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Tolililu and Tolikun v Director of Native Affairs [1965-66] PNGLR 12 (26 August 1963)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 12 - Tolililu and Tolikun v Director of Native Affairs

[1965-66] PNGLR 12

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOLILILU AND TOLIKUN

V.

DIRECTOR OF NATIVE AFFAIRS

Rabaul

Ollerenshaw ACJ

16-17 April 1962

20-30 September1962

1-3 October 1962

24 June 1963

26 August 1963

REAL PROPERTY - Ownerless land under German and other colonial legislation - Recognition of usufructuary rights - Abandonment of land by Tolais in Gazelle Peninsula - Appropriation by Fiscus - “Native reserve” - Land held or vested “on behalf of or for the benefit of any natives” - Succession to title by Director of Native Affairs - Succession by Administration - Declaration of trusts - Registration of trusts where Director trustee and otherwise - Position of Director in relation to natives under land legislation - Equitable interests in case of permitted occupation by Sulka refugees - Registration in German Land Register (Grundbuch) and cancellation thereof - Use of proclamations, reports and other formal and informal records in questions of title to land - Powers and practice of Commissioner of Titles in making orders - Appeal from Commissioner - Laws Repeal and Adopting Ordinance, 1921, ss. 6, 9 - Land Ordinance 1922-1950, ss. 4, 11, 68, 72 - Land Registration Ordinance, 1924-1939, ss. 15, 16, 23, 24a, 27c, 38, 39 132a, 145, 146 - New Guinea Land Titles Restoration Ordinance 1951-1955, ss. 9, 13, 36, 38, 42 - Laws of the Territory (Proof and Printing) Ordinance, 1951.

The Director of Native Affairs claimed to be trustee of certain lands in New Guinea on behalf of natives generally and not any particular community of natives. The Director claimed that the land was held by him under the Land Ordinance 1922-1950 and alleged that, although he had not been registered as owner during the Australian administration of the Territory of New Guinea before the Japanese occupation, the Director who then held office had been entitled to such registration. The Director had not been appointed a trustee of the land under s. 72 of the Land Ordinance and s. 15 (2) of the Lands Registration Ordinance 1924, but claimed that the Director was the successor in title of the German Fiscus in pursuance of s. 39 of the Lands Registration Ordinance, contending that the Fiscus held the land on behalf of or for the benefit of natives. The Director claiming that he held the land as a trustee for natives generally, also claimed that he was entitled pursuant to s. 39 (2) to have a Certificate of Title in which he was described “as a trustee for natives” and entitled pursuant to subs. (3) of the section to have the land described therein as a “native reserve”.

The Commissioner of Titles under the New Guinea Lands Restoration 1951-1955 upheld the Director’s claims that the Fiscus was the unregistered owner of the land and that the Director was the successor in title of the Fiscus. The Commissioner did not expressly find that the land was a “native reserve” or that it was held by or vested in the Fiscus “on behalf of or for the benefit of any natives”. He found, however, “that the area was considered to be Government land devoted to the use of the Sulka immigrants”, the Sulkas being native people encouraged by the German and Australian Administrations to use the land. The Commissioner thereupon proceeded, contrary to the Director’s claim, to “declare” that the Director held the land in trust for the Sulkas, confining this trust to the Sulkas who were living on the land on the appointed date and their descendants. This declaration of trust was incorporated by the Commissioner in his Final Order and a memorial thereof was entered on the draft Certificate of Title which was annexed to the Order.

Certain Tolai natives appealed against the Commissioner’s decision to the Supreme Court to obtain a discharge of the Final Order and a declaration that they were entitled, at the appointed date, to an equitable interest in the land as cestuis que trust, or, alternatively that they were owners of the land or a portion thereof under native customary rights.

Held:

(1)      The land was “ownerless”, that is free from any native rights of occupation or use when the Germans first took possession of German New Guinea and that it remained so at all material times during the German regime.

(2)      That the subject land did not come within s. 39 of the Lands Registration Ordinance 1924, as amended, as a “native reserve” or as “land which is held by or vested in the Fiscus . . . on behalf of or for the benefit of any natives” and that, therefore, the Director’s predecessor did not succeed to the land as claimed by the Director. In fact the land was owned by the Fiscus in the sense that it held the full title to the land free from any usufructuary or other rights in natives and it had gone into possession or appropriated the land and put or encouraged the Sulkas to go upon it because its ownership of the land was so unencumbered. The Australian Administration in fact succeeded to the land and did not place it under the control of the Director as it could have done.

(3)      The declaration of trusts and the endorsement on the Certificate of Title of a memorial or notification of these trusts was without justification in law or in fact.

Other matters discussed are indicated by the catchwords.

Cases referred to:

St. Catherine’s Milling and Lumber Company v. The Queen 14 App. Cas. 46; Amodu Tijani v. Secretary for Southern Provinces, Nigeria, [1921] UKPC 80; [1921] 2 A.C. 399; Powell v. Streatham Manor Nursing Home, [1935] A.C. 243; Stool of Abinabina v. Chief Kojo Enyimadu, [1953] A.C. 207; Geita Sebea v. The Territory of Papua [1941] HCA 37; (1941), 67 C.L.R. 544; Attorney-General v. Wheeler [1944] NSWStRp 37; (1944), 45 S.R. (N.S.W.) 321; Rogers v. Rogers (1962), 3 F.L.R. 398; The Mortlock Islands’ case, 29th April, 1930 (Phillips C.J.); Bitapaka Virgin Land case, 13th July, 1931 (Phillips C.J.); Re Jomba Plain, 25th May, 1932 (Phillips C.J.); Tedep & Ors v. The Custodian of Expropriated Property & The Administration (Re Varzin Lands), 31st May, 1963 (Mann C.J.).

Appeal from Commissioner of Titles.

The facts are sufficiently stated in the judgment.

Counsel:

Dudley Jones, for the appellants.

McKillop, for the respondent.

Germain (by leave), for the Sulka representatives.

26 August 1963

OLLERENSHAW ACJ:  This is an appeal by way of rehearing brought by the appellants on behalf of the Tolai natives of the villages of Mar Mar and Ralabang. They appeal against the whole of a Final Order made on the 28th July, 1959, by the Commissioner of Titles under the New Guinea Land Titles Restoration Ordinance, 1951-1955, upon a claim by the Director of Native Affairs under s. 9 of that Ordinance to have been entitled on the 10th January, 1952, the date appointed under the Ordinance, to an estate of freehold as trustee in certain land lying not far to the south of their villages in the Gazelle Peninsula of New Britain.

The Director claimed that the land was held by, or vested in, him as a trustee on behalf of natives generally and not any particular community of natives. Section 13 of the New Guinea Land Titles Restoration Ordinance, the section which provides for the cases in which the Director is to take steps to establish a title to land held by him for the benefit or on behalf of, or as trustee for, natives does not provide for such a case. That is, however, a small thing in the consideration of this curiously drafted Ordinance.

In the proceedings in which he made his Final Order the learned Commissioner had before him also a reference of native rights under s. 36 of the New Guinea Land Titles Restoration Ordinance 1951-1955 (which I shall call the “Restoration Ordinance”). This, too, was made by the Director but on behalf of these Tolai natives of the villages of Mar Mar and Ralabang, who, in opposition to the Director’s claim to be entitled as owner of the freehold, claimed that they were entitled to rights of ownership over the land, asserting as the basis of their claim that the land had never been alienated by their predecessors in title.

