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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
IN THE MATTER of an application for Judicial Review
BETWEEN
THERESA McCARTHY aka
FAGAFAGAMANUALI’I THERESA McCARTHY
of Fugalei, Member of Parliament.
APPLICANT
AND
ATTORNEY GENERAL
being sued for and on behalf of the Registrar of Lands and the
Ministry of Natural Resources and Environment and Meteorology.
RESPONDENT
Counsel: P A Fepuleai for applicant
S Rimoni for respondent
Judgment: 14 February 2008
JUDGMENT OF SAPOLU CJ
Introduction
1. These proceedings are concerned with a motion by the applicant, Mrs Theresa McCarthy, to review a decision made by the registrar of lands ("the registrar") to decline approval of a survey plan, referred to as plan 6981, submitted on behalf of the applicant for approval by the registrar. The applicant’s motion cites the Attorney General as respondent on behalf of the registrar and seeks to review the registrar’s decision on the grounds of irrationality, procedural impropriety and illegality.
2. It is claimed by the applicant that the land shown on the said survey plan is freehold land which belongs to her. This was not accepted by the registrar for two reasons. Firstly, the registrar is of the view that the land shown on the said survey plan is not part of the land which belongs to the applicant. Secondly, the registrar is also of the view that the land shown in the said survey plan is covered by sea and therefore it is public land which belongs to the State.
3. It is the reasons given by the registrar for his decision to decline approval of the said survey plan which are at the heart of the dispute in these proceedings. To arrive at a determination of this dispute, it is necessary to go back in time to when Samoa was a German colony.
Land Claims
4. A Supreme Court and Land Commission were established for Samoa under the Final Act of the Conference of Berlin on Samoan Affairs of June 14, 1889. This Final Act of 1889 was passed by the Three Powers at the time, namely, the United Kingdom of Great Britain and Ireland, Imperial Germany and the United States of America.
5. On 21 September 1891, one Thomas Trood, a foreign merchant residing in Samoa at the time, filed with the Land Commission for recognition and registration of absolute ownership land claims 2345, 2346 and 2347. The areas of lands referred to in the said land claims are expressed in ‘approximate numbers of acres’ as "60.0.0 approximate," "46.0. approximate" and "6.0.17 approximate" respectively. Thus the total land area included in all three land claims was 112a. 0r. 17p approximate. The description of the land in each land claim is by "Land bymarks and boundaries if possible, and especially by name".
6. Thus the land in claim 2345 is described as "Fugalei Vaimea and Logoasa" with its boundaries "starting from a road at Asaga" to "Mulivai" to a "Fautree" to "two alias" and then "to starting point." The distances between those land bymarks are described in chains and what appears to be compass directions are also shown in the land description. The land in claim 2346 is described as "Salia Fusifusi and Logoasa" with its boundaries "beginning on the E side on the dry land at a Fau and Gatae tree" then "north to deep water then along deep water creek" then "north along ditch" to "deep water channel of Asaga westerly....crossing mouth of a creek" then "westerly to the point on high water mark to a tree marked IW" then south to "Fau and Gatae trees". The distances between those land bymarks are shown in links. The land in claim 2347 is described as "All that the land of the Leleua family and Tagutgutu Leleua both or either of them situate at the Asaga near Apia and Vaimoso in Samoa within the area or boundaries of land formerly purchased by the abovementioned Thomas Trood from other persons".
7. The boundaries shown in the land descriptions of all three claims are clearly not survey boundaries. It is also most doubtful that the land bymarks like the road, trees, alias, water creeks and deep water channel referred to in the land descriptions for claims 2345 2346 and 2347 are still existing today. Furthermore, if the boundaries of the villages of Fugalei, Vaimea and Vaimoso referred to in the land claims are to be accepted as they are known today, then the boundaries of the lands included in the said lands would far exceed the total area of 112a. 0r. 17p claimed by the applicant. As submitted by counsel for the respondent, it may be that the boundaries of Fugalei, Vaimea and Vaimoso that existed in 1891 are different from the known boundaries of these villages today. But that is not certain.
8. It was alleged in the evidence given for the applicant that the areas of the lands referred to in the said land claims were based on drawings done by sailors using compasses. But no evidence of such drawings were produced. The office of the registrar which is within the Ministry of Natural Resources, Environment and Meteorology also does not have copies of such drawings and has never seen such drawings.
9. After the said land claims were filed with and processed by the Land Commission, they were forwarded together with a "Group Report" dated 27 September 1892 to the Chief Justice of the then Supreme Court of Samoa.
Court Grant 909
10. On 14 April 1897 the Chief Justice of the then Supreme Court of Samoa issued Court Grant 909 in which Thomas Trood is declared the proprietor of the lands referred to in land claims 2345, 2346 and 2347.
11. Court Grant 909 refers to the lands in the said land claims by quoting their descriptions set out in the claims but not their respective approximate areas. Court Grant 909 also does not specify in figures the total area of land granted to Thomas Trood.
Plans
12. Subsequent to Court Grant 909, a Flur Plan IV was prepared by the government surveyor at the time depicting the boundaries of Court Grant 909 and the adjoining lands and the division of the land contained in Court Grant 909 into parcels 42, 53, 54 and 97/72. Flur Plan IV was registered on 16 November 1904 as Grunsbuch Baus I Blatt 106 about seven years after Court Grant 909 was issued in 1897. The registration of Court Grant 909 was transferred from the Grunsbuch Baus I Blatt 106 to the land register volume I folio 24 on 10 August 1921. This was when Samoa was administered by New Zealand.
