Land court rules on Taura Oire

Monday November 12, 2018 Published in Letters to the Editor

Dear Editor,

There have been a number of cases in relation to house sites on Taura Oire land that have been contested in the Land Court in the past year or so. The following is intended for the general information of the Iti Tangata in relation to Taura Oire.

 

What is Taura Oire?

Taura Oire is the term given to describe the land provided by the Ariki of their day to provide house sites near the Church and to the home of the Ariki. The granting of the house sites was at the behest of the missionaries, who were convinced that Christian converts would be more steadfast in their faith in a village setting near the Church, than if they lived scattered about and fell prey to bad influences.

Who granted the Taura Oire?

Makea Nui of his day granted the request of the Church as did Tinomana Ariki in Arorangi.  As titular head of their tribe, the respective Ariki were also the customary source of the land and able to grant the house sites by virtue of the mana of the Ariki.

Gathering all the people in the one spot near the seaside was a completely new concept because up until the coming of the missionaries, most, if not all tribes, lived in the hinterland or near their planting areas.

Where are the Taura Oire areas?

In Avarua, the Taura Oire runs from the former Apii Sabati at Taputapuatea then east to Maraerenga on the seaside, and on the inland side of the main road from the CIIC grounds eastwards to Tupapa.

That part of the main road is known as the Ara Tapu (sacred road) as distinct from the Ara Metua (ancient road) the inland road that circles most of Rarotonga, originally built by Voyager Toi Rakau and his warriors many centuries ago.

In Arorangi, the Taura Oire land is in Akaoa, either side of the Arorangi CICC and the palace of Tinomana Ariki, whose ancestor Enuarututini II provided the land to the people in the first instance.

There may be other areas, but the only cases so far have been from either Avarua or Arorangi.

Establishing the Land Court system

After the Cook Islands had been annexed by New Zealand in 1901 the Court system was established by the Resident Commissioner of his day – a certain Lieutenant-Colonel Walter Gudgeon - who also held the post of Chief Judge.

Apart from the Administration of the Cook Islands, one of his main aims was to loosen the grip of the Ariki over their people. Part of the strategy was to persuade customary landowners to come forward and have their lands surveyed and be registered as the owners on their lands. This process is known as the original investigation of title.

Registration of Oire Taura house sites

Taura Oire lands were no exception and the individual house sites were also registered and entered into the Land Court system. Occupiers were to pay one shilling yearly as atinga (tribute) to the Ariki of their district.

However, in the process of registration Chief Judge Gudgeon declared that the Taura Oire was made under the Akonoanga Oire rather than under the Mana of the Ariki. By these means, Gudgeon was trying to break the power of the Ariki over their people.

Today’s dilemma

The dilemma is that while custom holds that the traditional Atu Enua of the Taura Oire is the Ariki, the Court Order granted by Chief Judge Gudgeon does not reflect that traditional assumption.

Rights of the Atu Enua v Rights of the occupier?

As the decades rolled by, the descendants of the original occupiers applied for and were granted succession orders on their respective family house sites.

Over a century later, applications to assert the ownership rights by the Ariki over the Taura Oire house sites began to be heard in the Land Court.

It is no exaggeration to say that the applications came as a bombshell to the people of the Oire with many attending Court to support each other.

House site becomes commercial premises

In an example from Arorangi, a house site has long been used as a residence and as a commercial property but later passed to a third party in a forced sale.

The issue was that if the Ariki is the landowner, should the occupier have had to ask her consent? If she is the Atu Enua, are they obliged to pay a percentage of rental as per the provisions of section 106A of the Property Law Amendment Act? Have the occupiers been granted more privileges than their original tenure allows?

The respondents were the current lessee and the person whose family are the descendants of the original occupier of the Taura Oire house site. Lawyer Tina Browne presented very detailed submissions on what the original Court order actually stated. Ben Marshall from Little & Matysik also made detailed submissions. Travis Moore acted for Tinomana.

After hearing detailed submissions by all parties, the ruling by Justice Wilson Isaac, is that while the Ariki owns the land, nevertheless, the original Court Order allows the occupier and their direct descendants the right to use the land for so long as there are descendants to succeed to the land. It is only if the family dies out (extinct) that the Atu Enua can exercise the right of ownership and the land reverts to her.

The application failed and significant costs were awarded against the Ariki.

Postscript: There are still a number of Taura Oire applications yet to be heard in the Land Court.

Court Observer

(Name and address supplied)

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