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

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.

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

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

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

Title to village lands

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.

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.

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.

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

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.