13. It is submitted by counsel for the respondent in her written submissions that the German heading on Flur Plan IV when translated into English means "land sketch". But that should not be taken to mean that Flur Plan IV was done by a surveyor without visiting the area represented on Flur Plan IV as alleged for the applicant. It is also pointed out by counsel for the respondent that the boundaries of parcels delineated on Flur Plan IV and the drawings of lines showing boundary marks indicate detailed tiny square markings by the government surveyor which indicate that some field work must have been carried out at some stage of preparing Flur Plan IV to locate the said boundaries and to place the boundary marks on the field. Counsel also refers to a scale of 1:4000 shown on Flur Plan IV and submits that a scale on a drawing or plan can only be based on the surveyor’s estimation of the area included in the plan after having seen the actual area contained in the plan. I find these submissions based on counsel’s meticulous alertness to relevant factual details to be persuasive.
14. Flur Plan IV does not specify the total area of the land it represents but the registrar claims that the total area is 79a. 2r. 23.6p. and that is also the total area of the land included in Court Grant 909 and in land claims 2345, 2346 and 2347. The registrar arrived at the total area of 79 a. 2r. 23.6p on the basis of subdivision and definition survey plans which are connected to one another and were prepared over the years in relation to Flur Plan IV by various surveyors and approved by the then registrars.
15. These survey plans are:
(a) plan 2 U/IVL, also known as plan 2073L, showing parcel 97/72 as shown on Flur Plan IV quantifying the total area as 11a. 2r. 15p which was prepared in 1945;
(b) plan 3104 being a plan of subdivision of part of parcel 54 on Flur Plan IV quantifying the total area as 4a. 2r. 19.8p which was prepared in 1981;
(c) plan 4444 L being a plan of subdivision of part of parcel 54 as shown on Flur Plan IV quantifying an area of 8a. 3r. 28.8p which was prepared in 1981;
(d) plan 5561 showing parcel 465 which is equivalent to parcel 42 as shown on Flur Plan IV quantifying the total area as 13a. 2r. 30p and which was also prepared in 1983; and
(e) plan 5561 showing parcel 464 which is equivalent to parcel 42 as shown on Flur Plan IV quantifying the total area as 40a. 3r. 10p and which was prepared in 1993.
16. According to the registrar in his affidavit of 19 March 2007, of the total land area in Court Grant 909 of 79a. 2r. 23.6p as taken from the total land area shown on the said plans 2 U/IVL or 2073L, 3104, 4444L and 5561, a total area of 54a. 2r. 25.9p has already been transferred to the applicant either alone or jointly with her husband. The balance of the said land area which was 24a. 3r. 37.7p has been transferred to other people. In other words, the registrar is saying that the whole of the land represented in Flur Plan IV and included in Court Grant 909 has already been conveyed out and nothing remains of that land to be conveyed to anyone. The applicant is of a different view. She believes that there is still part of that land which comprises 31a. 2r. 10.8p that remains to be conveyed to her. This belief is based on survey plan 6981 prepared by the surveying firm which was engaged by the applicant. This is survey plan 6981 which the registrar has refused to approve and is at the heart of these proceedings.
Survey plan 6981
17. Oral and affidavit evidence were given by Mr Piki Tuala, the principal of Piki Surveying Firm which was engaged by the applicant to survey the balance of her land at Fugalei.
18. Mr Tuala, who is a licensed surveyor, says in his affidavit evidence that his surveying firm carried out the normal searches with the land registry and did the field work for the survey from which the definition survey plan 6981 was prepared. The searches with the land registry revealed land claims 2345, 2346 and 2347 which form the basis of Court Grant 909. The areas represented by those land claims were 60 acres, 46 acres and 6 acres respectively so that the total area represented by those land claims was 112 acres.
19. The areas of land claims 2345, 2346 and 2347 which form the basis of Court Grant 909 are actually expressed in ‘approximate numbers of acres’ as "60.0.0 approximate", "46.0.0 approximate" and "6.0.17p approximate". So if those approximate areas in numbers of acres are totalled up, they would come to an approximate total area of "112.0.17p."
20. Mr Tuala in his oral evidence stated that the areas shown in the said land claims were based on drawings prepared by sailors at the time. However, no evidence of such drawings were produced. If such plans existed, I doubt they were proper survey plans.
21. Mr Tuala also says in his affidavit evidence that the balance of the land represented in Court Grant 909 was deduced from the remainder of the area after deduction of those areas covered by plans 5561, 4444L, 3774 and 3104. Three of those plans are the same as three of the four survey plans cited by the registrar in his affidavit evidence. However, the fourth plan cited by Mr Tuala which is plan 3774 does not appear to be the same as the fourth survey plan cited by the registrar which is plan 2 U/IVL also known as plan 2073L. Because it is the office of the registrar which has the custody of those survey plans, I will proceed on the basis that the correct plan is plan 2 U/IVL also known as plan 2073L as cited by the registrar.
22. One matter that is not clear here, is that in Mr Tuala’s oral evidence, he said that Flur Plan IV does not follow the boundaries shown on the said land claims. This is at variance with what the registrar says in his affidavit evidence that Flur Plan IV was prepared and registered on 11 November 1904 to show the boundaries of Court Grant 909 and the adjoining lands.
23. The areas calculated by Mr Tuala for land claims 2345, 2346 and 2347 were 59a. 0r. 18.9p, 46a. 3r. 30.4p and 6a. 0r. 17p. These areas would appear to total up to 112a. 0r. 26.3p. In the affidavit by Mr Tuala it is stated that the total area of Court Grant 909 was 112 acres. For present purposes, I will proceed on the basis that that was the area of Court Grant 909 as found by Mr Tuala.
24. The registrar in his affidavit evidence says that the correct boundaries of Court Grant 909 which incorporated land claims 2345, 2346 and 2347 are depicted in Flur Plan IV prepared and registered on 16 November 1904. The total area of the land in Flur Plan IV as taken from the total of the land areas shown on survey plans 2 U/IVL also known as plan 2073L, 3104, 4444L and 5561 was 79a. 2r. 23.6p and that is the total area of the land in Court Grant 909.
