[1998] PNGLR 31

PAPUA NEW GUINEA

[national court of justice]

VINCENT ULELIO & OrS

V

NELULU LAND GROUP;
REGISTRAR OF TITLES and
THE STATE

kimbe: woods j
9 September and 14 December 1997; 9 February and 26 March 1998

sea and coastal waters - Ownership by custom - Issue of a certificate of title - Validity of a fee simple over the sea - Does land include the sea - The State prerogative in the modern State - The public domain of the sea.

Facts

The first defendant had obtained a certificate of title through the customary land tenure conversion process under the Land (Tenure Conversion) Act and hence absolute ownership over 12.578 hectares of sea referred to as Aliwo Passage, near Kandrian, West New Britain Province. The plaintiffs challenge the validity of the first defendant’s ownership of the stated sea area and coastal waters, alleging inter alia fraud.

Held

1.	The sea is a public highway. There is therefore a common domain in the seas and in the coastal seas and within what is referred to as the territorial waters, this domain is held by the State.

2.	There has been some recognition of the principles that there may be customary rights to reefs and marine resources, see Tolain & Others v Administration [1965-66] PNGLR 232. However, at no time was there any recognition of any absolute ownership to the sea for all purposes. Customary rights to the sea under customary law are available within the prescriptions of Schedule 2.2 of the Constitution. Customary rights do not include acquiring exclusive possessory title to the sea.

3.	"I am satisfied that there is no power of authority under the laws of Papua New Guinea to grant any absolute ownership or fee simple over the high sea" per Woods J.

4.	The certificate of title Volume 33 Folio 44 before the court in this matter, in so far as it grants a fee simple over an area of sea is a nullity.

Papua New Guinea cases cited

Mudge v The State & Ors [1985] PNGLR 387.
Tolain & Ors v Administration [1965-66] PNGLR 232.

Other case cited

Warren v Prideaux [1673] 1 Mod 105 - E.R. Vol 86 p.766. 

Counsel

K Latu, for the plaintiffs.
A Kandakasi, for the first defendant.
P Kiele, for the 2nd & 3rd defendants.

26 March 1998

Woods j. The court has before it a Certificate of Title purporting to declare absolute ownership of a fee simple over 12,578 hectares of sea referred to as Aliwo Passage (less 4 small islands) in a body called the Nelulu Land Group of Apugi village near Kandrian in West New Britain. 

The statement of claim asserts that the Certificate of Title was wrongly issued through fraud alleging that members of the Nelulu Clan used threats and duress and fraud to influence the decision of the Land Titles Commission and to have the Registrar of Titles issue the Certificate of Title. 

All the evidence in this case has been filed by affidavit and following the filing of all affidavits by all parties they then came before me and made written submissions. It is noted that for some reason neither the State nor any of the parties were able to gain access to the files of the Land Titles Commission or the Registrar of Titles to enable the court or the parties to ascertain exactly the processes of the hearing by the Commission and how the Registrar issued the Title. The lawyer for the State advises that in spite of subpoenas being issued, she had been unable to produce the files from the Land Titles Commission and the Registrar-General concerning the issue of the Certificate of Title. 

The general law is clear that the sea is a public highway, there is a common domain in the seas and in the coastal seas and within what is referred to as the territorial waters this domain is held by the State. The plaintiff Land Group must have claimed its ownership of this area of sea by virtue of the fact that the various members of the Land Group are the coastal people of that area who have since time immemorial exercised rights to gather and fish in and over those waters and those waters adjoin their village and traditional land. Unfortunately there is no evidence of the material placed before the Land Titles Commission for this claim. There can be no doubt that coastal peoples have exercised and asserted some form of marine tenure over reefs and coastal waters for the purpose of their livelihood. However there is no evidence how such has been recognised by others. Prior to the advent of the modern legal system in this country any such rights would have been exercised and recognised by either agreement at the time or by force of arms. However when Papua New Guinea became administered by foreign powers as a single country, either in its two parts as Papua and German New Guinea and then as the Administrative unit of Papua and New Guinea then a body of general law was established by way of Orders in Council, ordinances and subordinate enactments and principles of English common law and equity were followed. Generally the Administration of the time ignored any pre-existing customary laws. Of course any pre-existing customary laws were not in any clearly identifiable form such as in writing. However the Administration and the Government before Independence did provide for selective recognition of customary laws or rules or practices. However at all times it was clear that any such recognition of custom did not arise from its own force, rather it was only recognised according to modern legal principles and Ordinances, such as the Native Custom (Recognition) Ordinance 1963 which provides in Section 8:

"..custom may be taken into account in relation to:

(b)	the ownership by custom of rights in over or in connection with the sea or a reef or in or on the bed of the sea or rights to fishing.

