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Magistrates Court of Solomon Islands |
IN THE MALAITA DISTRICT MAGISTRATE COURT
OF SOLOMON ISLANDS
CC. Nos.: 6, 13, 14, 15, 15A & 22/91
BETWEEN:
GEORGE TAFISISI & OTHERS
(1st Appellant)
BILLY MAE & OTHERS
(2nd Appellant)
JONATHAN MALEI & OTHERS
(3rd Appellant)
PETER TAFEA & OTHERS
(4th Appellant)
FRANCIS SAEMALA & OTHERS
(5th Appellant)
WILLIE FIORU & OTHERS
(6th Appellant)
AND:
ATTORNEY GENERAL
(1st Respondent)
AND:
ACQUISITION OFFICER
(2nd Respondent)
AND IN THE MATTER OF: AUKI MARKET AREA (SEAFRONT) ACQUISITION APPEAL
Before: Maina LR
Judgment: 2nd July 2009
Counsel:
F. Waleanisia for 1st Appellant
S. Toito'ona for 2nd Appellant
A. Nori for 4th Appellant
D. Marehare for 5th Appellant
G. Suri for 6th Appellant
R. Firigeni for 1st and 2nd Respondent
JUDGMENT
This Land Acquisition Appeal case was remitted by the High Court to this court in its judgment of 19th November 1997 upon an appeal from the Magistrate Court. It concerns the determination on the Auki seafront Land Acquisition by Mr. David Totorea who was appointed by Provincial Secretary - Malaita Province of 3rd January 1991.
The land subject in this appeal is as described in the High Court Judgment at p.1 as an area of land commonly described as the "Market Area" which includes the Auki wharf, measuring some 80 metres out from high water mark. The boundaries of the land in question and the whole site were a reclaimed land.
I remind myself on the direction by the High Court when remitting this case back to the Magistrates' Court, his Lordship Palmer J, as was then (now CJ) said:
"The crucial guiding factor which the learned Magistrate must bear in mind when dealing with the appeals of the claimants is the issue whether the said land (that is, land which at one stage had been covered by the sea and foreshore), was customary land; that is lawfully owned, used or occupied by any of the claimants in accordance with current native usage prior to 1st January, 1969. If he finds evidence of ownership, usage and occupation in accordance with current native usage, then he is obliged to make a finding to that effect"
Custom and Method
First, it is important to outline the nature of custom, usage and method of determining custom. Custom is unwritten and oral tradition. It is passed from person to person and usual way of behaving or acting and practice or usage becomes a standard or rule that must be observed. The latter has become not only practice or a usage, but also a rule or law and regulates the ownerships and other interests in customary land. And it is practiced or and may be recognize that such practice or behaviour is custom.
The 1978 National Constitution recognizes custom as part of the law of the laws of Solomon Islands and subject to the provisions in Schedule II of the Constitution, every inquiry into custom involves factual determinations. And there are common ways or attributes which must exist in order to be custom i.e. time immemorial, reasonableness, certainty and continued without interruption etc. If it has some interruption we must ensure consistency, corroboration and comprehensiveness in order to be custom.
Besides its being of oral nature, section 239(2) of the Lands and Titles Act provides:
"2 For the purpose of ascertaining any current customary usage, a court required to determine a question in accordance therewith may refer to any books, treatises, reports (whether published or not), or other works of reference, and may accept any matter or thing stated therein as prima facie evidence of the usage in question unless and until the contrary is proved".
This provision provides assistance or guidance to determine what is custom or ascertaining any current customary usage.
And in this case, the main question is, which of the Appellant tribes has lawful ownership, use or occupation of the said land in accordance with current native usage prior to 1st January, 1969. And who owned the foreshore prior to 1st February 1963 or prior to the reclamations.
