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Land Tenure in the Cook Islands

The constitution and functions of the Court

The constitution and functions of the Court

The Land Court is required to act in most of its functions in accordance with native custom. However, it has never initiated research to determine the nature of existing custom, nor has it subjected the cases in its own records to analysis to determine the nature and frequency of the processes operating. As a result, its judgements have in a large proportion of cases not been in accordance with custom. Whether for this reason or otherwise there is a considerable and widespread public prejudice against the Court within those islands where it has worked. That much of this prejudice may be ill-informed does not affect the fact of its existence and that, as a consequence, there is almost certain to be opposition to any proposal which in any way increases the discretionary power of the Court as at present constituted.1

1 I gained the impression that the Land Courts in Western Samoa and Tonga enjoyed much higher public approbation. It was largely as a result of having taken land matters out of native hands that the Gilbert and Ellice Islands Colony found that by 1944 it had 75,000 outstanding land cases awaiting settlement, and the number was increasing at the rate of 700 annually. At that time an administrator with extensive experience in colonial land matters observed that it was ‘presumptuous, one might even say absurd, for an [European] officer to set himself up as a greater authority on the customs of an island than an assembly of Elders of that island’. Thereafter, the whole onus of dealing with land matters was returned to indigenous hands and European Commissioners were required not to ‘match their knowledge of native custom against that of the elders’.

page 305

If a more faithful observance of custom is to be achieved in future, there appear to be two alternative approaches to it. On the one hand, detailed legislation can be drafted specifying the nature of custom and the ways in which it should operate in any given situation.1 In order to ensure appropriate adaptation to any change of circumstances, it would appear to be desirable that the people themselves be empowered to make such changes as they wish: either through the Legislative Assembly or through local Island Councils.

On the other hand such a result could perhaps be achieved by the appointment of indigenous assessors. The use of assessors in land investigations is general not only elsewhere in the Pacific, but also in other parts of the world where European judges are required to deliberate on matters of native custom.2

It might be maintained that if indigenous people were aware of the true nature of custom, then they should have given the Court details of the various customs in the course

1 Of the various petitions which have been presented since World War II pointing out that native custom was not being followed by the Court, the latest, that to the Minister of Island Territories in 1958, requested that a Royal Commission should determine the nature of custom and lay down rulings on it for the Court to follow.

2 E.g. in Western Samoa the Land and Titles Court is comprised of a President (who is the Chief Judge of the High Court), not less than 2 Samoan Judges, and not less than one assessor; in Tonga, though the need for assessors is minimal due to the comprehensive provisions of the law, the Land Court is comprised of the Chief Judge of the High Court and one Tongan assessor; in Fiji the Native Lands Commission is comprised of a Commissioner (usually a Fijian) and a group of Fijian assessors elected for the particular area by the Provincial Council. In the Solomon Islands native land cases are dealt with by the District Commisoner sitting with two native assessors. In the Gilbert and Ellice Islands Colony the Lands Commission is composed entirely of indigenous members though a European Chief Lands Commissioner sits with them in appeal cases. Land Courts in Africa appear generally to follow the same broad pattern. (The Cook Islands Land Court is composed of one judge - a European - who sits alone.)

page 306 of evidence and questioning by the Court. This argument is not valid for the reason that, like most people, though they are aware when a particular act is or is not in conformity with custom, they cannot necessarily enunciate the principles involved.1 By way of example, it can be shown that despite the fact that the Atiu people did not explicitly state the nature of the customs by which they acquired their rights to lands in Tengatangi, almost every claim to land there followed strictly in accordance with the customs laid down in the foregoing chapters of this study, but despite this tremendous volume of examples of the principles of succession presented to the Court, it was still not aware of their precise nature.2 The fact that ten successive judges have determined cases continuously for almost sixty years without being aware of the exact nature of the customary principles operating indicates that, for so long as native custom is the basis of land transactions, some better method of enabling the Court to ascertain custom accurately is essential.
To date the Court has investigated title to a little over half the total land area of the Cook Islands, and just under one quarter of the area of New Zealand's inhabited island dependencies.3 Most of the inhabited islands of the

1 Nor, of course, can most Europeans or other peoples enunciate the principles involved in the various social institutions in their own societies, despite constant participation in those institutions and a knowledge of how to act in particular situations.

