More on occupiers’ legal rights

Tuesday November 13, 2018 Published in Letters to the Editor
British Resident Colonel Walter Gudgeon and government offi cials receive a deputation at the Gudgeon’s residence. PHOTO: Gudgeon Collection 18111216 British Resident Colonel Walter Gudgeon and government offi cials receive a deputation at the Gudgeon’s residence. PHOTO: Gudgeon Collection 18111216

Kia orana Editor,

As a follow up to the letter in CINews on Monday November 12, here is a more formal explanation of the legal rights of the occupiers as opposed to the customary rights of the Atu Enua on Taura Oire properties.

The following information is taken directly from a decision by Justice Wilson Isaac dated 25 August 2017. No attempt has been made to make comment or add further details, because that would only confuse an already complex matter.

The information is intended to save the community from having to spend great amounts of money to carry out extensive research for each and every Taura Oire matter.

Instead, the community can read the summary of the legal position of Taura Oire rights and obligations as set out by Justice Wilson Isaac after having referred to the pronouncements of Chief Justice Gudgeon in the early days of the Land Court.

Justice Isaac referred to an entry by Chief Justice Gudgeon in Minute Book 1/67-69 dated July 13, 1903 in relation to Investigations of Title for occupation sites to Tinomana and Te Uri.

Gudgeon made the following pronouncements:

“...Occupation Rights which in many instances give a title superior to that of the real owner of the land. It will therefore be our duty to define those rights and in so doing will follow the arrangement made with the mission where people are brought together and induced to build in the vicinity of the church in order to be near religious instruction.

“...That all those who built houses should have an inalienable right to live on the piece of land chosen by them so long as the family lived or continued to occupy the land. Therefore, in awarding this land to Tinomana and Te Uri the award will be subject to the following

rights:

1. Each household to pay one shilling to Tinomana in the month of January of each year as atinga for the land

2. That so long as the descendants or near relatives of the present owner are alive they shall be deemed to be the absolute owner of house and land. But in the event of the family dying out, Tinomana or any future representative of the Arikiship may apply to this Court to replace him or her in possession.

3. The occupier may sell or lease his or her right acquired in the section that is his or her own life interest but nothing further and any rent received shall be the property of the occupier.

4. Any owner of a house may purchase from Tinomana or other Atu Enua the soil on which his or her house is built and become the absolute owner provided such arrangements be made before the Court and with its consent.

5. The one shilling per annum shall represent the total of Tinomana's interest in each section during the occupation of such house and land.

Then, in Minute Book 4/21A, dated February 17 1908, dealing with the Avarua Taura Oire, Chief Justice Gudgeon said this:

“...legal laying out of this township of Avarua took place in 1827, when Reverend Mr Buzzacott and the land Chiefs of Avarua came to an understanding to the following effect.

That within certain defined limits extending from the Avarua creek towards Tupapa, all persons desirous of living near the Church might take up a section on either side of the main road to build a house thereon and by doing so acquire a residential right for themselves and their descendants."

The Chief Judge added: “I am, however, of the opinion that in all cases where a resident shall die childless and without near relatives, the consent of the Atu Enua is necessary to validate the transfer of the house to a stranger.

There may be circumstances which would justify the Court from departing from this rule, but speaking generally the land should return into the hands of the Atu Enua where a man dies without heirs of his own blood."

Within the same Minute, Chief Justice Gudgeon then stated:

“I desire specifically to make you all understand, that in this village the lands are not under the Mana of any Ariki or Chief but are under the mana of the Akonoanga Oire... The sole purpose and intention of the Land Titles Court has been to break down this Mana nonsense which has been carried out to a ridiculous point in Avarua.

“The aim of the court has been to give...each man his own land and make him independent of everything but the law...In this work, the Court has received valuable assistance from Pa, Makea and Tinomana.”

In Minute Book 4/47A dated March 10, 1908, Chief Justice Gudgeon further explained the effect of titles (of registration) created for occupation. He said the Court became involved in Arorangi when a certain man leased his house and the Atu Enua thought she had a right to a large share of the rent.

“The position now is that each house owner is under the protection of the law, and - subject to the proper recognition of the rights of the Atu Enua - is the absolute owner of the House, and can either sell or lease that right to a stranger whether Maori or Foreigner.”

All the details of the decision can be found in paclii.org under the Cook Islands, High Court - Land division, in re (2017) CKLC 4, Application 588.2012 & 228.2016 (August 25, 2017).

Court Observer

(Name and address supplied)

 

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