Cry "Insecurity"

Public Servants Cry "Insecurity"

From a Port Moresby Corresponde:

Plans for a comprehensh compensation scheme for Eun pean public servants who loi their jobs as PNG moves u wards independence do m look like stopping the rot whic is developing at administrate headquarters in Konedobu.

ALL that the rank-and-file pu ** servants talk about now is w they expect to finish their time return to Australia. Resignat have been increasing and the fee of insecurity is worse now thai was at the last big “low”, two y« ago. Probably the only real w being done is on the out-station; The compensation scheme is yet accepted. It has merely 1: submitted to Canberra by the P- Public Service Association, which asked that Cabinet discuss it. A: ciation president, Mr. John Smith, said the compensation sche was urgently required to stop re nations by those who felt they ] better go while the going was gooc He said a scheme was not re; a matter of justice for the offk but urgent practical politics. A tralia could only retain experien government officers in the Territ by making it worth their while stay.

The association wants the sche to come into effect from Januarj for expatriate employees who are placed by New Guineans or rel because of constitutional change the Territory. In its general appli t;on it is designed to allow all p manent officers to retire at the ti of independence or when Austra gives up control of the P-NG Pub Service, The proposed scheme covers those who have been extended sup annuation and are below the age 55. The amount of compensation to be calculated in a lump sum ‘ a similar way to that instituted the British Government in resp« of many of its Territories which ha achieved independence”.

An officer shall also be entitled removal expenses; a “disturban grant” of a quarter of his annu salary; and three months retireme leave. All moneys are to be tax fr«

A BOUT this time, 1958, a group of local Tolai natives claimed that he land had never been legally alien ted by them or their ancestors, •ortion of it had been illegally sold iy one native and the rest of it had een illegally confiscated by the Im >erial German Government about 903, when New Guinea was held >y the Germans.

The Tolai claim was dismissed by he Titles Commissioner, but in 962-3 the Tolais appealed to the >-NG Supreme Court, claiming that inder the Restoration Ordinance they yere the owners of the land by irtue of native custom. Their appeal >artly succeeded, for they obtained n order from the P-NG Chief ustice, Sir Alan Mann, to the effect hat a substantial portion of the /arzin land was native-owned.

The High Court hearing was an ippeal against the Supreme Court’s lecision. The High Court allowed

the appeal and thus the decision of the Titles Commissioner stands.

The legal argument before the Full Bench of the High Court —which lasted for three days in early No vember, with three QC’s taking part —centred around whether the original German titles to the Varzin land were valid; whether the Aus tralian titles were valid after World War I; and whether the loss of the register and the duplicate title dur ing the war enabled the titles to re main valid.

NG 'Commercial Unrest 7 Mr. D. L. Mahoney, QC, and Mr.

A. B. Kerrigan, QC (for Mrs.

Richards and the Custodian of Ex propriated Property) held that the Australian titles were legal, and even though the certificate was lost it was indefeasible because nobody had at tached any claims to it at the time of its existence.

Mr. Kerrigan commented that Mr.

Justice Mann’s decision for the native claimants had been a “contributing factor to a certain amount of com mercial unrest that has occurred in New Guinea, as they seem to think the pronouncement has thrown doubt on the validity of titles.”

Mr, John Kerr, QC (for the Director of Native Affairs and the native claimants) held that since the certificate and register were destroyed the matter of the original titles could be opened up.

Under the UN Trusteeship agree ment there was an obligation on P-NG to safeguard native interests and to take into consideration their customs and usages. The native rights should have been looked at after the “dramatic destruction” of the documents.

Mr Justice Taylor: Not only the native rights.

Mr Kerr: Not only the native rights. If you are going to do that

you should look at the whole problem.

Mr Kerr submitted that in New Guinea the Torrens system of regis tration was not meant to over ride native land rights if they existed.

People took their certificates knowing that if there were native rights they would be subject to them, even though the rights had not been un covered and registered on the title.

Killed In The Rush!

The Chief Justice, Sir Garfield Barwick: The result might be most disadvantageous to the indigenous people. Introducing into this area that type of uncertainty could not make for progress at all, could it?

Mr. Kerr: It is not uncertain from their point of view. It may cause uncertainty in estates in the hands of people registered as proprietors.

Mr. Kerr said Europeans should be told that if duplicate titles were not in existence then land should be thrown open for the reinvestigation of native rights.

Chief Justice: If that was tendered to the European population you would nearly be killed in the rush, because why should my neighbour get his land back because the fire did not run in his property and I lose mine because it did?

Mr. Kerr: That is doubtless what they would say, but on the other hand the natives are entitled to say, “You have not got your certificates of title, we have a valid right and we wish to prove it”.

Mr. Justice Taylor: I do not think it would be understood by the in digenous population or by anybody else, Mr. Kerr, that it should depend on the chance of whether somebody could produce a certificate.

During the submissions, it was stated that early German documents which some counsel felt might throw more light on the leases were pre sumed now to be in East Germany and could not be reached.

In its judgment on November 30 the High Court made no mention of general New Guinea fears on the validity of titles.

Doubt On Appeal The judges said that in their view it was “open to considerable doubt” as to whether the natives had been entitled to appeal to the P-NG Supreme Court in the first place, be cause of time limits imposed. How ever no objection to the competency of the appeal had been raised at the time and it was now “neither neces sary nor desirable for us to attempt lo resolve the problem”.

The judges held that in 1924, when

the land had originally been registered in Garrett’s name, elaborate pro visions had been carried out to see that the land was not subject to native rights. No claims were made against it and Garrett remained in possession of the land until the Jap anese invasion.

His widow had resumed possession after the war, and no claim of native rights had been made until recently.

“Nevertheless the learned Chief Justice considered himself free at this late stage to embark upon an in quiry as to the validity of the claim now made,” the High Court judges said. “In our view this conclusion was demonstrably erroneous.”

Also erroneous, the judges said, was the Chief Justice’s view that the destruction of the registers and cer tain provisions of the Land Titles Restoration Ordinance entitled him to grant the native claims.

Restoration Ordinance The indefeasibility of the title did not depend upon ability to produce the register or duplicate register. It depended on the Restoration Ordin ance, and this merely provided machinery to replace, in their original condition, registers which were lost or destroyed by the Japanese in vasion. The ordinance did not as sume that by the destruction of registers all land titles in New Guinea had been destroyed.

Claimants were excluded who were not registered when the book was lost or who could not prove that they would have been entitled to register if the book had not been lost.

The judges said it had been ad vanced that section 41 of the Lands Registration Ordinance enabled native rights to be established against a registered proprietor even though the register was clear. But the Chief Justice’s conclusion that this was so was erroneous.

They said it should be observed that His Honour’s conclusions could not be supported “by any reference

to any supposed ‘policy of protectio: of native land interests’, for if thos conclusions are correct one con sequence would be the destruction o native rights created by registra tion. . . ”

Such a conclusion would als mean that all land titles subject t the Registration Ordinance would b thrown open, leaving every individua native or not, free to assert a clair not founded on registration or upo a right of registration.

The High Court judges conclude that their reasons for these decision were enough to dispose of the Varzi matter and render it unnecessary fo them to give an opinion on Chie Justice Mann’s view that there wer enough irregularities in the actions c the German administration in 190 to prevent the original Germa owner from having a good title t part of the Varzin land. They added “However, as the matter wa argued before us by the parties w would wish to say that we have th gravest doubts as to the validity o His Honour’s conclusions and as t the reasoning on which they ar founded.”