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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BETWEEN: REVA MASE
PLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT
Waigani
Narokobi AJ
24 September 1980
29-30 September 1980
1 October 1980
1 December 1980
5 May 1981
NAROKOBI AJ:
INTRODUCTION
This case fell upon me to decide on 24th September 1980 and again I heard evidence on 29th September. On 30th September I again took further evidence and heard addresses from Mr Luke Lucas for the State, and Mr Reva Mase for himself and his clan. On December 1st I again heard further submissions.
In order to narrow the issues and to clarify for myself what was involved, I delivered an interlocutory judgment on October 1st 1980. In that judgment I held that the National Court has jurisdiction to entertain the plaintiff’s claim and that the National Land Registration Act did not exclude the National Court from having jurisdiction even after the Minister has made his declaration in the National Gazette.
I also set out three specific questions I required further assistance on. Answers to these questions were filed by both parties on 20th November, 1980.
My circuit commitments over December in Goroka, and January in Mt. Hagen made it impossible for me to commence writing my judgment until February 1981. February also proved difficult as I had to spend two weeks with the General Constitutional Review Commission.
It is only today, 15th February, 1981, that I have begun to write my judgment. The case itself, I must admit, is a very difficult one. It involves complex and confusing law and evidence, and the case is made more difficult because the plaintiff has appeared himself, without the aid of a qualified lawyer.
In spite of these complexities I shall do my best and come to a decision, trusting that the collective wisdom of the Supreme Court will set the record straight and allow justice to be done, were I to be wrong.
THE PLAINTIFF’S CLAIM
It is more accurate to speak of the plaintiff’s various statements of claim than it is to speak of a statement of claim. The plaintiff had in fact made seven claims altogether going back to 1977. The seventh claim was made on 11th September 1980. On 11th September an amendment was made to the writ of summons. The claimed area of land was named “the shaded area”, totalling 0.61 hectares, area “F”, totalling 0.16 hectares, and area “G” totalling 3.60 hectares, giving an over all area of 4.37 hectares.
By a sworn affidavit of Mr Reva Mase, dated 24th September, 1980 he deposed to having made a specially endorsed amendment to the statement of claim filed on 31st August 1980 and that the writ of summons of 11th September 1980 was served on the defendant on 12th September 1980. The defendant entered its appearance on 17th September 1980.
By the same sworn affidavit of Mr Reva Mase he sought an order to rectify the Deed of Release on the grounds that the deed was void in that it was signed on behalf of Tubumagu Laurina Clan, without authority, that the deed did not include the subject land and that in so far as the deed included the subject land it should be rectified. I do not think it is necessary to deal with the deed at this stage, as the arguments relating to it seem to go to the merits of the case, and I shall deal with these arguments when I come to them.
The other preliminary matter worth mentioning is Mr R. Mase’s complaint that the State has failed to furnish him with the particulars of its defence even though particulars were asked for in November, 1979, before Pritchard, J. There appears to be no note on the file to that effect. The State argues in any case that it relied on its title, and further, that there have been so many amendments to the claim that the State itself is no longer clear on the actual claimed land.
In principle, I think it is proper that if particulars of the defence are asked for, that they be provided. This is particularly important where the State is being asked for particulars as this will enable the plaintiff to prepare his course of action in the light of the defence or defences to be relied upon.
Bearing in mind the complex nature of this case and the fact that the plaintiff himself kept changing his claims, I do not think any matter or issue of substance ought to turn upon this procedural point. I think it important that the scissors of equity and conscience cut through much of the procedure to enable the court to have a view of the substance of the claim and the merits of the defence, as it will be argued from now on before this court.
THE CLAIMED LAND
In the court, I asked the plaintiff to tell the court “all the land you claim as customary land” and he replied: “Erenese and Vanama” land. He was again asked how he showed this land on the map, to which he replied: “There are two different maps. The Erenese land is in the shaded area and is known as Erenese. The other land is the Vanama land, labelled “F” and “G” on the other map”. See Exhibit W in the 1954 Land Board hearing.
When asked if that was all the land, Mr Reva Mase pointed to a map and said that a small blue triangular area was also the claimed land and another area he pointed to as number 6. This claimed land appears to coincide with the claimed land under the Writ of Summons of 11th September 1980.
For clarity I shall refer to the shaded area as claimed land area No. 1 and the other two areas as area Nos. “F” and “G”. It is with some difficulty that I attempt now to relate these references to the maps. There are as many as nine maps in the list of appendices Mr Luke Lucas has kindly provided. As far as I am able I relate these references generally, area No. 1 refers to Era Nese 1 Land, also referred to in the writ as the shaded area. That area is described by Clarkson, J. in In Re Era Taora LandN296.html#_edn526" title="">[dxxvi]1 as beast of the Granville Elle East rectangle which is bounded in the south and west by land sold by members of the Tubumaga clan in 1956 and 1957 to the Administration. The plaintiff referred to iEra Nese land. Area “8220;G” is evidently the red strip on the far right and area “F” is also a small southern part of the same triangle, it would seem. That land, “F” appears to be known as Vanama land, in dark green, and area “G” appears to be known as Leke Boio land - light green, (see Clarkson, J. at p. 24) (supra)N296.html#_edn527" title="">[dxxvii]2 according to the State. Tant land, according to the State was the property of Giakone Clan.
