Soape v Wesiki [1959] PGSC 18 (1 January 1959)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

PREPARATORY NOTE ON

SOAPE and Others of DOBU ISLAND
Appellant

v.

WESIKI and Others of MIADEBA
Respondent

1. The judgment in this appeal is attached for information.

2. The appeal was brought on the grounds that, in the Court for Native Matters at Esa'ala on Nomanby Island, Papua,

"the Magistrate exceeded his jurisdiction in finding that the islands of NEWADI and I-IADAUMA were the property of the MIADEBA Group and (2) that the Magistrate exceeded his jurisdiction in granting to (WESIKI and others of MIADEBA) exclusive user rights over the reef and islands of NEWADI and I-IADAUMA."

3. The application for leave to add and rely on certain further grounds shortly listed them as –

(a) the decision was against the evidence and the weight of the evidence;

(b) the Magistrate erred in law in holding that the owner hip of reefs in the vicinity of the mainland is governed by the ownership of the land on the mainland;

(c) the Magistrate erred in law in deciding that the date of effective ownership according to customary law was other than the date of establishment of the colony;

(d) the Magistrate erred in holding that despite the user rights exercised over the reef for many years by the Dobu Islanders they had no Permanent rights in the area;

(e) the Magistrate erred when he held that the rights of the Dobu people were subject to agreement by the Miadeba people;

(f) the Magistrate erred in holding that the discontinuance of residence by the Dobu Islanders at Miadeba constituted an abandonment of their reef rights in the area.

These further grounds (referred to in the second paragraph of the judgment) which were not added, and not argued (see the third paragraph of the judgment) give an indication of the facts sufficient for an understanding of the judgment.

4. Regulation 135 of the Native Regulations of Papua reads, inter alia:

"If the claim has anything to do with land, reef or water ....... the Court shall confine itself to deciding who has the right to occupy or use the land, reef or water ...... or who is entitled to the produce of some particular piece of land, reef or water but the Court has no power to decide the ownership of any land, reef or water."

W. A. Lalor for Appellant
E. J. Quinlivan for Despondent.

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IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

SOAPE of DOBU ISLAND
(and others of Dobu Is.)
Appellant

-v-

WESIKI of MIADEBA
(and others of Miadeba)
Respondent

REASONS.

Mann, C.J. at Port Moresby, 8^th April, 1960.

This is an appeal from a Court for Native matters sitting at Esa'ala. After hearing evidence the Court "granted" the Complainants exclusive user rights over a certain reef and islands.

Mr. Lalor, for the Appellant, besides relying on the stated grounds of appeal objecting to the jurisdiction of the Court for Native Matters, applied for leave to and and rely on certain further grounds, and asked that the appeal proceed as a re-hearing.

When the matter came before on April 1^st, I formed the impression that since the Magistrate had clearly paid precise attention to the wording of the Regulations, and had elicited evidence from both parties which clearly defined the scope of the dispute, the question of jurisdiction was raised on the record as precisely as it could well be raised. I accordingly directed that this ground should be argued first, so that the facts could be further investigated in whatever jurisdiction appeared appropriate, and to whatever extent appeared necessary upon an analysis of the Complaint made and the jurisdiction of the Court to hear such a Complaint.

The jurisdiction is prescribed by Regulations 132-135 of the Native Regulations (Papua). This jurisdiction is of course subject to the general restrictions set out in the Native Regulation Ordinance and in Regulations 3, 4 and 7. The purpose of the civil jurisdiction is indicated in Regulation 134. Subject to the directions expressed in the earlier regulations, a Magistrate has a discretion, but the "chief object the Magistrate should keep in view is to appease quarrels and disputes about property and rights, real or imaginary, and to prevent as much as possible the strong taking advantage of the weak".

In the light of this general statement, should be considered the express provisions of Sections 133 and 134. So far as material to the present case the latter prohibits "a claim to the ownership of land water or reef" being made the subject of a civil claim. The former Regulation includes as examples of civil claims "(b) Any claim by one person that he is entitled to the exclusive right to the use of any land water or reef." It should be noted that all civil claims are referred to as claims by one person against another."

