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Land Tenure in the Cook Islands

Chapter 11 — The Land Court in Action

page 211

Chapter 11
The Land Court in Action

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.

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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.

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.

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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.

The progress of Court investigations

Investigations of title can only be initiated on the application of one or more of the persons claiming a right in the land concerned.1 This has seldom slowed down the work of the Court, for once one person from any particular district lodges an application, others are forced to do likewise in order to protect their interests, and soon all are involved.2 Though in the initial stages Makea Ariki supported the work of the Court3 she became strongly opposed to it once she had seen it in operation.4 It was not long, however, before Makea decided that she must ‘put all of her lands through the Court in self-defence’.5

As most of his time was occupied with administrative duties, the amount of land investigation that Judge Gudgeon

1 ‘Rules and Regulations…’ 1902 clauses 5–7; ‘Cook Islands Act’ 1915 section 379. The latter enactment also makes provision for the Resident Commissioner to initiate investigations.

2 The island of Mangaia has remained throughout an exception to this rule. There, despite occasional individual applications for Court investigations, the Mangaian leaders (and probably a high proportion of the people themselves) are unanimously opposed to the Land Court and have been able to stop applicants from prosecuting their claims, and thus to forestall the entry of the Land Court to the island.

3 Gudgeon, NZPP A3 1903:24.

4 Gudgeon to Mills 23.12.1904 NZPP A3 1905.

5 Gudgeon to Mills 30.3.1905 NZPP A3 1905.

page 223 was able to undertake was limited, though by the time of his retirement in 1909 he had awarded title to all the more fertile lands of Rarotonga and Mauke. No further work was done until 1912, when Judge McCormick was appointed, and again in 1913, when Judge Gudgeon returned for a short period. Thereafter this work was left in abeyance until 1916, by which time there were 527 applications outstanding. Judge Ayson was then appointed to be responsible for High Court and Land Court work only and much of his time until 1922 was taken up with investigations - principally on Rarotonga, Aitutaki and Mauke. In 1922 Judge Ayson was appointed Resident Commissioner in addition to his other duties and accordingly found himself unable to cope with increasing arrears of Land Court work.1

Outstanding applications grew steadily and by 1938 there were 1,237 cases waiting to be dealt with, a number of which had been outstanding for more than twenty years. A fulltime judge was appointed in 1939 to deal with High Court and Land Court work, but the accumulation of outstanding applications nevertheless remained consistently over one thousand until 1955, when the figure dropped to 857. During more than half of this period there was one full-time judge of the Land Court, in addition to the Chief Judge who had High Court responsibilities as well.

That the Court has never since its inception been able to cope with the volume of work, and that with a full-time judge during the five-year period 1954–8 inclusive an average of only 800 acres of land was investigated each year,2 is a reflection of the complexity of the tenure situation, the small size of sections, and the volume of ‘maintenance’ work

1 NZPP A3 1927:15.

2 NZPP A3 1959:17.

page 224 involved in successions, partitions, appeals and so on in connection with lands already investigated. The total area of land investigated by the Court in its fifty-nine years of operation does not exceed 32,000 acres, or about half the total land area of the group.