Land Tenure in the Cook Islands
Chapter 12 — Court Practice and Native Custom
Court Practice and Native Custom
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.
Rights of women (and through women)
The Court view, according to the fullest and most frequently quoted judgement on the matter, is based on four page 227 premises.1 The first of these is that prior to the coming of the mission in 1823 women had no 1 and rights and could not hold tribal titles. The only evidence given in support of this assumption is the following quotation from the missionary John Williams:
In one respect, the treatment of females at this island [Rarotonga] was materially worse than that which obtained in the Tahitian and Society Groups; for, whilst in the latter females had a share of their father's possessions, at Rarotonga these went to the male branches of the family, and seldom, if ever, to the daughters, on the ground, as they alleged, that their person was their portion.2
Secondly, the Court continued, the custom changed shortly after first contact with European culture. ‘Women were accepted as tribal chiefs, and presumably as owners of land, for it is inconceivable that a person who could be an ariki could not own land’.3 The third premise was based on the Court's interpretation of the following extract of a declaration made by the Federal Parliament of the Cook Islands in 1894:
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.4
The final premise in the Court's reasoning is that practically every list of owners determined by the early Land Court contained the names of females.
1 MB 23:7 NLC.
2 Williams, A Narrative… 214–15.
3 MB 23:7 NLC.
4 ‘Declaration as to Land’ 1894.
Dealing with the evidence of John Williams, it is significant that he makes no specific reference to land rights, either in the quotation cited or elsewhere in the chapter whence it was extracted, but merely refers vaguely to ‘the father's possessions’.1 On the other hand, as we have already seen, there is adequate evidence to indicate that in the pre-contact era a woman could reside, plant, harvest, and exercise other rights to the lands of the lineage into which she was born for such time as she remained there, and any children she bore there acquired their rights automatically. If she married and went to live in her husband's lineage, she lost primary rights to lands in her natal lineage. They were not annulled or cancelled by her absence, though as a corollary of her new status the exercise of such rights became contingent on the concurrence of the lineage. In some cases that concurrence was given formal and longterm status by granting her special rights to a particular section which was referred to as her marriage portion. While it was common for the mother's lineage of origin to adopt one or more of her children, that was a matter for them to decide.
1 Williams says that possessions ‘seldom, if ever’ went to the daughters. If he had merely used the term ‘seldom’, his statement would not have been inconsistent with the custom relating to transfer of land rights.
The declaration by the Federal Parliament would appear on closer examination to be an affirmation of pre-contact custom. The declaration was prepared by a Parliament consisting entirely of indigenous members, and the original was presumably drafted in the Maori language. Unfortunately, no vernacular copy has been located and it is therefore necessary to try to determine what vernacular terms would have been used for some of the key concepts in the declaration in order to understand precisely what was intended.
1 There were exceptions to this rule - one of the most outstanding of which was Makea Te Vaerua, the first female to hold a title in the group, who succeeded to the title although she had surviving younger brothers. Her village, however, was the group headquarters of the mission, and there mission influence was at that time at its height. Te Vaerua was a strong supporter of the mission, and her husband Tiberio was the senior non-European missionary resident there. Her younger brothers, on the other hand, were not then so active in their support of the mission, nor so ‘consistent’ in their adherence to its moral precepts.
2 It almost certainly did not use the term vaka, for evidence clearly shows the marginal nature of rights at that level.
The Rarotongan language has no verbal equivalent of the English word ‘owned’, and the original probably used the Maori possessive particle ‘no’. This does not imply absolute ownership in the Western legal sense, but rather that a particular relationship existed between the major lineage and the land such as to exclude persons or groups who were not a component part of that major lineage. The group having the rights to use the land, it will be noted, was the occupying minor lineage or a segment of it. (The Court here noted in the judgement that it was ‘those persons who had a right to use’ who were generally awarded legal title). The Court lays emphasis on the fact that the declaration states that the right-holding family consisted of ‘all the children’ to show that the custom had by then changed to include females. This reasoning would appear to be unsound by virtue of the fact that the next phrase stated that those who entered other lineages were thereby excluded.
