History of Government and Laws, Part 13
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The Development of the System of Government and Laws
of Pitcairn Island From 1791 to 1971"
Printed in and taken from Laws of Pitcairn, Henderson,
Ducie and Oeno Islands, Rev. Ed., 1971
By Donald McLoughlin, B.A., LL.B.
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Lands and Estates
The next questions to which the legislative programme was directed
were the complex ones relating to the system of land tenure and
succession to property. The principal problems relating to these
two questions lay in ascertaining what systems were in fact in operation
and how lands were distributed on Pitcairn Island. As no legislation
had ever been enacted making specific reference to these matters
the systems in force in relation to them were left to evolution
by custom and there were conflicting accounts, even from the islanders
themselves, as to what those customs were. There was also considerable
uncertainty as to how the lands on Pitcairn Island were distributed
and as to whether any lands of which the ownership could be determined
were held under the ownership of an individual in his own right
or in the capacity of a representative of a family or other group.
From the time of Neills visit to the Island in 1937, conflicting
reports were made by the various officials who visited the Island
both as to the nature of the systems in operation and as to the
necessity or desirability for any changes to be made in them. The
latter is not at all surprising as from my own experience, as well
as from the reports of others, the islanders themselves have been
divided on the question as to whether any changes should be made
in their land system. At times when the population has been increasing
there has been a demand for the less fortunate for a redistribution
of lands whilst when the populations has been small they have expressed
satisfaction with the existing system and opposition to any change.
The greatest conflict that appears from the various accounts of
the land tenure system is as to whether that system is based on
the concept of individual ownership or communal ownership or on
that of family ownership. An analysis of the various reports and
accounts would appear to reveal however, that in fact a multiple
system was in operation involving all three concepts as well as
two separate types of usufructuary rights. Over the whole of this
was also superimposed two separate and distinct types of trusteeships.
It is in consequence no wonder that the reports of the various visiting
officials and others were confusing and contradictory.
It has been generally accepted that, at least by 1830, the whole
of Pitcairn Island had been divided between the families of the
mutineers with the result that there were no lands available for
acquisition by outsiders other than by way of purchasing or gift
from an existing landowner or by marriage to an existing landowne(83)r.
From an examination of contemporary accounts it would appear, however,
that this is a misconception, or at least an over simplification,
of the position that in fact existed. Whilst the whole island may
well have been appropriated to the families of the mutineers, it
would appear that this was on the basis of communal ownership with
rights on the part of individuals to mere occupancy and not of ownership.
This concept is common in Pacific island communities and presumably
had its origins in Tahitian custom, as certainly did the Pitcairn
custom whereby individuals have had the right to plant trees, and
reap the fruits therefrom, on lands under the occupancy of others.
Law No. 6 of the 1838 Constitution made it clear that the concept
of land, tenure was that of occupancy of communal lands; and Law
No. 7 of that Constitution made it equally clear that the right
to cut and remove timber was a communal one independent of any right
to occupancy of the lands on which such timber was growing.
This was the position as it existed at the time of Brodies
visit to the Island in 1850 as also was the position whereby parts
of the Island were set aside for the communal grazing of goats,
the number of goats which any one family was permitted to run there
being proportioned to the number of its members but at no time exceeding
nine goats from any one family. It is from this basic communal system
that the existing land customs on Pitcairn have evolved retaining
the concept of usfructuary rights and the communal goat lands
but gradually converting the right of occupancy into that of ownership.
It is difficult to determine whether the concept of land ownership
had become established before the migration to Norfolk or after
the return of the six families between 1858 and 1862. It would appear
more than likely, however, that it stemmed from the allocation of
lands on Norfolk into individual family holdings. Since this concept
was strange to the Pitcairners and one of the causes for their discontent
on Norfolk Island it is unlikely that it had in fact been previously
established on Pitcairn Island(84). As against that, however, customs
appear to have evolved whereby an individual could dispose of their
rights to occupancy of land by way of gift or exchange during their
lifetime and that on marriage the lands occupied by both husband
and wife became merged into their joint occupancy but under the
administration of the husband who could not deal with the lands
of the wife without her consent. Another custom that evolved was
that on the marriage of their first child a married couple should
divide their lands into such number of equal shares as represented
the number of their children plus one. One of each of those shares
was then allocated to each child of the marriage and the remaining
share was retained by the parents. On the death of either of the
parents their share passed to the survivor of them and, on the death
of that survivor, that share, if not previously disposed of, became
the joint property of all the children but held in the name of and
administered by the eldest child in trust for himself and the other
children. At any time this land could be required by any of the
children to be divided between them in which case the trustee was
liable to so divide it.