THE CURIAL HISTORY
There have been as many as six legal battles over allome of the land in what is generally called Newtown land. Tnd. This is the seventh battle. In addition an ex gratia payment of K160,000 has been made in respect of all or some of this land. The battles go back to 1931, but the actual acquisitions in respect to some of the lands go back to 1886.
The whole history of land acquisition by Europeans of indigenous races is shrouded with legal positivism, resource exploitation and Euro-centricism, dressed in legal technicality and military dominance. This case is no exception, and whatever my decision, the end is not in sight.
I will state briefly the history of various judicial or administrative determinations to assist in the consideration of the present case. It is not exhaustive, it is deliberately brief and will sacrifice accuracy for brevity. I will do so in reverse.
The High Court of Australia, unanimously upheld the appeal of the Administration of Papua and New Guinea in 1973. In doing so, the High Court specifically restored the decision of Clarkson, J. (see Administration of the Territory of Papua and New Guinea & Another and Daera GubaN296.html#_edn528" title="">[dxxviii]3.
The Supreme Court of Papua New Guinea, by a majority of two to one, decided in favour of Daera Guba and against the Administration on 31st May 1971, one year after it first began hearing the appeal.
The Supreme Court decision was a decision on two appeals from Judge Clarkson who sat on appeal under the Land Titles Commission Act 1962-1968. He handed his decision down on November 26, 1969.
In his decision Judge Clarkson held in favour of the Administration, dismissed Lohia Doriga’s appeal and upheld the Administration’s appeal in respect of areas he numbered 2 to 6 inclusive. He awarded area No. 1 lying east of Administration purchase of 1956, known as Castlereagh Street, delineable in red by the Commissioner’s plan to Daera Guba on behalf of the Tubumaga Clan. He also declared area No. 5 to be Crown land.
Now, before Clarkson, J.’s decision, there had been other decisions. On October 21st, 1954, the Land Board heard claims by the people against the Administration. The Board found that the whole of the rectangle - Granville East WXYZ - was purchased in 1886 and was owned by the Administration.
The Board was constituted under the chairmanship of Mr J.I. Cromie, when Commissioner Champion accepted that he had no jurisdiction to conduct the inquiry. The Board did not concern itself with the additional claims “G” and “H”, which fell outside the internal rectangle WXYZ on exhibit X.
No appeal was lodged against the Board’s decision of 21st October 1954. However, in February 1966, Daera Guba and Lohia Doriga, parties to the appeal which went onto the High Court of Australia, made separate claims before the Land Titles Commission established under Land Titles Commission Act of 1962. They claimed Era Toara. The Chief Land Titles Commissioner gave his decision on March 25th 1968. Mr Lohia Doriga’s claim for a rehearing was refused by Judge Clarkson. Judge Clarkson heard the case as an appeal.
Judge Clarkson dealt with the determination of the Land Board of 1954, this way. He declined to state a case to the Full Court on the issue whether the Land Board’s decision was or could be res judicata or could give rise to an issue estoppel in relation to the Land Titles Commission.
Judge Clarkson accepted that since Commissioner Champion had no power to hear the claims, the dispute remained at large, but he thought Mr. Champion’s decision had persuasive force.
The Land Board’s decision was ruled to be of no binding effect on the newly constituted Land Titles Commission, by the latter, in March 1968 because it was not a judgment in rem. Judge Clarkson ruled that estoppel operated in respect of the Tubumaga claim to such of Era Toara (p. 23) as falls within the Granville East rectangle. However, he made a reservation in relation to area “G” on Exhibit “X”. With respect to area “G”, the Administration relied on its 1886 acquisition (p. 24).
Thus his Honour reached the view that Tubumaga claimants were estopped by the Land Board’s decision from claiming title to pieces of land, he identified as 2, 3, and 4. Area 2 was awarded to the Administration by the Land Board. It was the inner rectangle WXRS of Era Toara and perhaps Vanama. Area 3 falls outside the smaller internal rectangle WXRS, but inside WXYZ was given to the Administration. It was actually dropped by counsel on instructions, as they could not support it. Area 4 lies south and west of and outside inner rectangle WXYZ but excluding 5 and 6 and was also “abandoned” by the claimants. It was given to the Administration by the Land Board.
Areas 1 and 5 were excluded when it was conceded areas purchased did not include these two areas east and west of the large rectangle.
He also determined that area No. 6 was lawfully acquired by the Administration. He also ruled that area No. 5 is Administration Land. Area No. 1 was granted to Tubumaga clan and Judge Clarkson did not disturb this finding of the Land Titles Commission.
