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Land Tenure in the Cook Islands

A shift in the balance of power

A shift in the balance of power

In 1897 chiefly power over land was at its height; but so long as the exercise of this power did not interfere unduly with New Zealand ambitions in the group it was tolerated, and even actively supported. Time was on New Zealand's side, for the islanders were thought to be dying out, and even they themselves appear to have been convinced that their extinction was ‘a foregoine conclusion’.1 It is true that the Prime Minister considered that under the Protectorate system New Zealand was not gaining sufficient return in trade2 but his attempts to annex the group were thwarted by the Colonial Office.3 In 1896, when the Colonial Office was prepared to consider annexation by New Zealand under certain conditions, the Governor of New Zealand, who was the channel of communication, did not convey the information to the government as he feared their motives for wishing to assume responsibility for the group.4

The Protectorate functioned satisfactorily enough while the local authorities concurred in the more important proposals of the Resident, and so long as their interaction was mutually advantageous. During 1897, however, the

1 Moss, Fortnightly Review 54:776.

2 Seddon to Governor 24.7.1894 CO 209 PRO.

3 File CO 209 1894–8 passim PRO.

4 Governor to Colonial Office 16.7.1896 CO 209 PRO.

page 191 Resident drafted a bill for the local parliament, creating a court which was to have exclusive jurisdiction over cases in which foreigners were involved, and which was to act as a court of appeal from the ariki courts. The Resident proposed that he himself should be its Chief Judge. The effect of the bill would have been to subordinate the powers of the ariki to those of the Resident, and to free foreigners from the jurisdiction of the local courts.

While only judicial power was ostensibly in question, the ariki had found that the control of the courts was a powerful adjunct to political and economic power as well, and interpreted the proposal as ‘taking all our power and giving it to the British Resident’.1 According to some sources the chiefs had been led to believe that if they passed the bill it would leave the way open for their losing not only all their authority but also their lands.2 The ultimate sanction of chiefly power lay in the degree of chiefly control over the major source of subsistence and income: the land. The power to evict transgressors and to accommodate co-operative squatters was vital to the retention of their position. Members of the local parliament were nominated by the ariki and, ‘holding their land at the will of the said arikis’, were allegedly compelled to acquiesce to their proposals.3

When the parliament refused to pass the bill, Moss panicked and threatened to ‘take matters up with the Queen’. He dissolved the parliament and the ariki petitioned the Governor for his removal.4 The Governor requested the Chief

1 Minutes of Enquiry held before Sir James Prendergast 28.12.1897 NZPP A3 1898.

2 Moss to Hutchen 15.9.1897 NZPP A3 1898.

3 Moss' public statement of 29.9.1897 NZPP A3 1898.

4 Petition of Makea, Pa, Karika, Kainuku, Tinomana and Ngamaru to Governor 7.9.1897 NZPP A3 1898.

page 192 Judicial Commissioner of the Western Pacific High Commission to proceed to the Cook Islands by warship and investigate the matter.1 When the Commissioner stated his preference for travelling by passenger vessel neither the Governor nor the Prime Minister concurred, both considering that a warship was essential for ‘moral effect’, and Sir James Prendergast, the Chief Justice of New Zealand, was sent instead.2

2Governor to Colonial Office 7.12.1897 CO 209 PRO.

Sir James realized that the system of land tenure, whereby commoners could be evicted at will by the high chiefs, was incompatible with an elective democracy, and that the chiefs would be most reluctant to relinquish the mana they had as ‘landowners'.3 Prendergast's enquiry can hardly be described as impartial, for before the enquiry began he publicly reiterated New Zealand's confidence in Moss, and expressed displeasure at the fact that Moss’ advice over the court bill had not been heeded. He there-upon called on the Members of Parliament to explain why they had refused to pass the bill.4 Under interrogation from the Chief Justice, with a warship lying at anchor awaiting his deliberations, knowing that Malietoa, Mataafa and other Samoan chiefs had been banished by the Germans for displeasing their government, knowing also the consequences of the Maori wars in New Zealand for the ‘recalcitrant’ tribes, and the price paid by the Society Islanders for opposing the French, the chiefs claimed that they had not refused the bill, but merely wished for time to consider it.5

1 Governor to Colonial Office 23.10.1897 CO 209 PRO.

3 Prendergast to Governor 24.1.1898 NZPP A3 1898.

4 Minutes of Enquiry… NZPP A3 1898.

5 With the frequent shipping connections and travel between the Cook Islands and neighbouring groups, visitors between them came and went. For example, a sister of the exiled Malietoa was living in Rarotonga, whence she maintained a correspondence with her brother – Correspondence of Rafala Maoate to Malietoa ATL; in 1864 two New Zealand Maori chiefs had been to Rarotonga seeking land on which to resettle their tribes - Krause to LMS 9.9.1864 SSL; and on several occasions parties from Raiatea and other Society Islands had come to Rarotonga in an attempt to enlist aid in their troubles with the French. It was thus not without reason that Makea was ‘concerned at a rumour that she was to be deported and the islands annexed’ - Prendergast to Governor 24.1.1898 NZPP A3 1898.

