Cook Islands Land Court To Tighten Up 'Use It Or Lose It' Rules

Demands for land in Rarotonga prompt stricter enforcement plans

By Florence Syme-Buchanan 

RAROTONGA, Cook Islands (Cook Islands News, Sept. 27, 2016) – The Land Court is tightening up on the application of land occupation conditions with landowners facing a stricter “use it or lose it” rule.

An automatic lapsing clause, introduced in the early 1980s, is to be applied more rigously by the Land Court.

The terms and conditions affecting the time limit in which owners of occupation right land intended for a residential house must complete construction, have not been strictly enforced by the Land Court in the past.

But that looks set to change, especially on Rarotonga, as the demand for land increases.

The stricter approach is understood to prevent occupation right land being tied up and left unused for years, often by absentee landowners, and to free up lands held by occupation right that have failed to meet the time limit conditions.

 Successful applicants for occupation right to build residential homes can expect a firm condition to have construction started within five years and completed within seven years from the date of Land Court approval. Landowners can apply for an extension that doesn’t exceed three years. Failure to comply with these conditions means the occupation right will lapse automatically, says Justice secretary Tingika Elikana. The definition of a “completed” house has been debated in some legal circles as the Land Court terms and conditions leaves this open to interpretation.

This raises the question of numerous sections of vacant land that have been granted through an occupation right and building conditions which have long since lapsed. Legal sources suggest that these lands should automatically return to family and become available to be reassigned to others who wish to build. In September last year, a draft practice note circulated amongst the Law Society which sought to clarify the terms and conditions affecting occupation right created an uproar when it was leaked to the media.

Many landowners were unaware their occupation rights were not perpetual licenses to occupy land. On expiration of an occupation right, the land returns to the family, who decide its future. Land division judges commented in the draft practice note that the term of the (occupation right) Order “…will not in any event exceed 60 years.”

This is a point of contention with many landowners. An order on investigation of title results in Cook Islands landowners having titles to Native freehold land under section 424 of the Cook Islands Act 1915.

Section 468 of the Act prohibits any “Native” from alienating their freehold interests. Also Section 469 of the Act prevents any “Native” from “alienating (unless to the Crown) Native freehold land for a term longer than 60 years.”

Authority on Cook Islands customary law Ross Holmes says an order on investigation of title results in Cook Islands landowners having titles to Native freehold land under section 424 of the Cook Islands Act 1915. 

He refers to Section 468 of the Act prohibits any “Native” from alienating their freehold interests and also Section 469 of the Act prevents any “Native” from “alienating (unless to the Crown) Native freehold land for a term longer than 60 years.” Occupation rights in the past resulted in alienations forever. According to Holmes, this is a breach of Section 468.

Cook Islands News
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Comments

All these new laws made up by the crown need to be thrown out and ownership of lands given back to its original owners. The crown should never have anything to do with peoples land especially in Rarotonga. This have turned famines against each other and turned families to becoming greedy all for money instead of sharing it like it use to be. I'm in support of the new changes use it or lose it only to those that are occupying lands that doesn't rightfully belong to them and those who are leasing land that doesn't belong to them and hasn't done anything to the land. This should go back to the rightful landowners.

I There my Grandmother passed away 5 years ago we returned her body back to Aroa, Cook Islands the problem is I really wish to build a house on her land in Aroa, but we are getting people sticking there noses in saying it's there land. Me and my brother are working on coming back to Rarotonga to build a family house on her land. Can I get some clarity on her land perceeding. And how to progress on building a house on the land to prevent it from going no where. Thanks Regards Paula Vero Email: paula.vero007@gmail.com

Quoted from above: "Section 468 of the Act prohibits any “Native” from alienating their freehold interests and also Section 469 of the Act prevents any “Native” from “alienating (unless to the Crown) Native freehold land for a term longer than 60 years.” Occupation rights in the past resulted in alienations forever. According to Holmes, this is a breach of Section 468." I can't agree with the interpretation put forward by Holmes. In term of the Act, "alienation" is better thought of as the transfer of freehold land rights to a non-Native. Alienation does not occur when an Occupation Right is conferred to a Native (Cook Islander) - with customary ties to the land in question. It is no coincidence that the maximum term for a Lease (often for commercial, non-Native 'ownership') _is 60 years. If anything, Sections 468 and 469 would appear to relate to the definitions of a Lease and not an Occupation Right.

My dad resides in Muri their is no 1 to care for him I am in Australia he has Parkinson's and getting very sick my wife and I want to come and take care of him I also hav a daughter and 2 granddaughters that would come with us we would live full time on the land and work hard and live of it I lived in raro in 1989 with my Aunty maria rarere as a youngster now as a grandfather myself I want to come back to da homeland and enjoy our land and people and enjoy a happy life with my family is their any 1 to get help with land matters

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