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Land Tenure in the Cook Islands

Rights of the individual

Rights of the individual

The rights of the individual were invariably shared. No doubt there were instances of individuals being the sole survivors of families which died out, and such persons could, theoretically at least, inherit the whole of the family lands. Such an atypical situation, however, could not last for long, for the individual concerned would either marry, in which case he would normally produce multiple offspring; or alternatively he would die without issue, in which case the lands would revert to the head of the lineage for reallocation to some group which was in need.

The fact that rights were invariably held by more than one person has often led to the view that they were held in common, and that the rights of each member were equal, or of the same order as those of the others. The blanket term ‘communal tenure’ has often been used with this connotation. To the extent that the term is given this connotation, it is quite inappropriate to describe the land tenure system of Rarotonga, and probably equally inappropriate for many other societies to which it is applied.1 It hides, or denies the

1 While this term is perfectly appropriate to an institution such as the Israeli kibbutz, it is confusing indeed to categorize the Rarotongan tenure system by the same term as is used to describe a kibbutz.

page 74 existence of, the diverse nature and complex structure of the rights held by the various individuals and groups within the society.

To illustrate this point let us reconstruct a hypothetical household in pre-contact Rarotonga and examine the land rights associated with it.1 There would be some lands in which many people held rights concurrently, but in no case would their rights be the same. While between them they would hold rights in many pieces of land, let us consider their relative rights in one portion only - a taro patch which belonged to the forbears of B and the right to which passed to him by the process of inheritance. The right to plant the patch rests ultimately with him though some other members of the household may be entitled to share in decisions regarding its use. Some of them, however, such as J and L, would have no say at all. N would have a special right as this was one of the lands in which, at the time of his adoption, it was arranged that he would have rights. B would have the right to set aside this patch as a marriage portion for his daughter G. No other member of the household would have this right, though H, as heir to the title, and A may be entitled to object if the remaining lands of the household were inadequate.

The rights of C are dependent on her marriage to B. If the marriage breaks up her rights lapse, but his are unaffected. If he dies, the continuation of her right to use will be a matter for the next titleholder (probably H) to decide. At the moment, the probability of C being allowed to remain and use the land if her husband dies is greater than that of J being allowed to remain if her husband dies, for J is younger, her family has not yet established a

1 The composition of the household is shown in the diagram on next page.

page 75 page 76 household of its own, and her husband is untitled. The rights of G are different from those of her sister K, for G is betrothed to a chief of another lineage and her children will inherit their primary rights from their father. As heir to the title, as a married man with male issue, and as senior male sibling, the right of H to deliberate on the devise of the patch by will is not the same as the right of M, his younger unmarried brother. The children designated R to X all have rights, but as minors they cannot themselves exercise them as yet. The potential rights of the males among them are different from those of the females, those of the adoptee are different from those of the born issue, those of the older are different from those of the younger, and those of the progeny of H are different from those of his younger sister K.
A Hypothetical Pre-Contact Household in Rarotonga

A Hypothetical Pre-Contact Household in Rarotonga

Note: All relationships are given with reference to B - the head of the household

The temporal aspect of each right differs. In the event of the continued planting of the patch, the male agnates have a lifetime right plus the ability to pass that right to their children. This right is modified if they leave the household to reside elsewhere. That of the refugee E ceases on his death and does not pass to his issue unless specific provision is made for them. That of the female agnates continues only until such time as they marry, when, though they do not lose all rights, the nature of them changes.

There would be some lands in which some of these people held rights, but others held none at all. For instance, C would still have secondary rights in the lands of her natal lineage. B would have no rights at all in these lands. R, who was born into his maternal grandfather's lineage and spent his early years there, would have the right, subject to certain conditions, to return to that lineage. No other member of the household, with the possible exception of his page 77 mother F, has that right. R would also have a particular right to the portion of land which was set aside as a marriage portion for his maternal grandmother A and which she had subsequently passed to him.1 He would not hold all the rights in this plot, for if he dies without issue then the land reverts to the source which gave it, and the agnatic descendants of the donor may then exercise their various rights of reversion.

