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Papua & New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 (12 December 1973)

CATCHWORDS

*(1973) 130CLR353, at p 423

** Section 9 of the Land Ordinance of 1911 (Papua) provides that: "It shall be lawful for the Lieutenant- Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure.
An appeal shall lie from the Board to the Central Court. The practices regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette."

HEARING

DECISION

2. Lohia Doriga, a Papuan of the Giakone clan of the Koitapu people, has also laid claim to the same land on behalf of the descendants of Iramo Hada deceased. Apparently Iramo Hada was the leader of the Giakone clan. Lohia Doriga's brother is now the leader of that clan. Lohia Doriga is, as he says, its land controller. The Koitapu people also lived at relevant times in the area of Port Moresby in close association with the Motu people. (at p368)

3. Daera Guba on 7th February 1966 made an application in writing to the Land Titles Commission set up under the Land Titles Commission Ordinance 1962 of the Territory of Papua-New Guinea (the Ordinance) for an order that Era Taora be registered in the names of the descendants of Guba Daera deceased. The application was in due form to comply with the said Ordinance. The descendants of Guba Daera presumably are the Tubumaga Idibana. But at the hearing of this application before the Chief Land Titles Commission, Daera Guba claimed to represent all the Tubumaga people, that is to say, both the Tubumaga Idibana and the Tubumaga Laurina : and his application, without formal amendment, seems so to have been treated by the tribunals of Papua-New Guinea. (at p369)

4. Lohia Doriga made a similar application in writing for Era Taora to be registered in the names of the descendants of Iramo Hada deceased, who apparently constitute the Giakone clan of Koitapu. His application bears date 9th February 1966. (at p369)

5. These applications raised a contest between the two Papuan groups and, as well, a contest between each of them and the Administration of the Territory of Papua-New Guinea, as to the ownership of the land as at the respective dates of the applications. The case set up by each Papuan applicant is that his forbears owned the land at the time Her Majesty's British Government proclaimed a protectorate over the Port Moresby area of New Guinea in 1884 and that neither they nor their descendants at any time parted with that ownership. (at p369)

6. The Administration of Papua-New Guinea claims that officers of the Crown purchased on its behalf in 1886 from the people of the area, approximately 95 acres of land at Port Moresby which included substantially the whole of Era Taora as now claimed and that that land has been in possession of the Crown ever since though the Administration of the Territory has at times allowed Papuans to garden on some portions of it which at the time were not required for use by the Administration. Alternatively, the Administration says that what occurred in relation to the land in 1886 amounted to its acquisition by an act of State. The Administration further says (i) that any part of Era Taora which was not acquired by either method in 1886 became Crown land by virtue of an Order in Council made on 19th August 1901 pursuant to s. XI of the Land Ordinance of 1899 of British New Guinea, and (ii) that the ownership of the land now claimed and in dispute was authoritatively determined as between the Tubumaga and the Giakone people and the Administration by a decision of a Land Board given in 1954, the Board having been set up under s. 9 of the Land Ordinance of the Territory of Papua of 1911 (the Land Ordinance) to decide disputes as to the ownership of land where a Papuan was a claimant. (at p369)

7. The Papuans challenge the fact of a purchase in 1886 ; they deny that the officers of the Crown who are said to have made it were authorized so to do, this challenge involving Her Majesty's capacity in the circumstances to acquire any land from Papuans and, as well, the particular authority of the officers concerned to do so. The Koitapuans appear to concede that the officers of the Crown purported in 1886 to purchase Era Taora but they raise questions as to the capacity of Koitapu people to sell that land and as to their understanding of such a transaction as an outright purchase. Both Papuans raise questions as to the identity of the boundaries of the land purchased in 1886, if it is found that a purchase was made. The validity of the Order in Council is challenged by the Papuans and the identity of the land which was encompassed in its operation is called in question : it is denied that the area Era Taora was included. They also challenge the validity of the appointment of the Land Board in 1954 and assert that, in any case, its decision as to the ownership of the land was no more than an advisory opinion given to the then Lieutenant-Governor presumably for the purposes of s. 8 of the Land Ordinance and therefore not binding on them or the Land Titles Commission. (at p370)

8. The Administration, in its turn, so far as concerns the challenge to the authority to purchase the land in 1886, asserts that the purchase was ratified and adopted by Her Majesty's Government and by the Administration of the Territory of British New Guinea. The Administration has not sought to rest its claim upon its continued occupation of the land over such a considerable period of time but its possession of the land at the time these applications were filed cannot be ignored in the resolution of the dispute between the parties. (at p370)

9. It will thus be seen that the dispute between the parties has ranged over issues of fact and of law. In the proceedings, no living person has spoken of his own knowledge of the events of 1886. No memorandum was made at the time precisely recording the purchase which the Administration claims to have been made, though reference to such a purchase appears in official despatches and reports. The difficulties thus inherent in the nature of the dispute itself have not been reduced by the manner in which it has been dealt with by the primary tribunal in the Territory. (at p370)

10. The Chief Land Titles Commissioner appointed under the Ordinance heard the claims of the Papuans on 19th, 20th, 21st, 22nd and 25th March 1968. He took oral evidence from Papuan witnesses and had available to him a considerable body of official documents connected with the alleged purchase in 1886 and the subsequent dealings with the land. He found that the Tubumaga people owned the land in 1886 and that, with the exception of the portion marked "7" on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 , they did not at any time sell any part of it to the Crown. He held that the Giakone clan did not own the land but that they did purport to sell it to the Crown in 1886. He found that the land did not fall within the area covered by the Order in Council of 1901 and that the decision of the Land Board in 1954 was not a decision binding on him nor one which estopped the Tubumaga clan or its members from making or succeeding upon the present claim. His reasons for arriving at these conclusions are quite meagre and uninformative. I shall need to return to them and their insufficiency at a later stage. However, it will be convenient to set them out in full before relating the subsequent curial history of the matter.

"The Land Titles Commission finds as follows :
(1) That at all relevant times the Tubumaga Clan were the
owners of the land the subject matter of these Applications
and that, subject to the 1956 and 1957 transactions as to
part of the land, it was never sold by them.
(2) That, from time to time, members of other clans were
permitted to use the said land because they were married
into the Tubumaga Clan.
(3) That, the Giakone Clan, as such, had no rights in the
said land.
(4) That the Giakone Clan purported to sell the said land to
the Administration.
(5) That the Order in Council of 19th August, 1901, does not
apply to the said land.
(6) That 'Era Taora', the subject matter of this Application,
is native land (other than the parcels included in the
1956 and 1957 transactions which are Administration land).
And the Land Titles Commission holds that the decision of
the 1954 Land Board (Exhibit 'W') is not a judgment in rem
nor does it estop the Tubumaga Clan or members thereof and
further that such decision is not binding on the Land Titles
Commission.

And the Land Titles Commission declares that the subject
matter of this Application, which is known as 'Era Taora'
and which is delineated in red on the plan attached hereto, is
owned by the Tubumaga Clan the present leader of which is
Daera Guba of Hanuabada."

11. The Administration appealed against this decision to the Supreme Court of Papua-New Guinea as by s. 38 of the Ordinance it was entitled to do : Lohia Doriga also appealed. That Court at first instance (Clarkson J.) upheld the Administration's appeal and reversed the decision of the Commissioner except as to one small parcel of land about which no contest remains. It is the small almost triangular piece marked "1" on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 . Lohia Doriga's appeal was dismissed. (at p371)

12. However, the Papuans appealed to a Full Court of the Supreme Court which, by a majority (Minogue C.J. and Frost J., Prentice J. dissenting) reversed the judge of first instance, reinstated the decision of the Commissioner and dismissed the appeal by Lohia Doriga. The Administration now by its leave appeals to this Court. Lohia Doriga also appeals, seeking a reversal of the Commissioner's order and a rehearing of the claims. (at p372)

13. Clarkson J. was of opinion that the decision of the Land Board that the Administration owned the land now claimed, except the small portion no longer in dispute, was final and binding on both branches of the Tubumaga clan. He also thought that the acquisition of the land by the Crown in 1886 was effective to vest that land, less the now undisputed portion, in the Administration. He was of opinion that the Order in Council of 19th August 1901 was effective to vest in the Crown any part of the area it described which had not been theretofore acquired by the Crown, and that the description was apt to include the land now claimed. (at p372)

14. The Chief Justice held that there was no valid consensual acquisition of the land in 1886 ; that the terms of the Order in Council of 1901 were uncertain and could not be said to embrace the relevant part of the land claimed ; that the Land Board had not been validly appointed in 1954 ; and, further, that in any case its decision was not binding or authoritative. (at p372)

15. Frost J. was of opinion that the Land Titles Commission was entitled to refuse to find a valid purchase of the land in 1886 ; that the Order in Council was void for uncertainty and that the Land Board's decision was merely advisory and not final and binding. Consequently, the majority found no ground for disturbing the findings of the Land Titles Commission. (at p372)

16. Prentice J. held that there was a purchase of land including the claimed land in 1886 ; that the Order in Council was not void for uncertainty and was effective to vest in the Crown land not otherwise in its ownership in the relevant area of Port Moresby and that the Land Board was validly appointed and its decision final and binding. (at p372)

17. All members of the Supreme Court rejected the claim of Lohia Doriga. (at p372)

18. I shall hereafter refer to the land which is still the subject of dispute, that is, the land the subject of the application to the Land Titles Commission less the areas of land marked 1 and 7 on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 , the title to which is no longer in dispute, as "the subject land". This land is contained in the areas numbered 2 to 6 inclusive on the prefaced plan. (at p372)

19. It is perfectly clear from the nature of the proceedings and the fact that neither group of claimants at the date of its application was in possession of the land that it rested upon each applicant to establish the title to the land which he claims as at the date of his application to the Land Titles Commission. This involved each of them in establishing both against the other and against the Administration that their forefathers were the proprietors of the land in 1884, whatever the nature of that proprietorship under their native customs might be. No intervening act of acquisition of the subject land by either applicant or the people he represents is suggested. Thus, proprietorship of the land was an issue which arose primarily between the two claimants : it was an issue to which the Chief Commissioner paid attention and which he purported to resolve. He had before him oral evidence of Papuans who had no personal knowledge of the situation in 1886. Precisely how he chose between the two accounts given to him does not appear. There was, to my mind, no "traditional evidence" given on behalf of Daera Guba but such "traditional evidence" as was given on behalf of Lohia Doriga supported the sale of the land to the Administration in 1886. The question of proprietorship of the land must be decided upon evidence in the sense of material produced before or made available to the Land Titles Commission which, though not being limited by the rules of evidence and being entitled to act upon "information" as distinct from evidence technically admissible before it, could range quite widely in the consideration of facts which were relevant to the question. Both the Supreme Court and, seemingly, this Court are similarly placed, each appellate court also being able to receive information additional to that which was before or available to the Commission : s. 38A (2) (aa) of the Ordinance. In fact the Supreme Court at first instance and on appeal and this Court have done so. But, however wide the area of investigation, the title must be the subject of proof. (at p373)

20. Lord Denning, speaking for the Judicial Committee in Twimahene Adjeibi Kojo II v. Opanin Kwadwo Bonsie (1957) 1 WLR 1223, at pp 1226-1227 has afforded guidance which is presently relevant as to the approach to be made in making a decision when conflicting "traditional evidence" is offered. He said, "Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour" (of witnesses) "is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable." (at p374)

21. Here there is a conflict between the accounts, not really of a traditional kind, put forward on both sides by the Papuans. As well, assertion of past history is set up in contesting the Administration's claim to ownership of the land. In resolving these conflicts, it seems to me that that "evidence" and those assertions should be carefully weighed in the light of the probabilities derived from a consideration of the facts of that time as presently known. If the official records are accepted, as in my opinion after perusal and consideration they should be, there are many facts known about the situation at the relevant time in the area of Port Moresby. I might mention here that there is no trace in the reasons for judgment given by the Chief Land Titles Commissioner of his having set the evidence of the Papuans, such as it was, against the probabilities as far as they could be worked out from the known facts of the situation in Port Moresby in 1886. Indeed he has not provided us with any impressions he gained from the contemporary official documents ; or, for that matter, given any indication that he paid heed to them at all in coming to his scantily expressed conclusions. (at p374)

22. I have said that there was no "traditional evidence" given by or on behalf of Daera Guba. By traditional evidence I understand statements of a witness who claims either to have been the repository of the folklore of a primitive community or to have been told relevant facts by some of his forefathers who had an important place in that community, a standing which was likely to have made them knowledgeable in relevant respects. But the evidence for the Tubumaga clan in this case did not rise above mere assertion, without any attribution to any forbear of any information as to the asserted fact. Negation of events to which the official records refer was based upon a statement that the witness had not been told or heard of the event. The high point of the Tubumaga's case in the evidence led on its behalf, in my opinion, was Daera Guba's statement that "as far as he knew, the land belonged to the Tubumaga people", a statement which was no more than an assent to a question put in that form. (at p374)

