Rights of women (and through women)

The Court view, according to the fullest and most frequently quoted judgement on the matter, is based on four page 227 premises.¹ The first of these is that prior to the coming of the mission in 1823 women had no 1 and rights and could not hold tribal titles. The only evidence given in support of this assumption is the following quotation from the missionary John Williams:

In one respect, the treatment of females at this island [Rarotonga] was materially worse than that which obtained in the Tahitian and Society Groups; for, whilst in the latter females had a share of their father's possessions, at Rarotonga these went to the male branches of the family, and seldom, if ever, to the daughters, on the ground, as they alleged, that their person was their portion.²

Secondly, the Court continued, the custom changed shortly after first contact with European culture. ‘Women were accepted as tribal chiefs, and presumably as owners of land, for it is inconceivable that a person who could be an ariki could not own land’.³ The third premise was based on the Court's interpretation of the following extract of a declaration made by the Federal Parliament of the Cook Islands in 1894:

The land is owned by the tribe, but its use is with the family who occupy that land. The family consists of all the children who have a common ancestor, together with the adopted children, and all the descendants who have not entered other tribes.⁴

The final premise in the Court's reasoning is that practically every list of owners determined by the early Land Court contained the names of females.

Dealing with the evidence of John Williams, it is significant that he makes no specific reference to land rights, either in the quotation cited or elsewhere in the chapter whence it was extracted, but merely refers vaguely to ‘the father's possessions’.¹ On the other hand, as we have already seen, there is adequate evidence to indicate that in the pre-contact era a woman could reside, plant, harvest, and exercise other rights to the lands of the lineage into which she was born for such time as she remained there, and any children she bore there acquired their rights automatically. If she married and went to live in her husband's lineage, she lost primary rights to lands in her natal lineage. They were not annulled or cancelled by her absence, though as a corollary of her new status the exercise of such rights became contingent on the concurrence of the lineage. In some cases that concurrence was given formal and longterm status by granting her special rights to a particular section which was referred to as her marriage portion. While it was common for the mother's lineage of origin to adopt one or more of her children, that was a matter for them to decide.

The declaration by the Federal Parliament would appear on closer examination to be an affirmation of pre-contact custom. The declaration was prepared by a Parliament consisting entirely of indigenous members, and the original was presumably drafted in the Maori language. Unfortunately, no vernacular copy has been located and it is therefore necessary to try to determine what vernacular terms would have been used for some of the key concepts in the declaration in order to understand precisely what was intended.

The Rarotongan language has no verbal equivalent of the English word ‘owned’, and the original probably used the Maori possessive particle ‘no’. This does not imply absolute ownership in the Western legal sense, but rather that a particular relationship existed between the major lineage and the land such as to exclude persons or groups who were not a component part of that major lineage. The group having the rights to use the land, it will be noted, was the occupying minor lineage or a segment of it. (The Court here noted in the judgement that it was ‘those persons who had a right to use’ who were generally awarded legal title). The Court lays emphasis on the fact that the declaration states that the right-holding family consisted of ‘all the children’ to show that the custom had by then changed to include females. This reasoning would appear to be unsound by virtue of the fact that the next phrase stated that those who entered other lineages were thereby excluded.

The Court next utilized lists of owners that it had compiled itself on the basis of its interpretation of custom as evidence to show that the custom had changed to include females as ‘owners’. An analysis of the investigations made into the first 167 sections of land dealt with in Rarotonga shows that they were awarded to a total of 686 names.² Of these 443 were males and 243 were females. Excluding the 65 instances of awards to females in their capacity as titleholders, the proportions are 443 males to 178 females. The important question to determine is whether or not those 178 females were primary members of their respective lineages, for if they were, then it would indicate that the custom had not changed. The ‘Declaration as to Land’ proclaimed that all the family had the right to use, and it was the people with primary use-rights to whom the Land Court attempted to make its awards.

The important change introduced by the operation of the Court was that a legal award of title was not dependent on lineage affiliation and in the eyes of the law at least, the land rights of a person who left the lineage remained unaltered.¹ It was at this stage and for this reason that the rights of women began to change. But even so, the change did not take place immediately, for it took time before the effect of the Court's action was everywhere felt.

We have seen from part two of this study that the greatest impact of culture change was on Rarotonga, the island which became the commercial and administrative head-quarters of the group. And within Rarotonga the greatest changes were wrought in Avarua, the district and village which became port of entry and ‘capital’ of the group. If change in land custom could be expected anywhere, it should be most pronounced in that area. In fact, this did not happen prior to the establishment of the Court, which itself initiated the change. A summary of a case from the heart of the Avarua district is appended to demonstrate this fact.²

As a further indication that the changes described did not come about by autonomous change within the society, let us examine the case of the island of Atiu, where large-scale investigation by the Court did not begin until the 1950s. Detailed field study in 1959 showed that in nearly eighty per cent of instances the rights to land were traced through the father. Of the thirty-five sections of land in which rights were at any stage succeeded to through a female, nine were instances of uxorilocal marriage, four were instances of women having issue but no recognized husbands, twenty-one were cases of there being no agnatic male heir, and the last one was a case in which there were agnatic male heirs but they had left the island and were living elsewhere. This is in accordance with pre-contact custom whereby one's land rights were derived through that parent who was a primary member of one's lineage of residence.