Land Tenure in the Cook Islands
Appendix B — The Ngati Te Ora Case
The Ngati Te Ora Case
An illustration of the effects of Court practice
Due to its greater size, more fertile soil and relatively large population, the external pressures conducive to change in indigenous custom were stronger on Rarotonga than on any of the smaller islands of the group. And with its superior harbour facilities the district of Avarua became the centre of foreign initiated activity for the group, and the site of the headquarters of mission, commercial and governmental establishments. In this area the proportion of foreigners (and consequently of uxorilocal marriages) was highest, the relative power of the ariki was greatest, and the rental value of land reached its peak.
If the changes in custom postulated by the Court actually took place, one would consequently expect to find them more pronounced in Avarua than anywhere else in the group. The lands of the Ngati Te Ora minor lineage have therefore been chosen as a test case, for the lineage and its lands were based in the Takuvaine valley – the very heart of the Avarua district.1 Following the general pattern on the island, the Ngati Te Ora held some lands by the sea, others suitable for taro in the swampy depression, others again suitable for residence and dry land crops near the inland road (where many people lived prior to European contact) and again in the fertile valley, and the remainder in the mountain area at the head of the valley where plantains were grown and the raw materials for all forms of construction were available.2
1 This minor lineage was headed by the person holding the title of Te Ora Rangatira. In the tribal authority structure Te Ora Rangatira was subordinate to Makea Nui Ariki.
3 Of a total of 24 persons included as owners in the 7 sections, 11 were males and 13 were females. As some persons were included in more than one section there was an average of 5.7 owners per section.
The attached genealogy of the Ngati Te Ora lineage begins with one Uriarautokerau, who was probably born towards the end of the seventeenth century. However, as some witnesses did not accept him as their progenitor,1 let us commence with Te Ururenga. The only siblings of Te Ururenga mentioned were three sisters. None of their issue laid any claim to the land, nor are they referred to as members of the Ngati Te Ora lineage.2 This is to be expected as, if they married out, their issue would in the normal course of events belong to the father's lineage. Te Ora3 may well have had siblings (as witnesses did not claim that he was the sole issue of Te Ururenga) but none of their issue claimed or was mentioned during the hearings.
Seven persons were mentioned as being children of Te Ora. Three of these were males and issue from them were recognized as belonging to the lineage. The sex of another three was not mentioned, nor were their issue. Presumably they were persons who married out, were adopted out or died without issue; in any case no further reference was made to them during the hearings. The last4 was a person whose sex was not stated, but from whom at least some issue were accepted as members of the lineage. If this person was male, it is logical that his children would retain his lineage affiliation. If a female, the link could be retained by her marriage being uxorilocal, by her children being illegitimate, or by one or more of her issue being adopted back into her born lineage. This last possibility appears quite likely for claims are made through only one child. Of the seven persons named in the fourth generation then, claims are made through only four.
1 Presumably due to his being described as a refugee from another district.
2 Details of the numerous issue of Tamapua (the third sister) have been located, but not those of the other sisters. Most witnesses who referred to Te Ururenga made no mention of the sisters.
Considerably more detail is available for the sixth generation, for it is the generation preceding that of the oldest witnesses who gave evidence before the Courts. There were still the four divisions each headed by one of the four persons mentioned in the last paragraph, though most of them in this generation are shown as having multiple offspring.
In the seventh, eighth and ninth generations we find the persons who claimed rights to the Te Ora lands before the Land Court in 1908. One branch of the lineage claimed to the exclusion of members of another branch, but the matter was not decided in Court, for in response to a request by a third party the Judge permitted the lineage to withdraw and make a settlement in the customary manner.4
Seven separate sections of land were involved and, by the usual customary process of allocation among those entitled, the lineage agreed on the names of the persons who were to have rights in each section.5 These names were then submitted to the Court and ratified.6 The number of persons to whom each section was allocated varied from two to ten,7 and there was a positive correlation between the size of the section and the number of persons to whom it was allocated. There was also some correlation apparent between the closeness of blood relationship to the titleholder and the number of lands in which the particular individual was given a right. The only name included in every section was that of the Te Ora Rangatira himself.8
4 It was uncommon for such requests to be made, but in the several instances noted, the Court invariably acceded to them.
5 The Ngati Te Ora recognized named subdivisions in at least some of these sections (e.g. see MB 5:178). Unfortunately the evidence does not show whether or not the various persons or subgroups in each section were to use particular subdivisions of land. It would be in accordance with custom for each kiato to be allocated particular subdivisions of planting land.
6 MB 4:288–9 NLC.
7 Actually eleven were included in one section, but one name (that of the ariki) was later deleted.
Even in the kopu rangatira itself,1 not all the issue of Eturoa2 were included. Te Upoko, the daughter of Teioata, was included in one section. Teioata was the first-born daughter of the rangatira, and as such would usually be permitted to retain rights in one section of land as a marriage portion; this being even more probable as she married a mataiapo – a man of higher rank than herself. Te Upoko was her only child and the rights accordingly passed to her. Ngamata and her issue (if she had any) were not included. Ono was specifically described as having only one born child, Toreka.3 In 1907, when the previous incumbent died childless, the title reverted through Toreka to her son, Eturoa Taopua. Toreka's name was included in one section of land. Ono had two adopted sons, one of whom was given rights in two sections of land, and the other in one. A right was also given to Pita, one of his adopted grandsons.
Aitu, the daughter of the titleholder and his only surviving born child, had been adopted out at a time when the title was held by Te Ora.4 When the title reverted to her father she ‘came back’ into Ngati Te Ora and was included in two of his sections.5 Three of his adopted children were also given rights, each in two sections. Though he had at least two other ‘feeding’ children, they were not provided for.
It is of interest to note that despite the very widespread incidence of customary adoption (to the extent that almost every family has one or more such ‘feeding’ children) the only adoptees included in the Ngati Te Ora lands were the adopted sons of Ono and those of Eturoa Taopua, neither of whom had any born sons and both of whom were members of the kopu rangatira.
3 As she actually occupied Ngati Te Ora lands it is likely that this was an uxorilocal marriage. – MB 19:90 NLC.
5 MB 19:20 NLC. She nevertheless retained rights to certain lands granted to her by her adoptive parents. – See MB 21:47.
6 When he died without issue a meeting of the lineage was held and it was decided that his rights would revert to the titleholder. – MB 16:219 NLC.
The kiato under Mararaatai2 seems to have gone out of existence. Itiotera,3 the only person through whom any claims were traced, was absent from the Cook Islands for many years in missionary service. Moreover, his wife was the daughter of Ringiao Putua, a rangatira of high standing, and the children adhered to her lineage. Only three of their numerous issue were included in the Te Ora lands – all in the one section.4 The most senior of these was, at the time of his inclusion, holding the rangatira title of his mother's lineage, and the fact of his inclusion in this section of Te Ora land constituted the recognition of the link between the groups. He was not the head of a kiato within Ngati Te Ora, and was not a primary member of the lineage. The second person included was one of this man's sisters, and the third was the eldest of her children.
The kiato from Konapou5 traces through Kiro, whose only child, a son, died without issue. Of his two daughters, the eldest bore a son and rights accordingly passed through him. They did not pass to his son (for he was living in his wife's lineage on another island) but to his two unmarried daughters who were, of course, still primary members of his lineage. They were included in two sections of land. Kiro's second daughter had but one child (a girl) but as her father was unknown, she remained a primary member of the Ngati Te Ora. When she grew up she married out but, as often happened, one of her children was regarded as a member of the mother's line, and was given a right in one of the Ngati Te Ora lands.
The kiato from Tamaanga6 was carried on by Tuki and his brother Taangarakau (and perhaps others), who lived on Ngati Te Ora lands. Tuki died while his children were still young and his wife took them back to her home lineage in Arorangi.7 Tuki had no sons and his brother Taangarakau had no children at all. At this stage the kiato from Tamaanga went out of existence.
7 Witnesses say that they could have remained, but that the wife's brother insisted on taking them back to his lineage.
In 1908 Minnie claimed a right in the Te Ora lands. Whether she was then still married to her first husband is not clear, but about this time she married a Chinese. The dispute of 1908 was between Minnie, who wanted her rights in the Te Ora lands recognized, and Eturoa Taopua, the man who had very recently acquired the Te Ora title. As previously mentioned, the issue was settled at a lineage meeting, where it was decided to admit the issue of Koringo.1 Minnie was given rights in three of the seven lands, her unmarried sister was given rights in two, her brother was given rights in one, and the eldest sister (who had married and born children on another island) was given rights in one.
