Agevu and Others v Papua New Guinea

• Jurisdiction: Papua New Guinea
• Court: Obsolete Court (Papua New Guinea)
• Date: 30 March 1977

Papua New Guinea, National Court of Justice.

(O'Meally A.J.)

Agevu and Others

and

Government of Papua New Guinea

STATE TERRITORY

State territory In general Acquisition of territorial sovereignty Occupation Discovery Discovery and occupation by subjects of sovereign Proclamation of annexation Effects Whether sovereign acquires title Waste and vacant land Effect of Proclamation thereon Whether title vests in sovereign Act of State Whether challengeable in court The law of Papua New Guinea

Summary: The facts:In 1884 the south coast of New Guinea was proclaimed a British protectorate. By a proclamation of 1888 the protectorate became a British colony. The instructions given to the Administration of British New Guinea laid down a procedure to be followed by the Administration before disposing of vacant or waste land belonging to the British Crown. A question arose as to whether any authority was vested in the Administration before 1890 to take possession on behalf of the British Crown of waste and vacant land in the territory concerned.

Held:A sovereign acquired a title to land through discovery by his subjects. The proclamation of 1888 was an act of State which could not be challenged in a court. Upon such proclamation being issued all land became Crown land and the Administration had the authority to take possession of the waste and vacant land on behalf of the Crown.

The text of the judgment of the Court commences on the following page.

This is a case stated under s. 32 of the Land Titles Commission Act.

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 The appearance of Madhaha Resena on behalf of this clan was withdrawn.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.

Two questions are asked in the case stated. They are:

• 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.

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.(1). The principle was clearly expressed by Isaacs J. in Williams v. Attorney-General for New South Wales(2) 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...