Land Tenure in the Cook Islands
Chapter 8 — The Form and Function of Introduced Laws
The Form and Function of Introduced Laws
The mission role
The Tahitian teachers made no conscious modifications to land custom, and in some cases not only condoned acquisitions by conquest but actively participated in them. When the European missionaries arrived, however, and were confronted with land disputes which threatened to develop into open warfare, they set about effecting changes. Largely as a result of their influence the extent of warfare lessened year by year, and from the mid-1830s onwards it became a rare occurrence. Ritual plunder, too, seems to have been abolished by the missionaries, for no instances of it are recorded after the first few years of contact.
1 Re Atiu see Buzacott to LMS 18.8.1845 SSL; re Rarotonga see Pitman, Journal, November 1828; re Aitutaki see Lawrence to LMS 23.9.1887 SSL.
The missionaries who initiated the Rarotonga code assure us that it was based on prevailing custom, and that they merely advised and recorded. The laws relating to land appear to be compatible with what is known of existing usage, though they provided for only a small part of the total body of custom, laying down only broad general principles and in some cases a scale of penalties in the event of their infringement. The relevant clauses are as follows:
Clause 5: Disputes about Land
If a chief3 enter the land of another chief and claim it, the law shall decide between them. If the chief who is wrong persist in that wrong, then all the chiefs shall assemble and decide what his punishment shall be….
1 E.g. ‘It is not a good sign to hear so frequently of their complications with traders and with land affairs.’ - Harris to LMS 20.8.1881 SSR; Chalmers to LMS 23.12.1872 SSR; Vivian, Journal, April 1871 to 4.6.1872 SSJ.
3 Unfortunately the vernacular version is not available, but the use of the word ‘chief’ in other parts of the law suggests that the original referred to ariki and not to all classes of chiefs.
There was no provision for disputes between lower ranks, or between commoners and titleholders.
The system of inheritance was not specifically laid down, though some provisions were included in the following rules:
Clause 10: The Widow and the Fatherless
When the husband dies, if the widow be left with children they shall remain upon the land; but if she do evil and be found guilty three times she shall be removed…. If she marries again she shall also leave the land. Her children will remain, and the land be with them. If there be no children, the brother of the dead husband will take the land. If no relation be alive the land will go back to the chief or the Mataiapo, and remain with him.
Clause 14: About Wills
When a person is dying let him make his will openly, in the presence of the Ariki, Judges, and many witnesses…. But if a man will a plantation to his friend, and his Ariki, or his Judge, or the authorities did not know of that will, it will be useless. This is the law of the will, and it is for the Ariki, the Judge, and the authorities to watch over it.
Clause 31 provided that every man had to plant food crops on penalty of a fine, but the nature and quantity of the crops were not defined. The custom of confiscating land for certain crimes was written into the law on ‘House-burning’ which provided that a person found guilty of this crime would be kept in irons for two years ‘and his land be given to the owner of the burnt house’.1 Confiscation was also provided for in cases where a man shifted his allegiance to another mataiapo or ariki and tried to retain control of the land while owing allegiance to the other chief.2
1 ‘Laws of Rarotonga…’ 1879 clause 4.
2 Ibid. clause 11.
3 ‘Te Au Ture Enua i Manihiki’ 1896 (The Land Laws of Manihiki). It is unlikely that this was the first law ever made relating to land in Manihiki and Rakahanga, though prior to that time the existence of chronic land disputes was evident - see e.g. Harris to LMS 2.8.1880 SSR; Hutchen to LMS 30.12.1895 SSL. These indicate that, if laws had been adopted earlier, they were not functioning effectively.
There is always much trouble caused in the land on account of disputes as to land, and on account of disputes as to testaments of dying persons and also through land grabbing.
These laws were made at a meeting of the ‘High Chiefs, Governors, Subchiefs and Chiefs and the three Land Courts of Manihiki’. For islands with a combined population of only 800 souls, this is indeed an extensive list of leaders, but none of them was specifically charged with the duty of executing the law. All disputes were to be taken to the ariki or the governor and the ‘investigators under the law’ (judges presumably, though this is not specified) were not to be consulted in the first instance.
Each of the islands had its own code, but relatively little is known of their precise nature, for, though references to them are numerous, no copies of most of them have been preserved.1 There is no evidence to suggest that they contained detailed provisions with respect to land matters, and at least one of them, that of Mangaia, had no reference to land tenure beyond a clause dealing with boundary disputes.2 Even the most comprehensive codes omitted provision for vital aspects of land tenure3 and most of them dealt with only limited aspects of the system.
2 ‘Laws of Mangaia’ as at 1891.
3 The Manihiki-Rakahanga code, which was by far the most comprehensive, lacked provision for the land rights of adoptees, and adoption was a major cause of land disputes.
Of considerable importance also, and frequently of greater significance than the formal codes, were the informal rules and arrangements made by those in authority. For example in 1837 islanders who went aboard foreign ships forfeited their land rights as punishment.1 In 1845 the chiefs of Rarotonga decided to forbid all sales of land.2 While not provided for in the law, the first man convicted of murder after the introduction of the laws was chained to a peg for five years and ‘the parties who obtained possession of his lands were bound to provide him with food and clothing’.3 In 1849, the ‘king and chiefs’ of Mangaia made rules to provide for the control of wandering cattle.4 On some islands church members were excommunicated for altering boundary marks,5 and on Aitutaki church membership rose from 349 to 383 when those who had been ‘suspended on account of land troubles’ were readmitted.6 In Aitutaki, too, Moss found that an informally constituted body was not only making rules, but levying fines for their infringement.7
1 Pitman to LMS 1.11.1837 SSL. It appears that this ruling was made to control the prostitution of women and the emigration of men.
2 Gill to LMS 18.6.1845 SSL.
3 Buzacott, Mission Life… 151.
4 Deeds Register, item 117 NLC.
5 Hutchen to LMS 16.2.1891 SSR.
6 Lawrence to LMS 18.12.1890 SSR.
7 Moss to Governor, October 1891 NZPP A3 1892.
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.
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.
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.
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.
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
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.
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.
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.
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.
Protection and federation: 1888–983
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.
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.
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.
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.
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.
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.
1 ‘Land Occupants Act’ 1894.
4 Moss to Governor 18.11.1895 NZPP A3 1896.
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.
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.
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.