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Land Tenure in the Cook Islands

Rights of women (and through women)

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.

Reasoning from these premises it argued that native custom in relation to ownership and succession had changed prior to the Court's establishment and that it was giving effect to the intention of the legislation if it granted

1 MB 23:7 NLC.

2 Williams, A Narrative… 214–15.

3 MB 23:7 NLC.

4 ‘Declaration as to Land’ 1894.

page 228 freehold ownership rights to women and awarded succession to all the issue of any right-holder, female as well as male (irrespective of whether the person through whom the rights were claimed was at that time a primary member of the lineage in which the rights were claimed). Before dealing with the Court's conclusions it is necessary to examine the validity of the premises on which they are based.

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 holding of titles by women did occur as a change in custom prior to the institution of the Land Court and as

1 Williams says that possessions ‘seldom, if ever’ went to the daughters. If he had merely used the term ‘seldom’, his statement would not have been inconsistent with the custom relating to transfer of land rights.

page 229 a result of this change it became possible for women to exercise such rights to land as were the prerogative of titleholders. This change was initiated by the mission, and, as noted on page 181, women held titles only when there was no eligible male heir directly descended from the previous holder in the male line.1 The role of the titleholder was a rather special one, and the fact that women were able to hold titles does not necessarily imply (as the Court would appear to have assumed) that the land rights of untitled women were affected thereby.

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.

For the term ‘tribe’, the original version probably used the word matakeinanga - i.e. the local group based on a major lineage occupying a tapere.2 For ‘family’ the original probably used either ngati or kopu tangata. The ngati was an ambilateral (though predominantly patrilateral) minor

1 There were exceptions to this rule - one of the most outstanding of which was Makea Te Vaerua, the first female to hold a title in the group, who succeeded to the title although she had surviving younger brothers. Her village, however, was the group headquarters of the mission, and there mission influence was at that time at its height. Te Vaerua was a strong supporter of the mission, and her husband Tiberio was the senior non-European missionary resident there. Her younger brothers, on the other hand, were not then so active in their support of the mission, nor so ‘consistent’ in their adherence to its moral precepts.

2 It almost certainly did not use the term vaka, for evidence clearly shows the marginal nature of rights at that level.

page 230 lineage headed by a titleholder. In most tapere there were several such minor lineages each headed by a rangatira or komono under the mataiapo or ariki who was head over all the people of the matakeinanga and the tapere occupied by it.1 Alternatively and even more probably the term kopu tangata was used, and if so it would connote either those people who constituted a whole ngati, or a component kiato or uanga.2

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 declaration itself appears perfectly consistent with pre-contact custom - while nominal ownership lay with the major lineage, the right to use rested with the occupying minor lineage, kiato or uanga, all members of which had

1 The term ngati, used here to denote a minor lineage, can also be used at higher levels of social segmentation.

2 The term kopu tangata can be used with several other related meanings which would not be relevant in this context.

page 231 rights in the land as a function of their membership of the social group. Those who entered other lineages (usually females at marriage) lost their primary membership of their lineage of origin. That it should accord with pre-contact custom is the more to be expected by virtue of the fact that the Parliament which made the declaration stated that it was merely confirming the custom which had existed ‘from time immemorial to the present day’.1

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.

Owing to the fact that Judge Gudgeon relatively seldom called for substantiation of claims, and even more seldom recorded the reasons for his awards or the relationship between awardees, it is impossible to prove that the women whom he found to be entitled to land rights were primary

1 Preface to the ‘Declaration as to Land’ 1894.

2 This does not mean 686 separate individuals as some individuals had rights in several sections. The total number of persons involved was about 525.

page 232 members of the lineages concerned, though in those cases where data are available they were almost invariably primary members. The possibility that in 178 instances out of 686, primary use-rights were held by women is not at all surprising. Unmarried women as well as widows or divorcees who had returned home retained or regained primary membership. So also did those married women whose husbands resided uxorilocally. Furthermore, a number of the awardees were children who of course generally resided in the lineages of their birth irrespective of sex.

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

1 It was most commonly (though not invariably) women who left their primary lineage to join another at marriage.

page 233

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.