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Land Tenure in the Cook Islands

Protection and federation: 1888–983

Protection and federation: 1888–983

With the coming of the British Protectorate in 1888, the power of the high chiefs was reinforced by naval support.4 The proclamation read at each island clearly stated that

3 The Protectorate was declared over the inhabited islands of the Southern Group in 1888, and over all the remaining Cook Islands during the succeeding four years. The Protectorate lasted until 1901, but the direct administration of the group by New Zealand, though not provided for by statute until 1901, in fact began in 1898.

4 Previous to this time the principal actions taken by the navy in the group were to support European trading interests and discipline natives who interfered with them - see e.g. Lawrence to LMS 17.1.1887 SSR.

page 166 there would be no interference with the existing administration by the high chiefs.1 The assembled peoples were told that the customs and laws of that day were to remain, and that foreigners as well as local people were to conform to them.2 During the following decade various high chiefs reminded the British Resident and other foreigners of these assurances whenever their actions were questioned.3
No changes were made in the indigenous political structure until 1890. In that year Mr F.J. Moss, an exmember of the New Zealand Parliament, was appointed as British Resident and took up his post at Rarotonga. He was specifically required to ‘leave the natives in the possession of their existing rights of legislating for themselves, reserving to yourself a veto….’4 Hitherto each of the islands (excepting Atiu, Mauke and Mitiaro) had functioned independently of the others, but in 1891 Moss formed a Federal Parliament for all the islands of the Southern Group.5 The Parliament was composed of the various ariki and their nominees, but the executive consisted of the ariki alone.6 The first Federal law provided that each island would remain self-governing in ‘local matters’7 -

1 Bourke, Form of Proclamation 27.10.1888 CIA. While technically within the jurisdiction of the Western Pacific High Commission, the Commission was instructed not to interfere in administrative affairs in the group, thogh it was given a nominal judicial role. - Colonial Office to Governor 7.1.1895 CO 209 PRO.

2 Bourke to Admiralty 13.11.1888 CO 225 PRO.

3 E.g. see Moss to Governor 11.12.1893 NZPP A3 1894, and 25.4.1898 NZPP A3 1899.

4 Governor to Moss 25.2.1891 NZPP A1 1891. Moss informed the people of the Cook Islands accordingly. - Moss to Chiefs and People of the Cook Islands 22.4.1891 NZPP A3(a) 1891.

5 The jurisdiction of the British Resident and of the Federal Parliament was limited to the Southern Group.

6 The Resident acted as adviser to both bodies.

7 ‘A Law to Provide for the Good Government of the Cook Islands’ 1891.

page 167 a term which in the particular circumstance included land tenure.

The first provision of any kind to apply to more than a single island was the ‘Declaration as to Land’, which was made by the Federal Parliament in 1894 for all the Southern Group and which purported to lay down ‘the customs of the Maori in that matter from time immemorial to the present day’.1 The declaration did not take the form of legislation, and noted that it was ‘for each island to make its own laws’ in this regard. Local councils were constituted on Aitutaki and Mangaia and laws for peace, order and good government were passed.2 These made no specific reference to land tenure, but did provide for the appointment of judges and for hearings in open court.

Moss conducted an investigation of land matters in Aitutaki and found that disputes as to ownership were ‘constant’, usually as a result of adoptions or disputed wills.3 Boundary disputes were also numerous.4 He accordingly persuaded the Council to adopt a law ‘to settle disputes about land’,5 but it merely provided that future disputes as to ownership or boundaries were to be heard by the island's three judges sitting together, rather than individually as they had done previously. As with the mission inspired laws of half a century earlier, no clear principles were specified. Whether the courts kept records, how many cases they heard, and how effective their

1 ‘Declaration as to Land’ 1894.

2 ‘Law for the Future Government of Mangaia’ 1891; and ‘A Law to Provide for the Good Government of Aitutaki’ 1891.

3 Moss to Governor, October 1891 NZPP A3 1892.

4 Moss to Arikis and Governors and People of Aitutaki 28.9.1891 NZPP A3 1892.

5 ‘[Law] To Settle Disputes About Land’ 1891.

page 168 jurisdiction was can only be guessed.1 Moss thought that, as he had provided for the Aitutaki Council to be composed of elected members, and as the new Council had passed the new law and was made responsible for the appointment of the judges, he had transferred control over land matters from an hereditary chiefly hierarchy to a democratic body. However, an examination of the actual composition of the ‘new’ Council shows it to have been composed exclusively of ariki and other titleholders.2
On Aitutaki provision was made for appeals from the decisions of the judges to be heard by the Island Council.3 On Rarotonga, while no appeal was provided for by way of legislation, the Island Council (which was controlled by the ariki) frequently spent a considerable amount of time deliberating on land disputes and issuing decisions on them.4 In addition, the ariki had been given the power of pardon in respect of sentences imposed by district judges;5 and a Supreme Court had been established with an ariki as its sole judge, with power to hear any case involving foreigners and natives, as well as all cases involving Federal law.6 This legislation further strengthened the position of the ariki in Rarotonga, and in 1894 they were given legal

1 Though one of the judges of Aitutaki reported that he had ‘judged many land disputes’, but that there were many still outstanding. - Judge Te Taura to Moss 10.12.1891 NZPP A3 1892.