23. The evidence in support of Lohia Doriga's claim did include some traditional evidence which, as I have said, tended to establish a purchase of Era Taora in 1886 and which seems to have been accepted in that sense by the Chief Commissioner, who found that there had been a purchase of Era Taora by the Administration in 1886 from the Giakone clan. But the Commissioner found that, although presumably on his view the "trade" for the purchase was distributed by the officers of the Crown amongst the Giakone and not the Tubumaga, they did not own the land : it belonged to the Tubumaga. (at p375)

24. It was a ground of appeal from the Land Titles Commission to the Supreme Court that the Commission's finding was against the evidence and the weight of the evidence : s. 38 (2) (aa) of the Ordinance. As the Land Titles Commission in this case could inform itself by referring to records and official documents, the oral evidence for what it was worth must be set against and weighed with the considerable amount of relevant official record: see s. 38 (2A) of the Ordinance. This consists largely of the Annual Reports of the Administration of British New Guinea made in 1886 and in 1888, of despatches and communications of which some are included or referred to in those Annual Reports, and survey plans, the details of which in my opinion have bulked disproportionately in the consideration of the case by the Supreme Court of Papua-New Guinea. (at p375)

25. The first question is whether the findings of the Land Titles Commission are erroneous, including in the possibility of error the making of a finding against the evidence and the weight of the evidence. It will be error if the findings are against the weight of all that "information" included in the official records and despatches of the time. (at p375)

26. The finding of the Commission that the Tubumaga and not the Giakone owned the land can only have been based on the oral evidence before it. Nothing in the official records, in my opinion, touches upon the question whether the land was owned by one group of claimants rather than the other. Certainly nothing supports the claim of the one against the other, not even the presence of Ah-oo-doo, said to be a chief, on the occasion on which the land is claimed to have been purchased, a matter to which I will separately advert. (at p375)

27. No examination seems to have been made by the Chief Commissioner of the basis upon which the particular boundary points forming the curtilage of the claimed land were fixed by Daera Guba. We know no more than that he indicated such points to the officer who prepared the survey to which the application refers. We do not know the basis on which he chose such points. From the history of earlier claims which had been made to the land, we do know that the boundary was not precisely constant throughout the period in which claims have been made to the ownership of the land. (at p376)

28. One matter to be noticed is the assertion of the Tubumaga people that they gardened on the subject land in 1884 and before. This does not seem to be borne out by Mr Cuthbertson's survey to which I shall later refer and which does not show any gardens on the subject land though he does show gardens elsewhere. Further, although if the official records are to be accepted the Papuans were unwilling to sell land on which they had gardens, they were not unwilling to part with the subject land, as well as other lands, e.g. the Badili lands to which later reference will be made. Also, the land was said in the official records to be unsuitable for agriculture though possibly usable as low class grazing land. The portion most in dispute in the case, an area referred to in the case as "the inner rectangle", marked WXYZ in the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 , was said to contain "stony ridges". True it is that at a later time gardens were made in some undefined and unidentified part of the subject land, but conditions both as to the numbers of the population and as to the availability of other areas had by that time probably changed considerably. Although it may be possible that the subject land at some stage and in some seasons in the past may have been used for the making of gardens, whether it was so used by the Motuans exclusively or by the Motuans with the permission of the Koitapu people as the Giakone claim, or by each of them, the Motuans and Koitapuans, as of mutually conceded right, is not capable of resolution at this remote point of time. The relationship between the Motuans and Koitapuans in relation to the land is quite unclear, the Motuans claiming that the only Giakone who gardened on the land were people who had entered the Motu clan by marriage. The Giakone, on the other hand, say that in the course of time they permitted the Motuans to garden on their land, the land remaining in the proprietorship of the Giakone clan. In any case, the fact of the use of land for gardens ought not readily to be accepted as itself evidence and certainly not conclusive evidence of proprietorship of an interest in the land either of the precise area gardened or some area surrounding the gardens. But, of course, such use of land would be confirmatory of a claim, otherwise evidenced, to proprietorship of land in the proximate area of the gardens. (at p376)

29. Viewed strictly, it would be my opinion that there was no evidence before the Commission that any proprietary interest in the claimed land was exclusively owned in 1884 by the Tubumaga clan, even if one rejected the evidence given on behalf of the Giakone clan accounting for the presence on that land of Motu people, if that be the fact. All the tribunals have rejected the claim of the Giakone. (at p377)

30. However, as the parties and the tribunals of Papua-New Guinea have largely focussed their attention on the claim of the Administration to have acquired the subject land, by one means or another, in and since 1886, I would not wish to decide the case now upon the footing that the Tubumaga clan had not established its proprietorship of the subject land though, in my opinion, they did not. A decision upon the claim to ownership by the Administration does not require a decision as to whether all the vendors to the Crown in 1886 were of one clan rather than of another. That aspect of the matter will appear when I come to treat of the probabilities in the light of the known situation in the area of Port Moresby at the time. (at p377)

31. Before turning to consider the probabilities in 1886 in relation to the dispute as to whether or not a transaction then took place which placed in the ownership of the Administration substantially the whole of the subject land, I should make two observations. (at p377)

32. First, the capacity according to their own customs of a Papuan or Papuan clan in the Port Moresby district in 1886 to sell interests in land so as to place it in the perpetual possession of the Administration free of claim by the sellers was disputed by counsel for the Papuans. But there were many such transactions referred to in the proceedings of which the validity or effectiveness has never been challenged, the purchasers having after purchase had the benefit of complete ownership and indefinite undisturbed possession of the land sold. Instances of these transactions occurred both before and after the transaction claimed by the Administration to have taken place in 1886 with respect to the land. Further, both Rev. W.G. Lawes who as at 1884 had had more than ten years' experience of the tribal customs of the people of the Port Moresby area, and his son, who later became resident magistrate of the Colony and knowledgeable of those customs, affirmed that the people of the area according to their customs owned and both individually and collectively sold their claims to the possession of land. For example, the Rev. W.G. Lawes in an article prepared at the request of Sir Peter Scratchley and published in the "Sydney Morning Herald" on 11th March, 1886 said :

"The land on the coast is all owned by families, each member
having his own plot. They are accustomed to sell their land
occasionally. A man who has but little will beg of one who has
plenty. Sometimes they loan it for one crop - a short rental
really. Often, however, it is an absolute sale. In this case it
does not revert to its original owners on the death of the
purchaser, but is the property of his heirs for ever. The land
in the interior is probably subject to the same conditions. It is
very doubtful if there is any really unowned or waste land;
there is certainly none in the neighbourhood of Port Moresby.
From the coast range of hills, right away to the Laroge River,
all belongs to the Koitapu tribe. The thick forests on the
banks of the rivers and creeks, in thinly-populated districts,
are the most likely to be unclaimed, as the wood is not used
by the people, and is too large to be cleared for cultivation
of the soil."

33. Further, in my opinion, there is no substance in the suggestion that the people of the area did not understand a transaction of outright sale or that they did not value the "trade" they received for a purchase or that they were unable and did not equate in their own minds the value of that trade with the value to them at the time of the outright loss of possession and proprietorship of the land in the conditions in and under which they then and formerly had used it. By 1886 these people had been in contact not only with the missionaries, but with traders and with the Europeans who in the 1870's had come to and through the district in search of gold. Also, as I have said, bearing in mind the opinions of the Rev. W.G. Lawes and of his son, the material in this case made it quite clear that the Papuans of this area did sell land from time to time. (at p378)

34. Secondly, having read and reread the official documents to which reference has been made in the case, I see no reason to doubt both their general accuracy and the veracity of those who compiled them. Indeed, the more I have read them, the better opinion I have formed of the capacity of those who prepared them and the more convinced I am that they speak of events which actually took place as they are related in the reports and despatches. (at p379)

35. I now turn briefly to describe what I understand to have been the situation in the Port Moresby area in 1886 in order to test by the probabilities the validity of the Chief Commissioner's conclusion that the claimed land was bought in 1886 from a clan which did not own it. The historical facts, most of which are evidenced by the official documents presented in the case, provide the means of assessing that situation. (at p379)

36. For more than a decade before 1886 the Australasian colonies had been pressing the British Government to annex so much of New Guinea as had not been occupied by the Netherlands. The interest of the colonists was, on the one hand, to prevent that area being possessed by one of the great powers, and on the other hand, to obtain the opportunity for settlement and exploration by the colonists themselves. There had been a gold rush in what is now Papua in the 1870's. Neither the parties who had entered at Port Moresby and penetrated inland some distance from the coast nor those who had entered on the eastern tip of the island had had any great success in obtaining gold in commercial quantities. By 1884 almost all had been massacred or had withdrawn from the territories. But the existence of alluvial gold had been established. The only Europeans left in the Port Moresby district by 1884 were the missionaries of the London Missionary Society led by Rev. W.G. Lawes and Dr Chalmers, a storekeeper named Goldie, perhaps the brothers Hunter, and traders who came and went using the port for their purposes. The port was a good deep water harbour, though reefs as yet unbuoyed existed in it. The London Missionary Society had established a mission on the shores of the port in 1874 in proximity to the Papuan villages in an area of land acquired by purchase from the Papuans of the area. Roman Catholic missionaries had established missions at the eastern end of the Territory. The "Argus" newspaper of Melbourne had sponsored an expedition into the Territory in the year 1883 and for this purpose had acquired from the Papuans an area of land on which it had erected a building which was known in 1886 as the "Argus Villa". Mr. Goldie, the storekeeper, had in some fashion purported to obtain rights to this building and the land on which it stood and there conducted his store. (at p379)

37. The coastal area of Port Moresby was inhabited by Motuans and Koitapuans. They dwelt in villages consisting of houses erected on stilts at the margins of the land and extending into and over the tidal flats. Their villages were adjacent to and scarcely separated from one another. Some intermarriage between members of the two groups appears to have taken place. Neither group at any time resided on the land claimed in these proceedings, which would be about forty chains from their villages. (at p380)

38. The general topography of the area was that there was some generally flat land between the sea and the hills behind the port with swamps and jungle in places between the relatively flat land and the beach. Besides the range of hills behind the flat areas there were two hills near the shore known respectively to the Europeans as Mount Goldie and Paga Hill. These two hills separated the "usable" relatively flat areas. The land generally was not suitable for agriculture though it could be used to some extent for grazing of a kind. In particular, the subject land was said to be arid and useful only to be hunted over when wallabies and other game frequented it. (at p380)

39. The Papuans as of that time were singularly savage and given to reprisal raids on one another in which barbarous killings took place, frequently of women and children who were the easiest caught or waylaid. In addition, they suffered either from occasional drought or were at times so terrified of neighbouring groups as to be unwilling to cultivate the gardens from which they derived some of their basic food. Consequently, though the sea provided food, from time to time the villagers were in danger of extinction by slaughter, by starvation or by disease which apparently was rampant. Thus the subject land had significance to the local people either as ground over which to hunt and perhaps as ground on which from time to time to make gardens. (at p380)

40. At least by 1882 the British Government was minded to yield to the pressure of the Australasian colonies for the annexation of at least part of New Guinea, provided the colonies would pay the cost of the administration of the colony when formed. The German occupation of what is now New Guinea was a factor in moving the Government to action. As an interim measure therefore, pending the conclusion of the negotiations with the colonies for suitable financial guarantees in respect of the cost of administration, the British Government in 1884 decided to declare a protectorate over the southern shore of what is now Papua and despatched an expedition in charge of Commodore Erskine to make the proclamation. (at p380)

41. It is very important, in my opinion, in connexion with the consideration of the material available for decision of the questions arising in this appeal, to observe that the policy of the British Government at the time of the declaration of the protectorate was that there should be settlement in New Guinea when the Territory was annexed but that there should be no disturbance of the Papuans in the enjoyment of their use of the land except in so far as the Government might purchase land or acquire it by compulsion for public purposes or supervise any permitted purchase by intending settlers. To anticipate a matter yet to be dealt with, it might here be observed that included in the "public purposes" of the protectorate was undoubtedly, in my opinion, the acquisition of land not only for immediate government use but for later sub-sale to settlers to enable settlement to take place in a controlled fashion and for the colony to develop consistently with government policy. These purposes clearly included the acquisition of land for a township adjacent to the port, itself already in use by traders. By the Crown acquiring land and providing it for settlers the Administration would be able to control the number of settlers and the standards at which they were to live, as well as preventing the exploitation of the natives. Further, it was realized as is evidenced in the documents that it would be necessary for the Administration to sell land as a means of assisting to defray the cost of administering the intended Territory. Port Moresby was to be a, if not the, principal point of entry into the area to be annexed. (at p381)

