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Land Tenure in the Cook Islands

The Court established

The Court established

Administration of the group was provided for by the Cook and Other Islands Government Act,6 under which existing laws and customs were to remain in the interim, but which gave the Governor in Council full powers to introduce whatever measures he deemed expedient - what the Colonial Office

6 ‘Cook and Other Islands Government Act’ 1901.

page 199 described as ‘power to do whatever he likes’.1 Specific provision was made for the establishment of ‘a tribunal…with such powers and functions as he [the Governor] thinks fit, in order to ascertain and determine the title to land within the said islands…’.2

‘If we wish to increase the productiveness of the Islands,’ said Mr Seddon in introducing the act to parliament, ‘[and] to further the settlement of a European population on the land, we shall have to give security of tenure and we shall have to encourage planting by the natives themselves.’3 This was the crux of New Zealand's policy for the next few years - to determine the ownership of land in order to increase production, in the first place by the islanders from such lands as they were using, and secondly by making such lands as they were not actively exploiting available to European settlers. In the initial stages alienation to foreigners was to be by way of lease only.4

By Order in Council of 7.7.1902 the Cook and Other Islands Land Titles Court (which will be referred to simply as the Land Court) came into existence. The Court was to consist of not less than two judges, one of whom was designated Chief Judge. It was given power to investigate titles to land, determine successors, impose limits on alienation, reserve land for public purposes, deal with leases, and to handle other matters relative to the tenure of land. The

1 Colonial Office minute on Governor to Colonial Office 18.12.1901 CO 209 PRO.

2 ‘Cook and Other Islands Government Act’ 1901 section 6.

3 Hansard 119:286.

4 This was not provided for in the legislation, but an assurance to this effect was given by the Prime Minister. - Hansard 119:289.

page 200 Chief Judge, who had to be European, was empowered to hold Court sitting alone. No judge who was not a European could exercise jurisdiction except when sitting with the Chief Judge. Gudgeon was appointed as Chief Judge, and Pa Ariki as a Judge.

The Order in Council, which was drafted by Gudgeon,1 provided that the Chief Judge could ‘make and prescribe rules of practice and procedure’ for the Court. The rules and regulations made under this provision laid down the procedures to be followed in investigation of title, succession, alienation, and other matters.2 The fixing of the Court's modus operandi took up the first one hundred and twenty-six clauses, while the one hundred and twenty-seventh gave the Court the right to dispense with any of the preceding clauses, with the exception of eight machinery clauses which dealt with Court documents.

As Administrator, Chief Judge of a Court of his design, head of the local legislature, and representative of New Zealand, Gudgeon was now in a much more powerful position than any ariki had ever been. The adoption of his land reform programme was now assured.

1 Gudgeon to Seddon 7.3.1902 NZPP A3 1903.

2 ‘Rules and Regulations of the Cook and Other Islands Land Titles Court’ 1902.