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Administration of the Territory of Papua and New Guinea v Doriga and Guba [1972] PGLawRp 24; [1973] PNGLR 603 (12 December 1972)

[1973] PNGLR 603

PAPUA NEW GUINEA
[HIGH COURT OF AUSTRALIA]

THE ADMINISTRATION OF THE TERRITORY OF PAPUA NEW GUINEA

V

GUBA AND DORIGA
Sydney

Barwick CJ McTiernan Menzies Walsh Gibbs Stephen JJ

27-30 November 1972
1 December 1972
4-5 December 1972
7-8 December 1972
12 December 1972

REAL PROPERTY - Restoration of Title - Land ownership - Whether particular land owned by native clans - Whether purchased by Crown during protectorate - Capacity of Papuans to sell in 1886 - Authority of Special Commissioner to purchase - Extent of land purchased - Effect of failure to register instrument under subsequent Ordinance - Effect on land of occupation or settlement of country by another power - Effect of Foreign Jurisdiction Acts (Imp.) - Whether acquisition “act of State” - Material relevant to determination of claims - Approach by court to conflicting assertions by natives - Onus of proof where native claims to land in possession of Administration - Order in Council made in 1901 under Land Ordinance 1899 declaring that land would become Crown lands on specified date - Validity - Effect - “Transfer” - Decision in 1954 of board appointed under Land Ordinance 1911-1953 - Questions which may be decided by board - Whether Ordinance impliedly repealed by later Ordinance - Operation of decision of board as estoppel - Right of Administration to appear in proceedings before Land Titles Commission and on appeal - Foreign Jurisdiction Acts, 1843, 1865, 1866, 1875, 1878 (Imp.) - Land Titles Commission Ordinance 1962 (Papua and New Guinea), as amended, ss. 15, 29(1) - Crown Lands Ordinance, 1890 (British New Guinea), s. XVIII - Land Ordinance 1899 (British New Guinea), s. XI and 1901 Order in Council thereunder - Land Ordinance 1911-1953 (Papua), s. 9 - Native Land Registration Ordinance 1952 (Papua and New Guinea) s. 8.

PAPUA NEW GUINEA - Proclamation of British protectorate - Effect generally and on native land ownership - Annexation as British possession - Conflict between Queen’s instructions to Administrator and Ordinance of Legislative Council - Effect of Foreign Jurisdiction Acts (Imp.) - What constitutes an “act of State” - In relation to acquisition of property of aliens outside British territory.

PAPUA NEW GUINEA - Evidence in curial proceedings - Traditional evidence.

CONSTITUTIONAL LAW - Proclamation of British protectorate - Effect generally and on native land ownership - Annexation as British possession - Conflict between Queen’s instructions to Administrator and Ordinance of Legislative Council - Effect of Foreign Jurisdiction Acts (Imp.) - What constitutes an “act of State” - In relation to acquisition of property of aliens outside British territory.

PUBLIC INTERNATIONAL LAW - Proclamation of British protectorate - Effect generally and on native land ownership - Annexation as British possession - Conflict between Queen’s instructions to Administrator and Ordinance of Legislative Council - Effect of Foreign Jurisdiction Acts (Imp.) - What constitutes an “act of State” - In relation to acquisition of property of aliens outside British territory.

ESTOPPEL - Res judicata - Judicial nature of decision - Irrelevance of questions of judicial pow constitutionational sense - Identity of subject matter of proceedings - Identity of parties - Distinction between res judicata and estoppel.

Two separate applications by Papuans, n behalf of the descendantsdants of Daera Guba (the Tubumaga clan), then other on behalf of the descendants of Irama Hada (the Giakone clan) were made in 1966 to the Land Titles Commission under s. 15 of the Land Titles Commission Ordinance 1962 (Papua and New Guinea), as amended, for an order in respect of an area of land of about forty-two acres in the town of Port Moresby. The first application was for registration of the land in the name of the descendants of Daera Guba, the second for registration in the name of the descendants of Irama Hada. Each applicant claimed that his forbears owned the land at the time of the proclamation of a protectorate over the Port Moresby area of New Guinea in 1884 and that neither those forbears nor any of their descendants parted with ownership. The land was also claimed by the Administration of the Territory of Papua and New Guinea, which was in possession of the land. By s. 15 (1) of the Land Titles Commission Ordinance the Commission is given exclusive jurisdiction to hear and determine disputes concerning and claims to the ownership by native custom of, or the right by native custom to use, any land, including a dispute as to whether land is or is not native land. Native land is land possessed by a native or native community by virtue of rights of a proprietary or possessory kind which belongs to that native or native community and arise from and are regulated by native custom. The Commission found that the Tubumaga clan owned the land in 1886 and with the exception of a small portion (7) they did not at any time sell any part of it to the Crown and that the Administration had not otherwise any title to the land, and declared that it was owned by the Tubumaga clan. On appeal to the Supreme Court of Papua and New Guinea that Court at first instance reversed the decision of the Commission except as to a small portion (1) and held that the land belonged to the Administration. The Full Court of that Court reinstated the decision of the Commissioner. An appeal was brought to the High Court in respect of portions 2-6 of the land.

In 1884 a British protectorate over the southern coast of New Guinea, which included Port Moresby, was proclaimed, in the course of which, and by subsequent proclamation, it was stated that no acquisition of land would be recognized by the Crown. The policy of the British Government at the time of the proclamation of the protectorate was that in due course there should be annexation to the Queen’s dominions and settlement.

The Administration claimed that the land the subject of the appeal to the High Court had been acquired by purchase from Papuans in 1886. Prior to the alleged purchase the Special Commissioner commissioned by the Queen had ordered a town to be laid out and surveyed and had authorized the necessary land to be acquired. A surveyor designed the layout of the town and its principal roads and made eye sketches. In a report of an assistant deputy commissioner it was stated that a government agent acquired from the natives for the administration 95 acres for a part of the township, which was all the land required within the surveyed portion of that part of the township. The land the subject of the appeal to the High Court was, with minor exceptions, within a rectangle of 96.6 acres claimed by the Administration to be the 95 acres referred to in the report. Thereafter the surveyed land was included in the records of the Administration as government property and the Administration occupied the land and dealt with it as its own.

In 1888 British New Guinea was constituted a British possession. In 1890 the Legislative Council of British New Guinea passed the Crown Lands Ordinance, s. XVIII of which provided that where the fee simple in the land in respect of which no Crown grant had ever been issued was acquired by the Crown from the owners of such land the acquisition by and the transfer to the Crown should be attested by an instrument which should be recorded in the office of the Registrar-General. This section was retrospective, so as to apply to purchases of land or the acquisition of interests in land made, inter alia, during the protectorate period. No instrument in respect of the subject land was ever registered. The 1890 Ordinance was repealed by the Land Ordinance 1899 which contained similar provisions, not retrospective, and which contained s. XI authorizing the Administrator in Council from time to time by Order in Council to declare that any land which had never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes would within the period specified in the Order in Council become Crown land. In purported exercise of these powers an Order in Council was made in 1901 which ordered and declared that lands, the boundaries of which were given in a schedule “so far as can be ascertained”, were (a) not used nor required nor reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes, (b) were usually described as Paga Hill and Mount Goldie, (c) had an estimated area of about 328 acres, (d) were the subject of a sketch plan open to the public at a specified place, (e) had been unused by natives for more than fifteen years, and (f) unless cause was shown to the contrary would on 31st March, 1902, become Crown lands. The schedule referred to all those pieces or parcels of land “not comprised within any transfer to the Crown” that were situate within precisely defined boundaries. The total area within the boundaries was 475 acres. The boundaries defined were virtually the boundaries of the town of Port Moresby. An instrument under the Ordinance was afterwards registered certifying that the Crown had taken possession of 328 acres, and describing the boundaries in the words which appeared in the schedule to the Order in Council but not containing any reference to land comprised in any transfer by natives to the Crown. The accompanying sketch showed that part but not all of the land the subject of the appeal was in the 328 acres. Thereafter some portions of the land the subject of the appeal were leased to private lessees and some portions were used for government purposes.

Complaints were first made on behalf of the Tubumaga clan in 1941 and 1949 that the Government had taken the lands and had not paid for them. In 1954 a board was appointed under s. 9 of the Land Ordinance 1911-1953 (Papua), and it determined that areas of land which included parts 2, 3, 4 and 6 of the land the subject of the appeal were owned by the Administration.

Held

(1) After considenatiothof ate material received in evidence by the Commission, the Supreme Court and the High Court (which tribunal and Courts, by s. 29 (1) of the , wot bound by the rule rules ofes of evid evidence)ence), inc, including the assertions of the Papuans (which, per Barwick CJ except in respect of some evidence put forward on behalf of the Giakone clan did not include “traditional evidence”, a phrase which means statements of a witness who claims either to have been the repository of the folklore of a primitive community or to have been told relevant facts by some of his forefathers who had an important place in the community) and the records and official documents and other material and weighing the assertions of the natives in light of the probabilities derived from a consideration of the facts of the relevant time as presently known, (a) a Papuan or Papuan clan in the Port Moresby district in 1886 had the capacity according to their own customs, which was the relevant test, to sell interests in land so as to place it in the perpetual possession of the Administration free of claim by the sellers; (b) the Special Commissioner had ample authority to purchase the land for a township; (c) the officers of the protectorate had in 1886 purchased on behalf of the Crown the area of about 95 acres and had as consideration for the purchase handed over trade goods to all the natives who at that time had an interest in the lands; (d) by Barwick CJ McTiernan and Menzies JJ the land then purchased included all the land the subject of the appeal; by Gibbs J at least two areas of the subject land were not include; by Stephen J one of those two areas was not included; (e) the omission to cause an instrument conforming to the requirements of s. XVIII of the Crown Lands Ordinance of 1890 to be recorded in the office of the Registrar-General did not extinguish the title of the Administration to the lands which it had acquired.

(3)(a) Section 9 of the nd Ordinardinance 1911-1953 did not authorize the appointment of a board to decide only questions concerning waste and vacant lands or cases of disputed ownership in which a Papuan was a cnt or questions arising undg under s. 8 of the Ordinance: it authorized the appointment of a board to decide any question as to whether specific land or areas of land were waste and vacant land and also any (“all” in the section being used in the sense of “any”) dispute as to the ownership of any land to a which a Papuan is a claimant;

(b) ;ټ s. 9 wa 9 was not not impliedly repealed by the Native Land Registration Ordinance 1952 (Papua and New Guinea);
) The decision of the boardaoperated as an estoppeloppel; in ; in particular, (i) the task of the board in determining ownership, which was to ascertain the existing facts and apply the existing law to those facts, was work of a judicial nature and its decision as to ownership must, of necessity, be final as between the parties before it or who, having been duly notified, could have been before it: questions of judicial power in the constitutional sense have no relevance in this connection; (ii) there was identity of subject matter in the proceedings before the board and the proceedings before the Commission; (iii) the claimants before the board to land which was the same as land the subject of the application to the Commission were one section of the Tubumaga clan but the other section of the clan were parties to the proceedings before the board in respect of other land, and having had the opportunity and right to present their case before the board in respect of the subject land, were bound by the board’s decision; (iv) by Gibbs J there was nothing in the Land Titles Commission Ordinance 1962, as amended, which indicated all intention that the decision of a tribunal other than the Commission, which in accordance with general principles would bring about an estoppel, should not have that effect. The nature of the estoppel arising from the Board’s decision as res judicata, not issue-estoppel, referred to.

The right of the Administration to appear before the Commission and to appeal from its decision expressly affirmed by Gibbs J.

Decision of the Supreme Court of Papua New Guinea (Full Court) reversed.

Appeal from the Supreme Court of Papua New Guinea.

Counsel

R. J. Ellicott QC, Solicitor-General for the Commonwealth, T. R. Morling QC and M. H. McLelland, for the appellant.
L. J. Priestley and John Hookey, for the respondent, Daera Guba.
J. C. Hartigan, for the respondent, Lohia Doriga.
Cur. adv. vult.

BARWICK CJ: (Cont.)—[The plans appearing on pp. 651, 652 appear at the beginning of his Honour’s judgment.]

Daera Guba, a Papuan, is the son of Guba Daera, deceased, who in his time was head of the Tubumaga Idibana, a part of a clan of Motu people who in relevant times lived in the area of Port Moresby in New Guinea. Each Motu clan has two sides or iduhu’s, in this instance the one known as the Tubumaga Idibana and the other as the Tubumaga Laurina. Daera Guba is now the head man of the Tubumaga Idibana. On behalf of the Tubumaga clan he has laid claim to the ownership of some forty-two acres of land in a portion of the town of Port Moresby, which is known as Newtown. The land claimed has been described by a survey plan prepared by an Assistant District Officer of the Administration of the Territory of Papua and New Guinea at Daera Guba’s request, the boundaries there shown having been pointed out to him by Daera Guba as the boundaries of the land which he claims. These boundaries do not join fixed artificial marks at each point but in places the marks are natural features not of a fixed or permanently placed nature. The name Era Taora, which in the Motu language means flat land at Era, Era being a place name, was assigned by the claimant to the area of land claimed as being its traditional name, and I shall so refer to it in these reasons. It is contained within the letters A-K (excepting I) on the plan with which I have prefaced these reasons. For ease of reference to earlier proceedings and events, the land claimed has been divided into seven sections and each section is numbered and shown by means of different kinds of hatching on the preface plan.

Lohia Doriga, a Papuan of the Giakone clan of the Koitapu people, has also laid claim to the same land on behalf of the descendants of Iramo Hada deceased. Apparently Iramo Hada was the leader of the Giakone clan. Lohia Doriga’s brother is now the leader of that clan. Lohia Doriga is, as he says, its land controller. The Kiotapu people also lived at relevant times in the area of Port Moresby in close association with the Motu people.

Daera Guba on 7th February, 1966, made an application in writing to the Land Titles Commission set up under the Land Titles Commission Ordinance 1962 of the Territory of Papua-New Guinea (the Ordinance) for an order that Era Taora be registered in the names of the descendants of Guba Daera deceased. The application was in due form to comply with the said Ordinance. The descendants of Guba Daera presumably are the Tubumaga Idibana. But at the hearing of this application before the Chief Land Titles Commission, Daera Guba claimed to represent all the Tubumaga people, that is to say, both the Tubumaga Idibana and the Tubumaga Laurina: and his application, without formal amendment, seems so to have been treated by the tribunals of Papua-New Guinea.

Lohia Doriga made a similar application in writing for Era Taora to be registered in the names of the descendants of Iramo Hada deceased, who apparently constitute the Giakone clan of Koitapu. His application bears date 9th February, 1966.

These applications raised a contest between the two Papuan groups and, as well, a contest between each of them and the Administration of the Territory of Papua-New Guinea, as to the ownership of the land as at the respective dates of the applications. The case set up by each Papuan applicant is that his forbears owned the land at the time Her Majesty’s British Government proclaimed a protectorate over the Port Moresby area of New Guinea in 1884 and that neither they nor their descendants at any time parted with that ownership.

