Ageva v The State [1977] PNGLR 99 (30 March 1977)

IN THE MATTER OF THE LAND TITLES COMMISSION ACT 1962-1971 AND IN THE MATTER OF AN APPLICATION BY ARTHUR AGEVU THE REPRESENTATIVE OF THE GAI BUDDBU KURIU AND TANUMOTU CLANS OF ROKU VILLAGE, AND GADIKI SANAI OF GOROHU VILLAGE AND REPRESENTATIVE OF THE MAUARA CLAN OF GOROHU AND KIDO VILLAGES, AND MADAHA RESENA ON BEHALF OF THE NEWERI IDABANA, NENEHI LAURINA TUBUMAGA AND MAVARA CLANS OF TATANA VILLAGE, AND JACK MASE OF VABUKORI VILLAGE ON BEHALF OF MEMBERS OF THE DARAHASI CLAN OF VABUKORI VILLAGE, AND BOBBY GAIGO ON BEHALF OF THE LAURINA CLAN OF TATANA VILLAGE

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REAL PROPERTY - “Waste and vacant land” - Proclamation of British Protectorate - Proclamation of Annexation - Proclamation an act of state - Whether title to waste and vacant land vested in Crown - Whether any prerogative or other authority in Administration to take possession of waste and vacant land.

REAL PROPERTY - Land Titles Commission - Jurisdiction - Commission may ascertain whether land waste and vacant - No jurisdiction to hear and determine claims in respect of such land - Land Titles Commission Act 1962, s. 15[xc]¹.

On 6th November, 1884, Commodore Erskine landed at Port Moresby and proclaimed a Protectorate over the south coast of the island of New Guinea, and by Proclamation dated 4th September, 1888 the Protectorate became part of the Queen’s Dominions, and by Instructions of the same date it was provided:

“XXXII. Before disposing of any vacant or waste land to Us belonging, the Administrator shall, whenever practicable, cause the same to be surveyed, and such reservations to be made thereout as he may think necessary for roads or other public purposes. The Administrator shall not, directly or indirectly, purchase for himself any of such lands without Our special permission given through one of Our Principal Secretaries of State.”

The Land Regulation Ordinance of 1888 was the first piece of land legislation enacted in the colony. It made no reference to waste or vacant land. In 1889, the Real Property Ordinance was enacted which provided in section 111:

“All lands in the Possession remaining unalienated from the Crown on the day that this Ordinance comes into force and operation whether waste lands or lands set apart as roads or as reserves for public purposes shall when alienated in fee be subject to the provisions of this Ordinance.”

Section 15 of the Land Titles Commission Act 1962 provides that the Commission has exclusive jurisdiction to hear and determine all disputes concerning and claims as to the ownership by native custom of, or the right by native custom to use, any land ... including a dispute as to whether any land is or is not native land.

(1) Prior to June 1890, even though what was then British New Guinea was part of the Queen’s Dominions, the ultimate title of land in the Possession was vested in the Crown by alienation to the Crown subject however to the usufructuary title to land of the indigenous inhabitants.

Williams v. Attorney-General for New South Wales [1913] HCA 33; (1913) 16 C.L.R. 404 at p. 439 and The Administration of the Territory of Papua New Guinea v. Guba and Doriga, [1973] P.N.G.L.R. 603 at pp. 637-638 referred to.

(2) “Waste and vacant lands” were lands which were unoccupied, uncultivated and unused.

(3) The proclamation of 4th September, 1888 was an act of State, and is not challengeable in any Court.

Sobhuza 11 v. Miller [1926] A.C. 518 at p. 523; The Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 15 E.R. 19, Nissan v. Attorney-General[1969] UKHL 3; , [1970] A.C. 179 at pp. 231-232; Vatesingji Joravarsingji v. Secretary for State for India, [1924] L.R. 51 1.A. 357 at p. 360, and Cook v. Sprigg [1899] UKLawRpAC 44; [1899] A.C. 572 referred to.

(4) Accordingly, the Administration of British New Guinea prior to June 1890, had power “to take possession of, on behalf of the Crown, as being waste and vacant”, land within the Possession.

(5) The Land Titles Commission, does not have jurisdiction under s. 15 of the Land Titles Commission Act 1962 to hear and determine claims in respect of waste and vacant land, but it does have jurisdiction to ascertain whether land is waste and vacant, where there is also a question of native ownership or the right by native custom to use it.

