A shift in the balance of power

In 1897 chiefly power over land was at its height; but so long as the exercise of this power did not interfere unduly with New Zealand ambitions in the group it was tolerated, and even actively supported. Time was on New Zealand's side, for the islanders were thought to be dying out, and even they themselves appear to have been convinced that their extinction was ‘a foregoine conclusion’.¹ It is true that the Prime Minister considered that under the Protectorate system New Zealand was not gaining sufficient return in trade² but his attempts to annex the group were thwarted by the Colonial Office.³ In 1896, when the Colonial Office was prepared to consider annexation by New Zealand under certain conditions, the Governor of New Zealand, who was the channel of communication, did not convey the information to the government as he feared their motives for wishing to assume responsibility for the group.⁴

While only judicial power was ostensibly in question, the ariki had found that the control of the courts was a powerful adjunct to political and economic power as well, and interpreted the proposal as ‘taking all our power and giving it to the British Resident’.¹ According to some sources the chiefs had been led to believe that if they passed the bill it would leave the way open for their losing not only all their authority but also their lands.² The ultimate sanction of chiefly power lay in the degree of chiefly control over the major source of subsistence and income: the land. The power to evict transgressors and to accommodate co-operative squatters was vital to the retention of their position. Members of the local parliament were nominated by the ariki and, ‘holding their land at the will of the said arikis’, were allegedly compelled to acquiesce to their proposals.³

Sir James realized that the system of land tenure, whereby commoners could be evicted at will by the high chiefs, was incompatible with an elective democracy, and that the chiefs would be most reluctant to relinquish the mana they had as ‘landowners'.³ Prendergast's enquiry can hardly be described as impartial, for before the enquiry began he publicly reiterated New Zealand's confidence in Moss, and expressed displeasure at the fact that Moss’ advice over the court bill had not been heeded. He there-upon called on the Members of Parliament to explain why they had refused to pass the bill.⁴ Under interrogation from the Chief Justice, with a warship lying at anchor awaiting his deliberations, knowing that Malietoa, Mataafa and other Samoan chiefs had been banished by the Germans for displeasing their government, knowing also the consequences of the Maori wars in New Zealand for the ‘recalcitrant’ tribes, and the price paid by the Society Islanders for opposing the French, the chiefs claimed that they had not refused the bill, but merely wished for time to consider it.⁵

As a result of the enquiry Moss was withdrawn and replaced by Colonel W.E. Gudgeon, a man of martial bearing who had won distinction in the wars against the Maoris of New Zealand, and believed that ‘stern authority’ was essential in dealings with Polynesians. He had been Resident Magistrate in two Maori districts and had served for several years as a judge of the Native Land Court of New Zealand. Gudgeon arrived by man-o'-war and was formally introduced at a full dress parade at which the naval commander read a proclamation declaring that Her Majesty Queen Victoria had ‘learned with much displeasure of their refusal to obey her wishes in regard to the enactment of the Federal Court Bill’.¹ The chiefs were warned of the consequences of any similar action in the future.

Effects on land tenure were immediate. One of the first moves was the passing of ‘an act to secure uniformity in leases and security of tenure to foreign lessees’.¹ This act applied throughout the Federation (i.e. all the islands of the Southern Group) and was the first enactment relating to land to apply to more than a single island. Despite its wide application, its functions were confined almost exclusively to Rarotonga, and the administration of the act was made the responsibility of a Land Board which consisted of the Resident and the five ariki of Rarotonga.² In addition, any mataiapo was entitled to a seat on the Board for such time as any matter relating to lands in his tapere was being discussed.

To qualify for registration a lease had to have the approval of the Resident and at least three of the ariki. The Board was entitled to stipulate conditions for leases, and no land could be leased to a foreigner if it was in the beneficial occupation of a native of the island concerned, or if a Maori had been ejected in order that the land might be leased. All leases had to be accompanied by survey plans, and had to specify the rental and term of the lease. The Board met on various occasions to consider leases: a few were modified, but only one or two were ever declined.

One clause, apparently drafted by Colonel Gudgeon, read:

And whereas a large proportion of the best land in the island of Rarotonga is not in the beneficial occupation of any person and such land does not in any way add to the wealth or revenue of the island. And whereas there are a large number of persons of the Maori race in this island who have no land rights and who will never become producers unless fixity of tenure be given to them, it shall therefore be the duty of the Board to consider the means whereby land on perpetual lease may be secured to all of the deserving members of the native-born Rarotongans.¹

With the power over tribal lands still vested in chiefly hands (and that power based to a considerable extent on the ultimate sanction of expulsion from the land) one could hardly expect that such a body would so openly invite a major reduction in power. No action appears to have been taken on this clause.

