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Land Tenure in the Cook Islands

The rights of absentees (contingent and secondary rightholders)

The rights of absentees (contingent and secondary rightholders)

The second major aspect of custom which the Court alleged had changed was that of absence and its effects on land rights. The Appellate Court has expressed the view that whereas in the pre-contact era a person who left his own district lost all rights to land there, after a period of contact the custom was modified and it was only when he left the island itself that he lost his rights. By 1903, it maintained, the process of modification had gone further and it was then accepted as custom that it was only when one left the Cook group entirely that one lost one's rights. On the basis of the ‘progression’ of change postulated above, it reasoned that even greater relaxation of the original rule might be expected in 1951, the date of this statement.1

1 ‘We believe that it was once a native custom of Rarotonga that a person leaving his or her district for another lost all rights to land in the former. Later on it appears that it was only when a person left Rarotonga itself that land rights were lost. Then again in the Vaimaanga 6 case (MB 1:46) the Court said in its judgement: “The Court…will ignore the rights of Pakiri and Mangio unless it can be shown that there are direct descendants of these two men living within the Cook Islands.” This judgement was given over 40 years ago and a Court today may find an even greater relaxation of the original rule.’ - AMB 1:162 NLC.

page 234 It is necessary to examine in some detail the three premises on which the final postulate (and subsequent decision) was based.

The first premise is that under pre-contact custom a person leaving his district lost all rights to land there. This was indeed normally the case in so far as primary rights were concerned, for persons who went away to live in another district normally did so in order to join another lineage. But the loss was neither automatic nor absolute, for while in the normal course of events such persons lost primary rights to the lands they had left, they retained contingent rights, and their issue held secondary rights.1 If a person was banished from his lineage, then he lost all rights to its land whether he went to another part of his own district or to another district altogether. He did not even retain contingent or secondary rights in the land unless these were reinstated to him or his issue following a later rapprochement. The crucial factor would appear to have been lineage affiliation rather than absence.

The second premise was that after a period of contact one only lost rights by actually leaving Rarotonga. However, there are many instances during the period of people leaving the island who nevertheless maintained some contact with their home lineages, and who did not establish themselves as

1 There were, nevertheless, some atypical pre-contact instances of persons living in one district and exercising land rights in others. In all such cases noted there were special extenuating circumstances.

page 235 permanent members of their host lineages on the islands where they were temporarily domiciled. Despite absence for many decades in some cases, their rights were recognized and preserved by their respective lineages.1 On the other hand there are numerous instances of men who remained within Rarotonga, but who left their lineages with the intention of permanently joining others and accordingly lost primary rights to the lands of the lineages they left.2 The more logical and consistent interpretation (particularly in the absence of any evidence to the contrary) is that the loss or retention of rights was dependent fundamentally on whether or not they were still regarded as primary members of their respective lineages; and in the case of contingent members, on what action they took to maintain contact with their descent group of origin, and to regain primary membership of it if they returned.

The third premise is based on a statement of the Court in 1903 in respect of a particular piece of land to which it would not admit the issue of two particular rangatira unless it could be shown that they had living descendants within the Cook Islands. An examination of this case shows that it did not constitute a change of custom - on the contrary, it illustrates the principles of succession and reversion under native custom, and shows that they were still operative at that time.

The circumstances of the case may be summarized as follows.3 Two portions of land had been held by each of two

1 E.g. Ta'unga who was absent in New Caledonia and Samoa for 38 years and who thereafter returned in 1878 and resumed his primary rights.

2 E.g. Mataiti who shifted only a matter of a few hundred yards, but did so in order to join in another lineage and thus lost primary rights in his lineage of origin. - MB 19:165–6 NLC.

3 The full case is recorded in MB 1:30–46 NLC.

page 236 rangatira. At the time of the case (1903) no person held either of the titles, and none of the issue of the previous holders was living on the land. The case was principally a dispute between two related mataiapo whose own lands were contiguous, and both of whom claimed rights in the disputed lands by reversion. No party or witness mentioned any issue from one of the rangatira (Mangio) and it is quite likely that there were none. The case of the other rangatira (Pakiri) takes up almost the whole of the evidence. Pakiri had two children, a son named Pakiri and a daughter named Te Paeru. Both children married. Pakiri junior had only one child, a daughter. She married a man in a neighbouring district and bore children who were living on the island at the time of the case but who made no claim to the land. Nor did the parties to the case consider that this family had any right to it. This was in accordance with the custom whereby her children would be expected to inherit their primary land rights in their father's lineage. Te Paeru, on the other hand, married a European - a man without either land or lineage - and it was customary in such cases to treat the children as members of the lineage of their mother. This is confirmed by the fact that both disputing mataiapo regarded them as such.

At the time of the case, however, the children of Te Paeru were living in New Zealand, and it would appear quite likely that it was their intention to remain there. Never-theless, one of the disputants maintained that the children retained their rights to the land (presumably, though he does not say so, because owing to there being no other direct issue from the Pakiri line who had not joined other lineages, he regarded them as still being primary members of their mother's lineage). The other party to the dispute agreed that they had had a legitimate claim in earlier years page 237 and went so far as to say that a previous holder of his title had specifically taken these children to the lands and shown them their boundaries. But, he explained, following a dispute as to whether they belonged to his major lineage or that of the other mataiapo, the children finally gave their allegiance to that mataiapo, and because of this action the former mataiapo had tried to deprive them of rights to this land.

No party or witness at any stage stated or implied that their absence in New Zealand was considered to be of any relevance to the case. In fact, if absence from the island was the significant factor, then the issue of Pakiri's daughter who lived nearby in Avatiu, and who were equally closely related to the original owner in blood, would have had the primary rights to the land.

It was Judge Gudgeon who introduced the factor of absence, and, with the obvious intention of excluding the issue in New Zealand, stated that the Court would ignore the rights of any of Pakiri's descendants unless they were living in the Cook Islands. Quite incidentally, this ruling technically gave the issue of Pakiri junior a right, though this was probably unintentional (there is no evidence of their having exercised it). The Court itself, therefore, would appear to have been the agent of change.

In the statement referred to at the beginning of this section the Appellate Court noted that as the decision just discussed was made over forty years ago an even greater relaxation of the original rule could be expected today. As almost all the lands of Rarotonga were clothed with legal titles by 1908, it is impossible to say what changes, if any, would have taken place in the absence of the Court. Under these circumstances the best available evidence is provided from the neighbouring island of Atiu where no extensive page 238 Court investigations were carried out until after the Appellate Court had made its statement.

Field investigation on Atiu indicated that there, too, lineage affiliation was the crucial factor in determining primary rights to land up to the time of the Court investigations. Absence was quite an important factor in determining lineage affiliation, but absence of itself did not cause the severing of that affiliation. The rights of the children of contingent members differed according to whether their parents had, or had not, permanently joined other lineages. Many Atiuans who have been absent from the island for many years, who have not joined other lineages (e.g. wage-earners in Rarotonga) and who have maintained contact with their families of origin and intend to return to them, would have no difficulty in resuming primary rights in their respective lineages. Their children likewise could do so if they wished. On the other hand, those remaining on Atiu who have married into other lineages and live on their lands, are regarded as having more tenuous contingent rights to the lands of their lineages of origin and their children would be unlikely to claim primary rights there unless they had been adopted back. From pre-contact times until today the important criterion for the retention or resumption of primary rights to land has been lineage affiliation.

The evidence clearly indicates that the rights of women and of absentees were determined on the same basis as the rights of other persons, i.e. as a function of their membership of a particular lineage and of their status within it. The first significant post-contact changes in this system were those wrought by the operation of the Land Court itself.