Tolain, Tapalau, Tomaret, Towarunga, and Other Villagers of Latlat Village v Administration of the Territory of Papua and New Guinea; In re Vulcan Land [1966] PGLawRp 7; [1965-66] PNGLR 232 (5 May 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 232 - Tolain, Tapalau, Tomaret, Michael Towarunga, and Other Villagers of Latlat Village v The Administration of the Territory of Papua and New Guinea; In re Vulcan Land

[1965-66] PNGLR 232

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOLAIN, TAPALAU, TOMARET, MICHAEL TOWARUNGA,

AND

OTHER VILLAGERS OF LATLAT VILLAGE

V

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

IN RE VULCAN LAND

Port Moresby & Rabaul

Minogue J

16-17 August 1965

15-16 September 1965

21-24 September 1965

27-28 September 1965

30 September 1965

1 October 1965

5 May 1966

REAL PROPERTY - Ownership of newly emerged volcanic land - Appeal from the Commissioner of Titles - New Guinea Land Titles Restoration Ordinance 1951-1955 - Entitlement to registration.

The appellants claimed to be the owners by native custom of land known as “Vulcan”, which had originally been part of the sea bed in a harbour on New Britain. A few years before the colonization of New Britain by Germany part of “Vulcan” arose as an island in the course of a volcanic eruption and in 1894 was entered in the German ground book as the property of the New Guinea Company, being subsequently transferred to the Fiscus. Under the Laws Repeal and Adopting Ordinance 1921 the Administration succeeded the Fiscus in its land holdings and in 1931 the Registrar of Titles published notice in the Government Gazette of his intention to bring Vulcan Island under the provisions of the Lands Registration Ordinance 1924.

On the 28th May, 1937, a further volcanic eruption occurred as a result of which the sea bed between Vulcan Island and the harbour shoreline rose above high water mark so that the island became part of the mainland. The original island and the newly emerged land formed the subject of this appeal. Prior to the 1937 eruption the appellants had fished and collected coral and shell fish to the exclusion of all others over the shallow reef separating Vulcan Island from the mainland.

On the 15th November, 1937, the Administrator of New Guinea published in the Government Gazette a proclamation dated 9th November, 1937, under s. 11 of the Land Ordinance 1922-1937 declaring that the newly emerged land appeared to have no owner and would, unless good cause to the contrary was shown before 15th February, 1938, become Administration land.

At about this time members of the appellants’ clans commenced to occupy the newly emerged land and planted crops and trees thereon. In February, 1942, the Japanese occupied the area in question and native occupancy ceased until the end of hostilities, when it was gradually resumed to a point where, at the time of the hearing of the appeal, considerable portions of Vulcan were occupied by the appellants and members of their vunatarais.

During the Japanese occupation the register book kept under the Lands Registration Ordinance and the German ground book were lost or destroyed. On the 1st May, 1956, the Administration lodged a claim to Vulcan under the provisions of the New Guinea Land Titles Restoration Ordinance 1951-1955. On the 9th June, 1959, the Director of Native Affairs referred to the Commissioner of Titles under that Ordinance the question of native customary rights claimed by the appellants over all of Vulcan with the exception of the former Vulcan Island, i.e., the whole of the land which emerged in 1937. The Commissioner of Titles made a final order on the 27th October, 1959, declaring that part of Vulcan was vested in the Administration as absolute owner and part was vested for an estate in fee simple in the Director of Native Affairs as trustee for natives on certain trusts set out in the order. From that order the appellants appealed claiming the whole of Vulcan as theirs by customary right and in the course of the appeal the Administration sought a variation of the order to have the whole of Vulcan vested in it as absolute owner.

Held

N1>(1)      The Commissioner had no jurisdiction to make an order in favour of the Director of Native Affairs where the Director had made no claim under the New Guinea Land Titles Restoration Ordinance and had no interest in the land at the appointed date under that Ordinance.

N1>(2)      On a balance of probabilities the Administration had, before the destruction of the registers, become the registered owner of the original Vulcan Island but no registered title had issued in respect of the land which had emerged from the sea in 1937.

N1>(3)      The Commissioner had jurisdiction to make an order in favour of the Administration conferring registration under the Lands Registration Ordinance in a case where there had been no registered estate before the appointed date. (Dicta of the High Court in Custodian of Expropriated Property and Ors. v. Tedep and Ors. [1964] HCA 75; (1964), 38 A.L.J.R. 344, considered.)

N1>(4)      The Commissioner and the Supreme Court were entitled to enquire into the validity of the proclamation made in 1937 under s. 11 of the Land Ordinance 1922-1937. (Criterion Theatres Ltd. v. Municipal Council of Sydney [1925] HCA 9; (1925), 35 C.L.R. 555; Motor Wheel and Tyre Co. Ltd. v. Commissioner for Railways and Another [1950] NSWStRp 14; (1950), 50 S.R. (N.S.W.) 205; Blakeley and Co. Pty. v. The Commonwealth [1953] HCA 12; (1953), 87 C.L.R. 501; and Jones v. The Commonwealth [1963] HCA 43; (1963), 109 C.L.R. 475, distinguished. Baiada v. Baulkham Hills Shire Council and Another [1951] HCA 70; (1951), 83 C.L.R. 344; and Howarth v. McMahon [1951] HCA 19; (1951), 82 C.L.R. 442, considered.)

N1>(5)      The concept of land ownership in the Territory is different from the English concept and the word “owner” must be interpreted in the light of the conditions existing in the Territory to mean the person or group of persons or the community, which according to the area and custom concerned has the right to use the land and exclude others therefrom. (Amodu Tijani v. The Secretary Southern Nigeria, [1921] A.C. 399; and Adeyinka Oyekan and Others v. Musendiku Adele, [1957] 1 W.L.R. 876, referred to.)

N1>(6)      The appellants’ vunatarais made full use of the reef area between Vulcan Island and the mainland before the 1937 eruption for coral collecting and fishing and for all practical purposes “owned” the reefs and the intervening area between high water mark and the reefs, but by native custom the concept of ownership did not go beyond the right to use this area for such purposes as the community could then envisage. There was no custom existing prior to the 1937 eruption which covered or even envisaged the situation where land suddenly emerged from the sea. (Eleko v. Officer Administering Government of Nigeria[1931] UKPC 37; , [1931] A.C. 662; and Angu v. Attah (1916), P.C.J. 1874-1928 43, referred to.)

N1>(7)      Although by custom the newly emerged land would on occupation belong to the vunatarais of the occupiers, there had been no settlement or occupation of the newly emerged land at the date of the proclamation under s. 11 of the Land Ordinance 1922-1937. The Administration was therefore justified in regarding the new land at that time as being apparently without an owner and the proclamation was therefore properly made.

N1>(8)      There had not been any settlement or occupation of the newly emerged land prior to the 15th February, 1938, so since that date the newly emerged land had been Administration land and the Administration was therefore entitled to an interest therein at the appointed date.

N1>(9)      Although the Commissioner might not have formed the opinion required by s. 67 (3) of the New Guinea Land Titles Restoration Ordinance as the appeal was by way of rehearing and in view of the powers conferred by s. 56 the court was required to place itself in the position of the Commissioner and form its own opinion under s. 67 (3). (R. v. Connell [1944] HCA 42; (1944), 69 C.L.R. 407, referred to.)

N1>(10)    Although it appeared to have been the practice of the pre-war Registrar of Titles to publish in the Government Gazette notice of his intention to bring land proclaimed under s. 11 of the Land Ordinance under the provisions of the Lands Registration Ordinance and of the pre-war Director of Native Affairs to publish a notice in the Government Gazette calling for claims prior to registration under the Lands Registration Ordinance, this procedure was not prescribed in relation to Administration land within s. 42 (2) of the Lands Registration Ordinance, and had the prescribed procedure been carried out the evidence of title should have been sufficient to satisfy the Registrar under that section that the Administration was entitled to be registered under the Lands Registration Ordinance in respect of its interest in the whole of Vulcan.

N1>(11)    The Administration was therefore entitled to be registered in respect of its interest by virtue of s. 67 (3) of the New Guinea Land Titles Restoration Ordinance and a final order should therefore be made in favour of the Administration for the whole of Vulcan.

Appeal from Commissioner of Land Titles

The facts appear sufficiently from the judgment.

Counsel

Lalor, for the appellants.

Clay and Croft, for the respondent.

Quinlivan, for the Director of District Administration.

5 May 1966

MINOGUE J:  This is an appeal brought pursuant to s. 54 of the New Guinea Land Titles Restoration Ordinance 1951-1955 (hereafter called the “Restoration Ordinance”) against a final order made under that Ordinance by the Commissioner of Titles in respect of an area of land in the Gazelle Peninsula near Rabaul in New Britain and generally referred to as the Vulcan land. By his order the Commissioner declared that the Administration of the Territory of Papua and New Guinea was the absolute owner of part of this land and he defined the boundaries of that part. He further declared that as to the remaining part of the land, the Director of District Services and Native Affairs (now the Director of District Administration) as trustee for natives was entitled to an estate in fee simple to be held on trusts subsequently set out in his order. The officer now known as the Director of District Administration has had various changes of title since 1921 and I shall refer to him hereafter as “the Director”. The Commissioner went on to declare that the Administration was entitled to be registered as owner under the Lands Registration Ordinance 1925-1955 of the Territory of New Guinea of that part of which he had found the Administration to be owner and the Director as trustee was entitled to be registered as owner of the other part. The appellants are Tolais and are members of a community known as the Latlats. As far as I can gather, they are or rather were at the date of the inception of this appeal in February, 1960, the leaders of various groups in that community claiming to own part of the subject land, but it is not alleged that they have any separate proprietary interest therein. As will appear later these interests are held by matrilineal descent groups known as “vunatarais”.

A number of grounds of appeal were taken, but by consent two further short grounds were submitted to me and on these grounds the argument proceeded. They were:

N2>1.       The Commissioner had no jurisdiction to make the final order conferring registration on the Administration or the Director since at the appointed date neither the Administration nor the Director were entitled to registration under the Restoration Ordinance, ss. 9, 10 and 67. (The appointed date was a date declared by the Administrator to be the appointed date for the purposes of the Restoration Ordinance and a date at which a person claiming to be registered in respect of an interest in land must have been able to establish his entitlement both to that interest and to be registered in respect of that interest.)

N2>2.       The sole entitlement of the Administration was to be entered in the Index of Unregistered Administration Lands pursuant to s. 59 of the Restoration Ordinance.

At the outset of the hearing it was indicated to me by all counsel that in case I should hold that the Commissioner had jurisdiction to make a final order it would then be argued that the final order was not properly made by reason of the fact that the Commissioner had not formed the opinion required under s. 67 (3) of the Restoration Ordinance.

Alternatively that if he had formed such an opinion it was formed upon irrelevant considerations and without a proper understanding of the relevant law. After discussion with counsel I agreed to hear this branch of the case also as it seemed to be the more convenient course (both for this court and the High Court should there be any appeal against any part of my judgment) to hear the whole case. The matter was further complicated in that counsel for the Administration did not seek to uphold a great deal of the reasoning upon which the Commissioner’s findings and final order were based and sought further to attack the Commissioner’s order as to that part of the land to which he had held the Director to be entitled to registration. No cross-appeal was in fact entered but I allowed the argument to proceed on the basis that there had been such a cross-appeal.