1 The term ngati, used here to denote a minor lineage, can also be used at higher levels of social segmentation.
2 The term kopu tangata can be used with several other related meanings which would not be relevant in this context.
The Court next utilized lists of owners that it had compiled itself on the basis of its interpretation of custom as evidence to show that the custom had changed to include females as ‘owners’. An analysis of the investigations made into the first 167 sections of land dealt with in Rarotonga shows that they were awarded to a total of 686 names.2 Of these 443 were males and 243 were females. Excluding the 65 instances of awards to females in their capacity as titleholders, the proportions are 443 males to 178 females. The important question to determine is whether or not those 178 females were primary members of their respective lineages, for if they were, then it would indicate that the custom had not changed. The ‘Declaration as to Land’ proclaimed that all the family had the right to use, and it was the people with primary use-rights to whom the Land Court attempted to make its awards.
1 Preface to the ‘Declaration as to Land’ 1894.
2 This does not mean 686 separate individuals as some individuals had rights in several sections. The total number of persons involved was about 525.
The important change introduced by the operation of the Court was that a legal award of title was not dependent on lineage affiliation and in the eyes of the law at least, the land rights of a person who left the lineage remained unaltered.1 It was at this stage and for this reason that the rights of women began to change. But even so, the change did not take place immediately, for it took time before the effect of the Court's action was everywhere felt.
We have seen from part two of this study that the greatest impact of culture change was on Rarotonga, the island which became the commercial and administrative head-quarters of the group. And within Rarotonga the greatest changes were wrought in Avarua, the district and village which became port of entry and ‘capital’ of the group. If change in land custom could be expected anywhere, it should be most pronounced in that area. In fact, this did not happen prior to the establishment of the Court, which itself initiated the change. A summary of a case from the heart of the Avarua district is appended to demonstrate this fact.2
1 It was most commonly (though not invariably) women who left their primary lineage to join another at marriage.
As a further indication that the changes described did not come about by autonomous change within the society, let us examine the case of the island of Atiu, where large-scale investigation by the Court did not begin until the 1950s. Detailed field study in 1959 showed that in nearly eighty per cent of instances the rights to land were traced through the father. Of the thirty-five sections of land in which rights were at any stage succeeded to through a female, nine were instances of uxorilocal marriage, four were instances of women having issue but no recognized husbands, twenty-one were cases of there being no agnatic male heir, and the last one was a case in which there were agnatic male heirs but they had left the island and were living elsewhere. This is in accordance with pre-contact custom whereby one's land rights were derived through that parent who was a primary member of one's lineage of residence.
The rights of absentees (contingent and secondary rightholders)
1 ‘We believe that it was once a native custom of Rarotonga that a person leaving his or her district for another lost all rights to land in the former. Later on it appears that it was only when a person left Rarotonga itself that land rights were lost. Then again in the Vaimaanga 6 case (MB 1:46) the Court said in its judgement: “The Court…will ignore the rights of Pakiri and Mangio unless it can be shown that there are direct descendants of these two men living within the Cook Islands.” This judgement was given over 40 years ago and a Court today may find an even greater relaxation of the original rule.’ - AMB 1:162 NLC.
The first premise is that under pre-contact custom a person leaving his district lost all rights to land there. This was indeed normally the case in so far as primary rights were concerned, for persons who went away to live in another district normally did so in order to join another lineage. But the loss was neither automatic nor absolute, for while in the normal course of events such persons lost primary rights to the lands they had left, they retained contingent rights, and their issue held secondary rights.1 If a person was banished from his lineage, then he lost all rights to its land whether he went to another part of his own district or to another district altogether. He did not even retain contingent or secondary rights in the land unless these were reinstated to him or his issue following a later rapprochement. The crucial factor would appear to have been lineage affiliation rather than absence.
