Land Tenure in the Cook Islands
Fragmentation of title
Fragmentation of title
The problem of title fragmentation is caused by the current Court practice in relation to succession.1 If the present system continues, every person on each island will, in time, become an owner in every portion of land on that island, and in fact in all the Cook Islands. While it is most unlikely that the present trend will be permitted to reach such lengths, many ownership groups are already so large as to impede the use of the land.2 To enable the use of land by units which are excessively large, an informal micro-system has evolved within the legal framework and the degree of efficiency with which the land tenure system now operates is due as much to the micro-system as to the legal framework itself.
3 Not infrequently the Court and survey fees are paid by the occupying branch of the owning group, and they are then considered (informally) to have priority in the use of the land.
2 Some judges of the Court have stated that in negotiations with land they will ignore the views of owners who are resident in New Zealand unless there are special extenuating circumstances - e.g. Judge Morgan, LEGCO 1957:531. However, as the matter is not controlled by legislation, different judges could adopt different practice in this connection.
The second appropriate criterion of selectivity is the native custom whereby, excepting under abnormal circumstances, only primary members of the descent group inherited land rights. As it is most unlikely that distant secondary right-holders who are at present included in land titles would be prepared to have their names deleted, the problem could be overcome by leaving owners as at present, but providing limiting legislation to control succession to their interests, and, as under Maori custom, granting succession only to the children of primary members of the owning group - excepting in the event of there being no primary heirs, or under other exceptional circumstances. The Maori people have been almost unanimous in their wish to retain the proprietary rights of contingent members of the right-holding group, and this would be achieved by the provisions outlined above.
Secondary right-holders would not be granted succession as of right, but provision could be made whereby the primary right-holders could admit any secondary member if they chose to do so. As under custom, it would be a matter for the primary right-holders to determine.
1 Another means of achieving a similar result (and which is in accordance with custom) would be to determine at birth whether a particular child was to inherit from its father or from its mother. In Fiji, for example, it is necessary when registering the child to declare in which family it will inherit its land rights. Such a system in the Cook Islands would probably require provision for the child to change its affiliation by inter-family agreement at any later stage.
This approach would halt the further fragmentation of titles but would not affect titles which were already seriously fragmented. This latter defect could be overcome, to some extent at least, by voluntary consolidation through exchange of interests.1 Legislative provision for exchange of interests, and for payment to equalize exchange, already exists, but is very little used.2 Consolidation by exchange is very time-consuming and it is unlikely that people would take advantage of such legislation unless an extension officer were appointed specifically to advise people of its existence and potential benefits, and how best to ensure that these were obtained in each particular case.3 The desired result would probably be facilitated if Court fees for these services were waived.
1 By consolidation is meant the process of the exchanging of rights by co-parceners in blocks in which they hold interests in common - i.e. a consolidation of titles. Consolidation of land by exchange of plots among unrelated persons would almost certainly be unacceptable to the people.
2 ‘Cook Islands Act’ 1915 sections 438–44.
3 Such an appointment would be temporary only, ceasing when the necessary consolidations had been effected. Consolidation and exchange are of course of little value unless prior legislation is passed to prevent further fragmentation. - Hunn, Report on Department of Maori Affairs 55.
Some territories which face problems of land shortage similar to those found in the Cook Islands have imposed limitations on the rights of absentees, while others have gone further by annulling the rights of any person absent for more than a specified period.1 Such a course of action has been proposed in the Cook Islands and has been violently opposed - not only by absentees themselves but even more vehemently by those remaining on the islands concerned, who would benefit most from the annulment of absentee rights.2 Nevertheless, it would not be contrary to custom to provide legislation whereby absentees, while still enjoying proprietary rights in the land, could not have any say in its administration during their absence.3
1 In the Gilbert and Ellice Islands, for example, if a person is absent from an island for more than seven consecutive years, he forfeits his land rights there.
2 In other words the people value the common bonds of relationship and obligation established through the land more than they value its exclusive proprietorship.
3 Absence would need to be defined in both spatial and temporal terms. In view of the widespread use of motor vehicles on Rarotonga today, it is not uncommon for persons living in the township of Avarua (and elsewhere) to use land in another district. For this reason it would be advisable to class as absentees only those persons who were absent from the island concerned.
When it is considered that most persons can only qualify for a loan under the recently introduced Housing Development Scheme by obtaining a lease from their coparceners, and that a high proportion of islanders live on islands other than their own and can only obtain title to land on their islands of residence by lease, it will be appreciated that any step taken to facilitate the process of leasing and to reduce the cost of negotiating leases will be a beneficial one.
Though compulsory abandonment of rights by absentees is likely to be strongly opposed, it would be in accordance with custom to allow persons who intended leaving for a long period, or permanently, either voluntarily to relinquish their rights to their co-parceners, or to give them to particular members of their extended families.1 Whether or not the sale of rights by absentees would be acceptable is questionable.
1 Such a provision would not need to apply exclusively to absentees, as there may be some residents who have secure incomes from commerce or employment who may be prepared to relinquish their rights in certain of their lands to relatives who are dependent on those lands for their livelihood.