Categories of Claim and Parties
There are three categories of claim in this case and listed as follows:
• Category 1 - Claim on original ownership by discovery, use or occupation
• Category 2 - Claim on certain right of ownership
•Category 3 - Claim on right, use or occupation
Records and Documents
All counsels for the claimants and one claimant made submissions to the court. They rely on sworn evidences and photocopies of papers or great number of materials, local court judgments and other documentary evidence. Among them are:
(i) Conveyance of 15th July 1909 (First Land Sale)
(ii) Conveyance of 25th November 1909 (Second Sale)
(iii) Conveyance of 25th January 1922(Third Land Sale)
(iv) A letter of 11th March 1912 by Resident Commissioner Charles Woodford
(v) Correspondences from Resident Commissioner at Tulagi to D.O at Auki
(vi) Correspondences from D.O, Auki to Resident Commissioner in Tulagi
(vii) Land inquiry - Lilisiana Point 1/3 - Auki. 30.1.1935
(viii) Indukelema v C. Tafi Civil case no. 8/38 of 15/11/38
(ix) Indukelema v Batilofo of 10.01.1938
(x) Allan Indu v Lulute'e case no 3/63
(xi) Inquiry by Broughton into claim by Willie Taeburi on Lots 90 and 91 of 7/4/75
(xii)Decision of the Adjudication officer in application no, 11/1/73 in respect of Lots 90 and 91
(xiii) Public Hearing by David Totoria of 21/1/91
The copies of the above are mostly not certified but all parties seem to present them with their affidavits and I admit them all as evidence. The cases and documents relate to the surrounding of the land purchased by the Government.
Record of Government's Purchases
First of all, it is important to outline the Colonial Government's interest on the inner land which its foreshore was reclaimed and now in dispute. The purchase of the land for the Government station at Auki was made in three portions. The Government records shows as follows:
The first was a piece of land estimated to be 30 acres, immediately to the west of Kwaibala River. It was purchase by Mr. Barnett from the native Galagau on 15th July 1909. The consideration was Ten (10) Pound.
The second was a piece of land to the westward of the above out adjoining it, the frontage extended as far as the small creek in the harbor and followed in land for a distance of 460 yards. The area was estimated at 45 acres. The vendor was Gomite and Malafou. It was purchased by JW Partington on 25th November 1909. The consideration was Ten (10) Pound.
The third was a piece of land described as commencing at the concrete peg at the high water mark at the foreshore of the Auki Harbour and on to Western boundary of the land previously purchased by the Government (First and Second purchases) to in land of 40 chains and across of about another 40 chains an further of 50 chains to inland of Kwaibala River of 50 chains and along down the river. To the land reserved for Natives and then to the peg of the land previously purchased by the Government. The area was estimated at 170 acres. It can also be described as land behind the portion of the first and second purchases. It was purchased by Resident Commissioner on 25th January 1922. The vendors were Indukelima, Ramteana, Wakitea, Bolinga, Ongakalo, Mailamauma and Garea. The consideration was Fifty (50) Pounds.
Category 1 - Claim on original ownership by discovery, use or occupation
The issue of the claimant's tribes or clans who has lawful ownership, use or occupation of the said land in accordance with current native usage can be answered on the outcome of the following questions:
(i) Whether the claimant parties establish a right of ownership, use or possession on the said land, and
(ii) If the right is ascertained, whether the rights establish or amount to right of ownership of the land?
From the counsel's submissions, oral evidence on claimants in affidavits and numerous documents, a question is where do we start to ascertain of ownership of the land and how would we corroborate the evidence.
It may be with the evidence of the first discovery but the claimants are confused of whether their linkages were to tribes, clans and lineages. They seem to refer to either as their connections.
It is then proper to start with the evidence that is not disputed and commonly understood by all parties. And the starting point to trace the issue of ownership is this Conveyance of 1909 (First Land Sale). This is so because it is direct and there is written records which relates to the ownership of the land which its foreshore is in dispute.
Indeed, as it is familiar to all the parties the land was sold and according to the record that sale or Conveyance on 15th July 1909 between Mr. Barrnet for Colonial Government and a Native Galagau. The consideration was Ten (10) Pounds as purchase money to Galagau, beneficial owner. That instrument shows that Galagau was the beneficial owner of the land.
There are previous court cases on the lands adjacent to the portion sold in 1909 but none had disputed the original conveyor nor did they claim any relationship to him except one. The claimant's evidences were only on their interest in the land. It may be so because of the land tenure system in Malaita as tribally owned. And so Galagau conveyed or sold the land with certain interest of ownership in land.
The native Lalagau's name appeared once in the instrument of the first Conveyance of 1909 but Loboi's name seemed to appear every time and he dominated the discussions and consultations with colonial administration on Auki Land. And so the questions are:
(i) Who is this Native Lalagau was and who was Loboi?