Thus, his Honour awarded areas 2-6 inclusive to the Administration; and did not disturb the Land Titles Commissioner’s award of area No. 1 to Tubumaga; even though before the Land Board, this piece of land was not dealt with.
Thus the gist of Judge Clarkson’s decision is that areas 2 to 6 inclusive are Government land while area 1 is Tubumaga land. This was the decision the Supreme Court overruled by a majority of two to one, and it was the decision the High Court restored.
The native claimants would have appealed to the Judicial Committee of the Privy Council, only the political fortunes for Papua New Guinea, brought about an Independence home grown Constitution which cut out appeals to that august body.
THE PLAINTIFF’S ANSWERS IN RESPONSE TO INTERLOCUTORY JUDGMENT
Mr Reva Mase’s written submissions are brief and I quote them in full, from his affidavit filed on 20th November 1980.
“(a) Neither I nor the Tubumaga Laurina Clan was a party to the contest which went through the various judicial tribunals in Papua New Guinea and finallthe Hourt stralia.
(b) ; any event,vent, the othe onle only lany land whid which is subject of the present action which was considered by the High Court is the area described in the High Court judgment as area No. 1.
(c) r faares No. is concernncerned, the Land Titles Commissioner found, in 1968, that that land belonged to the Tubumaga Laurina and ht, attime, soldhe Government. On appeal to the Supreme Court, Mr. Mr. JustiJustice Clce Clarksoarkson uphn upheld the Commissioner’s decision with respect to area No. 1. That area was not the subject of any further appeal and was not contested in the subsequent proceedings, including the appeal to the High Court.
(d) &##160; The reme remaining cand edaimed in this action was not the subject of the proceedings which went to the High Court.
(e) t isefoer mteetiat I t es t estopestopped, by reason of the litigation, fro, from clam claiming the land which is the subject of these proceedings; the land prly cl was r notsubje the previous litiglitigationation or, or, alteralternativnatively, (in the case of area No. 1) was held to belong to the Tubumaga Laurina Clan.
(f) ҈ So far far as the Deed oe Release is concerned, the only land which is the subject of these proceedings which the Government asserts is covered by the Deed of Release is area No. 1. That area belonged to the Tub Laurlan which claimedaimed no e no entitlement to it. Daera Guba had no right to enter into any agreement with respect to area No. 1 and was not authorised by the Tubumaga Laurina Clan to act on its behalf in relinquishing claims to the land in favour of the Government.
(g) ټ&#The Tube Tubumaga maga Laurina Clan did not know that at the time of the execution of the Deed of Release, Daera Guba was entering into any agreement which affected area No. 1.
(h) ټ So far far as the balance of the land claimed in these proceedings is concerned, the Deed of Release does not purport to deal with that land.(i)&ـ So far as the decl declaration in Government Gazette No. G30. G30 of 1 of 17th May 1979 is concerned, it is my contention that that declaration is not effective for the following reasons:
(i) ; The Nat onal Rand Registraistration Act 1977 is applicable only in respect of land acquired before Independence Day. Insofar as the Government relies onDeed h Nov 1975its aition of any part oart of Eraf Era Nese Nese, the, the Act Act cannot apply because, on this basis, the land was acquired after Independence Day.
(ii) & No noti notice has been given to me or to any other person as representative of the Tubumaga Laurina Clan as required by Section 52 of the Act, notwithstanding that the Minister of Lands was aware at the time oing tclaraof the the claimclaim of t of the Tubumaga Laurina Clan.”
THE DEFENDANT’S ANSWERS IN RESPONSE TO INTERLOCUTORY JUDGMENT
Again, the answers given by Mr Luke Lucas, counsel for the defendant are relatively short and I incorporate them in full.
“It is necessary to look at each claim submitted by Reve Mase since 1977. I have attached different maps for each separate claim as otherwise it is too confusing. Please note Your Honour that area “I” on the map produced in 130 C.L.R. page 367 (see appendix 1) is that area East of Castlereagh Street. The area has 3 distinct corners namely H where Area I connects with the south side of Castlereagh Street. Corner F where area I connects with the North side of Castlereagh Street and corner G which forms the apex of triangle I. Now this area I is also divided into 3 distinct portions and each portion is covered by a different DA’s. During 1956, 1957 the then Administration purchased DA 2253 and 2252. Portion DA 2253 is the most southerly part of area I and DA 2252 is the middle part of area I, however, at no time were these areas known as “F” and “G”. The Land Board meeting of 1954 had all the areas designated by name and number as follows: (See exhibit “X” Land Board 1954) (Appendix No. 2).