The Administration of Papua-New Guinea claims that officers of the Crown purchased on its behalf in 1886 from the people of the area, approximately 95 acres of land at Port Moresby which included substantially the whole of Era Taora as now claimed and that that land has been in possession of the Crown ever since though the Administration of the Territory has at times allowed Papuans to garden on some portions of it which at the time were not required for use by the Administration. Alternatively, the Administration says that what occurred in relation to the land in 1886 amounted to its acquisition by an act of State. The Administration further says (i) that any part of Era Taora which was not acquired by either method in 1886 became Crown land by virtue of an Order in Council made on 19th August, 1901, pursuant to s. XI of the Land Ordinance of 1899 of British New Guinea, and (ii) that the ownership of the land now claimed and in dispute was authoritatively determined as between the Tubumaga and the Giakone people and the Administration by a decision of a Land Board given in 1954, the Board having been set up under s. 9 of the Land Ordinance of the Territory of Papua of 1911 (the Land Ordinance) to decide disputes as to the ownership of land where a Papuan was a claimant.

The Papuans challenge the fact of a purchase in 1886; they deny that the officers of the Crown who are said to have made it were authorized so to do, this challenge involving Her Majesty’s capacity in the circumstances to acquire any land from Papuans and, as well, the particular authority of the officers concerned to do so. The Koitapuans appear to concede that the officers of the Crown purported in 1886 to purchase Era Taora but they raise questions as to the capacity of Koitapu people to sell that land and as to their understanding of such a transaction as an outright purchase. Both Papuans raise questions as to the identity of the boundaries of the land purchased in 1886, if it is found that a purchase was made. The validity of the Order in Council is challenged by the Papuans and the identity of the land which was encompassed in its operation is called in question: it is denied that the area Era Taora was included. They also challenge the validity of the appointment of the Land Board in 1954 and assert that, in any case, its decision as to the ownership of the land was no more than an advisory opinion given to the then Lieutenant-Governor presumably for the purposes of s. 8 of the Land Ordinance and therefore not binding on them or the Land Titles Commission.

The Administration, in its turn, so far as concerns the challenge to the authority to purchase the land in 1886, asserts that the purchase was ratified and adopted by Her Majesty’s Government and by the Administration of the Territory of British New Guinea. The Administration has not sought to rest its claim upon its continued occupation of the land over such a considerable period of time but its possession of the land at the time these applications were filed cannot be ignored in the resolution of the dispute between the parties.

It will thus be seen that the dispute between the parties has ranged over issues of fact and of law. In the proceedings, no living person has spoken of his own knowledge of the events of 1886. No memorandum was made at the time precisely recording the purchase which the Administration claims to have been made, though reference to such a purchase appears in official despatches and reports. The difficulties thus inherent in the nature of the dispute itself have not been reduced by the manner in which it has been dealt with by the primary tribunal in the Territory.

The Chief Land Titles Commissioner appointed under the Ordinance heard the claims of the Papuans on 19th, 20th, 21st, 22nd and 25th March, 1968. He took oral evidence from Papuan witnesses and had available to him a considerable body of official documents connected with the alleged purchase in 1886 and the subsequent dealings with the land. He found that the Tubumaga people owned the land in 1886 and that, with the exception of the portion marked “7” on the prefaced plan, they did not at any time sell any part of it to the Crown. He held that the Giakone clan did not own the land but that they did purport to sell it to the Crown in 1886. He found that the land did not fall within the area covered by the Order in Council of 1901 and that the decision of the Land Board in 1954 was not a decision binding on him nor one which estopped the Tubumaga clan or its members from making or succeeding upon the present claim. His reasons for arriving at these conclusions are quite meagre and uninformative. I shall need to return to them and their insufficiency at a later stage. However, it will be convenient to set them out in full before relating the subsequent curial history of the matter.

“The Land Titles Commission Finds as follows:

(1) That at all relevane time the Tubumaga Clan were the owners of the land the subject matter of these Applications and that, subject to the 1956 and 1957 transactions as to part of the land, it was never sold by them.

(2) ҈ fat, tiom time to e to time, members of other clans were permitted to use the said land because they were married into themaga

(3) tat,Giae ne Coan, as such such, hch, had noad no righ rights in the said land.

(4) &#That the Giakone Clan purn purported to sell the said land to the Administration.

(5) &&#160 OineCo ofCo of 1ugus1ugust, 1901, does not apply to the said land.

(6)p>(6)&#160 &##10;  That ‘Err Tao tbjectbjecter of this Application, is native land land (othe(other thar than the parcels included in the 1956 and 1957 transactions which are Adtratind).

And the Land Titles Commission Holds olds that that the dthe decision of the 1954 Land Board (Exhibit ‘W’) is not a judgment in rem nor does it estop the Tubumaga Clan or members thereof and further that such decision is not binding on the Land Titles Commission.

And the Land Titles Commission Declares that the subject matter of this Application, which is known as ‘Era Taora’ and which is delineated in red on the plan attached hereto, is owned by the Tubumaga Clan the present leader of which is Daera Guba of Hanuabada.”

The Administration appealed against this decision to the Supreme Court of Papua-New Guinea as by s. 38 of the Ordinance it was entitled to do: Lohia Doriga also appealed. That Court at first instance (Clarkson J.) upheld the Administration’s appeal and reversed the decision of the Commissioner except as to one small parcel of land about which no contest remains. It is the small almost triangular piece marked “1” on the prefaced plan. Lohia Doriga’s appeal was dismissed.

However, the Papuans appealed to a Full Court of the Supreme Court which, by a majority (Minogue CJ. and Frost S.P.J Prentice J. dissenting) reversed the judge of first instance, reinstated the decision of the Commissioner and dismissed the appeal by Lohia Doriga. The Administration now by its leave appeals to this Court. Lohia Doriga also appeals, seeking a reversal of the Commissioner’s order and a rehearing of the claims.

Mr. Justice Clarkson was of opinion that the decision of the Land Board that the Administration owned the land now claimed, except the small portion no longer in dispute, was final and binding on both branches of the Tubumaga clan. He also thought that the acquisition of the land by the Crown in 1886 was effective to vest that land, less the now undisputed portion, in the Administration. He was of opinion that the Order in Council of 19th August, 1901, was effective to vest in the Crown any part of the area it described which had not been theretofore acquired by the Crown, and that the description was apt to include the land now claimed.

The Chief Justice held that there was no valid consensual acquisition of the land in 1886; that the terms of the Order in Council of 1901 were uncertain and could not be said to embrace the relevant part of the land claimed; that the Land Board had not been validly appointed in 1954; and, further, that in any case its decision was not binding or authoritative.

Frost S.P.J. was of opinion that the Land Titles Commission was entitled to refuse to find a valid purchase of the land in 1886; that the Order in Council was void for uncertainty and that the Land Board’s decision was merely advisory and not final and binding. Consequently, the majority found no ground for disturbing the findings of the Land Titles Commission.

Prentice J. held that there was a purchase of land including the claimed land in 1886; that the Order in Council was not void for uncertainty and was effective to vest in the Crown land not otherwise in its ownership in the relevant area of Port Moresby and that the Land Board was validly appointed and its decision final and binding.

All members of the Supreme Court rejected the claim of Lohia Doriga.

I shall hereafter refer to the land which is still the subject of dispute, that is, the land the subject of the application to the Land Titles Commission less the areas of land marked 1 and 7 on the prefaced plan, the title to which is no longer in dispute, as “the subject land”. This land is contained in the areas numbered 2 to 6 inclusive on the prefaced plan.

It is perfectly clear from the nature of the proceedings and the fact that neither group of claimants at the date of its application was in possession of the land that it rested upon each applicant to establish the title to the land which he claims as at the date of his application to the Land Titles Commission. This involved each of them in establishing both against the other and against the Administration that their forefathers were the proprietors of the land in 1884, whatever the nature of that proprietorship under their native customs might be. No intervening act of acquisition of the subject land by either applicant or the people he represents is suggested. Thus, proprietorship of the land was an issue which arose primarily between the two claimants: it was an issue to which the Chief Commissioner paid attention and which he purported to resolve. He had before him oral evidence of Papuans who had no personal knowledge of the situation in 1886. Precisely how he chose between the two accounts given to him does not appear. There was, to my mind, no “traditional evidence” given on behalf of Daera Guba but such “traditional evidence” as was given on behalf of Lohia Doriga supported the sale of the land to the Administration in 1886. The question of proprietorship of the land must be decided upon evidence in the sense of material produced before or made available to the Land Titles Commission which, though not being limited by the rules of evidence and being entitled to act upon “information” as distinct from evidence technically admissible before it, could range quite widely in the consideration of facts which were relevant to the question. Both the Supreme Court and, seemingly, this Court are similarly placed, each appellate court also being able to receive information additional to that which was before or available to the Commission. Section 38a (2) (aa) of the Ordinance. In fact the Supreme Court at first instance and on appeal and this Court have done so. But, however wide the area of investigation, the title must be the subject of proof.

Lord Denning, speaking for the Judicial Committee in Twimahene Adjeibi Kojo II v. Opanin Kwadwo Bonsi[dccxi]1, has afforded guidance which is presently relevant as to the approach to be made in making a decision when conflicting “traditional evidence” is offered. He said: “Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanor” (of witnesses) “is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable”.

Here there is a conflict between the accounts, not really of a traditional kind, put forward on both sides by the Papuans. As well, assertion of past history is set up in contesting the Administration’s claim to ownership of the land. In resolving these conflicts, it seems to me that that “evidence” and those assertions should be carefully weighed in the light of the probabilities derived from a consideration of the facts of that time as presently known. If the official records are accepted, as in my opinion after perusal and consideration they should be, there are many facts known about the situation at the relevant time in the area of Port Moresby. I might mention here that there is no trace in the reasons for judgment given by the Chief Land Titles Commissioner of his having set the evidence of the Papuans, such as it was, against the probabilities as far as they could be worked out from the known facts of the situation in Port Moresby in 1886. Indeed he has not provided us with any impressions he gained from the contemporary official documents; or, for that matter, given any indication that he paid heed to them at all in coming to his scantily expressed conclusions.

I have said that there was no “traditional evidence” given by or on behalf of Daera Guba. By traditional evidence I understand statements of a witness who claims either to have been the repository of the folklore of a primitive community or to have been told relevant facts by some of his forefathers who had an important place in that community, a standing which was likely to have made them knowledgeable in relevant respects. But the evidence for the Tubumaga clan in this case did not rise above mere assertion, without any attribution to any forbear of any information as to the asserted fact. Negation of events to which the official records refer was based upon a statement that the witness had not been told or heard of the event. The high point of the Tubumaga’s case in the evidence led on its behalf, in my opinion, was Daera Guba’s statement that “as far as he knew, the land belonged to the Tubumaga people”. a statement which was no more than an assent to a question put in that form.

The evidence in support of Lohia Doriga’s claim did include some traditional evidence which, as I have said, tended to establish a purchase of Era Taora in 1886 and which seems to have been accepted in that sense by the Chief Commissioner, who found that there had been a purchase of Era Taora by the Administration in 1886 from the Giakone clan. But the Commissioner found that, although presumably on his view the “trade” for the purchase was distributed by the officers of the Crown amongst the Giakone and not the Tubumaga, they did not own the land: it belonged to the Tubumaga.

It was a ground of appeal from the Land Titles Commission to the Supreme Court that the Commission’s finding was against the evidence and the weight of the evidence. Section 38 (2) (aa) of the Ordinance. As the Land Titles Commission in this case could inform itself by referring to records and official documents, the oral evidence for what it was worth must be set against and weighed with the considerable amount of relevant official record, see s. 38 (2a) of the Ordinance. This consists largely of the Annual Reports of the Administration of British New Guinea made in 1886 and in 1888, of despatches and communications of which some are included or referred to in those Annual Reports, and survey plans, the details of which in my opinion have bulked disproportionately in the consideration of the case by the Supreme Court of Papua-New Guinea.

The first question is whether the findings of the Land Titles Commission are erroneous, including in the possibility of error the making of a finding against the evidence and the weight of the evidence. It will be error if the findings are against the weight of all that “information” included in the official records and despatches of the time.

The finding of the Commission that the Tubumaga and not the Giakone owned the land can only have been based on the oral evidence before it. Nothing in the official records, in my opinion, touches upon the question whether the land was owned by one group of claimants rather than the other. Certainly nothing supports the claim of the one against the other, not even the presence of Ah-oo-doo, said to be a chief, on the occasion on which the land is claimed to have been purchased, a matter to which I will separately advert.

No examination seems to have been made by the Chief Commissioner of the basis upon which the particular boundary points forming the curtilage of the claimed land were fixed by Daera Guba. We know no more than that he indicated such points to the officer who prepared the survey to which the application refers. We do not know the basis on which he chose such points. From the history of earlier claims which had been made to the land, we do know that the boundary was not precisely constant throughout the period claims have been made to the ownership of the land.

One matter to be noticed is the assertion of the Tubumaga people that they gardened on the subject land in 1884 and before. This does not seem to be borne out by Mr. Cuthbertson’s survey to which I shall later refer and which does not show any gardens on the subject land though he does show gardens elsewhere. Further, although if the official records are to be accepted the Papuans were unwilling to sell land on which they had gardens, they were not unwilling to part with the subject land, as well as other lands, e.g. the Badili lands to which later reference will be made. Also, the land was said in the official records to be unsuitable for agriculture though possibly usable as low class grazing land. The portion most in dispute in the case, an area referred to in the case as “the inner rectangle”, marked WXYZ in the prefaced plan, was said to contain “stony ridges”. True it is that at a later time gardens were made in some undefined and unidentified part of the subject land, but conditions both as to the numbers of the population and as to availability of other areas had by that time probably changed considerably. Although it may be possible that the subject land at some stage and in some seasons in the past may have been used for the making of gardens, whether it was so used by the Motuans exclusively or by the Motuans with the permission of the Koitapu people as the Giakone claim, or by each of them, the Motuans and Koitapuans, as of mutually conceded right, is not capable of resolution at this remote point of time. The relationship between the Motuans and Koitapuans in relation to the land is quite unclear, the Motuans claiming that the only Giakone who gardened on the land were people who had entered the Motu clan by marriage. The Giakone, on the other hand, say that in the course of time they permitted the Motuans to garden on their land, the land remaining in the proprietorship of the Giakone clan. In any case, the fact of the use of land for gardens ought not readily to be accepted as itself evidence and certainly not conclusive evidence of proprietorship of an interest in the land either of the precise area gardened or some area surrounding the gardens. But, of course, such use of land would be confirmatory of a claim, otherwise evidenced, to proprietorship of land in the proximate area of the gardens.

Viewed strictly, it would be my opinion that there was no evidence before the Commission that any proprietary interest in the claimed land was exclusively owned in 1884 by the Tubumaga clan, even if one rejected the evidence given on behalf of the Giakone clan accounting for the presence on that land of Motu people, if that be the fact. All the tribunals have rejected the claim of the Giakone.