(c)	the ownership by custom of water or of rights in, over or to water."

Note the difference in (b) to the sea, and in (c) to water, the latter can only mean internal waters and not the sea. 

With respect to marine resources there was recognition of the rights of owners of adjacent lands to fish and gather from the offshore reefs and in the coastal sea, for example in the Pearl, Pearl Shell and Beche-De-Mer Ordinance 1911-1934 (Papua) when certain areas of reefs and offshore were reserved for the use of the local people and commercial operations were excluded. 

But there was no scheme or framework whereby such rights were to be documented. And at all times there is the underlying or overriding common law doctrine of the Crown (and by implication, the State) prerogative which vests upon the Crown dominion to all sea. There is nothing sinister or selfish over such Crown prerogative; it merely recognises a common property in a resource, which was never stationary, subject to tides and currents and the general movement of water. And such common property consideration meant that no single individual or community had the exclusive right of access to fisheries resources, instead it would always be open to all fishermen who had the capability to harvest such resource. And this has been the situation accepted by modern States whereby they are able to regulate fisheries and grant access to them supposedly for the benefit of the State as a whole. And the common domain of the sea also recognises the practical aspect of the nature and need for the free passage of people through the sea, the sea being regarded generally as a public highway of all nations subject of course to any right to regulate such a highway for the safety of people and property. 

As was said by Chief Justice Hale in Warren v Prideaux [1673] 1 Mod 105 and reported in English reports Vol 86 P. 766 "If any man will prescribe for a toll upon the sea he must allege a good consideration because by Magna Charta and other Statutes every one hath a liberty to go and come upon the sea without impediment".

It may be suggested that the Land Act enables rights to the sea or underwater land to be registered or recognised under the Land Registration Act. However there is nothing in that or any other legislation, which overrides the fundamental common law principle of the State’s dominion over the sea. One must distinguish the difference between the common law principle of the Crown’s prerogative over the sea as against its citizens and the administrative nature of the National Seas Act (Ch 361), which asserts the State’s rights of administration and sovereignty over an area of offshore sea for the purposes of international law and the international community. 

There was no doubt that prior to Independence in 1975 there was some recognition of the principle that there may be customary rights to reefs and marine resources, see Tolain & Os v Administration [1965-66] PNGLR 232, but at no time was there any recognition of any absolute possessory title in individuals or groups to the sea for all purposes. 

At Independence Papua New Guinea adopted many of the pre-existing laws and policies. But where there are no enacted laws and where there may be a need to consider customary laws the Constitution stated in Schedule 2.1 the rules of substantive customary laws, are part of the underlying law, and in Schedule 2.2 the rules of the common law of England in effect immediately before Papua New Guinea’s Independence on September 16 1975 are also part of the underlying law, but not if they are inconsistent with the Constitution, a statute or customary law or are inapplicable or inappropriate to the circumstances of the country from time to time.

So where does that leave customary rights to the sea. It is quite clear that ever since Independence the State has recognised that there are some customary rights in individuals and groups to certain marine resources. Thus see the Fisheries Act 1994 which clearly refers to traditional fishing and provides that the Minister responsible for the management of fishing in the coastal waters must have regard to any traditional rights over or in relation to any area of fisheries waters. And both Papua New Guinea and Australia in the Torres Strait Treaty in 1978 recognised the need to preserve the traditional way of life and livelihood of the traditional inhabitants including traditional fishing. However nowhere has there been any recognition of any customary rights to an absolute possessory title or fee simple to the sea, so how could the Certificate of Title purporting to grant a fee simple over the sea be granted. 