Although such a situation in which the Director and natives are asserting conflicting claims is not anywhere contemplated by the Ordinance, its machinery has served, without objection, to have the issues between them presented and determined. Section 38 of the Ordinance makes express provision for the Director to represent natives in proceedings under the Ordinance and requires him to present their case. In the circumstances, this section has been ignored and before me the Tolais have had their case presented and argued by Mr. Dudley Jones, a private practitioner, and they were represented before the learned Commissioner by a practitioner from the office of the Crown Solicitor.

It is, perhaps, not surprising that the draftsman overlooked the possibility of a conflict between natives and their Director because under all the relevant legislation he is their representative and the protector of their rights. Under the Lands Registration Ordinance, 1924, as amended (which I shall call the “Registration Ordinance”) the Ordinance upon which claimants under the Restoration Ordinance must rely as having given them the registration which they claim to have restored by the Commissioner or the right to the primary registration which they claim from him, the rights of natives could not be registered in their names and were required to be registered in the name of the Director. However, the claim of the Tolais goes to the root of the Director’s title so that this may be a casus omissus.

The land has an area of approximately 3,250 acres and natural boundaries on its south and east, the Warengoi River and St. George’s Channel respectively. It is bounded on its west by the plantations “Gilalum” and “Warenvula” and on its north by the plantations “Livuan”, “Londip”, “Wat Wat” and “Vunabal”, lying in that order from the shore of the channel.

It is described by metes and bounds in a proclamation dated the 7th May, 1924, which was published in the New Guinea Gazette of the 15th May, 1924, and there is no dispute concerning the Commissioner’s acceptance of that description.

The Director set out in his form of claim that the land was a native reserve, held by him under the Land Ordinance, 1922-1950, in trust for natives and cited in support the proclamation which I have mentioned. He had not been registered, during the Australian administration of the Territory before the Japanese occupation, as owner of the land under the Registration Ordinance but claimed that the Director of those days had been entitled to such registration. Nor had the Director been appointed a trustee of the land under s. 72 of the Land Ordinance and s. 15 (2) of the Registration Ordinance. He claimed, however, that the Director was the successor in title of the German Fiscus in pursuance of s. 39 of the Registration Ordinance, contending that the Fiscus was the unregistered (that is unregistered in the German Land Register or Grundbuch) owner of the land and that it was held by or vested in the Fiscus on behalf of or for the benefit of natives. He did not, or, at least did not strongly, maintain that the land was a “native reserve” within the meaning of those words in s. 39.

The Director further claimed that he held this land as a trustee for natives generally and that he was entitled pursuant to s. 39 (2) to have a certificate of title in which he was described “as a trustee for natives” and entitled pursuant to s. 39 (3) to have the land described therein as a “native reserve”.

The learned Commissioner upheld the Director’s claims that the Fiscus was the unregistered owner of the land and that he was the successor in title of the Fiscus. The Commissioner did not expressly find that the land was a “native reserve” or that it was held by or vested in the Fiscus “on behalf of or for the benefit of any natives”. He found, to use his own words: “That the area was considered to be Government land devoted to the use of the Sulka immigrants”.

The operation of s. 39 does not depend upon it being “devoted” to any particular use. There was sufficient evidence, however, before the Commissioner for him to find, as he did find, that the Sulka immigrants were permitted to go on to the land by the German Government and were encouraged by it and by the Australian Administration, both before and after the Japanese occupation, to live upon it and use it for their subsistence gardens and, more recently, were encouraged by the administration to use it also for production for profit. It seems that this is what the learned Commissioner meant when he found that the land was considered to be “devoted” to the use of the Sulkas.

Having found that the land did come within the application of s. 39 of the Registration Ordinance because of this devotion to the use of the Sulkas, or, because the Fiscus considered it to be so devoted the Commissioner proceeded, contrary to the Director’s claim, to “declare” that the Director held the land in trust for the Sulkas, confining this trust to the Sulkas who were living on the land on the appointed date and their descendants. He clothed the Director with selective and other powers in relation to the beneficiaries he had nominated. This declaration of trust the learned Commissioner incorporated in his final order and he entered a memorial thereof on the draft certificate of title, which he annexed to the order.

The learned Commissioner took this course, firstly, because he considered that if the Director were to be registered as a trustee there must be “cestuis que trust” and that they were entitled to entry in the register book, and, secondly, because he considered it to be the only possible way out of what appeared to him to be “the present muddle”.

The Sulkas were not represented before the Commissioner. Before me they have been represented and their case has been put by Mr. Germain, counsel of the office of the Public Solicitor, to whom, without objection from other parties, I granted leave to appear for the Sulka representatives, Tamunde, Tapei and Magel, in my judgment and order of the 16th April, 1962.

Here again s. 38 of the Restoration Ordinance, providing for the representation of natives by the Director, was not appropriate. Although the Sulkas are not attacking the Director’s title and, in fact, support his claim to ownership, they do, encouraged by the learned Commissioner’s declaration of trust and in opposition to the Director’s claim, maintain that the Director holds the land not for natives generally but for them particularly.

The Tolais appeal to this court to obtain a discharge of the Final Order and for a declaration that they were entitled, at the appointed date, to an equitable interest in the land as cestuis que trust, or, alternatively that they were owners of the land or a portion thereof under native customary rights upon these grounds:

1.(a)   That the Commissioner was in error in finding that the Director held the land in trust only for the Sulka natives,

(b)      That the Commissioner should have found that the land was Administration land reserved for native purposes generally, and alternatively,

2.       That the Commissioner should have found that the land was not ownerless land when acquired by the German Fiscus and that it was then owned by the predecessors in title of the appellants by native custom.

The appeal was heard by me at Rabaul on the 16th and 17th April and from the 20th September to the 3rd October, 1962, and on the 20th September I visited the land with counsel except counsel for the appellants who did not desire to be present, and I viewed the land in its surroundings as far as it could be seen from the road down to the Warengoi. I obtained necessary assistance from this view in understanding and appreciating the evidence and inferences based thereon: see Attorney-General v. Wheeler[viii]¹.

All the evidence and exhibits that were before the Commissioner are before me and the appellant Tolililu, who was one of the native witnesses heard by the Commissioner, gave some more evidence before me. Some additional exhibits have been tendered and admitted without objection in this appeal. The list of exhibits, which I include here for record and convenience, is as follows:

EXHIBITS.

Appellants.

“A”

(1)      Claim of respondent, provisional order and reference to the Commissioner of Titles.

(2)      Transcript of proceedings before Commissioner.

“B”      Exhibits before Commissioner, “A” to “L”.

“C”     Commissioner’s findings dated 23rd June, 1959.

“D”     Final order of Commissioner dated 28th July, 1959.

“E”      Sketch by H. C. Gaywood - location of Sulka and Tolai villages, etc.

Sulkas.

“1”      German map, 1908 - north of Gazelle Peninsula (Commissioner’s exhibit “G” is an enlargement of part).

“2”      Copy S/D of N.C. Barry dated 13th May, 1958.