This was a case stated under s. 32 of the Land Titles Commission Act. The questions asked in the case stated were as follows:

1. Was any prerogative, or other authority, vested in the Administration of British New Guinea prior to June 1890 “to take possession of, on behalf of the Crown, as being waste and vacant”, land within the Possession.

2. If such authority existed and was exercised has the Land Titles Commission jurisdiction to hear and determine claims under s. 15 of the Land Titles Commission Act in respect of such land.

Mr. McDermott appears for the first four named representative applicants, and Mr. Maino-Aoae appears for the respondent, the Government of Papua New Guinea. In addition, Mr. Bobby Gaigo has put in an appearance on behalf of the Laurina Clan of Tatana Village wrongly naming the group as a respondent. By consent I ordered that the name of the proceedings be amended to constitute the Laurina Clan an applicant to the proceedings and Mr. Gaigo appeared in person on its behalf. The appearance of Madhaha Resena on behalf of this clan was withdrawn. Each of the parties claims an interest in Fisherman’s or Daugo Island upon which the Government has erected important air navigational aids and maintains an emergency air strip. Coconuts have also been planted there.

2. If such authority existed and was exercised has the Land Titles Commission Jurisdiction to hear and determine claims under s. 15 of the Land Titles Commission Act in respect of such land.

It is important to note at the outset that in the form in which these questions are presented they do not relate specifically to any matter in issue between the parties. The answers will relate to capacity; they will be of general application and will not in any way affect the rights of parties inter se. No matter of fact is decided by me and subject to any appeal from the Land Titles Commission the ownership of and interests in the land the subject of the dispute are decided by it.

It has long been a principle of law that discovery was a source of title to colonial land. A Sovereign whose subjects discovered land acquired title to the land by the fact of discovery (Milirrpum v. Nabalco Pty. Ltd.[xci]²). The principle was clearly expressed by Isaacs J. in Williams v. Attorney-General for New South Wales[xcii]³ where he said: “It has always been a fixed principle of English Law that the Crown is the proprietor of all land for which no subject can show a title. When colonies were acquired this feudal principle extended to the lands overseas. The mere fact that men discovered it and settled upon the new territory gave them no title to the soil. It belonged to the Crown until the Crown chose to grant it.” A distinction has been drawn between colonies which were settled or annexed and those which having previously been settled were later obtained by conquest, but that distinction is of no significance in Papua, it never having been the subject of conquest following conflict between States. However, one must have regard to historical events to ascertain the nature of the prerogative and authorities which the Crown assumed to itself in what was previously called British New Guinea. On 6th November, 1884 Commodore Erskine landed at Port Moresby and proclaimed a Protectorate over the south coast of the island of New Guinea. By Proclamation of 4th September, 1888 the Protectorate became part of the Queen’s Dominions. Erskine in his oft quoted speech delivered on board HMS “Nelson” before establishing the Protectorate informed those foregathered before him: “Your lands will be secured to you” and the Proclamation establishing the Protectorate declared “that no acquisition of land, whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognised by Her Majesty.” Speaking of the effect of the establishment of the Protectorate and the subsequent annexation Barwick C.J. in The Administration of the Territory of Papua and New Guinea v. Guba and Doriga[xciii]⁴ assumed without deciding that they “did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom”. However, in that case the High Court of Australia was considering questions in relation to land which was claimed by various parties and could not have been and was not categorized as “waste and vacant” land. We are concerned here with land so described and accordingly no decision is required of me of the effect of the Proclamations of the Protectorate or the Possession in relation to occupied land. There can, on the authority of Guba and Doriga’s case[xciv]⁵ be no doubt that there was authority in the Crown to acquire title to land by purchase. So far as the usufructuary title to land of the indigenous inhabitants was concerned it could be vested in the Crown by alienation to the Crown and thereupon the fee simple was vested absolutely in the Crown.