The general impression to be gained from these provisions is that land ownership is not to be within the Court's jurisdiction, but that exclusive rights to use land are; subject to this, that they are rights of a kind which arise as between individual natives and not rights which may be claimed by uncertain classes or groups of natives at large. However, the simplified languages of the Regulations cannot be taken too broadly, for once any departure is made from what is precisely expressed by them, one is in a field of considerable difficulty, outside the problems which were meant to be dealt with in this jurisdiction.

The Magistrate was careful to limit his order to what was expressed in Regulation 133, but the Complaint upon which he proceeded alleged that the reef was the property of the Miadeba people. (Incidentally the Complaint does not expressly extend to the two islands mentioned, but this point if it stood alone could be met by amendment.) The Magistrate's award of rights of exclusive user was based upon the finding of fact that the reef was the property of the Miadeba people. The extent to which the reef had in fact been used was not sufficient to satisfy the Magistrate that the Miadeba people were in occupation, or that the Dobu people had any rights of a permanent nature. The finding of fact that the Miadeba people were the owners is therefore base on geographical considerations, it being offshore the place occupied by them. Although this conclusion is logical and convenient there is no inference of title in respect of neighbouring land and where title is to be inferred from possession, it must appear that the land is part of the area possessed.

It becomes clear therefore that the Court in order to grant the relief given has actually determined a complaint which directly involves an allegation of owner-ship of the reef, and the Court has no jurisdiction to entertain such a claim. The question arises however whether this Complaint might have been cured by amendment to limit it to a claim for rights of user, to accord with the form of relief granted. Having heard the able arguments of Counsel I am satisfied that in this class of case the matter cannot be overcome by amendment. It was never intended that claims of this kind should be dealt with by Courts of Native Matters. It is not really a matter of "ousting the jurisdiction of the Court." Rather it is the case that a dispute of this kind raises questions of law of general and not local concern, and that they are not suitable for determination in a Court of local jurisdiction.

The considerations involved come under several distinct headings:-

1. GENERAL JURISDICTION IN RELATION TO LAND OWNERSHIP is traditionally restricted to Courts of unlimited jurisdiction since land tenure is of the Crown, and fell to be determined in the Sovereign's Courts at Common Law in the first place. Apart from the King's Courts at Common Law, various local and other jurisdictions have been created and defined by statute but it has never been the practice, apart from some limited and specific instances, to confer on any of those Courts a jurisdiction in matters of land ownership. The Supreme Court, although established by Statute as is the modern practice, exercises a jurisdiction which includes that of the Sovereign Courts.

In the Territory, as elsewhere, the law governing all questions of land ownership is subject to any statutes on the subject, the Common Law and the rules of Equity as in force. This law applied to Papua upon the establishment of the Possession. It is under this law that proclamations preserving and protecting the lands of native people are to be given effect. I am not aware of any concept of "native land" known to the general law of the Territory. This is an administrative term. At law all land is the same and its ownership, by natives or not, falls for determination according to legal principles.

The development of the law in the Territory is a matter of genera1 and not local concern and is the special task of the Supreme Court. Lord Denning, when a Lord Justice of Appeal, expressed the matter thus in comparable circumstances in relation to the Kenya Protectorate:-

"Article 15 of this order, the 1902 Order in Council (S.R.& O.1902 No.661), as amended by the 1911 order (S.R.& O. 1911 No. 243) says the civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in "conformity with the Indian Acts in force in East Africa and

"so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity, and the statutes of general application in force in England on Aug. 12, 1897 ....Provided always that the said common law, doctrines of equity, and statutes of General application shall be in force in the protectorate so far only as the circumstances of the protectorate and its inhabitants and the limits of Her Majesty's jurisdiction permit and subject to such qualifications as local circumstances render necessary."

Applying that Order in Council I think that the prerogatives of the Crown apply within the protectorate for they are within the very "substance of the common law". JOSEPH CHITTY in his classic work on the PREROGATIVES OF THE CROWN (1820), p 4, says that these prerogatives

"form part of, and are generally speaking as ancient as the law itself."

and later:

"The next proviso says, however, that the common law is to apply "subject to such qualifications as local circumstances render necessary." This wise provision shou1d, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed but it "needs careful tending. So with the common law.