A start in the direction of introducing land taxes was made with the passage of a law which provided that land occupied by foreigners was to be subject to a tax of one shilling in the pound of its rental value as a tax towards the execution of public works.³ Maoris were not to be taxed in cash, but instead were to provide labour for public projects.

Annexation and the creation of a Land Court

Securing the passage of legislation was relatively easy, for the chiefs had learned the consequences of declining it, but having unpalatable legislation implemented in practice was much more difficult. Gudgeon could not at this stage force action which might antagonize the chiefs, for the Colonial Office would not consider annexation to New Zealand unless it was supported by the chiefs and, as Gudgeon said of himself:

I came here with the fixed intention of getting this group annexed; but on my arrival I found that the friends of Mr. Moss had made a bugbear of annexation…hence it was that for a long time I was very quiet, for it was absolutely necessary that I should gain the confidence of the arikis, and secondly that the Moss party should have no inkling of my real views, lest they should turn round and warn the Maoris that they were about to lose their mana.⁴

A Colonial Office minute on the above proposals affirmed the necessity for fixity of tenure, and queried whether the title to land should be individual or vested in the tribe or other group.³ They did not raise these points with the New Zealand Government, however, but merely expressed their hope that ‘liberal provision’ would be made for native interests.⁴ Annexation was effected harmoniously and without question. The chiefs of Mangaia asked for clarification on the matter of land ownership but, when they were assured that native ownership of the land was acknowledged, they unanimously assented to annexation.⁵

The Court established

‘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

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.

Foreign settlement

The stated objects of the Land Court were to increase productivity from native farms and to open unused lands for European settlers. The question of productivity from native lands will be dealt with later, and attention will now be given to the effectiveness of the policy of European settlement. This policy assumed three premises - firstly that there were large areas of fertile land lying waste, secondly that page 201 the Maori population was dying out, and thirdly that the unused land would be made available for settlers by one means or another.

The second premise, that of a dying Maori population, was supported by the demographic data then available. At the turn of the century, however, the decline ceased. The policy-makers cannot be blamed for not knowing that, almost from the moment of annexation of the Cook Islands, an upward trend of population growth was occurring throughout the length and breadth of the Pacific.¹ Though the population had reached its lowest ebb in the 1870s and had subsequently risen, this data was probably not available to the Administration. The censuses of 1895, 1901 and 1902 did show a slow downward trend, and combined with knowledge of rapid population decline in the first three decades after contact (which Gudgeon was aware of and quoted) he was no doubt justified in assuming that the decline would continue. The rate of decline shown by the three censuses mentioned, however, was quite slow, and hardly justified the assertion that ‘at no very distant date the present native population will either die out or become so much reduced in numbers that it will be necessary to replace them with a foreign population’.² In fact, the population increased steadily from 1902 onwards.

In 1905 the Minister still hoped that a settlement programme could be effected by persuasion rather than compulsion, and reported that numerous applications for land had been received from prospective settlers, though as yet the government was unable to give them any assurance as to its availability.² He nevertheless promised to compile details of surplus lands for the information of settlers, and hoped that the islanders would soon be induced to lease them more readily. In the following year the situation was unchanged. Indigenous opposition to foreign settlement remained firm, and was supported throughout by the London Missionary Society, which, in addition to its constant pastoral contact with the people, published the only periodical in the vernacular. Referring to the situation in Rarotonga in 1906, the editor pointed out that ‘there are only 8,000 usable acres to be divided amongst 2,000 natives…. There does not seem to be much land left to lease’.³ The survey of the island, which was by then well advanced, confirmed the view that there was much less fertile land than had previously been supposed. With opposition from within the territory and little support from Wellington, the settler question faded quietly away.