(ii) And who owns the land Loboi sold the Colonial Government in 1909?
On the former question, Mr. Nori with his Chronology described him as Galagau (aka) Loboi. And he was the grandfather of his clients. Counsel Waleanisia in his submission referred to him as Galagau or Loboi. Acquisition Officer Mr. David Totoria referred or described him as a man Galagau or Kwalagau or Loboi as the same person. Jonathan Malai in his submission stated that the first land sale in 1909 was made be Loboi. He was the same person in the conveyance as Galagau. It is clear that Galagau was the same person also called as Loboi.
On the latter, beside the evidences from the claimants there are other independent works of reference or records which may assist us to answer this question. As every one us understood it well, custom is unwritten and oral tradition or pass from person to person. And records may be accepted unless contrary is established.
Counsel Nori for Peter Tafea Nee and Alwin Idukelema submits that the claim is base on the records which shows that the land at Auki was owned his clients ancestors. And according to custom the person or tribe who owned a land must also owned the adjacent foreshore. The council relies on First Conveyance of Auki Land to the Colonial Government. Peter Tafea Nee and Alwin Idukelema are both grandsons of first conveyor Galagau.
In the case Indukelema v Batilofo of 1938, seeking an order to restrain the defendant from trespassing to the ground near to the road leading from Government station (Auki) to Lilisiana, evidence was that plaintiff's father was Loboi and he came from Kakara. Loboi was a strong man and Ferowane allowed him to look after his land. When Plaintiff's father died he took over that responsibility from him.
A witness Lulute'e of Assisiki said Rene was the owner the ground and he handed the land to Loboi. Lulute'e provided a genealogy with reference from Loboi to Indukelema.
With the Conveyance of 25th January 1922 of the 170 acres, it was between Idukelema & others and Resident Commissioner Richard Rutledge Kane. This concern land was above the land at the first sale. Consultation was also made with Loboi and he witnessed the sale.
Also evidence in the Inquiry relating to Lilisiana Point of 30th January 1935 by G.E.D Sanders, witness Indukelema stated that Auki foreshore was owned by his father (Loboi).
The land was originally belongs to Ferowane who was Feokelema's father. Ferowane saw Loboi was a strong man and so he allowed him to have the land.
The evidences from the cases show clearly that Loboi exercised certain right of ownership. This has been satisfactorily proved in the sale to Government in 1909. I have examined the judgments in Allan Indu -v- Lulute'e civil case no. 3 of 1963 and Gilead -v- Mata Native Appeal case no. 12 of 1974. Any argument cannot interfere with this accepted custom practices. Custom is usual way of behaving or acting and practice or usage becomes a standard or rule that is observed. And such had qualified Loboi's practice to claim certain right of ownership.
On that basis I am satisfied that claimants Peter Tafea Nee and Alwin Idukelema have established certain right of ownership on the foreshore of the land sold by their grandfather Loboi.
Category 2 - Claim on certain right of ownership
Billy Mae and Billy Ansa appealed together but in the proceeding they made separate submissions. The ground of the appeal is briefly that the Acquisition Officer erred in custom to award the ownership to the Respondents by relying on the case Feokeleme v Lulute'e Civil case no. 8 of 1938.
Counsel Stephen Toito'ona submitted that Billy Mae's claim is not on ownership but for being the sons of Saletafi'i and therefore is entitled to the land from Kwaibala River to Sikitae. This land is Ngailau Land. He claims that the land was discovered by Saletafi'i.
Counsel Billy Titiulu for Billy Ansa submits a claim of ownership and usages through discovery. This claim is based on the Affidavit of Billy Ansa. The time of discovery of Auki land by Otefarakau tribe is unknown but may be before salt water people. He claims that Lulute'e was from Otefarakau tribe as identified by the Deputy Commissioner of Western Pacific. Auki land was sold on behalf of Otefarakau tribe. The foreshore of the land is part of the main land. They stopped to use of the land because of the pollution by salt water people.
Billy Mae and Billy Ansa's affidavits contain similar evidences and documents. This is no surprise as their claim is on the same basis or ground except that one from Saletafi'i and the other from Otefarakau tribe. They made references to Feokelema v Lulute'e Civil case no. 8 of 1938 and Allan Indu and Indukelem v Lulute'e case no. 3/63.