3 The other inhabited dependencies are Niue Island and the Tokelau group. Niue is approximately 64,900 acres in area and the jurisdiction of the Land Court extends to this island, though very little work has as yet been done there. The Tokelau Islands are a group of three coral atolls whose total land area is estimated at 2,500 acres. Though no statutory body at present has any authority to settle land claims there, it is probable that the jurisdiction of the Land Court will be extended to include those islands as a corollary of a recent decision to administer them from the Cook Islands. The Chatham Islands are not dependencies and are served by the New Zealand Maori Land Court.

page 307 Cook group as well as Niue Island and the Tokelaus have repeatedly requested the services of the Court or of some similar institution to assist them in the solution of their existing tenure problems. At the current rate of 800 acres of investigation of title per year, however, it will be many years before all lands in the Cook group are actually dealt with, and even longer before those of Niue and the Tokelau Islands can be considered.1

As it is known that the customs of the Southern Group do not obtain in the Northern Group, and that the customs on Niue Island and the Tokelaus are each different again, it would appear to be desirable to precede Court investigations there by research into the nature of the existing customs and such modifications to them as the inhabitants may wish to make. If custom were to be codified, it may be necessary, as it has been found necessary in the Gilbert Islands, to draw up a separate Land Code for each island or group whose customs differ from those of their neighbours.2

One point which will merit consideration is that of the unit of ownership. In the Southern Group at least custom considered that proprietary rights lay with named descent groups, and if this situation obtains on the other islands then the people may prefer that the land be registered in the name of the relevant descent groups, specifying the accepted processes of admission to or departure from those groups, and the various usufructuary rights of

1 In view of the volume of work the Court has in connection with succession, adoption, leases and other matters, and in view of the complexity of the tenure situation, 800 acres is a considerable acreage to cover.

2 Or, as in some territories in Africa, to provide the Court with a manual of custom to guide it in its deliberations. The use of a system of law reports as a basis for decisions would appear to be too cumbersome for such small societies.

page 308 component members.1 If the people desired that proprietary rights should be clearly separated from usufructuary rights, and that the former should be vested in descent groups, usufruct could be both more easily and more flexibly managed by a system of occupation rights or occupation licences issued by the descent group to individuals or groups for specific periods and purposes.
Only two islands have not, through their respective Island Councils, expressly requested the services of the Court. Pukapuka, the first of these, has the most serious population pressure in the group, with 642 people living on 1,250 acres of land, most of which is coral rubble and sand.2 Living thus, the Pukapukans have evolved a system of collective exploitation of the bulk of their lands, each village working as an owning and producing unit under the direction of its elders.3 Mangaia, the other island which the Court has not investigated, has strongly and consistently opposed any Court investigation since its inception. As this does not appear to have adversely affected production from that island, in comparison with those islands served by the Court,4 and as their popularly elected Island Council has never expressed any wish for it, there would

1 Such a course of action is at present followed in Fiji and in Western Samoa.

2 Aitutaki has a lower acreage of land per capita, but its soil is markedly richer and some alternative employment opportunities exist. Manihiki also has a slightly lower acreage per head, but due to the existence of pearl shell in the lagoon, the Manihikians can afford to import the bulk of their food supplies.

3 Data on the Pukapuka situation has been derived from Beaglehole, Ethnology… and Numa, personal notes.

page 309 appear to be no valid reason for introducing the Court there at this stage.1

1 The merits and defects of the Mangaian tenure system are a matter of considerable controversy, but as yet little factual data on the system exists outside Mangaia. It is expected that the recent researches of Dr D.S. Marshall will provide this knowledge.