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Land Tenure in the Cook Islands

The functioning of the laws

The functioning of the laws

Of greater significance than the laws and rules themselves was the manner in which they operated in practice, for none of them ascribed clear roles to particular persons or groups, nor did they lay down adequate rules of procedure. page 160 To the extent that they did function, they were administered by the persons or groups who had most power in the society at any given time, and according to procedures adopted by those power groups.

In land matters the key figure in the power structure in most districts was the judge, one (or sometimes two) of whom was appointed at the time the laws were introduced. The initial appointments were in most cases made by the missionaries, though later ones were usually made by the local ariki.1 Judges invariably belonged to the district or island over which they exercised their jurisdiction2 and were either themselves ariki, or their younger brothers, or holders of titles immediately subordinate to those of the ariki.3 Through his own land rights and his kinship bonds a judge was probably an interested party in many cases and would be obliged to support members of his own lineage against those of other lineages. Moreover, as he was either the ariki or a related chief appointed by the ariki it would generally be in his interests to support the higher rank orders rather than the lower, and the senior minor lineages rather than the junior ones.

1 On Rarotonga the first judges were appointed by the missionaries themselves. - Pitman, Journal 19.9.1827. So far as can be ascertained subsequent appointments were made by the normal processes of inheritance, until in 1890 legislative provision was made requiring that in future judges would be appointed by the ariki of the district. - E Akamoni i te Au Ture 1890 (Law for Upholding the Law).

2 With the exception of Ngamaru Ariki, who held the post of Chief Judge of Avarua from 1898 until 1903. While not a Rarotongan, he was the husband of Makea Ariki of Avarua, as well as being an ariki of Atiu in his own right. - Ioi Karanga 17.12.1898.

3 For many years the Chief Judge of Atiu was the leading ariki, but when he took up permanent residence on Rarotonga he appointed leading mataiapo who were subordinate to him as Chief Judges. Tupe, the Chief Judge of Ngatangiia from 1827 to 1840, was the younger brother of Pa Ariki. From 1827 to 1898 the title of Chief Judge at Avarua was held by the holder of the Vakatini title, passing from father to son.

page 161

A feature which stands out clearly in this period is that land problems were least serious on islands with powerful hierarchical rank structures, and most acute on Aitutaki, Manihiki and Penrhyn, the three islands whose rank structures had been most seriously damaged in the course of their contact experiences.1

Within each of the three districts of Rarotonga, after the first decade of mission influence the ariki and judges had a degree of control sufficient to avoid the outbreak of open conflict, but serious interdistrict disputes continued until the middle of the nineteenth century.2 Naval vessels called there more frequently than at any other island in the group, but on no occasion did the ariki ask for naval or any other form of foreign intervention (other than by missionaries) to control the people of their districts, or to determine land disputes within or between districts. In the Northern Group, on the other hand, naval commanders were frequently called on to adjudicate on land matters.

On Atiu, after the death of Rongomatane Ngaakaara, the ariki who led the conquest of Mauke and Mitiaro and who was in position of de facto authority over the whole island,

1 On Aitutaki this was due to two factors: firstly, power in the indigenous society was diffused through a number of separate but equal chieftainships between which there was inadequate cohesion; and secondly, Reverend Henry Royle, who was in charge of the mission there from 1839 to 1876, was a man of powerful and autocratic personality who, unlike most of his fellow missionaries, chose to destroy the chiefly structure rather than work through it. On Penrhyn, where a similar diffusion of power existed, the situation was further complicated when slavers took away many of the chiefs and left the balance of power upset. Here again the dominant role was assumed by the resident missionary, a Rarotongan named Ngatikaro. On Manihiki the indigenous social order was typified by two groups between which there was considerable friction and jealousy, but neither of which was able to gain complete ascendency over the other; the balance of power was therefore liable to frequent disturbing fluctuations.

2 The laws appear to have been of little relevance in settling the serious interdistrict disputes which arose during the first twenty-five years of mission influence.

page 162 there was a period of tension and disputes over land between the three component tribes on the island. The fact that a law-code had been enacted,1 and that further laws were adopted,2 did little to alter the situation. However, by the 1860s Ngamaru Ariki had gained supremacy over the whole island, and no further land disputes are recorded. In Aitutaki, on the other hand, Reverend Lawrence found on his arrival in 1885 that ‘the law book, the jail, the book containing the names of those convicted - all have gone and the people follow their own will’.3 Despite his attempts to have a new code introduced, nothing had been done by 1887 and there was ‘simply no law on the island, and even if we had there is no one with sufficient authority to enforce it. The consequence is that in all matters relating to land etc. the man with the most stubbornness is sure to have his way in the end. It matters nothing whether he is right or wrong’.4
In 1896 a Special Judicial Commissioner of the Western Pacific High Commission called at Manihiki to settle some outstanding land disputes. One of these was a complaint by Kairua to the effect that certain of his lands had been confiscated by the judge. Though the Island Council had already decided that the land undoubtedly belonged to Kairua, they had been unable to enforce their decision. In another case the Council had given a decision but it had been reversed by the missionary. The Commissioner upheld the Council's decisions in all cases but enjoined them to ensure