1. &##160; Area A - ERA TAORA AORA (light blue) TUBUMUGA IDIBANA
2. ҈& A60; Area B ea B - RANUGURI (brown) TUBUMUGA IDIBANA
3.&##160;;ټ&#Area C - ERANESI PT. I (orangorange) TUe) TUBUMUGBUMUGA GUNA GUNINA
4. & A60; Area D - ERANESI PT. II (yellUBUMUGA KAHANAMONA
5
5. ـ A6ea E - VANAMA PT.A PT. I (dark blue) TUBUMUGA LAURINA
6.҈&ـ TUu> TUBUMAGBUMAGA LAURINA
7. ـ <60; Area G - LEKE BOIO (light greeHODAE GIAKONAE
8. ـ <6>Area H - CASTLERSTLEREAGH (pGH (purple)
(See attached maendix2
of areas G and H the BoardBoard said said: : “Are no longer of concern to this Board”. I am unable to inform Your Honour to what particular Subclan the area H belonged. However, as you will see below all these 3 areas were claimed by Reve Mase namely F, G and H (See his 6th and 7th claim, Appendixes Nos. 8 and 9), however, area G - LEKE BOIO belonged to the GIAKONAE (see IVAN CHAMPION’S REPORT 1954) Now to be able to determine which area(s) Reve Mase is claiming I wish to turn each of his claims submitted:
Claim No. 1: Submitted 2ND JUNE 1977 (See Appendix No. 3) Reve Mase claims that part of area I (see above) which was validly purchased by the then Administration during 1956/57 and now known as DA 2253.
Claim No. 2: Submitted 8th August 1977 (See Appendix No. 4) Reva Mase claims the northern part of Area I (see above). This area however does not include the small appendix laying on the Eastern border of DA 2252. 4 of the 5 High Court Judges held that area I (see above) had been validly purchased during 1886. This part i.e. Claim No. 2 is also governed by the Deed of Release.
Claim No. 3: Submitted 6th January, 1978 (See appendix 5) In this claim Reve Mase indicated the whole of Area I and part of Castlereagh Street as the land in question. The total area is covered as follows:
Southern part of Area I - DA 2253 (whole)
Middle part of Area I - DA 2252 (whole)
Northern part of Area I - A Purchase 1886 (High Court), B Deed of Release
Eastern Half of Castlereagh
Street for length of Area I - D.A. 2157 (part)
Claim No. 4: Submitted 13th October, 1978 (See appendix 6)
The Northern part and middle part plus part of Castlereagh Street were put forward as the correct area of land under dispute. This area is covered as set out below:
Middle part of Area I - DA 2253 (whole)
Northern part of Area I - A Purchase 1886, B Deed of Release
Castlereagh full width for length of Middle and Northern part - DA 2157 (part).
Claim No. 5: Submitted 9th December, 1978 (See appendix 7) The area in this claim is considerably larger and is covered by the following:
Part of Northern Part of Area I - A Purchase 1886, B ـ҈ <60; Deeu>Deed of Release
Middle part of Area I - DA 2252
Southern part of Area I - DA 2253
Eastern part of Castlereagh StreeA 215
Western part of Castlereagh Street - AA DA 2 DA 2077, B DA 602, C Deed of Release, D Purchase 1886
Claim No. 6: Submitted 16th August 1979 (See appendix No. 8)
This was the first time that Reve Mase submitted a plan with his claim, all other claims had been submitted giving co ordinates only. Claim No. 6 plan had been drawn up by the firm, “Bull - Ferranti and Collier - Frame and Harvey”. Reve Mase claimed 3 areas namely F, G and H and Area I which was always part of the previous 5 claims was completely left out of Claim No. 6.
The 3 areas claimed are exactly as the areas expressed in the Land Board Division of 1954, Exhibit X (See Appendix 2).
These 3 areas who form Claim No. 6 are covered by the following documents:
Area F:
A. Purchase 1886a(totp>)
C. & DA 2077 (part
D>D. &##160;; D60; DA 2157 2157 (part)
Area G GAE LAu>A. ـ҈ Purchase 1886 l)
.&##160;; #160; 2 (part)D>D.&/u>. ـʔ&160;&160; DA 2157 (par> Area Hrea H: .҈ Purcha86 18ota(t
I wish to reiterate here that areas C and
“Mr Lalor announced oned on behalf of the Crown that Notice had been given of this hearing to all villages in the Port Moresby area and that according to Mr Short of the Department of District Services and Native Affairs, he had not received any indication of parties other than those who are represented by Mr Sturgess (sic), of Appearing”
“Mr Sturgess (sic) announced that all areas which had been claimed and which lay outside a rectangle on the plan lettered W, X, Y, Z were NOW ABANDONED BY HIS CLIENTS” (the underlining is mine).
Since this decision was handed down in 1954 there have been no claims to any of the areas name F, G, and H until Reve Mase’s 6th claim (as set out above) of the 16th August 1979 i.e., for a period of 25 years. No claims were lodged for areas F, G and H. It is also a fact that area G belonged to the GIAKONEA prior to 1886.