Claimants Billy Mae claimed that whole of Ngaliau customary land includes the portion sold to the Government (First Sale). The foreshore was used by them for fishing and bartering with saltwater people from time immemorial. And Billy Ansa claimed Ngaliau is owned by the lineal male descent of Oroidai. He made reference to Judgment of court by JGS Sanders dated January 10 1938. I examined the case which he refers and noted that case relates to the Sikitae land. No such ruling or evidence to suggest or as claimed by Mr. Ansa. The only reference to the claim or connection to Saletafi is Feokelema v Lulute'e Civil case no. 8 of 1938.
Briefly the case Feokelema v Lulute'e Civil case no. 8 of 1938 relates to the land described as northern boundary is Sikitae stream and between Fuiliau and Lilisiana point, north of Sikitae and bounded by Alegegio stream on the north. The claim by the plaintiff was dismissed but the court ruled that the land was vested in the lineage male descendant of Oroidae and Ko'ofa (C Tafi and Bosokuru). In this case there was no dispute to the first conveyance in 1909 and second sale in 1923.
And with Allan Indu and Indukelem v Lulute'e case no. 3/63 it relates to ownership of Fasitoro land. It questioned the outcome of the ruling on the case Feokelema v Lulute'e Civil case no. 8 of 1938.
The land concerned is above the land subject to sale or Conveyance of 15th July 1909. The claim failed as court ruled that part of Fasitoro belong to the defendant. Again there was no dispute on the first conveyance in 1909 and second sale in 1922.
Affidavit of Billy Ansa filed in on 23/5/05 made reference to Otefarakau as tribe and land. He did not provide its origin. That part of evidence is vague and this court rejects it.
But the connection of Appellants Billy Mae and Billy Ansa to the land can be trace from judgment in the case Feokelema v Lulute'e Civil case no. 8 of 1938. The court ruled that the land was vested in the lineage male descendant of Oroidae and Ko'ofa (C Tafi and Bosokuru.) According to the affidavit of Billy Mae filed on 29th July 2005, C. Tafi is Charles Tafi and Saletafi is a common name used in short for Charles Tafi. Saletafi's father was Renge who owned Ngaliau land.
From the evidence and ruling on case Feokelema v Lulute'e Civil case no. 8 of 1938, had vested in claimants Billy Mae and Billy Ansa and their people the right to claim certain interest of land and I am satisfied that they have establish the right, use or possession of the foreshore and sea.
Counsel Marehare for Francis Saemala (now deceased) of Bosokuru Line/Clan submits claim ownership of the foreshore of the land. Acquisition officer had identified his group to be the beneficiary but concerned on the percentage of share awarded by Acquisition Officer. It is not right in custom to make his clan subordinate to Saletafi'i clan. He claims that both clans jointly own the land in equal shares as his clan did not come from the female line. And his clan was a leading from Kulaikwai tribe.
He relies on the civil case Feokelema v Lulute'e no. 8/38 of 15th November 1938. The court ruled that the land was vested in the lineage male descendant of Oroidae and Ko'ofa (C Tafi and Bosokuru). He claims that Bosokuru was his grandfather. They had used the foreshore and sea for fishing.
The judgment of the above case as noted earlier had vested in them the right to claim certain interest of ownership of the land sold by Loboi to the Government and I am satisfied that Bosokuru's group have establish the right, use or possession of the foreshore and sea.
Jonathan Malai, spokesman for Asisiki Tribe submits that their claim is base the sale of Auki land to Western Pacific Resident Commissioner. The claim is that their ancestors were original owners of the land adjust to the reclaimed land which they sold to the Colonial Government. Mr. Malai presented to the court a copy of handwritten uncertified conveyances document dated 25th November 1909 and copy of a letter of 11th March 1912 by Resident Commissioner Charles Woodford. The letter made reference of the conveyance of 25th November 1909. That document is in fact the copy of the original conveyance of the second purchase of a portion of land at Auki.
The piece of land is described as to the westward of the first purchases out adjoining it, the frontage extended as far as the small creek in the Auki harbor and followed in land for a distance of 460 yards. The area was estimated at 45 acres. The vendor was Gomite and malafou. It was purchased by JW Partington on 25th November 1909. The consideration was Ten(10)Pound.