I think it desirable at the outset to set out something of the history of the land, of the law of the Territory of New Guinea with relation to the ownership of land and registration of that ownership, and of the way in which the parties are before this court.

In January, 1878, there was a volcanic eruption in the vicinity of what is now known as Rabaul. Apart from one or two isolated trading posts there was then no European settlement in the area. However, the Rev. George Brown, a notable Methodist missionary of the time, reports having been in the area immediately following the eruption. In the course of this eruption, an island known as Vulcan Island arose from the sea in the western portion of Blanche Bay and in the north-western portion of a smaller bay within the larger bay, which was subsequently known as Keravia Bay. There was a volcanic crater on the south-eastern portion of this island. A good description of the island (by Dr. Brown) is contained in a report on vulcanological and seismological investigations at Rabaul made by Dr. Stehn and Dr. Woolnough which forms Appendix C to the report to the League of Nations of the Administration of the Territory of New Guinea for 1936-1937. The general situation is well depicted in a map prepared by Dr. Fisher in Rabaul in January, 1938. (Exhibit G.) As far as I can gather the first settlement in the area was made by the famous Mrs. Emma Forsayth (Queen Emma), who established herself somewhere near what is now Kokopo, a few miles to the south of Vulcan Island, in about 1880 and began acquiring land from the native population.

What I have to say about events prior to 1945 is, of necessity, sketchy and in some instances speculative as all records held in Rabaul were destroyed during the Japanese occupation in 1942, and the destruction wrought in Germany during World War II seems to have precluded any proper research as to the situation in New Guinea in German times. Fortunately most of the New Guinea Government Gazettes are in existence as are copies of the reports made to the League of Nations. Some other relevant documents have been discovered in Canberra but they are painfully few.

In August, 1884, the Imperial government of Germany promised protection to a German company styled The New Guinea Company for a colonial scheme initiated by it and directed to island groups in the western Pacific not yet under the protection of another power. The company subsequent to this promise of protection fitted out an expedition and acquired and occupied certain lands in New Guinea and New Britain and on 17th May, 1885, the German Emperor granted an Imperial Charter of Protection to it. In that charter he confirmed that the German Empire had assumed sovereignty over inter alia New Britain. The charter granted rights of sovereignty to the company together with the privilege of taking possession of and distributing ownerless land within the protectorate or territory and of making treaties with the natives respecting land and land claims.

By an Imperial Ordinance of July, 1887, the acquisition of ownership and the mortgage of property within the Protectorate by the New Guinea Company was declared to be regulated by the rules of Prussian law of 1872.

However, s. 4 of this Ordinance made Prussian law inapplicable in New Guinea to the acquisition of ownerless land or to native land, and by the same Ordinance only the New Guinea Company could occupy ownerless land or contract for the acquisition of land from the natives. Elaborate and strict rules for the procedure to be adopted in such cases were laid down by the directorate of the company, with the sanction of the Imperial Chancellor.

By a decree of the Reich-Chancellor of the 30th July, 1887, detailed rules were promulgated for the institution and compilation of land registers. These were directed to be begun on the 2nd March, 1888, and it is clear that a land register for the Gazelle Peninsula had been established by 1896, for particulars of Vulcan Island were entered in such a register by that time. Colonel Seaforth Mackenzie, who wrote vol. 10 of the Official History of Australia in the War of 1914-1918, took the view that the New Guinea Company was not over-careful of the protection of the rights of natives and this may have been the reason for that company ceasing to administer the colony in 1889. An agreement was concluded between the Imperial Chancellor and the company whereby as from the 1st April, 1889, the German Emperor was to reassume the sovereign rights which had previously been delegated to the company and the company agreed to renounce in favour of the Emperor inter alia the exclusive right to take up ownerless land and to contract with the natives for land. By an Imperial Ordinance of the 27th March, 1889, provision was made for assumption of full sovereignty in New Guinea by the Imperial German government on the 1st April of that year, for the cancellation of the New Guinea Company’s charters and the transfer of the company’s exclusive rights to the Fiscus of the colony. I have been unable to discover the precise legal status of the Fiscus, but it seems to me to have been an organ of government responsible at any rate for the holding of and dealing with land. It probably was the Treasury.

The land register for New Britain was lost or destroyed during the Japanese occupation, but there were discovered in the archives in Canberra typed copies of land register entries amongst which was an entry dealing with Vulcan Island and which all counsel appearing before me agreed that I should treat as evidence of its contents. The land register (Grundbuch), in relation to each parcel of land entered therein, was divided into three sections. The first set out the volume and folio number of the book and a description of the property. The second dealt with changes in ownership and the third with charges, mortgages and the like. After the assumption of sovereignty by the German government, the policy appears to have been to control strictly the alienation of land and carefully protect native rights to and interests in land.

In the document which was produced to me the land is described as Vulcan Island situated in Blanche Bay of the Gazelle Peninsula of New Britain. It states that the older portion of the island is called by the natives Raluan and the newer portion Rokaie, and that it is for the most part stony and uncultivated. The island is described as being 150 hectares in area. The second section shows the New Guinea Company of Berlin as its owner and its time and manner of acquisition as being in pursuance of the certificate of the Administrator of the colony (Landeshauptmann) of the 5th September, 1894. The entry was apparently made on the 23rd March, 1896, and was signed by one Hahl and countersigned by one Stensaff. Hahl was, I was informed, at a later stage the Governor of the colony, but it seems probable that at this time he was holding the position of land judge, for the Regulations make provisions for entries to be signed by such judge. The next and only other entry shows the Fiscus of the colony of German New Guinea as being the owner in pursuance of a transfer of 3rd October, 1907, which was entered on the 31st October of that year. How the land was originally acquired - that is whether it was by purchase from the natives or whether it was an acquisition of what was then thought to be ownerless land - I have no means of knowing.

On the 11th September, 1914, Australian forces landed on the shore of Blanche Bay and within a few days thereafter formally took possession of the German colony. German New Guinea was under British military administration until the 9th May, 1921, when the New Guinea Act came into force.

I will deal later with the relevant laws and it seems convenient at this point to see the situation on the ground, as it were, when the Commonwealth government took over administration of the Territory.

Vulcan Island as shown on the German map of 1899 (Exhibit A) lay a short distance from the coast with its western shoreline running approximately from south-west to north-east. At its nearest point to the mainland it was some 520 yards distant and at its farthest point some 1,300 yards. In 1899 the area between the mainland and the island seems to have consisted of reefs and shallow water, the greatest depth being a small circular area of a depth of about 10 metres adjacent to the southern portion of the island, the remaining depths varying between 1 and 6 metres. I assume that after the beginning of the Australian Administration there were no natives living on the island because on the 18th January, 1922, the area was proclaimed to be set aside as a temporary quarantine station, and in the annual report to the League of Nations covering that year reference is made to the transference of venereal and measles cases thereto. Again, in the 1930-1931 report it is stated that owing to an outbreak of measles in the Territory Vulcan Island was opened as a native quarantine station from 26th August to 7th October. Little appears to be known of its use as a quarantine station after the latter date, although no proclamation seems to have been made revoking it, and there was reference by one Tolai witness to its use as a leper station. According to the land register entries there had been some alienation of land along the western shores of Blanche Bay, but there were a good number of native communities living in this rich volcanic area. These communities were ethnically homogeneous and are known to us today, and have been for some time, as the Tolai people. There does not seem to have been any European settlement in the vicinity of Vulcan Island except for a Methodist mission which was established probably in about 1898 on the mainland and slightly north of the northern tip of the island. At a later stage a Catholic mission shipyard or dry dock seems to have been established on the mainland opposite or perhaps slightly south of the southern tip of the island and evidence indicated that somewhere in the vicinity of this mission there used to be a European plantation. However none of the witnesses who gave evidence before me had any recollection of any European habitation or occupation on the mainland opposite the island. The Administration by the Laws Repeal and Adopting Ordinance of 1921 succeeded the Fiscus in its land holdings and became the owner of Vulcan Island. In an application under the Lands Registration Ordinance 1924, to which I shall refer later, the area of Vulcan Island is shown as 78 hectares 28 ares. I am unable to say whether the discrepancy between the area of 150 hectares shown in the original land register entry and that shown in this application was due to some volcanic disturbance, to gradual erosion of the shore line, which I was informed is constantly taking place in this area, or simply to a more accurate survey and I have no further guide to the shape and location of the island than the 1899 map.

I turn now to consider the natives and native communities on the mainland off Vulcan Island as of May, 1937. From a map (Exhibit E) prepared by the Commissioner of Titles and from relevant entries in the land register it appears that there had been some land acquired from the natives in German times; but it is impossible now to say precisely what these parcels of land were except in a very general fashion. The Methodist mission was at Valaua, which was slightly to the north of the island, and below or to the south of that was a village of Valaua where lived a number of natives. South of Valaua was the village of Tovana and south of that again the village of Taviliu. Still further south was the village of Keravia, which in its turn was somewhat south of the southern portion of Vulcan Island. The appellants in this appeal are concerned with the areas of land in and around Valaua and Tovana. They mostly now live in the village of Latlat, which is inland from the shore and on high ground, but up to May, 1937, lived in the villages of Valaua and Tovana and were concerned in the ownership of a small area fronting the shore south of Valaua known as Latlat. I have not attempted to identify each person concerned in this appeal nor the precise area of land which he claims to have been or to be now owned by his landholding group.

The road ran from Rabaul to Kokopo some twenty miles to the south - in most places following fairly close to the shore line. The native communities had houses and gardens on both sides of the road and I am satisfied that between the Methodist mission and the dry dock area in the 1920’s and 1930’s there was no European settlement or plantation, save possibly for one house the location of which has been forgotten.

It is necessary that I should say something shortly of the Tolai organization and method of land holding. They live in districts having clearly defined boundaries which commonly coincide with the government administrative divisions into villages. Within the districts there may be one or more areas in which houses are clustered and within these areas there may be sub-groupings of houses. The communities living within the boundaries of the various districts are not the basic land holding units. These units are the “vunatarais”, which are matrilineal descent groups dispersed over many communities. These descent groups generally trace back for about five generations although there are some groups tracing descent back to the eleventh generation. The principal leader of a “vunatarai” is known as the “alualua”.

The “vunatarai” may have rights over plots of land situated in several districts. The members of a “vunatarai” living within a single locality and acknowledging the authority of a local leader are known as an “apiktarai”, and the “apiktarai” exercises local rights over “vunatarai” land. The “vunatarai” then is essentially a kinship and not a territorial group consisting of a number of “apiktarais”.

In the coastal areas land along the seashore is owned or claimed by “vunatarais”. Between the shore line and the water’s edge areas varying from approximately 60 to approximately 120 feet in width are marked out and small boundary fences or markers called “lip-lips” are erected. The areas between these “lip-lips” are called “amatonois”. So far as I can judge the “amatonoi” is bounded on its other sides by the sea and by the shore line, which I take to mean approximately high water mark or a line close to but inland of high water mark. Each “amatonoi” is owned by a “vunatarai” and on this “amatonoi” canoes are drawn up, fishing traps and fishing baskets are made, canes for the anchoring of fish traps are constructed, and all the land work incidental to fishing is done. Sometimes a rough shelter is erected in which members of the “vunatarai” can sleep during the course of fishing operations.