It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far off lands the people must have a law which they understand and which they will respect. The common law cannot fulfil this role except considerable qualifications. The task of making these qualifications is entrusted to the judges in these lands. It is a great task. I trust that they will not fail therein."

(Nyali Ltd. v. Attorney-General, 1955, 1 All E.R.646)

The fact that Judges in the Territory have not been given the opportunity to carry out this task in the past is not due to their own choice, but is due to the fact that in many colonies and protectorates where the constitutions have in the past provided for administrative control of government, it has been the apparent policy to deal with land matters administratively and without seeking the guidance of the Courts in legal matters. Except in the case of Guita Sebea v. Papua, [1941] HCA 37; 67 C.L.R. 544, this Court has never previously had the opportunity so far as I can ascertain, of dealing with a case involving questions of land ownership by natives. That much the same position holds in the British Solomon Islands protectorate is indicated in the Report of the Special Lands Commissioner (Honiara 1957) at page 265, where attention is drawn to the paucity of judicial determinations of cases of native land ownership in the South Pacific area. Again Lord Denning has a good deal to say on the responsibility for this unsatisfactory state of affairs in "Freedom under the Law" a book containing the first series of Hamlyn Lectures, published in 1949. It is to be hoped that the natives will understand that they have a right to have questions of land ownership determined in the Supreme Court, and that they will be given every assistance in having them breueht before the Court for determination.

2. NATIVE CUSTOM IN RELATION TO LAND OWNERSHIP.

It is to the extent that the law in force in the Territory recognizes and applies Native custom that custom has effect. Native custom has no legal effect of its own force. That it never had any legal force in the Territory before the establishment of a legal system is clear, and it now must be ascertained, tested and applied according to legal principle. Principles adapted precisely to Territory requirements are yet to be ascertained and declared. It is not necessary for me to decide at this stage what precise tests need to be satisfied before a local custom can be incorporated into the fabric of the law. Stroud's Judicial Dictionary gives the standard references for the proposition that a custom is "local common law" and if applicable to the case, is applied as part of the common law.

In relation to native custom it is necessary to observe that native communities had not evolved anything resembling our concept of a legal sanction. The sanction of compulsive enforcement is added by our law to any native custom which passes the necessary tests. The custom is thereby promoted, within the limits of its application, to the full status of a rule of law. It is then binding, not on1y on natives, but on the whole community. For this purpose a custom must constitute at least a positive rule of native society, binding on the individual concerned and giving him no choice whether to obey or not. It must also carry whatever social sanction the native society was capable of enforcing.

In the present case there can be no title to or interest in property based on native custom unless the scope of the claim is comprised within some native social group which observed the custom, and unless the group or society within which the claim arose is in possession or occupation of the land in question or otherwise legally entitled to the estate upon which the claim depends. Such a case was Geita Sebea v. Papua (supra). Native ownership involves various concepts, and in a dispute between two separate social groups, no established rules regulating their mutual conduct, there can be no relevant native custom. The position is then like a case of international law falling outside any single legal system.

In cases where external social relationships are maintained between separate groups, as in the Highlands, something like a federal structure may arise, or transactions relating to land may operate as treaties and these may find a place under the common law.

It would be wrong in principle to lend the sanction of legal enforcement to any social rule falling below the required standards. The evidence here shows several distinct changes in the social habits of these groups of natives. For example the arrival of a Missionary in 1880 brought about an entire change in the social life and relationships of the natives, and a call from a mission teacher in Dobu in 1915 produced a similar change. If the natives are left to decide what are their own customs, they are exercising a power of legislation, without safeguards or responsibility, and changing the law. A court order to enforce a right of the nature claimed in this case, would adopt one arbitrary moment in a changing, situation and, being permanent in its effect, would inhibit further change. Changing, habits and practices are not rules to which permanent sanctions are applicable. A Court cannot "grant" a title to land.