Appellant's ancestors had owned the in land adjacent to the foreshore, used or possession of the sea and I am satisfied that Jonathan Malei's Asisiki tribe have establish the right, use or possession of the foreshore and sea.
Category 3 - Claim on right, use or occupation
The crucial question in this category is whether the right of use or occupation by way of fishing and activities were in accordance with native usage and amount to a claim to interest of ownership of the land.
This group can also be described as amongst saltwater people. Obviously they claimed themselves to be so and their appeal was submitted by Francis Waleilia (sn) for Combined Fera Group on 2nd April 1991. At the hearing a submission was under or for Lesiala 4 Tribes (Salt Water People).
In brief, Counsel Francis Waleanisia for Combined Fera (Lesiala 4 Tribes) claims that the group had used the area (Reclaimed as Lot 90 and 91) as fishing grounds in the olden days. The group used the area to collect sea shells. The people had customary practices that are rooted in salt water people traditional tambu houses and customary beliefs. It enabled them to make shell money as currency, useful for traditional weddings, compensation purposes and conversion into western monetary currencies.
Counsel Gabriel Suri for Aimarako submitted that the claim is base on the first discovery, inter alia relies on evidence on 1937 case between Idukelema v Batilofo and anthropologist Walter Ivens' Book published in 1930. Ancestor Oteote came down and first settled at the coast. His son was Ulubae, the builder of Auki Island.
Mr. Suri said that Aimarako seems to acknowledge that Bitakaua arrived earlier but they were cleaned out by a sickness.
To the saltwater people, Airamako arrived ahead of Saletafi'i and Aisisiki tribes. They have tambu sides at Aoke, Lilisiana point fishing grounds along the coast frontages. And they have a long uninterrupted occupation since pre 1868. He claimed the tambu sites were identified by Acquisition Officer (AO). Among others were exclusive fishing rights and relies on Broughton's Records.
Saltwater people attempt to protect the area by objection to COL to register the foreshore. Reference were also made in the numerous correspondence by Mr. Taeburi and Waleilia to Adjudication officer in application no, 11/1/73 in respect of Lots 90 and 91.
Counsel Suri submitted that in that acquisition the Adjudication officer was wrong to treat non objection by bush people as an insignificant point and error in law.
The affidavits of George Tafisifera of 17th April 2000 with additional affidavit of 2nd October 2004 and Willie Foiru with attached documents and among them is the copy of Application No. 11/1/172. This document relates to the application by Commissioner of Land for the first Registration of the titles to Lots 90 and 91. A foreshore now reclaimed or exactly the same matter subject to his appeal.
The record of proceeding by Acquisition Officer J. Broughton Deputy Registrar of Titles is entitled "APPENDIX 6", the proceeding of hearing on the objection of Messrs Willie Taeburi and Francis Waleilia held at the Auki Court House on Wednesday 2nd April 1972.
In brief Willie Taeburi's evidence is that he represented the Lilisiana people and other people in the Auki area and Malulau tribe. The land claimed was vacant and is the centre of the fishing area of all the Auki people. The Fotokoro and Alale were on Lot 91 and two important ceremonial and fishing areas. The two lots are an important element in the ceremonial associated with porpoise fishing which is very "tambu" to them. The fishing right was by use of nets. Auki people had these rights in this area way too far back to trace.
And Francis Waleilia claimed to represent several family groups from the Baelatofu side of the Auki harbour area. He had primary interest through his family group. They lived round Auki harbour and they are known as Auki people.
The people had rights over the whole of the bay area which includes the areas claimed by the Commissioner of Lands. Their rights were:
• A holy reef just outside the area at the passage and no woman even today can cross that reef. There were tambu places to the east and on the western edge of lot 91. All these places are tambu to all the Auki people.
•The right to fish with nets. Only the Auki people were allowed to fish with nets in this area.
•The right to collect shell money. People collect Kurilla, Kakari, Romu, Keta and other types. Some were found close to the shore - within 3 or 2 feet of the water line.
The Auki people are a salt water people. The fishing and right to collect shells are very important to them. He opposed the Commissioner of Land's application.