42. Thus the policy of preserving the use of the land by the Papuans was to be implemented by preventing any persons other than the Crown from purchasing from them any interest in land and by the Crown limiting its compulsory acquisition of land to acquisition for public purposes. From a close perusal of the official documents the position in 1886 was that settlement of the intended colony was contemplated with the abovementioned consequences. (at p381)

43. The Protectorate was proclaimed on 6th November 1884 at Port Moresby, by Commodore Erskine aboard the H.M.S. "Nelson". In fact, a Deputy Commissioner under the Western Pacific Island Order in Council, Mr Hugh Romilly, had purported to declare the Protectorate some little time earlier. The area of land described in the proclamation by Commodore Erskine was extended by him in a second proclamation. As amended, the area of the Protectorate extended from the boundary at 141 degrees E of the area claimed by the Netherlands to East Cape along the southern shores of New Guinea, including all adjacent islands, the islands in the Goschen Straits, the D'Entrecasteaux group and islands adjacent. The declaration of the Protectorate was effected in the presence of a considerable assembly of Papuans. It had the approval of the missionaries under Rev. W.G. Lawes and the acceptance of the chiefs and leaders of the Papuans who were present. Commodore Erskine, in a despatch of 14th November, said that the "Proceedings" (i.e. the declaration of the Protectorate) "have given pleasure to the natives, who place themselves with confidence under Her Majesty's protection". In his proclamation Erskine, in conformity with the policy I have outlined, proclaimed and declared "that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty". On leaving the area, Commodore Erskine left Deputy Commissioner Romilly to administer the Protectorate until the Special Commissioner should arrive. A commission was issued to Major-General Peter Henry Scratchley R.E., C.M.G. on 20th November 1884 to be Her Majesty's Special Commissioner for the Protected Territory of New Guinea. In order to give him judicial authority over British subjects he was appointed a Deputy Commissioner for the area of the Protectorate under the Western Pacific Orders in Council. General Scratchley was not long in the area. He arrived on 28th August 1885 and, having become ill, he left on 29th November 1885. He died at sea while on his way from Cooktown to Townsville on 2nd December 1885. However, before he left the Protectorate he was officially informed of the British Government's intention to annex the area comprised in the Protectorate. As well, in that time, according to the report written by G.S. Fort, his official secretary, certain land was acquired by the Special Commissioner acting under his commission and instructions. The commission authorized and directed him "to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient . . . " In my opinion, the acquisition of land for government purposes and for settlement was included in such matters. (at p382)

44. Mr. Anthony Musgrave Junior was an Assistant Deputy Commissioner during this time. His reports are the source of much information, though challenges have been made on this occasion to their accuracy. As I have indicated, having considered the various criticisms, I am prepared to accept the reports as substantially accurate. From his reports and a report of Rev. W.G. Lawes, the London Missionary Society missionary, we learn that, though the particular clans had headmen or leaders, there were really no chiefs amongst the Port Moresby Papuans who exercised authority over the tribes or clans or who exacted service from them. But it would seem that amongst the headmen, sometimes referred to as chiefs in the official documents, one was by common consent of the Papuans regarded as the principal or senior. Thus Erskine found Boi Vagi to be the most influential chief in the Port Moresby district and to him he presented a stick mounted with a florin as "an emblem of his authority". Amusingly enough, Erskine found that Boi Vagi "was in the habit of flying a Union Jack" which had been given to him on the occasion of the attempted annexation of the area by the Colony of Queensland in 1883. Erskine apparently felt this inappropriate and, as he says, by the use of "a little diplomacy" obtained it from him, replacing it with a blue flag "on which a 'Bird of Paradise' was represented in all its gorgeous plumage, on a white ground". Though Boi Vagi was described as "a mild-mannered man" - no doubt a comparative description in relation to his fellow Papuans - it was said that "there was . . . no better person to whom" Erskine "could have given" a "'badge of office'". Boi Vagi died on 1st April 1885. On 7th April Aoudou - at times spelt Ao-oo-doo - "was promoted to the position" - i.e. of chief - "owing chiefly to a number of the native villagers having signified their desire that he should be so chosen". He too, at forty years of age, was said to be of "a mild and docile disposition". (at p383)

45. During the time General Scratchley was Special Commissioner, land was acquired from "the Motu and Koitapu people of the villages adjacent to the London Mission Station in the same manner that the representatives of that Mission originally obtained sites for their buildings and gardens". These purchases at least included plots of land for the site of the Government Bungalow and a strip of land about four chains in width for twenty chains along the harbour extending southerly from the "Argus Villa" (see prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 366 ). For these purchases the Special Commissioner undoubtedly gave express authority to Assistant Deputy Commissioner Musgrave. This written authority, or rather instruction, extended to the purchase of "all desirable sites . . . at a moderate cost ; if any reluctance defer". (at p383)

46. On 26th December 1885 John Douglas, who had given distinguished service in the political life of the Colony of Queensland, was appointed Special Commissioner for the Protectorate in succession to General Scratchley. His commission was in like terms to that issued to the General. In his instructions it was made clear to Douglas that because of the views then entertained by Her Majesty's Government as to the consequences of proclaiming a Protectorate, he was not empowered to make laws to bind persons other than British subjects - a matter which has given rise, in my opinion, to some confusion in this case and to what I think are irrelevant references to the Foreign Jurisdiction Acts, a subject on which I have need to touch later. Douglas took the view, and I think quite rightly, that it was within his duty and authority to prepare the Protectorate for settlement in accordance with what he rightly conceived government policy to be in that connexion. Assistant Deputy Commissioner Musgrave was an officer who had arrived in Port Moresby on 17th June 1885. He first dwelt with Rev. W. G. Lawes at the mission station for a period of some months. During this time he set about preparing himself for his duties in the Administration, moving amongst the villages and acquainting himself with the ways and customs of the Papuans of the Port Moresby area. He was Assistant Deputy Commissioner under General Scratchley and became a Deputy Commissioner under Special Commissioner Douglas. He shows himself in the reports to have been a competent, careful and just officer who had established himself in the confidence, if not indeed in the esteem, of the Papuan population. (at p384)

47. Douglas extended the instructions given to Musgrave by General Scratchley and ordered a town to be laid out and surveyed. He authorized the necessary land to be acquired. To this end Douglas secured the services of a survey team led by Walter R. Cuthbertson, a surveyor who had carried out survey work in North Borneo and Northern Australia. (at p384)

48. The topography of the country dictated the site of the township and required that it have an east and west wing because of the existence of the hills to which I have referred. By the time a native reserve, a public area and government domain were provided, it was quite obvious that the eastern section of the proposed town must be on the relatively flat area of which Era Taora forms a considerable part. That area is encompassed in Mr Cuthbertson's eye-sketch of Granville East, to which reference will later be made. The jungle and swampy land adjacent to the harbour assisted to dictate the position of the town in relation to the harbour and the rising ground towards the mountains on the east determined its inland margin. (at p384)

49. Thus the topography of the area made it quite plain that the only land suitable for a township lay between Paga Hill and Goldie Law to the south-west and between Goldie Law and Government Bungalow to the north. Although no record of them is extant, it is obvious from the official documents seen in connexion with this case that Douglas must have given written instructions to Cuthbertson before July 1886 to design and survey a town in the area with two wings, each rectangular in shape. He had already sought and obtained the assent of Lord Granville to the naming of the town "Granville". The surveyor, having designed the layout of the town and of its principal roads, made what he termed eye-sketches. Of these, two are extant and with the papers in the case. They clearly show the intended shape and the approximate, indeed almost the precise, location of the two sections of the town. On these sketches there was a rectangular area marked "Township Site" lying to the north of Goldie Law and a rectangle, nearer to a square, fronting the sea between Goldie Law and Paga Hill similarly marked. Accordingly, one of the rectangles was to be Granville East and the other Granville West. (at p385)

50. Mr Robert Hunter, who had been a Native Protector under General Scratchley, was by this time a Government Agent. He was one of two brothers who had been in the area quite some time and who had established a considerable rapport with the Papuans. He had been sent by Douglas as a peacemaker between Papuan clans on a number of occasions and had been singularly successful. There is no basis on which it can be suggested that either Musgrave or Hunter set out to cheat the Papuans or the Crown. Rather both appear to have been most responsible officers. Musgrave in particular was extremely conscious that he was laying the foundation of a settlement of which the success must depend so largely on the continued goodwill of the Papuans. They had early experience of negotiating with the Papuans in the purchase of the Badili lands where, incidentally, according to the purchase note, the "trade" was unequally distributed amongst the vending Papuans, evidently in proportion to their claims. I would expect a similar situation to have obtained in a purchase of the land for East Granville, though no similar purchase note was made out in respect of that land. (at p385)

51. Musgrave reported that between 8th July and 8th October 1886 Hunter acquired from the Papuans for the Administration 95 acres for Granville East township and that in all in that time he acquired all the lands required within the surveyed portion of the settlement, newly entitled "Granville". The subject land is, with two relatively minor exceptions to which some reference will need to be made, wholly within a rectangle containing about 96.6 acres and which it is said by the Administration was the land to which Musgrave referred as 95 acres. (at p385)

52. Much time was taken in argument as to the authority of the Administration and its officers to purchase land in 1886. I find little profit in pursuing that matter in any detail for undoubtedly, if a purchase were made for the Crown and those who authorized or effected it lacked antecedent authority, the purchase quite clearly was ratified. Neither the Administration under the Protectorate nor the Administration under the colonial regime disowned the purchase. The subject land was included in the records of the Administration of the Territory after annexation as government property. The Administration occupied the land and dealt with it as its own over a long span of years. (at p386)

53. However, as I will point out later, in my opinion there was ample authority in Douglas and, through him, in Musgrave and Hunter to make a purchase of land for the township of Granville East just as there was authority for the purchase of land for Granville West or for the Badili lands which were firstly acquired. These Badili lands were situated on high ground to the south-east of Goldie Law and to the east of Granville West. They are shown on the prefaced plan. They were acquired before the subject land or the land for Granville West in case the Papuans should refuse to sell land more desirable for a township than the Badili lands. The reluctance of the Papuans was thought to be likely to stem from the encouragement of the Papuans to obstruction of the Administration by beachcombers who had married into the Papuan families. It is interesting to note that the possibility of Papuan reluctance to sell was not placed upon the fact that any garden existed on any of the 95 acres of land of which Musgrave speaks in his report. It is observable that where gardens are known, in fact, to have been in use, the Papuans did refuse to sell. There is a considerable official file in that connexion on the question of the ownership of the springs and the adjacent gardens which lay to the south of the Government House grounds. There is a reference in a report by Musgrave to gardens in the area of Port Moresby but their location is not indicated. The reference could have been to the gardens adjacent to the springs. These would not be located within the subject land. But in any case if there were any gardens on the subject land between 1884 and 1886 both Musgrave and Hunter must have known of that fact and of the identity of the Papuans using those gardens, and whether Motuans or Koitapuans or both. (at p386)

54. The Papuans at the time of the proclamation of the Protectorate were in great need of protection from each other because of the savagery of their reprisal raids and also from foreigners who came to the area. Such protection was included in the avowed purposes of the proclamation of the Protectorate. In the case of some other Papuans, the Doran people, their willingness to sell land to the Administration was recorded as being expressly influenced by the fact that as a consequence of doing so there would be protection for them against the raids of their neighbours. Further, apparently the Papuans stood in great need of and were desirous of obtaining the items which are called "trade" in the documents. (at p387)

55. The situation therefore in 1886 was that there had been a decision made by Douglas that a township was necessary at the port of entry. The employment of the relatively level ground at the location of Granville West and what became Granville East was evidently decided upon as the site for the two wings of the township. The Papuans had reason to accept, if not indeed welcome, the establishment of settled conditions in the area. We know from the eye-sketches what the respective shapes and approximate locations of the two wings of the township were designed to be and to occupy. Cuthbertson in reporting on his work said that he had carried out his survey in accordance with his instructions only making diversions, presumably because of physical features, which he felt were necessary. The eye-sketches which he made are quite evidently in conformity with the instructions which he had. The significant features of his report, to my mind, are these : that he had identified the four corners of the rectangle at Granville East. I do not understand a suggestion that he had not marked or, as it is said, "surveyed" these four corners. They are to be seen on his survey quite distinctly and their bearings precisely stated. He said that, as yet, the area had been sectioned into eight sections of which two had been broken up into allotments. He said that the external roads of the area he had surveyed were of two chain width and internal roads were of one chain width. (at p387)

