Land Tenure in the Cook Islands
The state of land rights in 1823
The state of land rights in 1823
The principles of land tenure described in the foregoing chapters should be regarded as a body of common understandings which, other things being equal, guided behaviour. But variations in physical strength, power of personalities, number of dependants and other factors resulted in other things not always being equal - and the application of the principles was modified accordingly. Ideally, the overlapping claims acquired through the various channels were reconciled by decisions issued by the chief or chiefs concerned; page 121 but no decisions were irrevocable and not everyone was necessarily prepared to accept the arrangements made by the titleholders.
The tenure system was one in which individuals sought their own maximum advantage in the face of two inhibiting factors. The first was the limitation of process, due to advantage having to be sought through the channels of accepted custom, and the second was the necessity to allow for the claims of other right-holders (in its extreme form the ability to resist aggression) limiting the extent to which that advantage could be pursued.
In view of the propensity to expand one's rights, coupled with the flexibility of means of acquiring and losing rights, it is not surprising that at the time of first European contact every inch of land on the island was claimed by one party or another - and sometimes by more than one. Theft and damage to crops in retaliation for other wrongs were very prevalent and acted as a strong disincentive to the expansion of plantings by those with adequate land. Furthermore, with a population of 7,0001 living off the land (only 3,700 acres of which is regarded as suitable for agriculture);2 with the whole of the Avarua district laid waste in war;3 with considerable areas of land between the districts lying idle in dispute,4 one cannot doubt Maretu's statement that of the remainder ‘scarcely one piece remained unoccupied’.5
2 Fox and Grange, Soils… 40. They consider a further 1,530 acres to be usable for tree crops though not generally suitable for agriculture.
3 Maretu, MS 19.
4 Pitman to LMS 17.12.1834 SSJ.
5 Maretu, MS 33. He does not suggest that it was all planted, but merely that it was in the recognized occupation of one or other family.
Disputes as to ownership and use were frequent, though historical records show them to have been much more prevalent between lineages than within them.1 The first European missionaries found that land disputes were constant and constituted the most contentious issue that they had to deal with during their early years. Pitman recorded after a meeting with some of the chiefs that: ‘Formerly they used to find some pretext to seize one another's kaingas or land consequently nothing but quarrels and wars were known among them. The principal difficulty appears to be whether the present holder of the land shall keep what he has or restore it to the person from whom it was taken. If the latter be adopted, it is likely to be attended with many unpleasant circumstances. The former at present appears to be the most likely for the continuation of peace.’2
Williams described the situation by saying: ‘Another difficulty was produced by what they call kai kainga, or land-eating, which is getting unjust possession of each other's lands; and these, once obtained, are held with the greatest possible tenacity; for land is exceedingly valuable in Rarotonga, and on no subject were their contentions more frequent and fierce. On investigating this last practice, we found it to be a species of oppression in which so many were involved, and also a point on which the feelings of all were so exquisitively sensitive, that to moot it would be to endanger the peace of the island. We therefore thought it most advisable to recommend the chiefs to allow it to remain for the present in abeyance.’3
1 This reflects the fact that the machinery for settlement of disputes within tapere was relatively efficient, whereas that above the tapere level was not.
2 Pitman, Journal 28.7.1827.
3 Williams, A Narrative… 139.
Land disputes were most commonly encountered in cases where the primary holders of the rights concerned had died without surviving issue in the primary group, and where more than one secondary claimant wished to acquire the rights in question. While recorded pre-contact disputes most frequently involved titleholders of different lineages who claimed the same lands by different criteria, it is apparent that problems sometimes arose between chiefs and their subordinates within the same lineage group, for in 1833, after Buzacott had preached with fervour on the impending hell fire for unrepentant sinners, one of the ariki was induced to make a public confession of his sins. He admitted having ‘robbed some of the lesser chiefs of their lands, and he had placed some of his favourites as tenants upon them’.1 This he had done prior to the arrival of the gospel, in all probability allotting extra portions to those who had supported him in his recent battle to retain supremacy over his district, and taking away from those who had not.
Such was the state of land rights in 1823. It was not due to any lack of suitable principles by which to determine the allocation, retention and transfer of land rights, but rather to the lack of any adequate machinery to give and enforce a binding decision in the event of the disputed application of particular principles in particular cases of inter-lineage conflict. Despite the chronic state of unresolved conflict which existed in respect of many portions of land, it was not of such dimensions as to preclude the planting of food crops, the construction of houses, or the continuance of the usual ebb and flow of life. Land disputes had, in fact, become an incorporated part of the pattern of life.
1 He thereupon made arrangements for the restoration of the lands to the former owners. - Buzacott, Mission Life… 146.