1 Gill, Gems… 237.

2 Buzacott to LMS 18.8.1845 SSL.

3 Lawrence to LMS 7.12.1885 SSR.

4 Lawrence to LMS 17.1.1887 SSR. The same state of affairs still existed a decade later. - Lawrence to LMS 20.12.1897 SSL.

page 163 that they were put into effect in future.1 The disorganized state of the authority structure was such, however, that the processes for settlement did not improve and unresolved land disputes remained a continued threat to the stability of the island's political organization.2

Conditions were no better on Penrhyn, where in the event of land disputes the law was ‘put aside and nothing [was] done to prevent them fighting’.3 One of the Penrhyn villages asked Chalmers to draft them a separate code from that used by the main village, and he did so accordingly.4 Mangaia was in a marginal position, for as long as a centralized hierarchy of authority functioned land disputes lay dormant, but on the death of the ‘king’ who had exercised authority over the whole island, his title was split and land disputes burst out afresh.5

It has been indicated that where there was a clear-cut status hierarchy land disputes were contained and seldom developed into open conflict. But as the administration of the land laws was entirely in the hands of the top strata of the social order the institution of law-codes served to strengthen their position relative to that of the lower classes. The European missionaries generally succeeded in their attempts to contain disputes by centralizing judicial

1 Hunter to High Commissioner 31.8.1896 and 10.9.1896 WPHC.

2 Te Karere September 1902.

3 Chalmers to LMS 4.7.1872 to 13.9.1872 SSJ.

4 Ibid.

5 It was the ‘king's’ power over the governors of the six districts that stopped disputes from developing to serious proportions. Both he and the mission realized that there would be disputes over succession to his title and that the new incumbent would not be recognized by all six districts. As expected serious land quarrels broke out very soon after his death and a disturbed political situation developed. - Harris to LMS 5.6.1879 SSL.

page 164 authority for each district or island, but were probably not aware of the degree of personal power which was thus vested in the executors of the law. Not being aware of the complexities of custom, they had of necessity left the judges with very wide discretionary powers. Moreover, with a weakening of traditional sanctions over them1 and with no provision for appeal or other restraint in the introduced system, the judges became powerful indeed. Judge Tupe, who, in conjunction with Reverend Pitman, had tyrannized his district for thirteen years, was said to have had immense influence in land affairs.2 As Judge Tupe was the brother of the ariki, chief executive for the mission, controller of the police force, and Chief Judge called on to decide issues which were not specified at law, this claim appears to be valid.
The law-codes themselves seem to have been of little consequence in determining the course of action taken in any particular circumstance. Though the codes were drafted under guidance and persuasion from the missionaries, their execution was generally a matter for the high chiefs and judges except on Aitutaki and Penrhyn, where the missionaries had assumed the de facto position of high chiefs and therefore had a considerable say in the execution of land laws. On the other islands, while the missionaries exerted considerable influence over the chiefs, their advice was only acted upon to the extent that the high

1 It was no longer feasible to banish a chief for despotism, as had not infrequently occurred in the pre-contact era, and the leavening effect of the supernatural sanctions of the heathen priests was replaced by a new supernatural system which operated more directly through the people who administered the law.

2 Pitman to LMS 9.6.1840 SSL.

page 165 chiefs through whom the missionaries worked found it expedient to do so.1

In the rule about land disputes on Rarotonga, no principles were stated apart from the fact that ‘the law’ would decide.2 One would assume that ‘the law’ referred to the judges, for they had been appointed to administer it, but this particular clause stated that all the chiefs of the island were to determine the issue. It is hardly conceivable that the individual chiefs would deliberate on lines other than those of tribal affiliation, especially in view of the fact that the law did not require them to recognize any particular principles, and it is accordingly not surprising that (before the time of the Protectorate) no example has been noticed of the chiefs functioning as a group to determine any intra-district land dispute, but rather the ariki and the judges invariably controlled such matters for their respective districts.

1 For example, on Rarotonga, shortly after the laws were adopted in 1827, Makea Ariki had a difference with the mission and remained aloof from its activities. The law in his district was accordingly disregarded until Makea's rapprochement in 1833 when ‘the word of God became established…and the law of the island then became effective’. - Maretu, MS 136.

2 ‘Laws of Rarotonga’ 1879 clause 5.