Greig v Attorney General [2010] KIHC 11; Civil Case 118 of 2009 (1 February 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 118 of 2009

BETWEEN:

DAVID GREIG & OTHERS
Plaintiffs

AND:

ATTORNEY GENERAL IRO THE REPUBLIC OF KIRIBATI
Defendant

For the Plaintiffs: No Appearance
For the Defendant: Ms Tumai Timeon

Date of Hearing: 1 February 2010

JUDGMENT

The plaintiffs claim declarations that;

(1) The islands of Fanning and Washington are rightfully owned by them and,

(2) The ownership of the two islands be returned to them as they are the legal and true owners.

The defendant has denied the plaintiffs’ claim to declarations. The facts are sufficiently set out in the Summary of Agreed Facts signed by counsel:-

[1] First recorded contact with Tabuaeran (also known as Fanning Island) and Teraina (also known as Washington Island) occurred in 1798, when the then uninhabited islands were visited by Captain Edmund Fanning from the United States, on board the Betsy.

[2] By 1846, persons named Lucelle, Collie and Wilson, all British subjects resident in Tahiti, had taken possession of Tabuaeran. They produced coconut oil on the island.

[3] On 17 January 1851, Wilson bought out Lucelle and Collie, and became the sole owner of Tabuaeran and the production facility.

[4] On 27 September 1852, Wilson sold the establishment to Henry English who took over the business, and possession of Tabuaeran.

[5] On 10 March 1859, English entered into partnership with William Greig (the plaintiffs’ ancestor) and George Bicknell. The partners established a firm called Henry English & Co.

[6] On 10 May 1860, William Owen sold a half-share of Teraina to Henry English & Co. Owen sold his remaining half to Henry English & Co. on 15 January 1861.

[7] On 30 January 1864, the partnership of Henry English & Co. was dissolved, and English sold his interests and rights over Tabuaeran and Teraina to Greig and Bicknell.

[8] On 15 March 1888, Tabuaeran was formally annexed to Great Britain by Captain William Wiseman of the HMS Caroline.

[9] On 29 May 1889, Teraina was formally annexed to Great Britain by Commander Nichols of the HMS Cormorant.

[10] On 1 August 1896, following the death of William Greig in 1892, in accordance with his will, his half-share of Tabuaeran and Teraina passed in equal shares to his children: George Bicknell Greig, William Henry Christie Greig, James Greig, David Bruce Greig, Marion Greig Anderson, Margaret Greig Reid, Elizabeth Greig and Caroline Greig.

[11] By indenture dated 28 March 1904, King Edward VII granted a
50-year licence over approximately 36 acres of Tabuaeran to the Pacific Cable Board.

[12] On 10 July 1907, the High Commissioner’s court for the Western Pacific decreed that Humphrey Berkeley was entitled to one half-share of Tabuaeran and Teraina, while William Greig James Greig, David Greig, Marion Greig Anderson and Caroline Greig were entitled to the other half (except for the Pacific Cable Board land). Further, the Court ordered the sale of the islands.

Of the Agreed Facts the most relevant for the purposes of deciding the claim are [8] and [9].

Unlike the Gilberts which were a Protectorate from 1892 until 1916 when they became a Crown Colony the islands of Fanning and Washington were annexed to the Crown in 1888 and 1889 respectively. They became Crown colonies. Sovereignty remained in the Crown until it passed to the Republic of Kiribati in 1979.

This is illustrated in one of the documents exhibited to the affidavit of Mr Tebutonga Ereata, Director of Lands. The document is the Licence dated 28 March 1904 granted by His Majesty King Edward VII to the Pacific Cable Board to occupy a portion of Fanning Island. The Preamble (in part):-

WHEREAS in or about the year One thousand eight hundred and eighty seven Her late Majesty Queen Victoria considered it advisable for the furtherance of the scheme for laying a submarine cable to connect Canada with Australia (hereinafter called the Pacific Cable) that Fanning Island situate 30o 51’ N. Latitude and 159o 22’ W. Longitude in the Pacific Ocean should be formally taken possession of in the name and on the behalf of Her said Majesty AND WHEREAS on the fifteenth day of March in the year One thousand eight hundred and eighty eight Sir William Wiseman Baronet Captain of Her said Majesty’s ship "Caroline" took formal possession accordingly of the said Island in the name and on the behalf of the said Majesty Her Heirs and Successors.

Although there is no similar document relating to Washington I have no doubt Commander Nichols took possession and sovereignty was assumed in the same way by the Crown.

What, then, of the rights of those already in occupation? They were not affected by the acquisition of sovereignty by the Crown but could be thereafter and have been.

The principle is the same as in the Mabo case decided in the High Court of Australia (Mabo and Others v The State of Queensland [No. 2] [1992] HCA 23; 175 CLR 1). The ratio in Mabo was conveniently summarized in the later case of North Ganalanjie Aboriginal Corporation and Another v The State of Queensland and Others (185 CLR 595). From the joint judgment of Brennan CJ, Dawson J, Toohey J, Gaudron J and Gummow J @ 613):-

In Mabo [No. 2] it was held that native title survived the Crown’s acquisition of sovereignty over the territories of Australia but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. This declaration of the common law overruled earlier decisions of other courts that had held, or were widely understood to have held, that native title had been extinguished on and by the acquisition of sovereignty by the Crown.

The aboriginal inhabitants of Australia had occupied the land, it used to be thought for 40,000 years but now is thought to have been for much longer than 40,000 years, before white settlement began in the late 18th century. Fanning and Washington had been occupied only for a few decades but the principle is the same. On the annexation of Fanning and Washington sovereignty passed to the Crown to the exclusion of all others. Nothing changed at the time of annexation but thereafter it could and has changed, as set out in the Agreed Facts.

The highest form of possession any subject or citizen can have is a title in fee simple. It may look like absolute ownership but it is not absolute and final ownership of all land remained always in the Crown and, now in Kiribati in the Republic as successor to the Crown. All other land rights are subject to the sovereignty, the absolute ownership, of the Republic.

The plaintiffs are not entitled to declarations.

The Republic also pleaded:-

13. In any event, the Plaintiffs (sic) alleged cause of action did not arise within 12 years before the commencement of this action and is therefore barred by application of section 8(2) of the Limitation Act 2004.

Section 8(2) of the Limitation Act:-

8.2 No action shall be brought by any -- person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims: .....

I did not hear argument on this defence. Whenever a cause of action (if there had been any) arose it must have been much longer ago than 12 years before 2 July 2009 when the writ was issued. Subject to hearing argument to the contrary, tentatively this defence also succeeds but I do not decide the claim on this ground. The subject matter of the action was of sufficient significance to deserve more than a decision on a technicality.

Finally I may mention that when the hearing was called on last Monday morning Mr Kaongotao for the plaintiffs did not appear. He had been personally informed of the hearing last Friday. On the same day he had been warned by a letter from the Acting Chief Registrar that if he failed to appear on the day and at the time appointed for hearing of cases in which he was counsel the hearing was likely to go on in his absence. That is what happened in this case.

The Declarations are refused.

Dated the 3rd day of February 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice