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Land Tenure in the Cook Islands

The pattern of acquisition

The pattern of acquisition

No quantitative data is available from the pre-contact era to indicate the relative incidence of each of the various ways of acquiring land rights, but in one of the best documented of the early land cases witnesses incidentally name those persons who actually planted the block of land in question during the nineteenth century. Of a total of about 60 persons mentioned it has been possible to determine in 36 instances the persons from whom each acquired his right to plant. Of the 36, 19 acquired their rights from their fathers, 1 from his father by adoption, 5 from their mothers, 2 from classificatory elder brothers, 4 from their wives, 2 from wives of their brothers, and 3 by permissive occupation from persons apparently unrelated.2

2 Avaavaroa case - MB 1:107–39 NLC. It will be noted that the above persons were users and did not necessarily have proprietary rights in the land.

page 103

From evidence given in the Ngati Te Ora case1 data were compiled on all persons mentioned as actually owning and occupying (i.e. the primary right-holders in) one particular block of land prior to the advent of the Land Court. The data does not purport to be exhaustive, as almost all the persons mentioned were household heads, and those living within their households were not named though they were included by implication. A total of ten names was mentioned, and their relationship to the Te Ora lineage is as follows. Three were persons who held (at some stage) the title of Te Ora Rangatira, one was a brother of the rangatira and another a classificatory brother, three were heads of kiato within the lineage, one was a member of one of these kiato, one was a woman whose father married uxorilocally and who accordingly claimed through her maternal grandfather who was a kiato of the lineage. In addition to the above holders of both proprietary and usufructuary rights there were two persons who were granted permission to occupy by a kiato who travelled overseas, one who was given permission to occupy by the then Te Ora Rangatira (the latter a man who held two rangatira titles concurrently, and the person to whom he gave the permission was a kiato under him in his capacity as holder of the other title), and one was a son-in-law of the preceding. Thirteen of the fourteen persons named were males.

The ideal claim to land began with discovery or conquest, and was then traced by a process of inheritance in the male line, supported by continuous occupation. While the ideal of patrilineal inheritance was achieved in the majority of cases, it is apparent from the examples quoted above that the alternative provisions for acquisition of page 104 rights through females or by adoption, marriage or permissive occupation were not infrequently resorted to. While it was quite legitimate for a person to acquire rights through one of these alternative channels provided by custom, there was a constant tendency to assimilate to the ideal. This was expressed in two ways. Firstly, over the course of time, the actual status of the persons concerned could be rationalized into the ideal status, and an examination of genealogies shows this to have been general, for the early portions of genealogies almost invariably claim that the title passed continuously from the father to the eldest born son, though this cannot so regularly have been the case in fact. Despite the widespread incidence of adoption, therefore, it is unusual to find any persons claiming by an adoptive link more than two generations back; and despite the occurrence of claims from females, claimants rarely acknowledge that their claim derived through a female more than two or three generations back (either female links are later reputed to have been males, or the female is omitted altogether and the claim is made directly from the maternal grandfather); and while perhaps fifteen per cent of all births were illegitimate this fact is mentioned in only a small proportion of current instances and rarely indeed in earlier generations. Secondly, persons who had acquired their rights by other than the ideal means appear to have been secure only while observing due humility or while their ‘patron’ was alive. After that, if their actual status had not been rationalized into the ideal pattern a process of ejection was set in motion and the ‘intruder’ was evicted on some convenient pretext.1

1 E.g. MB 4:277 NLC.