7th Claim: Submitted 11th September, 1980 (See appendix No. 9)
Thirteen days before the actual hearing of this case Reve Mase again changed his claim Area H as set out in Claim No. 6 (above) was deleted and in Claim No. 7 he claimed as follows:
Area F:
A. Psrcha86 18ota(t
)C. ـ D7 207rt(part)
D>D. ;0;&##160; DA 2157 (part)
Area G GIAKONAE LAND:
A<A.&/u>. #1660; Purchase 1886 ltota>
C. ҈& D60;02 602 (part)part)
D. ҈&� (part)>
Area I: In his amended 7th Claim laim Reve Reve Mase Mase did specify this area as the “Shaded” area no “starting” co-ate ien, however, from the shape it appears that this this wouldwould coincide with the area East of the Eastern Boundary of Castlereagh Street, however, this is only a “calculated guess”. This is the same area which 4 of the 5 High Court Judges held to be validly purchased during 1886.
A. & P60; Purchased 1886 (total)
B. &##160;; D60d ofed of ReleaRelease (part)
C. ـ D3 225p>(p/p> Your>Your Honours 3 questions on page 8 of youf your intr interlocerlocutory judgment should therefore be and as ws:(a) t If ; If Reve Meve Mase’s s “Shaded Area” (see 7th Claim) is the area commonly known as I (i.arkso
and High Court of Australia Judgments), and as stated above this is onis only a ly a ̶“calculated guess” then the
answer is as follows: Area I being that area which lies to the East of the Eastern Border of Castlereagh Street and which was so labelled during Clarkson
J. his Judgment and also during the High Court of Australia Judgment is entirely included in the Section 8 Declaration of the Minister
of Lands, Surveys and Environment as published in the Government Gazette No. G.91 of 16th of November 1978 (See appendix No. 10) (b) &ـ The rede red stripstrip referred to by the Plaintiff as area G or commonly known as “LEKE BOIO” is governed by 2 Section 8 declarations namely the “NortPart&; i.e. that part part whichwhich falls in “ERA TAORA” (Area A) is governed by Section 8 declaration of the Minister of Lands, Surveys and Environment and published in Government Gazette No. G.91
of 16th of November 1978 (See appendix No. 10) and the “Southern Part” i.e. that part of “LEKE BOIO” which falls outside “ERA TAORA” is governed by Section 8 Declaration of the Minister for Lands, Surveys and Environment as published in Government Gazette
No. 30 of 17th May, 1979 (See appendix No. 11). (c) &##160;; The aree area refe referred to as “F” by the plaintiff or commonly known as “VANAMA PT. 2” is governed by Section 8arati published by the Minister for Lands, Surveys ands and Envi Environment in Government Gazette
No. 30 dated 17th May, 1979 (See appendix No. 11). To reiterate, all the 3 areas, always providing these are the correct areas (see my comment above), are covered by Section 8 Declarations. We now turn to page 2 of your interlocutory judgment to answer question 1 to 3 inclusive. Question 4. has been answered br YououHonour already. QUESTION 1 Was Reve Mase or in the alternative Tubumuga Laurina Clan a party to the contest that went through various judicial tribunals in PNGfinal
the Court ourt of Ausf Australitralia? A. ;ټ Your Hour Honour Mour Mr Reve Mase submitted the family tree of GUBA DAERA and also from VAGI DIKANA (appendix 14). Oala Reva, Reve Mase his uncle is a direct desnt fr>VAGINA (see (see appenappendix No. 14) Oala Reva represented the Laurina side when the deed money (i.e. K100,000) was distributed on 6th
November, 1975. B. ـ Your H dour during the Lane Land Titles Commission’s hearing in 1968 Mr Kearney. W.J. Principal Legal Officer of
the Department of Law (as he then was) kept long hand notes of testioked oMr. Daera Gura Guba and> and Mr. Oala Reva (see A above). These notes have been preserved and are attached as appendix 12 and appendix 13 and 13A. Appendix 12 Daera Guba A. “I AM REPRESE TING BOTH BRANCHES OF THE CLAN AND ALL OTHER CLANS DECENDED FROM THE SAME ANCESTORS”. APPENDIXALA Rp>
Q. “DID YOU HEAR EVIDEICE GIVEN BY DAERA GUBA MORNI221;
A. ¨ &#YE20;YES̶”
QQ. ҈20;DI AGREH EVERYTHIRYTHING HE SAID”
/u>.& & “IT IS TRUEUEUE”<221;
Youp>Your Honr Honour here it is clearly evident that taim wde bya Guba on behalf of both of the clan i.e. the Laurina and the Idibana TubumTubumugas
On the strength of the above, question one should be answered: “Yes” See also Telex from Administrator to Territories Canberra 1954 (Appendix 15)
QUESTION 2
1. ; L60d Bonrd hearing Octobectober 1954
Page 3 sets out the areas which were of concern to the land board. It further states, as set out in full above, that “all areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle on the plan lettered W, X, Y, Z were now abandoned by his clients’ i.e. this means:
1. &##160;; C60; Castlerstlereagh = No. H
2. &##160;; P60ts orts of Ranu Ranuguri and Eranesi I: No. B & C
3. ; Leke BoNo = u>. G
Forp>For the the aboveabove parts all claims were abandoned. The Land Board decision of 1954 thee wasthe A, X, Y, Z of the plan AreasAreas E and F are within this rectangle but the area commonly known as Ares Area I fa I falls outside. The whole of the rectangle was held to be Government land.
