Land Tenure in the Cook Islands
Chapter 4 — The Distribution of Rights to Land
The Distribution of Rights to Land
It is inappropriate to say that anyone ‘owned’ land in Rarotonga, for this might suggest that individuals had absolute power to use and dispose of land as they wished. In fact, more than one person was involved in every piece of land and the rights of every individual were conditioned, not only by rights of a similar order held by others in the same land, but also by a hierarchy of rights of different orders held at various levels within the society. No rights were recognized as belonging to the island as a whole,1 and all the rights in any particular piece of land have never belonged to any one individual.
1 There were two possible (or partial) exceptions to this rule. The first was the road round the island, which was built centuries ago and is still in use. It was the approved route for all persons travelling between districts or tapere. However, the lands it traversed were those of the various lineages, and it was only safe to use the road in times of peace. The second partial exception occurred in the case of the few great marae which, though vested in particular ariki, were nevertheless used by the whole island on some occasions.
2 The most usual decision taken at this level would be in respect to applying a ra'ui or customary prohibition on certain products from all the lands of the tribe.
1 Decisions at this level would include those relating to the reallocation of lands of a kiato which had died out.
2 With the exception of some unused lands in the central mountainous core. This land is not included as belonging to the island as a whole, for while it may be so conceived today, there is no evidence of its having been so regarded in precontact times.
The role of the titleholder
The ariki was the titular head of the tribe, and in formal speech the whole of the lands of the tribe were often spoken of as the lands of the ariki. Likewise, the lands of smaller groups were referred to in the name of the lesser chief concerned. There is no doubt that the ariki were very highly respected and regarded as having considerable power, both sacred and secular. It is equally clear, however, that in regard to land these powers were tempered by the recognition of a series of other rights, and by the need to retain the support of the people.
In reading the source material it is often difficult to distinguish between the rights of the chief and the rights of his tribe or lineage, for the two are often spoken page 62 of synonymously, as exemplified in the following definition of the koutu:
The koutu is … the seat or royal court of a reigning ariki…. It was the special place where all offerings … to the ancient gods were first assembled … where all the chiefs and persons of note … and members of the ariki family were buried … where all tribal annual feasts were held…. Each tribe had its principal koutu and lesser grade koutu. At the principal koutu the ariki usually … resided with … certain members of his family. Certain other chiefs and warriors whose tribal standing and functions made it necessary to do so also resided there…. The only tribal ranks that were entitled to the dignity of holding and possessing a koutu were those of ariki and mataiapo tutara.1 The ariki would ex officio be the head of his particular koutu…. According to tribal accounts no one ariki or individual could claim the absolute ownership of a koutu, this place was in reality the property of the tribe, and the ariki as head of the tribe was the trustee….2
2 Savage, ‘Dictionary…’. Two of the most important koutu on the island at the time of first contact with Europeans were Arai-te-Tonga (the koutu of the Makeas) and Pu Kuru Vaa Nui (the koutu of the Pa Ariki).
3 Smith (quoting Tamarua), JPS 12:220.
Like other members of the tribe, the chiefs had particular lands for residence and food supply which were held in the same way as other family lands. If the successor to an arikiship was not living at the koutu, it would be necessary for him to reside there after his appointment, but he generally continued to draw on his family lands for his food supply.
1 Firth makes a similar point in reference to the New Zealand Maoris. He says ‘… the chief did not have a personal claim in all the lands of his tribe. To certain places he had an individual right, derived from his ancestors, from occupation or from some other cause, and he also possessed a claim in pieces of land held in common with his relatives. His interest in the remainder of the tribal territory is of a socio-political rather than an economic nature…’. - Firth, Economics of the New Zealand Maori 377.
There was a certain flexibility as to place of residence and as to the admission of new members or the expulsion of others. It was the titleholder who, nominally at least, was responsible for such decisions.1 Nevertheless, in the case of admissions at least, the wishes of the individual concerned were probably the dominant consideration.
1 References to admissions and expulsions in indigenous writings almost invariably describe them as being effected by the titleholder even when (in the case of eviction) it is clear from the description that the whole group participated.