“3”      Extract from section “F” - German N.G. - of German annual report for 1906-1907, supplement to German Colonial Gazette of 1908.

“4”

(a)      Copy report of W. J. Kelly, A.D.O., to Commissioner of Titles, dated 11th November, 1959.

(b)      Letter from W. J. Kelly to Public Solicitor dated 4th September, 1962.

“4a”    Translations.

(1)      Imperial Ordinance of 20th July, 1887 (Deutsche Kolonial Gesetzgebung, Berlin, 1892-1910, vol. 1, p. 23).

(2)      Direction or regulations thereunder of 10th August, 1887 (ibid., p. 472).

(3)      Decree of 30th July, 1887 (for setting-up land register).

(4)      Order of 6th December, 1887 (for establishing land register districts).

(5)      Imperial Ordinance of 21st November, 1902.

(6)      Order of 30th November, 1902 (concerning execution of Imperial Ordinance of 21st November, 1902; land register).

(7)      Regulation of 22nd July, 1904 (made under Imperial Ordinance of 21st November, 1902).

(8)      Extract from Das Liegenschaftsrecht in den Deutschen Schutzgebieten.

L. Pink and G. Hirschberg, Berlin, 1912, vol. 1, p. 246 ff.

Respondent.

“5”      Plan of land entered in ground book, folios 19 and 44.

“6”      Tracing by B. Sharp from plan in Exhibit “D”.

“7”      Bismarck Archipelago ground book entries, vol. 1, folios 21, 22, 24, 27; vol. 2, folios 106, 139, 171, 172.

“8”      Lands Department map of Rapopo locality.

“9”      Copy of Dr. Hahl’s report of 1st June, 1897.

Although the appellants raise, firstly, the question of the trusts upon which the Director was declared to hold the land, logically, as well as chronologically the first issue, and it has been accepted by all parties as an issue, is whether the land was - to adopt the convenient word that was used by the German legislators-“ownerless” at the relevant time, because this goes to the root of the title.

Upon this first issue, which I may conveniently call “original ownership” the conflict is between the Tolais, on the one hand, and the Director and the Sulkas on the other.

The next issue is whether the Director succeeded to the Fiscus, that is whether the land was a native reserve or was held by or vested in the Fiscus on behalf of or for the benefit of any natives within the meaning of s. 39 of the Registration Ordinance. Here, too, the parties are similarly divided, the Tolais on the one side and the Director and the Sulkas on the other.

The third issue argued was whether the Sulkas had such equitable rights as the Commissioner declared and ordered to be entered or any other rights capable of registration. This third issue intrudes into the second inasmuch as it is claimed on behalf of the Sulkas that they were the natives on behalf of or for whose benefit the Fiscus held the land.

Upon this issue the parties are differently divided, the Director joining the Tolais against the Sulkas’ claim.

I have given this appeal careful consideration. It is a complex matter and it is not free from difficulty mainly because of the destruction or loss during the Japanese occupation of the records relating to the land, both German records of the time before 1914 and Australian records of the period between 1914 and 1942. It would also appear that the officials of the Australian Administration, who would have been able to throw some light upon the history of the land and its title are no longer alive. Nevertheless, there has been much evidence to consider. I cannot refer to all of it; I may mention here that it does include some records of significance, both formal and informal, and, of both the German and the Australian periods, for instance and particularly, of the German period:

(1)      Copies of relevant Land Register (Grundbuch) entries, which I call formal records and were Exhibits “H”, “I” “J” before the Commissioner and are in Exhibit “B” in this appeal.

(2)      A map showing (inter alia) census figures in the area in 1906, which I call an informal record and was Exhibit “G” before the Commissioner and is part of Exhibit “B” in this appeal. (There are a number of other maps exhibited and I have obtained assistance from them also.)

(3)      Surveyor Lichtenstein’s report of the 16th January, 1911, an informal record, a copy whereof was Exhibit “E” before the Commissioner and is part of Exhibit “B” in this appeal.

There are, too, a formal and an informal record from the period of the Australian Administration, namely:

(a)      The proclamation of 7th May, 1924, which is reprinted at p. 2788 of vol. III of the Laws of the Territory of New Guinea (1921-1945) and proved before me by virtue of the Laws of the Territory (Proof and Printing) Ordinance, 1951.

(b)      The “remarks” made in writing by his Honour Judge Phillips, as he then was, later Sir Beaumont Phillips, the first Chief Justice of this court, at a conference held with the parties on the 13th July, 1931, in the course of the hearing by him of a reference by summons under the Registration Ordinance of the question of native rights to land situated to the north of the land, the subject of this appeal, and known as Bitapaka Virgin Land. These “remarks” include significant references to the subject land and (inter alia) explain the origin and purposes of a survey and enquiries made by Surveyor Lichtenstein, which formed the basis of his report referred to in record (3) above. A copy of his Honour’s written remarks was Exhibit “F” before the Commissioner and is part of Exhibit “B” in this appeal.

Notwithstanding the existence of these records the issues are left largely to depend upon inferences to be drawn from them and what can be gleaned from the oral evidence and exhibits concerning the land, its history, occupants and title.

The principles which I conceive govern this appeal by way of rehearing in which this court may make any order or exercise any jurisdiction, power or authority which the Commissioner could have made or exercised, are well established. It is for the appellants to displace the presumption that any decision of the Commissioner is right in so far as it depends upon the facts. I am free to draw inferences from proved facts and to draw my own inferences from the documentary evidence: in so far as the Commissioner’s findings depend upon conflicting oral testimony I should accept them unless the decision appears to be clearly wrong: see Attorney-General for N.S.W. v. Wheeler[ix]² and the cases there cited; Rogers v. Rogers[x]³; and the cases collected in Parker’s Practice in Equity (N.S.W.), 2nd edn., at pp. 125-126; an cf. Powell v. Streatham Manor Nursing Home[xi]⁴.

I should say generally, as to the Australian records, that I do regard them of special value, particularly where other evidence supports the inferences which they suggest and there is no reliable evidence to contradict those inferences, because the persons responsible for them not only were nearer the significant events in the history of the land but also had available to them the relevant records and files of the German administration.

I come to my conclusions upon the issues and I refer to some of the more salient reasons for these conclusions.

1.       I find and hold that the land was “ownerless”, that is free from any native rights of occupation or use when the Germans first took possession of German New Guinea and that it remained so at all material times during the German regime.

The material time for the purpose of this appeal is, I consider, the date when the Fiscus appropriated and went into possession of the land at some time (the exact date is not ascertainable) after it acquired the exclusive right, previously held by the German New Guinea Company, to acquire and take up ownerless land.

It was not contended by any party that if the land were ownerless the Fiscus or German Government had not appropriated and gone into possession of the land so that it was under the authority or control of the Fiscus when its regime ended, although it had not been entered as owner of the land in the land register. However, I have considered this question and the conclusion I have come to as the proper inference to be drawn from the evidence is that the Fiscus had appropriated the land although no document of appropriation is now available. There is evidence that it went into possession and control of the land, at the latest, when it put the Sulkas on it.

Upon this issue I am substantially in accord with the findings of the learned Commissioner.