If the true legal situation prior to June 1890, the time referred to in question one of the case stated, was, even though what was then British New Guinea was part of the Queen’s Dominions, that the ultimate title of land in the Possession was vested in the Crown subject however to the usufructuary title the question remains did waste and vacant land vest in the Crown by virtue of annexation. It seems to me that in the light of the history of events and legislation here the principles in relation to land described as “desert and uncultivated” by Blackstone[xcv]⁶ are of doubtful application. The words “desert and uncultivated” used by him were taken to include lands in which lived uncivilized inhabitants in a primitive society. Such a description would have covered all of what was British New Guinea, but the question of ultimate title in the Crown to all Papuan territory has been doubted and not decided. Waste and vacant land has a different meaning from desert and uncultivated land. “Waste lands of the Crown” is a phrase used in Statutes of the Imperial Parliament and was defined for the purposes of the Acts in which it appeared. For example in Act 5 & 6 Vict. C. 36 (1842) such lands were lands “which now are or shall hereafter be vested in Her Majesty ... and which have not been dedicated and set apart for some public use.” In 9 & 10 Vict. C. 104 (1846) they were lands so vested “which have not been dedicated or set apart for some public use.” In Williams v. Attorney-General for New South Wales[xcvi]⁷ Barton A.C.J. said: “Waste lands of the Crown, where not otherwise defined, are simply I think such of the lands of which the Crown became the absolute owner on taking possession of this country as the Crown had not made the subject of any proprietary right on the part of any citizen”.

“Waste and vacant lands” is the phrase used in the instructions delivered to the Administrator of British New Guinea under the Royal Manual and Signet. The instructions are published in the Government Gazette of 4th September, 1888 the same day upon which the Possession was proclaimed. Paragraph XXXII of those Instructions was in these terms:

As used in this Instruction and in the case stated I take it that waste and vacant lands are lands which were unoccupied, uncultivated and unused. However, that the Instruction required a survey before disposition would seem to indicate that some inquiry to delineate the boundary of waste and vacant land was required. The question now presents itself, what is the meaning and effect of the phrase “vacant or waste land to Us belonging”. In answering this question regard must also be had to the effect of the Proclamation by the operation of which British New Guinea became a Possession of the Crown. If it were an act of State its exercise is not challengeable in a court: Sobhuzza 11 v. Miller[xcvii]⁸. But not every act performed by the Crown abroad is an act of State. In determining whether an act is an act of State regard must be had to the character of the act done. If it were “a seizure by arbitrary power on behalf of the Crown” then it may be justified as an act of State: The Secretary of State in Council of India v. Kamachee Boye Sahaba[xcviii]⁹. A court may examine an act to determine its character, but once its character is found to be an act of State its exercise cannot be challenged in a court: Nissan v. Attorney-General[xcix]¹⁰. In Vatesingji Joravarsingji v. Secretary for State for India[c]¹¹ Lord Dunedin in delivering the advice of the Judicial Committee of the Privy Council said: “When a territory is acquired by a sovereign state for the first time that is an act of state. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.” And in Cook v. Sprigg[ci]¹² the Board said: “The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired was an act of state ...” The Proclamation of 4th September, 1888 was undoubtedly an act of State. It had an effect not only upon the inhabitants of what previously was a Protectorate in that it made them subjects of the Queen but it also announced urbi et orbi that the Protectorate was now part of the Queen’s dominions. It is implicit in the words “to Us belonging” in the phrase “vacant or waste land to Us belonging” that the Crown as at 4th September, 1888 regarded all such land within the Possession as being Crown Land. Whether the view which seems to have been then held that thereupon all waste and vacant land became Crown land was correct I find unnecessary to decide though I would incline to the view that it did. The authorities show that it was clearly within the prerogative and authority of the Crown to take possession of such land; whether it did so or whether it was required to do so before it could be said to have possession I am not called upon to answer.

Having dealt with what I conceive to be the effect of the proclamation of annexation of British New Guinea I turn now to a brief examination of relevant legislation enacted in British New Guinea. Hoani v. Aotea District Maori Land Board[cii]¹³ is one of many authorities for the proposition that the Sovereign may legislate concerning property rights and such legislation is not examinable by the Courts in relation to the act of State by which sovereignty was obtained. In In re Ninety Mile Beach[ciii]¹⁴ North J. said: “On the assumption of British sovereignty, apart from the Treaty of Waitangi, the rights of the Maoris to their tribal land depended wholly on the grace and favour of Her Majesty Queen Victoria who had an absolute right to disregard the native title to any lands in New Zealand ...” However, the situation in Papua was described by Barwick C.J. in Guba and Doriga’s case[civ]¹⁵ as being that “the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration.... It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognised a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land”. The effect the authorities have seems to be that the Crown had the right to exercise as much or as little control over the land of the Possession as it chose to do. The Land Regulation Ordinance of 1888 was the first piece of land legislation enacted in the colony. It made no reference to waste or vacant land. In 1889 the Real Property Ordinance was enacted. It adopted the Real Property Acts of 1861 and 1867 of Queensland and in Section III provided:

