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Rongorongo v Secretary of the Nauru Local Government Council [1976] NRSC 2; [1969-1982] NLR (A) 42 (25 February 1976)

[1969-1982] NLR (A) 42

IN THE SUPREME COURT OF NAURU

Civil Action No. 5 of 1975

KITTE RONGORONGO

v

SECRETARY OF THE NAURU LOCAL GOVERNMENT COUNCIL

25th February, 1976

The Nauruan Community - section 4(a) of the Nauruan Community ordinance 1956-1966 - persons "deemed to be aboriginal natives of Nauru by the customs of the Nauruans".

The Nauruan Community - adoption prior to March, 1965 - whether membership of the Nauruan Community could be acquired by such adoption

Action for a declaration that the plaintiff is a member of the Nauruan Community. He was born in Nauru in August, 1954, of parents both of whom had come to Nauru from the Ellice Islands or Samoa and had settled in Nauru. He was taken soon after birth and brought up by a married couple who had come to Nauru from the Gilbert Islands and had settled in Nauru. His father was employed in Nauru as a police officer but was requested by the Administration in 1964 to leave Nauru and did so with his wife and all his children except the plaintiff. None of them has returned to Nauru since then. His "adoptive" father was accepted as a member of the Nauruan Community in about 1946; his "adoptive" mother was adjudged by the Supreme Court in January, 1976, to be a member of the Nauruan Community and to have become such when she married the plaintiffs "adoptive" father in 1948.

Held: (1) On the evidence the plaintiff's natural parents had never become members of the Nauruan Community. Accordingly, the plaintiff was not a member of the Nauruan Community by birth.

(2) The provision of the Adoption of Children Ordinance 1965-1967 that a Nauruan cannot adopt a child who is not a Nauruan reflects the customary law of the Nauruans as it was during the period from 1954 to 1965. Accordingly the taking and bringing up of the plaintiff by persons who were themselves Nauruans was not adoption by the customary law of the Nauruans effective to make the plaintiff a member of the Nauruan Community.

(3) Before the Nauruan Community Ordinance 1956-1966 made express provision for the manner in which persons who are not members of the Nauruan Community may apply to become members, some persons who were not Nauruan by birth but had been brought up by Nauruans had subsequently been accepted as members of the Nauruan Community; but often that acceptance was tacit. Neither the plaintiff nor his natural parents had been accepted in that manner as members of the Nauruan Community.

K.R. Adeang for the plaintiff
J.H. Berriman for the defendant

Thompson, CJ.:

The plaintiff is seeking a declaration that he is a member of the Nauruan Community within the provisions of section 4(a) of the Nauruan Community Ordinance 1956-1966 (wrongly cited in the Statement of Claim as the Nauruan Community Ordinance 1956-1962). Section 4(a) of that Ordinance provides that the persons who constitute the Nauruan Community include "persons who, immediately before the commencement of this Ordinance were, or were deemed to be, aboriginal natives of the Island of Nauru by virtue of the institutions, customs and usages of the aboriginal natives of the Island of Nauru". The Ordinance came into force on 31st December, 1962.

The plaintiff claims that he was born in Nauru on 23rd August, 1954, that he has resided in Nauru at all material times, that his natural parents were Nauruans and that he was adopted immediately after birth by persons who were Nauruans. The defendant has admitted that the plaintiff was born in Nauru on the date alleged and has not sought to rebut the evidence that at all material times the plaintiff resided in Nauru. However, the defendant has denied that the plaintiffs natural parents were Nauruans and that the alleged adoption was effective by Nauruan custom to make the plaintiff, the child of the alleged adoptive parents and to give him the status of a Nauruan. That the alleged adoptive parents, Tetau and Nei Tarawa, were Nauruans in 1954 has been established in Civil Action No. 4 of 1975.

The issues to be decided in this case are, therefore, first, whether the plaintiff was a Nauruan by birth by reason that his natural parents, Rongorongo Rusia and his wife, were Nauruans, that is, were or were deemed to be, aboriginal natives of Nauru by the customs of the Nauruans on 23rd August, 1954, and, second, whether, if he was not a Nauruan by birth, he became a Nauruan by reason of adoption by Tetau and Nei Tarawa.

In support of the plaintiff's case in respect of the first issue, evidence was given that the names of Rongorongo Rusia and his wife were included on the electoral roll for the first election of Councillors of the Nauru Local Government Council in 1951. Under the Nauru Local Government Council ordinance 1951 only Nauruans could be electors and so only the names of Nauruans should have been included on the rolls. It was not contended that Rongorongo and his wife were aboriginal natives of Nauru by birth and no direct evidence was given of their acceptance as Nauruans by the Council of Chiefs requiring that thenceforth they were to be deemed to be aboriginal natives of Nauru by virtue of the customs and usages of the Nauruans. However, evidence was given that the Council of Chiefs supplied the list of names from which the first electoral roll was compiled in 1951. Further, a written statement made by Rongorongo in 1964 was tendered in evidence as Exhibit 2; in it he said that he was told by Head Chief Detudamo in 1952 that it had been agreed by the Council of Chiefs that he could remain resident in Nauru, and that he was "granted" a piece of land by the Head Chief and his sister.

