Teori Tau v Commonwealth (1969) 119 CLR 564; 44 ALJR 25; [1971] ALR 190 [22/1969]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Barwick CJ, McTiernan J, Kitto J, Menzies J, Windeyer J, Owen J, Walsh J
• Judgment Date: 09 December 1969
• Citation: [1971] ALR 190 [22/1969]
• Year: 1969

High Court: Barwick CJ, McTiernan J, Kitto J, Menzies J, Windeyer J, Owen J, Walsh J

Judgment Delivered: 9 December 1969

1 Constitutional Law (Cth)—Territories—Acquisition of property—Whether just terms required—The Constitution (63 & 64 Vict c12), s51(xxxi), s122.

2

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PRIOR–HISTORY: CASE STATED under O35 rule 2 of the Rules of the High Court. Teori Tau sued the Commonwealth of Australia, the Administration of the Territory of Papua and New Guinea and Bougainville Copper Pty Limited in the High Court claiming a declaration that s157 of the Mining Act 1922 of the Territory of New Guinea was invalid; a declaration that in so far as s157 of the said Act purported to vest in the Crown the minerals (other than gold and silver) within certain lands to which the plaintiff suing on behalf of a kinship group of aboriginal natives claimed to be entitled it was beyond the powers of the Governor–General of the Commonwealth of Australia and of no effect; a declaration that s191 of the Mining Act 1928 of the Territory of New Guinea was invalid; a declaration that in so far as s191 of the said Act purported to vest in the Administration the minerals (other than gold and silver) within the said lands it was beyond the powers of the Governor–General and of no effect; a declaration that s191 of the Mining Act 1928–1966 of the Territory of Papua and New Guinea was invalid; a declaration that in so far as s191 of the said Act purported to vest in the Administration the minerals (other than gold and silver) within the said lands it was beyond the powers of the House of Assembly of the Territory and of no effect; a declaration that all the minerals (other than gold and silver) within the said lands were the property of the owners of the said lands; an injunction restraining the defendant company by itself its servants or agents from extracting or removing any minerals (other than gold and silver) from the said lands; an order that for all purposes of the action the plaintiff represent all the members of the kinship group at Pakia Village in the Kieta Subdistrict of the Bougainville District of the Territory of Papua and New Guinea descended from the earliest known ancestor Kinto; and such other orders as to the Court should seem appropriate.

On 26th November 1969 by consent of the parties Barwick CJ stated a special case raising a question of law for the Full Court, pursuant to O35, r2 of the Rules of the High Court, which was in substance as follows: "1. This action was commenced on 12th November 1969 by writ of summons issued out of the principal registry of the High Court. 2. The plaintiff is indigenous to the Territory of New Guinea and resides at Pakia Village in the Kieta Subdistrict of the Bougainville District of the said Territory. He alleges in his statement of claim that he is a member and the customary head of a kinship group of aboriginal natives descended from an earliest known ancestor named Kinto and he claims to sue on behalf of himself and the other members of the said kinship group. 3. The plaintiff further alleges that the said kinship group is and has been from time immemorial the owner in accordance with native custom of a certain piece of land in the Bougainville District of the said Territory known as Mariunau which is delineated in a plan annexed to decision No. 1969/326 of the Land Titles Commission of the said Territory dated 26th August 1969. 4. There are and have been at all material times within the lands referred to in par. 3 valuable quantities of copper and other minerals. 5. The plaintiff alleges that by an ordinance made by the Governor–General of the Commonwealth under the New Guinea Act 1920 (Cth) the Commonwealth purported to acquire the minerals within, inter alia, the lands referred to in par. 3 without providing just terms. 6. The plaintiff also alleges that by ordinances made by the Deputy of the Governor–General of the Commonwealth and by the House of Assembly for the Territory of Papua and New Guinea made respectively under the New Guinea Act 1920–1926 (Cth) and under the Papua and New Guinea Act 1949–1964 (Cth) the Administration purported to acquire the minerals within, inter alia, the lands referred to in par. 3 without providing just terms. 7. In this action the plaintiff attacks the said purported acquisitions by the Commonwealth and by the Administration on the ground that the said ordinances conflict with s51 (xxxi.) of the Constitution of the Commonwealth and that the Parliament of the Commonwealth had no other power to authorise the said acquisitions without providing just terms therefor. 8. The defendant Bougainville Copper Pty Limited is a company incorporated in the said Territory. On 31st March 1969 a special mining lease was granted to the said defendant pursuant to s49B of the Mining Act 1928–1966 and to the Mining (Bougainville Copper Agreement) Act 1967 over certain lands which include the lands referred to in par. 3 hereof. The plaintiff alleges that the said defendant has entered into possession of the said lands and that it threatens to extract and remove copper and other minerals therefrom without the consent of the owners thereof. 9. It has appeared to me that it would be convenient to have the following question of law which arises in the proceedings decided before any evidence is given or any question or issue of fact is tried, viz. whether an ordinance of the Territory of New Guinea (a) made pursuant to the New Guinea Act 1920; (b) made pursuant to the New Guinea Act 1920–1926, or (c) made pursuant to the Papua and New Guinea Act 1949–1964, providing for a compulsory acquisition of property, is invalid if it fails to provide just terms for such acquisition.

Accordingly, I have given directions that the said question be raised for the decision of the Full Court by this special case."

J.McI. Young QC (with him J.D. Merralls), for the plaintiff. The Territory of New Guinea was formerly a German colony, but the view that the New Guinea Act 1920 (Cth) was...