It is recognized throughout the Rabaul-Kokopo district that each vunatarai owns the area on the seaward side of the amatonoi, extending out at least to the farthest edge of the off-shore reefs. These areas would extend for varying distances but in the vicinity of Vulcan Island would appear to have extended right out to the island. In the Kuanua language the word for “own” is “kale”, and many of the Tolai witnesses who gave evidence before me used this word in referring to the right of their vunatarai to this area of sea and reef. Various types of fish traps are used dependent upon the depth of water. In some cases holes are made in the reef at a depth of from two to three fathoms and a fishing basket or trap known as a “tatakia” is let down. At the seaward edge of the reef another type of fishing basket called an “apinap” is let down into about 8 fathoms of water. On the reef itself in depths of water up to one fathom at low tide, coral is gathered for the purpose of burning and making into lime mainly for use with betel nut. The alualua of each vunatarai owning an amatonoi controls the use of the area over the reef, and it seems to me that the meaning of amatonoi can be extended to the area of sea and reef bounded by the prolongation of the lip-lips, and by the distance seaward to which any of the operations I have been describing can be carried on. Generally speaking any member of the vunatarai can fish or obtain coral within this amatonoi area. If any member of another vunatarai wishes either to fish or to obtain coral in such an area, he must first obtain permission from the alualua and pay or agree to pay “totokom”, which is the Tolai word for rent. An amatonoi can also be sold, there being another word for this transaction.

It was clear to me that the Tolais regard these areas of sea and reef as belonging to them although of course they are a practical people and have no conceptual idea of ownership as we have in our more sophisticated society. To them ownership means the right to do the actual things necessary for their way of life, that is to catch such fish and to take such coral as they require from within their own boundaries and to charge a rent to anyone else wishing to do the same things.

I am satisfied that from the beginning of Australian administration in 1921 until the year 1937 the whole of the land between the Valaua mission and at least the Catholic mission dry dock area was claimed by various vunatarais and that along the foreshore a continuous line of amatonois existed owned and used by some vunatarai or other. In some cases the vunatarai lands came down to the shoreline and the amatonois were in fact an extension of these lands. In other vunatarai lands were inland and separated from the amatonoi by lands belonging to other vunatarais. I have not attempted to make any findings as to the individual or precise areas of land occupied, nor do I find it necessary for purposes of this case to do so.

Mr. Kimmorley, who is at present a Lands Title Commissioner and who for many years has been dealing with claims to and disputes about land in the area, in 1959 and after the Administration claim to a registered title for this land had been initiated, had a number of discussions with members of the vunatarais concerned. As a result of his discussions he prepared a map-a map which was produced both to the Commissioner and to me-which I would think sets out as well as can be the location of the various areas of land occupied by the vunatarais. I am satisfied that on the seaward side of these areas amatonois were held by the vunatarai of Misulam Tolamlan of Valaua and that there were four amatonois owned by the vunatarai of Alois Tomarlum of Valaua.

Such was the situation until 1937, when a dramatic and tragic change occurred. On the 28th May of that year there began a series of earthquakes of increasing frequency and at 4.15 on the afternoon of the 29th Vulcan Island erupted and become an active volcano. There were unusual movements of the sea and on the early afternoon of the 29th it had apparently receded completely from the reef area fronting the Valaua, Tovana and Latlat villages and a number of the villagers were out on their portions of the reef gathering fish, unmindful of or unknowing the potential danger. When the volcano erupted very few of these people seem to have survived, and most were covered by the erupting material and killed. The Administration was unable to account for a total of 436 natives of this particular area and from Valaua 186, from Tovana 104 and from Latlat 25 appear to have lost their lives. Some escaped and ran into the hills rising behind the villages. The whole conformation of the land was changed, the area of sea between the former shoreline and Vulcan Island disappeared and Vulcan Island as such no longer existed. The original villages lining the Kokopo road disappeared and are probably covered by the lower western slopes of the feature now known as Vulcan. The approximate conformation of the land existing at present is shown in the map prepared by Dr. Fisher previously referred to (Exhibit G), and perhaps more accurately by a Navy map prepared in 1948.

Somewhere about six months later some of the surviving natives who had fled began to drift back to the area, although the Latlats appear to have established a new village in the hills. So far as I can ascertain villagers would come back to the area looking for portions of land which were not too hot for cultivation in what was judged to be their own previous vunatarai areas. For some months the land was apparently hot and arid but gradually vegetation began to return. Even at the time of the Commissioner of Titles’ inspection in 1959 it appears that upon digging a few feet below the surface the land was still hot. Gradually over a period of two years more and more natives returned, marked out what they considered to be their old areas, or areas to which they were entitled, and began planting subsistence crops and coconuts. All this was done without interference on the part of the Administration. However, for a reason which is not and which I assume cannot be now explained to me, the then Administrator of New Guinea on the 9th November, 1937, signed a proclamation under s. 11 of the Land Ordinance 1922-1937 reciting his powers to declare that any land which has never been alienated by the Administration and for which there appears to be no owner is Administration land, and declaring an area of land situated near Keravia in Blanche Bay and containing approximately 280 hectares to be such land. This land is all of the land which arose from the sea in the eruption. The proclamation excluded the area of approximately 78 hectares representing the former Vulcan Island. This proclamation was published in the Government Gazette of 15th November, 1937, which it will be noted was less than six months after the eruption. I am unable to say whether at that actual time natives had begun returning to the land and to what they conceived to be their former amatonois, but I am inclined to think that there must have been a few looking round the area to see what use could be made of it.

I am satisfied that from about the end of 1937 until the Japanese occupation more and more natives returned to the land and that vunatarai boundaries were marked out which extended over the whole of the new land out to and including the new shoreline and that new amatonois were also marked out and used. I am further satisfied that wherever possible cultivation was carried out and various crops and trees planted. However, in February, 1942, Rabaul fell to the Japanese. It is needless for me to say anything of the Japanese occupation save to say that Rabaul became a very large base and that the Vulcan land and land well to the south of Vulcan were used for the purposes of war. Coconut trees were cut down and no native rights were able to be exercised over any of the land in question during the period. All the registers and records kept by the Administration at Rabaul were either lost or destroyed and these included the register book and the old German land register. After the cessation of hostilities occupation by natives of certain areas of land was gradually resumed. Apparently there was a project at some time shortly prior to 1956 to establish a race-course on the southeastern portion of the land in dispute and the actual course was marked out. I am unable to say to what extent this was used but it is clear to me that the administration has not made any use of it and that there are natives scattered over it, claiming rights allotted to them by the alualuas of their vunatarais.

On the 1st November, 1951, the Restoration Ordinance came into operation, its long title being “An Ordinance to provide for the compilation of new Registers and Official Records relating to Land, Mining and Forestry in the Territory of New Guinea in place of those lost or destroyed during the Japanese invasion of that Territory, and for other purposes”. The date appointed under that Ordinance by which entitlements to interests in land were to crystallize was 10th January, 1952. On the 1st May, 1956, the Administration lodged its claim to the land in question.

On the 9th June, 1959, the Director, pursuant to s. 36 of the Restoration Ordinance, referred to the Commissioner the question of native customary rights claimed by the natives of Latlat village over all the land covered by the provisional order previously made by the Commissioner with the exception of that land which was known as Vulcan Island prior to the volcanic eruption of 1937. The Commissioner of Titles heard the claim during July, August and September, 1959. His final order was made on the 27th day of October, 1959, and the appeal against that order was lodged by the Secretary for Law on the 3rd day of February, 1960. I understand that it was not until later in that year that the office of Public Solicitor was established and the Public Solicitor took over the handling of this and many similar claims on behalf of natives or native communities. I began hearing this appeal in mid-August, 1965, but, as I have earlier stated, at the outset of the appeal I agreed to hear argument both on the question of the Commissioner’s jurisdiction and on the further and wider question of the correctness of his order. After argument was completed on the jurisdictional point I adjourned the hearing to Rabaul for the taking of further evidence and then resumed hearing argument at Port Moresby at the end of September. Section 55 of the Land Titles Registration Ordinance provides that an appeal to this court shall be by way of re-hearing. No real question of the powers of this court was raised by any party and it was agreed that the court had the widest powers. Section 56 seems to put the power of the court beyond doubt, and in the consideration of this appeal I have made free use both of the material before the Commissioner and of the voluminous body of evidence which was led before me at Rabaul.

I turn now to a consideration of the law relating to land and its development in the Territory of New Guinea. As so much was canvassed before me in argument that consideration must of necessity be somewhat detailed. I think it not unreasonable to assume that the native system of landholding at the end of the last century was substantially the same as I have found it to be in 1921 and 1937. I have not had material put before me dealing with the German law concerning foreshores and reefs, if there be any, but from the material which I have read I feel that at least after 1902 native rights and customs were jealously guarded. None of the examples of German alienation submitted to me contained any reference to foreshores nor to the adjacent reefs, so that I assume that in 1921 the appellants, or their predecessors, were enjoying the same kind of rights as they were in 1937 and as those in the nearby area of Vunamami, about which I heard so much evidence in Rabaul, are enjoying today.

After the First World War, by the New Guinea Act of 1920, the territories and islands formerly constituting German New Guinea were declared to be a Territory under the authority of the Commonwealth, by the name of the Territory of New Guinea, and the Governor-General was authorized to accept the Mandate for the government of the Territory when issued to the Commonwealth under the Covenant of the League of Nations. The Mandate was subsequently issued and the Act proclaimed to come into operation on the 9th May, 1921. On the same day the Laws Repeal and Adopting Ordinance 1921 came into effect and on that date German law ceased to apply to the Territory.

However, by s. 5 of that Ordinance all Crown grants, titles, certificates, licences, orders, appointments, warrants, notifications, seals, registers, memorials, books, records, instruments and generally all acts of authority which originated under any of the laws, ordinances and enactments affected by the Ordinance, and which were subsisting or in force at the commencement of the Ordinance, were declared, subject to the Ordinance, to continue to be valid and subsisting. By s. 6 all the right, title, estate, interest, control, privileges and prerogatives of the government formerly exercising authority over the Territory in, over and to (inter alia) Crown lands or lands vested in or subject to the authority or control of the government, and native lands which had been ceded to the Crown by the natives or had been purchased or otherwise acquired from the natives on behalf of the Crown or had become vested in the Crown by right of prerogative or by any other manner whatsoever, passed at the commencement of the Ordinance to the Commonwealth of Australia as mandatory under the Mandate. So that by virtue of this section the ownership of Vulcan Island passed to the Commonwealth. The references in the section to Crown lands and to the Crown obviously are to the former German Imperial government or to the Emperor.

By s. 9 it was declared that nothing in the Ordinance should affect the right, title, estate or interest vested possessory or contingent of any aboriginal native or tribe of aboriginal natives, whether such land had been proclaimed as a native reserve or not, or any customary use by aboriginal natives of market places and landing places, or any existing right, privilege or custom of aboriginal natives in relation to cultivation, barter, hunting or fishing. By s. 10 the tribal institutions, customs and usages of the aboriginal natives of the Territory were declared not to be affected by the Ordinance and, subject to the provisions of the Ordinances from time to time in force they were to be permitted to continue in existence in so far as they were not repugnant to the general principles of humanity.

By s. 16 it was declared that the principles and rules of common law and equity that were in force in England on the 9th May, 1921, should be in force in the Territory so far as same were applicable to the circumstances of the Territory and were not repugnant to nor inconsistent with the provisions of any Act, ordinance, law, regulation or rule, order or proclamation having the force of law that was expressed to extend to or apply to or was made or promulgated in the Territory.