Rights of the tribe
The rights of the tribe may be more properly described as those rights of its component individuals which were held in common or exercised collectively. Though the tribe was a significant unit in political affairs, tribal rights in land were limited.
Firstly there were rights of access. In daylight and on approved activities members of the tribe could move freely within the area provided they kept to the appropriate pathways and were on friendly terms with the lineages whose lands they were crossing.
Secondly there were rights to those lands specifically set aside for tribal use. These were small in area and page 65 restricted to particular functions. There was the koutu of the ariki, and within the koutu there were one or more marae or sacred grounds. Marae were centres of religious activity, and the marae within a koutu was the centre of religious activity of the tribe.
The third tribal right was that to produce of all tribal lands for feasts involving the whole tribe. To these every household was expected to contribute. While this was a social obligation deriving from membership of the tribe, it was closely related to the occupation of land, for every primary member of the tribe was occupying his own portion of the lands within the tribal district;1 permissive members also drew their sustenance from specific tribal lands, and contingent and secondary members contributed in recognition of their relationship to that tribe and to a specific lineage and tapere within it.
1 An exception to this rule occurs in the relatively few cases of persons exercising primary land rights in districts other than their own. In such cases they did contribute to certain functions organized by the tribe in whose district the land was situated, and their doing so was stated explicitly to be due to their land rights. In this sense they can be regarded as primary members of the tribe to which they made the contributions.
1 The main products obtained from the mountains were building materials, berries, plantains and wildfowl.
2 There is in fact some land within the core of the central mountain complex which is not identified with any particular lineage. There are claims to its ownership in the literature based on ancient native myths, but the Native Land Court has never been called on to determine its ownership. It is not in use, and according to informants never has been. It was considered to be an area frequented by spirits.
Rights of the lineage
The major lineage was the largest and most permanent unit having control of the allocation and use of land. Tribal units expanded and contracted with the exigencies of warfare and the occasional transfer of political allegiance by some lineages from one tribe to another. The larger major lineages each occupied a whole valley and most of them trace that occupation to the time of settlement by Tangiia about 1200 A.D. As noted earlier, the original mataiapo were each allotted a tapere on which they settled with their families.3 The boundary of each tapere ran from two points on the outer reef, across the lagoon and the adjacent lowlands, up two flanking ridges to end at a point in the central mountain core.4 As the occupying lineages grew and split into separate minor lineages it was the duty of the mataiapo to allot to each segment sufficient land on which to live and plant its crops.
4 There are a few atypical tapere (e.g. Tauae) which do not extend from the sea to the mountains.
Once allocated to a minor lineage, the rights of the major lineage over the land were limited to four - the symbolic right,1 the right of reversion in the event of the line dying out,2 and the right to participate in decisions involving the tapere as a whole, and rights to the lagoon. The tapere marae were held on a major lineage basis, and ceremonial at this level required contributions from the whole lineage. It should be made clear that whereas the minor lineage derived its right from the mataiapo or ariki concerned, the major lineage almost invariably held in its own right and not from an ariki.
Most of the tapere lands were subdivided among the minor lineages, each of which was headed by a rangatira or komono, or by the mataiapo himself. The minor lineage was the most important landholding unit in the system, its lands having clear-cut boundaries which were intended to be permanent, though reorganizations no doubt occurred. Such of the tapere lands as were not occupied by or allotted to particular minor lineages remained the common property of the major lineage; however, according to Land Court investigations, such lands were but few.
The most common indigenous pattern of division within the tapere was to take the central stream-bed as the basic boundary, then allocate sections of land running at right angles from the stream-bed back to the flanking ridge which formed the boundary with the next tapere. On the flat lands the ancient inland road was taken as the starting point lands were allocated at right angles to the road running either seaward to the lagoon or inland to the hills. This pattern of land division is illustrated by the attached map of Turangi and adjacent tapere.page 68
In some cases the minor lineage was allocated a ‘slice’ of the tapere running from the sea to the mountains, and in others it was allocated particular separate portions of land such that it held sufficient of each category of land for its particular needs. In the case of the valleys, while the lands allocated ran from the stream-bed to the ridge-top, the only lands planted were close to the stream-bed. Coconut and other trees might be planted on the gentle slopes, but the steep hillsides, which constituted the bulk of the land area, were not planted. On these hillsides, despite the nominal allocation to a particular minor lineage, members of the major lineage could collect wild fruits and hunt wildfowl. The extent of this right to forage is not known but present-day informants say that it did not extend to the cutting of trees for building purposes without permission.
