Suggestions for the Utilization of the Waste Lands at Rarotonga (Public Statement by Resident Commissioner) - RC. Offered the people of the Cook Islands three alternatives in respect to their waste lands: (1) lease to Europeans, (2) ‘Call upon the local Administration to aid you in planting the waste lands with the coconut palm’ or (3) the government may take the land compulsorily. Pointed out that people would ‘do well to understand that they will not be allowed to obstruct the prosperity of the island by keeping land in its present state of unproductiveness’.
(Cook Islands Gazette 1.8.1906)
1907: The Resident Agents Courts Jurisdiction Ordinance - FC. Clause 6 empowered the Chief Judge of the Native Land Court to authorize Resident Agents to take evidence in land cases. Such evidence was to be despatched to the Chief Judge.
Clause 7 repealed those parts of the following enactments which dealt with land matters:
Statute of Mangaia 1899, Statute of Rarotonga 1899, State of Aitutaki 1899, Statute of Atiu, Mauke and Mitiaro 1899 and the Islands Statutes Amendment Act 1900.
(Cook Islands Gazette 11.7.1907)
1908: Alienation of Lands Ordinance - FC. Repealed ‘The Land Act’ of 1899 and ‘An Act to Guard Against Secret Dealings in Native Land’ of 1895. Required that all land alienations needed confirmation by the Land Court (including those made prior to the establishment of the Court). Provided that no person was permitted to close or obstruct any road, right of way or water course on his land without the approval of the Land Court.
(NZPP A3(a) 1908:3–4)page 325
1908: The Cook Islands Government Act-NZP. A consolidation act. It confirmed that ariki courts could continue to function on those islands where no European Resident Agent was posted. The name of the Land Court was changed from ‘The Cook and Other Islands Land Titles Court’ to ‘The Cook Islands Land Titles Court’, but its powers and functions were not altered.
(Statutes of New Zealand 1908)
1908: Te Mana Ra'ui (The power of ra'ui) (Public Statement by Resident Commissioner) - RC. Asserted that the ancient right of ra'ui no longer existed in respect of any land which has been investigated by the Native Land Court. (Note: later Resident Commissioners varied in their practice in relation to ra'ui, some sanctioning them in relation to lands investigated by the Court and others not allowing them.)
(Cook Islands Gazette 17.1.1908)
1908: Ko te Akonoanga Oire (Village lands). (Public Statement by Resident Commissioner) - RC. Laid down the practice of the Land Court in relation to housesites in villages set up after the introduction of Christianity.
(Cook Islands Gazette 5.3.1908)
1908: Land Administration (Public Statement by Resident Commissioner) - RC. Stated that the aim at the Land Court had been to aid commoners and under-privileged people and noted that this was necessary owing to the excessive increase in chiefly power over land since about 1850. The Court assured persons who had been oppressed by the chiefs that their claims would be given favourable consideration. It advised against the custom of including the whole family in the title for the land and recommended all families to divide their lands such as to give each individual member his own piece. ‘Now by your own obstinacy you have placed yourselves in this position that the lazy man will benefit by the work of those who are industrious and therefore no work or improvements will be made.’ The cause of this ‘stupidity’, he said, was the custom of allowing the head of the family to control the land on behalf of the family. Stated that the Court regarded all owners as equal irrespective of rank. Stated further that ‘all of the children have an absolute right to succeed their parents in all the lands, subject to sensible divisions they may themselves make’.
(Cook Islands Gazette 3.4.1908)
1913: Order in Council - OIC. Provided that the Land Court would thereafter consist of one judge, plus any other who may from time to time be appointed. (By implication cuts out Maori judges.)
(NZPP A3 1914:31–2)
1914: The Planting and Cultivation of Lands Ordinance (Mauke) - IC. Required each able-bodied man over 16 to plant a minimum of 10 coconuts, 10 bananas and 10 orange trees per month in addition to a full supply of subsistence foods. All lands were to be kept weeded and distances between trees and modes of planting were specified.