In 1922 came the Land Ordinance, which was made on the 13th May and came into operation on the 21st December of that year. It provided that except within the framework of that Ordinance a native should have no power to sell land or dispose of any land, and any contract made by him so to do should be void (s. 6). By s. 8 the Administrator was given power to purchase lands from natives willing to sell, but he was required to be satisfied after reasonable enquiry that it was not required or likely to be required by its owner. Section 11 empowered the Administrator by proclamation published in the New Guinea Gazette to declare that any land which had never been alienated by the Administration and of which there appeared to be no owner should, unless good cause be shown to the contrary, within a period to be specified in the proclamation, become Administration land. Every such proclamation was to set out the name or names by which the land was known, with a description and a plan thereof, its position and estimate of its area and a statement showing, as far as was known, how long it had been unused by natives. From and after the time limited by the proclamation the land referred to should be, and be deemed to be, vested in the Administration for an estate in fee simple. Sub-section (4) directed the Administrator at any time before the expiration of the time limited by the proclamation to take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner, and the sub-section allowed him to take any such claim into consideration after the time so limited. If he allowed such a claim he could either by proclamation declare that the Administration disclaimed its title, in which case if the proclamation was published before the time limited by the original proclamation, the land would not vest in the Administration or become Administration land, or if it was after the time limited in the initial proclamation, the land should be divested from the Administration and cease to be Administration land. Alternatively, the Administrator was empowered to acquire the right of the owner in the manner provided by the Ordinance. Section 69 gave the Administrator power to compulsorily acquire or resume land for a listed number of public purposes. Section 12 enacted that the Administrator could by proclamation in the New Guinea Gazette appoint a board or boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant, and all cases of disputed ownership of land in which a native was a claimant. This board in giving its decisions was directed to be guided by the principles of equity and good conscience and was not to be bound by the rules of evidence and legal procedure. An appeal lay from the board to the Central Court (later the Supreme Court). Although not expressly stated it seems to me that the clear intention of s. 12 was to ensure that any native claim to land alleged to be apparently ownerless was to be thoroughly investigated, and that the ultimate power of decision was to rest in the Supreme Court. In the 1926-1927 annual report to the Council of the League of Nations directed to be made by s. 37 of the New Guinea Act, and made over the signature of the Governor-General, there appears the statement that ownerless land may be proclaimed by the Administrator to be Administration land subject to the settlement of any claim by alleged owners. Such claims, it was stated, were determined by a board appointed by the Administrator, from whose decisions appeals lay to the Central Court. The same report sets out in some detail the care taken to safeguard the interests of natives in land. In the 1927-1928 report, it is again stated that a board appointed by the Administrator decided all questions as to waste and vacant lands. In fact, no such board was ever appointed and, as I shall have occasion to say later, it appears to me that in such cases the procedure for bringing land under the Ordinance set out in Division 2, Part III of the Lands Registration Ordinance, was followed. I should note in passing that it was under s. 11 of the Land Ordinance that the proclamation of the Vulcan land as Administration land was made.

By s. 13 the Governor-General was empowered in the name of the Administration to grant, convey or otherwise dispose of estates in fee simple of Administration lands and also to grant leases of such lands. Section 16 in effect directed that no person other than a native should occupy land owned by natives and the First Schedule to the Ordinance contained a detailed set of provisions required to be followed for the authentication of purchases of land and leases of land from natives by the Administration. Thus it will be seen that the Administration, and only the Administration, could acquire land from native owners; but the acquisition was carefully hedged with conditions to ensure that native customary rights were jealously guarded. It will be seen too that the Administration could at all times relevant to this appeal make grants in fee of land acquired by it.

In 1924 the Lands Registration Ordinance was made and under this Ordinance a Torrens system of land registration was instituted. Provision was made for the appointment of a Registrar of Titles and for the setting up of a register. It is clear from a perusal of the Lands Registration Ordinance that the Government policy in 1924 was to bring all already alienated land within the Torrens system, as well as all land thereafter to be granted in fee or leased by the Administration. It is clear too, from a perusal of the Ordinance as well as from a number of statements of Government policy contained in reports and other documents produced before me, that the strictest care was to be taken to safeguard native rights in land. Part III dealt with bringing land under the Ordinance. Division I thereof related to future grants of Administration land and s. 14 directed that grants in fee of all Administration lands remaining unalienated at the commencement of the Ordinance should be in duplicate and should be delivered to the Registrar of Titles for registration and he was to register. Division 2 dealt with freeholds already alienated or in process of alienation in German times. Where land or any estate or interest in land or any right affecting land was entered in the land register (i.e., the original German register), the Registrar was directed to proceed to bring that land under the Ordinance without any application from any person interested (s. 16). He was also directed to bring land under the Ordinance where any person was entitled to be entered in the land register although not actually so entered (ss. 17 and 18). In the case of land under Division 2, the Registrar was directed to cause to be prepared a draft certificate of title which was to contain any matters affecting the land as shown in the land register, and he was also directed to note on this draft certificate particulars of all existing mortgages, leases and other encumbrances not entered in the land register to which, in his opinion, the land was subject. Having prepared the draft certificate of title the Registrar was directed by s. 21 to issue a notice of his proposal to register the land and to serve it together with a copy of the draft certificate on a number of persons set out in the section. Included amongst these were the occupiers of the land the subject of the certificate and the occupiers and owners of contiguous land if they were not natives and the Director (then the Director of District Services and Native Affairs). The Registrar was also required to cause to be inserted in the New Guinea Gazette a notice of his intention to bring the land under the Ordinance.

Upon receipt of the Registrar’s notice the Director was required to himself cause a notice to be published in the New Guinea Gazette and to be posted at the office of the district officer of the district in which the land was situated, specifying that he had been served with the notice by the Registrar and that claims by natives or native communities over the land could be lodged with him for three months after the date of the publication of the notice (s. 22). This section went on to require him to cause to be made upon and in the locality of the land any enquiries which he thought necessary. At the expiration of the period of three months specified in the notice he was to certify to the Registrar that after careful enquiry he was satisfied that there were no natives or native communities having rights over land other than those appearing in the Registrar or the draft certificate of title or he was forthwith to refer the question of native rights in relation to the land to the Central Court (later the Supreme Court) for determination unless he had already made a reference in pursuance of s. 24 of the Ordinance. Later in 1933 s. 24a was added. By this section, where there appeared to be native rights over the land other than those appearing in the land register or in the draft certificate of title, but those rights had not been exercised for a period of at least 20 years, the Director was required to refer the question to the Administrator. The Administrator could then instruct the Director to certify to the Registrar that the question of native rights would not be referred to the court or to refer the question of native rights to the court for determination. Section 22 was amended at the same time to compel the Director to refer such questions to the court where he had received an instruction from the Administrator. As a further safeguard of native rights, s. 23 required the Registrar as soon as may be after the commencement of the Ordinance to forward to the Director a list of all lands entered in the land register of which any natives or the Fiscus or any person, authority or corporation on their behalf were registered as the owners or in respect of which there were entered in the land register any native rights affecting the lands together with the particulars of all entries relating to such lands. The Director was also required, whether he had been served with the notice and draft certificate or not, to refer the question of possible native rights in relation to any land to the court for enquiry and determination in every case where he was of the opinion that there were natives or native communities having rights of any description other than those appearing in the land register or the draft certificate over any land owned, occupied or used by or for any person other than a native (s. 24). By s. 26 the court was given jurisdiction to hear and determine the customary or any other rights of natives to or affecting the land which had been referred to it. The court was given the widest of powers and was directed to take all measures which it deemed fit in order to be informed as to any native claims or rights whatever affecting the land, and was empowered inter alia to declare that there were no native rights affecting the land or to define the nature and extent of the rights and direct that these rights be protected by the necessary entries in the register book and on the draft certificate of title.

By s. 27 the Director was charged with the duty of presenting the case for natives whose interests were or might be affected and to arrange for legal or such other representation as he considered necessary at the hearing of any reference to the court. In March, 1929, ss. 27a, 27b and 27c were inserted into the Ordinance. Section 27a gave the court a power of mediation and by s. 27b the court was not to be bound by rules of evidence or legal procedure, but could inform itself by the best evidence which it was able to procure or which was laid before it. By s. 27c, in the determination of any matters referred to it under s. 22 or 24, notwithstanding anything contained in the Laws Repeal and Adopting Ordinance 1921-1928 the court was not to be bound by the rules of common law and equity in force in England on 9th May, 1921, but could be guided by such principles of right and good conscience as it deemed to be applicable to the matters referred to it, having regard to the tribal institutions, customs and usages of the natives of the Territory and to the conditions existing in the Territory since its occupation by persons other than natives. It appears that difficulty had been experienced in regard to the investigation and determination of native rights and with a view to expediting proceedings, it was arranged that the late Sir Beaumont Phillips, who had been appointed to the judiciary in February, 1928, should be constituted a court to hear and decide matters referred to him in connexion with land registration, and that he should move to the localities concerned and hear the cases on the spot. It seems as if these provisions were enacted to enable him to function effectually and to give him a very free hand. (See Annual Report 1928-1929, p. 82.)

Provision for the lodging of caveats and their disposal by the court followed, and s. 32 directed the Registrar to proceed to bring land under the Ordinance where no caveat had been lodged, nor any question of native rights referred to the court. Then followed other machinery and ancillary provisions.

By s. 42 the Administration was deemed to be the successor in title of the former British Military Administration and of the German government, the Fiscus, or any of the various organs of government which were registered or were entitled to be registered in the land register. By sub-s. (2) of that section, it was enacted that where any land or any estate or interest in land other than land referred to in sub-s. (1) was or had been acquired by the Crown or the Administration or had become Crown land or Administration land under the provisions of any Ordinance or law, the Registrar, on production of such evidence of title as he deemed sufficient or as may be prescribed by any Ordinance, accompanied by a proper plan and description of the land, should bring the land under the Ordinance by registering a certificate of title in the name of the Administration. The land the subject of this appeal, having been proclaimed as Administration land under section 11 of the Land Ordinance falls within the provisions of this sub-section.

By the section as originally enacted in 1924 it was not mandatory for the Administration to bring its land under the Ordinance, but the section was amended to its mandatory form in 1925. It was apparently thought that the bringing of Administration lands under the Ordinance would take a lengthy period of time because in 1925 also, s. 43a was inserted into the Ordinance directing the Registrar to keep a book to be called the Index of Unregistered Administration Lands. By that section the Commissioner of Lands was directed to lodge with the Registrar the original of every proclamation, notice, lease, conveyance or other instrument by virtue of which any land had become Administration land as soon as the proclamation or other document was made, published or executed. The Registrar had to enter into the index particulars of these documents and particulars of the land sufficient to identify it. Where any land in the index was brought under the Ordinance this fact had to be noted therein. Sub-section (5) enacted that no entry in the index and no preservation of any proclamation, lease, conveyance, agreement or other instrument by the Registrar under the section should give to the Administration any further or other title than that given by the proclamation or other such document.

Provisions for the registration of future Administration leases followed and Part IV dealt with the register book and registration. Upon registration s. 68 made the estate of the registered owner paramount except in case of fraud.

Such was the legislation existing at the outbreak of war with Japan and at the time of the Japanese occupation of New Guinea. In 1944 the Minister for Territories or a person authorized by him was empowered to open a register in lieu of a register which had been lost or destroyed and to make entries therein as if it were the original register. Later, in 1950, the Lost Registers Ordinance was made which enabled this register to be kept by an officer appointed by the Administrator.