page 193

As a result of the enquiry Moss was withdrawn and replaced by Colonel W.E. Gudgeon, a man of martial bearing who had won distinction in the wars against the Maoris of New Zealand, and believed that ‘stern authority’ was essential in dealings with Polynesians. He had been Resident Magistrate in two Maori districts and had served for several years as a judge of the Native Land Court of New Zealand. Gudgeon arrived by man-o'-war and was formally introduced at a full dress parade at which the naval commander read a proclamation declaring that Her Majesty Queen Victoria had ‘learned with much displeasure of their refusal to obey her wishes in regard to the enactment of the Federal Court Bill’.1 The chiefs were warned of the consequences of any similar action in the future.

The High Court Bill was passed without question, Makea Ariki sent an abject apology to the Queen,2 and the political power in the island was effectively transferred to the Resident. What the average islander thought about these proceedings is difficult to say. The struggle for power was between the ariki and the Europeans and both claimed to be supported by and representing the interests of the common villager. But as the sources of information are derived principally from one or other of the interested parties

1 Proclamation of the Governor 26.8.1898 NZPP A3 1899.

2 Makea Ariki to Governor 13.9.1898 CO 209 PRO.

page 194 (principally the European) and but little from the people affected, this must remain to some extent a matter of speculation. What is clear is that the common man did not participate in the struggle, and was probably but little aware at this stage of precisely what was going on.

Effects on land tenure were immediate. One of the first moves was the passing of ‘an act to secure uniformity in leases and security of tenure to foreign lessees’.1 This act applied throughout the Federation (i.e. all the islands of the Southern Group) and was the first enactment relating to land to apply to more than a single island. Despite its wide application, its functions were confined almost exclusively to Rarotonga, and the administration of the act was made the responsibility of a Land Board which consisted of the Resident and the five ariki of Rarotonga.2 In addition, any mataiapo was entitled to a seat on the Board for such time as any matter relating to lands in his tapere was being discussed.

To qualify for registration a lease had to have the approval of the Resident and at least three of the ariki. The Board was entitled to stipulate conditions for leases, and no land could be leased to a foreigner if it was in the beneficial occupation of a native of the island concerned, or if a Maori had been ejected in order that the land might be leased. All leases had to be accompanied by survey plans, and had to specify the rental and term of the lease. The Board met on various occasions to consider leases: a few were modified, but only one or two were ever declined.

1 Sub-title of ‘The Land Act’ 1899. Summaries of all legislation referred to are contained in appendix A.

2 At present there are six recognized ariki on the island, but at that time Vakatini was not recognized as one.

page 195

One clause, apparently drafted by Colonel Gudgeon, read:

And whereas a large proportion of the best land in the island of Rarotonga is not in the beneficial occupation of any person and such land does not in any way add to the wealth or revenue of the island. And whereas there are a large number of persons of the Maori race in this island who have no land rights and who will never become producers unless fixity of tenure be given to them, it shall therefore be the duty of the Board to consider the means whereby land on perpetual lease may be secured to all of the deserving members of the native-born Rarotongans.1

With the power over tribal lands still vested in chiefly hands (and that power based to a considerable extent on the ultimate sanction of expulsion from the land) one could hardly expect that such a body would so openly invite a major reduction in power. No action appears to have been taken on this clause.

In the same year an act was passed giving increased powers to the Au (informally constituted district councils of elders, headed by the ariki). Among other things they were given power to require the planting of coconut trees by all people in their respective districts, to ‘report to the chief of the Government’ those persons who did not adequately utilize their lands, to impound wandering stock, to levy dog-tax, and to place the lands of the districts under ra'ui in order to minimize theft and permit bulk sale of product.2 Under local ordinances which were enacted by the Federal Parliament for the outer islands, local judges were made responsible for the settling of land disputes, though if either party wished to do so they could have their cases heard by the High Court (of which the Resident was Judge) instead. Provision was also made for

1 ‘The Land Act’ 1899 clause 18.

2 ‘Au Empowering Act’ 1899. This act extended and clarified the powers given to the Au under the ‘[Act] For electing the Au’ of 1891.

page 196 appeal from decisions of the local courts.1 In Aitutaki, however, all land disputes had to be heard by the European Resident Magistrate based at that island.2

A start in the direction of introducing land taxes was made with the passage of a law which provided that land occupied by foreigners was to be subject to a tax of one shilling in the pound of its rental value as a tax towards the execution of public works.3 Maoris were not to be taxed in cash, but instead were to provide labour for public projects.

1 ‘Statute of Atiu, Mauke and Mitiaro’ 1899, ‘Statute of Mangaia’ 1899, ‘Statute of Rarotonga’ 1899.

2 ‘Statute of Aitutaki’ 1899.

3 ‘An Act to provide for the Rating of Land in the Occupation of Foreigners’ 1899.