If Reve Mase is referring to F & G as set out on the plan submitted during the Land Board decision, and my submission is that he does as he submitted a plan drawn up by a qualified surveyor, then it follows that:
(a) Claims on Area G were abaddoned during 1954;
(b) & Claims aims on Area F was decided in favour of the Government;
(c) ; Area I. Partrua Ipurchin chin 1956/57 namely the Southern DA 2253 and the middle part part DA 2252. The rest i.e. the Northern tern triangriangle fele fell within the area subject of the eed oease&;. The wholewhole of t of the Arhe Area I was further found by the High Court of Australia to have been validly purchased in 1886 - see the following pages of 130 CLR, 387-388, 390, 393, 394-395, 405, 408, 409, 435.
Your Honour, question two of your questions on page two of your interlocutory judgment should also be answered in the affirmative as it formed part of Era Taora. It was the whole of Era Taora which was decided by the High Court of Australia.
QUESTION 3
Your question no. 3 is answered because my answer to question one is in the affirmative. It therefore follows that Reva Mase or in the alternative the TUBUMUGA LAURINA were estopped see especially the Judgment of Stephen J at pages 455 and 456”.
MY JURISDICTION
I have read and re-read the judgments of Judge Clarkson, the judgment of the Full Court of the Supreme Court and that of the High Court of Australia. I sit to hear this case not as an appellate court, nor as a court or a tribunal of review. I sit as National Court under the Constitution of Papua New Guinea. I have already ruled that the National Land Registration Act does not exclude me from hearing this case. No appeal has been lodged against that decision, thus I assume the National Land Registration Act does not preclude me from considering the merits of this case.
Although I do not sit as an appellate court, I cannot escape being informed, persuaded and being guided by the opinions of various courts. In the present claim, both parties called evidence which I will refer to whenever and wherever relevant.
I deal first with area No. 1. There is no doubt that his Honour Judge Clarkson ruled at page 47 that that the piece of land was Tubumaga Clan land, as the Land Titles Commission had found it to be Tubumaga Land. He said that was the area bounded by land on the south and on the west by land sold by Tubumaga Clan to the Administration.
The Chief Justice of Australia held at p. 404 and p. 395, first that all of Era Taora was acquired in 1886. He also held that if in that opinion he was wrong, then the decision of the Land Board in 1954 in favour of the Administration in respect of Era Taora in fact estopped the Land Titles Commission from entertaining any claim to that land.
It seems that portion 1 of Era Taora has never been dealt with adequately. At pages 30-31 of Clarkson J’s decision, we find that “it was not dealt with by the Land Board’s decision; it was included in the area claimed by Tubumaga Clan as part of Era Taora before the Land Titles Commission; and the Land Titles Commission declared it to be Tubumaga Land”.
This is really the point. If the Land Board did not deal with it, then so much of Era Taora as was not dealt with by the Board, logically remained open to be dealt with and was dealt with by the Land Titles Commission. In the case of area No. 1, the Commission declared it to be Tubumaga Land.
Thus, so much of Era Taora as was not acquired in 1886 was not dealt with by the Land Board, but was in fact awarded to Tubumaga Clan. Thus, in my view, when the High Court of Australia restored Judge Clarkson’s decision, it restored such rights and titles to the land as were determined by him, in accord with the Land Titles Commission findings.
Barwick C.J.’s opinion at page 395 that the small area marked “1” in the prepared 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, seems to me to be obita. His Honour made no mention of a purchase of area No. 1 in 1956 or 1957. In fact he specifically referred to the purchase of area No. 7 in 1956 and 1957, if it was not acquired in 1886. His Honour expressly found at p. 397 that the title of the Papuans whatever its nature according to native custom was confirmed by legislative Acts of the Territorial Administration.
The crux of the Chief Justice’s decision is simply this, in respect of area No. 1. If it was not part of an area acquired in 1886, then the decision of the Land Board in 1954 giving the land to the Administration prevented further examination of the question in 1966 by the Land Titles Commission. But, the Board, did not entertain area No. 1, whereas the Land Titles Commission did. Thus, so much of area No. 1 as was not dealt with by the 1954 board remained open to the Commission. The Commission in respect of that area, held in favour of Tubumaga Clan. Judge Clarkson approved of the Land Titles Commission decision, thus conferring Tubumaga title to area No. 1 and the High Court of Australia has also restored that and all those rights.
Since this piece of land was not an issue before the High Court, as it was expressly excluded by Judge Clarkson it follows that the common law doctrines of res judicata and issue estoppel cannot operate. It is unnecessary for me to parrot the authorities which have been adequately dealt with by the various courts.