In 1951 the New Guinea Land Titles Restoration Ordinance was made. Its full title is “An Ordinance to provide for the compilation of new Registers and Official Records relating to Land, Mining and Forestry in the Territory of New Guinea in place of those lost or destroyed during the Japanese invasion of that Territory, and for other purposes.” It came into operation on the 1st November, 1951, and set up a comprehensive system for the compilation of the registers which it covers. The register book previously kept under the Lands Registration Ordinance was one of these. By s. 6 provision is made for the appointment of a Commissioner of Titles who is not to be appointed unless he is or is qualified to be appointed a judge of the Supreme Court, and he is given the same protection and immunities as a judge of that court. By s. 8, the Commissioner is directed to make or cause to be made such enquiries or hold such hearings as he deems necessary or convenient for the purposes of the Ordinance.

Part III is headed “Establishment of Interests and Compilation of New Registers”. Sections 9 and 10 deal with the making of a claim and are as follows:

N2>9.       A person claiming to have been entitled as at the appointed date:

(a)      to an interest in land; and

(b)      to be registered or entered in a lost register as the owner of or the person entitled to that interest (whether or not he was, before the loss or destruction of that register, so registered or entered),

may make a claim in respect of that interest.

N2>10.     For the purposes of the last preceding section, a person shall be deemed to have been entitled to be registered or entered in a lost register as the owner of or the person entitled to an interest in land if he would have been so entitled, but for-

(a)      the destruction or loss of any register (including the Land Register (i.e. the German “Grundbuch”)), record, certificate or document;

(b)      the informal nature of a document, or a misdescription in a document; or

(c)      the failure of some other person to execute a document which the first-mentioned person is in equity entitled to have executed.

By s. 13 where the Director of Native Affairs is entitled to make a claim in respect of an interest in land vested in him for the benefit or on behalf of, or as trustee for, a native or native community, he is to take all proper steps to establish that the interest was vested in him and the Administration is directed to give him all necessary assistance (s. 15). Section 16 directs the Commissioner to investigate, hear and determine all claims, objections, references and applications in respect of land before making a final order relating to it.

A date was appointed by reference to which any claimant to be registered or entered in a lost register was to establish his claim. This was fixed by the Administrator to be the 10th January, 1952. The Administrator was directed to cause to be published four times within six months after this date throughout the Commonwealth and its Territories a notice specifying a date not later than which claims must be made and this date was to be not less than nine months after the appointed date (s. 25). Provision is made for the making of claims and their registration and the Commissioner is given power to require claimants to furnish him with such information as he requires. In simple cases where only one parcel of land is involved and proof is forthcoming that there had been an actual entry in the lost register in relation to that land, the Registrar of Titles is empowered to make a provisional order without a hearing (s. 31). In all other cases the Commissioner is empowered, after considering all the available information, to make a provisional order (s. 33). After the making of the provisional order the Commissioner is directed to cause to be published each month in the Commonwealth Gazette and in the Territory Gazette a notice containing a list of all provisional orders made during the month and specifying a date not less than three months after the date of the publication of the notice, as the date by which objections to the provisional orders may be lodged. He is also directed within fourteen days after the publication of such a notice in the Commonwealth Gazette to cause a copy of the relevant portion of the Gazette to be served on a number of persons, including the claimant, the Director, the occupier of the land and any person, who in his opinion ought to be notified (s. 34). The Director, on receipt of such a notice has to himself post notices and cause enquiries to be made as to whether there are any native rights claimed over the land in question, and if there are any such, he is directed to refer the question of these rights to the Commissioner (ss. 35 and 36). The Commissioner is forbidden to make any final order in respect of any land until the question of native customary rights has been referred to him or a certificate has been furnished by the Director that to the best of his knowledge and belief no native or native community was, or asserts that he or it was, at the appointed date, entitled to any customary rights in respect of the subject land (s. 37). At any hearing or proceedings under the Ordinance the Director is directed to present the case for the native or native community and arrange such legal or other representation as he considers necessary (s. 38). It will be seen that the same degree of regard for native rights to land is displayed in this Ordinance as was shown in the earlier Ordinances with which I have dealt above.

By s. 67, Division 2 of Part III, of the Lands Registration Ordinance is repealed. This division included all the sections dealing with the Registrar’s power and duty to bring land appearing on the land register and Administration land under the Ordinance. However, s. 67 (3) enacted that for the purposes of the Restoration Ordinance, a person shall be deemed to have been entitled, at the appointed date, to an interest in land, and to be entered or registered in a lost register as the owner of, or person entitled to, that interest if, in the opinion of the Commissioner, he would have been so entitled if:

N2>(a)      the provisions repealed by the section had remained in force;

N2>(b)      no relevant document or register had been lost or destroyed; and

N2>(c)      The procedure prescribed by those provisions had, before the appointed date, been completely applied in relation to that land.

Mr. Lalor’s primary submission, on behalf of the appellants, was that the Commissioner of Titles had no jurisdiction to hear and determine the application by the Administration to be registered, and by this he meant no jurisdiction to enter upon a consideration of the matter at all. This was so, he said, because the purpose of the Restoration Ordinance is solely to reconstruct the register as it was prior to its loss or destruction, and to include in it such dealings with land, in relation to which a duplicate certificate of title had been bound in it, as took place up to the appointed date (10th January, 1952). Accordingly, the Ordinance, so he argued, does not provide for either claims by, or registration of, persons who were not on the destroyed register. The Administration’s only entitlement was to be entered in the Index of Unregistered Administration Lands, under 43a of the Lands Registration Ordinance and s. 59 of the Restoration Ordinance. Registration in this Index itself conveyed no right of registration in the register book. He submitted that those persons who, although they might claim an interest in the land, were not registered in respect thereof and were unable to establish as at the appointed date that they would have been entitled to be registered, are excluded as claimants.

Mr. Lalor’s argument related to the whole of the land the subject of this appeal. I think I should first deal with two portions of the land which were covered by the Commissioner’s final order.

The first of these is that portion of the land which was formerly known as Vulcan Island. Although not at any time specifically referred to in the Commissioner’s order, this area of land is obviously included in it. As early as 28th February, 1931, the Registrar of Titles gave notice of his intention to bring the land known as Vulcan Island, comprising some 78 hectares 28 ares, under the Lands Registration Ordinance, prepared a draft certificate of title and called for objections to such registration (see Exhibit L). On the 16th March of the same year, the Commissioner of Native Affairs (the Director) gave the statutory notice required by s. 22 of the Lands Registration Ordinance (see Exhibit M). From the statistics tendered by Mr. Clay, who appeared for the Respondent Administration, and the analysis thereof (Exhibit J) it appears that from the period 1924, when the Lands Registration Ordinance came into operation, until 30th June, 1940, 1,286 draft certificates of title were published, whilst of these 1,170 had matured into registration. So that the chance of the 1931 draft certificate of title having found its way into the register book was approximately 91%. Evidence I heard at Rabaul indicated that in about 1937 Vulcan Island was regarded as a Government leper station. I think the probability very strong indeed that the Administration had become registered as the owner of this land, and that the certificate of title had issued, and I would so hold. Accordingly, as far as this particular area of land is concerned, Mr. Lalor’s argument can have no application. The existence of this land, for which I am satisfied a certificate of title would have issued, may raise considerable practical difficulties in the ultimate disposition of this appeal but I shall revert to these difficulties at a later stage.

The next portion of land is that of which the Commissioner declared the Director to be entitled to registration as the owner. Mr. Lalor argued that as the Director had made no claim in the present case and since it had not been suggested that he was registered as trustee in the lost Register the decision of the Commissioner was beyond his jurisdiction. It is clear that the Director made no claim, although he did refer the question of the rights of the Latlat villagers in the subject land to the Commissioner. In my opinion there could have been no basis in fact for his making a claim. The Lands Registration Ordinance and the register book established thereunder did not exist to allow a Torrens title to be established in respect of native land. True it is that the Administrator could reserve Administration land for native reserves, or could acquire or resume land from (inter alia) native owners for such a purpose (see ss. 68 and 69 of the Land Ordinance), and provision existed in the Lands Registration Ordinance for the Director to be registered as owner/trustee of such land (s. 15). But none of these steps had been taken before the appointed date and I cannot see how under the guise of compiling a new register in place of the old the Commissioner could establish an interest in the Director when there was no suggestion that such an interest existed or was even in the course of being brought into existence before the loss or destruction of the register. It is clear that the natives themselves could not seek to establish any title under the Restoration Ordinance because the definition of “interest in land” contained in s. 4 thereof excludes the establishment of native rights as registerable.

Mr. Clay agreed with Mr. Lalor’s contention and indeed supported it because he wished to contend that this portion of the land should have been included in the Commissioner’s final order in favour of the Administration. I did not understand Mr. Quinlivan, who appeared for the Director, to really contest this joint contention. I therefore hold that the Commissioner had no jurisdiction to enter upon a consideration of the right of the Director to be registered and that this part of his order must be discharged.

With regard to the remainder of the land I assume, for the moment, without deciding, that neither the Administration nor the Registrar of Titles had taken any formal steps under s. 42 (2) of the Lands Registration Ordinance to bring this land under the Ordinance, so that the question is: Is the Commissioner of Titles now in effect entitled to do what, on the face of it, the Registrar was directed to do by that section?

Mr. Lalor says he is not and that, as no registered title existed before the loss or destruction of the register, the Commissioner had no power to bring one into existence. I should note that in the claim lodged in 1956 the Administration did not make any claim to have been registered in the register book as proprietor. Mr. Lalor went further and disputed the Administration’s right to ownership of the subject land, but I can more conveniently deal with his argument on this aspect when I come to the consideration of the second branch of the case.

In support of his argument Mr. Lalor relied strongly on what was said by their Honours of the High Court in Custodian of Expropriated Property and Ors. v. Tedep and Ors.[ccxxxviii]¹ The first passage he relied upon was at p. 348, where their Honours, referring to the Restoration Ordinance, said:

“Its long title is ‘An Ordinance to provide for the compilation of new Registers and Official Records relating to Land, Mining and Forestry in the Territory of New Guinea in the place of those lost or destroyed during the Japanese invasion of that Territory’, and it is about as clear as it could be that what the Ordinance proceeds to do is to provide machinery for the restoration and replacement of the destroyed registers. The registers were destroyed in 1942 and the Ordinance, enacted in 1951, makes provision for the fixing of a critical time - ‘the appointed date’ - for the examination of a claimant’s right to registration. The appointed date was, as already appears, specified as 10th January 1952, and the persons who were permitted to make a claim under the Ordinance were those who claimed to have been entitled as at 10th January 1952 - ‘(a) to an interest in land; and (b) to be registered or entered in a lost register as the owner of or the person entitled to that interest (whether or not he was, before the loss or destruction of that register, so registered or entered)’. This description embraces those who had, in fact, been registered in the destroyed register and who had not dealt with the land in the period of ten years between the destruction of the registers and the appointed date. It also included persons who had not been so registered but who would have been entitled to registration but for the destruction of the register, the informal nature of, or a misdescription in, a document or the failure of some other person to execute a document which the claimant was entitled in equity to have executed (s. 10). Claims were thus limited to those persons who could show that on the appointed day they would have had a right to be registered if the register had not been destroyed. There are, therefore, excluded as claimants those persons who although they might claim an interest in land, were not registered in respect thereof and were unable to establish that as at the appointed date, they would have been entitled to be registered in the ‘lost register’. This is a clear indication that what was intended was the replacement of the lost registers in a condition in which it was presumed they would have been had they not been destroyed, and not the preparation of new and different registers giving effect to claims by persons who were unable to establish a right to registration accruing before the appointed date.”

and also a passage at p. 349, where it was said:

“It is apparent from these provisions that in order to succeed a claimant must establish, in effect, a right to registration originating either in actual registration in the destroyed registers or in some relevant dealing.”