That the rights of Koringo's issue were not immediately conceded by the rangatira is not surprising, for Tuki's wife had born him no sons and had taken all her children back to her own district. There is no evidence of any of these children having maintained contact with the Ngati Te Ora, and in fact Minnie admitted that it was not until she had trouble in her husband's lineage that she found that she had a link with the Ngati Te Ora. It is logical, on the other hand, that when trouble did occur in her husband's lineage she would explore the alternative escape routes. Under normal circumstances one would have expected her first choice to have been to take refuge in her father's lineage; but her father being a European precluded this possibility. Her status in her mother's lineage being marginal, for though she had spent her adolescence there she was not born there and had been away from that lineage and district at least since her marriage, she chose to follow the most convenient alternative – to re-establish herself as a member of her maternal grandfather's lineage. Had his brother or other members of that kiato been living, this would probably have been easier, but in fact the kiato no longer existed. The rangatira never disputed her descent from the Te Ora line, but merely questioned her ability to claim rights in the lands after so prolonged an absence. Nevertheless, when the matter was discussed in their meeting, the rangatira and the lineage did agree to accept her back.
1 Tuki's other children and their issue were not included.
3 It is of interest to note that this was the first time that the Te Ora title was held by a woman, though on every single occasion after European contact it would have passed to a woman if women in fact had equal claims with men in the matter of titleholding. If sex had not been a selective factor the title would have passed from Eturoa (5th generation, sheet 2) to his daughter Teioata and from her to her daughter Te Upoko. From Te Ora Marae it would have passed to his daughter Tekura and from Kauvai it would have gone to Takaina, the daughter of Tangiia (who was dead at this time). From Te Ora (8th generation, sheet 2) it would again have gone to Takaina.
In 1922 a descendant of Rangi1 stated in Court that he had asked Eturoa Taopua shortly before his death to grant a right in Te Ora land to one of her descendants. Taopua admitted their blood connection, but refused the request on the grounds that that particular group of relatives had declined to assist the Ngati Te Ora on an earlier occasion. As none of the descendants of Rangi had occupied any of the land, and as the rangatira did not approve, the Court dismissed the application.2
In 1940, following the death of Vaevae and Pita,3 application was made for succession to their lands. Vaevae's children were awarded his rights in equal shares. Pita had died childless and by family agreement his share was allotted to the issue of his sister Rongo. This was in accordance with custom, for whereas the other married sisters had moved into the lineages of their respective husbands, Rongo had married a Chinese and lived on the lands of her own lineage; accordingly her children acquired their rights through their mother. The Court accordingly awarded succession as under:4
|5.||Hing Toy||m.a.||⅛ share|
Later in the same year Rangi5 died. The applicant asked for succession and it was awarded as follows:
2 MB 9:162–4 NLC.
4 MB 13:270 NLC. The symbol ‘m.a.’ means ‘male adult’, and ‘f.a.’ ‘female adult’.
6 MB 13:271 NLC.
There is no indication that the applicants asked for every one of the issue to be included in every section, or that they asked that they be awarded shares in strict proportion to their blood relationship. In addition, there is no evidence that the titleholder was in the Court or aware of the applications, and in fact on the next occasion when she was in the Court she specifically stated that she did not consider Paria and his siblings eligible to inherit the Ngati Te Ora lands then before the Court, since they lived in Borabora.1 The inclusion of all issue of the deceased appears to be an innovation of the Court. The rigid specification of shares, while also not in accordance with custom, was required by legislation,2 though prior to the 1940s judges seldom did specify the relative shares of co-parceners.
In 1943 two of the children of Te Rita3 applied to the Court for admission as part-owners in one of the Te Ora lands. The ‘family’ (presumably lineage) is said to have agreed to their inclusion and the Court awarded accordingly. Such an award accords with custom, for while Te Rita had married out, two of her ten children had returned to her lineage of orientation (Ngati Te Ora) and had been accepted back.