25. So the difference in areas of Court grant 909 between Mr Tuala and the registrar would be 32a. 1r. 16.4p. Thus the applicant claims that there is still a balance of the land in Court Grant 909 which belongs to her. The registrar, on the other hand, claims that on the basis of Flur Plan IV and the survey plans prepared over the years in relation to Flur Plan IV by various surveyors and approved by the then registrars, all of the land in Court Grant 909 has been conveyed to the applicant alone, the applicant and her husband jointly, and to other people. In other words, there is nothing which remains of the land in Court grant 909 which belongs to the applicant.
26. When the applicant engaged Pili Surveying Firm to survey what she believed is the balance of the land in Court Grant 909 that belongs to her, it appears from the evidence that the actual survey that was done was carried out not by Mr Tuala but other surveyors in his surveying firm. After the field work was carried out, the survey plan was drawn up and given number 6981. The plan shows that the survey was done on an unspecified date in February 2003.
27. The areas as shown on plan 6981 are: residential 28a. 3r. 03.7p, and esplanade reserve 2a. 2r. 37.0p. Thus the total area represented on plan 6981 is 31a. 2r. 00.7p. If this area is added to the total area of 79a. 2r 23.6p of the lands on survey plans 2 U/IVL, 3104, 4444L and 5561 it would come to almost 112 acres. This is the same area as the approximate total of the individual approximate areas shown on land claims 2345, 2346 and 2347 which Mr Tuala says were based on drawings by sailors with no evidence as to what qualifications they might have had in surveying. That must have been prior to 21 September 1891 which was the date on which Thomas Trood filed his land claims 2345, 2346 and 2347 with the then Land Commission.
28. It appears from plan 6981 that it was submitted to the office of the registrar on 24 February 2003. It was then examined by Elisapeta Leato the present principal survey draftsperson who was then senior plan examination officer. According to the affidavit evidence of Ms Leato, she examined plan 6981 in accordance with the guidelines and procedures used for the examination of survey plans. She same to the conclusion that the area shown on plan 6981 is likely to be covered by sea and therefore does not belong to the applicant. However, the then principal survey draftsperson, Foutanu Eti Lino, who has since retired, did not agree with her. Ms Leato says that one of the reasons for that disagreement was that one of the boundaries on Court Grant 909 is shown as the "deep water." The office of the registrar did not accept the opinion of Mr Lino.
29. The only references in Court Grant 909 to "deep water" is where it states: "Claim 2346 called ‘Salia Fusifusi’ and ‘Logoasa’ beginning on the E side on the E side on the dry land at a Fau and Gatae tree marked i W go north 178 links is deepwater creek then along deepwater creek 650 links then N along ditch 300 links to deepwater channel of Asaga westerly 200 links crossing mouth of a creek..." Where the word "deepwater" is used in that description it is to describe a "creek" and the "channel of Asaga." It does not appear to refer to the sea.
30. Plan 6981 was then signed by Ms Leato as examiner; Mr Lino also signed the plan as correct. This plan was then submitted to the registrar who approved it. However, queries were raised by senior staff members of the registrar’s office in relation to the plan. There were also consultations held. The registrar then reversed his decision and declined approval of the plan.
31. Sometime in March 2003, Kasipale Moli, a licensed surveyor in the office of the registrar which is within the Ministry of Natural Resources, Environment and Meteorology but was at the relevant time called the Department of Lands, Surveys and Environment, carried out an investigation into the area covered by survey plan 6981. Following his investigation, Mr Moli submitted a report dated 1 April 2003 to the then principal surveyor in the Department.
32. Mr Moli in his report is very critical of the survey from which plan 6981 was drawn up. In particular, he said that the area shown in plan 6981 is not dry land but sea. Furthermore, Mr Moli said that the stability of survey traverse marks used for the survey that was carried out are unstable and the "OGS" or old German stone shown on the plan 6981 is not an old German stone.
33. By letter dated 8 April 2003, the Department informed Mr Tuala that approval of plan 6981 has been declined by the registrar. Mr Tuala responded by letter dated 9 April 2003. The Department by letter dated 9 April 2003 wrote back to Mr Tuala setting out the matters which are in the report of Mr Tuala. A series of correspondence was then exchanged between Mr Tuala and the registrar with Mr Tuala explaining why the survey was carried out in the way it was done and the registrar refusing to accept Mr Tuala’s explanations. I need not set out the contents of those correspondence but I have perused all of them. Perhaps, I should mention here that Mr Tuala does not appear from the evidence to have carried out the survey from which plan 6981 was drawn up. The survey was carried out by other surveyors employed by Mr Tuala’s surveying firm. I must also say that the position taken by the registrar was based on the advice of government surveyors and Ms Leato who is now the principal survey draftsperson.
Location of land in survey plan 6981
34. The area in dispute is located behind the Mulinuu peninsula and at the most seaward side of the mangroves at Fugalei, a part of which has been reclaimed and a building constructed on it. The whole of the area is covered by the sea during high tide. It is open sea. Even under low tide most of the area is covered by sea. Only a very small part of it is exposed as soft mud flats during low tide.
35. During the site inspection by the Court at high tide, the whole of the disputed area was covered by sea so that one’s clear impression is that it is part of the sea. Another site inspection by the Court during low tide showed that most of the disputed area is still covered by the sea and only a very small part of it was exposed as soft wet mud flats. That is the part right next to the mangroves on the most seaward side of Fugalei where part of what appears to have been covered with mangroves has been reclaimed. As one would expect to find, land covered with mangroves is wet, soft and swampy.
36. In other words, all of the disputed area is under sea level at high tide and only a very small part is exposed at low tide as soft wet mud flats. It is not dry land.
37. During the site inspections by the Court of the land included in plan 6981, it was obvious that all or nearly all of the land between the main road at Fugalei and the sea where the land in plan 6981 is located must have been covered with mangroves. Parts of that land have obviously been reclaimed and there are buildings constructed on those parts. A road has also been built on what is clearly reclaimed land from the main road at Fugalei close to the sea where the land in plan 6981 is located.
38. It was also obvious during the site inspections that much of the land next to where the land in plan 6981 is located is still covered with mangrove growth. What is not clear is how far the sea used to come inland in the past towards what is now the main road at Fugalei.