Reference is frequently made by observers of the Rarotongan land system to decisions being made by the family group and convey the impression that all had equal rights to participate. Just what is meant by the family group is seldom specified. Let us imagine that R did die. The land given him by his grandmother, A, would revert to its source - in this case the deceased father of B who held the title at the time the land was given to A. Who would decide its reallocation? The participation of each member of the household would not be at all equal. Those who were not descended from the father of B would have no say at all; the children would have no say on account of their age, though particular adults would no doubt uphold their interests; A would have a special role as the person to whom the land was originally given, but as she is past child-bearing, no longer has any living male issue, and resides as an aged dependant in the household, her views may not be very influential. F would probably have little, if any, influence, firstly because her mother A, from whom she derived her right, was still alive; and secondly because, whereas her mother was the first-born daughter of a chief of this lineage, F was the daughter of a chief of another lineage. If she were to get marriage lands (which is most unlikely since she is living

1 As discussed on pages 93-5.

page 78 in her mother's lineage) she would derive them from her father's lineage. As chief and household head, the influence of B would be considerable, but so also might that of his younger brothers who reside in nearby households.

The above description sets out only a few of the rights held within the household concerned. A fully itemized account of all the individual rights of any household would be very long indeed.

Within the extended family as within other social groups the rights of the component individuals were differentiated by a system of priorities which gave precedence to males over females, to titleholders over commoners, to older over younger siblings, to residents over absentees, to earlier claimants over later ones, to agnates over cognates, and to agnates over affines.1 Such priorities, which rest on preferences for masculinity, temporal precedence and local residence, were not invariably adhered to, but were sometimes modified in relation to personal qualities and particular circumstances. Furthermore, the nature of the rights differed according to whether they related to taro swamps, unused agricultural land, house sites, or forest land. Within this framework allowance was made for personal effort and provided an individual planted on land to which he held an appropriate right the subsequent crop belonged to him, though subject to his obligations to his household, his lineage and his kindred.

1 These criteria were reinforced by the concepts of mana (broadly ‘power’) and tapu (broadly ‘sanctity’) such that, other things being equal, those persons whose descent was traced through lines of males, and through generations of first-born sons, and supported by centuries of occupation of the same area of land were possessed of the greatest degrees of both mana and tapu, and those whose connections were traced through females, through junior siblings, and from persons living elsewhere were possessed of the least of these qualities.

page 79

Individual rights to self-propagated crops are not clear from the source material and we must rely on present-day information and practice. The fruits of the wild plantain (musa fehi), which grows in dense clumps at the head of almost every valley on the island, is said to have been the common property of the minor lineage. A prohibition was imposed on the gathering of the crop until a sufficient quantity was considered to be ripe, at which time the prohibition was lifted and the harvesting was made a festive occasion. Secondary and contingent members of the owning lineage could come and join in the party and it was customary to send a bunch to those who did not come. This practice is still observed in some areas.1 On subsequent occasions only members of the local group could collect the fruit, though relatives who requested access to it could hardly be declined. The less important wild fruits are today harvested with little regard for rights of ownership in the lands on which they grow, but informants were of the opinion that under Maori2 custom such products were reserved for members of the matakeinanga occupying the tapere in which they grew, and in some instances to particular sub-groups within it.

The rights of any individual were clearly dependent on his or her status within, or relationship to, particular social groups, and no individual could hold or exercise any land rights except as a function of his membership of a social group. An individual's connection with any particular

1 Some lineages today even go so far as to advertise the ra'ui and its opening in the daily press - e.g. Cook Islands News 15.12.1959 re the opening of the prohibition on plantains in the Takuvaine valley.

2 As noted in the Glossary, the term ‘Maori’ is used here to refer to the indigenous people of the Cook Islands, not those of the mainland of New Zealand.

page 80 portion of land and with the descent group to which that land belonged fell into one of the following four categories.

Firstly there were the rights of primary members of the lineage or other descent group, whose rights to the land will be referred to as primary rights, i.e. they could plant and harvest as of right. While an individual normally held primary rights in one lineage only, affiliation was not invariably so clear-cut. It was not uncommon to provide for a relative (particularly a child) for a period without adopting it fully, and such a person could drift between agnatic kin and matrikin or pay prolonged visits which might or might not become permanent. During such periods of transition one could exercise certain rights as a primary rightholder in two lineages. Sooner or later, and generally in the event of marriage, one would be forced to opt for the one or the other, though it is conceivable that in rare instances primary rights could be held in two lineages. Such an instance occurred in the early nineteenth century as a result of the inheritance of a rangatira title through the maternal line, and later the inheritance of an ariki title through the paternal line, due to a combination of unusual demographic and political circumstances.1 Such a state of affairs could not last indefinitely, for either the lesser title was absorbed by the greater and the lineages accordingly became one, or the lesser title was given to a son or other relative and the separate identity of the two lineages restored.2