The first indication of the existence of the concept of trusteeship
was on the return of the six families to Pitcairn when the returnees
obtained letters of authority from the heads of families remaining
on Norfolk Island authorising them to use and occupy their lands
on Pitcairn as trustees for the absentees. These trusts were for
the benefit of the families of the donor with the result that so
long as the trust was acknowledged by the occupant on Pitcairn Island
the lands were not available for division amongst the children of
the donee but passed from father to son as succeeding trustees for
the absentee families on Norfolk Island. Over the years after the
return from Norfolk some of the lands on Pitcairn became to be accepted
as being under the ownership of individual Pitcairners, others were
accepted as being owned by families on Pitcairn, and some were regarded
as being held in trust by individual Pitcairners on behalf of absentee
families on Norfolk. As the existence of a trusteeship became obscure,
landholders on Pitcairn became uncertain as to their own title to
their lands and were unsure as to whether those lands were in fact
available for division amongst their children or were liable to
claim by a future returnee from Norfolk. This resulted in a number
of differing situations. In some cases lands have been subdivided
many times until individual holdings have been reduced to as small
as a plot six feet long and two chains wide. In other cases particularly
where there is uncertainty as to whether the lands may be claimed
by a returnee from Norfolk Island, the lands have been handed down
undivided to succeeding generations as tenants in common. In other
cases the lands are recorded as being owned by a named head of family and family.
An additional complication has been that the lands registers were
not kept up to date with the result that boundary descriptions became
uncertain and some lands remained registered in the name of a long
since deceased island without any indication as to whom the land
had passed. It was also apparent that there remained areas of land
which had not yet been acquired by any family or individual. As
late as 1904, in the only civil action ever heard by the Island
Court, the unsuccessful claimant to a piece of land was authorised
by the Court to select another piece of land from the unoccupied
lands on the Island. In the absence, however, of accurate land ownership
or occupancy records, there was considerable doubt as to which lands
were owned and which were not.
From this confused situation arose two new practices namely that
of borrowing land and that of a Pitcairner on leaving the Island
to leave his lands in the charge of a caretaker who has the right
to use and occupy the lands of the absentee but must return them
to the absentee on his return. The latter practice is based on the
same principal as the original trusts which were created in respect
of the lands of those who remained on Norfolk Island. Borrow land
is, however, a comparatively new concept which was a direct result
of the land shortage arising from the failure of a landholder to
divide his lands amongst his children or from successions of large
families leaving smaller and smaller amounts of land available for
distribution amongst succeeding generations. Under this system a
person desirous of obtaining land for cultivation or on which to
build a house has to approach a large landholder and seek his permission
to occupy a portion of the landholders land. Permission has
usually been given quite readily but is always subject to such conditions
as the landholder cares to impose and the borrower is dependent
entirely upon the whim of the landholder for security of his tenure.
In the case of house land the custom has been for the borrower to
have the use of the land for life or his previously leaving the
island. In most cases all improvements effected to the land by the
borrower become the property of the landholder on the termination
of the loan, but there have been cases where a house has passed
to a descendant of the borrower while the land has reverted to the
owner. Whilst under this system there was always in fact sufficient
land available for the use of everybody on Pitcairn the very insecurity
of tenure led to inertia on the part of the more able bodied men
who were loathe to plant trees or other long term crops without
some guarantee that they would be able to reap the benefit of them.
As could be expected the problem did not become acute until the
population again became substantial which occurred in the 1950s
when it rose to as high as 195 in 1958. Whilst none of the reports
made by officials visiting the Island between 1937 and 1950 made
any reference to any land problem, every report made in the period
from 1952 to 1965 stressed the importance of the problem particularly
as its existence appeared to be the principle factor inhibiting
the economic development of the Island. As, however, the problem
became more acute it had the effect of contributing, with the fall
off in shipping calls, to another large scale exodus from the island.
Despite a relatively high natural increase rate the population of
Pitcairn decreased markedly in the 1960's as more and more Islanders
left the island to make their homes in New Zealand. As the majority
of those emigrating to New Zealand were the younger more able bodied
and land poor Islanders the pressure for land on Pitcairn and for
reform of the system of land tenure lessened considerably.