I am also in general accordance here with the learned Commissioner’s interpretation and application of the German land legislation which enacted Germany’s land policy for the colony of New Guinea with its respect for native usufructuary rights and providing for the exercise of its powers as owner of the radical title subject to those rights. It does appear, generally, that Germany adopted in this legislation much the same policy as did England, as well as some other colonizing, countries, in recognizing as a right the occupation or use of particular areas by the native communities found occupying or using such areas. Much of what appears in relation to the recognition in English colonization of, what for convenience sake I may refer to as usufructuary rights, in such cases as: St. Catherine’s Milling and Lumber Company v. The Queen[xii]⁵; Amodu Tijani v. Secretary for Southern Provinces, Nigeria[xiii]⁶; and Geita Sebea v. The Territory of Papua[xiv]⁷ would be applicable to German land policy and the laws which enacted it for the colony of New Guinea.

For much of the German law I was indebted at the time of the hearing to the judgment of his Honour Judge Phillips delivered at Rabaul on the 29th April, 1930, in what is called The Mortlock Islands case and cited in the Commissioner’s findings in Exhibit “C” in this appeal: see also his Honour’s judgment in Re Jomba Plain, 25th May, 1932. In his judgment his Honour traced the legislation controlling the right to acquire ownerless land and he referred to the regulations for occupying ownerless land as being elaborate and strict and providing for exhaustive preliminary enquiries. These were the rules laid down on the 10th August, 1887, and applied to the acquisition of ownerless land by the New Guinea Company. However, it appears from an extract, made available since the hearing of this appeal by Mr. Lalor, the Public Solicitor, from the work Das Liengenschaftsrecht in den Deutschen Schutzgebieten by L. Pink and W. Hirschberg, Berlin, 1912, that these rules were preserved for the appropriation of ownerless land by the Fiscus after the exclusive right to appropriate such land had passed from the company to the Fiscus and until they were replaced by Rules which appear to have been no less strict.

The Rules themselves are not set forth in the judgment of his Honour Judge Phillips and were not available at the hearing of this appeal. They, too, or rather a copy of them, have been made available by the Public Solicitor and from them it appears to me that the significant question, as relevant to this appeal, in determining whether land was ownerless was whether it was unclaimed.

Assuming that the German law is not required to be proved as a question of fact (see the judgment of Phillips J. (as he then was) in The Mortlock Islands case (supra) and the judgment of Mann C.J. in Tedep and ors. v. The Custodian for Expropriated Property and The Administration (Re Varzin Lands), 31st May, 1963), there was still the difficulty that neither the relevant German legislation nor translations thereof were available when this appeal was heard. Since the hearing the Public Solicitor has brought back copies of relevant legislation from German sources and the translations thereof, for which I have delayed judgment, are now, by consent in Exhibit 4a.

I have looked to see if there were in the German legislation any definition of ownerless land and I have found none. It seems that if, after the prescribed enquiries, land appeared to be unclaimed then it might be appropriated, and, if the responsible official were satisfied he could approve of the appropriation in a proper case.

It appears from the evidence that predecessors of the Tolais, on behalf of whom this appeal is brought, did at some time before the arrival of the Germans use some of the subject land and so I have also looked to see if there was anything in the legislation making a period of time, during which there had been an absence of occupation or user, a statutory element in the question of “ownerless” as there is in some colonial land legislation, e.g., s. 24a of our Registration Ordinance, s. 11 of our Land Ordinance, 1922, amended, the proclamations made thereunder, and the Nigerian Public Lands Acquisition Ordinance No. 9 of 1917.

I have not found any such provision in the German legislation, but, doubtless, time would have been a factor in the approval of an appropriation. In the light of such legislation as there was, a temporary non-user, on the one hand, could not have rendered land ownerless in all circumstances and, on the other, long and unexplained non-user may well have been a factor in the consideration of native claims.

To come to the facts, I think that the weight of the evidence is in favour of finding that at the time of the arrival of the Germans the subject land was unoccupied, unused and unwanted by any natives and that this was still the situation when the Fiscus went into possession of it and put the Sulkas there.

It seems that at some earlier time some Tolais, whose descendants are now amongst the inhabitants of the villages of Ralabang and Mar Mar, used part of it, probably only a small part in its north-western corner, for gardens and possibly homes and that at some more remote time ancestors of such inhabitants may have gardened and possibly lived on more southerly portions of it along the beach, where there would have been, if anywhere, a track going along the coast down to the Warengoi.

However, I am satisfied that the Tolais abandoned any old use of the land before the Germans arrived. The epidemic that is mentioned in the evidence may have provided an impetus to the exodus. In any event I think that the Tolais lost interest in the land. It was remote from Blanche Bay, whence the main body of Tolais, who came across the water to the Gazelle Peninsula, made their penetration of the peninsula and those of them or their descendants who might have retained an interest in this land had sufficient land for their homes and gardens in the regions of Ralabang and Mar Mar villages, to the north of it. The Tolai ancestors of the remote period I have mentioned may have landed on the coastal fringe. I do not think that they penetrated this land and I do think that subsequently it was found that penetrations to the north of it provided sufficient land for their descendants, land that was more attractive for reasons of security, convenience and, probably, agricultural suitability.

Even in German times the subject land appears to have been a no-man’s land that nobody wanted, not even the Sulkas, who first settled at Mope, which was on the beach just to the north of its northern boundary.

I am not impressed by much of the Tolai evidence, particularly the additional evidence given by Tolililu before me to the effect that the Tolais were still using part of this land when the Germans came and that it was the fear of German punishment that prevented their intervention when the Sulkas went on to it.

I think that in the consideration of the Tolai evidence given in support of this land claim the present Tolai aggressive economic ambitions cannot be overlooked. Tolililu, too, is a very old man and the uncertain testimony of slippery memory is made even more uncertain by the pressures of the economic ambitions of his people. It appears to me from the evidence that they now want this land for the profits for which they see the Sulkas now using it, whatever may be the needs of the Tolais for subsistence.

Tolililu, himself, sold to the Administration what I feel sure was the most southerly portion of land then held by the Tolais of Ralabang, that is the portion immediately to the north of the subject land. This, I regard as important in weighing the Tolai evidence and generally in relation to their present claim. It tends to show that even at that comparatively late time these Tolais did not want the southerly portion of the land which they had kept in their possession after their abandonment of whatever interest they had in the subject land immediately below it. Likewise his counterpart at Mar Mar sold the southerly portion of the land of the Mar Mar people during the Australian Administration which followed the termination of the German regime. There is also evidence which shows that the native Tolai occupants of the land now in Londip plantation sold that land in German times. The subject of the sale made on behalf of the people of Ralabang is now in Vunabal plantation, the land sold on behalf of the people of Mar Mar is in Wat Wat plantation and these plantations significantly complete the line of plantations from the beach along the northern boundary of the subject land.

While referring to this northern boundary, I mention also that I accept the evidence that the Sulkas first cut the road that runs along part of this boundary before it begins to leave the ridge-land and descend to the Warengoi. This road is related to the Sulka villages of Vunabal, Wat Wat and Ganai, which lie in the north of the land and it connects the land with the road to Kokopo. After reaching the shore, in the opposite direction, this road may have absorbed an old coastal road or track to the Warengoi. However, in speaking of the road I get ahead of events.