But as Mr. Clay pointed out the High Court was considering a set of facts far removed from the facts of this case. In the case before it the claimant was able to prove conclusively that a duplicate certificate of title had been issued and the court was really considering the question whether in the absence of the actual document it could go beyond the fact of registration and investigate the previously registered owner’s right to registration. At no stage did it have to consider the case of unregistered land interests. Although Mr. Clay faintly argued that it was open to me to hold that a certificate of title had been issued to the Vulcan land he did not really press the point and I am not prepared so to hold. Apart from the documents and notices concerning Vulcan Island and the proclamation with respect to the Vulcan land under s. 11 of the Land Ordinance, there was no oral or documentary evidence whatever of any relevant dealing with the land or of the preparation of any documents leading to registration. I do not think that the decision of the High Court deals with the matters in issue in this case, nor that it precludes me from coming to my own conclusions on the arguments addressed to me.

Mr. Clay’s submission was that in making a final order under s.42 (1) of the Restoration Ordinance, the Commissioner must declare the claimant to be entitled to be registered or entered in a lost register as the owner of or a person entitled to the interest claimed whenever the claimant satisfies him that, although the interest may not have been registered before the destruction of the register, he would have been entitled at the appointed date to be registered as the owner of, or the person entitled to, the interest, had (a) ss. 16-43 of the Lands Registration Ordinance remained in force; (b) no relevant document or register been lost or destroyed; and (c) the procedure of the repealed provisions been completely applied in relation to the land.

I was impressed by a number of matters urged upon me by Mr. Clay, which he submitted showed that unregistered interests in land were intended to be covered by the Registration Ordinance. The more important ones were (a) the use of the phrase “to be registered or entered in a lost register”, appearing in both ss. 9 and 10. In Mr. Clay’s submission the word “registered” refers to initial registration and the word “entered” to the process of entry as a memorial as used in s. 59 (2) of the Lands Registration Ordinance; (b) the use of the words “and for other purposes”, in the long title of the Ordinance. It was unnecessary to consider these words in Tedep’s case[ccxxxix]² and his submission was that such purposes could and should include the limited replacement of the repealed provisions of the Lands Registration Ordinance. The Restoration Ordinance came into operation on the 1st November, 1951, and after this date there was no provision for initial registration of title to land formerly alienated. Section 67 (3) enabled initial registration to proceed under the other provisions of the Ordinance; (c) his submission that s. 5 (a) of the Restoration Ordinance would be superfluous if the whole scope of the Ordinance were confined to interests registered before the destruction of the register. In the case of a grant made after 1945 the grantee could not be on the destroyed register; (d) his submission that if unregistered interests were not in contemplation, the reference to the land register in s. 10 (a) would be unnecessary, because if a person were registered pre-war nothing in the land register could affect that registration because of the effect of the provisions of ss. 57 and 68 of the Lands Registration Ordinance. This, he said, was made abundantly clear by the decision of the High Court in Tedep’s case[ccxl]³. By deeming the land register to be preserved, s. 10 presupposes that its destruction could affect a claimant in some way and therefore that a certificate of title may never have been issued; (e) further he submitted that s. 31 (1)(b) of the Restoration Ordinance would be superfluous if only registered interests were intended to be covered by it. But I think his most compelling argument was based on the presence of s. 67 (3). By s. 67 (1) the registration provisions for freeholds already alienated, or in process of alienation, contained in the Lands Registration Ordinance were repealed and as the Ordinance came into operation on the 1st November, 1951, they were repealed as from that date. The critical date at or by which claimants had to establish their interest was 10th January, 1952, and any supposed entitlement to registration arising after that time could not be established by reference to the provisions of this Ordinance.

In my view s. 67 (3)(c) could have no other purpose than to enable the Commissioner to consider applications for initial registration of title. Section 10 itself could not help a person making such an application, and had s. 67 (3)(c) not been enacted, despite the other indications of legislative intention, to which Mr. Clay referred me, Mr. Lalor’s argument may well have succeeded.

Looking at the Restoration Ordinance as a whole, in conjunction with the Lands Registration Ordinance, it seems to me that a purpose of the Commonwealth Executive was to relieve the Registrar of Titles of what could be an almost interminable task in finding out of his own motion who in the post-war period was claiming or interested in claiming to be registered as the owner of freehold land in the Territory of New Guinea, and to furnish the post-war Administration of the joint Territories of Papua and New Guinea with a starting point on which to base any land policy which it would eventually have to formulate. For that purpose, as confusion could well exist in fact and in law, the Executive made provision for a Commissioner of Titles of judicial standing to sort out what could well have been, and in fact in many cases was, a series of difficult situations. Although it was argued strongly by Mr. Lalor, that the policy as disclosed by the Ordinance was to abolish freehold title, this, in my opinion, is not the case. Division 1 of Part III of the Lands Registration Ordinance was left untouched and this division provided for future grants in fee of Administration land. Similarly, the provisions for the register book and future registration were left unaltered. In my opinion the intention was that instead of all lands on the old land register being automatically brought under the Ordinance, it was to be left to those who were anxious to assert a claim to make out their claim. In theory at any rate this should have relieved the Administration of a considerable administrative load. At the same time the policy was clearly evident of fully protecting native rights and interests and an elaborate set of provisions was enacted to ensure this protection.

When the draftsman had dealt with the repealed provisions in s. 67 (1), he then had to consider any qualifications required by the Executive Council to those provisions. In s. 67 (2) he preserved s. 41 of the Lands Registration Ordinance by re-enacting it as s. 189a and in s. 67 (3) he preserved the repealed provisions but in quite a limited way-that is they are to be considered by the Commissioner in applications made before him, but are to have no further or other operation. For my part I find the way he has gone about this task creates difficulty, as will be apparent when I come to consider Mr. Lalor’s next argument, but I agree with Mr. Clay that s. 67 (3)(c) can only be explained on the basis that it was envisaged that the procedure prescribed by the repealed provisions might not have been completed or even begun for some land the subject of claims before the Commissioner. Those provisions, of course, all refer to initial registration.

Mr. Lalor submitted that the “purposes of this Ordinance” referred to in s. 67 (3) must be established aliunde from the earlier part of the legislation and not by a circular process from the section itself, but, in my view, the whole Ordinance must be looked at to determine its purposes and s. 67 contains an important guide to these purposes.

Mr. Lalor’s final argument was that the Commissioner is an administrative officer and that his sole function is to decide upon a question of fact - that is the fact of registration or non-registration. He would not need the powers of a court, he said, and has not been given these powers and, consequently, could not investigate questions of title or right to title which may involve the adjudication on competing legal rights. I do not agree with this argument. From a perusal of the whole Ordinance it is clear that the Commissioner is to be of judicial status, if not actually a judge of the Supreme Court. He is given the same power to punish contempts as is the Supreme Court, he is to act judicially and, without analysing the various sections of the Ordinance in detail, in my view he is to determine both questions of fact and of law, subject, of course, to his liability to state a case, and the right of appeal to the Supreme Court.

For the foregoing reasons, I hold that the Commissioner had jurisdiction to conduct the hearing of the Administration’s claim, although, as I have earlier stated, he did not have jurisdiction to consider what he took to be a claim by the Director to registration in respect of the native reserve which he defined. It follows, by virtue of the provisions of s. 56 of the Restoration Ordinance, that I have the same jurisdiction.

I now turn to consider whether a Final Order should be made in favour of the Administration. Mr. Clay, who on this rehearing I suppose must be regarded, although not the appellant, as the real applicant, says that it should, both in respect of what was formerly Vulcan Island and of the new land. And he says that it should because the claim of the Administration to an interest in the land at the appointed date should be upheld and it was entitled at that date to be registered in the register book as the owner of or the person entitled to that interest.

I have already dealt with what was formerly Vulcan Island itself and leave it out of consideration until I come to such final order as I may make. What has now to be looked at is the new land surrounding the former island and extending to and completely changing the conformation of the former shoreline. Mr. Lalor attacked the existence of this interest asserted by Mr. Clay and submitted that the proclamation of November, 1937, was wrongly made, that it was void and of no effect and that the Administration never became entitled to any interest in the land. Mr. Clay to the contrary submitted that the proclamation on its face complied with all the requirements of s. 11 of the Land Ordinance, that its making and publication operated to vest the land in the Administration and that this court could not go behind it and question its validity. In support of his submission he relied on dicta of Isaacs and Rich JJ. in Criterion Theatres Ltd. v. Municipal Council of Sydney[ccxli]⁴ and on the decision of Roper C.J. in Eq. in Motor Wheel and Tyre Co. Ltd. v. Commissioner for Railways and Another[ccxlii]⁵. The question posed by the learned judge in the latter case was whether the court could go behind the fact that the formal requirements for statutory vesting had been complied with and enquire into the question whether under the provisions of the relevant Act the notification was rightly published. With some doubt he came to the conclusion that it could not. Relying on the dicta of Isaacs and Rich JJ. in Criterion Theatres Ltd. v. Municipal Council of Sydney[ccxliii]⁶, he took the view that if the formal conditions for vesting were present, the vesting took place by force of the Act and the court could not canvass the matter. This was so despite the view he took on the facts, that the actual purpose for which land was resumed was not within the purposes authorized by the relevant legislation. The statutory notice by force of which the vesting took place set out an authorized purpose and that was the end of the matter. So in this case, Mr. Clay submitted, the Administrator having declared in the proclamation that there appeared to be no owner of the subject land, the court could not go behind his assertion and enquire into its validity and thus into the legal effect of the proclamation. Mr. Clay also sought to draw support from such cases as Blakeley and Co. Pty. Ltd. v. The Commonwealth[ccxliv]⁷ and Jones v. The Commonwealth[ccxlv]⁸. These cases he said showed that all the court could do was to examine the declared purpose of resumption to see whether such a purpose was one authorized by the legislation, but it could not go further and enquire into the bona fides of the declarer - that is into the truth of the assertion that the purpose declared was the purpose for which the resumed land was actually required. The Administrator’s declaration in this case that the land appeared to have no owner was, he said, in the same category as the declaration of a purpose contained in the statutory notices under review in the above cases. In Blakeley and Co. v. The Commonwealth[ccxlvi]⁹, the court was considering the conclusiveness of a notification of acquisition of land by the Governor-General under the Land Acquisition Act 1906-1936. Provision was made under that Act for the disallowance of the acquisition by Parliament. It was held by the High Court that the statement of purpose by the Governor-General in the notification was conclusive. But in Baiada v. Baulkham Hills Shire Council and Another[ccxlvii]¹⁰ the High Court held that unless a resumption of land by a local government council in New South Wales is in truth for a purpose or purposes of the Local Government Act 1919-1950 (New South Wales) the publication in the Government Gazette of notification that the land has been resumed (and which operates to vest the land in the council) is not conclusive. In that case the plaintiff sought to negative the existence in fact of the requisite purpose, and the court remitted the cause to the Supreme Court in Equity to allow the plaintiff’s allegations to be tried. Both in that case and in Howarth v. McMahon[ccxlviii]¹¹ the High Court distinguished Motor Wheel and Tyre Co. Ltd. v. Commissioner for Railways and Another[ccxlix]¹² on the ground that in the latter case the whole question came within ss. 42 and 43 of the Public Works Act 1912 (New South Wales). In the cases before the High Court that Act did not apply until it was drawn in by a proper use of the Local Government Act. Counsel for the respondent in Howarth v. McMahon[ccl]¹³ had argued that the Motor Wheel case was wrongly decided, but the court refused to express any opinion as to its correctness. For myself I find it difficult to see why, if the court could go behind the purpose in the local government cases it could not do so in the Motor Wheel case[ccli]¹⁴, for in each of these cases the acquisition was permitted only for an authorized purpose. In Blakeley and Co. Pty. Ltd. v. The Commonwealth[cclii]¹⁵ counsel for the Commonwealth argued that there was a distinction between the act of the Governor-General and the act of an administrative board or minister, and the distinction was that the court would take what the Governor-General said as being accurate. He is the Crown and although the court will examine the bona fides of municipal councils it will not examine the bona fides of the Crown itself. The court (at p. 521) in effect agreed with this submission. This seems to me to be quite different from putting beyond examination an opinion formed by the Administrator of a Mandated Territory.