However, as the parties and the tribunals of Papua-New Guinea have largely focussed their attention on the claim of the Administration to have acquired the subject land, by one means or another, in and since 1886, I would not wish to decide the case now upon the footing that the Tubumaga clan had not established its proprietorship of the subject land though, in my opinion, they did not. A decision upon the claim to ownership by the Administration does not require a decision as to whether all the vendors to the Crown in 1886 were of one clan rather than of another. That aspect of the matter will appear when I come to treat of the probabilities in the light of the known situation in the area of Port Moresby at the time.

Before turning to consider the probabilities in 1886 in relation to the dispute as to whether or not a transaction then took place which placed in the ownership of the Administration substantially the whole of the subject land, I should make two observations.

First, the capacity according to their own customs of a Papuan or Papuan clan in the Port Moresby district in 1886 to sell interests in land so as to place it in the perpetual possession of the Administration free of claim by the sellers was disputed by counsel for the Papuans. But there were many such transactions referred to in the proceedings of which the validity or effectiveness has never been challenged, the purchasers having after purchase had the benefit of complete ownership and indefinite undisturbed possession of the land sold. Instances of these transactions occurred both before and after the transaction claimed by the Administration to have taken place in 1886 with respect to the land. Further, both Rev. W. G. Lawes who as at 1884 had had more than ten years’ experience of the tribal customs of the people of the Port Moresby area, and his son, who later became Resident Magistrate of the Colony and knowledgeable of those customs, affirmed that the people of the area according to their customs owned and both individually and collectively sold their claims to the possession of land. For example, the Rev. W. G. Lawes in an article prepared at the request of Sir Peter Scratchley and published in the Sydney Morning Herald on 11th March, 1886, said: “The land on the coast is all owned by families, each member having his own plot. They are accustomed to sell their land occasionally. A man who has but little will beg of one who has plenty. Sometimes they loan it for one crop—a short rental really. Often, however, it is an absolute sale. In this case it does not revert to its original owners on the death of the purchaser, but is the property of his heirs for ever. The land in the interior is probably subject to the same conditions. It is very doubtful if there is any really unowned or waste land; there is certainly none in the neighbourhood of Port Moresby. From the coast range of hills, right away to the Laroge River, all belongs to the Koitapu tribe. The thick forests on the banks of the rivers and creeks, in thinly-populated districts, are the most likely to be unclaimed, as the wood is not used by the people, and is too large to be cleared for cultivation of the soil.” Further, their capacity to sell to the Administration was consistently recognized by the Ordinances of the Territory and restraints placed upon any sale by them to other persons, see Land Ordinance 1899, s. VII; The Land Ordinance of 1906, s. V and Land Ordinance 1911, s. 5. Consequently, I am satisfied that it was possible according to the usages of the Papuans of the Port Moresby area as understood by them in 1886 for a stranger to their clans to have acquired land from individuals as well as from groups by outright sale and purchase for value in the form of “trade” mutually agreed. It seems to me, also, that the law which the Proclamation of the Protectorate introduced into the Territory, it being my opinion it did introduce some law, included the recognition of the right and ability of the Papuans to sell their interest in land to the Crown. Commodore Erskine’s announcement at the time of proclaiming the Protectorate clearly related to acquisition by persons other than the Crown.

Further, in my opinion, there is no substance in the suggestion that the people of the area did not understand a transaction of outright sale or that they did not value the “trade” they received for a purchase or that they were unable and did not equate in their own minds the value of that trade with the value to them at the time of the outright loss of possession and proprietorship of the land in the conditions in and under which they then and formerly had used it. By 1886 these people had been in contact not only with the missionaries, but with traders and with the Europeans who in the 1870’s had come to and through the district in search of gold. Also, as I have said, bearing in mind the opinions of the Rev. W. G. Lawes and of his son, the material in this case made it quite clear that the Papuans of this area did sell land from time to time.

Secondly, having read and reread the official documents to which reference has been made in the case, I see no reason to doubt both their general accuracy and the veracity of those who compiled them. Indeed, the more I have read them, the better opinion I have formed of the capacity of those who prepared them and the more convinced I am that they speak of events which actually took place as they are related in the reports and despatches.

I now turn briefly to describe what I understand to have been the situation in the Port Moresby area in 1886 in order to test by the probabilities the validity of the Chief Commissioner’s conclusion that the claimed land was bought in 1886 from a clan which did not own it. The historical facts, most of which are evidenced by the official documents presented in the case, provide the means of assessing that situation.

For more than a decade before 1886 the Australasian colonies had been pressing the British Government to annex so much of New Guinea as had not been occupied by the Netherlands. The interest of the colonists was, on the one hand, to prevent that area being possessed by one of the great powers, and on the other hand, to obtain the opportunity for settlement and exploration by the colonists themselves. There had been a gold rush in what is now Papua in the 1870’s. Neither the parties who had entered at Port Moresby and penetrated inland some distance from the coast nor those who had entered on the eastern tip of the island had had any great success in obtaining gold in commercial quantities. By 1884 almost all had been massacred or had withdrawn from the territories. But the existence of alluvial gold had been established. The only Europeans left in the Port Moresby district by 1884 were the missionaries of the London Missionary Society led by Rev. W. G. Lawes and Dr. Chalmers, a storekeeper named Goldie, perhaps the brothers Hunter, and traders who came and went using the port for their purposes. The port was a good deep water harbour, though reefs as yet unbuoyed existed in it. The London Missionary Society had established a mission on the shores of the port in 1874 in proximity to the Papuan villages in an area of land acquired by purchase from the Papuans of the area. Roman Catholic missionaries had established missions at the eastern end of the Territory. The Argus newspaper of Melbourne had sponsored an expedition into the Territory in the year 1883 and for this purpose had acquired from the Papuans an area of land on which it had erected a building which was known in 1886 as the “Argus Villa”. Mr. Goldie, the storekeeper, had in some fashion purported to obtain rights to this building and the land on which it stood and there conducted his store.

The coastal area of Port Moresby was inhabited by Motuans and Koitapuans. They dwelt in villages consisting of houses erected on stilts at the margins of the land and extending into and over the tidal flats. Their villages were adjacent to and scarcely separated from one another. Some intermarriage between members of the two groups appears to have taken place. Neither group at any time resided on the land claimed in these proceedings, which would be about forty chains from their villages.

The general topography of the area was that there was some generally flat land between the sea and the hills behind the port with swamps and jungle in places between the relatively flat land and the beach. Beside the range of hills behind the flat areas there were two hills near the shore known respectively to the Europeans as Mount Goldie and Paga Hill. These two hills separated the “usable” relatively flat areas. The land generally was not suitable for agriculture though it could be used to some extent for grazing of a kind. In particular, the subject land was said to be arid and useful only to be hunted over when wallabies and other game frequented it.

The Papuans as of that time were singularly savage and given to reprisal raids on one another in which barbarous killings took place, frequently of women and children who were the easiest caught or waylaid. In addition, they suffered either from occasional drought or were at times so terrified of neighbouring groups as to be unwilling to cultivate the gardens from which they derived some of their basic food. Consequently, though the sea provided food, from time to time the villagers were in danger of extinction by slaughter, by starvation or by disease which apparently was rampant. Thus the subject land had significance to the local people either as ground over which to hunt and perhaps as ground on which from time to time to make gardens.

At least by 1882 the British Government was minded to yield to the pressure of the Australasian colonies for the annexation of at least part of New Guinea, provided the colonies would pay the cost of the administration of the colony when formed. The German occupation of what is now New Guinea was a factor in moving the Government to action. As an interim measure therefore, pending the conclusion of the negotiations with the colonies for suitable financial guarantees in respect of the cost of administration, the British Government in 1884 decided to declare a protectorate over the southern shore of what is now Papua and despatched an expedition in charge of Commodore Erskine to make the proclamation.

It is very important, in my opinion, in connection with the consideration of the material available for decision of the questions arising in this appeal to observe that the policy of the British Government at the time of the declaration of the protectorate was that there should be settlement in New Guinea when the Territory was annexed but that there should be no disturbance of the Papuans in the enjoyment of their use of the land except in so far as the Government might purchase land or acquire it by compulsion for public purposes or supervise any permitted purchase by intending settlers. To anticipate a matter yet to be dealt with, it might here be observed that included in the “public purposes” of the protectorate was undoubtedly, in my opinion, the acquisition of land not only for immediate government use but for later sub-sale to settlers to enable settlement to take place in a controlled fashion and for the colony to develop consistently with government policy. These purposes clearly included the acquisition of land for a township adjacent to the port, itself already in use by traders. By the Crown acquiring land and providing it for settlers the Administration would be able to control the number of settlers and the standards at which they were to live, as well as preventing the exploitation of the natives. Further, it was realized as is evidenced in the documents that it would be necessary for the Administration to sell land as a means of assisting to defray the cost of administering the intended Territory. Port Moresby was to be a, if not the, principal point of entry into the area to be annexed.

Thus the policy of preserving the use of the land by the Papuans was to be implemented by preventing any persons other than the Crown from purchasing from them any interest in land and by the Crown limiting its compulsory acquisition of land to acquisition for public purposes. From a close perusal of the official documents the position in 1886 was that settlement of the intended colony was contemplated with the abovementioned consequences.

The Protectorate was proclaimed on 6th November, 1884, at Port Moresby, by Commodore Erskine aboard the H.M.S. Nelson. In fact, a Deputy Commissioner under the Western Pacific Island Order in Council, Mr. Hugh Romilly, had purported to declare the Protectorate some little time earlier. The area of land described in the proclamation by Commodore Erskine was extended by him in a second proclamation. As amended, the area of the Protectorate extended from the boundary at 141°E of the area claimed by the Netherlands to East Cape along the southern shores of New Guinea, including all adjacent islands, the islands in the Goschen Straits, the D’Entrecasteaux group and islands adjacent. The declaration of the Protectorate was effected in the presence of a considerable assembly of Papuans. It had the approval of the missionaries under Rev. W. G. Lawes and the acceptance of the chiefs and leaders of the Papuans who were present. Commodore Erskine, in a despatch of 14th November, said that the “Proceedings” (i.e. the declaration of the Protectorate) “have given pleasure to the natives, who place themselves with confidence under Her Majesty’s protection”. In his proclamation Erskine, in coformity with the policy I have outlined, proclaimed and declared “that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty”. On leaving the area, Commodore Erskine left Deputy Commissioner Romilly to administer the Protectorate until the Special Commissioner should arrive. A commission was issued to Major-General Peter Henry Scratchley R.E., C.M.G. on 20th November, 1884, to be Her Majesty’s Special Commissioner for the Protected Territory of New Guinea. In order to give him judicial authority over British subjects he was appointed a Deputy Commissioner for the area of the Protectorate under the Western Pacific Orders in Council. General Scratchley was not long in the area. He arrived on 28th August, 1885, and, having become ill, he left on 29th November, 1885. He died at sea while on his way from Cooktown to Townsville on 2nd December, 1885. However, before he left the Protectorate he was officially informed of the British Government’s intention to annex the area comprised in the Protectorate. As well, in that time, according to the report written by G. S. Fort, his official secretary, certain land was acquired by the Special Commissioner acting under his commission and instructions. The commission authorized and directed him “to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient . . .” In my opinion, the acquisition of land for government purposes and for settlement was included in such matters.

Mr. Anthony Musgrave Junior was an Assistant Deputy Commissioner during this time. His reports are the source of much information, though challenges have been made on this occasion to their accuracy. As I have indicated, having considered the various criticisms, I am prepared to accept the reports as substantially accurate. From his reports and a report of Rev. W. G. Lawes, the London Missionary Society missionary, we learn that, though the particular clans had headmen or leaders, there were really no chiefs amongst the Port Moresby Papuans who exercised authority over the tribes or clans or who exacted service from them. But it would seem that amongst the headmen, sometimes referred to as chiefs in the official documents, one was by common consent of the Papuans regarded as the principal or senior. Thus Erskine found “Boi Vagi” to be the most influential chief in the Port Moresby district and to him he presented a stick mounted with a florin as “an emblem of his authority”. Amusingly enough, Erskine found that Boi Vagi “was in the habit of flying a Union Jack” which had been given to him on the occasion of the attempted annexation of the area by the Colony of Queensland in 1883. Erskine apparently felt this inappropriate and, as he says, by the use of “a little diplomacy” obtained it from him, replacing it with a blue flag “on which a ‘Bird of Paradise’ was represented in all its gorgeous plumage, on a white ground”. Though Boi Vagi was described as “a mild-mannered man”—no doubt a comparative description in relation to his fellow Papuans—it was said that “there was . . . no better person to whom” Erskine “could have given” a “ ‘badge of office’ ”. Boi Vagi died on 1st April, 1885. On 7th April Aoudou—at times spelt Ao-oo-doo—“was promoted to the position”—i.e. of chief—“owing chiefly to a number of the native villagers having signified their desire that he should be so chosen”. He too, at forty years of age, was said to be of “a mild and docile disposition”.

During the time General Scratchley was Special Commissioner, land was acquired from “the Motu and Koitapu people of the villages adjacent to the London Mission Station in the same manner that the representatives of that Mission originally obtained sites for their buildings and gardens”. These purchases at least included plots of land for the site of the Government Bungalow and a strip of land about four chains in width for twenty chains along the harbour extending southerly from the “Argus Villa” (see prefaced plan). For these purchases the Special Commissioner undoubtedly gave express authority to Assistant Deputy Commissioner Musgrave. This written authority, or rather instruction, extended to the purchase of “all desirable sites” “at a moderate cost; if any reluctance defer”.

On 26th December, 1885, John Douglas, who had given distinguished service in the political life of the Colony of Queensland, was appointed Special Commissioner for the Protectorate in succession to General Scratchley. His commission was in like terms to that issued to the General. In his instructions it was made clear to Douglas that because of the views then entertained by Her Majesty’s Government as to the consequences of proclaiming a Protectorate, he was not empowered to make laws to bind persons other than British subjects—a matter which has given rise, in my opinion, to some confusion in this case and to what I think are irrelevant references to the Foreign Jurisdiction Acts (Imp.), a subject on which I have need to touch later. Douglas took the view, and I think quite rightly, that it was within his duty and authority to prepare the Protectorate for settlement in accordance with what he rightly conceived government policy to be in that connection. Assistant Deputy Commissioner Musgrave was an officer who had arrived in Port Moresby on 17th June, 1885. He first dwelt with Rev. W. G. Lawes at the mission station for a period of some months. During this time he set about preparing himself for his duties in the Administration, moving amongst the villages and acquainting himself with the ways and customs of the Papuans of the Port Moresby area. He was Assistant Deputy Commissioner under General Scratchley and became a Deputy Commissioner under Special Commissioner Douglas. He shows himself in the reports to have been a competent, careful and just officer who had established himself in the confidence, if not indeed in the esteem of the Papuan population.

Douglas extended the instructions given to Musgrave by General Scratchley and ordered a town to be laid out and surveyed. He authorized the necessary land to be acquired. To this end Douglas secured the services of a survey team led by Walter R. Cuthbertson, a surveyor who had carried out survey work in North Borneo and Northern Australia.

