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Land Tenure in the Cook Islands

The effects of erroneous Court interpretations

The effects of erroneous Court interpretations

While the Court has not generally determined original ownership from a study of the composition of the appropriate page 239 lineage, it has aimed at locating those persons who had a primary right to use the land.1 This approach has usually been reasonably effective, for the right to use was normally a function of lineage affiliation.

The fact that the legislation did not make any provision for the suspension or annulment of the rights of contingent members of a lineage does not appear to have had serious adverse effects. One who left the lineage as an adult (generally at marriage) not infrequently came back in the event of divorce, separation or death of the other spouse. Accordingly, it was not unusual for a contingent right to be reinstated to its former level. Moreover, during the period of absence it was unusual for a contingent member to exercise any rights in these lands.

In determining successors, however, the lack of awareness of the role of lineage affiliation has had serious consequences. Despite the legal requirement that it should do so, the Court has seldom sought to investigate which persons were entitled under native custom to succeed to the land rights of a deceased owner. It has generally merely asked for a list of names of the children of that owner and awarded to them in equal proportions.2 It is true that some judges have recognized customary selective criteria in particular cases, but this has been the exception rather than the rule.3

1 Judge Morgan's investigations have been considerably fuller than those of earlier judges, and claimants have been called on to prove their claims. As he has determined ownership with reference to detailed genealogical tables as well as the evidence of witnesses, his judgements on investigation are, in effect, generally made on this basis.

2 As exemplified in the Ngati Te Ora case attached as appendix B.

3 As early as 1908 the Court had expounded the erroneous principle that ‘all of the children have an absolute right to succeed to their parents in all their lands, subject to sensible divisions they may themselves make’. - Gudgeon, Cook Islands Gazette 3.4.1908.

page 240

Once the process was set in motion, and secondary members of the lineage were granted primary rights in lineage lands, it was self-perpetuating. When a legitimate right-holder found his rights being whittled down owing to the fact that equal rights had been awarded to people who did not belong to his lineage, he was forced, in self-defence, to claim primary rights in the lineage of the parent of whose lineage he was only a secondary member. This process took several decades to set in motion to any serious extent, firstly because in many instances when an owner died, nobody claimed legal succession at all, but the primary members merely continued to use the land in accordance with custom; and secondly because even where the Court did award equal rights to primary and secondary members of the lineage, the secondary members did not attempt to exercise their legal rights.1 But by the 1940s, in some lands on Rarotonga and Aitutaki particularly, the snowball had gained serious momentum and size.2

Judge Morgan was aware of the existence of the problem and of the fact that customary succession was not to all the issue of a previous right-holder, but only to ‘those who, according to Native customs of succession were entitled to succeed’.3 Though never clearly defined, nor consistently

1 In several instances during field work informants stated that they did not wish to apply for succession to 1 and they were occupying, for while their present de facto occupation was accepted by the non-resident relatives, they feared that some of the latter may wish to interfere in the use and allocation of the lands if they acquired equal legal rights as a result of the Court practice in determining succession.

2 As indicated on page 214, during the first few years of its operation the Court found itself awarding many family lands to chiefs solely. This error was inadvertently corrected to some degree by the subsequent granting of bilateral inheritance to the rights of the chiefs concerned, and a consequent spread of rights to a degree which more closely equated the customary situation (though it did of course favour ranked families as against commoners). If the process could have been stopped once this balance had been achieved no serious difficulties would have arisen later. But as these factors were not recognized by the Court or the Administration, no action was taken.

3 MB 23:7 NLC.

page 241 prosecuted, this policy would probably have been sufficient to have stopped the situation from deteriorating too rapidly were it not that one of the judgements in which he limited succession in accordance with customary principles was appealed from. The decision of the Appellate Court, which is of course binding on the Land Court, laid down the principles which were to be followed in determining future cases of succession.

The Appellate Court took the view that once land was clothed with title, succession should be determined in accordance with ‘the principle of Maori custom that all children succeeded equally’.1 Such, however, was not Maori custom, and the Court admitted this fact in the same judgement, but carried on to rationalize its inconsistency by saying that this was ‘a change of Maori custom which the Maoris agree to and which is suited to the changing conditions’.2 They gave no indication as to how Maori agreement had been ascertained, or in what way the new custom suited the ‘changing conditions’. ‘Once customary title was transferred into a legal title’, they continued, ‘there was no custom which operated either to exclude or to oust.’3

That these two judges were not aware of the basic principles of Maori land tenure is clear from this and other statements made in this judgement. They regarded the particular case, which should properly have been determined in terms of lineage affiliation, as one of the effects of physical absence on land rights. Such a custom, the judges declared, was ‘no longer acquiesced to by the community at large, and therefore it cannot be regarded as custom or

1 AMB 3:10 NLC.

2 Ibid.

3 Ibid.

page 242 usage’. It was, they said, a ‘dangerous and unreasonable doctrine’.

The judgement further noted that the Cook Islands Act required the Court to determine succession according to native custom as far as that goes, and according to European law where no custom applied. Arguing from the fact that legal title was unknown to the islanders until the advent of the Court, they questioned whether any custom could be invoked once legal title was introduced.1 Such a contention, however, is obviously contrary to the intention of the act, which, made after the Court had been established and legal titles granted for over 12 years, nevertheless specifically stated that succession must be ‘determined in accordance with Native custom so far as such custom extends’. That appropriate custom did exist is amply demonstrated, and that it was modified by the action of the Court is also clear, but its final legal destruction resulted from this very judgement. As rulings of the Appellate Court are binding on the Land Court, all succession since 1957 (the date of the judgement concerned) had therefore to be granted in accordance with the principle that all children should succeed equally, as ruled in this decision.