39. As mentioned earlier, the two reasons why the registrar reversed his decision to approve plan 6981 are, firstly, that the land shown in plan 6981 is not part of the land which belongs to the applicant and, secondly, that the land shown in plan 6981 is part of the sea and is, therefore, public land which belongs to the State. I will now consider first the second reason for the registrar’s decision and then the first reason.
Is the land in survey plan 6981 public land
(a) Relevant Law
"Public land means land vested in Samoa being land that is free from customary title and from any estate in fee simple"
Article 104 of the Constitution then provides:
"(1) Subject to the provisions of any Act, all land lying below the line of high-water mark shall be public land.
"(2) For the purposes of this Article, the term ‘high-water mark’ means the line of median high tide between the spring and reap tides."
Article 104 reflects what has been the position at common law for a long time with regard to the extent of the right of ownership of the Crown to the seashore. As stated by Lord Granworth in Attorney-General v Chambers 4 DeG. M. &.206; 43E.R. 48:
"The learned Judges whose assistance I had in this very obscure question point out that the limit indicating such land is the line of the medium high tide between the springs and the neaps. All land below that line is more often than not covered at high water, and so may justly be said, in the language of Lord Hale, to be covered by the ordinary flux of the sea. This cannot be said of any land above that line; and I therefore concur with the able opinion of the Judges, whose valuable assistance I had, in thinking that that medium line must be treated as bounding the right of the Crown".
In Mitchell (Commissioner of Crown Lords) v Saunders (1979)1 NZCPR 130, Jefferies J pointed out that the common law rule as stated in Attorney-General v Chambers [1854] EngR 733; 4 De G. M&G 206; 43ER 486 has been adopted in subsequent statutes and may be taken as providing an accurate definition of the seaward boundary at the time of a Crown grant of land.
41. To ascertain the line of medium high tide between the spring and neap tides, Cooper J in Attorney-General v Findlay [1919] NZLR 513 at 518 said:
"[The] line of the medium high tide between the springs and the neaps must be ascertained by taking the average of those medium tides in each quarter of a lunar revolution during the year."
In Land Law in New Zealand (2004) vol 2 by Hinde, McMorland and Sim, it is stated at 22.007, p.873:
"Where in any Crown grant the ocean, sea, or any sound, bay or creek affected by the ebb or flow of the tide is described as forming the boundary of the land granted, the boundary is deemed by s.35 of the Crown Grants Act 1908, to be ‘the line of high-water mark at ordinary tides’. That line was held in Attorney-General v Findlay [1919] NZLR 513 to be the line of medium high tide between the spring and neap tides, ascertained by taking the average of those medium tides in each quarter of a lunar revolution during the year."
42. Counsel for the applicant in his written submissions states that even if the land in plan 6981 is part of the sea, it is clear from Court Grant 909 that it was European land which belonged to Thomas Trood. It is then further submitted that the status of the land is preserved under Articles 114 and 123 (2) of the Constitution which now classify the land as freehold land. I do not accept this submission as it should appear clear from the discussion which follows.
43. Article 114, as far as relevant, provides:
"(a) The existing law shall, until repealed by Act, continue in force on and after Independence Day.
"(b) All rights, obligations and liabilities, arising under the existing law, shall continue to exist on and after Independence Day and shall be recognised, exercised and enforced accordingly."
The expression "existing law" is defined in Article 111(1) as:
"Existing law" means any law in force in the Trust Territory of Samoa or any part thereof immediately before Independence Day".
"Independence Day", of course, was 1 January 1962 Article 123(2) then provides:
"Subject to the provisions of clause (3), land which immediately before Independence Day is, under the provisions of the Samoa Act 1921, Samoan land. European land or Crown land shall, on and after Independence Day, be held, under the provisions of this Constitution, as customary land, freehold land or public land, respectively".
As I understand the submission by counsel for the applicant, if the land in dispute was held by the Thomas Trood in absolute ownership in terms of Court Grant 909, then it was European land and its status has been preserved by Articles 114 and 123(2) of the Constitution in the sense that it is now classified as freehold land. It seems to be implicit in this submission that even if the disputed land was covered by the sea at the time of Court Grant 909, it was still land held in absolute ownership by Thomas Trood because Court Grant 909 said so. I have to say I have problems with these submissions by counsel for the applicant.
44. Court Grant 909 was issued by the Supreme Court of Samoa to Thomas Trood on 14 April 1877 when Samoa was a German colony. There is no evidence as to the status of the law at that time. After the German administration, New Zealand took over the administration of Samoa.
45. Under the Samoa Act 1921 which was enacted by the New Zealand Parliament for the administration of Samoa, all lands in Samoa were classified pursuant to s.268 as Crown land, or European land, or Native land. The expression "Native land" was subsequently amended to "Samoan land". Section 276 of the Act then provides:
"The foreshore – that is to say, all land lying between high and low – water mark – and all tidal lands and waters within the limits of the Territory are hereby declared to be vested in His Majesty as Crown land free from any right, title, or interest, in any other person, and subject only to the public right of fishery and navigation".
46. Thus if the land in dispute was in 1921 part of the sea, as the evidence clearly seems to suggest, then it became Crown land by virtue of s.276 of the Samoa Act 1921. This must be irrespective of whatever was the legal status of land covered by the sea at the time Court Grant 909 was issued while Samoa was a German colony. It follows that if the land in dispute, being part of the foreshore, was Crown land in terms of s.276 of the Samoa Act 1921, then it became public land under the provisions of the Constitution. This is because Article 123(2) provides that land which immediately before Independence Day is, under the provisions of the Samoa Act 1921, Crown land, shall on and after Independence Day, be held under the provisions of the Constitution as public land.
47. It was also submitted by counsel for the applicant that even if the land in dispute is covered by the sea, the State cannot acquire title or ownership of the land because of the compensation requirement in Article 14 of the Constitution. Article 14, as far as relevant, provides:
"(1) Rights regarding property – No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law.