The topography of the country dictated the site of the township and required that it have an east and west wing because of the existence of the hills to which I have referred. By the time a native reserve, a public area and government domain were provided, it was quite obvious that the eastern section of the proposed town must be on the relatively flat area of which Era Taora forms a considerable part. That area is encompassed in Mr. Cuthbertson’s eye-sketch of Granville East, to which reference will later be made. The jungle and swampy land adjacent to the harbour assisted to dictate the position of the town in relation to the harbour and the rising ground towards the mountains on the east determined its inland margin.

Thus the topography of the area made it quite plain that the only land suitable for a township lay between Paga Hill and Goldie Law to the south-west and between Goldie Law and Government Bungalow to the north. Although no record of them is extant, it is obvious from the official documents seen in connection with this case that Douglas must have given written instructions to Cuthbertson before July 1886 to design and survey a town in the area with two wings, each rectangular in shape. He had already sought and obtained the assent of Lord Granville to the naming of the town “Granville”. The surveyor, having designed the layout of the town and of its principal roads, made what he termed eye sketches. Of these, two are extant and with the papers in the case. They clearly show the intended shape and the approximate, indeed almost the precise, location of the two sections of the town. On these sketches there was a rectangular area marked “Township Site” lying to the north of Goldie Law and a rectangle, nearer to a square, fronting the sea between Goldie Law and Paga Hill similarly marked. Accordingly, one of the rectangles was to be Granville East and the other Granville West.

Mr. Robert Hunter, who had been a Native Protector under General Scratchley, was by this time a Government Agent. He was one of two brothers who had been in the area quite some time and who had established a considerable rapport with the Papuans. He had been sent by Douglas as a peacemaker between Papuan clans on a number of occasions and had been singularly successful. There is no basis on which it can be suggested that either Musgrave or Hunter set out to cheat the Papuans or the Crown. Rather both appear to have been most responsible officers. Musgrave in particular was extremely conscious that he was laying the foundation of a settlement of which the success must depend so largely on the continued goodwill of the Papuans. They had early experience of negotiating with the Papuans in the purchase of the Badili lands where, incidentally, according to the purchase note, the “trade” was unequally distributed amongst the vending Papuans, evidently in proportion to their claims. I would expect a similar situation to have obtained in a purchase of the land for East Granville, though no similar purchase note was made out in respect of that land.

Musgrave reported that between 8th July and 8th October, 1886, Hunter acquired from the Papuans for the Administration ninety-five acres for Granville East township and that in all in that time he acquired all the lands required within the surveyed portion of the settlement, newly entitled “Granville”. The subject land is, with two relatively minor exceptions to which some reference will need to be made, wholly within a rectangle containing about 96.6 acres and which it is said by the Administration was the land to which Musgrave referred as 95 acres.

Much time was taken in argument as to the authority of the Administration and its officers to purchase land in 1886. I find little profit in pursuing that matter in any detail for undoubtedly, if a purchase were made for the Crown and those who authorized or effected it lacked antecedent authority, the purchase quite clearly was ratified. Neither the Administration under the Protectorate nor the Administration under the colonial regime disowned the purchase. The subject land was included in the records of the Administration of the Territory after annexation as government property. The Administration occupied the land and dealt with it as its own over a long span of years.

However, as I will point out later, in my opinion there was ample authority in Douglas and, through him, in Musgrave and Hunter to make a purchase of land for the township of Granville East just as there was authority for the purchase of land for Granville West or for the Badili lands which were firstly acquired. These Badili lands were situated on high ground to the south-east of Goldie Law and to the east of Granville West. They are shown on the prefaced plan. They were acquired before the subject land or the land for Granville West in case the Papuans should refuse to sell land more desirable for a township than the Badili lands. The reluctance of the Papuans was thought to be likely to stem from the encouragement of the Papuans to obstruction of the Administration by beachcombers who had married into the Papuan families. It is interesting to note that the possibility of Papuan reluctance to sell was not placed upon the fact that any garden existed on any of the 95 acres of land of which Musgrave speaks in his report. It is observable that where gardens are known, in fact, to have been in use, the Papuans did refuse to sell. There is a considerable official file in that connection on the question of the ownership of the springs and the adjacent gardens which lay to the south of the Government House grounds. There is a reference in a report by Musgrave to gardens in the area of Port Moresby but their location is not indicated. The reference could have been to the gardens adjacent to the springs. These would not be located within the subject land. But in any case if there were any gardens on the subject land between 1884 and 1886 both Musgrave and Hunter must have known of that fact and of the identity of the Papuans using those gardens, and whether Motuans or Koitapuans or both.

The Papuans at the time of the proclamation of the Protectorate were in great need of protection from each other because of the savagery of their reprisal raids and also from foreigners who came to the area. Such protection was included in the avowed purposes of the proclamation of the Protectorate. In the case of some other Papuans, the Doran people, their willingness to sell land to the Administration was recorded as being expressly influenced by the fact that as a consequence of doing so there would be protection for them against the raids of their neighbours. Further, apparently the Papuans stood in great need of and were desirous of obtaining the items which are called “trade” in the documents.

The situation therefore in 1886 was that there had been a decision made by Douglas that a township was necessary at the port of entry. The employment of the relatively level ground at the location of Granville West and what became Granville East was evidently decided upon as the site for the two wings of the township. The Papuans had reason to accept, if not indeed welcome, the establishment of settled conditions in the area. We know from the eye sketches what the respective shapes and approximate locations of the two wings of the township were designed to be and to occupy. Cuthbertson in reporting on his work said that he had carried out his survey in accordance with his instructions only making diversion, presumably because of physical features, which he felt were necessary. The eye sketches which he made are quite evidently in conformity with the instructions which he had. The significant features of his report, to my mind, are these: that he had identified the four corners of the rectangle at Granville East. I do not understand a suggestion that he had not marked or, as it is said, “surveyed” these four corners. They are to be seen on his survey quite distinctly and their bearings precisely stated. He said that, as yet, the area had been sectioned into eight sections of which two had been broken up into allotments. He said that the external roads of the area he had surveyed were of two chain width and internal roads were of one chain width.

It would seem that the survey was finished before the purchases by Hunter were complete. I cannot doubt that Musgrave’s instructions to Hunter were to acquire so much land as would enable a rectangular area to be provided for Granville East in the approximate location shown in the eye sketches. He could have no reason whatever for not doing so. It was the obvious and practically the only place at which to locate the east wing of the township. Thus, Hunter must have set out to acquire land which would contain, though not necessarily be limited to, a rectangular area located approximately where Cuthbertson ultimately surveyed his rectangle for East Granville.

It is quite unthinkable that Hunter, dealing with a number of individual owners but in some instances perhaps with a group of owners, purchased over a period and from these owners a precisely rectangular shaped piece of land. It is also unlikely that the boundaries of the land, which the Papuans in totality were prepared to sell, coincided with a rectangle. Indeed, the actual boundaries of their land may in any case have been vague in their own minds, particularly bearing in mind the possibility that it was a usufructuary title which they claimed. When Musgrave speaks as he does in his reports of having acquired land within “the surveyed portion”, he cannot in my opinion be taken as saying that he acquired for the purpose of Granville East some area which was less than the rectangle which it seems to me it was Cuthbertson’s instructions to survey. He must be saying that sufficient land was acquired to serve the requirements of the intended township.

Set against these facts and the situation as it was in Port Moresby at the time, I see no reason to doubt that Musgrave and Hunter did purchase the interests of the Papuans in so much land located suitably to provide a rectangular township of Granville East having an approximate area of 95 acres. It is inescapable, in my opinion, that both Motuans and Koitapuans knew of Hunter’s activities in this connection over the period of three months and of the transactions he was entering into with Papuans of the area. Hunter, for his part, by this time an experienced officer, was able to refer to Rev. W. G. Lawes and the missionaries if he were in doubt as to the identity of the person or persons with whom he was dealing. Rev. W. G. Lawes, for his part, was keenly interested in the welfare and entitlements of the Papuans. He must have been aware of Hunter’s activities.

I would conclude that Hunter would be most unlikely not to satisfy himself as to the claims of the persons with whom he was dealing; the more so, since, as Rev. S. McFarlane, an experienced missionary, said in a public lecture in 1886, it was common experience to have competing claims to land by Papuans at that time. It would be very surprising if Hunter, having regard to his experience in the area, did not satisfy himself that the right of the person to whom he gave the “trade” for the land was acknowledged by his fellow Papuans as the person to receive that “trade”.

I have earlier mentioned the warlike nature, indeed the savage disposition, of these people. I did so having regard to the suggestion that only some Papuans of the area sold land in 1886 and that they were not proprietors of the land they purported to sell. The total number of males of both tribes in the area must at the time have been of the order of not more than five hundred. We are told that there were 800 people in all, men, women and children. The land being dealt with was in proximity to their villages. The transactions were spread over a period of three months. I find it inconceivable that there could have been a peaceful result if the Koitapuans sold Motuan land and received for it trade which was denied to the Motuans. I notice a suggestion of the Chief Justice of Papua-New Guinea that maybe some of the Papuans might have been away trading. No doubt from time to time they did so. Many were away at the time Commodore Erskine raised the flag as he records in his despatches. But, as I have mentioned, this series of purchases was spread over a very substantial period of time. There is no evidence which would make it probable that in that period a substantial number of Papuans would be away from that area. In any case, their relatives and connections would know of the transactions. Hunter’s activities must have been an event of great importance and no doubt so treated by the local inhabitants. I feel quite sure Hunter would have been appraised if there had been an absent claimant to any of the land. According to the references to him in the official documents, Hunter showed himself an officer of such quality that he would be unlikely not to have ensured that the absent owner was consulted or the transaction left over until he returned. Further, Aoudou, to whom I have already referred, accompanied him when making his transactions.

I find these probabilities much more convincing than anything I have read in the evidence given before the Commissioner by Daera Guba or heard from counsel on this appeal It is quite unacceptable to my mind that the real claimants to the land or even their relatives or connections stood by whilst others without claim to it were given coveted items of trade as its price. As I have said, these were belligerent people given to quite savage, at times quite inhuman, acts of revenge or reprisal where it was felt or even imagined that some wrong had been done to themselves or their kinsfolk. I just cannot conceive that a proceeding with respect to the acquisition of land, publicly carried out because of the habit of walking the bounds, could have resulted in other than carnage if the rightful claimants were not satisfied parties to the transactions. Nor can I believe that the missionaries, who appear in the official records to have been highly solicitous for the land interests of the Papuans would not have intervened. With transactions spread over a matter of months, it is quite unlikely that the missionaries would not have become aware of what was happening to land in sight of the mission station.

In my opinion, the decision of the Chief Land Titles Commissioner that the land was bought from the wrong clan is insupportable. On the narrowest view, there was, in my opinion, no evidence to support it and on the widest view it was not in accordance with the evidence and is against its weight and significance. There is no need in order to support the conclusion that the claimed land was purchased by the Administration in 1886 to decide which clan was claimant to any specific part of the land purchased. Suffice it to conclude that the people of both clans must have known of and if both were claimants, participated in the transactions. In any case they must have been satisfied with the purchases.

I would conclude therefore that there was a purchase for value by the agents of the Crown of a total area of at least, but more probably than not more than, 96.6 acres of land which included the whole of the interests in the subject land, Era Taora, from those Papuans of the Port Moresby district who were then the proprietors of the parcels of land making up that total and that those Papuans then voluntarily sold their interests in the land to the Crown through its agents for items of trade with which they were then content.

As I have said, it is not to be thought that Hunter in making his sundry purchases from the Papuans would confine himself precisely to a rectangular piece of land, though Cuthbertson had concluded his physical survey by 9th September, 1886. There would be little sense in leaving over to the Papuans some small areas on the margins of the rectangle, particularly having regard to the nature of the trade exchanged for the right to the land. If Era Taora was a specified parcel of land in Papuan proprietorship in 1886, then in my opinion it is more than improbable that Hunter would not have acquired the whole of it, though in truth its eastern boundaries did not correspond precisely with the eastern boundary of the rectangle marked out by the four corner pegs set by Cuthbertson. Nor would it be likely that the Papuans would keep such small areas so created. I doubt if that area was suitable as at that time for gardens. At any rate, nobody has suggested that it was.

I turn now to deal with the identity of the purchased land within the surveyed rectangle of East Granville.

Before doing so, I will digress to deal with a matter to which considerable argument was devoted both in the tribunals of Papua-New Guinea and in this Court, namely, as to the effect of the Foreign Jurisdiction Acts, 1843, 1865, 1866, 1875, 1878, upon events in the Protectorate. It seems to me that the submissions based on those Acts were misconceived. The purpose of the Foreign Jurisdiction Acts was to enable the Crown to set up courts and exercise jurisdiction over British subjects in foreign places where the Crown had acquired rights of dominion short of sovereignty. The purchase of land or of interests in land consensually, in my opinion, is not affected by those Acts. Such an acquisition is not an exercise of jurisdiction over any person in any relevant sense: and particularly not an exercise of jurisdiction over British subjects. It seems to me therefore quite unnecessary to discuss the scope of the Foreign Jurisdiction Acts, though it might be remarked that both Major-General Scratchley and Special Commissioner Douglas had their difficulties in dealing with offences by Papuans having been formally given jurisdiction over British subjects only during the time of the Protectorate.

In the course of discussion of the Foreign Jurisdiction Acts and as part of an argument that the Special Commissioners during the period of the Protectorate had no authority to acquire land for a township, reference was made to the limited authority taken by the proclamation of a Protectorate. It is fairly clear that as of 1884 the view of the Crown advisers was that proclamation of a Protectorate could not give to the Crown any jurisdiction over foreigners or over the indigenous people of the area over which the Protectorate was proclaimed. This, in my opinion, was an erroneous view. It was then and certainly is now. It seems to me that the extent to which the Crown obtains power over British and non-British persons in a Protectorate depends very much on the purposes for which the Protectorate is proclaimed and the situation in the area of the Protectorate, particularly as regards local sovereignty or authority. The Protectorate declared in 1884 is a very good example. The express purpose of establishing the Protectorate was to protect the Papuans, both from foreigners, British subjects and, indeed, from themselves in order that they might enjoy the use of their land in peace. That purpose could not be carried out without exercising authority both over the foreigners and the Papuans as well as over British subjects. The usual purpose of the declaration of a Protectorate was really absent in relation to Port Moresby, that is to say, the purpose of taking charge of external relations of the community occupying the Protectorate. There was little possibility of there being any external relations for Port Moresby beyond the physical exclusion of non-indigenous people who might come either forcibly or deceitfully to take Papuans’ land or the Papuans themselves for use as agricultural workers elsewhere. It seems to me that so far as acquisition of authority over the Papuans was concerned, it should have come with the declaration of the Protectorate.

However, it is quite proper, in my opinion, when construing the instructions given to Major-General Scratchley and Special Commissioner Douglas, to remember that the then current view was to the contrary: and the instructions denied the Special Commissioner the authority which, in my opinion, the declaration of the Protectorate of the area of Port Moresby could have warranted: hence the attraction of judicial authority for the Special Commissioners through appointments under the Western Pacific Order in Council.