The first Sulkas to come to the peninsula, seeking refuge from the mountain people who were raiding their homelands in the Wide Bay area, landed to the north of the subject land in the first years of this century. The evidence points to their landing at Kabanga Bay and I consider that it was this northern landing that attracted the hostility and opposition of the Tolais, who drove them to the south. It was for this, so it seems to me upon the evidence, that they were punished by the Germans. The Sulkas stayed south of their initial landing and settled at Mope, near the beach and still north, although just north of the subject land. It does not seem that there were any Tolais at Mope and my conclusion is that there was no Tolai opposition to their residence at Mope. If there were opposition, or the absence of it were due to intimidation, this would be irrelevant because Mope is not part of the subject land. At this stage it seems that the Sulkas were not many. There were, at most, only 186 Sulkas at Mope in 1906, as appears from the German map showing the figures of the census taken in 1906, which I have already mentioned, and is part of Exhibit “B” in this appeal and was Exhibit “G” before the Commissioner. It would seem that Mope is misplaced on this map or else the census was taken further inland than its situation near the beach.

The Sulkas had come by the sea; it was their connection with their homeland and their kinsmen still there. They were satisfied to live by and in the vicinity of the beach, where, apparently, there was sufficient land for their small colony. At this stage and until just after 1906, when the German Government brought some hundreds more Sulkas from the increasing hostility of the people of the mountains behind Wide Bay, the Sulkas appear to have been no more interested in the subject land than the Tolais.

It is also a significance of the 1906 census that it shows not only that there were no Sulka villages upon the subject land but also that there were no Tolai villages there. The nearest Tolai villages were well to the north of the land.

When their numbers increased the Sulkas did need more land and it is accepted that the German Government permitted and encouraged them to go on to and use the subject land. I am satisfied that this was done because the land was unoccupied, unused and unclaimed, and that the German Government rightly regarded it as land that was held by it free from any native interests or claims, such as were recognized by that Government, and so “ownerless”.

The first Sulka settlements doubtless were along the northern ridge of the land, the Sulkas, as the learned Commissioner has said, going inland and uphill.

I will refer now to the relevant entries in the German land Register, Exhibits “H”, “I” and “J” before the Commissioner and part of Exhibit “B” in this appeal.

These entries are in vol. I for the Gazelle Peninsula and the folios are 19, 44 and 45. They are all in the name of the New Guinea Company and were made when the company held from the Imperial German Government the right to exercise territorial sovereignty under that government, the exclusive right to take into occupation ownerless or unclaimed land in the colony and the exclusive right to conclude contracts with natives respecting title to lands which were not ownerless. The company held these rights between the 17th May, 1885, the date of the charter, and the 1st April, 1899, the date provided for their termination in an agreement made between the Imperial Chancellor and the company and also the date of the transfer of these rights to the Fiscus as provided for in an Imperial Ordinance of 1899.

Although, for reasons which I will state, I consider that all the subject land should be regarded as having been included in folio 45 and not any in folios 19 and 44, I will refer to the three folios because at one time a small portion was considered to be included in folio 19 and a much smaller portion in folio 44 and the entries in these folios do throw some light upon this matter.

These entries were made without full or detailed surveys, the boundaries are not always precise and the areas stated are approximate only:

Folio 19: This entry was made on the 13th June, 1893, in pursuance of contracts of purchase from natives and was subject to permanent burdens or limitations reserving certain rights of user to the natives of some villages established on the land.

The land is described and its boundaries stated by reference to natural features and adjacent properties and it is said to have an area of 9,836 hectares.

Although it would appear from the application of the accepted description of the subject land to the map, Exhibit “G” before the Commissioner, that what I will call the projecting north-western corner of the subject land was part of the land covered by this folio, it is established by other evidence (see, e.g., Exhibit “5”) in this appeal that the southern boundary of the land, the subject of the purchase from the natives upon which this folio is based, lies quite to the north of the northern boundary of the subject land. Furthermore, although the company retained, until expropriation under the Australian Administration, whatever land was covered by the entry, the land so retained and subsequently dealt with did not include any of the subject land and the south-eastern portion of the land so retained is now “Gilalum Plantation”. For these reasons I conclude that it was due to error that the land covered by the entry in this folio included part of the subject land and that it was subsequently excluded as a result of later surveys, including that of Surveyor Lichtenstein, which I mentioned earlier and will refer to again.

Folio 44: This entry was made on the 23rd March, 1896, in pursuance of the certificate of the Administrator of the Colony.

The property is described as: “A portion of ownerless land.” It is said to have an area of 5,957 hectares and its boundaries are described in a fashion similar to the boundaries of the land in folio 19.

This land, which lies immediately south of the land in folio 19, marches with the subject land, having a common boundary along the eastern side of the subject land and running with it to the Warengoi.

Whatever land was covered by this folio, like the land in folio 19, was retained by the company and is now in “Warenvula Plantation”. Here, too, I conclude that it was due to an error and that subsequent surveys and adjustments excluded it. It follows that the portions of the subject land which were erroneously thought to be within the ambit of folios 19 and 44 really were portions of the land covered by folio 45 and that that folio, to which I now come, is the only one directly relevant.

Folio 45: This entry was made on the 13th June, 1896, in pursuance of the certificate of the Administrator of the Colony, given, doubtless, under the Rules made pursuant to the Imperial Ordinance of 1887 for the taking-up by the company of ownerless or unclaimed land, to which I have already referred.

The property is described as: “A piece of ownerless land which stretches along the east coast of the Gazelle Peninsula from (sic) the mouth of the Warengoi.” It is bounded on the south by that river, on the west by the properties of the company entered in the above-mentioned folios 19 and 44 and on the north by properties mentioned in the description.

The property is said to be unpopulated, the native settlements being upon certain blocks within the boundaries I have mentioned and excluded from this entry, uncultivated and covered with virgin forest. The approximate area is given as 5,700 hectares and it is stated in the description that: “A survey cannot be carried out at present.”

The main bulk of the subject land was always considered to have been included in the land intended to be covered by this entry and, as I have found, all of it should be considered to have been so included.

It appears from the entry that the appropriate authority of the time must have given his certificate in pursuance of the rules controlling the appropriation of ownerless land by the company yet this registration in folio 45 was cancelled on the 18th August, 1900, and cancelled in pursuance of a judgment, made absolute, of the Imperial Court at Herbertshohe of the 26th May, 1900, as appears by the entry of the cancellation in this folio.

There is no evidence as to the reason for or nature of this judgment and not a tittle of direct information survives from any source to assist in determining the proper inferences to be drawn from the fact of cancellation of this entry. Why, asks counsel for the appellant Tolais, should it have been cancelled if the registration was soundly based, if, in fact, the land was ownerless in 1896? In the face of all the evidence and the probabilities arising therefrom, which point in the opposite direction, I feel that I cannot accept this cancellation as evidence that so much of the land in folio 45, as forms the subject of this appeal, was not ownerless.

In considering its intrinsic weight I cannot overlook the fact that the subject land comprised, approximately, but a fifth part of the whole of the land covered by this entry and its cancellation, and such factors as that it was the most southerly and so the most distant and least accessible part of the land in this folio from Blanche Bay and the seat of government at Herbertshohe. In losing or giving up the much larger and more attractive land to the north the company was probably not much concerned about this southern portion.