2 The names of members are listed in ‘A Law to Provide for the Good Government of Aitutaki’ 1891. I am indebted to Mr Mokoenga Kavana for details of the rank status of the members. The Mangaia Council consisted solely of ariki and ‘governors’. - ‘Law for the Future Government of Mangaia’ 1891.

3 ‘[Law] To Settle Disputes About Land’ 1891.

4 E.g. Moss to Governor 19.7.1892 NZPP A6 1893.

5 ‘Power of Pardon Act’ 1890.

6 ‘A Law to Establish a Supreme Court’ 1891.

page 169 sanction for the control of all land matters, for a law was passed providing that after any land case had been heard by a judge, he was to ‘send his judgement to the Ariki of the district, whose decision thereon would be final’.1 This system of appeal and rehearing by the ariki, despite its informal basis, served to reinforce ariki control over land in Rarotonga, but no such system was introduced to other islands of the group.
Moss tried to interest the people of the Federation in a programme of land reform and hoped to create a society of peasant farmers, independent of obligations to their chiefs and kin. He proposed that the government should assume control of all lands and collect fixed cash rentals from each occupying family. The government would then pay those rentals to the chief under whose jurisdiction that land was held.2 Sale or lease could only be negotiated through the government, which was to protect the rights of both chiefs and commoners.3 Moss was afraid that what had happened in Hawaii and elsewhere, where the chiefs had irresponsibly alienated their lands, would happen in the Cook Islands also. However, while the matter was recommended to the Council of Ariki, he found that owing to the fact that they controlled the lands of Rarotonga, they were not anxious to ‘give up the power which the present system gives to the owner of the land’.4 Failing to achieve his aim, he later urged the chiefs of the whole Federation to allot to every family sufficient land on which to grow their

1 ‘Land Occupants Act’ 1894.

2 Te Torea 19.10.1895. This proposal was similar to the system prevailing in Tonga, which Moss considered appropriate for the Cook Islands.

3 Ibid.

4 Moss to Governor 18.11.1895 NZPP A3 1896.

page 170 food crops ‘and a little coffee or other produce to sell’. This proposal would appear merely to have confirmed the existing situation, but he further proposed that the name of the family and of the land should be recorded by the respective Island Councils, and that the occupier should if possible commute the existing obligations to a cash rental.1 The balance of the land, he assumed, belonged to the high chiefs, and he felt confident that in time they would be induced to make it available for lease.2 None of these proposals was adopted.

At the time he assumed office, Moss had complained that under the then existing system each ariki followed or disregarded the laws of his island at pleasure.3 The indications are, however, that the same situation applied at the time of Moss' departure from the island in 1898. Like the missionaries before him, he could only advise and persuade, for he had no compulsive power. In short, he could not have any significant effect on the actual balance of power in the society and accordingly although he could sometimes get legislation enacted, he could get it enforced only to the extent that it was acceptable to those who held the power in their hands. The Federal Parliament itself, which Moss had designed as a popularly elected body, was in fact invariably composed of appointees of the ariki and no election ever took place.4 The actual functioning of the Parliament and of such land laws as it passed served merely to make chiefly power more effective.

The land laws initiated by the mission were instituted in order to reduce dispute and ensure more ‘justice’ by

1 Te Torea 12.10.1895 and 19.10.1895.

2 Moss to Governor 18.11.1895 NZPP A3 1896.

3 Moss to Governor 17.1.1891 NZPP A3 1891.

4 Moss to Governor 17.10.1897 CO 209 PRO.

page 171 safeguarding the rights of the common people. Whether there was any overall reduction in disputes is not known. Such practices as warfare and the ritual plunder of land did not die out as a result of law-codes, in fact neither were mentioned in any code, and the extent of dispute has been shown to have depended not on the existence of such codes but on the unity and strength of the power hierarchy. In fact, the evidence suggests that a lack of land disputes was probably correlated with a minimum of ‘justice’ to the lower rank orders.

In his recommendations for modifications to land laws the British Resident aimed at security of tenure and increased productivity, but the most important of the reforms proposed by him (dealing with registered titles, rent commutation, and government control of land) were never adopted. Those which were adopted resulted in less security of tenure for commoners, though they may nevertheless have been a factor contributing to the increased production during the period, due to the increased chiefly power to organize and control production. This, however, was not the type of development which Moss had hoped to engender.