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Land Tenure in the Cook Islands

By gift and permissive occupation

By gift and permissive occupation

Certain rights in land were at times transferred by gift, but never all the rights in any parcel, for some rights invariably remained with the donors. Such gifts were always conditional and invariably implied a right of reversion to the donor if the donee died without issue. It may be better to avoid the word ‘gift’ altogether, for to the Western ear it implies the handing over of the fee simple of the land. Nevertheless, the term is frequently used in the literature, and is quite a convenient one provided it is remembered that only specific rights were given, and on specific conditions.

Gifts were given for a particular period of time - either the lifetime of the donee, or the period of his residence in the district, or for such period as he and his issue wished to occupy the land. If the time specified was a lifetime then the land reverted to its source on the death of the donee. If, on the other hand, the gift were given to the donee and his issue for so long as they might wish to use the land (and this was the widest form of gift given) then, of course, the donees' right would strengthen over time, for, provided it was used, they retained their right in perpetuity.1 In the early stages a donee could hardly refer to the land as his own, but over time his rights would strengthen and eventually it would become

1 Such rights were given ‘tuatau ua atu’. While this phrase is usually translated as ‘for ever and ever’, it may be more faithfully interpreted as ‘from this time onward’, implying ‘as far as we can see’. The connotation is one of indefiniteness rather than irrevocability. Two unstated stipulations appear to have existed in all gifts. The first was that relations between the parties remained as at the time of transfer, and the second was that the right be exercised. Many examples exist wherein a right which had been granted while amicable relations existed between the parties, was withdrawn or challenged by the donors (or their issue) when relations between them deteriorated.

page 97 regarded as his land in the same way as if it had been acquired by any other means.

Gifts were given either as an acknowledgment of services rendered,1 or to persons in distress such as castaways or fugitives. The latter category of rights may be termed ‘permissive occupation’; the difference between gift and permissive occupation being that in the latter case greater qualifications were imposed and there was less commitment for the future.2 Nevertheless, even the most tenuous right, once acquired, could be strengthened over time. Permissive occupation would never remain as such. It was a temporary right, an emergency arrangement to meet some unusual situation, and in time it would either die out or grow into some other kind of right. A feature of permissive occupation was that the donor party was entitled to partake of such of the produce of the lands as they thought fit, a custom which occasioned difficulty in the settlements formed by the Tahitian missionaries prior to the arrival of their English brethren.3

Descriptions of fugitives from war or justice fleeing from their lands and seeking refuge with relatives elsewhere are many. Some remained only temporarily, others remained throughout their lives; though some of their issue later returned; while others again remained permanently in their new location. Usually the person given the temporary right either died without further issue or married into the donor family, and in the latter case he would gain a use-right for

1 Lands were frequently given for outstanding service in war.

2 This is, of course, a relative difference. Assuming an element of reciprocity to have existed in all exchanges, the underlying cause of the difference was no doubt that whereas in the former case the quid pro quo (in the form of some service redered) was already met, in the latter case it was still to come.

3 Pitman, Journal 12.5.1827.

page 98 his lifetime and his children would inherit by blood.1 Frequently the emergency passed over, the refugee left and the land reverted to those who had given it.

It was customary for persons holding land by permissive occupation to take to the donor some token of the produce of the land. This was not regarded so much as payment, as an acknowledgment that the occupier's right was only a subordinate one. Such a token gift would be taken to the head of the host family. However, contributions of food were taken to heads of groups for other reasons too: to help in group functions, as a sign of friendship or gratitude, or as gifts on occasions associated with the life crises of relatives. This custom of taking contributions of food and its implications in the matter of land rights was later to become a very important issue, though a somewhat confused and contentious one.

1 No instance has been noted wherein a refugee married other than into the lineage in which he resided. Presumably if he did marry into another lineage it would be in his interests to shift his residence there.