Furthermore, there is definite evidence from which it may be directly inferred that to the north of the subject land there were, within the area covered by the entry in this folio, areas of land in which natives still had and asserted an interest because purchases of such areas were made after the cancellation and formed the basis for subsequent entries in the land register, e.g., the area comprised in Londip Plantation entered in Folio 139 in pursuance of a contract of sale and purchase of the 25th August, 1903. On the other hand, there is no evidence of any such purchase of land out of the area of the subject land.

Having regard to the spirit of negotiation which appears to have prevailed, at times, between the company and the Fiscus, reflected, e.g., in his Honour Judge Phillips’ “remarks” in the Bitapaka Virgin Land case and to all the circumstances, I think, too, that it would be wrong to conclude that the judgment of the court which provided for the cancellation must have been the outcome of contested or hostile litigation. I think it more probable that, e.g., it appearing that some of the land obviously was not ownerless, the company consented to the judgment as the appropriate way under the relevant legislation of annulling the registration.

I come now to the remarks of his Honour to whom would have been available the official files relating to this land generally and the cancellation particularly.

About the land in folio 45 he said this, in the course of the proceedings upon the summons to which I have referred:

“At the end of 1909 two questions were giving the German Government concern:

One was the provision of land for the Sulkas. This was discussed by District Officer Klugand and Dr. Preuss at the conference of December 1909. They thought that land for the Sulkas could be provided out of an area which had once been claimed, but was no longer claimed, by the New Guinea Company:-an area once registered in the Ground Book for Gazelle Peninsula, Vol. 1, Folio 45. But Dr. Preuss was prepared, if necessary, to agree to the Sulkas obtaining land even from the adjacent area, still claimed by the Company, and registered in the Ground Book, Gazelle Peninsula, Vol. 1, Folios 19 and 44.”

It will be observed that his Honour referred to the land in folio 45 as having once been “claimed” and being no longer “claimed” by the company. I do not think that such a careful judge would have used these terms if the records of the cancellation of the entry showed that it was the result of adverse litigation.

It is convenient now to come to Surveyor Lichtenstein’s report, which I have mentioned as Exhibit “E” before the Commissioner and part of Exhibit “B” in this appeal, because his Honour Judge Phillips added to his remarks about the land in folio 45 and the lands in folios 19 and 44 this significant statement:

“It was decided that the eastern boundary of the latter area should be marked out as soon as possible. The Company’s half of the survey costs was to be met by the cession of land from block 44 or, if necessary, from the southern half of the block.”

It was the official Surveyor Lichtenstein who, after yet another conference, carried out this survey and whose report thereon to the Governor of the colony on the 16th July, 1911, I have already mentioned.

Before referring to his report it is apt to observe that Judge Phillips went on to say that the other question under consideration by the German Government was the excision from the company’s land in folio 19, an excision that might involve also the land in folio 44, of land for native tribes, who were doubtless Tolais, living to the east of the Tavengala or Matanatava River and near its upper reaches in the vicinity of and possibly to some extent, at least, on the land in folio 19.

These questions were discussed at a conference on the 9th July, 1910, between the Acting Governor, the District Officer and the company’s representative and thereafter Surveyor Lichtenstein was instructed to make the survey and to investigate the question of the excision of reserves for the native communities.

In his report to the Governor of the 16th January, 1911: Exhibit “E” before the Commissioner, and in Exhibit “B” in this appeal there appear these not insignificant references to the land the subject of this appeal:

“East of the land of the Company the Sulkas have in possession, including the deserted localities of Kuoon and Vunabou, all the formerly uninhabited land between Londip and the Warengoi, i.e. 1940 Ha. According to a census taken in May 1910 by Peter Meier at Mope there are 1164 Sulkas living north of the Warengoi, which number does not include those [sic] working for Europeans. The actual number would therefore be about 1200 and consequently 1.6 ha. would exist per head.

Although this report is what I have called an informal record, in the dearth of other records and information about the land in German times, I cannot but regard what this surveyor in the service of the Fiscus and in the course of his duty so intimately concerned with questions affecting the subject land and the lands in folios 19 and 44, said in an official report as contributing considerable weight to my conclusion that the subject land was “ownerless” at all material times. He not only refers to the land as having been formerly (that is before the Sulkas went on to it) “uninhabited” but makes no reference at all to any claims upon it by Tolais, claims that would have been most material to the question of what land was available for the Sulkas and material generally to the settlement of questions involving the lands in folios 19 and 44, the land once in folio 45 and nearby parts. The “deserted localities of Kuoon and Vunabou”, mentioned by the surveyor, have not been indentified in this appeal and so I can draw no inference from the description “deserted”. They may have been parts of the subject land once occupied by Tolais.

In coming to my conclusion upon this issue I have also relied upon the fact of the proclamation of the 7th May, 1924, which I have already cited and will refer to in more detail under my finding upon the next issue. I will say here that, in the circumstances to which I have already referred, this proclamation is significant. It is evidence that the officials of the Australian Administration in 1924, who were responsible for its promulgation, were satisfied that the subject land was Administration land, to which the Administration had succeeded free from any native claims, by virtue of the Laws Repeal and Adopting Ordinance. They could not have reached this conclusion without first concluding, from the material available to them, that the Fiscus had so held it.

Before leaving my first conclusion I should refer to the Tolai evidence that came out in Mr. Germain’s cross-examination and re-examination thereon to the effect, broadly speaking, that according to Tolai land custom the original occupants of land never lose their rights to it, evidence which served Mr. Jones for an argument that so much of the subject land as was once occupied by Tolais, no matter how long ago, remained Tolai land notwithstanding that they had ceased to occupy or use it.

I do not think that it is established by the evidence that such a custom would apply to a deliberate abandonment by an occupant of a plot of tribal or family land, no longer claimed by him notwithstanding its application to tribal land temporarily unused by its original occupant or his successor and the contrary is stated in the “Notes on Tolai Land Law and Customs” of Native Land Commissioner S. S. Smith and Dr. R. F. Salisbury, published by the Native Land Commission at Kokopo on the 6th September, 1961.

In any event, having regard to the lack of any significant political or social development amongst the peoples of New Britain, I am not satisfied that such a municipal law or custom would have been generally recognized even if it was recognized not only within Tolai tribes or families but also as between Tolai tribes or families. I would mention again, here, a case to which I referred during argument as illustrating a situation on the Gold Coast in which there was a general recognition amongst the peoples of that part of West Africa of the principle that original usufructuary right or ownership can never be lost; Stool of Abinabina v. Chief Kojo Enyimadu (On behalf of Stool of Nkasawura)[xv]⁸. As far as I have been able to ascertain the German law applicable to the acquisition of ownerless land did not recognize that an old occupation or use by a particular tribe or family of its own force, preserved for ever the right to occupy or use.

2.       My second finding is that the subject land did not come within s. 39 of the Registration Ordinance as a “native reserve” or as “land which is held by or vested in the Fiscus ... on behalf of or for the benefit of any natives” and that, therefore, the Director’s predecessor did not succeed to it as claimed by the Director, and so I hold.

It will have appeared from what I have said in discussing my first finding that I am satisfied that the land was owned by the Fiscus in the sense that it held the full title to the land free from any usufructuary or other rights in natives and that it had gone into possession or appropriated the land and put or encouraged the Sulkas to go upon it because its ownership of the land was so unencumbered.