“III. All lands in the Possession remaining unalienated from the Crown on the day that this Ordinance comes into force and operation whether waste lands or lands set apart as roads or as reserves for public purposes shall when alienated in fee be subject to the provisions of this Ordinance.”

The following sections provided machinery for giving effect to the Ordinance. It was not until 15th November, 1890, a date after the time nominated in the case stated that any legislative reference was made to waste or vacant lands. Part III of the Crown Lands Ordinance which came into effect on that day restricted the use of such land. Section XXIII effectively defined waste or vacant land as “being land not used or required or reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes” and provided a procedure to be followed when the Crown took possession of such land. These provisions in my view were regulatory. They did not create or extinguish any authority or right in the Crown. I have earlier expressed the view, though refrained from deciding, that at the time of annexation all such land became Crown Land and indicated that I was not called upon to decide whether some formal act was required by the Crown before it could be said to have possession of it.

The second question involves the jurisdiction of the Land Titles Commission to hear and determine claims in respect of such land. Section 15 of the Land Titles Commission Act provides that the Commission has exclusive jurisdiction to hear and determine all disputes concerning and claims as to the ownership by native custom of, or the right by native custom to use, any land ... including a dispute as to whether any land is or is not native land. In any given case it is possible that a dispute may exist as to whether land is native land or waste and vacant land. It seems otiose to say that in such a case the Commission has jurisdiction to determine the character of the land and if it is found to be native land to declare the rights and the ownership of the rights over the land the subject of the inquiry. However, if land is waste and vacant land I cannot see once that has been decided, how any claims could conceivably be entertained or recognized. Waste and vacant land I have said is unoccupied, uncultivated and unused land. That would seem to exclude ownership of such land. I then find it difficult to understand how once land has been found to be waste and vacant there could remain a question of ownership or a right to use it, that is, how could there then be any claims in respect of such land. The question of the exercise of the authority is perhaps unimportant; it is the character of the land which the Commission may be called upon to decide. There is a certain ambiguity in question 2. For the purposes of the answer to this question I cannot take it to inquire only as to the Commission’s jurisdiction to decide whether land is waste and vacant. If it decides that land is or was waste and vacant then in my view there can be no question of its being native land or of the ownership of or a right to use it. Once the character of the land has been ascertained to be waste and vacant the Commission thereafter has no further jurisdiction to determine questions in relation to it. Accordingly I would answer this question in the negative, but with the qualification that the Commission has jurisdiction to ascertain whether land is waste and vacant where also there is a question of native ownership or the right by native custom to use it.

2. No. However, the Commission has jurisdiction to ascertain whether land is waste and vacant where also there is a question of native ownership or the right by native custom to use it.

[xc][Infra p. 106.]

[xci] (1971) 17 F.L.R. 141 at pp. 200-201.

[xcii][1913] HCA 33; (1913) 16 C.L.R. 404 at p. 439.

[xciii][1973] P.N.G.L.R. 603 at pp. 637-638.

[xciv][1973] P.N.G.L.R. 603 at pp. 637-638.

[xcv]Commentaries I 104.

[xcvi][1913] HCA 33; (1913) 16 C.L.R. 404 at p. 428.

[xcvii] [1926] A.C. 518 at p. 523.

[xcviii](1859) 15 E.R. 19.

[xcix][1969] UKHL 3; [1970] A.C. 179 at pp. 231-232.

[c](1924) L.R. 51 I.A. 357 at p. 360.

[ci][1899] A.C. 572.

[cii][1941] A.C. 308.

[ciii] [1963] N.Z.L.R. 461 at p. 468.

[civ][1973] P.N.G.L.R. 603 at p. 638.

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Papua New Guinea Law Reports

Ageva v The State [1977] PNGLR 99 (30 March 1977)

Papua New Guinea Law Reports - 1977