56. It would seem that the survey was finished before the purchases by Hunter were complete. I cannot doubt that Musgrave's instructions to Hunter were to acquire so much land as would enable a rectangular area to be provided for Granville East in the approximate location shown in the eye-sketches. He could have no reason whatever for not doing so. It was the obvious and practically the only place at which to locate the east wing of the township. Thus, Hunter must have set out to acquire land which would contain, though not necessarily be limited to, a rectangular area located approximately where Cuthbertson ultimately surveyed his rectangle for East Granville. (at p387)

57. It is quite unthinkable that Hunter, dealing with a number of individual owners but in some instances perhaps with a group of owners, purchased over a period and from these owners a precisely rectangular shaped piece of land. It is also unlikely that the boundaries of the land, which the Papuans in totality were prepared to sell, coincided with a rectangle. Indeed, the actual boundaries of their land may in any case have been vague in their own minds, particularly bearing in mind the possibility that it was a usufructuary title which they claimed. When Musgrave speaks as he does in his reports of having acquired land within "the surveyed portion", he cannot in my opinion be taken as saying that he acquired for the purpose of Granville East some area which was less than the rectangle which it seems to me it was Cuthbertson's instructions to survey. He must be saying that sufficient land was acquired to serve the requirements of the intended township. (at p388)

58. Set against these facts and the situation as it was in Port Moresby at the time, I see no reason to doubt that Musgrave and Hunter did purchase the interests of the Papuans in so much land located suitably to provide a rectangular township of Granville East having an approximate area of 95 acres. It is inescapable, in my opinion, that both Motuans and Koitapuans knew of Hunter's activities in this connexion over the period of three months and of the transactions he was entering into with Papuans of the area. Hunter, for his part, by this time an experienced officer, was able to refer to Rev. W.G. Lawes and the missionaries if he were in doubt as to the identity of the person or persons with whom he was dealing. Rev. W.G. Lawes, for his part, was keenly interested in the welfare and entitlements of the Papuans. He must have been aware of Hunter's activities. (at p388)

59. I would conclude that Hunter would be most unlikely not to satisfy himself as to the claims of the persons with whom he was dealing ; the more so, since, as Rev. S. McFarlane, an experienced missionary, said in a public lecture in 1886, it was common experience to have competing claims to land by Papuans at that time. It would be very surprising if Hunter, having regard to his experience in the area, did not satisfy himself that the right of the person to whom he gave the "trade" for the land was acknowledged by his fellow Papuans as the person to receive that "trade". (at p388)

60. I have earlier mentioned the warlike nature, indeed the savage disposition, of these people. I did so having regard to the suggestion that only some Papuans of the area sold land in 1886 and that they were not proprietors of the land they purported to sell. The total number of males of both tribes in the area must at the time have been of the order of not more than five hundred. We are told that there were 800 people in all, men, women and children. The land being dealt with was in proximity to their villages. The transactions were spread over a period of three months. I find it inconceivable that there could have been a peaceful result if the Koitapuans sold Motuan land and received for it trade which was denied to the Motuans. I notice a suggestion of the Chief Justice of Papua-New Guinea that maybe some of the Papuans might have been away trading. No doubt from time to time they did so. Many were away at the time Commodore Erskine raised the flag as he records in his despatches. But, as I have mentioned, this series of purchases was spread over a very substantial period of time. There is no evidence which would make it probable that in that period a substantial number of Papuans would be away from that area. In any case, their relatives and connexions would know of the transactions. Hunter's activities must have been an event of great importance and no doubt so treated by the local inhabitants. I feel quite sure Hunter would have been apprised if there had been an absent claimant to any of the land. According to the references to him in the official documents, Hunter showed himself an officer of such quality that he would be unlikely not to have ensured that the absent owner was consulted or the transaction left over until he returned. Further, Aoudou, to whom I have already referred, accompanied him when making his transactions. (at p389)

61. I find these probabilities much more convincing than anything I have read in the evidence given before the Commissioner by Daera Guba or heard from counsel on this appeal. It is quite unacceptable to my mind that the real claimants to the land or even their relatives or connexions stood by whilst others without claim to it were given coveted items of trade as its price. As I have said, these were belligerent people given to quite savage, at times quite inhuman, acts of revenge or reprisal where it was felt or even imagined that some wrong had been done to themselves or their kinsfolk. I just cannot conceive that a proceeding with respect to the acquisition of land, publicly carried out because of the habit of walking the bounds, could have resulted in other than carnage if the rightful claimants were not satisfied parties to the transactions. Nor can I believe that the missionaries, who appear in the official records to have been highly solicitous for the land interests of the Papuans would not have intervened. With transactions spread over a matter of months, it is quite unlikely tha the missionaries would not have become aware of what was happening to land in sight of the mission station. (at p389)

62. In my opinion, the decision of the Chief Land Titles Commissioner that the land was bought from the wrong clan is insupportable. On the narrowest view, there was, in my opinion, no evidence to support it and on the widest view it was not in accordance with the evidence and is against its weight and significance. There is no need in order to support the conclusion that the claimed land was purchased by the Administration in 1886 to decide which clan was claimant to any specific part of the land purchased. Suffice it to conclude that the people of both clans must have known of and if both were claimants, participated in the transactions. In any case they must have been satisfied with the purchases. (at p390)

63. I would conclude therefore that there was a purchase for value by the agents of the Crown of a total area of at least, but probably more than, 96.6 acres of land which included the whole of the interests in the subject land, Era Taora, from those Papuans of the Port Moresby district who were then the proprietors of the parcels of land making up that total, and that those Papuans then voluntarily sold their interests in the land to the Crown through its agents for items of trade with which they were then content. (at p390)

64. As I have said, it is not to be thought that Hunter in making his sundry purchases from the Papuans would confine himself precisely to a rectangular piece of land, though Cuthbertson had concluded his physical survey by 9th September 1886. There would be little sense in leaving over to the Papuans some small areas on the margins of the rectangle, particularly having regard to the nature of the trade exchanged for the right to the land. If Era Taora was a specified parcel of land in Papuan proprietorship in 1886, then in my opinion it is more than improbable that Hunter would not have acquired the whole of it, though in truth its eastern boundaries did not correspond precisely with the eastern boundary of the rectangle marked out by the four corner pegs set by Cuthbertson. Nor would it be likely that the Papuans would keep such small areas so created. I doubt if that area was suitable at that time for gardens. At any rate, nobody has suggested that it was. (at p390)

65. I turn now to deal with the identity of the purchased land within the surveyed rectangle of East Granville. (at p390)

66. Before doing so, I will digress to deal with a matter to which considerable argument was devoted both in the tribunals of Papua-New Guinea and in this Court, namely, as to the effect of the Foreign Jurisdiction Acts 1843, 1865, 1866, 1875, 1878 upon events in the Protectorate. It seems to me that the submissions based on those Acts were misconceived. The purpose of the Foreign Jurisdiction Acts was to enable the Crown to set up courts and exercise jurisdiction over British subjects in foreign places where the Crown had acquired rights of dominion short of sovereignty. The purchase of land or of interests in land consensually, in my opinion, is not affected by those Acts. Such an acquisition is not an exercise of jurisdiction over any person in any relevant sense : and particularly not an exercise of jurisdiction over British subjects. It seems to me therefore quite unnecessary to discuss the scope of the Foreign Jurisdiction Acts, though it might be remarked that both Major-General Scratchley and Special Commissioner Douglas had their difficulties in dealing with offences by Papuans having been formally given jurisdiction over British subjects only during the time of the Protectorate. (at p391)

67. In the course of discussion of the Foreign Jurisdiction Acts and as part of an argument that the Special Commissioners during the period of the Protectorate had no authority to acquire land for a township, reference was made to the limited authority taken by the proclamation of a Protectorate. It is fairly clear that as of 1884 the view of the Crown advisers was that proclamation of a Protectorate could not give to the Crown any jurisdiction over foreigners or over the indigenous people of the area over which the Protectorate was proclaimed. This, in my opinion, was an erroneous view. It was then and certainly is now. It seems to me that the extent to which the Crown obtains power over British and non-British persons in a Protectorate depends very much on the purposes for which the Protectorate is proclaimed and the situation in the area of the Protectorate, particularly as regards local sovereignty or authority. The Protectorate declared in 1884 is a very good example. The express purpose of establishing the Protectorate was to protect the Papuans, both from foreigners, British subjects and, indeed, from themselves in order that they might enjoy the use of their land in peace. That purpose could not be carried out without exercising authority both over the foreigners and the Papuans as well as over British subjects. The usual purpose of the declaration of a Protectorate was really absent in relation to Port Moresby, that is to say, the purpose of taking charge of external relations of the community occupying the Protectorate. There was little possibility of there being any external relations for Port Moresby beyond the physical exclusion of non-indigenous people who might come either forcibly or deceitfully to take Papuans' land or the Papuans themselves for use as agricultural workers elsewhere. It seems to me that so far as acquisition of authority over the Papuans was concerned, it should have come with the declaration of the Protectorate. (at p391)

68. However, it is quite proper, in my opinion, when construing the instructions given to Major-General Scratchley and Special Commissioner Douglas, to remember that the then current view was to the contrary : and the instructions denied the Special Commissioner the authority which, in my opinion, the declaration of the Protectorate of the area of Port Moresby could have warranted : hence the attraction of judicial authority for the Special Commissioners through appointments under the Western Pacific Order in Council. (at p392)

69. But even so, bearing in mind what I have already said as to the intention with which the Protectorate was established, those instructions were, in my opinion, quite ample to warrant the purchase of land from the Papuans. The purchases which took place were, in my opinion, within the direction "to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient". The acquisition of land for a township was clearly, in my opinion, in the interest of the service of the Crown. (at p392)

70. During the period of the acquisition of such land, there was an interchange of correspondence by and with Rev. W.G. Lawes and Special Commissioner Douglas as to the acquisition of land compulsorily from Papuans. But the objection raised by the missionary was to wholesale compulsory acquisition with a view to sub-sale to settlers and to the encouragement of large-scale settlement. Though the British Government in its communications with Douglas required a standstill so far as compulsory acquisition was concerned, there was certainly no attempt to interfere with his purchases of land consensually. Further, it does not appear that Rev. Lawes pursued the matter beyond the stage which the correspondence represents. I do not know whether Rev. Lawes saw Musgrave's report upon his, Rev. Lawes', letter but, for my part, that report adequately answers the criticism which the Rev. Lawes sought to make, even allowing for some antipathy which may have existed between the officers and the missionaries. But, as I have said elsewhere, the question of authority to acquire consensually is really not worth pursuing because of the adoption by the Government and the Administration of the purchases by numerous subsequent Acts. (at p392)

71. It was submitted that the omission to cause an instrument conforming to the requirements of s. XVIII of the Crown Lands Ordinance 1890 of British New Guinea to be recorded in the office of the Registrar-General destroyed any title to the subject land which the Crown may have had before the passing of that Ordinance. The Ordinance was passed on 12th November 1890. Part II of that Crown Lands Ordinance provided that :

"Where the fee-simple in land in respect of which no Crown
Grant has ever been issued is acquired by the Crown from the
owners of such land the acquisition by and the transfer to the
Crown of such land shall be taken in the name of Her Majesty
and shall be attested by an instrument in writing under the
hand of the Administrator and the Seal of the Possession which
shall be recorded in the office of the Registrar-General as
hereinafter directed." (s. XVIII)

By s. XX of that Ordinance the provisions of s. XVIII were made
to apply to all purchases of land "made on behalf of the Crown by
any officer of the Crown at any time prior to the passing of" that
Ordinance, including the period of the Protectorate.

But little need be said of the submission. Part II of the Ordinance
is not directed to the granting or confirmation of title to land.
Expressed in mandatory terms it is concerned with the recording
of land transactions. It is not in terms or intention privative.
How far, if at all, the local administration could validly bind the
British Crown in such a matter as the title to land which had been
acquired by the Crown need not be considered, for the submission
clearly lacks substance.