Against the plaintiff's case in respect of the first issue, there was undisputed evidence that by either 1955 or 1959 the names of Rongorongo and his wife were removed from the electoral roll. That was presumably done by the Registrar, appointed under section 14 of the Nauru Local Government Council Ordinance, acting under the provision of section 17(1)(c) of that Ordinance. From 1959 onwards persons whose names were struck off the roll or who were refused enrolment could appeal to the District Court against the striking-off or refusal. It has not been suggested by the plaintiff that either Rongorongo or his wife did so. More cogent, however, were a number of pieces of documentary evidence. First there was the notice of the plaintiff's birth in Nauru Government Gazette No. 36 of 1954. It showed his parents as "O.P.I.", the standard abbreviation for "Other Pacific Islanders". Next, there was Exhibit 4, a written application made by Rongorongo Rusia in July,1963, for "Nauruan citizenship". This was obviously an application under section 5 of the Nauruan Community Ordinance 1956 and the very fact that it was made constituted an admission by Rongorongo that he accepted at that time that he was still a Pacific Islander, as defined in the Ordinance, i.e, not a Nauruan. In. this regard it is significant that in Exhibit 2 he did not state categorically that he was admitted to Nauruan citizenship, or to be a Nauruan, by Head Chief Detudamo in 1952, but only that he was told that it had been agreed that he could remain resident in Nauru. It is also significant that he signed a document (folio 17 in Exhibit 3) in the same year, 1964, in which he was stated to be of Samoan nationality; it has been suggested by Mr. Adeang that Rongorongo did not fill in the details in the document. It is not clear whether he did so or not but he certainly signed it; the signature on folio 17 of Exhibit 3 is the same as that on Exhibit 4. With regard to the claim that Rongorongo was "granted" land - with the implication that as a result he became a Nauruan - the plaintiff adduced no evidence that the Administrator approved the transfer of any land to Rongorongo. Without such approval any "grant" would have been null and void, and of no effect, by reason of section 3 of the Lands Ordinance 1921-1950 (as it was then). It is not disputed that Rongorongo and his wife left Nauru in 1964, when requested by the Administration to do so, and returned to their country of origin. They have not been in Nauru since then. Finally, there is the evidence of the principal witness for the defence, the present Head Chief, who has been the Head Chief since 1956, that errors were made in the early electoral rolls and persons included who were not entitled to be included.

On a balance of probabilities the evidence against the plaintiff's case in respect of the first issue heavily outweighs that in favour. I therefore find as fact that Rongorongo Rusia and his wife, the natural parents of the plaintiff, were not Nauruans, or members of the Nauruan community, or deemed to be aboriginal natives of Nauru, on 23rd August, 1954, or at any other time. This means, in turn, that the plaintiff was not a Nauruan by birth.

The principal evidence in support of the plaintiffs case on the second issue is that the plaintiff was taken by Tetau and his wife shortly after his birth and has been brought up by them ever since. That evidence has not been seriously challenged and I accept it as true. However, the defendant has denied that this was sufficient to constitute an adoption of the plaintiff by Tetau and his wife in accordance with Nauruan custom, and that it did not change his status from that of a Pacific Islander to that of a Nauruan.

The plaintiff has adduced evidence that adoption has been recognized by the Nauruans since the time of Eigamoiya, i.e. for over 70 years, and that adopted children were regarded as the children of their adoptive parents and inherited from them like natural children. He has also adduced evidence that before the Second World War there were a number of occasions on which non-Nauruans were adopted by Nauruans and were thereafter regarded as Nauruans. A good deal of evidence was given by witnesses about the nature of the adoption of non-Nauruans; it was suggested by one witness for the defence that the reason why they were regarded as Nauruans was not simply their adoption but the fact that established is that in some cases before the Second World War non-Nauruans adopted by Nauruans inherited from their adoptive parents and were in their later adult years accepted as being Nauruans. Whether they would have been allowed to inherit or would have been, accepted as being Nauruans if they had married outside the Nauruan Community or not assimilated with Nauruan society is doubtful; the Nauruans were an island community with no tradition of absentee ownership of land. It is more likely that an adoption of a non-Nauruan child was regarded as incomplete until the child had grown up and effectively assimilated with and become part of the Nauruan Community; in other words, until he had done so the adoption was still in an inchoate state and the child did not become a Nauruan until it was complete. On a balance of probabilities I find, that this was the custom of the Nauruans.

