Tolain, Topalau, Tomaret, Michael Towarunga and Other Villagers of Latlat Village v The Administration of the Territory of Papua and New Guinea (In Re Vulcan Land) [1965–66] PNGLR 232

• Jurisdiction: Papua New Guinea
• Judge: Minogue J
• Judgment Date: 05 May 1966
• Court: Supreme Court
• Citation: [1965–66] PNGLR 232
• Year: 1966
• Judgement Number: No383

Full Title: Tolain, Topalau, Tomaret, Michael Towarunga and Other Villagers of Latlat Village v The Administration of the Territory of Papua and New Guinea (In Re Vulcan Land) [1965–66] PNGLR 232

Supreme Court: Minogue J

Judgment Delivered: 5 May 1966

1 Land titles—East New Britain Province; Fishing rights

2 Administration owner of volcanic land which rose from Simpson Harbour in 1937; natives had owned reefs, waters; Administration legally claimed the emerged land before native occupation

REAL PROPERTY—Ownership of newly emerged volcanic land—Appeal from the Commissioner of Titles—New Guinea Land Titles Restoration Act 1951–1955—Entitlement to registration.

The appellants claimed to be the owners by native custom of land known as "Vulcan", which had originally been part of the sea bed in a harbour on New Britain. A few years before the colonisation of New Britain by Germany part of "Vulcan" arose as an island in the course of a volcanic eruption and in 1894 was entered in the German ground book as the property of the New Guinea Company, being subsequently transferred to the Fiscus. Under the Laws Repeal and Adopting Act 1921 the Administration succeeded the Fiscus in its land holdings and in 1931 the Registrar of Titles published notice in the Government Gazette of his intention to bring Vulcan Island under the provisions of the Lands Registration Act 1924.

On the 28 May 1937, a further volcanic eruption occurred as a result of which the sea bed between Vulcan Island and the harbour shoreline rose above high water mark so that the island became part of the mainland. The original island and the newly emerged land formed the subject of this appeal. Prior to the 1937 eruption the appellants had fished and collected coral and shell fish to the exclusion of all others over the shallow reef separating Vulcan Island from the mainland.

On the 15 November 1937, the Administrator of New Guinea published in the Government Gazette a proclamation dated 9 November 1937, under s11 of the Land Act 1922–1937 declaring that the newly emerged land appeared to have no owner and would, unless good cause to the contrary was shown before 15 February 1938, become Administration land.

At about this time members of the appellants' clans commenced to occupy the newly emerged land and planted crops and trees thereon. In February, 1942, the Japanese occupied the area in question and native occupancy ceased until the end of hostilities, when it was gradually resumed to a point where, at the time of the hearing of the appeal, considerable portions of Vulcan were occupied by the appellants and members of their vunatarais.

During the Japanese occupation the register book kept under the Lands Registration Act and the German ground book were lost or destroyed. On the 1 May 1956, the Administration lodged a claim to Vulcan under the provisions of the New Guinea Land Titles Restoration Act 1951–1955. On the 9 June 1959, the Director of Native Affairs referred to the Commissioner of Titles under that Act the question of native customary rights claimed by the appellants over all of Vulcan with the exception of the former Vulcan Island, ie, the whole of the land which emerged in 1937. The Commissioner of Titles made a final order on the 27th October, 1959, declaring that part of Vulcan was vested in the Administration as absolute owner and part was vested for an estate in fee simple in the Director of Native Affairs as trustee for natives on certain trusts set out in the order. From that order the appellants appealed claiming the whole of Vulcan as theirs by customary right and in the course of the appeal the Administration sought a variation of the order to have the whole of Vulcan vested in it as absolute owner.

Held:

(1) The Commissioner had no jurisdiction to make an order in favour of the Director of Native Affairs where the Director had made no claim under the New Guinea Land Titles Restoration Act and had no interest in the land at the appointed date under that Act.

(2) On a balance of probabilities the Administration had, before the destruction of the registers, become the registered owner of the original Vulcan Island but no registered title had issued in respect of the land which had emerged from the sea in 1937.