I turn now to the question of the identity of the land purchased.
Here the contention is that only the land marked out by Cuthbertson
as sections on his survey was acquired. The foundation of much
of the argument in support of this claim is the circumstance that
in his final survey Cuthbertson laid out only eight sections of the
intended township, or possibly eight full sections and two half
sections. Emphasis is thus placed on the U-shaped area which is
not subdivided at all, called in argument the "inner rectangle".
(at p393)

72. A great deal of time and effort has been employed by the officers of the Administration and the tribunals of Papua-New Guinea both in connexion with the present claim and in connexion with earlier claims, in an endeavour to find precise correspondence between areas mentioned in reports and despatches and the survey made of the Port Moresby area by Cuthbertson. I have already indicated the complete improbability that the land acquired corresponded precisely with the rectangular plan of East Granville, or with the actual area included in the four external survey pegs of that rectangle. It is probable to the point of certainty in my mind that the area acquired exceeded the boundaries of that rectangle, e.g. area 5 on the prefaced plan if in truth it ever formed portion of Era Taora. But, as the additional areas beyond the content of that rectangle were likely to be small and insignificant for the purposes of the Crown and as undoubtedly these were not indicated by any fixed points of survey or identification, it sufficed the purpose of the officers of the Crown to speak of the content of the rectangle as the area of land acquired. It will be noticed in this connexion from the material in the case that the boundaries of the Badili lands walked with the vending Papuans enclosed a larger area than that ultimately surveyed. But it is a proper inference, as I have said, that the whole of Era Taora, as now described by Daera Guba, was purchased in 1886. That means that the small areas marked 1 and 7 on the prefaced plan [1973] HCA 59; [1973] HCA 59; (1973) 130 CLR 353, at p 367 as well as the area marked 5 were acquired, though as now claimed they are outside the boundaries of the rectangle constituting Granville East. It may well be that on this footing the small area no. 1 on the prefaced plan, which is now no longer in dispute, might have been claimed by the Administration and that an area between the boundaries of the rectangle and that small area (area no. 7) need not have been purchased as in fact it was. But so to say is not to criticize the caution exercised by officers of the Administration in times of uncertainty. (at p394)

73. Bearing in mind the eye-sketch, the decision to create the township, and the availability of the land, I cannot conclude that Musgrave and Hunter would purchase only enough land to provide a U-shaped township, if indeed that shape could have been thought in the least to be practical. These men, judged by the reports and despatches, had that farsightedness which was at times displayed by those entrusted with the creation of colonies. A U-shaped township with indigenous use of land as of right in the "inner rectangle" would, to my mind, have been anathema to them. (at p394)

74. Further, one could scarcely expect any precise correspondence in accounts of areas acquired when in any case they were estimates. They should not be approached at this remove of time as if they were surveyor's calculations. But, having listened to the arguments of counsel and read what has been written by officers such as Mr Champion and by the judges of the Supreme Court, I find no such inconsistency in the accounts and estimates given and referred to in the reports and despatches as would convince me that I should conclude that insufficient land was purchased to provide land for a township of Granville East, rectangular in shape and placed between the four survey pegs placed by Cuthbertson at the four corners of the surveyed rectangle. The fact that the Badili lands were acquired against the possibility that the Papuans would refuse to sell the desired land and that the Badili lands were not used for a township eloquently confirms Musgrave's account of Hunter's acquisition of all the necessary land within the surveyed area which, in my opinion, cannot be confined to the U-shaped area on which so much store has been set by the applicant's counsel. (at p394)

75. It must be borne in mind that Cuthbertson was short of time to do his work of surveying, he had had inclement weather and he had suffered some physical inhibitions. It is observable from his contours that the area within the U-shape on the survey is the beginning of a slope or hillside marked as stony ridges, a part which no doubt could be left till last in the development of the town. He said in his report that the external roads of his surveyed area were of two chains width and internal roads of one chain width. That statement can only be true, in my opinion, of a complete rectangle constituting Granville East, although in his plan he did not carry the external road on the east right through from north to south of the rectangle. External roads of that area are not two chains in width and, indeed, there is no external road along the half sections shown in Cuthbertson's survey or, if the half sections are ignored there is only a one chain road along the eastern boundaries of sections of IV and V. As I have already mentioned, too much emphasis, in my opinion, has been placed on the fact that Cuthbertson did not complete the subdivision of the entire rectangle, so much so that the other obvious and convincing factors to which I have referred have been overlooked or their importance neglected. Indeed, Cuthbertson himself observed in his report that what he had done would enable the sub-division to be completed by merely chaining off from the surveyed marks he had put in place. (at p395)

76. It is apparent to me that the officers of the Administration over the years have been undecided as to the exact position in law of the title to the claimed land. Also, the decision of the British Government not to dispossess the Papuans of the use of their land upon annexation apparently has created considerable difficulty in administration because of the uncertainty of the extent and nature of the claims of Papuans, the identification of land to which any Papuan claims related and of the effect of occupation or settlement of the country by the British. The various attempts by ordinance to provide for the resolution of these titles is sufficient evidence of this concern on the part of the Administration. (at p395)

77. Indeed, this uncertainty has led in my opinion to a number of incidents in connexion with the claimed land. In the first place the small area marked 1 on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 has not been treated as covered by the purchase, as in my opinion it was, if it formed part of Era Taora in 1886. Secondly, an area along the external boundaries of the rectangle, the area marked 7 on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 , was purchased in 1956 and 1957 from the Papuans whereas again, in my opinion, if it formed part of Era Taora in 1886 it was included in the purchase and, thirdly, a lease was taken in 1931 from Daera Guba and other Papuans of land surrounding a well, evidently in my opinion by an Administration which was unsure of the result of the purchase in 1886. (at p396)

78. I might at this point, having mentioned the lease of the land surrounding the well, relate the brief circumstances of this lease. (at p396)

79. A lease of an area of about 15 acres was granted by the Administrator in the year 1928 to Port Moresby Golf Club for a golf course. Within the area there was a well near which Papuans gardened. The Administrator took a lease of an area of about .875 acres which included the well from a group of Papuans which included Daera Guba for the term of thirty years at a yearly rental of $2 per year payable in cash in full on the execution of the lease. The lessors, eleven in all, were described as of the village of Poreporena situated at Port Moresby harbour. No satisfactory identification of the actual position of this well now seems possible. But the fact of the taking of this lease was much relied upon as indicating a continuing title in the Motu inhabitants. But, in my opinion, the lease was erroneously taken by an official or officials who were unaware of the real state of the title to the land. (at p396)

80. It is known from the material in the case, including evidence given by Papuans, that the Administration had allowed Papuans to garden on lands of the Crown not in use by it, including some parts of the land acquired for East Granville. Doubtless the lack of any memorandum made of the purchase of the 96.6 acres and failure to prepare an acknowledgment of the acquisition by the Crown as required by the Ordinances contributed to the official uncertainty as to the state of the title to the claimed land or parts of it. But, in my opinion, the taking of the lease for this small area of land mistakenly, as I think, conceding a title to it in the Papuans affords no ground to doubt the conclusion to which I have come as to the agreed purchase in 1886. (at p396)

81. Finally, in connexion with the identity of the land purchased, I should perhaps observe that we do not certainly know if all the land suitable for an eastern section of the town of Granville was claimed in 1886 to be owned by the Papuans. It is said, however, by Rev. Lawes that there was little if any land in the Port Moresby district which could be said to be ownerless. But there is, as I have said, insufficient evidence given by or on behalf of the Papuan claimants to establish their title to or any right to the subject land. No doubt Musgrave and Hunter assumed that there were such claims to ownership of all the land in question in the Port Moresby district and dealt with the clansmen, whether Motuans or Koitapuans, accordingly. I have made the same assumption in what I have written. I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connexion (as to which see generally Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141 , and more recently Calder v. Attorney-General (British Columbia) (1973) SCR 313 in the Supreme Court of Canada), the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter. (at p397)

82. It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognised a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land. Commodore Erskine by his proclamation of the Protectorate announced that no acquisition of land from Papuans would be recognized by Her Majesty, referring, of course, to acquisitions by others than Her Majesty or by persons on her behalf. Early ordinances prevented the acquisition of land from Papuans and they were forbidden to sell land except to the Administration. (at p397)

83. But none of this activity on the part of the Crown was inconsistent with the traditional result of occupation or settlement, namely, that though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown. Whether the subsequent legislative history of the Territory denies that traditional position is a matter with which I am not presently concerned. (at p397)

84. Holding the view I have expressed as to the extent of the purchase made in 1886, there is no need for me to discuss the suggested invalidity and ineffectiveness of the Order in Council of 19th August 1901. Consequently, I shall say no more than that I see no reason to think it was void. (at p397)

85. There remains a question as to the validity of the appointment of the Land Board in 1954 and as to the effect of its decision. (at p397)

86. Sections 8 and 9 of the Land Ordinance 1911-1953 (Papua) are as follows :

"8. The Lieutenant-Governor may from time to time by
Order in Council published in the Gazette declare that any land
which has never been alienated by the Crown and of which
there appears to be no owner will unless cause be shown to the
contrary within the period specified in such Order becomes
Crown land.
Every such Order in Council shall set forth the name or
names (if any) by which such land is known with a description
thereof made from an actual survey or a diagrammatic sketch
of the same the position of the land an estimate of its area and
a statement showing as far as known how long it has been
unused by natives.
From and after the expiration of the time limited by such
Order in Council the lands referred to therein shall be and be
deemed to be vested in His Majesty for an estate in fee simple.
Provided that the Lieutenant-Governor shall at any time
before the expiration of the time so limited and may at any
time thereafter take into consideration any claim to such land
or any interest therein made by or on behalf of any alleged
owner thereof and if he allows such claim may either by
another Order in Council published in the Gazette declare that
the Crown disclaims its title to such land in which case the
land shall not then vest in His Majesty or becomes Crown land
or if it has so vested shall be divested from His Majesty and
cease to be Crown land or he may acquire the right of such
owner in manner hereinbefore provided.
9. It shall be lawful for the Lieutenant-Governor by
Proclamation in the Gazette to appoint a Board or Boards to
decide all questions as to waste and vacant lands or lands
alleged to be waste and vacant and all cases of disputed
ownership of land in which a Papuan native is a claimant. The
Board in giving its decision shall be guided by the principles
of equity and good conscience and shall not be bound by rules
of evidence or legal procedure.
An appeal shall lie from the Board to the Central Court.
The practice regulating such appeals shall be as laid down in
regulations to be made by the Chief Judicial Officer and
published in the Gazette." (at p398)

87. Claims having been made to an area of land not identical with and lesser in area than Era Taora as now claimed and to other areas, by various claimants, the Administrator purporting to exercise his powers under s. 9 of the Ordinance by proclamation dated 9th September 1954 appointed certain persons to be a Land Board to decide :

"(1) whether there is a dispute as to the ownership of any
of the areas of land described in the Schedule hereto ;
(2) where a dispute is found to exist who are the disputing
parties ;
(3) where a dispute exists is one or more of the disputing
parties a Papuan Native ; and
(4) if a dispute exists and one or more of the disputing
parties is a Papuan Native who is the owner or who are
the owners of the land the subject of the dispute."

88. Before this Board, Daera Guba claimed part of what he now claims to be Era Taora. The north-south boundary on the east of Era Taora was then placed much more easterly than he puts it now : but his claim was on behalf of the Tubumaga Idibana, as was his written application in the present case, and not expressly on behalf of the whole clan. The Board gave due notice of its inquiry and made extensive endeavours in calling for claimants to the lands in question. The Tubumaga Laurina claimed a portion of land contiguous to the boundaries of Era Taora as now claimed. The Board had a great deal more evidence from Papuans as to the pre-annexation days and as to subsequent events than did the Chief Land Titles Commissioner. However, none of the Papuans who gave evidence had personal knowledge of the events of 1886 though one Papuan witness had been a youth at the time; such knowledge as he had was thought by the Board to confirm the fact of a sale of at least some part of the land in dispute in exchange for trade. (at p399)

89. The Board's reasons are clearly expressed in its report and findings. It appears that the Papuan claimants were all represented by the one counsel. The hearing stretched over four days in October 1954. Counsel for the Papuan claimants announced that all claims to areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle lettered WXYZ on a plan before the Board were abandoned by his clients. This area is the same as that similarly marked on the prefaced plan and is "the inner rectangle", or at any rate the major portion thereof, to which reference is elsewhere made. At times the area ZWXY on the prefaced plan [1973] HCA 59; (1973) 130 CLR 353 at p 367 is spoken of as the "inner rectangle", the difference in reference deriving from different views of the extent of Cuthbertson's subdivision. There is some obscurity as to the extent of counsel's concession. But the important matter, in my opinion, is not counsel's concession but the Board's finding. The Board answered the questions which had been referred to it as follows:

"Question
(1) Whether there is a dispute as
to the ownership of any of the
areas of land described in the
Schedule hereto.

Answer

Yes.

(2) Where a dispute is found to
exist who are the disputing
parties.

Answer

The disputing parties are
the Government and
certain native claimants who
are referred to in the
opening parts of this
report.
(3) Where a dispute exists is one or
more of the disputing parties a
Papuan Native.

Answer

Yes.

(4) If a dispute exists and one or
more of the disputing parties is
a Papuan Native who is the
owner or who are the owners of
the land the subject of the
dispute.

Answer

The Government."