Unless it can be established as a fact that some native group exercised rights amounting to possession, either alone or jointly with others, the true position may well be that the land was at the establishment of the Possession unoccupied and therefore Crown Land. If Crown land, it may or may not have been acquired by the Crown subject to enforceable rights amounting to something less than a right to ownership based on possession, e.g. easements, profits etc. The nature and scope of such interests in yet to be ascertained and declared.

The position was quite different in the case of Colonies where the Crown in conformity with the notion of Indirect Rule expressly adopted some pre-existing native system of law relating to land tenure so that the Courts to consider and safeguard concepts of land ownership differing materially from those known to the English law of the present date. In the Territory there was no such system of law, nor was the notion of Indirect Rule applicable. The late Sir Hubert Murray has made it quite clear that he fully recognized this fact, and hoped by his system of Village Councils and village officials to introduce something in the native social groups which would enable the principles upon which Indirect Rule was based to be observed in relation to scattered native communities in Papua.

3. OWNERSHIP OF REEFS.

I do not know whether the reef in question is always submerged or whether it comes within tidal limits. This may make a considerable difference to the question whether it falls to be considered as land, and whether it is capable of ownership as such as against the Crown or whether some special limited right such as a right of fishery might be applicable. The validity of any claim "in alieno solo" if set up against Crown land may depend on whether it can be established on the facts that it arose before or after the establishment of the Possession and upon the terms on which the Crown first acquired the land in the Territory. All of these points call for special consideration and determination.

One proposition which arose incidentally in the course of argument, amounts to something which at the present time I am unable to accept. The proposition is that native fishing rights are something which only concern natives and that Europeans have an unlimited right to fish where they please regardless of native custom. This may be the result of course if it appears upon the true analysis of the matter that the natives in question have a mere right to resort to some place for the purpose of fishing in common with all other persons whether native or not. Once it appears that any group of natives have fishing rights of a proprietary nature which are enforceable to the exclusion of other natives and are valid as against the Crown notwithstanding that the right is to be exercised over Crown lands, it seems to me that all this arises by virtue of rules which are part of the general law and are enforceable against non-natives to precisely the same extent as they would be enforceable as between natives.

As I say, I have not determined that any such rights can or do subsist but it is likely that some of these questions will fall for determination in connection with the present claim.

4. INCIDENTAL JURISDICTION.

There are cases in which Courts of limited jurisdiction have been told to have jurisdiction to decide questions of title as incidental to some expressly conferred jurisdiction. These cases arc exceptional and arise where as a matter of statutory interpretation it is held that Parliament must have intended to confer jurisdiction to enable the Court to decide a case expressly referred to it. These cases were exhaustively canvassed by Mr. Lalor in his argument. In Williams v. Adams [1862] EngR 456; 121 E.R. 1089 (2 B.& S.312) it was held that a justice was by implication authorized to decide whether a road was a highway, in fulfilling his duty in reference to nuisances. This involved an incidental question of title. In ex parte Vaughan 1866 2 Q.B. 114, it was made clear that in all cases where jurisdiction depends on an incidental finding of fact, an appeal Court will review that finding to ascertain whether jurisdiction really existed. This last case and many others depended on the express conferring of some special jurisdiction in relation to Landlord and Tenant and similar matters. They do not support the existence of any incidental power in cases such as the present where there is express provision to negative jurisdiction in cases of land ownership. Therefore a Magistrate for Native Matters cannot determine ownership of land as a matter arising incidentally to a claim for rights of exclusive user.

5. PARTIES TO THE DISPUTE.

There is no provision for the Court for Native Matters making an order as between representative parties. Under any system of clan ownership which may become part of the law of the Territory, the rights of future generations are as real as those of the present. An order as to title cannot be effective unless it is binding on all the possible claimants, and this cannot be achieved by the present jurisdiction.

