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Land Tenure in the Cook Islands

The mission role

The mission role

The Tahitian teachers made no conscious modifications to land custom, and in some cases not only condoned acquisitions by conquest but actively participated in them. When the European missionaries arrived, however, and were confronted with land disputes which threatened to develop into open warfare, they set about effecting changes. Largely as a result of their influence the extent of warfare lessened year by year, and from the mid-1830s onwards it became a rare occurrence. Ritual plunder, too, seems to have been abolished by the missionaries, for no instances of it are recorded after the first few years of contact.

The abolition of warfare and ritual plunder, and a lack of formal provisions for settlement of disputes between districts led to an increase in settlements by negotiation, often with the advice or participation of the missionaries.1 While missionaries were instructed from their London headquarters to avoid interference in land matters, they frequently found themselves involved. It was not only European missionaries who participated in land disputes, for references to the involvement of their native

1 Re Atiu see Buzacott to LMS 18.8.1845 SSL; re Rarotonga see Pitman, Journal, November 1828; re Aitutaki see Lawrence to LMS 23.9.1887 SSL.

page 156 counterparts are not infrequent.1 While the missionaries usually accounted for their participation by describing it as a search for peaceful settlement, this objective was not always attained. The missionaries were anxious that native custom should be codified into law, though with certain modifications to make it compatible with their conception of Christian justice. Having already made law codes for the Society Islands, they used the Raiatea code as a model for the Rarotonga one of 1827 - the first legal code ever made in the Cook group. The earliest example of Cook Islands legislation to have survived is a copy of the laws of Rarotonga as they were in 1879, which, though based on the original prototype, had been amended and expanded.2

The missionaries who initiated the Rarotonga code assure us that it was based on prevailing custom, and that they merely advised and recorded. The laws relating to land appear to be compatible with what is known of existing usage, though they provided for only a small part of the total body of custom, laying down only broad general principles and in some cases a scale of penalties in the event of their infringement. The relevant clauses are as follows:

Clause 5: Disputes about Land

If a chief3 enter the land of another chief and claim it, the law shall decide between them. If the chief who is wrong persist in that wrong, then all the chiefs shall assemble and decide what his punishment shall be….

1 E.g. ‘It is not a good sign to hear so frequently of their complications with traders and with land affairs.’ - Harris to LMS 20.8.1881 SSR; Chalmers to LMS 23.12.1872 SSR; Vivian, Journal, April 1871 to 4.6.1872 SSJ.

2 ‘The Laws of Rarotonga…’ 1879 CIA. A copy of the original Raiatea code is preserved at the Mitchell Library. Summaries of all legislative provisions relating to land are attached as appendix A.

3 Unfortunately the vernacular version is not available, but the use of the word ‘chief’ in other parts of the law suggests that the original referred to ariki and not to all classes of chiefs.

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There was no provision for disputes between lower ranks, or between commoners and titleholders.

The system of inheritance was not specifically laid down, though some provisions were included in the following rules:

Clause 10: The Widow and the Fatherless

When the husband dies, if the widow be left with children they shall remain upon the land; but if she do evil and be found guilty three times she shall be removed…. If she marries again she shall also leave the land. Her children will remain, and the land be with them. If there be no children, the brother of the dead husband will take the land. If no relation be alive the land will go back to the chief or the Mataiapo, and remain with him.

Clause 14: About Wills

When a person is dying let him make his will openly, in the presence of the Ariki, Judges, and many witnesses…. But if a man will a plantation to his friend, and his Ariki, or his Judge, or the authorities did not know of that will, it will be useless. This is the law of the will, and it is for the Ariki, the Judge, and the authorities to watch over it.

Clause 31 provided that every man had to plant food crops on penalty of a fine, but the nature and quantity of the crops were not defined. The custom of confiscating land for certain crimes was written into the law on ‘House-burning’ which provided that a person found guilty of this crime would be kept in irons for two years ‘and his land be given to the owner of the burnt house’.1 Confiscation was also provided for in cases where a man shifted his allegiance to another mataiapo or ariki and tried to retain control of the land while owing allegiance to the other chief.2

In 1896, with the guidance of the missionary Cullen, land laws were drawn up for Manihiki and Rakahanga.3 This

1 ‘Laws of Rarotonga…’ 1879 clause 4.

2 Ibid. clause 11.

3 ‘Te Au Ture Enua i Manihiki’ 1896 (The Land Laws of Manihiki). It is unlikely that this was the first law ever made relating to land in Manihiki and Rakahanga, though prior to that time the existence of chronic land disputes was evident - see e.g. Harris to LMS 2.8.1880 SSR; Hutchen to LMS 30.12.1895 SSL. These indicate that, if laws had been adopted earlier, they were not functioning effectively.

page 158 )was the only comprehensive land code adopted in the group during the period of mission influence. The introductory paragraph begins:

There is always much trouble caused in the land on account of disputes as to land, and on account of disputes as to testaments of dying persons and also through land grabbing.

These laws were made at a meeting of the ‘High Chiefs, Governors, Subchiefs and Chiefs and the three Land Courts of Manihiki’. For islands with a combined population of only 800 souls, this is indeed an extensive list of leaders, but none of them was specifically charged with the duty of executing the law. All disputes were to be taken to the ariki or the governor and the ‘investigators under the law’ (judges presumably, though this is not specified) were not to be consulted in the first instance.

Each of the islands had its own code, but relatively little is known of their precise nature, for, though references to them are numerous, no copies of most of them have been preserved.1 There is no evidence to suggest that they contained detailed provisions with respect to land matters, and at least one of them, that of Mangaia, had no reference to land tenure beyond a clause dealing with boundary disputes.2 Even the most comprehensive codes omitted provision for vital aspects of land tenure3 and most of them dealt with only limited aspects of the system.

2 ‘Laws of Mangaia’ as at 1891.

3 The Manihiki-Rakahanga code, which was by far the most comprehensive, lacked provision for the land rights of adoptees, and adoption was a major cause of land disputes.

page 159

Of considerable importance also, and frequently of greater significance than the formal codes, were the informal rules and arrangements made by those in authority. For example in 1837 islanders who went aboard foreign ships forfeited their land rights as punishment.1 In 1845 the chiefs of Rarotonga decided to forbid all sales of land.2 While not provided for in the law, the first man convicted of murder after the introduction of the laws was chained to a peg for five years and ‘the parties who obtained possession of his lands were bound to provide him with food and clothing’.3 In 1849, the ‘king and chiefs’ of Mangaia made rules to provide for the control of wandering cattle.4 On some islands church members were excommunicated for altering boundary marks,5 and on Aitutaki church membership rose from 349 to 383 when those who had been ‘suspended on account of land troubles’ were readmitted.6 In Aitutaki, too, Moss found that an informally constituted body was not only making rules, but levying fines for their infringement.7

1 Pitman to LMS 1.11.1837 SSL. It appears that this ruling was made to control the prostitution of women and the emigration of men.

2 Gill to LMS 18.6.1845 SSL.

3 Buzacott, Mission Life… 151.

4 Deeds Register, item 117 NLC.

5 Hutchen to LMS 16.2.1891 SSR.

6 Lawrence to LMS 18.12.1890 SSR.

7 Moss to Governor, October 1891 NZPP A3 1892.