90. Two submissions have been made in respect of the decision of the Land Board. (at p400)

91. First, it is said that the Board was not validly constituted. The reasons given are those which found favour with the learned Chief Justice of Papua and New Guinea. The first step in this reasoning seems to have been that s. 9 is but an ancillary provision to s. 8 and not an independent provision. It is then said that because all questions as to waste and vacant lands and all cases of disputed ownership of land in which a Papuan native was a claimant could be referred to a Board, the provisions of s. 9 cannot literally be applied and that the only questions which could be referred to a Board, even if particular questions could be referred at all, were questions such as had or could have arisen under s. 8. Therefore the Board appointed by a proclamation in 1954 could not have been validly constituted to consider the questions submitted to it. (at p400)

92. I must say with due respect to the judges of the Supreme Court that I am at a loss to understand why s. 9 is not an independent provision or why it is in any case tied to the provisions of s. 8. The evident purposes of the two sections are quite disparate. I very much doubt whether the Administrator could refer to a Land Board a claim by a Papuan to land which had already been embraced in an Order in Council made under s. 8. That section places the "allowance" of the claim in the Administrator's hand for decision. Section 9 expressly gives the Board the power to decide the questions referred to it and provides for the decision of the matter by a court of appeal. But I need not express a final opinion on this point. (at p400)

93. Section 8 provides for the vesting in the Crown of what I might call "ownerless" land. Ample opportunity is offered for claimants to put forward a claim to its ownership. The provision requires the Administrator to take into consideration any such claim made during the time limited for making such claims and empowers him thereafter at any time to take into consideration a claim that, prior to the making of the Order in Council, the land was owned by the claimant. I phrase the claim in that form because, in my opinion, a successful attack could not be made on an Order in Council on the ground that land embraced in its operation was not ownerless. The appearance of there being no owner is at best the basis for the Order. The period for showing cause, without cause being shown, affords confirmation of that appearance. Thus a claim out of time is in the nature of an appeal for an indulgence. (at p401)

94. But in either case the decision upon the claim must be that of the Administrator. The result of his decision is an Order in Council, whether or not the claim is allowed, by the Administrator. (at p401)

95. In high contrast to this provision, s. 9 gives the Administrator power to appoint a board to decide the question referred : and it provides for an appeal to a court of law from the decision of the Board. It needs no argument that the Court does not act as an adviser to the Administrator in the hearing of an appeal on the question of the ownership of land. (at p401)

96. It may be, of course, that before the Administrator sets in motion the machinery of s. 8, he may set up a Land Board and refer to it for its decision the question whether particular lands are waste and vacant lands, or alleged so to be. Thereafter he may use s. 8 according to the way the Board decides, but he will be bound, in my opinion, by the decision of the Board. (at p401)

97. The reason why it was thought by the Chief Justice that s. 9 could not be read as applying to all disputes was that it was inconceivable that the Ordinance should intend by s. 9 to take away the jurisdiction of the court which had cognizance of all such cases where a claim of right to land was made by a Papuan or a question raised as to whether land was waste and vacant. But quite clearly s. 9 does not deprive the courts of any jurisdiction they may have. It enables, in my opinion, a binding decision to be made on the matter referred to the Board ; by the Board in the first instance and by the court on appeal. That decision will bind the parties before the Board and their privies or those who have had due opportunity to be before it. In appropriate circumstances it will be treated as binding in litigation before the courts. None of these results of s. 9 or of action taken under it touch the jurisdiction of the courts. (at p401)

98. In my opinion, the meaning of s. 9 is that the Administrator may appoint a Board to decide any question as to whether specific land or areas of land are waste and vacant lands and also any dispute as to the ownership of land to which a Papuan is a claimant. Full effect, in my opinion, should be given to the words of the section which need no qualification when it is understood that in the case of waste and vacant lands the question is whether they are in truth such and when it is understood that the claim to ownership is not limited to claims to ownership of lands alleged to be waste and vacant. The section presupposes that the Administrator will in the course of his administration become aware of disputation as to the ownership of land where Papuans are concerned : disputes where the competing views are on the one hand that the land is waste and vacant land not in the ownership of any person and on the other that it is owned by a Papuan who claims it; and also disputes where there are competing claims to ownership, one of which is by a Papuan. Of course, the former dispute could be determined by the Administrator after he had made an Order in Council under s. 8. The latter could be determined in litigation in the courts of the Territory. But the provision for the appointment of an ad hoc tribunal to determine all these disputes seems eminently suitable to the conditions of the Territory : and, in my opinion, s. 9 evidences a clear intention that such a tribunal might be set up with power to decide the disputed questions. (at p402)

99. In my opinion, therefore, it is abundantly clear that a Board appointed pursuant to s. 9 of the Ordinance was not limited to dealing with waste lands which had been dealt with or fell to be considered under s. 8. Power was given to the Board to decide ownership in the case of all disputes on that question. "All" in this context means "any" dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to the ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board's power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board's decision was an entry on a register with the intention of giving absolute finality to the matter. See Land Ordinance s. 6. In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person have had the opportunity of claiming or of being heard. (at p403)

100. It is said by Daera Guba that he was representing in the instant proceedings the whole Tubumaga clan, that is to say, the Idibana and the Laurina sides of it. Before the Board in 1954 Daera Guba had appeared as representing the Tubumaga Idibana but the Tubumaga Laurina were also parties before the Board. True, they were not claimants of the present areas of land but they clearly stood by while Daera Guba laid claims to those lands on behalf of one side of the clan ; they had opportunity to claim the land. (at p403)

101. We have no information as to what would be the consequence of one section of the clan succeeding in a claim to this land. I would suppose that it would really be a decision that the clan owned the land and that the question of the respective rights and interests of both sides of the clan would have to be separately entertained and determined. I have no need to pursue that matter in order to resolve this case. The Tubumaga Laurina were bound by the Board's decision both because, being notified of the hearing and invited to make such claim as it thought fit, it attended the hearing and made no claim ; and also, having stood by and allowed the Tubumaga Idibana to claim the land, it cannot now dispute the result. Nana Ofori Atta II. v. Nana Abu Bonsra II. (1958) AC 95 lends support to this view of the matter. (at p403)

102. In my opinion, the decision of the Board was a final decision. It was a decision which bound Daera Guba, his privies and the Tubumaga Laurina : and it bound the Land Titles Commission. I suppose there could not be a better justification for resort to the principle of estoppel than the present case. The Land Board had witnesses of whose evidence the Land Titles Commissioner did not have the benefit. We are told that every encouragement was given to the Tubumaga people and, indeed, to the Papuans generally to tell all they knew or thought they knew about the title to the ownership of the lands about which the Board was inquiring. No appeal was brought from the Land Board's decision but now, twelve years later, it is sought to agitate the same question again and with lesser information than was available to the Land Board. In a developing society, such as the one with which we are concerned, nothing, in my opinion, could be more destructive of confidence in the law than a renewed agitation of a matter fully investigated and decided. (at p404)

103. Thus, in my opinion, if contrary to my own opinion it should be thought that the whole of Era Taora was not acquired in 1886, the decision of the Board in 1954 established the ownership of Era Taora by the Administration and precluded the further examination by the Land Titles Commission of that question. (at p404)

104. For these reasons I would allow the appeal, and reinstate the decision of Clarkson J. (at p404)

McTIERNAN J. I have had the advantage of reading and considering the judgment of the Chief Justice which he has just handed down and I entirely agree with it. (at p404)

MENZIES J. This appeal arises out of competing claims made to the Land Titles Commission of the Territory of Papua and New Guinea that land in Port Moresby, known as Era Taora, is, in truth, native land notwithstanding that in the years since 1886 parts of the land have been dealt with as land of the Administration. The Commission held that the land belongs to the Tubumaga clan, the claimants represented by Daera Guba and no part of it belongs to the Giakone clan, the claimants now represented by Lohia Doriga. An appeal to Clarkson J. by the Administration succeeded but an appeal by Lohia Doriga failed. Upon appeals to the Supreme Court of the Territory the decision of the Land Titles Commission was restored. (at p404)

2. In the judgment of the Chief Justice and Gibbs J., which I have had the advantage of reading, the whole case has been so carefully examined and the results of that examination so fully and clearly stated that any further statement by me would be but needless repetition. (at p404)

3. There is, as I see it, but one point of significant difference between the Chief Justice and Gibbs J. which relates to the extent of the land actually purchased for the Government by Robert Hunter in 1886. As to this I have reached the conclusion that the whole of Era Taora was then purchased. When, in November 1886 - a few months after Hunter's purchases - the Assistant Deputy Commissioner, Anthony Musgrave, reported that 95 acres had been purchased by the Government under the description "Granville East Township" he was, I think, referring to the area of 96.6 acres at Granville East included in the rectangle formed by and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street. That this was so is, I think, confirmed by the annual report on British New Guinea for the period 1888-1889 made to the British Government by the Administrator, William Macgregor. His figure of 553 acres accords with Musgrave's figure of 552 acres of land purchased for the Government at Granville East. Certainly Daera Guba has not shown that any of the rectangle - and in particular areas nos. 2 and 3 on plan "J" - remained native land after Hunter's purchases for the township at Granville East. The same can, I think, be said about area 5 on plan "J", although it may be that the Administration's title to this area rests more securely upon the Order in Council of 19th August 1901 than upon the purchase of lands in 1886. (at p405)

4. I agree with the judgment of the Chief Justice and, with the one slight qualification to which I have referred, I also agree with the judgment of Gibbs J., including what he has written about the Order in Council dated 19th August 1901. If area no. 5 did not become the property of the Administration in 1886, it did in 1902 ; if the whole of areas nos. 2 and 3 did not become the property of the Administration by purchase in 1886, the title of the Administration was nevertheless established by the decision of the Board against the Tubumaga on 21st October 1954 which now estops Daera Guba. (at p405)

5. I would therefore allow the appeal of the Administration and restore the judgment of Clarkson J. (at p405)

GIBBS J. This appeal concerns the ownership of a tract of land in what is now the Newtown area of Port Moresby in the Territory of Papua and New Guinea. The proceedings were commenced on 7th February 1966 by an application made to the Land Titles Commission under s. 15 of the Land Titles Commission Ordinance 1962 (Papua and New Guinea) (as amended). Section 15 (1) of that Ordinance provides :

"The Commission has, subject to this Ordinance, exclusive
jurisdiction to hear and determine all disputes concerning and
claims to the ownership by native custom of, or the right by
native custom to use, any land, water or reef, including a
dispute as to whether any land is or is not native land and may
make all such preliminary inquiries and investigations as it
deems necessary for the purpose of hearing and determining
the disputes and claims."

2. To explain the position of the rival claimants it is necessary to mention that in 1884, when a British Protectorate was declared over part of what later became British New Guinea and later still the Territory of Papua, the villages in the neighbourhood of Port Moresby were inhabited principally by two tribes, the Motu and the Koitapu (sometimes spelt Koitapo). It appears that the Koitapuans were the original inhabitants of the district, but that of course does not necessarily mean that they were the original owners, or the owners in 1884, of any particular area of land there. The language and customs of the Motuans were originally different from those of the Koitapuans, but the villages of one tribe were often built very close to those of the other and association and intermarriage took place between members of the two tribes. Poreporena was a Motuan village and Hohodae was Koitapuan ; together they formed part of a larger collection of villages known as Hanuabada. Within each village there were smaller units called iduhu. An iduhu was a clan or group of people who were, speaking generally, relatives as well as neighbours. The members of an iduhu were (to state the matter broadly and rather imprecisely) the descendants of a common ancestor and the wives of the male descendants (and sometimes, but more rarely, the husbands of female descendants) of that ancestor who lived in one or more of the lines of the houses of which the village was comprised. The houses were built on piles over the sea, and usually an iduhu consisted of two parallel lines of houses (with an anchorage for canoes between them) and in that case the iduhu had two branches, that occupying the houses on the left-hand side being known as Laurina and that on the right, Idibana. The Tubumaga is an iduhu of Poreporena village and the Geakone (more usually in the evidence spelt Giakone) is an iduhu of Hohodae. Daera Guba described himself of Tubumaga Idibana, but he said at the hearing before the Commission that he was representing both branches of the Tubumaga clan. (at p407)

3. The two applications were heard together before the Commission constituted by the Chief Commissioner. Daera Guba gave evidence that the land in question had always belonged to the Tubumaga people. He said that his grandfather had made gardens on the land before the missionaries came to Port Moresby (namely, 1874) and that later his father and he himself had made gardens there. His own recollection extended back before the 1914-1918 War. He said that gardening on the land ceased after the Second World War when the Government put buildings on the land. His evidence was in some respects supported by a number of other witnesses. Little attention was paid in any of this evidence to the boundaries of the land on which the Tubumaga had their gardens, but Daera Guba asserted that the whole of the land the subject of the application belonged to his people. It appeared, however, that a comparatively small part of the area claimed had been the subject of sales to the Administration in 1956 and 1957 and Daera Guba withdrew his claim to that part of the land. Lohia Doriga, on the other hand, asserted that the Giakone were the rightful owners of the land. He admitted that the Tubumaga had gardened on the land but said that this had been done by permission of the Giakone which had been given, at least on one occasion, because a Tubumaga woman had married a Giakone man. Other witnesses, including one, Kora Nek, called by the Administration, supported his assertion that the land had been Giakone land. The evidence given by both the Tubumaga and the Giakone witnesses was to some extent vague and conflicting - which is not a matter of criticism or suprise since they were dealing with events that occurred so long ago - but it is unnecessary to discuss it in further detail at the present stage, although some further reference to it will be made hereafter. (at p408)