1 Informants today still claim to know these boundaries, but as all land below high water mark has since 1915 been vested in the Crown and is accessible to all, there has been no occasion to test the accuracy of these claims.
2 Though in some cases they did so.
3 E.g. MB 1:107 and 163 NLC.
The right to take coral rock for building marae or other purposes, or to take pebbles for making pathways, lay only with the lineage which owned the portion of lagoon concerned. For any others to make use of these materials required prior consent. Wyatt Gill describes public fish poisoning drives which used to be held in Rarotonga and in which the whole island participated.2 This, however, was some time after the introduction of the gospel and there is no indication to show whether or not drives on this scale took place in the pre-contact era. Fishweirs belonged to the extended family whose ancestors had built them, and the use of them without permission was regarded as theft.3
1 This custom has long since ceased on the island.
2 Gill, Jottings… 140–2.
3 Buck, Arts and Crafts… 217. This remains the case today.
4 Confirmatory evidence is given by witnesses in the Land Court in AMB 1:15 and MB 19:170 NLC.
5 Buck, Arts and Crafts… 210.
Separate treatment of the kiato does not appear to be merited, as they functioned in the same way as the minor lineages of which they were a part, though necessarily on a smaller scale.
1 Taraare, MS 112–13.
Rights of the extended family
The extended family constituted the elementary unit of landholding and was identified with the use of particular portions of the land of the minor lineage. The household (the residential core of the extended family) was the page 72 elementary unit of production and consumption. It is said that even when the ‘household’ consisted of more than one sleeping house there was but one cooking house.1 The nuclear family does not seem to have existed as a distinct social unit for production or consumption.2 In some cases the household may have constituted the residential core of a minor lineage, but more commonly it seems that each minor lineage consisted of six or more households. Each household lived on one of the lands from which it drew subsistence in a hamlet located near the inland road, some set in only about ten to thirty paces from the road and others set further back in the valley.3 In addition to the right to specific portions of land, households (or in some cases minor lineages) sometimes held rights to bathing pools, shrimp beds and ponds for soaking yams in streams that were passing through lands other than their own. Other subsidiary rights held on land other than that in normal occupation included those to water derived by irrigation channels from the property of another. Owing to the physical configuration of the tapere such rights were, of course, held only between members of the same matakeinanga.
The boundaries of the lands of the households were less permanently defined than those of the lineages, and were subject to more frequent adjustment at the direction of the minor lineage head, in order to better comply with the changing needs of the various households. So far as can be ascertained the nuclear families within the household were page 73 not differentiated in their use of land, but satisfactory evidence on the point is lacking. However, the proprietary rights of many of the component members differed from one another. For instance, the rights of wives were of a different order from those of husbands; the rights of daughters were of a different order from those of sons; the rights of children of uxorilocal marriages were not necessarily the same as those of virilocal marriages, and the rights of children of one wife were different from those of another wife.
1 Examples of this pattern of domestic living are still seen in some of the outer islands today.
2 As William Gill observed, ‘A family, as the term signifies to an English ear, was not known among this people’. - Gems… 12.
3 Williams, A Narrative… 207. The oven stones and kitchen middens are in many instances still visible today.
Rights of the individual
The rights of the individual were invariably shared. No doubt there were instances of individuals being the sole survivors of families which died out, and such persons could, theoretically at least, inherit the whole of the family lands. Such an atypical situation, however, could not last for long, for the individual concerned would either marry, in which case he would normally produce multiple offspring; or alternatively he would die without issue, in which case the lands would revert to the head of the lineage for reallocation to some group which was in need.