In considering the relevance of the foregoing cases I must now enter into a more detailed examination of s. 11 of the Land Ordinance. It enables the Administrator to declare that any land which has never been alienated by the Administration and of which there appears to be no owner shall become Administration land unless good cause be shown to the contrary, within the period to be specified in the proclamation containing the declaration. During the course of argument a good deal of time was devoted to the meaning of the word “owner” in this context, and in my opinion the proper interpretation of that word is relevant to the question now being considered.

The Land Ordinance was drafted in Australia and I would think that the draftsman would have had English notions of ownership in mind. But in English law the words “own” and “ownership” in relation to land are fraught with difficulty. As Mr. Megarry points out at p. 959 of his Law of Real Property, 2nd ed., 1959, “although the person with the best ascertained right to possession is often called the ‘absolute owner’ it is clear that English law knows no abstract ‘ownership’ as opposed to the right to recover possession, unless perhaps the Crown’s universal seignorial rights should be so classified”, and as he earlier states, “the basis of English land law is that all land in England is owned by the Crown, a small part being in the Crown’s actual occupation, the rest in the possession of tenants holding either directly or indirectly from the Crown”. Holdsworth takes the view that English law reached the concept of ownership as an absolute right through developments in the law of possession. Professor Paton in his Textbook of Jurisprudence concludes that in English law there is no absolute ownership in the Roman law sense of “dominium”, but one looks at ownership as a collection of rights, these being:

N2>(a)      the power of enjoyment (e.g., the determination of the use to which the res is to be put, the power to deal with produce at will, the power to destroy),

N2>(b)      possession, which includes the right to exclude others,

N2>(c)      power to alienate inter vivos or charge as security,

N2>(d)      power to leave the res by will,

but no owner in effect ever possesses all of these rights. Again, English land law primarily considers the rights of an individual to own.

This English concept of ownership is very different from the Nigerian concept for example. See Amodu Tijani v. The Secretary Southern Nigeria[ccliii]¹⁶ and Adeyinka Oyekan and Others v. Musendiku Adele[ccliv]¹⁷, where effect was given by their Lordships of the Privy Council to interests recognized by native law and to the customary law applicable in Lagos that no one man was entitled to own a piece of land absolutely. It was family land in perpetuity and always recognized as such. As was pointed out in the latter case many grants of such land were made in the English form and much misunderstanding had arisen on that account. Dr. T. O. Elias, in his book on Nigerian Land Law and Custom, 3rd ed., 1960, pp. 92 et seq., explains that generally under the customary laws in Nigeria there is no ownership of land in the sense in which the term is originally employed in English law. The relation between the group and the land they hold is invariably complex, since the rights of the individual and the group to the piece of land often co-exist within the same social context. He goes on to say that in Nigeria under the customary law of tenure there is no conception of landholding comparable with a fee simple absolute in possession. The Nigerian conceptions seem to me to be more applicable to the situation in New Guinea - at least as it was when the Land Ordinance was made. With the overriding intention of the legislature to protect native rights in mind, in my view the word “owner” should be interpreted in the light of the conditions existing in the Territory at the time of the making of the Ordinance - that is it must mean the person or group of persons or the community, which, according to the area and custom concerned, has the right to use the land and exclude others therefrom.

Must it be thought then that the decision on the question of land appearing to be without such an owner was to be left solely to the Administrator in a Territory where one of the first institutions established was a court named the Central Court but having all the powers of a Supreme Court? Section 11 of the Land Ordinance empowered the Administrator to make his proclamation which would, if no objections were received within the time limited, ipso jure vest the land in the Administration. The land of course had to appear to be without an owner. This Ordinance was made by the Governor-General in Council in May, 1922, just a year after the Commonwealth of Australia took over administration of the Territory. Administration influence was then confined to areas around Rabaul and the adjacent coastline, Kavieng, Kieta and a few areas on the New Guinea mainland. Very little exploration work had been done and only a fraction of the Mandated Territory could be said to be under control. Little or nothing was known about tribal usages or customs outside the very small areas which could be said to be controlled. Mistakes could very easily be made in assuming that land was, or appeared to be without an owner. Furthermore, a single publication in the English language in the Territory Gazette in 1922 proclaiming land to be apparently ownerless could not possibly be even read let alone understood by the vast majority of the native population of the Territory. By s. 12 of the Land Ordinance the Administrator was empowered to establish a land board to decide questions of waste and vacant land, whose decisions were subject to appeal to the court. This he never did, nor do I think he could have been compelled to do so. But I cannot think that his decision as to the ownerless appearance of land was to be unexaminable and in my opinion the general purport and structure of the New Guinea Ordinances is of so different a character to that in the cases relied upon that I would not regard them as compelling in the context of this case. In my opinion Mr. Lalor was right in his contention that both the Commissioner and this court are entitled to enquire into the validity of the proclamation, and so to the Administrator’s interest in the subject land. I find some support for this view in the existence of s. 13 of the Lands Registration Ordinance, empowering the Registrar to state any question of law in a special case for the opinion of the court.

I must then ask myself the question whether the making of the proclamation in November, 1937, can be successfully attacked. At this point I think it desirable to analyze a little more closely than I have already done the position in fact and in law as I see it in May, 1937, just prior to the eruption. I think the probability is that no alienation made in German times affected any of the shoreline facing Vulcan Island. I am satisfied that “amatonois” existed along the whole length of the shore between Valaua and Keravia, and that the whole of the reef area was claimed to belong to one amatonoi or another. Full use was made of these reefs both for coral collection and for fishing and as was said as early as 1923 by officers of the Department of Native Affairs, reefs are regarded as land and can be shared out amongst the villagers (see Annual Report on Territory of New Guinea 1922-23, p. 6). The Kuanua word for “own” was on several occasions used by the witnesses as to native custom in describing to me the type of right asserted by the “alualua” of the “vunatarai” over these reefs. The reefs probably extended almost to the island itself and I think it unlikely that either the prohibition contained in the Quarantine Proclamation as to approaching the island or the assertion of an Administration right to an area of two cables radius from the island were ever adverted to by the native people. There was nothing in the argument before me to lead me to think that the German government asserted any sovereignty over the area of sand and reef below high water mark, and there was no allegation of any sovereignty or ownership in the Crown at common law over this area, nor do I think there could have been. That brings me to the question of what was the nature of the ownership (if any) by native custom. Mr. Lalor asserted that there was ample proof that this land was owned by native custom and that the Commissioner should have so held. The basis of customary law, he said, is that you have an area in which there are certain rules of conduct and rules governing the acquisition and retention of rights of different kinds, both in real and personal, moveable and immoveable property. What it is that gives these rules their force in such a society is the acceptance by the community in that area of those rules. See Elko v. Officer Administering the Government of Nigeria[cclv]¹⁸. With regard to the proof or the judicial ascertainment of such law he referred me to Essays in African Law by Anthony Allott, published by Butterworth and Company in 1960, and to Angu v. Attah[cclvi]¹⁹, where their Lordships of the Privy Council laid it down that “as is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs, until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them”. With all this I agree, but the basic problem in this case is the content of the custom, or to put it more specifically, what is meant by saying that the “vunatarais” owned the reef area. As Mr. Clay argued, all that the evidence showed was that each “vunatarai” asserted a right to exclude others from the area of shore and sea within its boundaries and to two or three types of products found in that area, i.e. coral, fish which could be caught in various types of traps, and shell fish. This, he said, did no more than show that the native communities had possessory rights and there was no occasion to assert rights to the seabed or to the land below the seabed. Mr. Lalor on the other hand argued that the Tolai people were a practical people not given to conceptualizing, but if any one of them were asked who owned such and such an area of sea or reef, the immediate answer would be “I do” or “My vunatarai does”. Giving the matter the best consideration that I can, I take the view that for all practical purposes the vunatarai owned the reefs and the intervening area between high water mark and these reefs, but I cannot feel that by native custom the concept of ownership would go beyond that of the right to use this area for such purposes as the community could then envisage.

What then is the position when the post-eruption survivors from this area fled to the hills and new land rose up in place of what had formerly been the seabed? I am satisfied that prior to the 9th November, 1937 (the date of the proclamation) and indeed prior to 15th February, 1938, very few of the Latlat villagers had set foot on this land. There may have been one or two coming down to try and identify their old village areas, to see whether the new land was suitable for cultivation and to mark out new village areas, but I am satisfied that by the latter date there had not been any settlement or occupation at all in the area. This would have been the situation facing the Administrator and his staff. Was this new land owned in any relevant sense? I do not think that at this stage recourse to native custom could be of any avail. There was no evidence before me of any custom covering suddenly appearing land of this nature. No doubt a custom would soon have been decided upon; indeed the already existing customs which were put before me in evidence (Notes on Tolai Land Law and Custom compiled by Mr. Smith and Dr. R. F. Salisbury) would provide for the ownership of this land when occupied. That is, on occupation the land would belong to the “vunatarais” of the occupiers. But the difficulty lies in my inability to be satisfied that there was any occupation at the date of the proclamation. I cannot be satisfied that the custom existing prior to the eruption covered or even envisaged such a situation as this.

I think it understandable in the situation which faced the Administrator in the months following the eruption that he or his advisers should regard the new land as being apparently without an owner, and I could not hold that there was no basis upon which the Administrator could make the proclamation. On this view the proclamation at the time of its making was properly made. What would have been the position if it had been made later when the land was occupied by the returning Latlat villagers is another matter.

Some argument was directed to the identity of the person to whom it should appear that there was no owner of the land. In my view it must appear to the Administrator, assuming that he has been properly advised by his advisers. In any event I could not find that in the circumstances existing in November, 1937, it must have appeared to any person that the newly arisen land had an owner. As there was no evidence before me that the proclamation was ever revoked and as far as I know it has never been declared invalid, it follows that the land to which it refers has, since the 15th February, 1938, been Administration land. I need not spend time considering the nature of the Administration’s ownership. Fee simple seems an inapposite description, but I would be prepared to regard the Administration as having the absolute right to possession of the land. Accordingly I consider that the claim of the Administration to an interest in this land has been made out.

