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History of Government and Laws, Part 13

“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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To Part 14

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 Neill’s 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 Brodie’s 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 landholder’s 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 Claydon’s 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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(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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