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No land ownership under ancient system

By Rachel Reeves RAROTONGA, Cook Islands (Cook Islands News, Aug. 19, 2010) - At last week’s Festschrift for Professor Ron Crocombe, former secretary of culture Makiuti Tongia presented a paper he wrote together with Prof Crocombe and Tepoave Araitia that addresses some issues around land ownership in the Cook Islands.

The paper provides a brief history of land tenure laws in the Cook Islands and notes that traditionally, before land was slotted into a Western framework, landholders never assumed rights to land per se.

Instead, they had rights to membership of a descent group, which allocated its land among its members. These decisions were made by senior men of a family, clan or tribe.

In 1901, Britain handed the Cook Islands to New Zealand but only on the condition that there would be no sale of land and that all Cook Islanders would automatically become citizens.

The latter condition means that Cook Islanders are the most mobile people in the Pacific, and most reside overseas.

(The paper estimates that there are 130,000 Cook Islanders spread across the world, and 90 percent live outside the Cook Islands. More than 65,000 live in New Zealand, 40,000 reside in Australia, 9000 in Tahiti and others are scattered elsewhere.)

[PIR editor’s note: According to New Zealand’s Foreign Affairs and Trade, New Zealand and the Cook Islands have a special relationship that has allowed for unique constitutional arrangements and a common citizenship and currency. "The Cook Islands became a dependent territory of New Zealand in 1901 when it was annexed. In 1965 the Cook Islands adopted a Constitution enabling self-government in free association with New Zealand. Free association is a status distinct from that of full independence in that it allows the Cook Islands to maintain New Zealand citizenship, while administering its own affairs."]

In 1957, the courts ruled that all Cook Islanders had equal rights to the land of their ancestors, meaning every person inherited an equal share of the lands of both parents, all four grandparents, all eight great-grandparents and so on.

The ruling was delivered by visiting judges who were unfamiliar with Cook Islands culture, and who didn’t understand that no such principle had ever governed Cook Islands land ownership.

The paper notes that the 1957 decision led to fragmentation of ownership, which many people today mistakenly consider the old custom.

Fragmentation of ownership favors "the powerful, the knowledgeable and the rich", who are able to get their hands on land by way of occupation rights, leases or lawyers.

Distributing land among family members calls for family meetings, which are sometimes physically impractical and sometimes postponed for fear of dispute.

"These circumstances result in land being underused, with perhaps thousands of plots of land unused," the paper reads.

The Unit Titles Act of 2006 makes the situation even more complicated, as it allows for land to be sub-divided and leased out.

Almost all lessees of the subsequent sections are foreign nationals who can afford to pay higher rents.

"Acquiring leases is difficult, time consuming and expensive. Businesses can afford to engage lawyers and consultants to locate and lease land and pay higher fees for it," the paper says.

That in essence means that outer islanders who could have moved to Rarotonga in search of employment find land too expensive and migrate overseas, where salaries are higher.

All of these are issues that reflect an outdated and inappropriate land tenure system, the paper suggests.

When the Land Court was established in 1902, almost all Cook Islanders lived locally. In 1957, when the Court of Appeal ruled in favor of equal inheritance, most Cook Islanders lived in their own country. Today, 90 per cent live overseas, but the land laws haven’t changed to consider that.

The paper demands that the country periodically review and revise land laws to reflect changing circumstances, and give favor to resident Cook Islanders who have a more vested interest in land than emigrants.

It further suggests that land laws discourage fragmentation of ownership, and that the country set up an administrative body to monitor land decisions.

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