UK says: Let’s not indulge

The Banabans

UK says: Let’s not indulge in recriminations

In a statement commenting on the result of the Banabans’ legal action in the British High Court, the British Government says it “does not wish to indulge in recrimination about the past’’, but will “look to the future’’.

The Government says it will “naturally give consideration to what the judge has said’’, but defends Britain’s part in the Ocean Island question. Here in full is the government’s official comment, released in London in late December.

The judgments in two actions in the High Court brought by the Banabans against the Crown in both, and the British Phosphate Commissioners in only one, were concluded by Vice- Chancellor, Sir Robert Megarry, on December 3. The judge dismissed all claims against the crown in both actions.

The judge said that the claims relating to “Crown Royalties” (which contended that, under proper con struction of certain ordinances, payments made to the Gilbert and Ellice Islands Colony Government by way of taxation should have been paid to the Banabans as royalties) were so unmeritorious that they should not have been brought at all.

As regards to royalties paid to the Banabans, he ruled that the various arrangements (principally in 1930, 1931, 1947) did not constitute a series of true trusts and that the Crown’s obligations were government in nature and not fuduciary obligations justici able in the courts.

In dismissing these claims he did however, draw attention to what he regarded as certain “grave breaches” of governmental obligations.

“The worst” was the process by which the level of phosphate royalties was fixed in 1931, including the fact that it was fixed by the same Resident Commissioner (Mr Arthur Grimble) who had written “an outrageous” letter IVi years earlier. The other breach, which Sir Robert Megarry described as the gravest in its consequences for the Banabans, was thefailuretoensure that they had proper advice when they embarked on the 1947 negotiations.

The claim that the Crown was liable in that it failed to prescribe the trees to be replanted was dismissed. The British Phosphate Commissioners were found liable on their obligations to replant in respect of some, but not all of the lands which were subject of the claim, but the judge

defined “replanting” in a very narrow sense that excluded any obligation to rehabilitate fully, bring in soil or build access roads (which was anyway not

feasible).

He made no order for specific performance (ie, that the replanting should be done) and considered damages an adequate remedy. He has not ruled on the amount of damages, on which he wishes to hear further argument if it cannot be settled out of court.

The High Court has confirmed that the British Government was not in breach of any fiduciary duty, either in allowing the Gilbert Islands to levy taxation on the Ocean Island phosphate operation or in prescribing or allowing the British Phosphate* Commissioners to negotiate with the

Banabans the level of royalties fixed in 1931 and 1947.

Her Majesty’s Government will naturally give consideration to what the judge has said. However, his reference to governmental failures related essentially to the processes by which the level of royalties was fixed in 1931 and 1947. He did not rule that these were too low. Since 1947 the Banabans, who number about 2,500, have received about A$ 12 million, and at present phosphate prices stand to receive as much again before mining ends.

The judge also paid tribute to the Colonial Office and the Resident Commissioner’s continuing concern for the protection of the Banabans. He commented that the King’s Regula tions which were applied to the Banabans on Ocean Island were “plainly designed to protect the native inhabitants against exploitation” and he emphasised that the Banaban decision to make Rabitheirpermanent headquarters and home had been entirely voluntary, after lengthy discussion and a secret ballot.

The judge referred critically to a letter sent in August 1928 by Mr Arthur Grimble, the Resident Com missioner on Ocean Island, to a group of Banaban villagers which threatened compulsory acquisition of their land and indiscriminate mining unless they accepted a proposed agreement.

The judge explained the difficult position and circumstances in which Grimble was operating at that time, including his state of health, and said the letter was wholly out of character for a man who was a dedicated colonial servant with a deep affection for the Banabans. However, even bearing all this in mind, it was impossible to read the letter without a sense of outrage.

Her Majesty’s Government con siders the judge’s comment to be

Continued on p. 71

balanced and fair. As he himself pointed out however, the letter seems wholly out of characer and there is no reason to suppose that any improper considerations influenced MrGrimble when he prescribed the royalty in 1931, and evidence was produced to the court that this was a fair one in the circumstances of the time.

The existence of the letter was unknown to any other officer of the local or UK Governments at the time and did not come to light until it was produced by the Banabans in the court action.

The judge referred a number of times to the Banabans’ tendency to resort to untrue or misleading statements, for example a statement they had madetothe United Nations of which hesaidthatnoonewhoknewthe facts could escape the conclusion that a forceful presentation of their griev ances had been marred by significant omissions of what was true and intemperate assertions of what was false.

He cited the Banabans’ allegation that they were coerced to living on Rabi, without any mention of the secret ballot or of the large majority obtained for staying on Rabi.

The statement also alleged that the British Phosphate Commissioners had desecrated a Banaban cemetery, shipping “the remains of our forefathers” to “fertilise the farms in Australia and New Zealand.” The

judge said that the damage to this cemetery was in fact caused by Japanese earth works and fortifica tions there during the war and he dismissed this allegation as “stupidly and offensively false.”

“The Japanese transferred most of the Banabans to other islands and when in 1945 Ocean Island was recovered from the Japanese it had been devastated and was unin habitable. Though the Banabans’right to return to Ocean Island has been carefully preserved, it was plainly impossible for them to go back immediately after the war.”

He also said that from any practical point of view there has long been no question of the Banaban community as a whole returning to live on Ocean Island.

The legal actions were not concerned with the constitutional future of the Banabans and Ocean Island. Her Majesty’s Government hopes that it may now be possible to pursue efforts to find an agreed solution to this wider problem.

Her Majesty’s government does not wish to indulge in recrimination about the past.

We must look to the future, recognising that for the bulk of the Banaban people this must lie on Rabi.

We must not allow the constitutional issue to obscure what matters most: the welfare of the communities concerned, Banaban and Gilbertese.