Ng Challenge

[?] Land Titles

Is Upheld

lecision by the Chief Justice pua and New Guinea or 17, that one-third of thd acres which comprise

in” plantation, in New!

n, belongs to the Tolail s, and not to the European 1 sts to which it was sold by \

epropriation authorities after 1

I War I, could have a far- ( ng and disturbing effect. 1 AILS of the issues involved ere reported in PIM June, They revolved around the fact inch land whose titles were re in the German Groundbook Australia took over New i in 1914 was later brought the British form of registration on the Torrens system, after gations into any native claims The Varzin plantation was one se. i expected that there will be an to the High Court of Australia.

Dly, whatever challenge arises }t be directed against the justice claims made by the Tolais, but t the interpretation of the laws by Australia to govern the issue laintenance of land titles, vas stated after World War I, an authority was set up by ilia to “expropriate” the German ties in New Guinea, that the issued to the post-war buyers, extensive inquiries into all the istances, and especially into claims, would be based on the as system. it was then understood to mean here could be no investigation ims to that land extending back d the date when the title finally issued. All subsequent trans s involving land titles were on the assumption that the vas Torrens, laws made subsequent to the of the titles apparently were )scure in meaning that it has ae possible for the Public tor in Port Moresby, acting on f of the Tolais, to go back to the i prior to the issue of the titles, examine claims made by the ;s based on circumstances at 60 years old. e Chief Justice accepted this

The following are the sections of his judgment which explain his de cision : “There are two views of the actual effect that a Torrens system title might have.

“It may be thought that registration actually destroys an inconsistent in terest in land, at the same time as creating a new statutory interest in the land itself; in other words, it is a statute dealing with the land as land and with interests in land directly as property.

“The other possible view is that it deals with the matter at an evi dentiary and procedural level. It arms the registered proprietor with con clusive evidence that he has a clear title, and production of this evidence excludes the possibility of a contrary case being made out by anybody.

Access to the court by persons wish ing to make contrary claims is blocked by prohibition against pro ceedings.

“On the assumption that the titles will forever remain on the Register, this has the practical effect of con ferring a permanent paramount title, but it does not otherwise expressly destroy competing interests; it merely renders them harmless.

Protection of Land “I think that the latter view is the better one, particularly in the light of the continued policy of protection of native land interests which is again in the latest of these ordinances ap parently erected as a condition to the restoration of the title.

“I think that the ordinance pro ceeds upon a recognition of the view that the essence of the Torrens system title as established in the Territory is the existence of a statutory piece of paper; that paper and that paper alone must be produced.

“Machinery provisions may provide for replacement of lost individual documents, but where the whole foundation of the statutory concept of title is destroyed by the destruction of the Register itself, it seems to me that the legislature has acted upon the view that the statutory legal title process of restoration of titles is no mere matter calling for secondary evidence of what was recorded on that piece of statutory paper, but was regarded as recreating a new statutory right to replace the former right and to owe its validity to the Restoration Ordinance. . .

“On no other view, in my opinion, could the machinery provisions of \the New Guinea Land Titles Restora tion Ordinance be explained.

“My conclusion on this phase ot the case, therefore, is that when the Register was destroyed during the

ic Custodian’s position was that could produce part of the 1 Statutory Register, that is a te original Certificate of Title, e was not lost and he had a right to go on to the new r. if he failed to produce any of per carrying the essence of the ry title, then his former title ast, and he could only be d restoration of that interest if luld be done consistently with ad justice, and after inquiry lative interests. fact, the Custodian was in a n to produce quite reliable :e of the precise state of his r title. His original files are and carry examined copies of ential documents, vertheless, the documents which ustodian is in a position to ;e today are not the documents ;d by the ordinance as afford im an unqualified right to tion. :ordingly, my conclusion is that ustodian has a good right, as appointed day, to apply for lion, but that his right can only I after inquiry and ascertain- Df the interests of natives, such been carried out in the present th the competing interests now shed it becomes a question of ig between them according to inciple indicated in the Land Restoration Ordinance. I think le only guidance is that the de is to be according to law and zin plantation has an unusual r. Land for a plantation in the area was granted originally by erman Administration to a man I Wolffe. Some time after the vas isued, Wolffe had a dis with the natives about the m of his boundaries. He re to negotiate further—he claimed latter had been settled. ; morning in 1902, while Wolffe bsent, the Paraparatoma natives, ut warning, descended upon j’s bungalow, murdered his wife heir infant child, and a native and gravely wounded Miss na Coe, a niece of Mrs. Kolbe ;en Emma”), who afterwards sd German Government Secre- Schultze.

:hin hours, a quickly-organised

of police and settlers made a ive attack upon the natives, and i number of them. The German nistration, after a judicial m , decided to punish the natives compensate Wolffe by taking

certain land (about 400 acres) from them and adding it to “Varzin”.

It is this second area of land which Chief Justice Mann, after hear ing native evidence, says was unjustly taken from the natives.

If his judgment stands, the Com monwealth Government (which is, in the final analysis, responsible for the Expropriation authority) must com pensate either the original native owners, or the Varzin owners who bought it in good faith under .the Expropriation title issued about 40 years ago.

Two interesting developments can now follow: If the Mann judgment is upset on appeal, thus establishing the Torrens principle in relation to these titles, there probably will be a mighty howling through UN agencies, which lose no chance of insisting that the native people are being exploited.

If the Mann judgment is upheld, then many of the land titles issued in New Guinea could be open to challenge in some shape or form; and the effect upon the Territory’s

(Cont. p. 23, column 3)

financial and economic structure could be serious.

Parties interested have until mid- August in which to lodge an appeal to the Australian High Court. A High Court decision could also bring about an appeal to the Privy Council, and all these procedings, if not ended by some remedial action by the Aus tralian Government, could occupy years. Meanwhile, financial institu tions generally may be reluctant to lend money on New Guinea land titles.