4. It will have been observed that, although the applications were expressed to be made on behalf of the descendants of the two named ancestors, the evidence given in support of them was respectively that the land belonged to the Tubumaga and to the Giakone people - that is, the claims as put forward in evidence were to communal ownership in the iduhu rather than to individual ownership. (at p408)

5. The Administration does not appear to have contested that the land was originally in native ownership. It will be sufficient to state at a later stage of this judgment all the contentions on which the Administration relies in support of its claim that the land should now be held to belong to the Administration, but one of its submissions should be noted since it involves issues of fact on which the Chief Commissioner made a finding. It was claimed on behalf of the Administration that in 1886 the land was purchased from the native owners and that the officer who actually effected the purchase was one Robert Hunter. Most of the evidence in support of this claim was documentary in character. The Tubumaga witnesses denied that they had ever heard of any purchase but Lohia Doriga admitted that he had been told by his people that all of Era Taora had been bought by Bob Hunter on behalf of the Administration ; he said that this sale, which he described as a sale "by the Koitapo people", occurred "in Macgregor's time" or, as he later said, "at some time before the Governor Murray time". Although it will be seen that the alleged sale did not take place "in Macgregor's time" it may serve to give some idea of the time of which the witness was speaking by mentioning that Sir William Macgregor was Administrator (and later Lieutenant-Governor) of British New Guinea from 1888 to 1898 and that Sir Hubert Murray's administration commenced in 1907. Other witnesses said that they had heard the story of a purchase by Bob Hunter, although they did not expressly say that the sale was made by the Koitapuans. (at p409)

6. The Chief Commissioner said that he accepted the evidence of the Tubumaga witnesses and held that at all relevant times the Tubumaga clan were the owners of the land the subject matter of the appeals and that except for the land the subject of the transactions in 1956 and 1957 they had never sold any of it. He further found that the Giakone clan had, as such, no rights in the land but that the Giakone had purported to sell the land to the Administration. He rejected the other contentions made by the Administration and declared that the land (except the parts subject to the sales made in 1956 and 1957) was native land and is owned by the Tubumaga clan, the present leader of which is Daera Guba. (at p409)

7. From this decision Lohia Doriga and the Administration brought appeals to the Supreme Court of the Territory of Papua and New Guinea. The appeals were heard by Clarkson J. who held that the appeal of Lohia Doriga should fail but that the Administration's appeal should be allowed. Since different considerations were applicable to different portions of the land, his Honour, for the purpose of explaining his decision, prepared a design in which he showed the land as divided into six areas. It will be convenient to incorporate in this judgment, at this point, a plan (to which I shall hereafter refer as "plan 'J'") [1973] HCA 59; (1973) 130 CLR 353, at p 367 . This plan is included to enable what is about to be said to be more readily understood and makes no pretensions to complete accuracy. It shows the eastern shores of Port Moresby in 1886, including a surveyed area described as Granville East, the significance of which will be later explained, and the land the subject of the applications, which is the irregularly shaped area extending across and beyond the southern part of Granville East. The six areas to which his Honour referred are shown on this plan and marked with Arabic numerals. A seventh part of the subject land, which is unnumbered, lies between the eastern boundary of Granville East and area no. 1, and includes also the eastern half of that part of Castlereagh Street which falls within the boundaries of the subject land - this is the land which was bought by the Administration in 1956 and 1957 and was no longer the subject of dispute. The learned trial judge awarded area no. 1 to Daera Guba on behalf of the Tubumaga but awarded to the Administration areas nos. 2 to 6. (at p409)

8. Both Daera Guba and Lohia Doriga appealed from this decision to the Full Court of the Supreme Court of the Territory which, by a majority, allowed the appeal of Daera Guba, dismissed the appeal of Lohia Doriga and restored the order of the Commission. The dissenting judge (Prentice J.) was of the opinion that the judgment of Clarkson J. should be affirmed. The Administration has obtained leave to appeal to this Court from the decision of the Full Court and Lohia Doriga also appeals. (at p410)

9. Before turning to the facts of the case and the arguments submitted by the parties it is desirable to refer to certain Ordinances of the Territory which govern the hearing of appeals of this kind by the Commission and deal with the powers of the Supreme Court on appeal. The Land Titles Commission Ordinance 1962 (as amended) provides that witnesses appearing to give evidence before the Commission shall be examined on oath (s. 27 (1) ) but the Commission is given a wide power to receive material that would be inadmissible under the ordinary rules of evidence by s. 29 (1), which provides:

"In the investigation, hearing and determination of any
matter before the Commission, the Commission is not bound to
observe strict legal procedure or apply technical rules of
evidence, but shall admit and consider such information as is
available."

"Evidence of five years' undisputed and continuous use of
land as a road, track or right of way by the public may be
accepted by the Commission as conclusive evidence that that
land has been dedicated to the public as a road, track or right
of way, as the case may be, and is the property of the
Administration."

"(a) the Commission has exceeded its jurisdiction;
(aa) the decision was against the weight of the evidence;
(b) the hearings of the Commission were conducted in a
manner contrary to natural justice; or
(c) the Commission was wrong in law."

"all information, facts, matters and things including hearsay
evidence, expressions of opinion and the results of any inquiries
or investigations made by the Commission under Subsection (1)
of Section 15 . . . in relation to the decision appealed against
that were properly before or present to the mind of the
Commission and which the Commission ought properly to have
taken into account in arriving at the decision appealed against,
together with all inferences proper to be drawn therefrom."

"Notwithstanding the provisions of subsection (1) of this
section, where an appeal is made from a decision of a court,
the court which hears the appeal may, if it thinks fit, consider
de novo a question referred to in that subsection and which
arises in the appeal."

"All land in the Territory other than native land is the
property of the Administration, subject to any estates, rights,
titles or interests from time to time in force under any law in
force in the Territory or a part of the Territory." (at p411)

10. In this Court the Administration did not challenge the finding made by Clarkson J. as to area no. 1 on plan "J" and did not claim that land as its property. In respect of areas nos. 2, 3 and 4, it was submitted that the Tubumaga clan was estopped by a decision given on 21st October 1954 by a Board appointed under s. 9 of the Land Ordinance 1911-1953 (Papua) from asserting against the Administration that the land was not the property of the Administration. Estoppels apart, the Administration submitted that on the merits it was entitled to all the land excepting area no. 1 ; it claimed that areas nos. 2, 3, 4 and 6 were acquired by the Crown in 1886 and that area no. 5 (and also areas nos. 2, 3, 4 and 6 if not already acquired) became vested in the Crown by virtue of an Order in Council made on 19th August 1901 in reliance on the provisions of s. XI of the Land Ordinance of 1899 (British New Guinea). On behalf of Daera Guba all these contentions were assailed and it was submitted that the decision that the land was and remained the property of the Tubumaga clan ought not to be disturbed. On behalf of Lohia Doriga also, the contentions of the Administration were disputed, and in addition the competence of the Administration to be a party to the original proceedings or before this Court was challenged. Moreover, Lohia Doriga asserted that the Commission's finding that the land was Tubumaga land was either erroneous on the material before it or resulted from a failure to make proper inquiries and that the matter should be remitted to the Commission for a further hearing. Of course the admission made by Lohia Doriga in evidence that the land had been sold by the Koitapuans might have seemed fatal to his claim, but before the Supreme Court he sought leave to read an affidavit in which he said that when he had given evidence that Era Taora had been sold he had intended to refer to land known to him as Era Taora which was situated to the north of the subject land, and that the subject land was known to him and to the Koitapuan people as Vanama. Clarkson J. treated his application as one for a new trial and refused it. It appears from the judgment of the learned Chief Justice of the Supreme Court that the Full Court gave counsel for Lohia Doriga an opportunity to submit further material or explanation in support of this application but that counsel did not avail himself of this opportunity. The Full Court also rejected the application for a new trial. (at p412)

11. It is convenient first to consider the claim by the Administration that most of the subject land was acquired in 1886 - a claim which raises three broad issues : (1) Was there a valid purchase by the Administration of any of the subject land in 1886? (2) Alternatively, was any of the subject land acquired in that year by an act of State? (3) What land was purchased or otherwise acquired? To answer these questions it is necessary to review such of the evidence of events before and after 1886 as appears to be relevant to them. There was, as the learned Chief Justice of the Supreme Court said, a "vast mass" of documentary material before the Supreme Court, and we were supplied with many further documents of which we were invited to take judicial notice. However, much of the documentary material, although of considerable historical interest, is of no assistance whatever in resolving the questions that arise on this appeal. (at p413)

12. In 1884 the British Government, under pressure from the Australian colonies, authorized the declaration of a Protectorate over the south coast of New Guinea. On 6th November 1884 Commodore Erskine landed at Port Moresby and proclaimed the Protectorate. In the course of his proclamation he said : "And I hereby proclaim and declare that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty." A few days later, on 14th November 1884, he made a further proclamation whereby he directed that the regulations set out in it were to be complied with pending the arrival of the High Commissioner. The relevant regulation read : "No settlement or acquisition of land is on any account to be permitted." The first Special Commissioner to be appointed for the Protected Territory was Sir Peter Scratchley who received a commission dated 20th November 1884 but who died on 2nd December 1885 after only a few months in New Guinea. The provisions of his commission and of the instructions issued to him by the British Government are in my opinion irrelevant since he took no action to acquire any of the subject land. However, some purchases, as they were called, of land at Port Moresby were made during his administration by officers of the Protectorate. In these transactions small plots of land were obtained from the Motuan and Koitapuan people, who claimed to be the owners, in exchange for articles of barter such as tomahawks, tobacco and cloth. I shall refer to similar transactions which occurred during the Protectorate as purchases, although it will be necessary later to consider their legal effect. In 1885 there were a few Europeans living in Port Moresby, including the Rev. W.G. Lawes, a missionary who had been in the district since 1874. Mr Lawes had himself purchased land from the native people for his mission station and in 1885 he assisted Mr Musgrave, then Assistant Deputy Commissioner, to communicate with the natives for the purpose of acquiring the land. (at p413)

13. On 26th December 1885, after the death of Sir Peter Scratchley, a commission was issued to Mr John Douglas, a former Premier of Queensland who at the time was Government Resident at Thursday Island, appointing him Special Commissioner for the Protected Territory in New Guinea. The commission contained the following provisions :

"Now know you that We do by this Our Commission under
Our Sign Manual and Signet, appoint you, the said John
Douglas, to be until Our pleasure be further signified Our
Special Commissioner for the aforesaid Protectorate, and as
such Special Commissioner to act in Our name and on Our
behalf, and in all respects to represent Our Crown and authority
in matters occurring therein, and further to take all such
measures, and to do all such matters and things in the said
Protectorate as in the interest of Our Service you may think
expedient, subject to such Instructions as you may from time
to time receive from Us, or through one of Our Principal
Secretaries of State.
II. And We do require you, to the utmost of your power, to
promote religion and civilization among the Native inhabitants
of the Protectorate, and you are especially to take care to
protect them in their persons and in the free enjoyment of
their lands and other possessions, and by all lawful means to
prevent and restrain all violence and injustice which may in
any manner be practised or attempted against them."

"Sir P. Scratchley's Despatches showed that he did not fully
understand that unless the territory included in the Protectorate
becomes British soil by the declaration of Her Majesty's
sovereignty over it, the Queen does not possess, and therefore
could not delegate to him, a general power to make laws which
will bind persons other than Her own subjects. As regards
the latter She may, as you probably are aware, by Order in
Council under the Foreign Jurisdiction Acts, establish courts,
and make such other regulations as She thinks necessary for
their control."

"In addition to this judicial authority your commission as
Special Commissioner empowers you in all respects to represent
the Queen's authority, and to do all such things as in the
interests of Her service you may think expedient. You are
therefore at liberty to make such regulations as you think
necessary, compliance with which may be made a condition
of residence in the Protectorate, if you are able to enforce
them."