(a) Requires the payment within a reasonable time of adequate compensation therefore;
(b) Gives to any person claiming that compensation a right or access, for the determination of his interest in the property and the amount of compensation, to the Supreme Court; and
(c) Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a Court of original jurisdiction.
There are again difficulties with this submission, as it will become clear in the course of this judgment. Suffice to say now, that the submission is based on the assumption that the land in dispute, which is the land shown in plan 6981, is part of the land described in Court Grant 909.
48. In considering the legal status of the land in dispute, it would also be relevant to consider the common law doctrine of accretion and erosion in relation to land. In Land Law in New Zealand (2004) vol 2, by Hinde, McMorland and Sim, the learned authors in explaining the doctrine of accretion and erosion state at 22.010 at p 877:
"Where land is bounded by the sea, by tidal water, by a river or stream, or by a lake the forces of nature are likely to cause changes in the physical boundary between the land and the water. Whether such changes result in a corresponding change to the legal boundary of the land depends on how those changes occurred. The general principle is that if the physical boundary change was gradual and imperceptible, the legal boundary also changes, but if the physical boundary change was sudden or perceptible as it was occurring, the legal boundary does not change. This principle applies equally to land of the Crown and to land of a subject."
49. The learned authors then explain how accretion or erosion occurs by saying at p.877:
"Accretion occurs where the sea or tidal water, or lake water recedes gradually and imperceptibly from the land, or where a river gradually and imperceptibly moves away from one bank, adding to the land by depositing shingle and silt, or where, by gradual and imperceptible means, wind-blown sand is deposited along the water boundary thus increasing the area of the land. In such cases the new land belongs to the owners of the parcels of land to which it is added. Erosion is the opposite process. It occurs where the sea, tidal water, or, no doubt, lake water gradually and imperceptibly encroaches on the land, or where a river gradually and imperceptibly washes away one of its banks. In such cases the owners of the parcels of land which are being eroded lose those parts of their land which have been washed away."
50. As to the requirement of the doctrine of accretion and erosion that the change must be gradual and imperceptible, the learned authors of Land Law in New Zealand (supra) state at p.878:
"It is an established principle that the process of accretion must be both gradual and imperceptible. It is not sufficient to show merely a gradual accretion as opposed to an accretion which is both gradual and imperceptible. In Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 509, 613, Lord Shaw of Dunfermline for the Privy Council said:
"[The] accretion should be natural, and should be slow and gradual – so slow and gradual as to be in a practical sense imperceptible in its course and progress as it occurs."
"In Humphrey v Burnell [1951] NZLR 262 at 267 Gresson J said that what is meant by imperceptible is ‘that the addition cannot be observed in its actual process from moment to moment or from hour to hour, although after a certain period it may be possible to observe that there has been a fresh addition to the bank or boarder of the stream.
"The question whether a change in the physical boundary between land and water was slow enough to amount to accretion is one of fact. In Southern Centre of Theosophy Inc v State of South Australia [1982] AC 706, 721, Lord Wilberforce, for the Privy Council, observed that:
"Since there is a logical, and practical, gap or ‘grey area’ between what is imperceptible and what is to be considered as ‘avulsion’, the issue of imperceptibility or otherwise was always considered to be a jury question."
51. On the meaning of "avulsion", the learned authors of Land Law in New Zealand (supra) state at p.878:
"Where the change in the physical boundary between land and water was not gradual and imperceptible but either sudden or perceptible ‘as it was occurring’ the doctrine of accretion and erosion does not apply and there is no change in the ownership of the land. Examples of avulsion are where the physical change was caused by a flooded river suddenly breaking its banks and carving out for itself a new course and where the change was brought about by an earthquake. It would seem that the physical boundary change need not be instantaneous or dramatic as long as it falls ‘clearly outside any definition of gradual and imperceptible’."
52. In Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599, 613, Lord Shaw of Dunfermline in delivering the judgment of the Privy Council quoted from Blackstone vol ii, chap. where it says:
"As to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks back below the usual water mark; in these cases the law is held to be, that if this gain be by little by little, by small and imperceptible degrees, it shall go to the owner of the land adjoining."
53. Lord Shaw then went on in Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 at pp613-615 to say and quote from several English cases:
"The true reason for the principle of law in regard to foreshores is the same reason as the principle in regard to river banks, that is, that it is founded upon necessity and general convenience.
"In In re Hull and Selby Railway [1839] EngR 133; (1839) 5 M & W 327 Lord Abinger C.B., referring to Lord Yarboraugh’s case 2 Bli (NS) 147 said:
"The principle there established is not peculiar to this country, but obtain also in others, and is founded on the necessity which exists for some such rule of law for the permanent protection and adjustment of property."
"The case of In re Hull and Selby Railway (1839) S M & W 327 is important not only for the opinion of Lord Abinger and Alderson B, but for the fact of its acceptance of this principle of the law (settled as between subject and subject) to the relations between the subject and the Crown. ‘In all cases’ said Lord Abinger, ‘of gradual accretion, which cannot be ascertained from day to day, the land so gained goes to the person to whom the land belongs, to which the accretion is added; and vice versa,’ and he repeats in different words his main proposition- ‘No authority is needed for this position, but the only the known principle which has obtained for the mutual adjustment and security of property’.
"Alderson B dwelt specially upon the double-sided operation of the rule, ‘I think,’ he said, ‘the question is precisely the same, whether the claim is made against the Crown or the Crown’s grantee. Suppose the Crown, being the owner of the foreshore – that is, the space between the high and low water mark-grants the adjoining soil to an individual, and the water gradually recedes from the foreshore, no intermediate period of the change being perceptible, in that case the right of the grantee of the Crown would go forward with the change. On the other hand, if the sea gradually covered the land so granted, the Crown would be the gainer of the land. The principle laid down by Lord Hale, that the party who suffers the loss shall be entitled also to the benefit, governs and decides the question.’