A typical situation contemplated by the Regulations is where a clan is in sole possession of land; and by native custom, binding on the whole clan, A is given a right to exclusive use of part of the land. His right of exclusion may be as against some individuals or the whole clan, it may be for certain purposes or for all purposes. If by the custom A has a right to exclude B from, say, planting trees, and B persists, then the situation contemplated by the Regulations arises for a fight is likely to arise between A and B. If B succeeds in planting trees, the dispute may involve further disputes as to their ownership and other people may be involved and so on. There is no question of title involved because both A and B are bound by the superior title of the clan and have by custom no more than a right of user, generally of a temporary nature. The regulations contemplated that the Court would order B not to interfere with A's rights so long as, by native custom A retained the right to exclude B. Such an order only operates so long as the right in question remains. It does not disturb the pattern of land ownership or the power of native leaders to vary the arrangements for the use of land by individuals according to custom. All that the Court is really doing is lending its compulsive sanction to establish native authority to prevent the fighting or coercion which in native society would otherwise be inevitable. The immediate parties to the dispute are the only ones with which the Court is concerned.

6. NATURE OF EXCLUSIVE RIGHTS UNDER 132.
The regulation does not mention possession or occupation of land for these involve ownership of an interest in land and are evidence of ownership. A right to exclusive use may not he a right to exclude "the whole world" which is involved in the legal concepts of possession and occupation. It should never be necessary for the Court of Native Matters to decide whether the Complainant's right amounts to possession at law, as importing an unlimited right to possession. All the Court is concerned with in this aspect is whether he has a right to exclude the Defendant's proposed use of the land, and if so limit the order to this. The present order is too widely expressed and would purport to exclude permanently a large number of unnamed people who are not parties to the action. On the other hand an order excluding only the defendants would be of no value to the Complainants, and would not meet the real point of their complaint.

One point which arises in this regulation but which it is not necessary for me to determine at the present time is whether the exclusive rights contemplated by Regulation 132 are rights of a nature which at law are classified as interests in land, or whether they are limited to rights of a personal nature such as a mere licence to enter upon and use land. The legal test applicable would depend on the extent of the right of exclusion and it may be that the regulations confer jurisdiction in respect of a variety of claims ranging from mere licence to individual usufructory rights in particular portions of land some of which may constitute an inferior estate or interest in the land itself. The determination of the limits of the word "ownership" as used in the regulations will no doubt arise for future decision. In the meantime and for the present purpose, it is not necessary for me to observe this distinction, and I have for the purposes of this case treated questions of title or ownership of land as extending only as far down the scale as legal occupation or possession, for all such titles either constitute or are presumptive evidence of absolute ownership. On the facts of the present case so far as they emerged it is only such a title which would support the order for the protection of subsidiary rights granted to the Complainants.

I do not want to be taken as deciding at present that a Court for Native Matters in dealing with a claim between individual persons could not decide a claim based upon the existence within the clan structure of a right of user of land which amounts in law to an interest in land when the ownership of the land itself, in the larger sense, is not in question. Nor do I decide whether if it should emerge that any of the present parties or their peoples appeared to hold, as against the Crown, on the establishment of Possession, some limited right such as a right of Fishery, such a right would be recognized or protected in an appropriate jurisdiction; for the legal basis for such a right would have to be fully considered in the light of further facts. Further, a claim to have acquired any such right over Crown land since the establishment of the common law in the Territory, might give rise to quite different considerations.

For the reasons which I have discussed rather broadly and in general terms, I think that the only conclusion that I can reach is that the present Complaint and the order which was made upon it are both outside the jurisdiction of the Court for Native Matters. I think further that no process of amending or restricting the scope of the claim could bring it within the jurisdiction of that Court. I think therefore that no purpose will be served either by sending the case back to the Court for Native Matters for further hearing or in conducting this appeal by way of rehearing in the Supreme Court, for in either case the same limitations on jurisdiction will arise and no order which could be made would dispose of the substantial questions which will arise.

I think therefore that the only order which I can properly make is that the Appeal be allowed and that the order appealed from be set aside.

It must be left to the parties concerned to bring such further proceedings as they may be advised in order to have these questions determined. The Native Land Commission may be able to afford some assistance, but since the Commission cannot give a final determination of the matter, and since there appear to be no difficult questions of survey involved, I think that the matters in question should be determined by the Supreme Court which is the only Court having jurisdiction to give a Judicial determination in a case involving land ownership.

Appeal allowed; Order set aside.