When summarizing the evidence of Messrs Willie Taeburi and Francis Waleilia and others and rejecting the claim by Commissioner of Land for first registration of lot 90 and 91 Mr. Broughton's decision was:
"To turn now to the definition of native customary land there was no evidence of any use of the land being unlawful. There was a claim to the customary ownership of the land based on the ritual significance of the tambu places and traditional ceremonies and long exercise of the fishing and shell gathering rights but it is not necessary to come to any decision on this. The land is of course unoccupied.
There was clear evidence of use of Lots 90 and 91 for both net fishing and collecting shells. This use has continued as long as the witnesses could remember and is still current. The rights are claimed and exercised by perhaps a rather larger and more diffuse a community than in many cases but there was clear evidence that it was a recognizable and accepted community. The circumstances ensure that the use is neither regular nor frequent but that of course does not affect the decision that Lots 90 and 91 are native customary land.
The application by the Commissioner of Lands for first registration of title to Lots 90 and 91 is rejected
It is important to note that this rejection was on the application of the Commissioner of Lands to make the first registration of the reclaimed land of Lots 90 and 91. There was no determination of ownership except that the acquisition acknowledged the use by the community for fishing and gathering shells. It is a decision or ruling which its evidence is also relevant to the matter now before this court and I do admit them as evidence.
The right to fish is a recognizable form of native right or interest. Claimants from the saltwater have shown that fishing was enjoyed by people over the area in question since time immemorial or before 1969. The descendants of the original saltwater people and intermediate descendants had continued to observe the relevant customs; and activity in fishing for the fish was an exercise of those traditional customs.
The saltwater people have some control and possession of the area as stated by Willie Taeburi and Francis Waleilia in the submission to the Acquisition officer Mr. Broughton. This is direct customary evidence to the question of ownership, use and occupation of the said land. Such is therefore evidence that establish rights in custom on land for the saltwater people and according to the custom in West Kwarae'e and Langa Langa.
I am satisfied that Appellants Aimarako and Lesiala 4 Tribes (Salt Water People) use or occupation have establish their right, use or possession of the foreshore and sea.
Reefs and foreshore in Custom
The evidence before court is that the land which at one stage had been covered by the sea and reclaimed is the foreshore of the portion of land purchased by Colonial Government on the First and Second sale.
All claimants claim that foreshore, reef or sea is owned by them. They used the foreshore and sea until the Government acquired the inner land in 1909, even used the sea until the reclamation of the land. They claim that the Government had polluted the sea area.
The foreshore or the land below high water mark, the affidavits of Billy Mae, Billy Ansa, Peter Tafea Ne'e and submission of Jonathan Malai shows that the used of the land until the colonial occupation and pollution by salt water people.
It is also be noted in the evidence of Willie Fioru and Francis Waleailia when they objected the application by Commissioner of land for the first registration that the saltwater or claimants used the foreshore and sea.
The understanding of the inhabitants is that reefs are being joined to land. In Malaita the position is clear as noted in Allan Collin's Report on Special Land Commission on Customary Land in BSIP 2957 at p 173
"Reefs were regarded as being joined to land, and were subject to interests of varying degrees of exclusiveness, depending upon the precise significance which the reefs had in relationship to the social organization and culture of the communities which allegedly controlled them. Not all reefs were subject to interests, let alone the same interests and not all interests had an element of exclusiveness. Above all, not all saltwater people held some interests in any reefs and not all bush people held some interests. Indeed, on Malaita, bush people were in the habit of gathering at low tide on the reefs which extended from the mainland, and occasionally, used roughly constructed bamboo rafts rather tentatively, in deeper waters.
..................."
And further or in relate to land at West Kwarae'e and Langa Langa, Allan Collin Report states at page 267 as:
"........ Thus the position is now that the coastal and saltwater people have established interests in the coastal land; each claim exclusive possession; in neither case, however is it likely that exclusive possession could be established"
While the above may relate to the reefs, it is equally applied to foreshore i.e. shore between high and low watermarks: the part of a shore that lies between the highest and lowest watermarks. By common knowledge foreshore amongst or comprises of reefs.