(NZPP A3 1915:50)page 326
1914: The Planting of Lands Ordinance (Mangaia) - IC. As for Mauke ordinance above but each man to plant a minimum of 40 coconuts, 20 bananas, and 20 orange trees annually in addition to a full supply of subsistence foods. Any man who left Mangaia was required to arrange for some member of his family to look after his land during his absence. An annual inspection of all lands was to be carried out to ensure compliance with the ordinance.
(Cook Islands Gazette 20.12.1915)
1915: Cook Islands Act - NZP. This act repealed all existing laws in the Cook Islands, including those passed by the Federal and Island Councils. The Federal Council (which had ceased to function since 1912) was abolished but provision for Island Councils remained.
In Part 10 (re Crown land), section 354 vested all land in the Cook Islands which was not held in fee simple, in the Crown, subject, however, to the lawful rights of individuals. This part of the act also made provision for the acquisition of land for public purposes and creation of reserves.
Part 11 (sections 367–416) established the Native Land Court of the Cook Islands (to be identical with the earlier Cook Islands Land Titles Court) and provided machinery for its staffing, procedures and powers. Its powers were essentially the same as those of the earlier Court and included a right to grant rehearings.
Part 12 (sections 417–28) dealt with customary lands (i.e. land held ‘under the Native customs and usages of the Cook Islands’ and which had not been investigated by the Land Court). Section 422 required that any investigation of the title to such lands should be determined ‘according to the ancient custom and usage of the Natives of the Cook Islands’. Section 423 empowered the Court, after due investigation, to issue orders of title (known as ‘freehold orders’) naming the owners and specifying their relative interests. Section 426 provided that such land as belonged to a chief ‘by virtue of his office’ should be vested in that chief and his successors in office ‘in the same manner as if they were a corporation sole’.
Part 13 made provision for the partition and exchange of land and for payment in cash to equalize partitions and exchanges.
Part 14 dealt with succession by natives. Section 445 invalidated wills in so far as they applied to land. Section 446 provided that successors to land rights were to be determined ‘in accordance with Native custom, so far as such custom extends; and shall be determined, so far as there is no Native custom applicable to the case, in the same manner as if the deceased was a European’.
Part 15 dealt with adoption and invalidated customary adoptions in so far as they concerned succession to land rights. Legal adoptions were to have ‘in respect of succession to the estate of any Native the same operation and effect as that which is attributed by Native custom to adoption by Native custom’.
Part 16 prohibited the permanent alienation of land by natives (other than to the Crown), and limited page 327 leases to a maximum of sixty years duration. The approval of the Land Court was made necessary for all alienations.
(Public Acts of New Zealand (Reprint) 1908–31 658–785)
1916: The Land Rating Ordinance (Rarotonga) - IC. This ordinance did not apply to government lands, church lands, or lands occupied by natives (i.e. applied only to lands occupied by foreigners). It provided for the compilation of a valuation roll and the annual rating of such lands at a rate to be fixed by the Resident Commissioner but not more than one shilling in the pound of the rateable value.
(Cook Islands Gazette 31.8.1916)
1917: The Planting of Lands Ordinance (Rarotonga) - IC. As for Mauke ‘Planting and Cultivation of Lands Ordinance’ 1914 but quantities specified as a minimum of 40 coconuts, 50 bananas, and 20 orange trees per year. Exception was provided for persons who had adequate reason not to plant. An annual inspection was to be carried out to ensure compliance with the ordinance. (In 1959 the Rarotonga Island Council approved in principle the idea of reviving this ordinance which had been inactive for many years, but no action has been taken to date.)
(Cook Islands Gazette 12.2.1917)
1917: The Planting of Lands Ordinance (Aitutaki) - IC. As for above except that minimum quantities of cash crops specified were 10 coconuts, 10 bananas and 10 orange trees.
(Cook Islands Gazette 19.3.1917)
1921: The Cook Islands Amendment Act - NZP. Sections 8 and 9 made further provisions for the legal registration of customary adoptions effected prior to the passing of the act (in order to protect the land claims of such persons).