1 MB 21:147–50 NLC.

2 In the instance involving two mataiapo titles as illustrated by diagram on page 59 above, the two titles were first given to two sons with the obvious intention of maintaining the separate identity of the lineages, but due to the untimely death of the junior titleholder, the senior holder then amalgamated the lineages. During the nineteenth century (later than the period shown on the genealogy) the amalgamated lineage again split and two separate titleholders were

page 81

Next there were the rights of contingent members of a lineage whose right to plant and harvest the lands of their natal lineages was contingent on return there or on express permission. Their rights to the lineage lands will be referred to as contingent rights.

Thirdly, there were the rights of secondary members of the lineage (i.e. the children of contingent members). We will speak of their rights to land as secondary rights, for while it was generally accepted that they would be admitted to that lineage if they wished to join it, and could thereby gain primary membership of it, they did not under normal circumstances plant there while residing in another lineage. To a lesser degree, the children of secondary members of a lineage were themselves secondary members, and they also had a potential, but markedly weaker, right to the land. They will be referred to as distant secondary rights. In the event of dire necessity there was no limit to the lengths one could trace secondary affiliations of this sort, but in practice they were seldom revived to the extent of exercising land rights.1

Fourthly, there were the permissive members of the lineage, whose rights to the land will be spoken of as permissive rights. Such rights could not be transmitted and their maximum duration was accordingly the life-time of the holder.

A distinction may be drawn between proprietary rights in the land on the one hand, and rights to its usufruct on the other. Proprietary rights were held by the various descent groups, and as entry to any of these groups could only be acquired by descent or adoption, these rights were

1 The fact of ‘belonging’ to a lineage was for secondary members more in the nature of an idiom of kinship and its obligations and responsibilities, than it was a recognition of land rights.

page 82 held by primary, contingent and secondary members of the groups concerned (the status of permissive members was such that they did not have any proprietary rights). Usufructuary rights (with the exception of land set aside for special purposes such as marriage lands, and rights to festive harvesting of self-propagated crops like plantains) were exercised only by persons resident in the area - the primary and permissive members of the groups concerned. Only the primary members held both proprietary and usufructuary rights concurrently.

Women were not eligible as heads of any social groups and accordingly they could not exercise such rights as were vested in rank titles. As a member of a household, every woman shared a joint use-right with the other residents and as a member of a descent group she held proprietary rights in that group's lands. Those women who did not themselves exercise primary rights in their lineage lands were nevertheless frequently the channel through which males acquired their rights. In the event of adoption or of there being no resident sons to inherit land rights, these often passed to grandsons through a daughter. The frequency of such a pattern of inheritance is not known, but natural causes and the extent of warfare must frequently have resulted in the loss of direct male heirs.1

A widow was often allowed to remain in her husband's household after his death, and if she had adult sons this seems to have been the normal pattern. Having no blood right in the household, her continued residence was by permission and not as of right. Williams mentions that

1 Maretu claims that 730 people were killed in the wars between Takitumu and Avarua in the second decade of the nineteenth century. - MS 19. This is possibly an exaggerated figure, but available descriptions of the wars indicate that the losses must have been considerable.

page 83 widows and their children were evicted on the death of the husband, and though this no doubt occurred in some cases - such as when the wife had been unpopular or childless, or had only young children - it does not seem to have been the rule.1 The levirate was quite commonly practised,2 and accordingly the number of women who resumed land rights in their natal lineages due to death of their spouses was probably quite a small proportion of the total.

1 Williams, A Narrative… 139. In the normal course of events the heir to the headship of the family would be the widow's own son who would have acquired rights from his deceased father. In view of the predominantly patrilocal pattern of residence removal from the family cannot have been the norm. Present-day informants say that if a woman was childless, or if she had only young children, it was customary for her to return to her born family, and this is confirmed by Gill, AAAS 331.

2 See e.g. Savage, ‘Iro Nui Ma Oata’ 58.