The similar issues were dealt with in two cases by the court as also noted in Allan Collin's Report on Special Land Commission on Customary Land in BSIP 1957 at pp175, 176 and 177
Judgment of Mr. Judicial Commissioner Charles in the case of Hanasiki v Symes (1951,) claim by a Solomon Islander and his line against a European in respect of an exclusive customary interests to fish for troches shell on certain reefs at Marau Sound, Among others these principles were emerged from the judgments as they affect native custom:-
(i) Law also recognizes and give effect to local customs,
(ii) To be recognized a local custom must have existed for so long that its time of origin is unknown (i.e. from time immemorial,) continuously observed since its origin, its principle and application and reasonable at the time of its inception;
(iii) In the Protectorate "time immemorial" is the year 1893 the year which the protectorate was established;
(iv) The Marau natives have established that it is their custom for the exclusive possession and enjoyment of particular reefs
Also in 1955, Mr. Judicial Commissioner Horsfall in his judgment in the Fanilei reef case (which was an action by the saltwater people of Fanilei Island against the bush people for exclusive possession of certain reefs adjacent to Fanilei island), found that fishing on the reefs was not exclusive to the saltwater people, but that the bush people shared in the use of the reefs.
By common knowledge and in the context of Allan Collin's Report, custom rights or interests include communal rights to the use, possession and occupation of the reefs and coastal waters. In custom such use, possession and occupation is exclusive. The interest may exist in coastal waters in the form of an exclusive or non-exclusive right to take resources; such as fishing, which involves taking or extracting living natural resources from water. Communal rights, such as hunting rights or practices, provide evidence of a wider proprietary interest, which may become the subject of a community's interest. Such claimants could also assert that their communal proprietary right or interest was, and still is (even though undergone some change since the Crown acquired the inner land), a right or interest which somehow is commercial in nature.
For the bush people the land sold at the first and second sale were owned by their ancestors and they used of the foreshore and the sea from time immemorial until the sales and even until reclamation. This custom practice of use or possession establishes their right of ownership of the foreshore.
And for the saltwater people their act of continuous use or occupation, act of fishing and collecting shell for money with tambu sites establishes their right of ownership of the foreshore. In other words the claim to the customary ownership of the land based on the ritual significance of the tambu places and traditional ceremonies and long exercise of the fishing and shell gathering rights that establishes their right of ownership.
The evidence of customary practices and continuous use or occupation established the right to permanent communal and right of ownership on the land below the high water mark or the land at Auki which at one stage had been covered by the sea and foreshore reclaimed. The claim in custom of the claimant is from time immemorial as users, or rights of ownership and occupation which can not be traced back or simply well beyond 1969.
Having heard the submissions and received sworn evidences, photocopies of papers or materials, previous court judgments and other documentary evidence (including the decision of the Adjudication Officer in Application No. 11/1/73 in respect of Lots 90 and 91) I am satisfied that the land at Auki which at one stage had been covered by the sea and foreshore reclaimed was a customary land, lawfully owned, used or occupied by all the claimants/Appellants:
• Saletafi'i Group
• Bosokuru Group
• Loboi Group
• Asisiki Group
• Aimarako and Lesiala (Saltwater Groups)
in accordance with current native usage prior to 1st January, 1969.
It is sad to note from this case that all the parties were not able to understand or properly relate their connections to tribes, clan or linage. And that is to this Melanesian context, that a tribe is a society or division of a society whose members have ancestry, customs, beliefs and leadership in common. For clan, it is a group of families related through a common ancestor or marriage. And a lineage is the line of descent from an ancestor to a person or family or related group of people, or a group of people related by descent from a common ancestor.
But evidence seems to be that 2nd, 3rd, 4th and 5th Appellants have some common connections. The same can be said to 1st and 6th Appellants. All cannot be through tribes rather now being to clan connections.
ORDERS
1. Persons who have the right to sell or lease the land of behalf of the Groups (Clans)
(i) Saletafi'i Group - Billy Mae and Billy Ansa
(ii) Asisiki Group - Jonathan Malai
(iii) Loboi Group - Peter Tafea Nee and Alwin Idukelema
(iv) Bosokuru Group - Dante Teioli and Alick Anisi'au Feragwau
(v) Aimarako and Lesiala (Saltwater Groups) - George Tafisisi and Willie Fioru
2. Benefits to be shared in equal i.e. 20% by each group
3. Set aside the determination of the Acquisition officer
4. All Parties to bear own costs
5. No further Orders
Chief Magistrate
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