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Land Tenure in the Cook Islands

Fragmentation of title

Fragmentation of title

The problem of title fragmentation is caused by the current Court practice in relation to succession.1 If the present system continues, every person on each island will, in time, become an owner in every portion of land on that island, and in fact in all the Cook Islands. While it is most unlikely that the present trend will be permitted to reach such lengths, many ownership groups are already so large as to impede the use of the land.2 To enable the use of land by units which are excessively large, an informal micro-system has evolved within the legal framework and the degree of efficiency with which the land tenure system now operates is due as much to the micro-system as to the legal framework itself.

The micro-system operates on the basic principles of Maori custom, i.e. that primary members of the owning group occupy and have general control over the land, while those who marry out or leave the locality are excluded from benefitting from rights in the land during their absence.3

2 See pages 2446, 298 and 341.

3 Not infrequently the Court and survey fees are paid by the occupying branch of the owning group, and they are then considered (informally) to have priority in the use of the land.

page 294 It is only when some member of the group ignores this system and insists on adherence to his legal rights that difficulties arise.1 When this occurs it is almost invariably associated with leases or other negotiations with the land or with domestic disputes over other issues. All those persons listed by the Court as owners are legally entitled to a voice in the negotiations and a share of the proceeds from rents proportionate to their legally defined shares in the land; and the primary members are often a minority.2
The most obvious approach to the solution of this problem lies in the reactivation of the appropriate indigenous customs of selectivity in succession. The first of these is the will or reo iku, which allowed a person some element of choice as to who, within his extended family, should inherit his land rights. He did not have the right to will land outside his extended family without their approval, nor was he able to will all his rights to one person and make no provision for others who were in need. It is not uncommon in societies which do not possess modern social security systems for the aged to have the power to give certain land rights to those who have cared for them in their declining years, and many old people in the islands complained that the aged were better cared for when they had some say over the disposition of their land rights.

1 While this was found to be just emerging on Atiu (as discussed on page 245) it was not uncommon on Rarotonga, and the possibility of it was often given as a reason for not using available land.

2 Some judges of the Court have stated that in negotiations with land they will ignore the views of owners who are resident in New Zealand unless there are special extenuating circumstances - e.g. Judge Morgan, LEGCO 1957:531. However, as the matter is not controlled by legislation, different judges could adopt different practice in this connection.

page 295 As under custom, safeguards and limitations would be necessary to avoid other heirs being left in distress.

The second appropriate criterion of selectivity is the native custom whereby, excepting under abnormal circumstances, only primary members of the descent group inherited land rights. As it is most unlikely that distant secondary right-holders who are at present included in land titles would be prepared to have their names deleted, the problem could be overcome by leaving owners as at present, but providing limiting legislation to control succession to their interests, and, as under Maori custom, granting succession only to the children of primary members of the owning group - excepting in the event of there being no primary heirs, or under other exceptional circumstances. The Maori people have been almost unanimous in their wish to retain the proprietary rights of contingent members of the right-holding group, and this would be achieved by the provisions outlined above.

Secondary right-holders would not be granted succession as of right, but provision could be made whereby the primary right-holders could admit any secondary member if they chose to do so. As under custom, it would be a matter for the primary right-holders to determine.

An alternative way in which to achieve a similar end would be to require any person claiming succession to declare whether he or she wished to inherit in the father's or the mother's land. Having once opted for the one side, that person would no longer be eligible to claim succession as of right in the lands of the other parent, except when there were no other heirs living on the island concerned.1

1 Another means of achieving a similar result (and which is in accordance with custom) would be to determine at birth whether a particular child was to inherit from its father or from its mother. In Fiji, for example, it is necessary when registering the child to declare in which family it will inherit its land rights. Such a system in the Cook Islands would probably require provision for the child to change its affiliation by inter-family agreement at any later stage.

page 296 Nevertheless, provision could be made so that the family of the other parent could, if the majority of right-holders in that land wished, make provision for any such person by means of occupation rights in particular portions of land.

