And What It Means

THAT New Guinea Land Case And What It Means

By a Staff Writer

In the view of many residents of Papua-New Guinea, the cost of re-establishing the sanctity of Territory land titles— which has now been done as a result of the Australian High Court judgment on the Varzin land case—has been absurdly high. It has also been generally unnecessary.

BLAME has been placed on a section of P-NG officials who began the challenge to the titles in 1958 and then carried it on despite poor grounds.

It has cost Australian taxpayers many thousands of pounds to clear the titles. The group of New Britain Tolais who were the respondents have not had to pay.

It is, of course, right that the Australian Government should sup port certain test cases, no matter who is involved. But in view of the quick way in which the High Court disposed of the case, and the Court’s suspicion that there was probably no real reason for the appeal to have got to the P-NG Supreme Court since it was probably “out of time” by 16 months, many P-NG people are asking whether this was not a classic case of paternalism gone mad, of a bureaucracy bending over backwards to support New Guineans merely because they are New Guineans, and not because they have any firm grounds for complaint.

Varzin Details The Varzin land judgment was handed down in Sydney on Nov ember 30. A full resume of the hearing and judgment was in Dec.

PIM . p. 13, and other articles on the case have been published from time to time, notably in April 1963, p. 39, and June, 1963, p. 11.

Varzin plantation is in the Gazelle Peninsula of New Britain, an area where intelligent Totai people have for some time been making claims to land alienated in the German days, before Australia took over. The owner of Varzin, Mrs. Nora Ellen Richards, (widow of Tom Vernon Garrett, and who married Mr. A.

Richards, of Rabaul) had applied for a new title to the property after the official records were destroyed in the Japanese invasion.

The Land Titles Restoration Ordinance was enacted after the

war to re-establish titles, and the Land Titles Commissioner had recommended granting of a new Varzin certificate. But the Director of Native Affairs, on behalf of a group of Tolais, at this stage objected that the land had never been legally alienated. The Titles Commissioner, after inquiry, rejected the claim and a new title was issued to Mrs.

Richards in 1960.

"Wasn't Taken Seriously"

Up to then nobody had taken the native claim seriously. The Varzin title had been granted by the Germans about 1903 to Rudolf Wolff and when the property was taken over by the Australian Govern ment after World War I it was sold, in 1926, to Garrett by the Expro priation Board for £12,500. This was after an investigation which showed it was clear of all encumbrances.

The title was based on the Torrens system and called indefeasible.

Scores of similar properties were sold under similar conditions.

To the consternation of all Ter ritory land-owning interests, the Tolais in 1962 appealed to the P-NG Supreme Court against the Titles Commissioner’s decision. New Guinea was even more surprised when it learned that while one side of the Government, representing Native Affairs, was advancing the appeal, another side, representing the Expro Board, was resisting it.

Chief Justice Mann, after a lengthy hearing, decided in June, 1963, that there were native claims to be considered, and that a sub stantial part of the land was native owned. The general unease of P-NG land owners now turned to dismay.

It was apparent that if the Mann judgment were to stand, the whole system of P-NG land ownership was in jeopardy.

This was the unhappy position until November 30 last, when the High Court handed down judgment less than three weeks after hearing

the appeal. The judgment reversed Mr, Justice Mann’s decision.

The High Court’s views have been read with sour interest by Territory residents. The High Court judges made it clear that before the Varzin title had been allocated after World War I all provisions of the Registration Ordinance had been observed, all parties had been warned and no claims had been made on behalf of any natives.

The High Court commented; “Nevertheless, the learned Chief Justice [of P-NG] considered himself free at this late stage [1962-63] to embark upon an inquiry as the validity of the claim now made.

In our view this conclusion was demonstrably erroneous”.

Views Erroneous In the High Court’s view, Chief Justice Mann had concluded that the title of the appellant had been destroyed with the destruction of the register and that “the whole foundation of the statutory concept of title is destroyed by the destruc tion of the register itself”.

The High Court commented: “In our view these conceptions are plainly erroneous ... the destruction or loss of a register book accident ally or otherwise, does not destroy the title thus accorded to the

registered proprietor. . . . His

Honour’s conclusions cannot be sup ported by any supposed policy of protection of native land interests”.

The High Court examined at length the Land Titles Restoration Ordinance, enacted in 1951, and said emphatically that the intention of the ordinance was plain—that it was merely for the purpose of restoring

or replacing the destroyed registers and that Mr. Justice Mann was “in error” in thinking otherwise.

The High Court examined the provisions of Section 41 of the Lands Registration Ordinance (under which the Tolais had claimed that native rights could be asserted and established against a registered proprietor even though the register is clear). The Court held that the intention of the ordinance is clearly set out in Section 68, which estab lishes the Torrens system of land titles, “and the effect of such a pro vision is not in doubt”. The Court’s comment: “Nevertheless, the learned Chief Justice considered that the provisions of Section 41 so operated as to make the title of a registered proprietor subject to any claim of native customary rights that might be adversely asserted and established.

In our view this conclusion is erroneous.”

The High Court’s final comments: “These reasons are enough to dis pose of the [Varzin] matter and render it unnecessary for us to express any concluded opinion upon these portions of His Honour’s judgments which decide that there was such irregularity in the actions of the German Administration in the year 1903 as prevented Wolff having a good title to part of the subject land.

“However, as the matter was argued before us by the parties we would wish to say that we have the gravest doubts as to the validity of His Honour’s conclusions and as to the reasoning on which they are founded,”