"In the case of Attorney-General v Chambers [1859] EngR 4; 4 De G & J 55 Lord Chelmsford refers to the double-sided operation of the rule in this way: ‘It must always be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of this rule; for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the propriety of the sea-shore.’
"As to the nature of the accretion, it must be, as already mentioned, so gradual as in a practical sense to be imperceptible in its progress. ‘Considering,’ said Abbott CJ, ‘the word imperceptible’ in this issue, as connected with the words ‘slow and gradual’, we think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time.’ This statement of the principle, namely, that the accretion is to be something which is imperceptible in the sense of not being observed in its actual progress, goes no further than the words of Justiniam already quoted.’
54. More recently in Government of the State of Penang v Beng Hong Oon [1972] AC 425 at 436, Lord Cross of Chelsea in delivering the judgment of the majority of the Privy Council, said:
"It is, of course, well settled that if the boundary of land conveyed is the line of medium high tide the mere fact that the average of the land conveyed is given and that the position of the line of the medium hight tide at the date of the conveyance can be established-whether or not it is delineated on a plan-will not prevent land which subsequently becomes dry land through the gradual and imperceptible recession of the sea from being added to the land conveyed (see Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd)."
55. In Boxendale v Instow Parish Council [1982] Ch 14 at p.21 Robert Megarry V-6 said:
"Another instance of movable freeholds, and one that is very much in print in this case, may arise on a grant of foreshore; for such a grant may convey an estate in the foreshore in whatever position it is from time to time. If the sea imperceptibly recedes, the foreshore recedes with it, the foreshore that has been granted moves inland. This has to be considered in relation to the law of accretion and diluvion. Apart from any grant of the foreshore, if there is dituvion the movement of the foreshore appears to divest the frontager of some of his land; for what was dry land becomes part of the new foreshore, and so belongs to the owner of the foreshore, usually the Crown: see In re Hall and Selby Railway (1839) SM & W 327, 333; [1839] EngR 133; 151 ER 139, 141."
56. In Southern Centre of Theosophy Inc v State of South Australia [1982] AC 706 at p.716, ,Lord Wilberforce in delivering the judgment of the Privy Council said:
"[Their] Lordships find it advisable to consider briefly the doctrine of accretion. This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible... the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantiable and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner’s land is taken is taken from him by erosion, or diluvion (that is, advance of the water) it would be most inconvenient to regard the boundary as extending into the water; the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner’s title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years....
"The authorities have given recognition to this principle. They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified."
57. As part of the applicant’s land which adjoins the land in dispute as shown in plan 6891 appears to have been recently reclaimed and a building constructed on it, I will refer briefly to the law on the effect of a reclamation on the doctrine of accretion and erosion. In Land Law in New Zealand (2004) vol 2, 22.010 at p.880, the learned authors state:
"Although it has been said that ‘accretion should be natural’ it is now recognised that in certain circumstances the doctrine of accretion may apply to physical charges to land caused by human action.
"It is clear that a landowner is not entitled to accretions brought about by works carried out for the purpose of reclaiming land. The general law of accretion does, however, apply to a gradual and imperceptible accretion to land brought about unintentionally by work carried out by the landowner, such as groynes or other artificial structures erected for the purpose of protecting the land from erosion."
(b) Application of relevant law
58. If it is assumed that the land shown in plan 6981 is part of the land described in Court Grant 909 and that it was covered by the sea, as it is now, at the time Court Grant 909 was issued on 14 April 1897, then irrespective of whatever was the law in Samoa during the times of the German administration, the land shown in plan 6981 must have become Grown land under the provisions of ss. 268 and 276 of the Samoa Act 1921. This is because s.268 classified all land in Samoa at that time as Crown land, European land or Native land and s.276 declared the foreshore (i.e. all land lying between high and low – water mark) and all tidal lands and waters within the limits of the Territory to be Grown land vested in His Majesty.
59. Once it is accepted, as it ought to be, that the Samoa Act 1921 applied to the land that is now shown in plan 6981, then on the assumption that the said land was at the time of the Samoa Act 1921 covered by the sea, as it is now, that land would be Crown land by virtue of s.276 of the Act. The only provision in the Act which relates to the payment of compensation for the taking of land is s.271. But s.271 provides for the payment of compensation only for land taken for a public purpose. However, it cannot, in my view, be said that the declaration by s.276 of the foreshore and all tidal lands and waters within the limits of the Territory was tantamount to the taking of such lands for a public purpose. That would not be an appropriate interpretation to be attributed to the words "land taken for a public purpose" in this context. The compensation provisions of s.271 which applied to land taken for a public purpose could not, therefore, have applied to land declared to be Crown land under s.276. No evidence was also adduced to show that compensation was ever paid for land declared to be Crown land under s.276.
60. Furthermore, on the assumption that the land shown in plan 6981 was covered by the sea, as it is now, at the time of the Samoa Act 1921, that land must have become Grown land in terms of s.276 of the Act. In terms of Article 123(2) of the Constitution, land which immediately before Independence Day is Crown land, becomes public land under the Constitution. It follows that the land shown in plan 6981, at least insofar as it is covered by sea water at all times during high and low tides, would be public land.
61. Moreover, as the land in plan 6981 would be Crown land under the Samoa Act 1921 prior to the coming into force of the Constitution, and becomes public land under the Constitution, no compensation needs to be paid pursuant to Article 14 of the Constitution. The reasons are these. The land was already Crown land vested in His Majesty immediately prior to Independence Day and to the coming into force of the Constitution. The land became public land vested in the State on Independence Day. The State could not, therefore, have compulsorily taken possession of the land, in terms of Article 14, from itself. It already has ownership and possession of the land. Secondly, if compensation is to be paid, then that would be tantamount to the State paying compensation to itself because the land already belongs to the State. This would not make sense.
62. Article 114 of the Constitution preserves all rights, obligations and liabilities arising under the existing law which is the law in force in Samoa immediately before Independence Day. The existing law would, therefore, include the Samoa Act 1921 insofar as that Act was in force in Samoa immediately before Independence Day.
