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Land Tenure in the Cook Islands

Advantages of the existing system

Advantages of the existing system

Before considering possible modifications to the present tenure system, note should be taken of its desirable features, for the emphasis thus far has been on its weaknesses rather than its strengths. The first of these is the existence of a functional system of determining boundaries in the event of dispute. Boundary disputes were a common cause of stress in the indigenous tenure system,1 and these have been effectively overcome by Court action. Boundary surveys in the Cook Islands have been executed with absolute precision, and are far superior to those in both Samoa and Tonga.

1 This is shown by the frequent settlement of boundary claims in early Court records, the appreciation expressed by Atiuans at this aspect of the Court's work in its recent sittings there, and the continued existence of boundary disputes on at least some of the islands where the Court has not sat.

page 289

The second is the existence of an independent body to determine ownership in the event of dispute. This, too, was a widespread problem before the Court was established and remains a serious difficulty in Manihiki, Rakahanga and Penrhyn where most of the lands are as yet univestigated by any competent tribunal. However, while the integrity of the Court is nowhere doubted, the degree to which it has achieved the objects of the legislation in determining ownership is at times open to question.1

Thirdly, access to the Court is facilitated by the fact that costs charged to the parties are kept to a minimum.2 The Court does not allow legal advocates in routine cases and this has helped to keep costs down as well as to reduce the extent of litigation.3 Maori opinion was found to favour this practice.

The fourth advantage of the existing system is the presence of registration and recording facilities which are safe, accurate and efficient. Agreements and decisions are verifiable and no longer dependent on memory. In view of the complexity of the tenure system and the multiplicity of ownership this is a considerable achievement, though for these same reasons the cost of maintaing the facilities

1 As discussed in chapters 12 and 13.

2 Except during the first few years of its operation, the Court has not attempted to recoup its costs from fees. Investigations of title, appeals and rehearings do not usually cost the parties more than £2 per section of land for Court fees. Survey charges, which vary with the nature of the section, are frequently more expensive.

3 A person may be assisted by an agent only with the consent of the Court in each particular case, and that consent may at any time be withdrawn - Order in Council 1902 clause 15 and ‘Cook Islands Act’ 1915 section 387. Some prominent Maoris and a few Europeans have appeared as agents in particular appeal cases, but none has done so as a means of livelihood. It is rare indeed for agents to appear in investigations to title, successions, or other cases.

page 290 is necessarily high relative to the area and value of the land registered.1

Any modifications to the tenure system should not be such as to do away with these useful features - an efficient system of boundary definition, an independent and accessible body to determine rights in the event of dispute, and an accurate and efficient system of registration and recording.

1 Owing to the multiplicity of functions performed by the Justice Department it is impossible to isolate the respective proportions of expenditure on land registration and other work (such as registration of vital statistics, criminal court proceedings, deeds, etc.). The total area of land registered or under investigation does not exceed 31,000 acres, but the cost of government dealings with this land (including investigation of title, registration, succession and other matters) is probably in the region of £4,000 to £5,000 per year - a high proportion of the total per acre output of registered land in the group.