(Statutes of New Zealand 1921)
1937: Fruit Control Regulations - GG. Provided for the transfer of the fruit marketing industry from private enterprise to government control.
(New Zealand Gazette 1937)
1946: Cook Islands Amendment Act - NZP. Part 2 established the ‘Native Appellate Court of the Cook Islands’ to consist of judges of the Native Land Court of the Cook Islands and of the Native Land Court of New Zealand. At least two judges must sit together to constitute the Native Appellate Court. It was given power to determine appeals from any final order of the Native Land Court, and provided that such orders might be appealed from as of right. The Appellate Court could either confirm, annul or vary the order appealed from, or direct a rehearing of the case before the Native Land Court. Special provision was made whereby, for a period of twelve months after the promulgation of this act, any person who claimed to be prejudicially affected by any order of the Land Court since its inception in 1902 could apply for a rehearing of the case in question.page 328
Part 3 (section 50) empowered the Native Land Court to grant occupation rights to any individual (or individuals) provided it was the wish of the majority of the owners that this should be done. The Court was empowered to impose such terms and conditions on occupation rights as it thought fit. Any person occupying land by virtue of an occupation right shall, ‘subject to the terms of the order, be deemed to be the owner of the land under Native custom’.
Part 4 provided that where it was the wish of the majority of the owners the Native Land Court could place any particular portion of land in the hands of the Administration to manage that land on behalf of, and for the benefit of, the native owners. This part of the act was designed to implement the citrus replanting scheme and provided for the provision of agricultural credit, equipment and marketing facilities.
(Statutes of New Zealand 1946)
1948: Cook Islands Amendment Act - NZP. Specified criteria of selection of the judge to act as presiding judge in sittings of the Native Appellate Court.
(Statutes of New Zealand 1948)
1948: The Atiu Planting of Lands Ordinance - LC. Provisions were similar to those of ‘The Planting of Lands Ordinance’ 1914 for Mangaia, but the quantities to be planted were left to be specified by the Island Council from time to time.
(Atiu files CIA)
1950: Cook Islands Amendment Act - NZP. Section 11 amended the definition of ‘Native freehold land’ in the Cook Islands Act 1915 to include any land owned by any descendant of a native. (This amendment was introduced owing to the fact that as the term ‘Native’ was defined as a full blooded Polynesian or any person ‘intermediate in blood between a half-caste and a person of pure descent’, those persons of mixed blood who were less than half Polynesian had been technically exempt from provisions relating to native land.)
Section 16 empowered the Chief Judge of the Native Land Court to amend errors and omissions in appropriate circumstances; such amendments to be subject to appeal if any party objected to them.
Section 17 defined the high water mark (below which all land and lagoon belongs to the Crown) as ‘the line of medium high tide between the spring and neap tides’.
(Statutes of New Zealand 1950)
1952: Cook Islands Amendment Act - NZP. Section 7 vested the island of Nassau (excepting ten acres reserved for administration purposes) in ‘the Native inhabitants of the Island of Pukapuka…to be held…according to the Native customs and usages of the Island of Pukapuka’.
(Statutes of New Zealand 1952)
1957: Cook Islands Amendment Act - NZP. Section 39 provided that the power of the newly-constituted Legislative Assembly would not extend to making any law which is repugnant to a reserved enactment of the New Zealand government. The reserved enactments specified included page 329 all legislation relating to land tenure in the Cook Islands.
Section 92 empowered the Governor-General in Council to set apart any native customary or freehold land as a ‘Native reservation for the purposes of a burial ground, fishing ground, village site, landing place, place of scenic or historical interest, source of water supply, church site, recreation ground, bathing-place or any other specified purpose whatsoever’. Such an Order in Council, however, was only to be made on the recommendation of a judge of the Native Land Court, and subject to the consent of the majority of the owners. A reservation was to be held for use in common by natives, or by such groups or classes of natives as were specified in the Order.
(Statutes of New Zealand 1957)