63. If the applicant has any right to the land in dispute, that right must only have come into existence recently (only a few years ago after Independence Day) when the land in dispute is alleged to have been conveyed to her by the Public Trustee. She had no right to the land under the Samoa Act 1921 or to be paid any compensation if the said land had become Crown land under s.276 of the Act. So the applicant has no right to compensation preserved in terms of Article 114.
64. Likewise, the State would have no obligation or liability to pay compensation to the applicant in terms of Article 114. That is because, if the said land was Crown land under s.276 of the Samoa Act 1921, then the Crown was only required in terms of s.271 of the Act to pay compensation for land taken for a public purpose. The declaration of the foreshore, tidal lands and waters within the limits of the Territory to be Crown land cannot be construed as taking land for a public purpose. But even if it is assumed for the sake of argument that compensation should have been paid under s.271, such compensation should have been paid to the owner of the land from whom it was taken for a public purpose, who would have been Thomas Trood.
65. If, however, it is assumed that the land shown in plan 6981 is part of the land described in Court Grant 909 and it was dry land when Court Grant 909 was issued on 14 April 1897, then at some time after that date, the land became covered by the sea. I must say that where the land in dispute is located is well known to many members of the public because it is within the Apia area and is located behind the Mulinu’u peninsula close to Parliament.
66. In the absence of any evidence, historical otherwise, to show that there had been any sudden change to the configuration of the land or the sea where the said land is located, one would have to assume that if the said land was once dry land in 1897, then it must have become submerged under tidal waters due to erosion by the sea over a period of time. If such erosion did occur, then it must have occurred before Independence Day while the Samoa Act 1921 was still in force.
67. Under the Samoa Act 1921, when the land was covered by the sea it must have become Crown land. Alternatively, if the erosion of the said land by the sea was gradual and imperceptible, as one would think in the absence of any evidence to the contrary, then the said land had again become Crown land under the common law doctrine of accretion and erosion.
68. Whichever way one looks at the said land, the fact remains that all of it is under water level at high tide and only a very small part of it is exposed at low tide as soft wet mud flats.
69. Counsel for the applicant requested the Court to declare the land shown in plan 6981 to be public land. I would have made such a declaration if there had been a proper motion for such declaration and the landward boundary of the sea was clearly identified by proper survey. I would like to know where the line of high – water mark is because all land lying below that line is public land.
Is the land shown in plan 6981 part of the applicant’s land
70. As already explained there are two rival contentions. The registrar is of the opinion that the land shown on plan 6981 is not part of the land described in Court Grant 909 and, therefore, it is not part of the land which the applicant claims to belong to her. The applicant, on the other hand, claims that the land shown in plan 6981 is the balance of the land described in Court Grant 909 and therefore belongs to her.
71. Because the land in plan 6981 is part of the sea, it is public land and therefore does not belong to the applicant. It would be immaterial whether it is part of the land described in Court Grant 909 or not. The land was Crown land by virtue of s.276 of the Samoa Act 1921 and/or the common law doctrine of accretion and erosion. It subsequently became public land by virtue of the provisions of the Constitution. This should resolve the dispute between the registrar and the applicant. The only other issue is compensation raised by the applicant in terms of Article 14 of the Constitution which provides that no property shall be taken of compulsorily without adequate compensation. I have already dealt with this issue in relation to the said land.
72. As much of the evidence from both parties and the submissions from both counsel were directed to the question of whether the land in plan 6981 is part of the land described in Court Grant 909, I will now turn to that question.
73. The decision of the registrar to decline approval of plan 6981 is based on the advice of government surveyors and the present principal survey draftsperson employed in the Ministry of Natural Resources, Environment and Meteorology, formerly called the Department of Lands, Survey and Environment. The advice received by the registrar, who is also the chief executive officer of the Ministry, is based on the plans in the custody of the Ministry.
74. In 1904, a Flur Plan IV was prepared by the government surveyor at the time and it depicts the boundaries of Court Grant 909 and the adjoining lands. Flur Plan IV makes a division of the land contained in Court Grant 909 into parcels 42, 53, 54 and 97/92. Flur Plan IV was registered on 16 November 1904 as Grunsbuck Baus 1 Blatt 106 and was transferred to the land register volume I folio 24 on 10 August 1921 when New Zealand took over the administration of Samoa.
75. Since 1904, about five different survey plans have been prepared over the years on the basis of Flur Plan IV by various surveyors and approved by the then registrars. On the basis of those survey plans, the registrar arrived at the conclusion that the total area of the land described in Court Grant 909 is 79a. 2r. 23.6p and not 112a. 0r. 26.3p as contended for by the applicant.
76. The registrar declined approval of survey plan 6981 prepared from the survey conducted by the surveyors of the surveying firm engaged by the applicant. It is on the basis of that survey and plan 6981 that it is contended for the applicant that the total area of the land described in Court Grant 909 is approximately 112 acres and that the land shown in plan 6981 is the balance of the land in Court Grant 909 still to be conveyed to the applicant.
78. Plan 6981 and the survey from which it was drawn up, are based on the areas and land descriptions contained in the three land claims filed by Thomas Trood with the then Land Commission on 21 September 1891. As mentioned earlier, the areas shown in those land claims are only approximate areas and the bymarks and boundaries mentioned in the land claims cannot be proper survey marks or boundaries. It is highly likely that the bymarks, or some of them, do not exist today. It was said for the applicant that those boundaries were based on drawings prepared by sailors at the time but no evidence of such drawings was produced. I have already referred to those boundaries and bymarks and the evidence in support of the contention by the applicant.
79. With respect, I find the evidence given in support of the registrar’s contention that the land shown in plan 6981 is not part of the land described in Court Grant 909 to be of better quality and more confidence inspiring than the evidence given in support of the applicant’s contention that the land shown in plan 6981 is part of the land described in Court Grant 909. This case shows that even surveyors can disagree on their findings, something which is not uncommon amongst professionals.
