Land Tenure in the Cook Islands
By gift and permissive occupation
By gift and permissive occupation
Certain rights in land were at times transferred by gift, but never all the rights in any parcel, for some rights invariably remained with the donors. Such gifts were always conditional and invariably implied a right of reversion to the donor if the donee died without issue. It may be better to avoid the word ‘gift’ altogether, for to the Western ear it implies the handing over of the fee simple of the land. Nevertheless, the term is frequently used in the literature, and is quite a convenient one provided it is remembered that only specific rights were given, and on specific conditions.
1 Such rights were given ‘tuatau ua atu’. While this phrase is usually translated as ‘for ever and ever’, it may be more faithfully interpreted as ‘from this time onward’, implying ‘as far as we can see’. The connotation is one of indefiniteness rather than irrevocability. Two unstated stipulations appear to have existed in all gifts. The first was that relations between the parties remained as at the time of transfer, and the second was that the right be exercised. Many examples exist wherein a right which had been granted while amicable relations existed between the parties, was withdrawn or challenged by the donors (or their issue) when relations between them deteriorated.
Gifts were given either as an acknowledgment of services rendered,1 or to persons in distress such as castaways or fugitives. The latter category of rights may be termed ‘permissive occupation’; the difference between gift and permissive occupation being that in the latter case greater qualifications were imposed and there was less commitment for the future.2 Nevertheless, even the most tenuous right, once acquired, could be strengthened over time. Permissive occupation would never remain as such. It was a temporary right, an emergency arrangement to meet some unusual situation, and in time it would either die out or grow into some other kind of right. A feature of permissive occupation was that the donor party was entitled to partake of such of the produce of the lands as they thought fit, a custom which occasioned difficulty in the settlements formed by the Tahitian missionaries prior to the arrival of their English brethren.3
1 Lands were frequently given for outstanding service in war.
2 This is, of course, a relative difference. Assuming an element of reciprocity to have existed in all exchanges, the underlying cause of the difference was no doubt that whereas in the former case the quid pro quo (in the form of some service redered) was already met, in the latter case it was still to come.
3 Pitman, Journal 12.5.1827.
It was customary for persons holding land by permissive occupation to take to the donor some token of the produce of the land. This was not regarded so much as payment, as an acknowledgment that the occupier's right was only a subordinate one. Such a token gift would be taken to the head of the host family. However, contributions of food were taken to heads of groups for other reasons too: to help in group functions, as a sign of friendship or gratitude, or as gifts on occasions associated with the life crises of relatives. This custom of taking contributions of food and its implications in the matter of land rights was later to become a very important issue, though a somewhat confused and contentious one.
1 No instance has been noted wherein a refugee married other than into the lineage in which he resided. Presumably if he did marry into another lineage it would be in his interests to shift his residence there.