In the following year, however, these same two children of Te Rita applied to the Court for inclusion in every section of the Te Ora lands.4 The application was opposed by the Ngati Te Ora. The rangatira explained that Te Rita had lived on Aitutaki and married and died there, and that the applicants had already been admitted to one section of Te Ora land while their mother held rights in another. The evidence shows that the dispute arose (in part at least) because the applications wanted a share of the rent that a European lessor was paying for one of the Te Ora lands.
The decision of the Court shows again a marked lack of understanding of the process of succession under native custom, since it found for the applicants and entered them as owners in the four sections of land which they had applied to enter. This gave these two people rights in six of the seven Te Ora lands. This was done despite the unanimous opposition of the rangatira and the lineage proper, and despite the fact that no member of the lineage proper (excluding the rangatira) had rights in more than three sections.
1 MB 19:95.
2 ‘Cook Islands Act’ 1915 sections 423 and 425.
4 MB 16:188–92.
There was at this time no Appellate Court, and even if there had been the lineage may not have appealed, for a ruling of the Court was widely regarded as final.
No sooner had the above decision been given than seven applications for succession to Te Ora lands were lodged, some of them by persons whose rights under custom would have been marginal, to say the least. The first was by Pare, a grandson of an adopted member of the lineage.1 He recited his descent from his grandfather and named all his siblings, whereupon the Court issued a succession order in favour of all eight siblings (three males and five females), giving them equal shares to the rights their grandfather had acquired by adoption. Pare also claimed rights from his father Pita and an identical succession order was issued by the Court.2 There was no evidence given to indicate whether or not any of this family occupied the land, or whether or not the adoptive rights given to their father and grandfather respectively were intended to be heritable. That Pare would probably not have acquired a right under custom is suggested by the fact that though his father had died 14 years previously and his grandfather over twenty years past, he did not make any claim to these lands until the decision of the Court in the previous case became known.
The descendants of Nganu,3 another adoptee, claimed his right and it was awarded accordingly. The two children of Te Rita who had just been given rights in the other Te Ora lands now claimed succession rights from their mother and from her brother who had died without issue. The Court granted their application.4 Minnie5 had passed away in 1941 and her rights were now awarded equally to her children.6
2 MB 16:218 NLC.
4 MB 16:220 NLC.
6 MB 16:221 NLC.
The nature of the lineage as it would have functioned under custom was now lost. By edict of the Court, members who had had marginal secondary rights to the lineage lands were given considerably greater rights than any of the primary members. Succession had been granted to all persons descended by blood from deceased right-holders, irrespective of lineage affiliation, occupation or primary members' opinions, and without reference to other customary selective criteria – in short, the Court orders were in direct contravention of the principles of native custom by which the law required that succession be determined.2 The lineage could no longer function as an effective landholding unit, for many of the persons with Court-granted rights were not members of the lineage and were in fact antagonistic to it.
1 MB 16:219 NLC.
2 See ‘Cook Islands Act’ 1915 section 446.
3 Of the others, the most important revolved around the question of whether or not the ariki held rights in certain Te Ora lands. The remaining three were claims by other lineages that certain portions of land belonged to them and not to the Te Ora lineage.
All these claims, with the exception of the third (which was withdrawn) had some merit under custom. This is not to suggest that the persons concerned would necessarily have been given a right under custom, but rather that each was claiming through recognized secondary principles. It is significant that no primary member of the Ngati Te Ora lodged any appeal or other application in respect to succession in these lands, and that those who did were all secondary members with marginal claims. The case illustrates also the increase in secondary claims resulting from marriages of Rarotongan women to men of other islands and other countries.
As a result of these appeals the Court made new orders in respect of four of the sections (sections 4, 91–2, 126 and 186). The original Court title (granted on the basis of family agreement) had awarded these four lands to an average of 8 persons each, but following its principles as already detailed, the Court made the new title orders out to an average of 27 persons each. In view of the Appellate Court decision discussed on page 240, all the issue of these owners also have fixed rights to the land and to determine the total number of right-holders it is accordingly necessary to add the issue of the persons named in the title orders. While no census of their issue has been taken, it is likely that once they were included the total number of right-holders per section would exceed 60. The average size of each section, excluding section 186 (as owing to its steepness and infertile soil it is almost unused), is five and a half acres.