But even so, bearing in mind what I have already said as to the intention with which the Protectorate was established, those instructions were, in my opinion, quite ample to warrant the purchase of land from the Papuans. The purchases which took place were, in my opinion, within the direction “to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient”. The acquisition of land for a township was clearly, in my opinion, in the interest of the service of the Crown.

During the period of the acquisition of such land, there was an interchange of correspondence by and with Rev. W. G. Lawes and Special Commissioner Douglas as to the acquisition of land compulsorily from Papuans. But the objection raised by the missionary was to wholesale compulsory acquisition with a view to sub-sale to settlers and to the encouragement of large-scale settlement. Though the British Government in its communications with Douglas required a standstill so far as compulsory acquisition was concerned, there was certainly no attempt to interfere with his purchases of land consensually. Further, it does not appear that Rev. Lawes pursued the matter beyond the stage which the correspondence represents. I do not know whether Rev. Lawes saw Musgrave’s report upon his, Rev. Lawes’ letter but, for my part, that report adequately answers the criticism which the Rev. Lawes sought to make, even allowing for some antipathy which may have existed between the officers and the missionaries. But, as I have said elsewhere, the question of authority to acquire consensually is really not worth pursuing because of the adoption by the Government and the Administration of the purchases by numerous subsequent Acts.

It was submitted that the omission to cause an instrument conforming to the requirements of s. XVIII of the Crown Lands Ordinance 1890 of British New Guinea to be recorded in the office of the Registrar-General destroyed any title to the subject land which the Crown may have had before the passing of that Ordinance. The Ordinance was passed on 12th November, 1890. Part II of that Crown Lands Ordinance provided that: “Where the fee-simple in land in respect of which no Crown Grant has ever been issued is acquired by the Crown from the owners of such land the acquisition by and the transfer to the Crown of such land shall be taken in the name of Her Majesty and shall be attested by an instrument in writing under the hand of the Administrator and the Seal of the Possession which shall be recorded in the office of the Registrar-General as hereinafter directed” (s. XVIII). By s. XX of that Ordinance the provisions of s. XVIII were made to apply to all purchases of land “made on behalf of the Crown by any officer of the Crown at any time prior to the passing of” that Ordinance, including the period of the Protectorate.

But little need be said of the submission. Part II of the Ordinance is not directed to the granting or confirmation of title to land. Expressed in mandatory terms it is concerned with the recording of land transactions. It is not in terms or intention privative. How far, if at all, the local administration could validly bind the British Crown in such a matter as the title to land which had been acquired by the Crown need not be considered, for the submission clearly lacks substance.

I turn now to the question of the identity of the land purchased. Here the contention is that only the land marked out by Cuthbertson as sections on his survey was acquired. The foundation of much of the argument in support of this claim is the circumstance that in his final survey Cuthbertson laid out only eight sections of the intended township, or possibly eight full sections and two half sections. Emphasis is thus placed on the U-shaped area which is not sub-divided at all, called in argument the “inner rectangle”.

A great deal of time and effort has been employed by the officers of the Administration and the tribunals of Papua-New Guinea both in connection with the present claim and in connection with earlier claims, in an endeavour to find precise correspondence between areas mentioned in reports and despatches and the survey made of the Port Moresby area by Cuthbertson. I have already indicated the complete improbability that the land acquired corresponded precisely with the rectangular plan of East Granville, or with the actual area included in the four external survey pegs of that rectangle. It is probable to the point of certainty in my mind that the area acquired exceeded the boundaries of that rectangle, e.g. area 5 on the prefaced plan if in truth it ever formed portion of Era Taora. But, as the additional areas beyond the content of that rectangle were likely to be small and insignificant for the purposes of the Crown and as undoubtedly these were not indicated by any fixed points of survey or identification, it sufficed the purpose of the officers of the Crown to speak of the content of the rectangle as the area of land acquired. It will be noticed in this connection from the material in the case that the boundaries of the Badili lands walked with the vending Papuans enclosed a larger area than that ultimately surveyed. But it is a proper inference, as I have said, that the whole of Era Taora, as now described by Daera Guba, was purchased in 1886. That means that the small areas marked 1 and 7 on the prefaced plan as well as the area marked 5 were acquired, though as now claimed they are outside the boundaries of the rectangle constituting Granville East. It may well be that on this footing the small area No. 1 on the prefaced plan, which is now no longer in dispute, might have been claimed by the Administration and that an area between the boundaries of the rectangle and that small area (area No. 7) need not have been purchased as in fact it was. But so to say is not to criticize the caution exercised by officers of the Administration in times of uncertainty.

Bearing in mind the eye sketch, the decision to create the township, the availability of the land, I cannot conclude that Musgrave and Hunter would purchase only enough land to provide a U-shaped township, if indeed that shape could have been thought in the least to be practical. These men, judged by the reports and despatches, had that farsightedness which was at times displayed by those entrusted with the creation of colonies. A U-shaped township with indigenous use of land as of right in the “inner rectangle” would, to my mind, have been anathema to them.

Further, one could scarcely expect any precise correspondence in accounts of areas acquired when in any case they were estimates. They should not be approached at this remove of time as if they were surveyor’s calculations. But, having listened to the arguments of counsel and read what has been written by officers such as Mr. Champion and by the Judges of the Supreme Court, I find no such inconsistency in the accounts and estimates given and referred to in the reports and despatches as would convince me that I should conclude that insufficient land was purchased to provide land for a township of Granville East, rectangular in shape and placed between the four survey pegs placed by Cuthbertson at the four corners of the surveyed rectangle. The fact that the Badili lands were acquired against the possibility that the Papuans would refuse to sell the desired land and that the Badili lands were not used for a township eloquently confirms Musgrave’s account of Hunter’s acquisition of all the necessary land within the surveyed area which, in my opinion, cannot be confined to the U-shaped area on which so much store has been set by the applicant’s counsel.

It must be borne in mind that Cuthbertson was short of time to do his work of surveying, he had had inclement weather and he had suffered some physical inhibitions. It is observable from his contours that the area within the U-shape on the survey is the beginning of a slope or hillside marked as stony ridges, a part which no doubt could be left till last in the development of the town. He said in his report that the external roads of his surveyed area were of two chains width and internal roads of one chain width. That statement can only be true, in my opinion, of a complete rectangle constituting Granville East, although in his plan he did not carry the external road on the east right through from north to south of the rectangle. External roads of that area are not two chains in width and, indeed, there is no external road along the half sections shown in Cuthbertson’s survey or, if the half sections are ignored there is only a one chain road along the eastern boundaries of sections of IV and V. As I have already mentioned, too much emphasis, in my opinion, has been placed on the fact that Cuthbertson did not complete the sub-division of the entire rectangle, so much so that the other obvious and convincing factors to which I have referred have been overlooked or their importance neglected. Indeed, Cuthbertson himself observed in his report that what he had done would enable the sub-division to be completed by merely chaining off from the surveyed marks he had put in place.

It is apparent to me that the officers of the Administration over the years have been undecided as to the exact position in law of the title to the claimed land. Also, the decision of the British Government not to dispossess the Papuans of the use of their land upon annexation apparently has created considerable difficulty in administration because of the uncertainty of the extent and nature of the claims of Papuans, the identification of land to which any Papuan claims related and of the effect of occupation or settlement of the country by the British. The various attempts by Ordinance to provide for the resolution of these titles is sufficient evidence of this concern on the part of the Administration.

Indeed, this uncertainty has led in my opinion to a number of incidents in connection with the claimed land. In the first place the small area marked 1 on the prefaced plan has not been treated as covered by the purchase, as in my opinion it was, if it formed part of Era Taora in 1886. Secondly, an area along the external boundaries of the rectangle, the area marked 7 on the prefaced plan, was purchased in 1956 and 1957 from the Papuans whereas again, in my opinion, if it formed part of Era Taora in 1886 it was included in the purchase and, thirdly, a lease was taken in 1931 from Daera Guba and other Papuans of land surrounding a well, evidently in my opinion by an Administration which was unsure of the result of the purchase in 1886.

I might at this point, having mentioned the lease of the land surrounding the well, relate the brief circumstances of this lease.

A lease of an area of about 15 acres was granted by the Administrator in the year 1928 to Port Moresby Golf Club for a golf course. Within the area there was a well near which Papuans gardened. The Administrator took a lease of an area of about .875 acres which included the well from a group of Papuans which included Daera Guba for the term of 30 years at a yearly rental of £1 per year payable in cash in full on the execution of the lease. The vendors, eleven in all, were described as of the village of Poreporena situated at Port Moresby Harbour. No satisfactory identification of the actual position of this well now seems possible. But the fact of the taking of this lease was much relied upon as indicating a continuing title in the Motu inhabitants. But, in my opinion, the lease was erroneously taken by an official or officials who were unaware of the real state of the title to the land.

It is known from the material in the case, including evidence given by Papuans, that the Administration had allowed Papuans to garden on lands of the Crown not in use by it, including some parts of the land acquired for East Granville. Doubtless the lack of any memorandum made of the purchase of the 96.6 acres and failure to prepare an acknowledgement of the acquisition by the Crown as required by the Ordinances contributed to the official uncertainty as to the state of the title to the claimed land or parts of it. But, in my opinion, the taking of the lease for this small area of land mistakenly, as I think, conceding a title to it in the Papuans affords no ground to doubt the conclusion to which I have come as to the agreed purchase in 1886.

Finally, in connection with the identity of the land purchased, I should perhaps observe that we do not certainly know if all the land suitable for an eastern section of the town of Granville was claimed in 1886 to be owned by the Papuans. It is said, however, by Rev. Lawes that there was little if any land in the Port Moresby district which could be said to be ownerless. But there is, as I have said, insufficient evidence given by or on behalf of the Papuan claimants to establish their title to or any right to the subject land. No doubt Musgrave and Hunter assumed that there were such claims to ownership of all the land in question in the Port Moresby district and dealt with the clansmen, whether Motuans or Koitapuans, accordingly. I have made the same assumption in what I have written. I have also assumed, without deciding, that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connection (as to which see generally Milirrpum v. Nabalco Pty. Ltd.[dccxii]2 and more recent>Calder and and Another v. A. G. for British Columbia in the Supreme Court of Canada, Jan. 31, 1973 (unreported)), the title of the Papuans whatevernature according to native custom was confirmed in them expm expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter.

It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognized a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land. Commodore Erskine by his Proclamation of the Protectorate announced that no acquisition of land from Papuans would be recognized by Her Majesty, referring, of course, to acquisitions by others than Her Majesty or by persons on her behalf. Early Ordinances prevented the acquisition of land from Papuans and they were forbidden to sell land except to the Administration.

But none of this activity on the part of the Crown was inconsistent with the traditional result of occupation or settlement, namely, that though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown. Whether the subsequent legislative history of the Territory denies that traditional position is a matter with which I am not presently concerned.

Holding the view I have expressed as to the extent of the purchase made in 1886, there is no need for me to discuss the suggested invalidity and ineffectiveness of the Order in Council of 19th August, 1901. Consequently, I shall say no more than that I see no reason to think it was void.

There remains a question as to the validity of the appointment of the Land Board in 1954 and as to the effect of its decision.

Sections 8 and 9 of the Land Ordinance 1911-1953 (Papua) are as follows:

“8. The Lieutenant-Governor may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and of which there appears to be no owner unleuse bwn to the contrarntrary wity within thin the period specified in such Order becomes Crown land.

Every such Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be vested in His Majesty for an estate in fee simple.

Provided that the Lieutenant-Governor shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in His Majesty or become Crown land or if it has so vested shall be divested from His Majesty and cease to be Crown land or he may acquire the right of such owner in manner hereinbefore provided.

9. It shall be lawful for thu Lieutenant-Governor by Proclamation in the Gazette to 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 Papuan native is a claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure.

An appeal shall lie from the Board to the Central Court. The practice regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette.”

Claims having been made to an area of land not identical with and lesser in area than Era Taora as now claimed and to other areas, by various claimants, the Administrator purporting to exercise his powers under s. 9 of the Ordinance by Proclamation dated 9th September, 1954, appointed certain persons to be a Land Board to decide:

“(1) whethere is autispute as t as to the ownership of any of the areas of land described in the Schedule hereto;

(2) ټ waere pudispute is e is found to exist who are the disputing parties;

(3) ټ waere pudispute exie exists is one or more of the disputing parties a Papuan Native; and

(4) &##160; dispxists and one or more of the disputing parties is a Papuan Native who iwho is thes the owne owner or who are the owners of the land tbjecthe di.”

The schedule to the Proclamation described eight pght parcelarcels of s of land including an area described as Era Taora, the other parcels being contiguous to it, each on the north or the south.

Before this Board, Daera Guba claimed part of what he now claims to be Era Taora. The north-south boundary on the east of Era Taora was then placed much more easterly than he puts it now: but his claim was on behalf of the Tubumaga Idibana, as was his written application in the present case, and not expressly on behalf of the whole clan. The Board gave due notice of its enquiry and made extensive endeavours in calling for claimants to the lands in question. The Tubumaga Laurina claimed a portion of land contiguous to the boundaries of Era Taora as now claimed. The Board had a great deal more evidence from Papuans as to the pre-annexation days and as to subsequent events than did the Chief Land Titles Commissioner. However, none of the Papuans who gave evidence had personal knowledge of the events of 1886 though one Papuan witness had been a youth at the time; such knowledge as he had was thought by the Board to confirm the fact of a sale of at least some part of the land in dispute in exchange for trade.

The Board’s reasons are clearly expressed in its report and findings. If appears that the Papuan claimants were all represented by the one counsel. The hearing stretched over four days in October 1954. Counsel for the Papuan claimants announced that all claims to areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle lettered “WXYZ” on a plan before the Board were abandoned by his clients. This area is the same as that similarly marked on the prefaced plan and is “the inner rectangle”, or at any rate the major portion thereof, to which reference is elsewhere made. At times the area “ZWXY” on the prefaced plan is spoken of as the “inner rectangle”, the difference in reference deriving from different views of the extent of Cuthbertson’s sub-division. There is some obscurity as to the extent of counsel’s concession. But the important matter, in my opinion, is not counsel’s concession but the Board’s finding. The Board answered the questions which had been referred to it as follows:

Two submissions have been made in respect of the decision of the Land Board.

First, it is said that the Board was not validly constituted. The reasons given are those which found favour with the learned Chief Justice of Papua and New Guinea. The first step in this reasoning seems to have been that s. 9 is but an ancillary provision to s. 8 and not an independent provision. It is then said that because all questions as to waste and vacant lands and all cases of disputed ownership of land in which a Papuan native was a claimant could be referred to a Board, the provisions of s. 9 cannot literally be applied and that the only questions which could be referred to a Board, even if particular questions could be referred at all, were questions such as had or could have arisen under s. 8. Therefore the Board appointed by a proclamation in 1954 could not have been validly constituted to consider the questions submitted to it.

I must say with due respect to the judges of the Supreme Court that I am at a loss to understand why s. 9 is not an independent provision or why it is in any case tied to the provisions of s. 8. The evident purposes of the two sections are quite disparate. I very much doubt whether the Administrator could refer to a Land Board a claim by a Papuan to land which had already been embraced in an Order in Council made under s. 8. That section places the “allowance” of the claim in the Administrator’s hand for decision. Section 9 expressly gives the Board the power to decide the questions referred to it and provides for the decision of the matter by a Court of Appeal. But I need not express a final opinion on this point.

