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Land Tenure in the Cook Islands

The loss of rights to land

The loss of rights to land

A person could be deprived of land rights as punishment, but this deprivation was usually a concomitant of expulsion page 105 from the social group.1 Responsibility for crime lay not only with the criminal but also with his family - a custom which shocked the early English missionaries.2 At times offenders were not banished but certain portions of their lands were taken away from them and either given to the injured party, or, on the showing of due humility by the offender, later restored to him. The latter course of action really amounted to a threat that unless the offender acted with appropriate humility he would be deprived of his lands. Alternatively again, the lands were sometimes laid waste without depriving the offender of his rights to them.

With the possible exception of rights lost by banishment or conquest, no right was extinguished in one fell swoop.3 The normal process of loss was by a series of steps taking place over two or more generations. The most common first step was to leave the group of which one was a primary member to join another group at marriage, whereupon one acquired contingent status in relation to the original group and its lands. Unless primary status was resumed, the children of the contingent member acquired secondary status in relation to that group, and unless one or more of them or of their children assumed primary status during their lifetime, then so far as land rights were concerned the connection was ‘cold’. Distant secondary members could,

1 The actual driving out of the family was known as ‘akataa’ and a person who had been so driven out was accordingly known as a ‘tangata akataa’. The act of seizing his possessions was known as ‘aru’, and that of devastating his crops and destroying his house was called ‘akatanea’. This system of plunder was similar to the New Zealand Maori custom of muru.

2 E.g. Pitman, who graphically describes the banishment and confiscation of lands of a set of brothers for a crime committed by one of them. - Journal 14.8.1829.

3 Even in the case of conquest or banishment rights were often not entirely lost, for they may be gratuitously restored, or action may be taken to repossess them. Likewise in the case of gifts, the donor retained residual rights.

page 106 it is true, be accepted as primary members if the need arose, and they were on some occasions. Such instances, however, were unusual, and were invariably associated with particular atypical circumstances. They thus cannot be regarded as the norm.

The continued recognition of rights to any particular portion of land as belonging to a particular social group was dependent upon occupation by members of that group or by persons to whom they had delegated some of their rights. Just what constituted ‘occupation’ in the case of little-used lands is difficult to define, but residence within the tapere concerned appears to have been one of the prerequisites. If there was inadequate land, groups could probably not maintain for long their rights to land which they did not actively use.1 Nevertheless, the challenge to the survival of a right came only when a counter-claimant began to exercise rights by planting, building or harvesting on the land.

1 Even if a claim to unused land was impregnable to an aggressor it could nevertheless be vulnerable to the humble request of a friend and potential supporter.