One section (180) was awarded in 1908 to 9 persons. No rehearing was granted in this case, but by 1950, following the system of succession adopted by the Court, this section of one and a quarter acres had no less than 40 registered owners (if their issue be included the number probably exceeds 100). In that year, by prolonged and patient negotiation with the 40 owners, a European acquired a lease of approximately one-third of the section as a house-site. The rental of £10 per annum was divided among the 40 owners in proportion to their relative interests as determined by the Court. The owner with the largest share has a one-fifth interest in the property (and consequently in the rental) while the nine owners with the smallest shares each have a one hundred and eightieth interest.2
In view of the foregoing circumstances it is not surprising that at least some members of the Ngati Te Ora are known to be without adequate land on which to plant food crops, that the planting of cash crops is virtually impossible for any of them, and that a part of their land lies idle owing to a lack of agreement as to its allocation among the co-parceners.
2 As all rentals are paid through the Court, the cost of sharing, paying and accounting for these small sums is considerable.
The Ngati Te Ora case is not exceptional. Admittedly the land rights of many lineages are not as fragmented as this one, but on the other hand there are a number which are in an even worse state. The trends illustrated in this case, however, will invariably be found operating wherever lands in the Cook Islands have been dealt with by the Court.
Genealogy of Ngati Te Ora: explanatory note
This does not claim to be an exhaustive genealogy of all persons descended from the original progenitor, for some names were quoted in the evidence without any indication of the sex or marital status of the persons concerned, and many without details as to their issue. The number of issue shown may not be all the children of the parents concerned, for witnesses often mentioned only the persons through whom they traced their own descent, and omitted those who were not relevant to the matter under discussion. Moreover, the witnesses (who were invariably adults) seldom made mention of their own children, as the rights of the latter were dependent on those of their parents.
Likewise, there are many persons included in the genealogy who are not primary members of the Ngati Te Ora, but who have joined other lineages by marriage, adoption, or prolonged residence. Such people were admittedly once primary members of this lineage (or are descendants of persons who were) and accordingly can regain primary membership by adoption or other formal acceptance back into the group.
The genealogy was reconstructed from evidence given before the Land Court and the Appellate Court between 1905 and 1954, and includes all those persons whose names were mentioned during the relevant hearings who can be shown to be descended from the Te Ora line. Various items and segments of the genealogy were given by different witnesses at different times. Disputed differences between various versions have been noted on the genealogy, but minor variations which do not affect the principles illustrated have not been shown.
The following Court records were consulted:
|Land and Titles Court Minute Book||No: 2 pages||264, 318.|
|(For period 1905–13)||4||48, 277–351A|
|Native Land Court Minute Book||No: 9 pages||27–8, 162–4|
|(For period 1921–54)||10||12–15|
|16||188–92, 218–21, 254|
|19||64–116, 155–91, 230–40, 291–4|
|21||46–59, 110–19, 164–6|
|Appellate Court Minute Book||No: 1 pages||295–300, 318,|
|(For period 1949–54)||399–402|
|2||18–20, 87–95, 117–21, 143, 275–9.|
Time sequence is shown on the genealogy in generations beginning from the progenitor Uriarautokerau. Working back from living persons listed, and allowing twenty-five years for each generation, it would appear that Uriarautokerau was born between 1675 and 1700 A.D.
The following symbols are used:
|(1)||Name underlined and preceded by a number. Indicates that the person concerned held the title of Te Ora Rangatira. The number indicates the order of holding starting from Te Ora (born circa 1750 A.D.) as there is some dispute as to whether the title existed before his time.|
|[James Cecil]||Names in square brackets are those of non-Rarotongans married to Ngati Te Ora women.|
|??||Husband not known – issue therefore not legitimate and would be treated as members of the mother's lineage.|
|DSP||(Decede sans progene) This is the symbol used by the Native Land Court to indicate either that the person concerned died without issue, or that such issue as were born subsequently died without issue.|
|(Issue?)||No details recorded as to issue.|
|—–||Issue linked by dotted line. Adopted under native custom – not registered.|