The effect of this judgement was to make every person inherit a share in all the lands of both his parents - an ever decreasing fraction of an ever increasing number of sections of land. He is not allowed to will it to another, to sell it, forego it, or even give it away, for to do so would constitute alienation as defined by the act. There is, to be sure, legislative provision for exchange of interests

1 ‘It is certain that freehold titles known to English law and to real property lawyers were quite unknown to the Maoris of these islands up to the advent of the Native Land Court…. For this reason we find it difficult to say that their ancient customs could extend to such forms of title which were never in their contemplation.’ - AMB 3:11 NLC.

page 243 such that if owners of minute shares wish to measure the relative areas and values of their scattered interests, they can, subject to the approval of the Court, exchange the shares of one person for those of another person in another section.1 In view of the trouble and expense involved, such a course of action has been adopted by only a very few people.2

An indication of the effect of these imposed principles in practice is shown from field studies on Atiu where titles to most of the lands have only been investigated within the last decade. The district of Tengatangi contains an area of 1,075 acres and a population of 252.3 Excluding housesites and lands of a public nature (the church site, tribal marae, government residence, etc.) there are 78 sections of land in the district. The Land Court awarded title to these lands to a total of 891 names4 - an average of 11.4 owners per section.5 As the Court awarded equally to primary and contingent (and occasionally secondary) right-holders, the number of owners under custom would have averaged only about five or six and between them there would in most instances have been some arrangements as to which of them would plant on the land.

When awarding title, it is the Court's practice to include as owners only the oldest living member of each line

1 ‘Cook Islands Act’ 1915 sections 438–44.

2 No cases are known from any island except Rarotonga, and there the total number of instances of exchange does not exceed ten.

3 Total area of the island is 6,654 acres and total population 1,360 (in 1959).

4 As most owners have rights in more than one section this does not mean 891 different persons.

5 Excluding four large and virtually unused sections in the makatea which account for over half the land area of the district, the average area per section is 6.17 acres.

page 244 of descent (e.g. it does not include sons and daughters in the title if the parent from whom they derived their right is still living). Owing to the Appellate Court ruling giving primary rights to all the issue of an owner irrespective of lineage affiliation, we must add the issue of the 891 names referred to. Data collected in field studies show that this gives a total of 6,237 names, or 79.8 right-holders per section.1

Of these 6,237 rights, 1,535 are held by persons living in Tengatangi district, 1,829 by persons living in other districts on Atiu, 1,534 by persons living in Rarotonga, 531 by persons living in New Zealand, 150 by persons living in Mauke, 155 by persons living in Mitiaro, 84 by persons living in Mangaia, 167 by persons living in Aitutaki, 174 by persons living in Manihiki, 60 by persons living in Tahiti, and 18 by persons living in other places. It will be seen that, though the original titles were issued only about five years ago, less than a quarter of the rights to the lands of Tengatangi district are now held by persons who live in Tengatangi, and as many are held by persons living in Rarotonga as there are by persons living in Tengatangi itself. It can be safely assumed that the proportion of rights held by people living in Tengatangi will continue to decline. While at present most of those who have joined other lineages do not in fact exert their legal rights, an increasing number are already doing so (especially in regard to income-bearing tree crops) and a number of Atiuans expressed concern at this trend.

In the next generation, due to the joint action of the law and a rising birth-rate, there will be an average of about two hundred right-holders per section. The increase

1 Persons who were included in the original lists but who have subsequently died have been excluded from this figure.

page 245 of numbers is aggravated to a considerable degree by the fact that the Court gives the titleholder or family head no right of any kind superior to that of any other person. There is thus no basis for any system of leadership or organization of this increasing number of people. Under customary tenure the co-owners were not only relatively few in number but were members of a single lineage (or segment thereof) with a common locale and a defined authority structure. Now the owners are more numerous, belong to a variety of lineages, reside over a widely scattered area, and have legally equal rights with the customary leaders.

The exploitation and control of the land is at present still generally workable owing to the respect which is accorded to the elder resident members of the family, but this respect is already fading. Even during the short period of residence in Atiu two disputes arose wherein individuals from other villages who held legal rights in Tengatangi lands, but were only secondary members of the descent groups concerned, asserted rights to land which had been allocated to others in accordance with custom. The co-owners were in both cases unanimous in their opposition, but were unable to take any action due to the legal rights of the ‘aggressors’.1

This trend whereby the actual control of land goes to the most aggressive right-holder is just emerging in Atiu, but in Rarotonga, where the process has developed to a greater extent, it has become, in some areas at least, the rule rather than the exception.

The average adult (male and female) in Tengatangi now holds rights in 9.7 separate sections of land. Due to the

1 It is quite possible that if these cases were taken to the Land Court the majority would be upheld, particularly as both intruders had ample unused lands in their own districts. But the Court only sits in Atiu once every two or three years, and the people did not consider that it would support them in any case.

page 246 Court practices discussed, however, most of these rights are held in districts other than their own1 (an average of 4.3 sections in one's own district and 5.4 sections in other districts on the island). The average child under sixteen years of age in Tengatangi has rights in just under twenty sections of land, and the next generation will have rights in nearly forty.

1 This is due to the tendency to marry outside one's district coupled with the current legal practice of deriving rights from both parents. Of the 35 married couples in the district today, 26 of the spouses are from other districts or islands. Of the other nine, five are from other tapere within the district, three from the same tapere but different minor lineages within it, and the last one is a marriage between parallel cousins which is condoned but not approved.