1 While this term is perfectly appropriate to an institution such as the Israeli kibbutz, it is confusing indeed to categorize the Rarotongan tenure system by the same term as is used to describe a kibbutz.
To illustrate this point let us reconstruct a hypothetical household in pre-contact Rarotonga and examine the land rights associated with it.1 There would be some lands in which many people held rights concurrently, but in no case would their rights be the same. While between them they would hold rights in many pieces of land, let us consider their relative rights in one portion only - a taro patch which belonged to the forbears of B and the right to which passed to him by the process of inheritance. The right to plant the patch rests ultimately with him though some other members of the household may be entitled to share in decisions regarding its use. Some of them, however, such as J and L, would have no say at all. N would have a special right as this was one of the lands in which, at the time of his adoption, it was arranged that he would have rights. B would have the right to set aside this patch as a marriage portion for his daughter G. No other member of the household would have this right, though H, as heir to the title, and A may be entitled to object if the remaining lands of the household were inadequate.
Note: All relationships are given with reference to B - the head of the household
The temporal aspect of each right differs. In the event of the continued planting of the patch, the male agnates have a lifetime right plus the ability to pass that right to their children. This right is modified if they leave the household to reside elsewhere. That of the refugee E ceases on his death and does not pass to his issue unless specific provision is made for them. That of the female agnates continues only until such time as they marry, when, though they do not lose all rights, the nature of them changes.
There would be some lands in which some of these people held rights, but others held none at all. For instance, C would still have secondary rights in the lands of her natal lineage. B would have no rights at all in these lands. R, who was born into his maternal grandfather's lineage and spent his early years there, would have the right, subject to certain conditions, to return to that lineage. No other member of the household, with the possible exception of his page 77 mother F, has that right. R would also have a particular right to the portion of land which was set aside as a marriage portion for his maternal grandmother A and which she had subsequently passed to him.1 He would not hold all the rights in this plot, for if he dies without issue then the land reverts to the source which gave it, and the agnatic descendants of the donor may then exercise their various rights of reversion.
The above description sets out only a few of the rights held within the household concerned. A fully itemized account of all the individual rights of any household would be very long indeed.
Within the extended family as within other social groups the rights of the component individuals were differentiated by a system of priorities which gave precedence to males over females, to titleholders over commoners, to older over younger siblings, to residents over absentees, to earlier claimants over later ones, to agnates over cognates, and to agnates over affines.1 Such priorities, which rest on preferences for masculinity, temporal precedence and local residence, were not invariably adhered to, but were sometimes modified in relation to personal qualities and particular circumstances. Furthermore, the nature of the rights differed according to whether they related to taro swamps, unused agricultural land, house sites, or forest land. Within this framework allowance was made for personal effort and provided an individual planted on land to which he held an appropriate right the subsequent crop belonged to him, though subject to his obligations to his household, his lineage and his kindred.
1 These criteria were reinforced by the concepts of mana (broadly ‘power’) and tapu (broadly ‘sanctity’) such that, other things being equal, those persons whose descent was traced through lines of males, and through generations of first-born sons, and supported by centuries of occupation of the same area of land were possessed of the greatest degrees of both mana and tapu, and those whose connections were traced through females, through junior siblings, and from persons living elsewhere were possessed of the least of these qualities.
Individual rights to self-propagated crops are not clear from the source material and we must rely on present-day information and practice. The fruits of the wild plantain (musa fehi), which grows in dense clumps at the head of almost every valley on the island, is said to have been the common property of the minor lineage. A prohibition was imposed on the gathering of the crop until a sufficient quantity was considered to be ripe, at which time the prohibition was lifted and the harvesting was made a festive occasion. Secondary and contingent members of the owning lineage could come and join in the party and it was customary to send a bunch to those who did not come. This practice is still observed in some areas.1 On subsequent occasions only members of the local group could collect the fruit, though relatives who requested access to it could hardly be declined. The less important wild fruits are today harvested with little regard for rights of ownership in the lands on which they grow, but informants were of the opinion that under Maori2 custom such products were reserved for members of the matakeinanga occupying the tapere in which they grew, and in some instances to particular sub-groups within it.