However, the land certainly had not become a native reserve during the time the Fiscus governed the colony, giving that phrase the widest possible meaning that it could reasonably bear, and I do not understand it to be contended by Mr. McKillop, for the Director, that it was already a “native reserve” when the Australian Administration introduced the Registration Ordinance. Native reserves were common in most colonized countries as, e.g., Canada and various parts of Africa and, I think that the draftsman of the Ordinance had such reserves in mind when he framed this s. 39. I think, too, that the phrase “native reserve” connotes some formal dedication as by agreement or proclamation, such as the proclamation provided for in the Territory’s own Land Ordinance, 1922, and see also s. 9 of the Laws Repeal and Adopting Ordinance, which refers to land “whether such land has been proclaimed as a native reserve or not.”

There is no reason to think that there had been, in German times, any such dedication and all the evidence leads to a contrary conclusion.

In order to cover the other possible relationships between the Fiscus and natives in respect of land held by or vested in the Fiscus as registered or unregistered owner the draftsman went on to include in s. 39: “lands held by or vested in the Fiscus ... on behalf of or for the benefit of any natives”. It would not be wise for me to attempt to define exhaustively what is meant by the phrase “on behalf of” or “for the benefit of”. There may not be much if any difference between the significance of the phrases although I incline to think that “for the benefit of” is capable of a wider application than “on behalf of”. In using the phrase “on behalf of” the draftsman may have been influenced by the provisions for the registration of native interests contained in the Registration Ordinance, which he was drafting as, for instance, s. 38 (c), a section which expressly applies to cases where the Fiscus was registered in the German land register as the owner of land on behalf of natives and the same relationship is included in s. 23 of the Registration Ordinance. Assuming that the phrase: “for the benefit of” does have a wider meaning in this section than “on behalf of”, I consider that it is not possible to apply it to the circumstances and that the relationship between the Fiscus and the Sulkas in respect of this land was not such that it could be said that it was held by or vested in the Fiscus for the benefit of the Sulkas.

It is, to my mind, not uninstructive in the consideration of the meaning of both phrases “on behalf of” and “for the benefit of” in s. 39 (1) to consider also sub-ss. (2) and (3) of the section. These sub-sections provide that in every case coming within sub-s. (1) the certificate of title to be issued shall describe the Director “as a trustee for natives” and that where he is registered as owner the land shall in any case be described “as a native reserve”. I think that the whole section indicates that the land to which it is to be applied is land which has by decision of the Fiscus, or by agreement, or otherwise, become earmarked or assigned for natives and I think that its sub-ss. (2) and (3) show, particularly, that the relationship between the Fiscus and the natives, on whose behalf or for whose benefit the land was held by or vested in the Fiscus, should be such that it would be fitting to have the land registered “as a native reserve” and the Director “as a trustee for natives”.

I do not think that the section would include, e.g., land of the Fiscus upon which it had provided a temporary refuge for natives driven from their homes by a volcanic eruption, unless and until some decision had been reached that they should settle there permanently and the land be held for their benefit. I think the Sulkas were in much the same position as such refugees would be. True it is that they had been on the land since 1906 but it is abundantly clear to me, and here I rely more particularly upon the exhibited “remarks” of his Honour Judge Phillips in the Bitapaka Virgin Land case, to which I have already referred, that no final decision had been taken by the Fiscus by the time its regime ended as to the subject land and the Sulkas upon it. If between 1911 and 1914 the matter had been taken beyond the report of Surveyor Lichtenstein then, doubtless, his Honour’s remarks would have included mention of this.

Furthermore, if in fact the records of the Fiscus relating to the land and available to the Australian Administration did show a situation in which the Director succeeded to the land it is surprising that he had not obtained registration of his title during the Australian civil regime in the period between the coming into force of the Registration Ordinance on the 1st June, 1924, and the year 1942. I say this not overlooking that registration under the Ordinance could be a slow process. This was particularly so where a proper survey and description had not been made. In this case, however, such a description was available and was used in the proclamation of the Australian Administrator, which I have already mentioned and to which I will refer.

If the Director had succeeded to the Fiscus under s. 39 of the Registration Ordinance it was the Registrar’s duty under s. 16 to proceed to bring the land under the Ordinance and the Director’s duty to obtain registration thereunder. If the Director’s present claim is correct there was nothing in the way of the registration of his predecessor during the Australian Administration up to 1942.

Furthermore, the Australian Administration had published in the New Guinea Gazette of the 15th May, 1924, the proclamation by the Administrator of the 7th May, 1924, whereby the subject land, described therein by metes and bounds was “reserved for native purposes under s. 68 (13) of the Land Ordinance, 1922-1923”. Under sub-s. (13) of that section “any Administration land” may be reserved from sale or lease for the purpose of “Native Reserves” and it is difficult to understand why the phrase “reserved for native purposes” was used in this proclamation. I am not here concerned with the validity of the proclamation although I may say that I am inclined to regard the use of the phrase: “for native purposes” as a slip, which may not avoid its validity, particularly because of the reference to the sub-section under which the proclamation is made. However, I do think that I may give some consideration to the way in which the Administration, whose officials were so much closer to the German regime and had available to them records and information now lost, regarded the land.

If such records and information did show that the land came within s. 39 of the Registration Ordinance there was no need for such a proclamation under the Land Ordinance and one would have thought that registration of the Director would have been obtained under that section especially as the fact of the proclamation indicates that the land, its title and use was exercising the minds of the officials of the Administration.

Before leaving this finding I would say that although I find that the Director was not the successor to the Fiscus under s. 39 of the Registration Ordinance, I find that it was the Administration that did succeed to the land, a succession that is statutorily provided for by sub-s. (1) and probably also sub-s. (3) of s. 6 of the Laws Repeal and Adopting Ordinance, 1921, as amended, and s. 4 of the Land Ordinance, 1922, as amended. This, doubtless, was the view taken at the time by the Administrator and his officers, who were responsible for the proclamation of the 7th May, 1924, the basis of which was, in the terms of s. 68 of the Land Ordinance, that the land was Administration land.

I should also refer to the fact that in the case of this land the Administrator did not, as he did in some other cases of land reserved under s. 68 of the Land Ordinance for the purpose of native reserves, proceed to place it under the control of the Director of District Services and Native Affairs as trustee as provided for by s. 72 of the Land Ordinance and s. 15 of the Registration Ordinance. It is abundantly clear that the Administration was concerned, as the Fiscus had been, with problems arising in respect of land in the Gazelle Peninsula generally, and materially for my purpose, in that part of it between Kokopo, the old German seat of government, then called Herbertshohe, and the Warengoi, problems which increased in importance and intensity as time and development went on. I do not think that the ultimate fate of the land or the Sulkas, who had been given refuge on it, was ever decided upon. It could well have been, for instance, that it was in the minds of the German officials that, as pacification of New Britain went on, the Sulkas or some of them might wish to return to their homeland, that for this amongst other reasons the needs of the Sulkas, living north of the Warengoi, might decrease while those of the Tolais would increase and it may be that there was evidence available to the Administration before the Japanese occupation of some such return. There is evidence in this appeal given before the Commissioner (see p. 34 in the bound Transcript of Proceedings) that the land at Wide Bay, from which the Sulkas came, is at present under ten luluai. This evidence was given by a Sulka witness from the subject land in answer to a question whether the Sulkas had enough land. It is common knowledge that there are Sulkas upon the Sulka homelands at Wide Bay and that there is much traffic between them and the colony on the subject land. My understanding is that the Sulkas of this colony still have their rights in their homelands. There is also the evidence in Exhibit “3” to the effect that in 1907 “the last” of the Sulkas were brought from the Wide Bay area by the German Government and this suggests that there may subsequently have been a return of Sulkas from the subject land. There is also evidence that the number of Sulkas, who were on this land in 1910, was approximately 1,200 and that to-day the number is considerably less.

