Land Tenure in the Cook Islands
The act of 1915: preservation of custom
The act of 1915: preservation of custom
3 ‘The Cook Islands Act’ 1915.
4 This law was not drafted in response to any pressure for reform, but merely due to the fact that it was discovered that through a technical error the laws of the islands were void and the past work of the Land Court needed to be validated. - Northcroft to Pomare 27.5.1914 NZPP A3 1914.
The name of the Court was changed to the Native Land Court, and it was to consist of a Chief Judge and such other judges as were deemed necessary.2 In practice, however, not more than one judge was appointed concurrently until 1946. Pa Ariki, the only islander ever appointed as a judge, died in 1906 and no other indigenous judge was ever appointed. The act recognized four categories of land:
Customary land: being that which was ‘held by Natives or descendants of Natives under Native customs and usages of the Cook Islands’ (i.e. land the title to which had not been investigated by the Land Court);
Native freehold land (i.e. land which had been customary land, but in respect of which a registered title had been issued by the Court to the persons it found to be the customary owners);
European land: being land other than native freehold land, the fee simple of which had been alienated to any person.4
1 Maoris who held the islands portfolio were Sir James Carrol (1909–13), Sir Maui Pomare (1913–28) and Sir Apirana Ngata (1929–35).
2 The name of the Court had been changed in 1908 from ‘The Cook and Other Islands Land Titles Court’ to ‘The Cook Islands Land Titles Court’. - ‘Cook Islands Government Act’ 1908.
3 While all land in the Cook Islands vests ultimately in the Crown, the term ‘Crown land’ is usually reserved to apply to those lands which have been set aside by the Court for public purposes, and it is with this connotation that the term is used in this study.
4 The area in acres of land in the various categories in 1958 was as follows:
|Native freehold land||12,986||16,336||29,322|
|European land (the only land in this category is that vested in religious bodies)||201||69||270|
(Source: LEGAS 1958 paper number 59 and NZPP A3 1958:24.) Of the above native freehold land the amounts alienated by way of lease in 1960 were as follows:
|Leased by Europeans||1,312||1,592*||2,904|
|Leased by the Crown||146||210||356|
|Leased by Maoris||655||22||677|
(Source: NZPP A3 1960:23)
* 1,544 acres of this being the island of Manuae, which has since March 1961 been leased by an indigenous co-operative society.
All land lying below high water mark was declared to be Crown land, thus annulling the indigenous pattern of rights to reef and lagoon waters.1
In general the act followed the earlier enactment under which the Land Court had operated, but several innovations were introduced. Permanent alienation of land (other than to the Crown for public purposes) was prohibited, and leases and other forms of partial alienation were limited to a maximum of sixty years.2 While this constituted a change in legislation, it merely confirmed the practice which had been observed for many years, for though in its early years the Court had approved of some leases of ninety-nine years duration, no sales of Maori land were ever recorded. In the initial stages this was due to local opposition and in later years to pressure from Wellington.
Wills were invalidated in so far as they related to rights in customary and freehold land,3 and as these had been one of the means by which rights were periodically redistributed (usually with the effect of adjusting to changed demographic circumstances) an element of rigidity was thereby introduced.4
1 ‘Cook Islands Act’ 1915 section 419. Prior to this date the Court had refrained from awarding interests to land below high water mark.
2 Ibid. sections 467–9.
3 Ibid. section 445.
4 This restriction was probably imposed in order to avoid concealed alienation (such as secret sale) being effected under the guise of a will.
Provision was also made whereby a chief could hold land by virtue of his office as the holder of a particular title.1 Such lands were to vest in the chief in fee simple, and to pass to successive holders of the title. Though many lands had previously been awarded to persons who held chiefly titles, it was not always clear whether they were intended to hold the rights in their personal capacity or in their role as titleholders. The distinction was necessary in order to know who was entitled to succeed to such lands when a chief died (i.e. whether his children would succeed or his successor in office), who would be entitled to the lands if a chief was deprived of office during his lifetime, and what obligations would affix to the land.
In granting freehold orders involving multiple owners, the Court was required to specify the relative interests of each owner in the land concerned.2 A similar provision had been made in the original enactment, but it had seldom been followed in practice. While it was occasionally followed after the passing of the 1915 act, it was not until the 1940s that it became a routine practice of the Court. Such shares are not defined on the ground and do not relate to any particular portion of the land concerned, but simply represent the Court's evaluation of the proportionate interest of the various owners. This provision is, of course, out of harmony with the flexibility of custom, but was presumably originally introduced as a carry-over to the Cook Islands from the legislation relating to Maori lands in New Zealand, where it was a technique to facilitate negotiation with settlers and the distribution of proceeds from the lease or sale of land.
1 ‘Cook Islands Act’ 1915 section 426.
2 Ibid. section 423.