Other formats

    TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

Land Tenure in the Cook Islands

Facilitating transfer

Facilitating transfer

While the reintroduction of particular indigenous customs in relation to land tenure can ameliorate certain problems, there are some features in the existing situation which have come about as a result of culture change and for which no adequate custom exists. Perhaps the most serious of these is due to the extent of population movement page 299 which results in many people residing on islands where they have no land rights at all.

The migration is motivated largely by economic considerations and inevitably flows towards those islands and localities where employment opportunities are most favourable. Such skilled personnel as medical practitioners, motor mechanics, equipment operators and school teachers often find it necessary to leave their home islands in order to find work. For those whose stay is long or permanent, finding land which they can acquire on any secure tenure is in many cases virtually impossible. Residing by permissive occupation is widespread and, due to its insecurity, the houses erected on land held under this tenure are of the poorest type.

Not only immigrants are in need of improved facilities for transfer of rights, for many resident families have outgrown their land resources. There are, in fact, many owners who cannot acquire residential or planting sites on their ‘own’ lands and are forced to join the squatters on the lands of others. While this problem is particularly acute in the Avarua and Titikaveka districts of Rarotonga, several instances of it were noted in Atiu and others are believed to exist in Aitutaki.

This state of affairs necessitates the provision of further facilities for the transfer of rights from persons who are not actively exercising them to those who desperately need them for housing, subsistence cropping and commercial agriculture. As a first step, the government proposed in 1957 that legislation be introduced to permit the sale of house-sites. Limitations were provided to ensure that this would not lead to the wholesale alienation of the land: no person could purchase more than one site on any island, and then only for the purpose of page 300 erecting a house for his own occupation. The Court was to be required, before approving any sale, to ensure that the vendor still had adequate land for the support of himself and his family.

The island people, however, viewed the proposals with grave suspicion. It was noticed that the draft provided for sales to any permanent resident of the Cook Islands, and while the total number of permanent residents other than those of indigenous stock did not exceed twenty, the people feared that a way might thus be opened for an influx from New Zealand or elsewhere.1 The examples of Tahiti, Fiji and New Zealand were constantly referred to in discussion, as the Cook Islanders are well aware that in all three places the best land is no longer in indigenous hands. They feared also that this might be the ‘thin edge of the wedge’ and that once this step had been approved further provisions for land sales would be made without their consent.2 The matter was consequently deferred until 1959 when it was again opposed.3 Quite apart from the question of sale, however, there may be sufficient alternative possibilities acceptable to the island people to alleviate the acute rigidity in the current situation.

1 This view persisted despite the fact that as soon as the matter was raised the Administration ‘closed the gap’ by amending the proposal to apply to Cook Islanders only.

2 For fuller details see LEGCO 1957:216–9, 486–540, 551–63, 679–91.

3 Rarotongan members of the Assembly called a public meeting (which I attended) to gauge public opinion on the issue. Over three hundred attended but only four persons (all of them public servants) voted in favour of the proposals, the balance being vehemently opposed. Most of the speakers were convinced that the government had some ulterior motive in promoting the legislation and that it would open the way for wholesale alienation. This was also the dominant theme in the opinions of members of the public with whom the matter was discussed.

page 301

The most useful provision at present in existence is the lease, but owing to multiplicity of ownership, the negotiation of leases has become so costly and time-consuming as to be impracticable in the great majority of cases. No doubt more land would become available for leasing if the problem of fragmentation could be overcome.

In discussion with landowners, two serious objections to leasing were frequently raised. In the first place, owing to the constant depreciation of the value of money, rentals which were adequate enough at the time of leasing proved to be almost nominal within a few years. Instances were quoted of lands which were leased to Europeans early in the century at less than two shillings per acre, and which are still held by Europeans at these rates.1 It is true that the Land Court has in recent years insisted on all leases containing provision for rent revision, usually at twenty year intervals, but even this appears to be inadequate, for the buying value of money has depreciated to less than half during the past two decades.2 This problem could be overcome by making provision for more regular rent revision - perhaps at five-yearly intervals3 - and for relating revisions to changes in the buying power of money in the interim period. In addition, consideration might be given to enacting legislation to permit the revision of rentals on existing leases.

The second objection to leases was due to alleged speculation by lessees. Leases are invariably granted as

1 The instances quoted were verified by reference to Land Court records.

2 According to the latest New Zealand retail price index the relative values for 1939 and 1959 were 523 and 1146 respectively. - See appendix C.

3 Such provision exists in the Kingdom of Tonga where all rentals on leases are subject to revision at five-yearly intervals.

page 302 a result of a personal request being made to the landowners, and most lessors therefore consider that in making land available, they have granted a favour to someone in need. It is commonly held that Europeans who acquire leases often use them for only a few years and then sell them at exorbitant profits to other Europeans. The resale value of the lease is indicative of the market value of the land, and the lessors feel not only that they have been cheated, but that the sale of the lease to an outsider of whom they do not approve is a breach of faith. Irrespective of the exaggerated nature of many cases quoted by informants, the belief is widespread, and there are sufficient instances of transfer at high profit to perpetuate the belief that it exists on a wider scale.1 This problem could perhaps be ameliorated by inserting a clause to the effect that leases could not be sold without the approval of the owners, who should have the option of resuming the land subject only to payment for improvements effected.2 Most Cook Islanders have an aversion to speculation in land.
Owing to the cost and inconvenience of arranging leases, there may be some advantage in a simplified system of short-term occupation licences of one year's duration, which would require neither detailed survey, ratification by the Court, nor the approval of absentee owners.3 Many people have land which they may be prepared to make available for a season, but which they are not prepared to lease. Most

1 E.g. one case investigated showed that a lease was sold (without any improvements) within six years of being negotiated at sixty-two and a half times the annual rental. It was then resold, within ten years of its original negotiation, at one hundred and twenty-five times the annual rental.

2 It would be necessary for the Court to determine the value of improvements in the event of dispute.

3 Such a system operates in Fiji.

page 303 of the food and export crops from the group require less than a year in which to mature and such a provision could lead to the fuller utilization of existing lands. As the surplus land and the people who need it are only likely to be brought into contact to any appreciable extent if a mediating agency exists to do so, some government department or other institution would need to provide such a service.

As discussed in the previous chapter, the existing occupation rights legislation enables any owning group to vest any portion of their land in any person for such time as that person utilizes that land. This legislation was introduced primarily to facilitate the Citrus Replanting Scheme, and has to date been used almost exclusively for that purpose. However, while the legislation itself is not restricted to that scheme, most islanders with whom the matter was discussed in the field believed that it was. It would appear that more publicity to explain the nature and potential uses of the occupation rights legislation would be merited; particularly in relation to the security of tenure it provides to co-parceners for 1 ong-term crops.

The present position could be further alleviated if some authority were given the power to purchase surplus land by voluntary negotiation for the purpose of redistribution to those in need of it. Migration and variations in fertility have led to a situation where in some small families have relatively large tracts of land, and some titleholders are in a similar position. Other lands which could be made available for redistribution are those which have no owners at all, as the legal owners have died without issue and no person has claimed succession by reversion.1

1 Several such instances were noted in the area where field studies were carried out on Rarotonga, and others are known to exist elsewhere.

page 304 Criteria of eligibility and limits on the area available to any one person would need to be laid down. In view of the probable aversion to acquisition by government, it might be preferable to empower Island Councils, co-operative societies, or ad hoc boards to acquire and redistribute land in this way.