Now, there arises two additional questions. The first question is whether area No. 1 was purchased in 1956 and 1957, if it was not so purchased in 1886. I have already referred to and dealt with the opinion of his Honour the Chief Justice of Australia. What did Judge Clarkson say about this matter?
At page 32 of his judgment, his Honour Clarkson J. conceded that the area purchased in 1886 did not include areas 1 and 5 and he temporarily excluded these areas from consideration. With respect to area No. 5, Clarkson J. found that though it was not purchased in 1886, it was acquired in 1902 by a procedure which on its face appears to have been regular. He was referring to an Order in Council of the 19th August 1901.
With respect to area No. 1, Clarkson J. stated quite specifically at p. 47 as follows:
“The Order of the Land Titles Commission in Appeal No. 35 of 1968 by the Administration should be amended to award to the appellant Daera Guba on behalf of the Tubumaga Clan only that portion of Era Taora being area No. 1 as lies to the east of the Administration purchase of 1956, known as Castlereagh Street. This is the almost triangular piece of land delineated in red on the Commission’s plan annexed to its decision.”
It is quite plain therefore that his Honour Judge Clarkson was referring to another portion of area No. 1 which was not purchased by the Administration. Just what that part was, his Honour described generally, but reserved liberty to all parties to apply as to the terms of his order. Even with respect to that part of area No. 1 sold by members of the Tubumaga Clan in 1956 and 1957, to the Administration, his Honour preserved the Land Titles Commission finding that it was Tubumaga land.
NATIONAL LAND REGISTRATION ACT NO. 49 OF 1977
The next logical and chronological question arises from the National Land Registration Act. Section 6 and 8 of the Act apply in respect of lands acquired before Independence Day. There is nothing to indicate that a part of area No. 1, granted to the Tubumaga Clan by the Land Titles Commission before Independence, confirmed by Judge Clarkson whose decision was restored by the High Court, had been purchased before Independence. All the tribunals proceeded on the basis it was never bought.
As far as Section 6 notice is concerned, I see nothing in Mr Lucas’ submission and I find nothing in the documentation to show that a notice was in fact given in a government gazette as required by Section 6 of the Act. Land acquired after Independence is governed by Division 2 of the Act, Sections 10, 11, 12 and 13. Declarations made under G30, 17th May, 1979 all relate to Section 8 of the Act and are therefore irrelevant to any land that might have been acquired on or after Independence. National Gazette G91 of 16th November 1978 also makes a declaration of national land in respect of Deed of Attestation No. 2252. It is made under Section 8 of the Act and is for the same reasons irrelevant to land acquired on or after Independence.
The inescapable logical conclusion is therefore that insofar as that portion of area 1 is concerned, it was and always remains Tubumaga Land. That is the portion Judge Clarkson referred to in his judgment, which the High Court did not disturb.
DEED OF RELEASE
Next, we turn to the Deed of Release made on 6th November 1975. That deed was made between Daera Guba for and on behalf of Tubumaga Clan and Aisea Taviai, Director of Lands, Surveys and Mines, on behalf of the Government of Papua New Guinea.
That Deed of Release relates to the land described in a schedule. This schedule evidently is a reference to a map M/49/370, dated 12.12. 1969. It was made after the decision of Judge Clarkson. It is, in my view, irrelevant to the decision of Judge Clarkson as restored by the High Court. In any case, the map itself shows clearly an almost triangular piece as being “Daera Guba on behalf of the Tubumaga Clan”. It in no way is evidence of Government title to that portion of land east of Granville East.
In this case, Mr Lucas has again, kindly provided me with various maps, all, apparently of the same area of land in dispute. Appendix 1 refers to a map used by the High Court of Australia. That was the survey plan map prepared by an assistant district officer, at the request of Daera Guba. Appendix 2 refers to a map setting out High Court map, Judge Clarkson’s map and that of the Land Board. It is clear, area No. 1 was not before the Land Board and is not shown on that map. But it appears to be within internal rectangle WSRX, together with a disputed triangle with no DA numbering. Within the rectangle WSRZ (disputed triangle is outside WSRZ) there is Era Taora (A), in light blue, Vanama Pt 2, marked (F), in green, Erenese Pt 2 marked (D), Vanama Pt 1 marked deep blue (E) and Erenese Pt 1, marked (C) in light red.
This map in appendix 2, shows clearly that DA2252 and DA2253, are outside the rectangle RSWX or WXYZ. Thus it is quite clear from appendix 2 that DA2252 and DA2253, do not cover all of an area we may loosely call area No. 1. Both the “disputed triangle” immediately northwesterly to DA2252 and the green triangle marked Vanama Pt. 2 are not part of DA2252 and DA2253. The Land Title Commission map Exhibit “X” again shows different parts marked and named differently. It however does not show the “Disputed Triangle” on DA2252 and DA2253.