The attitude of the Pitcairn Islanders themselves was that although
a number of the younger men were prepared to express themselves
forcefully on the subject to visiting officials they were not prepared
to speak out publicly on Pitcairn for fear of upsetting the landowners
upon whom they were dependant for the use of the borrow lands that
they occupied. In consequence there was a conflict between the reports
of the visiting officials on the one hand and the resolutions passed
by the Islanders in public meetings on the other. Although Sanders
reported in 1952 the existence and seriousness of the problem, and
Claydon also referred to it, the Islanders at a public meeting held
at Claydons request passed resolutions expressing unanimous
satisfaction with the existing system saying there is plenty
of land on Pitcairn for everyone and as far as for those who do
not own any they are always able to borrow land to plant on during
which time to all intents and purposes they are the owners and as
soon as the use of the land is completed the ownership of the land
returns to the owner. Another resolution passed at that meeting
was that We, the people of Pitcairn, wish steps to be taken
to ensure that none of the land is sold or given to people outside
the island apart from relations who intend to return and are entitled
to inherit land. They also request if not already done
so that legal steps be taken to ensure that outside interests do
not have the opportunity of acquiring land on Pitcairn. Successive
Government Advisers continued to report that the land problem was
still causing ill-will on the island and stultifying any hope of
economic development and the reports of Twyford and myself in 1958
and of Deering in 1959 confirmed that this was in fact the case.
Harre in his report of 1965 in which he discussed the land question
in some detail also confirmed that the problem was a severe one,
as had Cowell in his report of 1964(85).
Apart from the problem of unequal distribution of land another
major problem lay in ascertaining just what the existing boundaries
were and as to whether all of the lands on the island were the subject
of either individual or family ownership or whether there were any
communally owned lands. The land records, although required to be
kept up to date, were in fact in a hopeless mess and completely
unintelligible. No survey has ever been made of the island and,
whilst boundaries have by law been required to be regularly maintained
and inspected this was not done. As the boundaries are recorded
as determined by reference to stones and trees with many of the
datum points not shown at all it is difficult to see how they could
in fact be identified on the ground. It was impossible to check
on the accuracy of any of the entries in the register as the old
register books from which they had been extracted had been lost
and the file from which all successions to land could have been
traced was also lost. From the fact that the gathering of coconuts
from the area of land on the Western side of the island known as
Tedside has at least since the Simons Constitution of 1904 been
accepted as a communal right would strongly suggest that those lands
have for many years been accepted as being communal lands. A similar
situation would appear to apply to the goat lands the boundaries
of which are delineated in the 1904 Constitution and have been re-iterated
in all laws since that date. The Government Adviser in 1957 referred
to an area of land near the Landing at Bounty Bay as being unclaimed
and presumably communal land, but without accurate land records
it has not been possible to determine whether these suppositions
were correct or not.
In the light of this situation an attempt was made to devise a
new system of land tenure which adhered as closely as possible to
the existing customs while at the same time ensuring that the title
to land was clearly established and recorded; that all land to which
title was not established passed to the Island Council for the benefit
of the community as a whole and available for leasing to those who
had no land of their own; that all usufructuary rights were phased
out over a reasonable period; and that the caretaking system be
put on a legal footing with the rights of the owner being transferred
to the caretaker if the owner continued to reside away from Pitcairn
for more than ten years. Provision was also sought to be made requiring
the approval of a special Lands and Estates Court for all transfers
and other dealings in land on Pitcairn Island and making provision
for the proper recording of all such dealings. These proposals were
first discussed in broad outline by Cowell with the Islanders at
a public meeting held on the 6th of January, 1964. In the light
of that discussion a draft Ordinance was prepared to incorporate
these features as well as the extension of the jurisdiction of the
Lands Court to include the administration of the estates of deceased
persons. This draft was submitted to the Island Council for consideration
and discussion and was eventually discussed with the Islanders by
Warner in 1966. Upon the approval of the islanders having been obtained
the new Ordinance was eventually enacted on the 26th of May, 1967
and came into force on the 26th of June of the same year(86).
This Ordinance, which constituted the first serious attempt to
sort out the land question on Pitcairn and to regulate all dealings
with land as well as to regulate the administration of the estates
of deceased persons, seeks to provide a framework within which the
Pitcairners themselves through the medium of their own Court can
regulate these matters with a view to making clear the position
as to land titles as well as ensuring a more effective means of
dealing in land by the introduction of the concept of leases of
land and of the creation of charges against land against which loans
can be raised for building and development purposes.
The Lands and Administration of Estates Ordinance established
a Lands and Estates Court which is to consist of the Island Magistrate,
as President of the Court, and four other members to be appointed
by the Island Council and are to hold office for two years from
the date of their appointment. In the event of the Island Magistrate
having any personal interest in a case before the Court the Chairman
of the Internal Committee is to preside and in the event of his
also having any interest in the case the nominated member of the
Island Council appointed by the Governor is to preside. Similar
provisions are made to cover the eventuality (not unlikely on Pitcairn)
of any other member of the Court having any interest in a case before
it. The Island Secretary is appointed as Registrar of the Court
and as such is charged with responsibility for keeping the Lands
Register. The primary functions of the Court are to enquire into
the ownership of all lands on Pitcairn Island and to cause the boundaries
of all such lands of which the ownership is determined to be demarcated
on the ground and recorded in the Lands Register together with all
leases and other dealings in such lands. The Court is also required
to determine how lands on Pitcairn Island are to devolve; to hear
and determine all applications for the administration of the estates
of persons dying on Pitcairn Island and to determine all disputes
and other questions relating to land as may be referred to it.
In Part IV of the Ordinance provision is made for persons claiming
to be entitled to the ownership of land to apply to the Court for
registration as such and in the case of house land for any person
who has occupied a house for more than three years without paying
rent to be registered as the owner of the land on which the house
is built. All land in respect of which no application is made within
a period of three years from the date of commencement of the Ordinance
vested automatically in the Island Council. In fact determinations
of ownership were completed by the Court within the three year period
so that the registration of the ownership of all lands on the island
is now recorded in the Lands Register, with the exception of the
lands at Pulau on which the Island school and quarters are situated
and are the property of the Crown. These lands are by Section 25
of the Ordinance exempted from its provisions.
To cover the situation relating to absentees and the abolition
of usufructuary rights provision is made requiring an absentee to
appoint a caretaker of his lands and for the caretaker to become
entitled to a lease over half of such lands in the event of the
owner remaining away from Pitcairn for more than ten years without
residing on Pitcairn for a total of twelve months in that period
of ten years the caretaker is entitled to have the title of the
absentee transferred to him in his own right. Caretakers are entitled
to usufructuary rights to all trees planted by them on the lands
the subject of their caretakership but all such rights are declared
to be abolished on the expiration of ten years form the date of
commencement of the Ordinance, i.e., on the 26th of June, 1967.
All dealings in land on Pitcairn are by section 22 declared to
be invalid unless approved by the Lands and Estates Court and registered
under the provisions of the Ordinance. Leases may not be for more
than ninety-nine years and agricultural leases may not be granted
for less than ten years with the lessee having an automatic right
to two extensions of ten years each provided that he has complied
with the conditions of his lease and cultivated the land in a manner
consistent with the practice of good husbandry. With regard to borrow
land provision is made in section 29 for any person who has
been in occupation of any such land for a continuous period of three
years prior to the commencement of the Ordinance to apply within
three years after that date to become registered as the lessee of
the land for a period of ten years commencing from the date of the
commencement of the Ordinance at such rent and subject to such conditions
as the Court may decide.
In order to discourage the non-productive use of land provision
is made Part VII for the Island Council to apply for the transfer
to it of any lands that, in the case of agricultural lands, are
not effectively occupied and kept cleared of noxious weeds and not
effectively cultivated for a period of one year, and, in the case
of residential land, any building erected on it is the subject of
a demolition order made under the Local Government Regulations.
The Council is empowered by section 32 of the Ordinance to transfer
or lease any lands vested in it to any inhabitant of Pitcairn Island
subject to payment by that person of fifteen times the annual value
in the case of a transfer and, in the case of a lease, of such annual
rental as may be determined by the Lands and Estates Court.
In Part VIII simple provisions are made for the granting of rights
of administration over the wills and estates of deceased persons
and for the execution of transfers of any lands included in any
such estate for the persons entitled thereto. This part of the Ordinance
is coupled with the previously enacted Wills Ordinance which made
simple provision for the making of wills by Pitcairn Islanders following
the rules generally applicable in England including those relating
to the making of privileged wills.
Lands on the islands of Henderson, Ducie and Oeno are excluded
from the operation of the Ordinance unless the Governor expressly
authorizes an extension of the jurisdiction of the Court to cover
any such land in response to a specific application for that purpose(87).
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Footnotes:
(83) See Waldegrave, p. 160.
(84) See Aleric Maude, pp. 106-7.
(85) Harre, pp. 3-6.
(86) Lands and Administration of Estates Ordinance Chapter 6 of the Revised Edition.
(87) Section 50 of the Lands and Administration of Estates Ordinance.
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