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Land Tenure in the Cook Islands

Title to village lands

Title to village lands

Arorangi was the first village investigated by the Court and there Tinomana Ariki claimed almost all the house-sites as successor to the original donee, and the remainder were claimed by subordinate titleholders on the same basis. None of the claimants disputed the right of the various householders to continue to occupy the sites. Each section was awarded to the ariki (or other titleholder) ‘subject to the occupation rights acquired by the house-owner thereon’.4 Having thus granted a nominal proprietorship to the ariki,

4 MB 1:59–69 NLC.

page 218 the Judge provided that, so long as there were living descendants of the present householders, they would ‘be deemed to be the absolute owners of the house and land’.1 Householders were required to pay an atinga (tribute) of one shilling per year to the ariki but otherwise their right was not dissimilar to a freehold order. In this way Judge Gudgeon was able to give security of tenure to the occupants without antagonizing the leading chiefs.

Similar arrangements were made in Avarua, where some ariki still today collect the shilling per year atinga, though probably more as affirmation of their residual ownership than for the cash involved. These are the only two villages in the whole group where legal provision was made for atinga to be paid by the householders, and reflects the fact that the ariki of these villages had achieved greater power than those elsewhere. The sum fixed by the Court was intended as a commutation of the much larger contributions in kind which were thought to have been exacted.

On Atiu and Aitutaki, and in the two inland villages of Mauke, the descendants of the original landowners voluntarily waived any claim to residual rights to village lands and the occupiers were issued with freehold orders. Kimiangatau, the coastal village of Mauke, was not set up until 1904, when a large group who felt aggrieved by a decision of the Land Court left the inland villages to establish this new settlement. When title to the house-sites in this village was investigated in 1959 the landowners requested that they be granted the freehold of the land, and that the householders be granted occupation rights. The Court awarded accordingly. The orders of title each contain a clause to the effect that any section which is left unoccupied for five consecutive

1 Ibid.

page 219 years reverts automatically to the owners of the land. No atinga or other charge was levied on the occupiers. It will be noted that whereas in Avarua and Arorangi rights only reverted if the donee line died out, in Kimiangatau, which had been established under different circumstances, actual occupation was made an additional prerequisite for the retention of rights.

When villages were first established under the influence of the mission, the extremities of each were defined, and the total area contained within those extremities was considered to be village land held under the akonoanga oire. Each occupier and his issue was to have exclusive rights to the house-site allotted to him so long as they continued to occupy. But if the occupying line died out, the procedure for determining the next occupier is not clear, for it is a moot point whether the original setting aside of the land was for the people of the tribe as a whole, or whether each individual site was intended to be treated as a separate gift to each recipient and his progeny. If the former view be accepted, then in the event of a house-site being abandoned it reverted to the occupying tribe for re-allocation to some member who was in need of it. If the latter view be accepted, then the abandoned site would revert to the donor of that particular site and his successors.

In practice it appears that the former view generally, though not invariably, prevailed. While details of transfers of abandoned house-sites are not available for pre-Court da differential fertility patterns and migration must have resulted in considerable numbers of sites having fallen vacar especially during the epidemics of the mid-nineteenth century. Had the latter principle applied then large numbers of sites would, by the time of the Court investigation, have reverted to the original donors. Such was not generally the page 220 case, and supports the contention of present day informants that abandoned sections were re-allocated by village leaders, or that if they did revert to the original donors, then they re-allocated them. Even in those villages where the question is complicated by the fact that the village head was also the descendant of the largest original donor, there is still some evidence to suggest that the reversion was to the head in his capacity as village head rather than as descendant of the donor and a recent witness speaking of the Makea lands in Avarua village said that an abandoned house-site would revert to the ariki ‘and he would see who he would give the house site to’.1 The implication is that the role of the ariki was that of trustee rather than of beneficial owner.

The above contention is supported by the experience on those islands where the rights of the original owners were waived. On Atiu, for example, abandoned house-sites were reallocated by the village elders in accordance with needs, and this is still the case today.

In those villages where the Court awarded residual rights to the descendants of the original donor it introduced an element of rigidity into the system, for whereas it thus made provision for reversion as lines died out, it made no equivalent provision for redistribution to expanding families, or for the accommodation of new families moving into the village. As may be expected, reverted allotments are today often let out for such rental as the market will bear and while they are thus made available for housing, the terms are not consistent with the spirit of the akonoanga oire - a system which was intended to ensure a house-site free of charge to every family.

1 AMB 1:22 NLC.

page 221

When the Court issued orders of title in respect of akonoanga oire lands in Avarua and Arorangi, it specifically granted the person named as occupier (or his successor) the right to let or lease the site concerned.1 In recent years, however, the Court has adopted the view that an occupier under the akonoanga oire does not have an unqualified right to lease. It does approve of short-term leases in the event of the holder of the right of occupation being temporarily absent on another island or otherwise not in need of the site for the particular period of time, but in the event of a long-term lease it now insists on the holder of the residual right being consulted and being a party to the negotiation, as well as being recipient of part of the rental.

Thus the Court has in effect revived the rights of the descendants of the families who had almost a century before relinquished all claims (except by reversion) to lands used to form settlements.2 This was effected through their inclusion in the deed of title, secondly by making legal provision for the payment of atinga in respect of the land, and more recently by their inclusion in negotiations relating to the use of the land.

In exercising its jurisdiction in respect of lands other than those held under the akonoanga oire, the Court has invariably given an unencumbered freehold title to persons who have been able to show undisturbed occupation since the 1820s and often since more recent dates. The right of reversion has not been specified in such orders for the reason that in the event of the death of the owner

1 Re Arorangi see MB 1:68, re Avarua see MB 4:21A-B and 47A NLC.

2 It may be relevant to note that in the great majority of cases the original ownership of these sections has never been substantiated, the awards being made on the basis of unchallenged assertions of ownership before the Court.

page 222 without issue or cognatic kin, the person from whom the land came originally (or his successors) is the proper claimant by succession. That Judge Gudgeon found it expedient to grant a nominal right to the high chiefs is understandable, but why later judges who were not encumbered with both administrative and judicial responsibilities should have chosen to increase those rights even further is difficult to comprehend.