The act of 1915: preservation of custom

The name of the Court was changed to the Native Land Court, and it was to consist of a Chief Judge and such other judges as were deemed necessary.² In practice, however, not more than one judge was appointed concurrently until 1946. Pa Ariki, the only islander ever appointed as a judge, died in 1906 and no other indigenous judge was ever appointed. The act recognized four categories of land:

All land lying below high water mark was declared to be Crown land, thus annulling the indigenous pattern of rights to reef and lagoon waters.¹

In general the act followed the earlier enactment under which the Land Court had operated, but several innovations were introduced. Permanent alienation of land (other than to the Crown for public purposes) was prohibited, and leases and other forms of partial alienation were limited to a maximum of sixty years.² While this constituted a change in legislation, it merely confirmed the practice which had been observed for many years, for though in its early years the Court had approved of some leases of ninety-nine years duration, no sales of Maori land were ever recorded. In the initial stages this was due to local opposition and in later years to pressure from Wellington.

Wills were invalidated in so far as they related to rights in customary and freehold land,³ and as these had been one of the means by which rights were periodically redistributed (usually with the effect of adjusting to changed demographic circumstances) an element of rigidity was thereby introduced.⁴

Provision was also made whereby a chief could hold land by virtue of his office as the holder of a particular title.¹ Such lands were to vest in the chief in fee simple, and to pass to successive holders of the title. Though many lands had previously been awarded to persons who held chiefly titles, it was not always clear whether they were intended to hold the rights in their personal capacity or in their role as titleholders. The distinction was necessary in order to know who was entitled to succeed to such lands when a chief died (i.e. whether his children would succeed or his successor in office), who would be entitled to the lands if a chief was deprived of office during his lifetime, and what obligations would affix to the land.

In granting freehold orders involving multiple owners, the Court was required to specify the relative interests of each owner in the land concerned.² A similar provision had been made in the original enactment, but it had seldom been followed in practice. While it was occasionally followed after the passing of the 1915 act, it was not until the 1940s that it became a routine practice of the Court. Such shares are not defined on the ground and do not relate to any particular portion of the land concerned, but simply represent the Court's evaluation of the proportionate interest of the various owners. This provision is, of course, out of harmony with the flexibility of custom, but was presumably originally introduced as a carry-over to the Cook Islands from the legislation relating to Maori lands in New Zealand, where it was a technique to facilitate negotiation with settlers and the distribution of proceeds from the lease or sale of land.

Appeals and rehearings

Until 1946 there was in practice no functional system of appeal. Both the Order in Council of 1902 and the act of 1915 made provision for rehearing¹ but the granting of a rehearing was subject to the approval of the Land Court, and if approved it was usually heard by the same judge as took the case originally.² The act of 1915 did make provision for appeal to the Supreme Court of New Zealand, but this, too, was conditional on the approval of the Land Court. It was unlikely that many islanders were aware of this provision, or in a position to finance such an undertaking if they had been.³

In 1946, following recommendations made in the report of Judge Harvey of the New Zealand Native Land Court,⁴ an Appellate Court was established which was to comprise any two or more judges of the New Zealand Native Land Court or of the Cook Islands Native Land Court (other than the judge who determined the issue in dispute).⁵ At the same time provision was made for appeals from decisions of the Cook Islands Native Land Court to lie as of right in future.⁶ Moreover, to meet the requests of numerous persons who claimed to be adversely affected by earlier decisions of the Court, special provision was made to enable such persons to appeal (within one year) against any decision of the Court back to the time of its inception. This was intended particularly to open the way for re-investigation of title to those page 210 lands which Judge Gudgeon had awarded for life interests only to ariki and which Judge McCormick had turned into fee simple by succession order.

The Appellate Court first sat in 1948 and held annual sittings until 1952 in order to clear up a backlog of appeals. As intended, a significant proportion of the appeals against earlier decisions of the Court were in relation to lands which had been awarded originally to ariki for life interests only. The most important of these dealt with lands in the Avatiu and Nikao tapere and resulted in the loss of those lands by the ariki and their award to the issue of the persons found to have been the original owners. Many of my informants claimed that they would have appealed against other decisions as well but were unable to do so owing to the fact that the elders of the family who knew the relevant details had died (while the bases of the claims had not been recorded by the younger generation as they considered that nothing could be done). Some who did successfully contest rights to one section of land stated that they would have claimed for others also but were not sure how the Court would function in practice and accordingly did not wish to commit themselves too deeply. By the time the first cases were heard, of cours the time for the lodgement of appeals had expired.

Having dealt with the outstanding appeals the Appellate Court became a routine adjunct to the work of the Land Court and has since sat at three-yearly intervals. While sittings are normally held in Rarotonga, every attempt is made to ensure that it is accessible to the island people and sittings have been held in Aitutaki, Mauke and Atiu.