Section 8 provides for the vesting in the Crown of what I might call “ownerless” land. Ample opportunity is offered for claimants to put forward a claim to its ownership. The provision requires the Administrator to take into consideration any such claim made during the time limited for making such claims and empowers him thereafter at any time to take into consideration a claim that, prior to the making of the Order in Council, the land was owned by the claimant. I phrase the claim in that form because, in my opinion, a successful attack could not be made on an Order in Council on the ground that land embraced in its operation was not ownerless. The appearance of there being no owner is at best the basis for the Order. The period for showing cause, without cause being shown, affords confirmation of that appearance. Thus a claim out of time is in the nature of an appeal for an indulgence.

But in either case the decision upon the claim must be that of the Administrator. The result of his decision is an Order in Council, whether or not the claim is allowed, by the Administrator.

In high contrast to this provision, s. 9 gives the Administrator power to appoint a board to decide the question referred: and it provides for an appeal to a court of law from the decision of the Board. It needs no argument that the Court does not act as an adviser to the Administrator in the hearing of an appeal on the question of the ownership of land.

It may be, of course, that before the Administrator sets in motion the machinery of s. 8, he may set up a Land Board and refer to it for its decision the question whether particular lands are waste and vacant lands, or alleged so to be. Thereafter he may use s. 8 according to the way the Board decides, but he will be bound, in my opinion, by the decision of the Board.

The reason why it was thought by the Chief Justice that s. 9 could not be read as applying to all disputes was that it was inconceivable that the Ordinance should intend by s. 9 to take away the jurisdiction of the court which had cognizance of all such cases where a claim of right to land was made by a Papuan or a question raised as to whether land was waste and vacant. But quite clearly s. 9 does not deprive the courts of any jurisdiction they may have. It enables, in my opinion, a binding decision to be madderation a claim that, prior to the making of the Order in Council, the land was owned by the claimant. I phrase the claim in that form because, in my opinion, a successful attack could not be made on an Order in Council on the ground that land embraced in its operation was not ownerless. The appearance of there being no owner is at best the basis for the Order. The period for showing cause, without cause being shown, affords confirmation of that appearance. Thus a claim out of time is in the nature of an appeal for an indulgence.

In my opinion, the meaning of s. 9 is that the Administrator may appoint a Board to decide any question as to whether specific land or areas of land are waste and vacant lands and also any dispute as to the ownership of land to which a Papuan is a claimant. Full effect, in my opinion, should be given to the words of the section which need no qualification when it is understood that in the case of waste and vacant lands the question is whether they are in truth such and when it is understood that the claim to ownership is not limited to claims to ownership of lands alleged to be waste and vacant. The section presupposes that the Administrator will in the course of his administration become aware of disputation as to the ownership of land where Papuans are concerned, disputes where the competing views are on the one hand that the land is waste and vacant land not in the ownership of any person and on the other that it is owned by a Papuan who claims it and also disputes where there are competing claims to ownership, one of which is by a Papuan. Of course, the former dispute could be determined by the Administrator after he had made an Order in Council under s. 8. The latter could be determined in litigation in the courts of the Territory. But the provision for the appointment of an ad hoc tribunal to determine all these disputes seems eminently suitable to the conditions of the Territory: and, in my opinion, s. 9 evidences a clear intention that such a tribunal might be set up with power to decide the disputed questions.

In my opinion, therefore, it is abundantly clear that a Board appointed pursuant to s. 9 of the Ordinance was not limited to dealing with waste lands which had been dealt with or fell to be considered under s. 8. Power was given to the Board to decide ownership in the case of all disputes on that question. “All” in this context means “any” dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to the ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connection. What is central to the Board’s power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connection to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board’s decision was an entry on a register with the intention of giving absolute finality to the matter: See Land Ordinance, s. 6. In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person who had the opportunity of claiming or of being heard.

It is said by Daera Guba that he was representing in the instant proceedings the whole Tubumaga clan, that is to say, the Idibana and Laurina sides of it. Before the Board in 1954 Daera Guba had appeared as representing the Tubumaga Idibana but the Tubumaga Laurina were also parties before the Board. True, they were not claimants of the present areas of land but they clearly stood by while Daera Guba laid claims to those lands on behalf of one side of the clan; they had opportunity to claim the land.

We have no information as to what would be the consequence of one section of the clan succeeding in a claim to this land. I would suppose that it would really be a decision that the clan owned the land and that the question of the respective rights and interests of both sides of the clan would have to be separately entertained and determined. I have no need to pursue that matter in order to resolve this case. The Tubumaga Laurina were bound by the Board’s decision both because, being notified of the hearing and invited to make such claim as it thought fit, it attended the hearing and made no claim; and also, having stood by and allowed the Tubumaga Idibana to claim the land, it cannot now dispute the result. Nana Ofori Atta II & Another v. Nana Abu Bonsra II[dccxiii]3, lends support to this view of the matter.

In my opinion, the decision of the Board was a final decision. It was a decision which bound Daera Guba, his privies and the Tubumaga Laurina: and it bound the Land Titles Commission. I suppose there could not be a better justification for resort to the principle of estoppel than the present case. The Land Board had witnesses of whose evidence the Land Titles Commissioner did not have the benefit. We are told that every encouragement was given to the Tubumaga people and, indeed, to the Papuans generally to tell all they knew or thought they knew about the title to the ownership of the lands about which the Board was enquiring. No appeal was brought from the Land Board’s decision but now, twelve years later, it is sought to agitate the same question again and with lesser information than was available to the Land Board. In a developing society, such as the one with which we are concerned, nothing, in my opinion, could be more destructive of confidence in the law than a renewed agitation of a matter fully investigated and decided.

Thus, in my opinion, if contrary to my own opinion it should be thought that the whole of Era Taora was not acquired in 1886, the decision of the Board in 1954 established the ownership of Era Taora by the Administration and precluded the further examination by the Land Titles Commission of that question.

For these reasons I would allow the appeal, and reinstate the decision of Mr. Justice Clarkson.

MCTIERNAN J: I have had the advantage of reading and considering the judgment of the Chief Justice which he has just handed down and I entirely agree with it.

MENZIES J: This appeal arises out of competing claims made to the Land Titles Commission of the Territory of Papua and New Guinea that land in Port Moresby, known as Era Taora, is, in truth, native land notwithstanding that in the years since 1886 parts of the land have been dealt with as land of the Administration. The Commission held that the land belongs to the Tubumaga clan, the claimants represented by Daera Guba and no part of it belongs to the Giakone clan, the claimants now represented by Lohia Doriga. An appeal to Clarkson J. by the Administration succeeded but an appeal by Lohia Doriga failed. Upon appeals to the Supreme Court of the Territory the decision of the Land Titles Commission was restored.

In the judgment of the Chief Justice and Gibbs J which I have had the advantage of reading, the whole case has been so carefully examined and the results of that examination so fully and clearly stated that any further statement by me would be but needless repetition.

There is, as I see it, but one point of significant difference between the Chief Justice and Gibbs J. which relates to the extent of the land actually purchased for the Government by Robert Hunter in 1886. As to this I have reached the conclusion that the whole of Era Taora was then purchased. When, in November 1886—a few months after Hunter’s purchases—the Assistant Deputy Commissioner, Anthony Musgrave, reported that 95 acres had been purchased by the Government under the description “Granville East Township” he was, I think, referring to the area of 96.6 acres at Granville East included in the rectangle formed by and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street. That this was so is, I think, confirmed by the annual report on British New Guinea for the period 1888-9 made to the British Government by the Administrator William Macgregor. His figure of 553 acres accords with Musgrave’s figure of 552 acres of land purchased for the Government at Granville East. Certainly Daera Guba has not shown that any of the rectangle—and in particular areas Nos. 2 and 3 on plan “J”—remained native land after Hunter’s purchases for the township at Granville East. The same can, I think, be said about area 5 on plan “J”, although it may be that the Administration’s title to this area rests more securely upon the Order in Council of the 19th August, 1901, than upon the purchase of lands in 1886.

I agree with the judgment of the Chief Justice and, with the one slight qualification to which I have referred, I also agree with the judgment of Gibbs J including what he has written about the Order in Council dated 19th August, 1901. If area No. 5 did not become the property of the Administration in 1886, it did in 1902; if the whole of areas Nos. 2 and 3 did not become the property of the Administration by purchase in 1886, the title of the Administration was nevertheless established by the decision of the Board against the Tubumaga on 21st October, 1954, which now estops Daera Guba.

I would therefore allow the appeal of the Administration and restore the judgment of Clarkson J.

GIBBS J: This appeal concerns the ownership of a tract of land in what is now the Newtown area of Port Moresby in the Territory of Papua and New Guinea. The proceedings were commenced on 7th February, 1966, by an application made to the Land Titles Commission under s. 15 of the Land Titles Commission Ordinance 1962 (Papua and New Guinea), as amended. Section 15 (1) of that Ordinance provides: “The Commission has, subject to this Ordinance, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by native custom of, or the right by native custom to use, any land, water or reef, including a dispute as to whether any land is or is not native land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.” The expression “native land” means “land which is owned or possessed by a native or native community by virtue of rights of a proprietary or possessory kind which belongs to that native or native community and arise from and are regulated by native custom” (s. 6 (1) of the Ordinances Interpretation Ordinance 1949 (Papua and New Guinea), as amended). After the period limited for appeal or review has expired, and after completion of any proceedings on review or after the decision of any appeal, a copy of any decision made by the Commission must be forwarded to the Registrar of Titles “who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission” (s. 15 (2) (formerly s. 15 (6)) of the Land Titles Commission Ordinance). It should for completeness be added that if a decision of the Commission conflicts with a title previously registered under the Real Property legislation of the Territory of Papua or the Territory of New Guinea the registered title shall, to the extent of the conflict, prevail (s. 16), but in the present case none of the land in question is so registered. The application of 7th February, 1966, was made by Daera Guba of Tubumaga Idibana clan, Poreporena village, who applied on behalf of the descendants of Guba Daera, deceased, for an order that the area described in the attached survey plan be registered in the names of the descendants of Guba Daera, deceased. The land shown on the attached plan, which has an area of about 42.64 acres, is irregularly shaped and its boundaries do not coincide with those of any surveyed parcel. According to the application, it is known as Era Taora. On 9th February, 1966, a second application in respect of “land known as Era Taora” was made by Lohia Doriga of Geakone clan, Hohodae village, who applied on behalf of the descendants of Iramo Hada, deceased, for an order that “the area described in the attached survey plan” be registered in the names of the descendants of Iramo Hada, deceased. It appears that in fact there was no survey plan attached to this application. Both applications state that the land is also claimed by the Administration of the Territory of Papua and New Guinea.

To explain the position of the rival claimants it is necessary to mention that in 1884, when a British Protectorate was declared over part of what later became British New Guinea and later still the Territory of Papua, the villages in the neighbourhood of Port Moresby were inhabited principally by two tribes, the Motu and the Koitapu (sometimes spelt Koitapo). It appears that the Koitapuans were the original inhabitants of the district, but that of course does not necessarily mean that they were the original owners, or the owners in 1884, of any particular area of land there. The language and customs of the Motuans were originally different from those of the Koitapuans, but the villages of one tribe were often built very close to those of the other and association and intermarriage took place between members of the two tribes. Poreporena was a Motuan village and Hohodae was Koitapuan; together they formed part of a larger collection of villages known as Hanuabada. Within each village there were smaller units called iduhu. An iduhu was a clan or group of people who were, speaking generally, relatives as well as neighbours. The members of an iduhu were (to state the matter broadly and rather imprecisely) the descendants of a common ancestor and the wives of the male descendants (and sometimes, but more rarely, the husbands of female descendants) of that ancestor who lived in one or more of the lines of the houses of which the village was comprised. The houses were built on piles over the sea, and usually an iduhu consisted of two parallel lines of houses (with an anchorage for canoes between them) and in that case the iduhu had two branches, that occupying the houses on the left-hand side being known as Laurina and that on the right, Idibana. The Tubumaga is an iduhu of Poreporena village and the Geakone (more usually in the evidence spelt Giakone) is an iduhu of Hohodae. Daera Guba described himself of Tubumaga Idibana, but he said at the hearing before the Commission that he was representing both branches of the Tubumaga clan.

The two applications were heard together before the Commission constituted by the Chief Commissioner. Daera Guba gave evdence that the land in question had always belonged to the Tubumaga people. He said that his grandfather had made gardens on the land before the missionaries came to Port Moresby (namely, 1874) and that later his father and he himself had made gardens there. His own recollection extended back before the 1914-1918 War. He said that gardening on the land ceased after the Second World War when the Government put buildings on the land. His evidence was in some respects supported by a number of other witnesses. Little attention was paid in any of this evidence to the boundaries of the land on which the Tubumaga had their gardens, but Daera Guba asserted that the whole of the land the subject of the application belonged to his people. It appeared, however, that a comparatively small part of the area claimed had been the subject of sales to the Administration in 1956 and 1957 and Daera Guba withdrew his claim to that part of the land. Lohia Doriga, on the other hand, asserted that the Giakone were the rightful owners of the land. He admitted that the Tubumaga had gardened on the land but said that this had been done by permission of the Giakone which had been given, at least on one occasion, because a Tubumaga woman had married a Giakone man. Other witnesses, including one, Kora Nek, called by the Administration, supported his assertion that the land had been Giakone land. The evidence given by both the Tubumaga and the Giakone witnesses was to some extent vague and conflicting—which is not a matter of criticism or surprise since they were dealing with events that occurred so long ago—but it is unnecessary to discuss it in further detail at the present stage, although some further reference to it will be made hereafter.

It will have been observed that, although the applications were expressed to be made on behalf of the descendants of the two named ancestors, the evidence given in support of them was respectively that the land belonged to the Tubumaga and to the Giakone people —that is, the claims as put forward in evidence were to communal ownership in the iduhu rather than to individual ownership.

The Administration does not appear to have contested that the land was originally in native ownership. It will be sufficient to state at a later stage of this judgment all the contentions on which the Administration relies in support of its claim that the land should now be held to belong to the Administration, but one of its submissions should be noted since it involves issues of fact on which the Chief Commissioner made a finding. It was claimed on behalf of the Administration that in 1886 the land was purchased from the native owners and that the officer who actually effected the purchase was one Robert Hunter. Most of the evidence in support of this claim was documentary in character. The Tubumaga witnesses denied that they had ever heard of any purchase but Lohia Doriga admitted that he had been told by his people that all of Era Taora had been bought by Bob Hunter on behalf of the Administration; he said that this sale, which he described as a sale “by the Koitapo people”, occurred “in Macgregor’s time” or, as he later said, “at some time before the Governor Murray time”. Although it will be seen that the alleged sale did not take place “in Macgregor’s time” it may serve to give some idea of the time of which the witness was speaking by mentioning that Sir William Macgregor was Administrator (and later Lieutenant-Governor) of British New Guinea from 1888 to 1898 and that Sir Hubert Murray’s administration commenced in 1907. Other witnesses said that they had heard the story of a purchase by Bob Hunter, although they did not expressly say that the sale was made by the Koitapuans.

