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Land Tenure in the Cook Islands

Determining ownership

Determining ownership

The main function of the Court in its dealings with natives was to determine the customary owners of the land and to issue them with registered titles. These were known as ‘freehold’ titles, though the term carries a different connotation from that in New Zealand or England, for a Cook Islander with a ‘freehold’ title has no power of devise and is usually one of many co-parceners.

As indicated in part one of this study, a variety of classes of rights in land was held by a hierarchy of social groups and by a wide range of persons; the exact nature of the right of each individual depending on his or her status within, or relationship to, that descent group which held the primary rights to the land. Judge Gudgeon aimed to issue title to what he called the ‘true’ (or ‘real’) owners, and it is clear from his writings that when he spoke of ‘true’ owners he was referring to the primary members of the occupying minor lineage (or to an individual or sub-group within that minor lineage) to whom the land in question had been allocated under custom. Such persons are referred to here as primary right-holders. It was essential, he felt, that each ‘cultivator’ should hold his own plot of land ‘either in fee simple or by perpetual lease at a nominal rent’.1

1 Gudgeon, NZPP A3 1902:48.

page 212

He was aware of the fact that under native custom multiple rights were held in each section of land, but specifically provided the means whereby the Court would strengthen and confirm the claims of the primary right-holders and annul all other forms of rights. The reason for this action was two-fold: firstly, by breaking down the hierarchy of rights he hoped to achieve security of tenure and a lessening of tribute (as evictions and demands for tribute were invariably made by the heads of the higher segments of the social hierarchy); and secondly, by annulling the secondary rights of persons of the same social class as the primary right-holders he hoped to abolish the customary claims of kin and affines to the use, and more particularly to the produce, of the lands of their relatives (as the demands of kin were felt to be an obstacle to increased output). In short, whereas under custom one's land rights were a function of one's place within the social structure and conditional upon those of others, the Court proposed to give unencumbered rights to individuals, and to annul what it considered to be production-limiting customs which vested titles in persons as representatives of groups and limited the use to which they could put their rights.

This intention of the Court resulted in a very considerable modification to custom. Such a change may well have been justified, for the customary tenure system was evolved to meet the needs of an isolated subsistence economy, and by 1902 the people had participated to some degree in a market economy for three generations. Means of ensuring increased security of tenure for the cultivator were probably desirable, for whereas in the pre-contact economy it was seldom in a chief's economic interests to evict a member of his group, in the changed economy of the late nineteenth page 213 century it was often to his material advantage to do so. Moreover, the Court had been designed to facilitate increased production for export, and it was considered that this could be best achieved by reducing the number of persons with claims to each section of land as far as possible.

To what extent then did the early Court achieve its aim? An analysis of all cases dealt with in Rarotonga from the first sitting on 2 April 1903 until 18 April 1905 shows that of the 167 sections of land investigated,1 some 55 (or 33 per cent) were awarded to ariki solely, 16 (or 10 per cent) to mataiapo solely, and 12 (or 7 per cent) to other titleholders. In total then, fifty per cent of the lands were awarded exclusively to titleholders.2 While it has not been possible to compile data on the areas involved, it would appear that the areas awarded to titleholders only were as large or larger than those awarded to others, though they were frequently in the less densely settled areas of the island.

Of the other 84 sections, some 13 were awarded to ariki and members of their immediate families, 4 to ariki and commoners jointly, 33 to mataiapo and commoners jointly, 16 to rangatira and commoners jointly, and only 18 to persons who were either commoners or whose rank status is not known to me.3 Of the whole 167 sections, almost ninety per cent were awarded to either titleholders alone or titleholders

1 This does not include village house-sites held under the akonoanga oire, leases, or church lands.

2 The ariki and mataiapo would at this time have constituted about two per cent of the island's population.

3 It is quite possible that some of the persons in this last group were in fact rangatira or komono. The Court seldom mentioned the rank of the persons to whom it made awards, and titles of the above two categories are so numerous that it was not possible to compile a comprehensive list of them.

page 214 jointly with some of their followers. In most instances where untitled persons were included in the awards they were not all the persons with primary rights to the land concerned, but were the heads of extended families.

According to the Judge's own criteria of what constituted a ‘true’ owner, his judgements at this period were not giving effect to his stated policy, for as only those persons named in the orders of title had any legal right to the land the junior members of many families were deprived of all rights to the land they were planting. The actual situation was close to the antithesis of that which it had been supposed would result from the operation of the Land Court. Fortunately, however, it would appear that custom in this matter was stronger than the legal provisions, and that, in the early years at least, the chiefs in effect regarded their title to the land as one of trusteeship rather than outright ownership, and the junior branches continued to occupy as before.