The plaintiff, therefore, has not satisfied me that, even on the basis of Nauruan custom before the Second World War, the fact that he was taken from his parents and brought up by persons who were themselves Nauruans constituted in itself an adoption recognized by Nauruan custom. It was the start of what could, by virtue of that pre-Second World War custom, have developed into an adoption recognized by the Nauruans as having the effect of making the plaintiff the son of Tetau and his wife and also of making him a Nauruan. But the adoption would not have been complete until the plaintiff was regarded by Nauruans generally as having assimilated with them. Before he was eleven years old, however, the Adoption of Children Ordinance 1965 had been made and had come into force.

The plaintiff has given evidence that child endowment allowance was paid in respect of him from 1961 onwards; under the Social Service Ordinance 1961 it was payable only in respect of Nauruan children, until in 1966 the Ordinance was amended and the allowance became payable to Pacific Islander children also. The head Chief and the Secretary of Nauru Local Government Council have both given evidence, however, that they always believed that Pacific Islander children living in the Districts were entitled to the allowance and that the allowance was, in practice, always paid in respect of them. In view of the amendment made to the Ordinance in 1966, there is no reason not to accept that evidence as true and I do not regard payment of the allowance in respect of the plaintiff as evidence of acceptance by the Council that he was a Nauruan.

The plaintiff has also given evidence that he was allowed to sit the scholarship examinations in Grade 6, Form 1 and Form 3. The Secretary to the Council has admitted that precautions are taken to prevent non-Nauruan children from sitting scholarship examinations, as scholarships are reserved for Nauruan children. However, he said that the plaintiff had been admitted in error to sit the examinations. The evidence did not establish clearly the years in which the plaintiff sat the examinations.

Documentary evidence that in 1956 and 1963 the plaintiff was regarded as a non-Nauruan was adduced by the defendant; his name was included in lists of other Pacific Islanders compiled by the Administration in those years.

On the basis of the evidence before the Court in these proceedings, I find that by the time when the Adoption of Children Ordinance 1965 came into force in March, 1965, the plaintiff could not be regarded, as required by the pre-Second World War custom referred to above, as having assimilated with the Nauruan Community; he was not old enough to have done so. His adoption by Tetau and his wife was, therefore, not complete by then. Accordingly, it was also not complete by 31st December, 1962, when the Nauruan Community Ordinance 1956 came into force. After March, 1965, it could not be completed, except by an adoption order made under section 21 of the Adoption of Children Ordinance 1965. However, by reason of section 9(1) of that Ordinance no such order can be made, as Tetau and his wife were Nauruans, and the plaintiff a non-Nauruan. Accordingly, the plaintiff has failed to satisfy me that, if in 1954 Nauruan custom relating to the adoption of non-Nauruans by Nauruans was still the same as it was before the Second World War, he became a Nauruan by adoption then, or has become a Nauruan at any time since then, by virtue of his having been brought up by Tetau and his wife.

Evidence has been given by the Head Chief that after the Second World War the Nauruan custom was changed and prohibited the adoption of non-Nauruans by Nauruans. The Head Chief, and after him the Secretary of the Council, were cross-examined extensively with a view to showing that either the old custom was not changed at all or that it was changed after 1955. Addressing the Court at the close of the case, Mr. Adeang submitted that it is an essential feature of custom that it evolves gradually and cannot be changed other than by a process of evolution. That is an interesting submission and doubtless reflects the normal course of the development of custom. However, the Japanese occupation of Nauru during the Second World War and the removal of a majority of the Nauruans to Truk for over two years, coupled with the abnormally high mortality rate among the older Nauruans during those years, cannot but have had a most profound effect on Nauruan society, and wrought great changes in that society. That the years immediately after the war should have seen a thorough-going reappraisal by the Nauruan leadership of the basic aspects of the way of life and the customs of that society was almost inevitable. I, therefore, have no hesitation in accepting the evidence of the Head Chief that the Council of Chiefs, and later the Nauru Local Government Council, initiated changes to some of the old customs. Although the Adoption of Children Ordinance was not made until 1965, I accept the Head Chiefs evidence that a first draft of it was made before 1955 and that it reflected the views of the Council of Chiefs and the Nauru Local Government council on Nauruan custom relating to adoption in the years immediately before it was drafted. I therefore also accept his evidence that by 1954 Nauruan custom had changed and that the adoption of non-Nauruans by Nauruans was no longer recognized as valid. (The Ordinance made statutory provision to this effect.) Consequently, I find that at the time when Tetau and his wife took the plaintiff into their care there was no longer any possibility of their validly adopting him by Nauruan custom.

For the reasons I have stated I find that there was no adoption of the plaintiff by Tetau and his wife such as would change his status from non-Nauruan to Nauruan.

Accordingly, the plaintiff's claim is dismissed. The plaintiff is to pay the defendant's costs, to be taxed by the Registrar.