The Chief Commissioner said that he accepted the evidence of the Tubumaga witnesses and held that at all relevant times the Tubumaga clan were the owners of the land the subject matter of the appeals and that except for the land the subject of the transactions in 1956 and 1957 they had never sold any of it. He further found that the Giakone clan had, as such, no rights in the land but that the Giakone had purported to sell the land to the Administration. He rejected the other contentions made by the Administration and declared that the land (except the parts subject to the sales made in 1956 and 1957) was native land and is owned by the Tubumaga clan, the present leader of which is Daera Guba.

From this decision Lohia Doriga and the Administration brought appeals to the Supreme Court of the Territory of Papua and New Guinea. The appeals were heard by Clarkson J. who held that the appeal of Lohia Doriga should fail but that the Administration’s appeal should be allowed. Since different considerations were applicable to different portions of the land, his Honour, for the purpose of explaining his decision, prepared a design in which he showed the land as divided into six areas. It will be convenient to incorporate in this judgement, at this point, the following plan[dccxiv]4 (to which I shallafter refe refer as “plan ‘J’ “):

This plan is included to enable what is about to be said to be more readily understood and makes no pretensions to complete accuracy. It shows the eastern shores of Port Moresby in 1886, including a surveyed area described as Granville East, the significance of which will be later explained, and the land the subject of the applications, which is the irregularly shaped area extending across and beyond the southern part of Granville East. The six areas to which his Honour referred are shown on this plan and marked with Arabic numerals. A seventh part of the subject land, which is unnumbered, lies between the eastern boundary of Granville East and area No. 1, and includes also the eastern half of that part of Castlereagh Street which falls within the boundaries of the subject land—this is the land which was bought by the Administration in 1956 and 1957 and was no longer the subject of dispute. The learned trial judge awarded area No. 1 to Daera Guba on behalf of the Tubumaga but awarded to the Administration areas Nos. 2 to 6.

Map

Both Daera Guba Guba and Lohia Doriga appealed from this decision to the Full Court of the Supreme Court of the Territory which, by a majority, allowed the appeal of Daera Guba, dismissed the appeal of Lohia Doriga and restored the order of the Commission. The dissenting judge (Prentice J.) was of the opinion that the judgment of Clarkson J. should be affirmed. The Administration has obtained leave to appeal to this Court from the decision of the Full Court and Lohia Doriga also appeals.

Before turning to the facts of the case and the arguments submitted by the parties it is desirable to refer to certain Ordinances of the Territory which govern the hearing of appeals of this kind by the Commission and deal with the powers of the Supreme Court on appeal. The Land Titles Commission Ordinance 1962, as amended, provides that witnesses appearing to give evidence before the Commission shall be examined on oath (s. 27 (1)) but the Commission is given a wide power to receive material that would be inadmissible under the ordinary rules of evidence by s. 29 (1), which provides: “In the investigation, hearing and determination of any matter before the Commission, the Commission is not bound to observe strict legal procedure or apply technical rules of evidence, but shall admit and consider such information as is available.”

Section 30 of that Ordinance provides: “Evidence of five years’ undisputed and continuous use of land as a road, track or right of way by the public may be accepted by the Commission as conclusive evidence that that land has been dedicated to the public as a road, track or right of way, as the case may be, and is the property of the Administration.”

However, although portions of roads, long since surveyed as such, lie within the area claimed, no evidence of user was relied on by the Administration in the present case. Section 38 of the Land Titles Commission Ordinance gives a right of appeal to the Supreme Court to “a person aggrieved by a decision of the Commission”. By s. 38 (2) an appeal may be made on any of the following grounds, namely, that—”(a) the Commission has exceeded its jurisdiction; (aa) the decision was against the weight of the evidence; (b) the hearings of the Commission were conducted in a manner contrary to natural justice; or (c) the Commission was wrong in law.” By s. 38 (2a) “evidence”, for the purposes of s. 38 (2) (aa), is given a wide meaning; it means (omitting a few words immaterial to the present case): “all information, facts, matters and things including hearsay evidence, expressions of opinion and the results of any inquiries or investigations made by the Commission under Subsection (1) of Section 15 . . . in relation to the decision appealed against that were properly before or present to the mind of the Commission and which the Commission ought properly to have taken into account in arriving at the decision appealed against, together with all inferences proper to be drawn therefrom.”

The provisions of s. 38 (2) (aa) and s. 38 (2a) were inserted by the Land Titles Commission (Jurisdiction and Appeals) Ordinance 1968 which came into operation on 20th March, 1969, after the decision of the Commission was given, but were expressly rendered applicable to pending appeals by s. 13 (2) of the Ordinance of 1968. The Native Customs (Recognition) Ordinance 1963, after providing, in s. 5 (1), that “questions of the existence and nature of native custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact”, went on to give a court (which is defined to include any court or person acting judicially—s. 3) powers similar to, although more specific than, those conferred by s. 29 of the Land Titles Commission Ordinance, to act on any relevant matter whether or not it is technically admissible (s. 5 (2) and (3) (a)). Section 5 (3) (b) enables a court for the purpose of deciding a question as to the existence or nature of native custom to call evidence of its own motion. Section 5 (4) provides: “Notwithstanding the provisions of subsection (1) of this section, where an appeal is made from a decision of a court, the court which hears the appeal may, if it thinks fit, consider de novo a question referred to in that subsection and which arises in the appeal.”

Finally, mention may be made of s. 7 (1) of the Land Ordinance 1962, as amended, which provides: “All land in the Territory other than native land is the property of the Administration, subject to any estates, rights, titles or interests from time to time in force under any law in force in the Territory or a part of the Territory.”

In this Court the Administration did not challenge the findings made by Clarkson J. as to area No. 1 on plan ‘J’ and did not claim that land as its property. In respect of areas Nos. 2, 3, and 4, it was submitted that the Tubumaga clan was estopped by a decision given on 21st October, 1954, by a Board appointed under s. 9 of the Land Ordinance 1911-1953 (Papua) from asserting against the Administration that the land was not the property of the Administration. Estoppels apart, the Administration submitted that on the merits it was entitled to all the land excepting area No. 1; it claimed that areas Nos. 2, 3, 4 and 6 were acquired by the Crown in 1886 and that area No. 5 (and also areas Nos. 2, 3, 4 and 6 if not already acquired) became vested in the Crown by virtue of an Order in Council made on 19th August, 1901, in reliance on the provisions of s. XI of the Land Ordinance of 1899 (British New Guinea). On behalf of Daera Guba all these contentions were assailed and it was submitted that the decision that the land was and remained the property of the Tubumaga clan ought not to be disturbed. On behalf of Lohia Doriga also, the contentions of the Administration were disputed, and in addition the competence of the Administration to be a party to the original proceedings or before this Court was challenged. Moreover, Lohia Doriga asserted that the Commission’s finding that the land was Tubumaga land was either erroneous on the material before it or resulted from a failure to make proper inquiries and that the matter should be remitted to the Commission for a further hearing. Of course the admission made by Lohia Doriga in evidence that the land had been sold by the Koitapuans might have seemed fatal to his claim, but before the Supreme Court he sought leave to read an affidavit in which he said that when he had given evidence that Era Taora had been sold he had intended to refer to land known to him as Era Taora which was situated to the north of the subject land, and that the subject land was known to him and to the Koitapuan people as Vanama. Clarkson J. treated his application as one for a new trial and refused it. It appears from the judgment of the learned Chief Justice of the Supreme Court that the Full Court gave counsel for Lohia Doriga an opportunity to submit further material or explanation in support of this application but that counsel did not avail himself of this opportunity. The Full Court also rejected the application for a new trial.

It is convenient first to consider the claim by the Administration that most of the subject land was acquired in 1886—a claim which raises three broad issues:

(1) thes a velid purchase by t by the Administration of any of the subject land in 1886?

(2) &##160;rnatevelyively, was was any of the subject land acquired in that by anof St/p>

(3)&#(3) &1600;#160;  What las wrchaued or othe otherwise acquired?

To answer these questions it is necesso review such of the evidence of events before and after 1886 as appears to be relevant to t to them. There was, as the learned Chief Justice of the Supreme Court said, a “vast mass” of documentary material before the Supreme Court, and we were supplied with many further documents of which we were invited to take judicial notice. However, much of the documentary material, although of considerable historical interest, is of no assistance whatever in resolving the questions that arise on this appeal.

In 1884 the British Government, under pressure from the Australian colonies, authorized the declaration of a Protectorate over the south coast of New Guinea. On 6th November, 1884, Commodore Erskine landed at Port Moresby and proclaimed the Protectorate. In the course of his proclamation he said: “And I hereby proclaim and declare that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty.” A few days later, on 14th November, 1884, he made a further proclamation whereby he directed that the regulations set out in it were to be complied with pending the arrival of the High Commissioner. The relevant regulation read: “No settlement or acquisition of land is on any account to be permitted.” The first Special Commissioner to be appointed for the Protected Territory was Sir Peter Scratchley who received a Commission dated 20th November, 1884, but who died on 2nd December, 1885, after only a few months in New Guinea. The provisions of his commission and of the instructions issued to him by the British Government are in my opinion irrelevant since he took no action to acquire any of the subject land. However, some purchases, as they were called, of land at Port Moresby were made during his administration by officers of the Protectorate. In these transactions small plots of land were obtained from the Motuan and Koitapuan people, who claimed to be the owners, in exchange for articles of barter such as tomahawks, tobacco and cloth. I shall refer to similar transactions which occurred during the Protectorate as purchases, although it will be necessary later to consider their legal effect. In 1885 there were a few Europeans living in Port Moresby, including the Rev. W. G. Lawes, a missionary who had been in the district since 1874. Mr. Lawes had himself purchased land from the native people for his mission station and in 1885 he assisted Mr. Musgrave, then Assistant Deputy Commissioner, to communicate with the natives for the purpose of acquiring the land.

On 26th December, 1885, after the death of Sir Peter Scratchley, a Commission was issued to Mr. John Douglas, a former Premier of Queensland who at the time was Government Resident at Thursday Island, appointing him Special Commissioner for the Protected Territory in New Guinea. The Commission contained the following provisions:

“Now know you that We do by this Our Commission under Our Sign Manual and Signet, appoint you, the said John Douglas, to be until Our pleasure be further signified Our Special Commissioner for the aforesaid Protectorate, and as such Special Commissioner to act in Our name and on Our behalf, and in all respects to represent Our Crown and authority in matters occurring therein, and further to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient, subject to such Instructions as you may from time to time receive from Us, or through one of Our Principal Secretaries of State.

II. ; A60 We do require you, tou, to the utmost of your power, to promote religion and civilization among the Native inhabitants of the Protectorate, and you are eslly te carproteem inr persons and in thin the free free enje enjoymenoyment of t of their lands and other possessions, and by all lawful means to prevent and restrain all violence and injustice which may in any manner be practised or attempted against them.”

On 9th January, 1886, Instructions were issued to Mr. Douglas by the Colonial Office of the British Government. Those Instructions contained the following paragraphs:

“Sir P. Scratchley’s Despatches showed that he did not fully understand that unless the territory included in the Protectorate becomes British soil by the declaration of Her Majesty’s sovereignty over it, the Queen does not possess, and therefore could not delegate to him, a general power to make laws which will bind persons other than Her own subjects. As regards the latter She may, as you probably are aware, by Order in Council under the Foreign Jurisdiction Acts, establish courts, and make such other regulations as She thinks necessary for their control.”

The Instructions went on to say that Her Majesty had exercised this power by the Western Pacific Orders in Council which extended to New Guinea and that the Government had caused a Commission to be issued to Mr. Douglas appointing him Deputy Commissioner for the Western Pacific and that he would thus possess civil and criminal jurisdiction over British subjects but not over foreigners except in such civil matters as they might wish to bring before him. The Instructions continued:

“In addition to this judicial authority your commission as Special Commissioner empowers you in all respects to represent the Queen’s authority, and to do all such things as in the interests of Her service you may think expedient. You are therefore at liberty to make such regulations as you think necessary, compliance with which may be made a condition of residence in the Protectorate, if you are able to enforce them.”

The Instructions concluded by saying that it had been decided that the Protectorate should in due course be added to the Queen’s dominions and that this accession of dominion, when effected, must be regarded as having been acquired by settlement, and not by conquest or cession, and that when the proclamation of sovereignty came to be made there would be delegated to Mr. Douglas and to two or more other persons the power to make all necessary laws within the Territory.

On 27th August, 1886, there was published, as a supplement to the Queensland Government Gazette, a notification dated 1st July, 1886, and signed by Musgrave as Assistant Deputy Commissioner that “certain Township lands, now under survey, comprising the south-eastern shores of Port Moresby”, whose boundaries were given, should thereafter be known and designated by the name “Granville”. The document went on to notify that the township lands would comprise three divisions, of which the third was described as follows: “From Spring Garden Road to Paga Point, and thence by Ila Beach to the Badili Reserve, forming the third Division of Granville, shall be appropriated to Township Allotments and other Government Reserves for future settlement.” The inland boundaries of “Granville” were, as earlier provisions of the notification showed, east of the subject lands, and the area of the third Division included both Granville East and Granville West, shown on plan ‘J’. The Badili Reserve extended along the beach to the east of the area shown on plan ‘J’, its western boundary being more or less to the south of the eastern boundary of Granville East and to the east of Rough Flint Hill.

The survey to which Musgrave referred was being made by Mr. W. R. Cuthbertson who, on 21st September, 1886, furnished a report on his work, which had not been carried out without some difficulties. In his report he referred to Granville East as follows: “The township of Granville East lies about eighty chains north-easterly from Granville West, and is, so far, cut up into eight sections. The outside roads are two chains, the inner ones being one chain. The allotments are all quarter-acre and are marked with hardwood pegs, the ground being mostly of a blue-clay character; the trenches are cut in the soil. Here there are only two sections— Nos. III. and IV.—cut up into allotments. The others can easily be done with the chain should be required and no surveyor here. [sic] The two-chain road named Lawes-street, on the western boundary of the town, will be the main thoroughfare until such time as a road can be made facing the beach as surveyed through the mangroves, where there is a firm bottom, and will eventually make a first class road but at a considerable expense. The town is well supplied with water, there being beautiful springs at the north-eastern corner, where I have surveyed a considerable road deviation which takes in the springs and allows a good roadway on either side of them.”