These matters are not explained in this appeal but they and kindred matters relating to lands in the general area, in which the subject land lies, do tend to suggest an explanation why no final decision with respect to it was reached either by the Fiscus before the war of 1914-1918 or the Administration before the interruption of the more recent war.

In my view there is no reason in law why the Administration should not now decide what is to be done about its land and exercise its powers, e.g., under s. 72 of the Land Ordinance and s. 15 of the Registration Ordinance, and so place the Director in a position to obtain the registration as a trustee for natives under the Registration Ordinance as owner of the land as a native reserve for which s. 15 (3) provides.

3.       I now come to the declaration of trusts which the learned Commissioner included in his final order and declared to “be deemed to be a statement of ... trusts duly registered under the provisions of the Lands Registration Ordinance 1924-1939 of the Territory of New Guinea”. He also declared that the certificate of title to be issued in pursuance of his final order should be deemed to have been issued on the sixteenth day of January, 1942, and he entered a memorial of the trusts declared by him upon the draft certificate of title, which he annexed to his order.

Counsel before me were unable to submit any justification for the adoption of the fiction that the certificate of title had been issued on the 16th January, 1942, in a case such as this, in which the Director was not claiming that he had ever been registered under the Registration Ordinance, but merely that his predecessor had been entitled to such registration. I also fail to understand how a memorial of trusts in favour of persons residing on the land on the 10th January, 1952, could be entered on a certificate of title issued on the 16th January, 1942, and I do not know how it could be justified in the circumstances of this matter, the adoption of the fiction involved in the Commissioner’s declaration that such trusts, as he declared should “be deemed to be a statement of ... trusts duly registered under the provisions of the Lands Registration Ordinance 1924-1939 of the Territory of New Guinea.”

Much time was spent by counsel in argument upon this declaration of trusts, Mr. McKillop, for the Director, and Mr. Jones, for the Tolais, attacking it on broader and deeper grounds than those which I have mentioned, and Mr. Germain, for the Sulkas, endeavouring to support it and, in the alternative, claiming that some form of encumbrance should be entered upon the certificate of title to protect his clients against their Director, although he supported the Director’s case to have the certificate of title in his, the Director’s, name, and conceded that the encumbrance he claimed to have entered upon it would also have to be in his, the Director’s, name. In support of the declaration of trusts made by the learned Commissioner submissions were put as to his powers under s. 42 of the Restoration Ordinance to make final orders “in such ... terms as he thinks just” notwithstanding that he is required to “decide the matters in issue judicially”, which to my mind were extravagant: contrast and note the repealed s. 27c of the Registration Ordinance.

Although the issue upon the declaration of trusts may not now strictly call for a decision in view of my finding that the Director is not entitled to registration, I do think, in all the circumstances, including that I may be wrong, that I should make a finding upon the issue and I refer briefly to some of my reasons.

I hold and find that the declaration and endorsement on the certificate of title of a memorial or notification of these trusts was without justification in law or in fact.

The learned Commissioner appears to have acted upon the basis of what to my mind is a false conception, namely that because the Director was entitled, in his finding, to registration as owner as a trustee he was bound to find cestuis que trust, declare the trusts upon which the Director held the land, and give to him the powers included in the declaration. Because he considered that the Sulkas must have acquired some equitable right, at least to collect the produce from the coconut-palms and the cocoa trees they had planted, he declared that the Director held the land in trust for the Sulkas, arbitrarily limiting this trust to the Sulkas who happened to be living there on the 10th January, 1952.

I do not consider that where the Director is registered as a trustee of land for natives in pursuance of either s. 15 or s. 39 of the Registration Ordinance it follows that there must be cestuis que trust, in the strict sense, and I also do not consider that there must be cestuis que trust with interests entitled to notification in the register book.

The learned Commissioner did not find that there was an express trust and proceeded on the basis of an implied or constructive trust. Section 145 of the Registration Ordinance forbids the entry in the register book of any memorial of any implied or constructive trust and the only cases in which entry of an express trust is permitted are those provided for in ss. 15, 39, 132a and 146 of the Ordinance. Sections 15 and 39, under which the Director may be registered as a trustee, do not require the entry of a memorial as to cestuis que trust, while they neither expressly permit or prohibit such an entry. Neither s. 132a, providing for the creation of rights affecting land by its registered owner, with the consent of the Director and in his name as a trustee for natives, nor s. 146, providing for the vesting of land in trustees by a registered owner who desires so to vest it, have any possible application here.

Coming to the factual basis of the declaration, I do not think that the Sulkas have acquired any equitable or other enforceable interest in the land. I do not think that the relationship between the Director or the Administration, on the one hand, and the Sulkas, on the other, is a legal relationship with enforceable obligations and rights and, a fortiori, I do not think that they have any registerable rights in the land. For many years the supervision of the Sulkas’ occupation of the land has been under the Director of Native Affairs and exercised through the officers of his department and the land representatives appointed by the Administration from among the Sulkas themselves who, I may add, appear to be satisfied with the paternal protection they have had in the past, now enjoy and, doubtless, will receive in the future.

It was not for the learned Commissioner to declare the trusts upon which the Director should hold the land and in doing so I consider that he exceeded his powers although from the not unworthy motive of finding a way out of what he considered to be a “muddle”. In making this declaration, as well as in finding title in the Director, as Mr. Jones put it, he attempted to solve an administrative rather than a legal problem.

The Administrator, should his power under s. 72 of the Land Ordinance be employed, may declare the trusts for the carrying out of which the land is formally placed under the control of the Director and may name the beneficiaries generally or particularly.

However, if this were done, I do not think that any more should be entered in the register book than what is prescribed by s. 15 (3) of the Registration Ordinance, namely a description of the Director as “trustee” and reference to the land as “a native reserve”. Section 15 (3) is permissive by way of exception to the prohibition of s. 145 against the entry of trusts and no more should be entered than is permitted by the sub-section.

I uphold the appeal and order that the Final Order of the 28th July, 1959, be discharged.

Appeal allowed. Final order of 28th July, 1959, discharged.

Solicitor for the appellants: Dudley Jones.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

Solicitor for the interveners: W. A. Lalor, Public Solicitor.

[viii](1944) 45 S.R. (N.S.W.) 321.

[ix][1944] NSWStRp 37; (1944) 45 S.R. (N.S.W.) 321, at pp. 331-332.

[x] (1962) 3 F.L.R. 398, at p. 399.

[xi][1935] A.C. 243.

[xii](1889) 14 App. Cas. 46.

[xiii][1921] 2 A.C. 399.

[xiv](1941) 67 C.L.R. 544.

[xv] [1953] A.C. 207.