The first defendant Land Group which was not incorporated until October 1995 had in May 1995 lodged with the Land Titles Commission under the Land (Tenure Conversion) Act an application over the land called Aliwo Passage, which appears to be an area of coastal sea but also incorporating some small islands. This application was lodged under s 7 of the Act. Under s 8 of the Act, the Land Titles Commission is required to give notice of such an application, however because of the ‘loss’ of the Commission file there is no evidence of how that notice was given. As this application appeared to be a claim over an area of public domain, namely the coastal sea, clearly the Commission would have had to consider how it could receive such a claim over what is in effect a public highway for all peoples and thus it would have to give notice to the State through the Attorney-General. There is no evidence that this was done. And also as there are some small islands in the area, there is no evidence of how any persons who may live on or use those islands were advised. 

There was apparently some hearing of the application on the 19th August 1995. How that could take place when the first defendant Land Group, the applicant, was not incorporated on that date is not explained. On the 17th October 1995 the Land Titles Commission advised that the matter had to be settled in the Local Land Court and this advice was strongly worded, (see the letter of the 17 October), yet only 3 months later it is noted that there never was a Local Land Court hearing and then there is a decision of a Mr Malaisa of the Land Titles Commission on the 17th January 1996 referring to some administrative settlement. It is noted that in the notice under s 14 of the Act about this decision that the reference is made to land situated on the foreshore. This raises some confusion as to whether the land he was purporting to deal with was land on the foreshore or land out in the ocean. As already noted, for some reason all the official files are ‘lost’ so there is no evidence of what the Commission thought it was doing nor of what considerations the Registrar of Titles gave to such orders over foreshore or ocean and how he considered he could issue a fee simple title over the ocean.

I am surprised that the Commission was able to deal with such a radical unusual claim over ocean so quickly, in less than 9 months, especially when the Commission noted at one stage that there was a serious dispute over the claim. 

The writ alleges that the title was issued as a result of fraud. There are a number of affidavits about what is alleged to have happened between the parties during the period that the matter was being considered so quickly by the Commission. It would appear that there are a number of disputes and disagreements between the peoples in the area. However on the main allegations and without seeing the appropriate files I cannot find that there has been deliberate fraud, perhaps serious misunderstandings and disputes. I am asked to infer fraud from the fact that the official files are missing. Of course the loss of or unavailability of these files does raise serious questions about how the matter was determined and the orders made and about the efficiency and ability of both the Land Titles Commission and the Registrar of Titles especially over such a radical decision. However I am not sure that this court can infer fraud from this loss. 

The defendant submits that the principle of the indefeasibility of a Certificate of Title prevents this court from making any orders to interfere with or otherwise defeat the effect of the Certificate of Title and makes reference to s 33 of the Land Registration Act. Reference is made to the various authorities on indefeasibility of title and in particular to the case of Mudge v The State & Ors [1985] PNGLR 387. However there is a more fundamental question here, namely where under the law can any individual or group have a fee simple over the high sea. 

There is no doubt that on the evidence before me the Land Titles Commission acted irregularly and without any clear understanding of the law. Note that the various legislation refers to ‘land’, and when any legislation refers to the coastal areas it limits land by reference to reefs and banks and structures built on land or over water, see the Land Disputes Settlement Act. So what the Commissioner thought is unknown as there is no file on his deliberations. 

I am satisfied that there is no power or authority under the laws of Papua New Guinea to grant any absolute ownership or fee simple over the high seas. And I must repeat what has been said by others that there is clearly a need for the Government to give more attention to the laws and policies in respect of traditional fishing rights and traditional rights to areas in offshore waters and to create a framework for the recognition of such rights and also to more carefully consider environmental implications with its regulation of coastal shipping.

The Certificate of Title Volume 33 Folio 44 before the court in this matter, in so far as it grants a fee simple over an area of sea, is a nullity. And it is therefore not appropriate for this court to make any orders about any other party’s claims to the areas of the sea. The areas of sea referred to in this case as the Aliwo Passage belong to the public domain. 

Lawyer for the plaintiffs: Kevin Latu Lawyers.
Lawyer for the 1st defendant: Young & Williams.
Lawyer for the 2nd and 3rd defendants: Solicitor-General.