(3) The Commissioner had jurisdiction to make an order in favour of the Administration conferring registration under the Lands Registration Act in a case where there had been no registered estate before the appointed date. (Dicta of the High Court in Custodian of Expropriated Property v Tedep (1964) 38 ALJR 344, considered.)

(4) The Commissioner and the Supreme Court were entitled to enquire into the validity of the proclamation made in 1937 under s11 of the Land Act 1922–1937. (Criterion Theatres Ltd v Municipal Council of Sydney (1925) 35 CLR 555; Motor Wheel and Tyre Co Ltd v Commissioner for Railways and Another (1950) 50 SR (NSW) 205; Blakeley and Co Pty. v The Commonwealth (1953) 87 CLR 501; and Jones v The Commonwealth (1963) 109 CLR 475, distinguished. Baiada v Baulkham Hills Shire Council and Another (1951) 83 CLR 344; and Howarth v McMahon (1951) 82 CLR 442, considered.)

(5) The concept of land ownership in the Territory is different from the English concept and the word "owner" must be interpreted in the light of the conditions existing in the Territory to mean the person or group of persons or the community, which according to the area and custom concerned has the right to use the land and exclude others therefrom. (Amodu Tijani v The Secretary Southern Nigeria [1921] AC 399; and Adeyinka Oyekan and Others v Musendiku Adele [1957] 1 WLR 876, referred to.)

(6) The appellants' vunatarais made full use of the reef area between Vulcan Island and the mainland before the 1937 eruption for coral collecting and fishing and for all practical purposes "owned" the reefs and the intervening area between high water mark and the reefs, but by native custom the concept of ownership did not go beyond the right to use this area for such purposes as the community could then envisage. There was no custom existing prior to the 1937 eruption which covered or even envisaged the situation where land suddenly emerged from the sea. (Eleko v Officer Administering Government of Nigeria [1931] AC 662; and Angu v Attah (1916) PCJ 1874–1928 43, referred to.)

(7) Although by custom the newly emerged land would on occupation belong to the vunatarais of the occupiers, there had been no settlement or occupation of the newly emerged land at the date of the proclamation under s11 of the Land Act 1922–1937. The Administration was therefore justified in regarding the new land at that time as being apparently without an owner and the proclamation was therefore properly made.

(8) There had not been any settlement or occupation of the newly emerged land prior to the 15th February, 1938, so since that date the newly emerged land had been Administration land and the Administration was therefore entitled to an interest therein at the appointed date.

(9) Although the Commissioner might not have formed the opinion required by s67(3) of the New Guinea Land Titles Restoration Act as the appeal was by way of rehearing and in view of the powers conferred by s56 the court was required to place itself in the position of the Commissioner and form its own opinion under s67(3). (R v Connell (1944) 69 CLR 407, referred to.)

(10) Although it appeared to have been the practice of the pre–war Registrar of Titles to publish in the Government Gazette notice of his intention to bring land proclaimed under s11 of the Land Act under the provisions of the Lands Registration Act and of the pre–war Director of Native Affairs to publish a notice in the Government Gazette calling for claims prior to registration under the Lands Registration Act, this procedure was not prescribed in relation to Administration land within s42(2) of the Lands Registration Act, and had the prescribed procedure been carried out the evidence of title should have been sufficient to satisfy the Registrar under that section that the Administration was entitled to be registered under the Lands Registration Act in respect of its interest in the whole of Vulcan.

(11) The Administration was therefore entitled to be registered in respect of its interest by virtue of s67(3) of the New Guinea Land Titles Restoration Act and a final order should therefore be made in favour of the Administration for the whole of Vulcan.

Appeal from Commissioner of Land Titles.

The facts appear sufficiently from the judgment.

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Minogue J: This is an appeal brought pursuant to s54 of the New Guinea Land Titles Restoration Act 1951–1955 (hereafter called the "Restoration Act") against a final order made under that Act by the Commissioner of Titles in respect of an area of land in the Gazelle...