1 Some lineages today even go so far as to advertise the ra'ui and its opening in the daily press - e.g. Cook Islands News 15.12.1959 re the opening of the prohibition on plantains in the Takuvaine valley.
Firstly there were the rights of primary members of the lineage or other descent group, whose rights to the land will be referred to as primary rights, i.e. they could plant and harvest as of right. While an individual normally held primary rights in one lineage only, affiliation was not invariably so clear-cut. It was not uncommon to provide for a relative (particularly a child) for a period without adopting it fully, and such a person could drift between agnatic kin and matrikin or pay prolonged visits which might or might not become permanent. During such periods of transition one could exercise certain rights as a primary rightholder in two lineages. Sooner or later, and generally in the event of marriage, one would be forced to opt for the one or the other, though it is conceivable that in rare instances primary rights could be held in two lineages. Such an instance occurred in the early nineteenth century as a result of the inheritance of a rangatira title through the maternal line, and later the inheritance of an ariki title through the paternal line, due to a combination of unusual demographic and political circumstances.1 Such a state of affairs could not last indefinitely, for either the lesser title was absorbed by the greater and the lineages accordingly became one, or the lesser title was given to a son or other relative and the separate identity of the two lineages restored.2
1 MB 21:147–50 NLC.
2 In the instance involving two mataiapo titles as illustrated by diagram on page 59 above, the two titles were first given to two sons with the obvious intention of maintaining the separate identity of the lineages, but due to the untimely death of the junior titleholder, the senior holder then amalgamated the lineages. During the nineteenth century (later than the period shown on the genealogy) the amalgamated lineage again split and two separate titleholders were
Next there were the rights of contingent members of a lineage whose right to plant and harvest the lands of their natal lineages was contingent on return there or on express permission. Their rights to the lineage lands will be referred to as contingent rights.
Thirdly, there were the rights of secondary members of the lineage (i.e. the children of contingent members). We will speak of their rights to land as secondary rights, for while it was generally accepted that they would be admitted to that lineage if they wished to join it, and could thereby gain primary membership of it, they did not under normal circumstances plant there while residing in another lineage. To a lesser degree, the children of secondary members of a lineage were themselves secondary members, and they also had a potential, but markedly weaker, right to the land. They will be referred to as distant secondary rights. In the event of dire necessity there was no limit to the lengths one could trace secondary affiliations of this sort, but in practice they were seldom revived to the extent of exercising land rights.1
Fourthly, there were the permissive members of the lineage, whose rights to the land will be spoken of as permissive rights. Such rights could not be transmitted and their maximum duration was accordingly the life-time of the holder.
1 The fact of ‘belonging’ to a lineage was for secondary members more in the nature of an idiom of kinship and its obligations and responsibilities, than it was a recognition of land rights.
Women were not eligible as heads of any social groups and accordingly they could not exercise such rights as were vested in rank titles. As a member of a household, every woman shared a joint use-right with the other residents and as a member of a descent group she held proprietary rights in that group's lands. Those women who did not themselves exercise primary rights in their lineage lands were nevertheless frequently the channel through which males acquired their rights. In the event of adoption or of there being no resident sons to inherit land rights, these often passed to grandsons through a daughter. The frequency of such a pattern of inheritance is not known, but natural causes and the extent of warfare must frequently have resulted in the loss of direct male heirs.1
1 Maretu claims that 730 people were killed in the wars between Takitumu and Avarua in the second decade of the nineteenth century. - MS 19. This is possibly an exaggerated figure, but available descriptions of the wars indicate that the losses must have been considerable.
1 Williams, A Narrative… 139. In the normal course of events the heir to the headship of the family would be the widow's own son who would have acquired rights from his deceased father. In view of the predominantly patrilocal pattern of residence removal from the family cannot have been the norm. Present-day informants say that if a woman was childless, or if she had only young children, it was customary for her to return to her born family, and this is confirmed by Gill, AAAS 331.
2 See e.g. Savage, ‘Iro Nui Ma Oata’ 58.