Land Tenure in the Cook Islands
The constitution and functions of the Court
The constitution and functions of the Court
The Land Court is required to act in most of its functions in accordance with native custom. However, it has never initiated research to determine the nature of existing custom, nor has it subjected the cases in its own records to analysis to determine the nature and frequency of the processes operating. As a result, its judgements have in a large proportion of cases not been in accordance with custom. Whether for this reason or otherwise there is a considerable and widespread public prejudice against the Court within those islands where it has worked. That much of this prejudice may be ill-informed does not affect the fact of its existence and that, as a consequence, there is almost certain to be opposition to any proposal which in any way increases the discretionary power of the Court as at present constituted.1
1 I gained the impression that the Land Courts in Western Samoa and Tonga enjoyed much higher public approbation. It was largely as a result of having taken land matters out of native hands that the Gilbert and Ellice Islands Colony found that by 1944 it had 75,000 outstanding land cases awaiting settlement, and the number was increasing at the rate of 700 annually. At that time an administrator with extensive experience in colonial land matters observed that it was ‘presumptuous, one might even say absurd, for an [European] officer to set himself up as a greater authority on the customs of an island than an assembly of Elders of that island’. Thereafter, the whole onus of dealing with land matters was returned to indigenous hands and European Commissioners were required not to ‘match their knowledge of native custom against that of the elders’.
If a more faithful observance of custom is to be achieved in future, there appear to be two alternative approaches to it. On the one hand, detailed legislation can be drafted specifying the nature of custom and the ways in which it should operate in any given situation.1 In order to ensure appropriate adaptation to any change of circumstances, it would appear to be desirable that the people themselves be empowered to make such changes as they wish: either through the Legislative Assembly or through local Island Councils.
On the other hand such a result could perhaps be achieved by the appointment of indigenous assessors. The use of assessors in land investigations is general not only elsewhere in the Pacific, but also in other parts of the world where European judges are required to deliberate on matters of native custom.2
1 Of the various petitions which have been presented since World War II pointing out that native custom was not being followed by the Court, the latest, that to the Minister of Island Territories in 1958, requested that a Royal Commission should determine the nature of custom and lay down rulings on it for the Court to follow.
2 E.g. in Western Samoa the Land and Titles Court is comprised of a President (who is the Chief Judge of the High Court), not less than 2 Samoan Judges, and not less than one assessor; in Tonga, though the need for assessors is minimal due to the comprehensive provisions of the law, the Land Court is comprised of the Chief Judge of the High Court and one Tongan assessor; in Fiji the Native Lands Commission is comprised of a Commissioner (usually a Fijian) and a group of Fijian assessors elected for the particular area by the Provincial Council. In the Solomon Islands native land cases are dealt with by the District Commisoner sitting with two native assessors. In the Gilbert and Ellice Islands Colony the Lands Commission is composed entirely of indigenous members though a European Chief Lands Commissioner sits with them in appeal cases. Land Courts in Africa appear generally to follow the same broad pattern. (The Cook Islands Land Court is composed of one judge - a European - who sits alone.)
1 Nor, of course, can most Europeans or other peoples enunciate the principles involved in the various social institutions in their own societies, despite constant participation in those institutions and a knowledge of how to act in particular situations.
3 The other inhabited dependencies are Niue Island and the Tokelau group. Niue is approximately 64,900 acres in area and the jurisdiction of the Land Court extends to this island, though very little work has as yet been done there. The Tokelau Islands are a group of three coral atolls whose total land area is estimated at 2,500 acres. Though no statutory body at present has any authority to settle land claims there, it is probable that the jurisdiction of the Land Court will be extended to include those islands as a corollary of a recent decision to administer them from the Cook Islands. The Chatham Islands are not dependencies and are served by the New Zealand Maori Land Court.
As it is known that the customs of the Southern Group do not obtain in the Northern Group, and that the customs on Niue Island and the Tokelaus are each different again, it would appear to be desirable to precede Court investigations there by research into the nature of the existing customs and such modifications to them as the inhabitants may wish to make. If custom were to be codified, it may be necessary, as it has been found necessary in the Gilbert Islands, to draw up a separate Land Code for each island or group whose customs differ from those of their neighbours.2
1 In view of the volume of work the Court has in connection with succession, adoption, leases and other matters, and in view of the complexity of the tenure situation, 800 acres is a considerable acreage to cover.
2 Or, as in some territories in Africa, to provide the Court with a manual of custom to guide it in its deliberations. The use of a system of law reports as a basis for decisions would appear to be too cumbersome for such small societies.
2 Aitutaki has a lower acreage of land per capita, but its soil is markedly richer and some alternative employment opportunities exist. Manihiki also has a slightly lower acreage per head, but due to the existence of pearl shell in the lagoon, the Manihikians can afford to import the bulk of their food supplies.
3 Data on the Pukapuka situation has been derived from Beaglehole, Ethnology… and Numa, personal notes.
1 The merits and defects of the Mangaian tenure system are a matter of considerable controversy, but as yet little factual data on the system exists outside Mangaia. It is expected that the recent researches of Dr D.S. Marshall will provide this knowledge.