Mr. Cuthbertson added that he forwarded with his report “plans of the two townships and a general plan of the whole survey completed”. There are in evidence three different plans originally made by Cuthbertson. First, there are a number of copies of a rough eye-sketch dated 20th July, 1886, and signed by Cuthbertson, which shows the position of the two township sites later called Granville East and Granville West. It may be surmised that these sketches were made by Cuthbertson at an early stage of his work. The site of Granville East is shown as a rectangle with no internal subdivision and bordered on all four sides by roads. The second plan signed by Cuthbertson which is in evidence is dated 23rd August, 1886. This plan in its present form shows Granville East divided into sections I to VIII and section XI, which is immediately to the south of section II. (The position of these sections is shown on plan ‘J’.) To the south of section XI is shown a half-section which is unnumbered. All of the sections are subdivided into allotments but there is evidence that many of the markings on this plan were added subsequently although this was contrary to good surveying practice. The witness who tendered this plan before the Commission (the Assistant Chief Drafting Officer of the Lands Department) said that in his opinion the boundaries of sections I to VIII were surveyed by Cuthbertson and that the initial subdivisions of section III and IV were done at that time. He said that “in addition, a boundary of what is now shown as section XI, the line was turned but never actually run”. The third plan signed by Cuthbertson in evidence is dated 9th September, 1886. It shows Granville East, not as a complete rectangle, but as it is shown on plan ‘J’, i.e. showing sections I to VIII, half of section XI and another half-section south of section XI (although none of these numbers appears on Cuthbertson’s plan), all subdivided into allotments. Thus the inner rectangle marked WXRS on plan ‘J’ is, so far as Cuthbertson’s plan shows, not surveyed and there is no line completing the eastern side of the rectangle, i.e. between points W and X. It appears clear that this plan also has had additions made to it since Cuthbertson’s time. Cuthbertson’s field book shows that he surveyed sections I to VIII, of which sections II and IV were surveyed into allotments. This field book and Cuthbertson’s report suggest that the allotments shown in sections I, II, V, VI, VII and VIII, and probably also the two half-sections within the rectangle SRYZ, have been added to his plans since he drew them, and that it is probable that the whole of the large inner rectangle WXYZ was not shown as subdivided on the original plan. Of course, the letters R, S, W, X, Y, and Z were not on Cuthbertson’s plan—they were first adopted for convenience in the proceedings before the Board. Two of Cuthbertson’s plans show an irregularly shaped area of twelve acres, to the west of sections III and IV, and on the western side of Lawes Street. This surveyed area bears a broad arrow; which indicates that it was the property of the Crown. On the plan of 9th September, 1886, the words “Granville East” commence on this block, and extend over section IV into the rectangle WXYZ as they do in plan ‘J’.

On 9th November, 1886, Musgrave furnished to Douglas a report on the acquisition of lands in British New Guinea up to that date. The report is of great importance as it is the best contemporary evidence of the acquisition of any part of the subject lands. It first gave the details of a number of purchases before Douglas arrived in New Guinea, including the purchases from the Koitapuans of 333 acres at Badili, as to which Musgrave made the following comment: “The main object in securing this block was to be able, in the event of Port Moresby natives proper being reluctant to sell or making excessive demands for lands urgently needed for settlement, to substitute other holdings equally suited for cultivation, but not equally monopolising wharf frontages, &c. There was risk of these positions being taken by the natives on the advice of certain Malays and South Sea Islanders who have taken Motu women as ‘wives’, and who use some influence over the aboriginal villagers.”

After referring to some small purchases effected in January 1886, the report went on as follows:

“No further purchases of land were made until after Your Excellency’s arrival here in June last. Acting upon your memorandum of instructions with regard to the acquisition of lands in conjunction with the surveys at Port Moresby, which it was most important to have effected, Mr. Robert Hunter, as an agent for the Government, accompanied by the Government interpreter and the present chief of the local village, Ah-oo-doo, made purchases from time to time, as other duties permitted, to the extent of about 222 acres. All the cultivated grounds that interrupted the road reserves have been bought at a full price, but the natives have had it explained to them that in future, when the Government makes roads for their benefit as well as for the foreigners’ convenience, they ought to grant land free for that and other public purposes.

Mr. Hunter began purchasing on the 8th July, and ceased by my direction on the 8th October, having secured all the lands required within the surveyed portion of the settlement, newly entitled ‘Granville’. The recent acquisitions may therefore be summarized as follows:

The report states that the lands purchased at Port Moresby cost in all £339.19s.1d. and involved twenty-seven different transactions on as many different days and payment to 1,258 different vendors, of whom 128 were paid for the Badili lands. It appears from an annual report submitted by Douglas, to which I shall shortly refer, that the population of “Hanuapata”, as he called it, was then about 800 and that the total native population, including those occupying the littoral of the bay and the detached villages on the hillsides did not exceed 1,200.

The total area of the rectangle at Granville East formed by and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street is about 96.6 acres, whereas sections I to VIII, inclusive of roadways, comprised only about 58.8 acres. If Musgrave’s report is taken at its face value, it is apparent that the officers of the Protectorate had purported to acquire considerably more land at Granville East than that which Cuthbertson had surveyed into sections. It is natural enough to regard Musgrave’s mention of ninety-five acres as a rough estimate of the area of the whole rectangle, but whether that is a permissible inference will have to be considered after the history of events has been concluded.

Early in July 1886 a controversy had arisen between Rev. Lawes, on the one hand, and Douglas, on the other, as to the land policy of the Protectorate. The Rev. Lawes, who had no doubt become aware of the intention of the officers of the Protectorate to acquire land for the purposes of a township, objected both to compulsory acquisition for any purpose and to any form of acquisition except for missionary or trading purposes, which of course meant that he opposed the acquisition of land for the establishment of a town in which settlers might live. Douglas’ attitude was that it was necessary to acquire land for the purpose of settlement and that, although in effecting any acquisition he should hope to make the “most careful provision” for the interests of the natives, it might be necessary to acquire land compulsorily—indeed, he referred to an imminent case, that of the acquisition of lands for a cemetery, in which it was proposed, if necessary, to make a compulsory acquisition and to nominate two assessors, including Lawes himself, to determine the value to be paid to the native owners. Douglas lost no time in informing the Colonial Office of this clash of opinions. He sent three despatches, respectively dated 8th, 11th and 16th July, 1886, with one of which he sent copies of the letters embodying the respective views of the parties, together with a commentary thereon by Musgrave which criticized Lawes’ attitude. In his despatch of 8th July, 1886, Douglas referred to purchases that had already been made and to the proposed survey of areas already purchased and to the fact that he contemplated “the laying out of a small township area available for European Settlement, in anticipation, at no distant date, of the proclamation of Sovereignty”. He went on: “This latter survey will be, strictly speaking, preparatory, and will, of course, be held in abeyance for purposes of sale, until the principles are decided upon which future settlement is to take place.” In the despatch of 16th July, 1886, he said that Musgrave, under instructions from Scratchley, “had acquired some 700 acres from the natives in this vicinity”—a statement difficult to reconcile with other evidence. On receipt of this correspondence the Colonial Office, on 18th October, sent Douglas a cable which read: “Referring to your Despatch, 11th July, take no steps pending instructions compulsory purchase land unless required public purposes.” The telegram was confirmed by a letter of 22nd October, 1886, which said (inter alia): “My telegram of the 18th instant will have informed you that pending the receipt of instructions from Her Majesty’s Government you are not at liberty to acquire land from the Natives by compulsory purchase, except for objects of public utility.”

It appears from Musgrave’s report of 9th November, 1886, that before these communications had reached Port Moresby the purchases of the township lands had been completed.

A report of Sir Peter Scratchley’s administration as Special Commissioner had on 12th April, 1886, been presented by his former secretary, Mr. Fort, to the Governor of Victoria, by whom it had been transmitted to the British Government. In this report Mr. Fort made the following reference to the purchase of land at Port Moresby: “A considerable area of land, comprising the best sites in the harbour and nearly the whole of the frontage to the sea, was, with but small difficulty, purchased from the natives. In summoning together the claimants for this land, and in obtaining their assent to parting with their property in perpetuo, and thus securing a sound title for the Government, the assistance rendered by the mission was invaluable. A portion of this was set aside for Government buildings; part was reserved as a site for a future township, and a portion was also to be held as a native reserve.” The land spoken of is not identified, but it is apparent that this portion of the report cannot refer to the purchases of the land at Granville East, which had not been made when the report was written.

The first annual report presented by Douglas as Special Commissioner, dated 31st December, 1886, was presented to the British Government and to the Parliaments of the Australian colonies. In his report Douglas referred with approval to Fort’s report and he himself dealt with the purchases of land at Port Moresby as follows: “The late Special Commissioner authorized Mr. Assistant Deputy Commissioner Musgrave to purchase certain portions of land from the natives. These instructions were somewhat enlarged by me, and have resulted in the acquisition of a continuous block of land amounting to some 900 acres, which will be quite sufficient at present for purposes of immediate settlement, whenever it is deemed expedient to authorize it.” He went on to say that Cuthbertson had completed his survey and he attached copies of Cuthbertson’s report, Musgrave’s report of 9th November, 1886, and also of the correspondence with Lawes and Musgrave’s commentary thereon. The statement that some 900 acres in all had been acquired would appear to have been erroneous; perhaps the Badili lands were counted twice in making the estimate. Annexed to this report was a map of Port Moresby and the road to the Laloki River—it showed Granville East consisting of eight complete sections and two half-sections—i.e. as it is shown on Cuthbertson’s plan of 9th September, 1886, but without any subdivision of sections into allotments.

By Letters Patent dated 8th June, 1888, British New Guinea was constituted a British possession and on 4th September, 1888, Dr. William Macgregor, who had been appointed Administrator, proclaimed that the territory was part of the Queen’s dominions.

The first annual report presented by Macgregor, for the period 1888 to 1889, contained a statement of the property of the Government of the Possession transferred to it from the Protectorate. Included was the following statement:

“PORT MORESBY.—The most important tract of land held by the Crown is an area of 553 acres at Port Moresby. This was purchased from the natives and surveyed in 1886, and partly laid off as town allotments. This land is of use and has been partially fenced for pastoral purposes, but it is not well watered, while for agriculture it is too steep and is more or less arid. Besides the sites occupied by Government buildings, three-quarter acre allotments have been taken up and are occupied by the premises of Mr. A. Goldie. Should it ever be the case that a town of any considerable size arose at this port it would be mostly or entirely on the land now belonging to Government there. No town allotments have been disposed of, except those given to Mr. Goldie in exchange for land elsewhere.”

The virtual coincidence in area strongly suggests that the tract referred to by Macgregor was identical with the “purchased lands” described in Musgrave’s report of 9th November, 1886.

One of the early Ordinances passed by the Legislative Council of British New Guinea was the Crown Lands Ordinance of 1890 which took effect on 12th November, 1890. Section XVIII of this Ordinance provided as follows: “Where the free-simple in land in respect of which no Crown Grant has ever been issued is acquired by the Crown from the owners of such land the acquisition by and the transfer to the Crown of such land shall be taken in the name of Her Majesty and shall be attested by an instrument in writing under the hand of the Administrator and the Seal of the Possession which shall be recorded in the office of the Registrar-General as hereinafter directed.” The provisions of this section were rendered retrospective, so as to apply to purchases of land or acquisitions of interests in land made (inter alia) during the period of the Protectorate, by s. XX. It was provided by s. XXI that the instrument of attestation should describe the land purchased or in which an interest was acquired, the names of the vendors, its condition as to occupation, the price paid, to whom and in whose presence it was paid, the name of the interpreter employed and such further information as the Administrator might think fit, and that such instruments “shall be recorded by the Registrar-General in a separate Register in the manner that other instruments are directed to be recorded under ‘The Real Property Ordinance of 1889’ “. No instrument of attestation in respect of any of the subject lands was ever registered under this Ordinance, and indeed, so far as appears, no written document setting out the particulars of the purchases in any more detail than appears in Musgrave’s report has ever been in existence.

In the British New Guinea Government Gazette of 8th October, 1898, there was published a proclamation dated 28th September, 1898, which declared that, for the purpose of three statutes of the Colony of New South Wales (2 Vict. No. 2; 11 Vict. No. 44; and 19 Vict. No. 24), which were regarded as having been adopted as part of the law of British New Guinea and which, speaking generally, dealt with police offences committed within towns and with the powers of Justices of the Peace with respect thereto, the boundaries of “the Township or Town of Port Moresby” should be as follows: “All that piece of land that is bounded by the waters of the sea and by the following line, that is to say. Beginning at the point on the sea shore of Ela Beach that would be met by a prolongation of the eastern boundary of the road called Lawes Street; thence by such boundary northwards to the most south-western point of the surveyed allotments of Granville East; thence by a line following the back or inland boundaries of the said allotments to the most north-eastern point; thence by a straight line following the most northern boundary of such allotments and prolonged to the sea shore of Port Moresby harbour.” The only ambiguity in this description is caused by the use of the words “the surveyed allotments of Granville East”. The meaning of the same words in a later instrument will be an important matter for consideration.

On 5th October, 1900, a number of natives, residents of Hohodae and therefore presumably Koitapuans, sold to the Government about seventy-four acres of land to the south-east of the subject land and occupying the area between the subject land and the Badili lands. The description in the transfer of the land sold began with the following words: “Commencing the Southern corner of Section VI Township of East Granville being the Southern corner of the land purchased by the Government in that locality and bounded thence on the North west by the South eastern boundary of that Government Purchase ...” However, the plan drawn on the transfer shows the north-western boundary of the seventy-four acres on the northern rather than on the southern side of Pullen Street (which is the street bounding Granville East on the south). The transfer was witnessed by Musgrave, who had continued to serve with the Administration after it had taken over from the Protectorate. In the transfer, Musgrave referred to the fact that gardens occupied part of the land.

The Crown Lands Ordinance of 1890 was repealed by the Land Ordinance of 1899. Section IX of that Ordinance contained provisions similar to those of ss. XVIII and XXI of the Crown Lands Ordinance of 1890, with some amendments, but there was no provision corresponding to the earlier s. XX making those provisions retrospective. However, in the same Part of the Ordinance (Part III) there appeared the following s. XI:

“The Administrator in Council may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agricultural or other industrial purposes will unless cause be shown to the contrary within the period specified in such order become Crown land.

Every such Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be absolutely vested in Her Majesty and to be Crown Land:

Provided that the Administrator in Council shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in Her Majesty or become Crown Land or if it has so vested shall be divested from Her Majesty and cease to be Crown Land; or he may acquire the right of such owner in which case an instrument of title shall be executed sealed and recorded in manner hereinbefore provided.”

In purported exercise of the powers conferred by this section an Order in Council made by the Deputy Administrator in Council on 19th August, 1901, was published in the Gazettes of 14th December, 1901, and 28th December, 1901. It is upon this Order in Council that one of the submissions on behalf of the Administration is based. It read as follows:

“The Deputy Administrator in Council, under Section XI. of ‘The Land Ordinance of 1899’, doth hereby order and declare as follows:

1. ټ&#T60; that the land lands, the boundaries of which are given in the Schedule to this Order in Council so far as can be ascerd, ards nod nor required nor reasonably likely to be required by native-born Papu Papuans fans for buor building, agricultural, or other industrial purposes.

2. That the saidsland uarellyually described as Paga Hill and Mount Goldie.

3. That the estimated area o the said lands is about 328 acres.

4.;ټ That a skea skea sketch plch plan of the said lands is open to inspection by the public at the Lands Survey, and Works Department, Port Moresby.