Unreasonableness
80. Even though the applicant’s motion for judicial review is based on all three grounds of illegality, irrationality and procedural impropriety as explained by Lord Diplock in Council of Service Unions v Minister for the Council Services [1985] AC 374 at pp.410-411 and adopted by this Court in Keil v Land Board et al [2000] WSSC 41, it is clear from the written submissions of counsel for the applicant that the real ground relied upon is irrationality or Wednesbury unreasonableness as it is often called.
82. This ground of review of irrationality or Wednesbury unreasonableness is explained in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph where the learned author says at p.832:
"Wednesbury unreasonableness equates with senselessness. Lord Diplock said a decision is irrational if it is ‘so outrageous in its ‘defiance of logic or of accepted moral standards that no sensible ‘person who had applied his mind to the question to be decided could have arrived at it.’ A plaintiff had to show ‘something overwhelming’. In local authority rating cases, the Court of Appeal has adopted the full range of expressions for Wednesbury unreasonableness: ‘outside the limits of reason’, ‘so outrageous in its defiance of logic or of accepted moral standards’, ‘a pattern of perversity’ and ‘so absurd that he must have taken leave of his senses.’ For the House of Lords, Lord Diplock’s requirement of senselessness was a fundamental limitation on the power of judicial review.
The Courts typically employ Wednesbury principles when reviewing the decisions of government, Ministers, elected councils or commercial organisations, or where the impugned decision is pre-eminently about policy or involves political or subjective evaluation."
83. In Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 5.37 (CA) at p.545, Richardson P stated the principle of irrationality or Wednesbury unreasonableness in these words:
"[If] the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused."
84. As already explained, the decision by the registrar to decline approval of the applicant’s plan 6981 is based on two reasons; the first is that the land shown on plan 6981 is not part of the land that belonged to the applicant, and the second is that the said land is public land which is vested in the State.
85. The first reason given by the registrar for his decision is based on Flur Plan IV prepared by the government surveyor at the time and on the survey plans subsequently prepared by various surveyors over the years on the basis of Flur Plan IV and approved by the then registrars. This is not the case of where there is no foundation whatsoever for the reason given by the registrar. There is ample evidence upon which the reason given by the registrar is founded. The registrar was also not satisfied with the manner in which the survey on which plan 6981 is based was carried out by the applicant’s surveyors. Having reviewed and considered the evidence, I do not blame the registrar for the view that he took. The material used on behalf of the applicant to assess and calculate the area of the land described in Court Grant 909 is also not quality material.
86. As for the second reason given by the registrar for his decision, there is clear evidence to justify in law the registrar’s view that the land shown on plan 6981 is part of the sea and is, therefore, public land.
87. It follows that the decision by the registrar to decline approval of plan 6981 cannot be described as "so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it". Nor can it be said that the decision by the registrar is "outside the limits of reason", or "a pattern of perversity", or "one that no reasonable registrar could have arrived at", or is "so absurd that the registrar must have taken leave of his senses."
88. This ground of the applicant’s motion for judicial review is also dismissed.
Varying threshold and intensity of judicial review
89. Perhaps I should mention here that the threshold for review on the ground of irrationality or unreasonableness and the intensity of the review on that ground may vary depending on the type of case at hand. This is illustrated in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph where the learned author states at p.181 under the heading of irrationality:
"The Courts how emphasized two features of judicial review: it’s varying intensity and its contextual trappings. They have adopted differing standards of review, depending upon the totality of factors at hand (‘the ingredients of the problem at hand dominate’).
The learned author then mentions decisions of elected councils where the strict Wednesbury standard of unreasonableness is applied, and human or civil rights matters where the lesser standard of substantive unfairness and the American methodology of "hard look" review have been applied.
90. Examples of substantive unfairness are given by the learned author at p.840 where he says:
"The Courts have held that a decision may be substantively unfair where a decision-maker, without notice, departs from the criteria and/or weighting it has said it will apply. A decision may also be substantively unfair where the decision-maker imposes a disproportionate sanction, fails to weigh positive factors in favour of a plaintiff against other adverse ones, gives to a relevant factor of no great importance an unreasonable weighting, or fails to point to evidence in support of an unreasonable finding."
91. It would appear from the passage just cited that review on the ground of substantive unfairness would come very close to reviewing
the quality or merits of a decision.
92. In Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 646, Cooke P said at p.652:
"As to substantive unfairness, there is no lack of authority that this is a legitimate ground of judicial review, shading into but not identical with unreasonableness."
However, Fisher J, the other member of the Court, said at p.654:
"But on each occasion that the expression ‘substantive unfairness’ is applied to a case it will continue to be necessary to identify a more specific and principled administrative law basis for intervention. Otherwise, as I think this case illustrates, the distinction between judicial review and appeals on the merits will become dangerously blurred."
93. It is not necessary for me to express a view in this case on whether substantive unfairness should be accepted as a separate ground for judicial review in Samoa, or whether it should be considered, where appropriate, as part of one of the established grounds for review. Suffice to say that I have taken the liberty to consider the registrar’s decision in this case on the basis of whether or not it is substantively unfair and have come to the conclusion that it is not.
Procedural impropriety
94. The previous principal survey draftsperson had signed plan 6981 as "correct" and the registrar must have acted on the basis of that certification and approved the plan. However, it turned out that the plan is not "correct" for the reasons given by the registrar and there is nothing procedurally improper about those reasons or how the registrar arrived at them. It would have been improper and irresponsible of the registrar to allow the approval he had given to remain after he found out that plan 6981 is not correct, particularly due to the fact that the land it shows is part of the sea which is public land.
95. This ground of the applicant’s motion for judicial review is also dismissed.
Conclusion
96 For the foregoing reasons, the applicant’s motion for judicial review is dismissed. Counsel to file memorandum as to costs in 10 days.
CHIEF JUSTICE
Solicitors
Fepuleai & Roma Law Office for applicant
Attorney-General’s Office for respondent
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