In appendix 3, it would seem that Mr R. Mase’s claim (2/6/1977) included the “Disputed Triangle” as well as DA2253. The fourth appendix, of claim 2, dated 8/8/1977, the plaintiff’s claim was only to the disputed triangle. In his third claim dated 6/1/78, appendix, 5, the claim covered an area that looks like a rising sun including “Disputed Triangle”, DA2252, and DA2253. It also appeared to stretch below the main line WX. Appendix 6 shows his fourth claim dated 13/10/78 which again stretches into Vanama Point and further into what is called Era Taora. Appendix 7, showing claim 5, dated 9/12/78, again stretches into Leke Boio, Era Taora and Erenese Pt 2, as well as covering Vanama Point, “Disputed Triangle” and DA2252 and DA2253. Appendix 8 shows his 6th claim dated 16/8/79 and covers all of Leke Boio, Vanama Point and Castlereagh Street (H). Finally, appendix 9 shows claim 7 of 11/9/80, and it appears to cover all of Leke Boio, DA2253, DA2252, “Disputed Triangle” and Vanama Point.
I shall now accept this as the final claim for the purposes of my court. I now compare this with Exhibit X, Land Titles Commission map. What Mr Reva Mase now claims is therefore AREA VIII or lettered “G”, and named Leke Boio, a portion which falls outside WX line along Castlereagh Street, DA2253, DA2252, “Disputed Triangle” and Vanama Point, marked F.
By comparison, I am confident that area G refers to Leke Boio, while area F refers to Vanama Point (0.16 ha). With respect to the “Shaded Area”, I have some difficulty in locating on appendix 9 or on Land Titles Commission map, exhibit X.
This creates uncertainty as to just which area is being referred to as area No. 1, and was the subject of Judge Clarkson’s decision which was restored by the High Court.
To the extent that area “F” falls within part 1, it remains part of land awarded to Tubumaga Clan. There appears to be and there is no basis for Mr Reva Mase’s claim to area G, as it was never awarded to Tubumaga. It was originally Giakone land acquired in 1886. It is beyond my power to go behind High Court decision. I should say however, that having read the Supreme Court and the High Court decisions, there is great merit in the majority decision of the Supreme Court. At this late stage, I can do no more than express the hope that in one way or another, the former land owners obtain some real benefit from acquisition of their land. I may go further and express my hope too, that may all original land owners immediately before colonial acquisitions obtain some real benefit from the alienation of their land.
With the greatest respect to all Government parties concerned in the acquisition of various pieces of land in Konedobu-Newtown, the entire history appears to be quite messy, since 1886. The Australian High Court decision appears to be couched in “catch all land” and “end all disputes language”! One would have thought on a pure common sense basis that if the land so “acquired” is not surveyed, is not marked, is not recorded and is not even registered under normal circumstances when all these things should have been done, then the inescapable conclusion is that it was never acquired. It remained native land.
But no, the State will always prefer to have been “far sighted”, “far wiser”, in its officer’s dealings than the actual history tends to show in the general dealing of the white races with the indigenous races. I am afraid, with the greatest respect to the High Court of Australia, after having read their judgment, I rather regret that the people’s claim to further appeal to the Privy Council was denied. I am also glad that we no longer have to appeal to the Australian High Court. In my humble view, there should be a fresh review of all the written evidence, the decisions and fresh evidence should be taken by an administrative type tribunal or a Permanent Parliamentary Committee.
The courts are restrained by rigid rules of law, both written and common law. Customary law continues to be ignored with the result that even on principles of natural law, citizens and subjects may not always get their due; or if they get anything at all, that it is not a due but a charity, a handout which like salt, does nothing more than increase the peoples’ appetite for more.
The people are not entirely innocent. Some ask for impossible sums of money while others make claims they cannot support with any real evidence. The people must come to know too that an obligation once made by their ancestors is binding. They cannot in honour break their ancestors’ word.
Nevertheless, one of the hopes for Independence was that ‘lands would be returned to their original owners, that those wronged would be restored and that no more of the peoples’ lands would be taken from them. Looking at various deals involving land, I doubt if the governments of the people of P.N.G. will be any wiser or more just than the former colonial governments. If anything, the former colonial governments may well come out more protective and just than the indigenous governments.
Native land is governed by native customary tenure. There is no Constitutional guarantee that native land tenure shall govern native land. On the contrary, native land tenure is loosely affirmed by ordinary Acts of Parliament. This points to what I consider to be the gravest danger - that at any time, Parliament may abrogate native customary land tenure.
The peoples’ governments in Papua New Guinea must not unintentionally act as brokers, acquiring land cheaply from their people, and then place it at a market price easy for foreigners or pseudo Melanesians to acquire, but difficult for the latter to redeem.
For Plaintiff: Reva Mase (In Person)
Solicitor for Dependant: R.K. Woods, State Solicitor
Counsel: G. Lucas
N296.html#_ednref528" title="">[dxxviii]130 C.L.R. 353
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