Judge Gudgeon was well aware that his awards were often not consistent with his intentions, but found his hands tied by the fact that:

From time immemorial it has been the custom to regard the eldest born of the senior branch of the family (mataiapo) as the natural guardian and trustee of the family land, as the man who, by right of birth and by subsequent election by the elders of the tribe, should manage the whole estate in the interests of the family…. So great is their respect for this old custom that it is well-nigh impossible to make those who are most deeply interested come forward and claim inclusion in the list of names. They are quite satisfied to have the names of one or two elders of the family placed on the Court records, and cheerfully ignore the possible legal effects of their own prejudices.1

In the same paragraph he goes on to claim that the people did not recognize the right of the titleholder as being

1 Gudgeon, NZPP A3 1904:70–1.

page 215 ‘any greater than that of any junior member’, but this assertion would appear to contradict the above quotation, as well as other available evidence.

Henceforth, to avoid further aggregation of chiefly power over land, the Judge gave greater emphasis to ensuring that each ‘family’ (minor lineage or kiato) had separate lands awarded to it. As far as possible he insisted on recording the names of all adult members of the ‘family’ concerned, in some cases going so far as to include affines, but they were recorded as joint owners in each section rather than each man having an individual section allotted to him as the Court had earlier intended.

In the early years of the Court's operation there was but little proper investigation of ownership. It was usual for a claimant to stand and assert ‘I own this land’, whereupon the judge would ask whether there were any objectors, and if there were none he would award to the claimant or claimants without further ado. Substantiation of the claim was called for only when there was dispute. In many instances, no doubt, lack of dispute indicated the the claimant had derived his right by accepted processes of custom. Nevertheless, it was also in some cases due to the fact that other legitimate claimants were absent, intimidated, unaware of the fact that the case was being heard, or convinced that as junior members of the lineage it was not appropriate for them to appear in court and that their respective chiefs would be looking after their interests.1

Judge Gudgeon realized that at least some of the titled claimants to lands before the Court were either not the rightful ones or not the only ones, and if such cases were

1 Evidence of persons in each of these categories is contained in the records of the Appellate Court which was set up in 1946.

page 216 not disputed he frequently awarded the claimant a life interest only, with the intention that investigation to the title of the land would thus be deferred until that person's death. By that time, he hoped, the function of the Court would be more widely understood and claimants who had been absent, intimidated or otherwise restrained from prosecuting their claims would be able to come forward and establish their rights. Perhaps equally important was the fact that Gudgeon had to play the dual role of judge and administrator, and the very chiefs whose rights he questioned were those whose co-operation he needed for the efficient administration of the territory. Granting them a life interest avoided the otherwise very real possibility of an embarrassing breach with the chiefs. This was not a case of merely delaying the evil day, for he was of the opinion that there would be no more ariki after the passing of those then reigning.1
By the time the holders of many of the life interests had died, Judge Gudgeon had retired. His successor, Mr Eman Smith, never exercised his powers as a Judge of the Land Court, and it was not until 1913, when Judge McCormick was appointed as Resident and Judge, that work relating to land titles was resumed. Whether because he did not understand Judge Gudgeon's reasons for granting life interests only, or whether due to his administrative responsibilities it would have been an embarrassment to reopen these cases (for despite Gudgeon's proposals no limitations were imposed on the

1 This view seemed plausible owing to the fact that the three most prominent ariki of Rarotonga, and the leading ariki of Atiu were all childless. Gudgeon regarded the New Zealand Government as ‘the natural successor to the present Arikis’. - Gudgeon to Mills 18.7.1905 NZPP A3 1906. He later modified this view to the extent that he considered successors could possibly be permitted if they gave a written undertaking ‘that they understand that the old powers of the Ariki have gone for ever, except where conserved and recognised by the law…’. - Gudgeon, NZPP A3 1908:6.

page 217 succession to ariki titles) Judge McCormick proceeded by way of amendment of title. Firstly he declared that the original orders concerned did not give effect to the ‘intended’ decisions of the earlier Court, and then amended them by adding the words: ‘With remainder to such person or persons as the Court may by succession order declare to be the true owners of the land described therein’.1

Having thus empowered himself to grant succession, he proceeded to award it without further investigation to the heirs of those chiefs who had held the life interests. There was of course no legal provision for granting succession to life interests, and this action, which has been severely criticized by later judges,2 was the cause of considerable litigation in the late 1940s when provision was made to reopen certain categories of cases on appeal.3

1 MB 5:158 NLC. Power to amend orders of title was given in clause 25 of the Order in Council of 1902.

2 E.g. by Judges Morison, Harvey and Morgan in AMB 1:185 NLC.

3 Title to lands wherein succession was granted to a life interest, but which have not been challenged in the Appellate Court, still remain uninvestigated today, for the reason that unless the de facto possessors apply to the Court for investigation, no jurisdiction exists under which they can be re-opened.