I next have to consider whether the Administration would have been entitled, at the appointed date, to be registered in the register book as the owner of or the person entitled to the ownership of the Vulcan land if ss. 16 to 43 of the Lands Registration Ordinance remained in force, if the register book and the Index of Unregistered Lands had not been lost or destroyed, and the procedure prescribed by those sections had been completely applied.

Mr. Lalor submitted that the final order made by the Commissioner was not properly made by reason of the fact that he had not formed the opinion required under s. 67 (3) of the Land Titles Registration Ordinance, or if he had formed such an opinion it was based upon irrelevant considerations and without a proper understanding of the relevant law. He relied strongly on R. v. Connell[cclvii]²⁰ in support of this argument. I am inclined to think that his argument is sound and that the Commissioner had not directed his mind to the matters set out in s. 67 (3). This is not surprising because a perusal of the argument before him discloses that it proceeded on a very different basis from that before me, and a great deal of time was devoted to questions of sovereignty, radical title, common law rights of ownership in the seabed and possessory rights at common law. Mr. Clay, before me, did not rely on any radical title in the Administration or on any common law rights which it may be thought to have possessed, nor on any question of sovereignty, and in my view he was right in not relying on nor arguing these matters. However I do not think that I need take time to further consider the correctness of the Commissioner’s reasons became this appeal is by way of a complete re-hearing and the court by s. 56 of the Restoration Ordinance is empowered to make any order or to exercise any jurisdiction, power or authority, which the Commissioner could have made or exercised and may discharge or vary the final order or part of the final order as is appealed against. In my opinion the court must place itself in the position of the Commissioner and form its own opinion of the nature required by s. 67 (3).

The vital question is what was the procedure prescribed? The land set out in the proclamation was clearly land which had become Administration land under the provisions of an Ordinance and so within s. 42 (2) of the Lands Registration Ordinance. On first glance, s. 42 (2) would seem to contain its own complete procedure, and so Mr. Clay argued. For this sub-section to have operation, he said, four conditions had to be present:

N2>(1)      the land should have been acquired after the coming into operation of the Laws Repeal and Adopting Ordinance 1921. This followed from the provisions of s. 42 (1);

N2>(2)      the land should have become Administration land under the provisions of an Ordinance or law, and this land clearly had so become by virtue of s. 11 of the Land Ordinance and the proclamation made thereunder;

N2>(3)      evidence should be produced to the Registrar of Titles, such evidence being deemed sufficient evidence of title by him; and

N2>(4)      a proper plan and description of the land should be lodged with the Registrar.

I must assume, said Mr. Clay, that the Registrar would act reasonably and responsibly. If a situation were reached that incontrovertible evidence of title were before him I must come to the conclusion that the Registrar would have deemed the evidence sufficient. And the production of the proclamation would have been such incontrovertible evidence. The Registrar could not have required the publication of Gazette notices under s. 21 (3) or s. 22 (a) of the Lands Registration Ordinance. He asked me to observe that the Gazette notices produced in evidence all related to acquisition by way of purchase and to conclude that there was no practice of requiring such notices in relation to land acquired by proclamation. But that does not seem to have been the view taken by the Registrar. Mr. Quinlivan, for the Director, who in his final argument supported Mr. Lalor’s contentions, drew my attention to a number of proclamations in which the Registrar, in the course of bringing land under the Ordinance, had followed the procedure set out in s. 21 (3). The proclamations made under s. 11 are set out in Volume III of the Laws of the Territory of New Guinea 1921-1945, pp. 2729 et seq. By consent, copies of a number of notices in the Government Gazette were tendered and I accepted these copies as evidence of their contents.

On the 9th April, 1925, certain land in the Baining area, of which there appeared to be no owner, was proclaimed to become Crown land unless good cause to the contrary were shown on or before the 30th April, 1925. In the Government Gazette of the 31st December, 1928, the Registrar of Titles purporting to act pursuant to s. 21 (3) of the Lands Registration Ordinance gave notice of his intention to register this land, of the fact that draft certificates of title could be inspected at his office and notifying that any person objecting to the registration in terms of the draft certificates should send to his office a caveat on or before the 21st March, 1929. In the New Guinea Gazette of the 15th January, 1929, one H. C. Cardew, the then Commissioner for Native Affairs, gave notice that he had been served by the Registrar with draft certificates of title covering this land and calling for claims of natives or native communities to rights over the land within three months after the date of the publication of his notice. The land was shown as being entered in the Index of Unregistered Administration Lands (see Exhibit D.D.A. 4). Again, the Administrator issued a proclamation in respect of apparently ownerless land near Toma in New Britain on 9th April, 1925, the Registrar of Titles gave notice in the New Guinea Gazette of the 15th December, 1931, of his intention to register this land and the acting Commissioner of Native Affairs called for claims of natives or native communities in respect thereof on the 15th January, 1932. This land had also been entered in the Index of Unregistered Administration Lands. A proclamation was issued in respect of two small islands in Rabaul harbour known as the “Beehives” on the 30th March, 1930, and in April, 1933, the Registrar of Titles gave notice in the Gazette of his intention to register and the Director of Native Affairs in May, 1933, called for any native claims. Again, in January, 1933, certain land at Wau was proclaimed under s. 11 and in June, 1934, the Registrar gave notice under s. 21 (3) of his intention to register and later the Director of Native Affairs called for claims of natives or native communities in respect of this land (D.D.A. 28). So it seems that the practice of the Registrar, despite the suggested conclusiveness of the proclamation, was to carry out the procedure laid down in s. 21 and to call for the assertion of any other interest in the land by the use of the caveat procedure. If a caveat were lodged, the Registrar was to apply to the court for directions and the court was given power to dispose of the matter. Unfortunately no evidence was able to be led before me as to whether in the instances I have cited, any native claims were dealt with, but it seems to me clear that both the Registrar and the Director envisaged that they could be.

I note that seventeen proclamations were published under s. 11, of which six were dealt with under the Lands Registration Ordinance in the way I have set out and in the case of a seventh, some months after the publication of the proclamation, the Administrator published a further proclamation disclaiming the interest of the Administration in the land which it covered. Of the six so dealt with, four were in well-populated areas of New Britain and two in or near the township of Wau. In each of the cases dealt with by the Registrar, some years had elapsed between the time of the making of the proclamation and the notice of his intention to bring this land under the Ordinance, but I am unable to say whether his failure to deal with the remaining proclamations was due to normal delay or a change in procedure. It may well have been that as no Land Board was ever appointed to enquire into questions of waste and vacant land it was thought administratively more convenient to have the land judge, who had been appointed in 1929, deal with all such cases and to use the procedure set out in Division 2 of Part III of the Lands Registration Ordinance as a means of obtaining a judicial decision, but there is no material before me to enable me to say that this was actually the case. However if, as I have come to the conclusion, the court could enquire into the validity of a proclamation, I see no reason why the Registrar, before being satisfied with the evidence of title produced to him, should not give any person he thought might be interested a chance to assert his interest before the court, using s. 13 of the Lands Registration Ordinance as authority.

The difficulty is that s. 42 (2) nowhere in terms empowers the Registrar to make use of the specific provisions directed to the bringing under the Ordinance of land which was alienated or in the process of alienation, when the Lands Registration Ordinance was made. It is obvious enough that if the Administration acquired such land by conveyance, or even by compulsory acquisition, those provisions would automatically apply because it was the type of land mentioned in ss. 16 and 17. The expression “such evidence as the Registrar deems sufficient” is very wide and as I have pointed out the Registrar himself had power to refer questions of law to the court and to seek judicial guidance as to what was sufficient. But although it may have been convenient and perhaps apt in the circumstances existing in the pre-war period, I cannot see how the procedure at one time apparently adopted can be said to have been “prescribed” by s. 42 (2), and there are no other provisions in any Ordinance prescribing a procedure. What I think I must consider is whether the Registrar should have deemed this proclamation (assuming it to be the only evidence of title to the subject land) sufficient to establish a right to register. Even if he were to adopt the procedure following upon advertisement under s. 21 (3) as the means of satisfying himself that the evidence of title of the Administration was sufficient, what could or should have been the result? As to what would have been the result I can only speculate. At the time of advertising the notice of intention to register, which, if delays in the other cases are any guide, may not have happened until 1940 or 1941, I am satisfied that a number of Latlats would have been in occupation of part of the land and asserted ownership according to their custom. If there had been no proclamation they would have had, in my view, a legally enforceable customary right to the land which could only have been displaced by a compulsory acquisition for a lawful public purpose and on payment of proper compensation. But if the question of native rights had been referred to the court I cannot see that the court could have decided that it could override or displace what I have held to be and what in my opinion a court prior to the 10th January, 1952, must have held to have been a validly made proclamation. By virtue of that proclamation the land had vested by law in the Administration. It may well be that in such a case the Administrator, on being satisfied that the land was occupied and generally required by the community occupying it, would have revoked his proclamation. I am inclined to think that the real situation was that from late 1939 onwards, with war looming, the situation with regard to this land was overlooked and no one gave any thought to clarifying the position.

On the material before me I have come with some regret to the conclusion that had the procedure prescribed been carried out the evidence of title before the Registrar should have been sufficient to satisfy him and assuming that a proper plan and description of the land had been submitted to him, the Administration would have been entitled to registration. I say with some regret because it seems unfortunate that the appellants and their communities have been allowed to occupy this land without, in my view, at least until 1956, having any knowledge that their right to use it was denied. At no stage in this case has there been any allegation that the land is required for a public purpose and I think it unfortunate that the existence of this proclamation should deprive the community of what would have been its rights by customary law.

In the result I am prepared to make a final order in favour of the Administration covering the whole of the land claimed. I propose to defer consideration of the actual terms of the order and will hear further argument as to the boundaries which should be adopted. It seems to me that the boundaries adopted by the Commissioner, including of course those of the land of which he had declared the Director to be entitled to registration, may be convenient boundaries to adopt but I think it better to give the parties the opportunity to make such further submissions to me as they may be advised.

Final Order to be made.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

Solicitor for the Director of District Administration: S. H. Johnson, Crown Solicitor.

[ccxxxviii](1964) 38 A.L.J.R. 344.

[ccxxxix](1964) 38 A.L.J.R. 344.

[ccxl](1964) 38 A.L.J.R. 344.

[ccxli](1925) 35 C.L.R. 555.

[ccxlii](1950) 50 S.R. (N.S.W.) 205.

[ccxliii][1925] HCA 9; (1925) 35 C.L.R. 555.

[ccxliv](1953) 87 C.L.R. 501.

[ccxlv](1963) 109 C.L.R. 475.

[ccxlvi](1953) 87 C.L.R. 501.

[ccxlvii](1951) 83 C.L.R. 344.

[ccxlviii](1951) 82 C.L.R. 422.

[ccxlix](1950) 50 S.R. (N.S.W.) 205.

[ccl](1951) 82 C.L.R. 422.

[ccli](1950) 50 S.R. (N.S.W.) 205.

[cclii](1953) 87 C.L.R. 501.

[ccliii][1921] 2 A.C. 399.

[ccliv][1957] 1 W.L.R. 876.

[cclv][1931] A.C. 662.

[cclvi]1916 Privy Council Judgments 1874-1928, p. 43.

[cclvii][1944] HCA 42; (1944) 69 C.L.R. 407.