This approach would halt the further fragmentation of titles but would not affect titles which were already seriously fragmented. This latter defect could be overcome, to some extent at least, by voluntary consolidation through exchange of interests.1 Legislative provision for exchange of interests, and for payment to equalize exchange, already exists, but is very little used.2 Consolidation by exchange is very time-consuming and it is unlikely that people would take advantage of such legislation unless an extension officer were appointed specifically to advise people of its existence and potential benefits, and how best to ensure that these were obtained in each particular case.3 The desired result would probably be facilitated if Court fees for these services were waived.

Under Maori custom absentees (other than persons absent for short periods) retained contingent rights in the descent groups from which they originated. Their proprietary

1 By consolidation is meant the process of the exchanging of rights by co-parceners in blocks in which they hold interests in common - i.e. a consolidation of titles. Consolidation of land by exchange of plots among unrelated persons would almost certainly be unacceptable to the people.

2 ‘Cook Islands Act’ 1915 sections 438–44.

3 Such an appointment would be temporary only, ceasing when the necessary consolidations had been effected. Consolidation and exchange are of course of little value unless prior legislation is passed to prevent further fragmentation. - Hunn, Report on Department of Maori Affairs 55.

page 297 right was recognized but while they were absent they did not benefit from the use of the land, nor could they participate in its administration. This is still generally the case today, and the Land Court has to some extent supported the practice. However, it is likely that the practice will sooner or later be challenged by some absentee, for it is not supported by legislation.

Some territories which face problems of land shortage similar to those found in the Cook Islands have imposed limitations on the rights of absentees, while others have gone further by annulling the rights of any person absent for more than a specified period.1 Such a course of action has been proposed in the Cook Islands and has been violently opposed - not only by absentees themselves but even more vehemently by those remaining on the islands concerned, who would benefit most from the annulment of absentee rights.2 Nevertheless, it would not be contrary to custom to provide legislation whereby absentees, while still enjoying proprietary rights in the land, could not have any say in its administration during their absence.3

This would facilitate the day to day use of land and would obviate the current difficulties associated with leasing, which at present requires the concurrence and signature of all registered owners. This may be illustrated by a recent instance wherein, to negotiate a lease for a plot of land at Mauke, it was necessary for the intending

1 In the Gilbert and Ellice Islands, for example, if a person is absent from an island for more than seven consecutive years, he forfeits his land rights there.

2 In other words the people value the common bonds of relationship and obligation established through the land more than they value its exclusive proprietorship.

3 Absence would need to be defined in both spatial and temporal terms. In view of the widespread use of motor vehicles on Rarotonga today, it is not uncommon for persons living in the township of Avarua (and elsewhere) to use land in another district. For this reason it would be advisable to class as absentees only those persons who were absent from the island concerned.

page 298 lessee to contact the 99 ‘owners’, 35 of whom lived in Mauke, 31 in Rarotonga, 21 in New Zealand, 2 in Aitutaki, 2 in Mangaia, 2 in Manihiki, 1 in Atiu, 1 in Mitiaro, 1 in Palmerston, 1 in Samoa, 1 in Tahiti and 1 aboard a ship.

When it is considered that most persons can only qualify for a loan under the recently introduced Housing Development Scheme by obtaining a lease from their coparceners, and that a high proportion of islanders live on islands other than their own and can only obtain title to land on their islands of residence by lease, it will be appreciated that any step taken to facilitate the process of leasing and to reduce the cost of negotiating leases will be a beneficial one.

Though compulsory abandonment of rights by absentees is likely to be strongly opposed, it would be in accordance with custom to allow persons who intended leaving for a long period, or permanently, either voluntarily to relinquish their rights to their co-parceners, or to give them to particular members of their extended families.1 Whether or not the sale of rights by absentees would be acceptable is questionable.

1 Such a provision would not need to apply exclusively to absentees, as there may be some residents who have secure incomes from commerce or employment who may be prepared to relinquish their rights in certain of their lands to relatives who are dependent on those lands for their livelihood.