1 There were, nevertheless, some atypical pre-contact instances of persons living in one district and exercising land rights in others. In all such cases noted there were special extenuating circumstances.
The third premise is based on a statement of the Court in 1903 in respect of a particular piece of land to which it would not admit the issue of two particular rangatira unless it could be shown that they had living descendants within the Cook Islands. An examination of this case shows that it did not constitute a change of custom - on the contrary, it illustrates the principles of succession and reversion under native custom, and shows that they were still operative at that time.
2 E.g. Mataiti who shifted only a matter of a few hundred yards, but did so in order to join in another lineage and thus lost primary rights in his lineage of origin. - MB 19:165–6 NLC.
3 The full case is recorded in MB 1:30–46 NLC.
At the time of the case, however, the children of Te Paeru were living in New Zealand, and it would appear quite likely that it was their intention to remain there. Never-theless, one of the disputants maintained that the children retained their rights to the land (presumably, though he does not say so, because owing to there being no other direct issue from the Pakiri line who had not joined other lineages, he regarded them as still being primary members of their mother's lineage). The other party to the dispute agreed that they had had a legitimate claim in earlier years page 237 and went so far as to say that a previous holder of his title had specifically taken these children to the lands and shown them their boundaries. But, he explained, following a dispute as to whether they belonged to his major lineage or that of the other mataiapo, the children finally gave their allegiance to that mataiapo, and because of this action the former mataiapo had tried to deprive them of rights to this land.
No party or witness at any stage stated or implied that their absence in New Zealand was considered to be of any relevance to the case. In fact, if absence from the island was the significant factor, then the issue of Pakiri's daughter who lived nearby in Avatiu, and who were equally closely related to the original owner in blood, would have had the primary rights to the land.
It was Judge Gudgeon who introduced the factor of absence, and, with the obvious intention of excluding the issue in New Zealand, stated that the Court would ignore the rights of any of Pakiri's descendants unless they were living in the Cook Islands. Quite incidentally, this ruling technically gave the issue of Pakiri junior a right, though this was probably unintentional (there is no evidence of their having exercised it). The Court itself, therefore, would appear to have been the agent of change.
In the statement referred to at the beginning of this section the Appellate Court noted that as the decision just discussed was made over forty years ago an even greater relaxation of the original rule could be expected today. As almost all the lands of Rarotonga were clothed with legal titles by 1908, it is impossible to say what changes, if any, would have taken place in the absence of the Court. Under these circumstances the best available evidence is provided from the neighbouring island of Atiu where no extensive page 238 Court investigations were carried out until after the Appellate Court had made its statement.
Field investigation on Atiu indicated that there, too, lineage affiliation was the crucial factor in determining primary rights to land up to the time of the Court investigations. Absence was quite an important factor in determining lineage affiliation, but absence of itself did not cause the severing of that affiliation. The rights of the children of contingent members differed according to whether their parents had, or had not, permanently joined other lineages. Many Atiuans who have been absent from the island for many years, who have not joined other lineages (e.g. wage-earners in Rarotonga) and who have maintained contact with their families of origin and intend to return to them, would have no difficulty in resuming primary rights in their respective lineages. Their children likewise could do so if they wished. On the other hand, those remaining on Atiu who have married into other lineages and live on their lands, are regarded as having more tenuous contingent rights to the lands of their lineages of origin and their children would be unlikely to claim primary rights there unless they had been adopted back. From pre-contact times until today the important criterion for the retention or resumption of primary rights to land has been lineage affiliation.
The evidence clearly indicates that the rights of women and of absentees were determined on the same basis as the rights of other persons, i.e. as a function of their membership of a particular lineage and of their status within it. The first significant post-contact changes in this system were those wrought by the operation of the Land Court itself.
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.
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.
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
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.
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
1 AMB 3:10 NLC.
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.
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.
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.
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.
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.
1 Persons who were included in the original lists but who have subsequently died have been excluded from this figure.
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.
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.
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.