Land Tenure in the Cook Islands
The Court is required by legislation to determine ‘owners’ and ‘successors’ in accordance with native customary principles.1 These terms have usually been interpreted by the Court to relate only to primary right-holders. The evidence indicates, however, that the Court has never clearly understood or consistently given effect to the customary principles of land tenure in the Cook Islands, even in so far as primary right-holders are concerned.2 It would further appear that the most important changes which the Court alleges had taken place before its establishment were in fact brought about by the operation of the Court itself and that the major tenure problems of the Cook Islands today are the result of these changes. The implications of these contentions could be far-reaching, and thus they necessitate substantiation in some detail.
1 Order in Council 1902 clauses 10(1) and 10(4) and Cook Islands Act 1915 sections 422 and 446. Provision was also made for determining title to lands lawfully acquired by other than customary principles (e.g. grants of land to religious bodies on which to build churches) but these are few in number and small in area and are not dealt with in this analysis.
2 It is realized that there may be differences between some islands within the Cook group, and that this is particularly so in the case of Mangaia and the atolls. As research has not been carried out on those islands, and as the Land Court has not carried out investigations on them to any significant extent, such differences as may exist will not be dealt with here. On those islands where the Court has investigated title, the customs were found to be very similar throughout.
The terms would thus appear to be identical, but the Court has maintained a contrary view. After conceding the technical identity between the terms it claimed that the act nevertheless intended that while ancient custom should be observed in determining ownership, post-contact changes in custom should be recognized in any subsequent dealings with the land.2 The Court uses this argument as its charter to determine succession on the basis of modifications to custom which it considers to have taken place during the nineteenth century. Of the changes alleged, the two most fundamental relate to the rights of women and the effect of absence on rights to land.
1 Cook Islands Act 1915 section 2.
2 MB 23:6 NLC. Such a view would appear to imply that the Court had observed ancient native custom in determining original title, but in practice it does not appear to have done so.