14. On 27th August 1886 there was published, as a supplement to the "Queensland Government Gazette", a notification dated 1st July 1886 and signed by Musgrave as Assistant Deputy Commissioner that "certain Township lands, now under survey, comprising the south-eastern shores of Port Moresby", whose boundaries were given, should thereafter be known and designated by the name "Granville". The document went on to notify that the township lands would comprise three divisions, of which the third was described as follows : "From Spring Garden Road to Paga Point, and thence by Ila Beach to the Badili Reserve, forming the third Division of Granville, shall be appropriated to township allotments and other government reserves for future settlement." The inland boundaries of "Granville" were, as earlier provisions of the notification showed, east of the subject lands, and the area of the third division included both Granville East and Granville West, shown on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 . The Badili Reserve extended along the beach to the east of the area shown on plan "J", its western boundary being more or less to the south of the eastern boundary of Granville East and to the east of Rough Flint Hill. (at p415)

15. The survey to which Musgrave referred was being made by Mr W. R. Cuthbertson who, on 21st September 1886, furnished a report on his work, which had not been carried out without some difficulties. In his report he referred to Granville East as follows :

"The township of Granville East lies about eighty chains
north-easterly from Granville West, and is, so far, cut up into
eight sections. The outside roads are two chains, the inner
ones being one chain. The allotments are all quarter-acre and
are marked with hardwood pegs, the ground being mostly of a
blue-clay character ; the trenches are cut in the soil. Here
there are only two sections - nos. III. and IV. - cut up into
allotments. The others can easily be done with the chain
should be required and no surveyor here. (sic). The two-chain
road named Lawes-street, on the western boundary of the
town, will be the main thoroughfare until such time as a road
can be made facing the beach as surveyed through the
mangroves, where there is a firm bottom, and will eventually make
a first-class road but at a considerable expense. The town is
well supplied with water, there being beautiful springs at the
north-eastern corner, where I have surveyed a considerable
road deviation which takes in the springs and allows a good
roadway on either side of them." (at p416)

16. Mr Cuthbertson added that he forwarded with his report "plans of the two townships and a general plan of the whole survey completed". There are in evidence three different plans originally made by Cuthbertson. First, there are a number of copies of a rough eye-sketch dated 20th July 1886 and signed by Cuthbertson, which shows the position of the two township sites later called Granville East and Granville West. It may be surmised that these sketches were made by Cuthbertson at an early stage of his work. The site of Granville East is shown as a rectangle with no internal subdivision and bordered on all four sides by roads. The second plan signed by Cuthbertson which is in evidence is dated 23rd August 1886. This plan in its present form shows Granville East divided into sections I to VIII and section XI, which is immediately to the south of section II. (The position of these sections is shown on plan "J") [1973] HCA 59; (1973) 130 CLR 353, at p 367 . To the south of section XI is shown a halfsection which is unnumbered. All of the sections are subdivided into allotments but there is evidence that many of the markings on this plan were added subsequently although this was contrary to good surveying practice. The witness who tendered this plan before the Commission (the assistant chief drafting officer of the Lands Department) said that in his opinion the boundaries of sections I to VIII were surveyed by Cuthbertson and that the initial subdivisions of sections III and IV were done at that time. He said that "in addition, a boundary of what is now shown as section XI, the line was turned but never actually run". The third plan signed by Cuthbertson in evidence is dated 9th September 1886. It shows Granville East, not as a complete rectangle, but as it is shown on plan "J", i.e. showing sections I to VIII, half of section XI and another half-section south of section XI (although none of these numbers appears on Cuthbertson's plan), all subdivided into allotments. Thus the inner rectangle marked WXRS on plan "J" is, so far as Cuthbertson's plan shows, not surveyed and there is no line completing the eastern side of the rectangle, i.e. between points W and X. It appears clear that this plan also has had additions made to it since Cuthbertson's time. Cuthbertson's field book shows that he surveyed sections I to VIII, of which sections III and IV were surveyed into allotments. This field book and Cuthbertson's report suggest that the allotments shown in sections I, II, V, VI, VII and VIII, and probably also the two half-sections within the rectangle SRYZ, have been added to his plans since he drew them, and that it is probable that the whole of the large inner rectangle WXYZ was not shown as subdivided on the original plan. Of course, the letters R, S, W, X, Y and Z were not on Cuthbertson's plan - they were first adopted for convenience in the proceedings before the Board. Two of Cuthbertson's plans show an irregularly shaped area of twelve acres, to the west of sections III and IV, and on the western side of Lawes Street. This surveyed area bears a broad arrow ; which indicates that it was the property of the Crown. On the plan of 9th September 1886 the words "Granville East" commence on this block, and extend over section IV into the rectangle WXYZ as they do in plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 . (at p417)

17. On 9th November 1886 Musgrave furnished to Douglas a report on the acquisition of lands in British New Guinea up to that date. The report is of great importance as it is the best contemporary evidence of the acquisition of any part of the subject lands. It first gave the details of a number of purchases before Douglas arrived in New Guinea, including the purchase from the Koitapuans of 333 acres at Badili, as to which Musgrave made the following comment :

"The main object in securing this block was to be able, in
the event of Port Moresby natives proper being reluctant to
sell or making excessive demands for lands urgently needed
for settlement, to substitute other holdings equally suited for
cultivation, but not equally monopolising wharf frontages,
etc. There was risk of these positions being taken by the
natives on the advice of certain Malays and South Sea Islanders
who have taken Motu women as 'wives', and who use some
influence over the aboriginal villagers." (at p417)

18. After referring to some small purchases effected in January 1886, the report went on as follows :

"No further purchases of land were made until after Your
Excellency's arrival here in June last. Acting upon your
memorandum of instructions with regard to the acquisition of
lands in conjunction with the surveys at Port Moresby, which
it was most important to have effected, Mr Robert Hunter, as
an agent for the Government, accompanied by the Government
interpreter and the present chief of the local village, Ah-oo-doo,
made purchases from time to time, as other duties permitted,
to the extent of about 222 acres. All the cultivated grounds
that interrupted the road reserves have been bought at a full
price, but the natives have had it explained to them that in
future, when the Government make roads for their benefit as
well as for the foreigners' convenience, they ought to grant land
free for that and other public purposes.

Mr Hunter began purchasing on the 8th July, and ceased
by my direction on the 8th October, having secured all the
lands required within the surveyed portion of the settlement,
newly entitled 'Granville'. The recent acquisitions may
therefore be summarised as follows :

Purchased Lands.

Government domain and bungalow site, etc.,
of 9 acres 52
Granville East, township 95
Ila Beach, suburban lands 22
Granville West, township 50
Badili lands 333
------

552

Unpurchased Lands.

Paga Hill Reserve 50
Goldie Law Reserve 236

Cemetery (assumed for public purposes, within
Native Reserve) 3
Government Station (late Mr A. Goldie's holding) 2 1/2
------

19. The total area of the rectangle at Granville East formed by and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street is about 96.6 acres, whereas sections I to VIII, inclusive of roadways, comprised only about 58.8 acres. If Musgrave's report is taken at its face value, it is apparent that the officers of the Protectorate had purported to acquire considerably more land at Granville East than that which Cuthbertson had surveyed into sections. It is natural enough to regard Musgrave's mention of ninety-five acres as a rough estimate of the area of the whole rectangle, but whether that is a permissible inference will have to be considered after the history of events has been concluded. (at p419)

20. Early in July 1886 a controversy had arisen between Rev. Lawes, on the one hand, and Douglas, on the other, as to the land policy of the Protectorate. The Rev. Lawes, who had no doubt become aware of the intention of the officers of the Protectorate to acquire land for the purposes of a township, objected both to compulsory acquisition for any purpose and to any form of acquisition except for missionary or trading purposes, which of course meant that he opposed the acquisition of land for the establishment of a town in which settlers might live. Douglas' attitude was that it was necessary to acquire land for the purpose of settlement and that, although in effecting any acquisition he should hope to make the "most careful provision" for the interests of the natives, it might be necessary to acquire land compulsorily - indeed, he referred to an imminent case, that of the acquisition of lands for a cemetery, in which it was proposed, if necessary, to make a compulsory acquisition and to nominate two assessors, including Lawes himself, to determine the value to be paid to the native owners. Douglas lost no time in informing the Colonial Office of this clash of opinions. He sent three despatches, respectively dated 8th, 11th and 16th July 1886, with one of which he sent copies of the letters embodying the respective views of the parties, together with a commentary theron by Musgrave which criticized Lawes' attitude. In his despatch of 8th July 1886 Douglas referred to purchases that had already been made and to the proposed survey of areas already purchased and to the fact that he contemplated "the laying out of a small township area available for European Settlement, in anticipation, at no distant date, of the proclamation of Sovereignty". He went on : "This latter survey will be, strictly speaking, preparatory, and will, of course, be held in abeyance for purposes of sale, until the principles are decided upon which future settlement is to take place." (at p419)

21. In the despatch of 16th July 1886, he said that Musgrave, under instructions from Scratchley, "had acquired some 700 acres from the natives in this vicinity" - a statement difficult to reconcile with other evidence. On receipt of this correspondence the Colonial Office, on 18th October, sent Douglas a cable which read: "Referring to your Despatch, 11th July, take no steps pending instructions compulsory purchase land unless required public purposes." The telegram was confirmed by a letter of 22nd October 1886 which said (inter alia) : "My telegram of the 18th instant will have informed you that pending the receipt of instructions from Her Majesty's Government you are not at liberty to acquire land from the Natives by compulsory purchase, except for objects of public utility." (at p420)

22. It appears from Musgrave's report of 9th November 1886 that before these communications had reached Port Moresby the purchases of the township lands had been completed. (at p420)

23. A report of Sir Peter Scratchley's administration as Special Commissioner had on 12th April 1886 been presented by his former secretary, Mr. Fort, to the Governor of Victoria, by whom it had been transmitted to the British Government. In this report Mr. Fort made the following reference to the purchase of land at Port Moresby :

"A considerable area of land, comprising the best sites in
the harbour and nearly the whole of the frontage to the sea,
was, with but small difficulty, purchased from the natives. In
summoning together the claimants for this land, and in
obtaining their assent to parting with their property in perpetuo,

thus securing a sound title for the Government, the assistance
rendered by the Mission was invaluable. A portion of this
was set aside for Government buildings ; part was reserved
as a site for a future township, and a portion was also to be
held as a native reserve."

24. The first annual report presented by Douglas as Special Commissioner, dated 31st December 1886, was presented to the British Government and to the parliaments of the Australian colonies. In his report Douglas referred with approval to Fort's report and he himself dealt with the purchases of land at Port Moresby as follows:

"The late Special Commissioner authorized Mr Assistant
Deputy Commissioner Musgrave to purchase certain portions
of land from the natives. These instructions were somewhat
enlarged by me, and have resulted in the acquisition of a
continuous block of land amounting to some 900 acres, which
will be quite sufficient at present for purposes of immediate
settlement, whenever it is deemed expedient to authorise it."

25. By Letters Patent dated 8th June 1888 British New Guinea was constituted a British possession and on 4th September 1888 Dr William Macgregor, who had been appointed Administrator, proclaimed that the territory was part of the Queen's dominions. (at p421)

26. The first annual report presented by Macgregor, for the period 1888 to 1889, contained a statement of the property of the Government of the Possession transferred to it from the Protectorate. Included was the following statement :

"PORT MORESBY. - The most important tract of land held
by the Crown is an area of 553 acres at Port Moresby. This was
purchased from the natives and surveyed in 1886, and partly
laid off as town allotments. This land is of use and has been
partially fenced for pastoral purposes, but it is not well watered,
while for agriculture it is too steep and is more or less arid.
Besides the sites occupied by Government buildings,
three-quarter acre allotments have been taken up and are occupied
by the premises of Mr A. Goldie. Should it ever be the case
that a town of any considerable size arose at this port it would
be mostly or entirely on the land now belonging to Government
there. No town allotments have been disposed of, except those
given to Mr Goldie in exchange for land elsewhere."

27. One of the early ordinances passed by the Legislative Council of British New Guinea was the Crown Lands Ordinance of 1890 which took effect on 12th November 1890. Section XVIII of this Ordinance provided as follows :

"Where the fee-simple in land in respect of which no Crown
Grant has ever been issued is acquired by the Crown from the
owners of such land the acquisition by and the transfer to the
Crown of such land shall be taken in the name of Her Majesty
and shall be attested by an instrument in writing under the
hand of the Administrator and the Seal of the Possession
which shall be recorded in the office of the Registrar-General
as hereinafter directed."

28. In the British New Guinea "Government Gazette" of 8th October 1898 there was published a proclamation dated 28th September 1898 which declared that, for the purpose of three statutes of the Colony of New South Wales (2 Vict. No. 2 ; 11 Vict. No. 44 ; and 19 Vict. No. 24, which were regarded as having been adopted as part of the law of British New Guinea and which, speaking generally, dealt with police offences committed within towns and with the powers of Justices of the Peace with respect thereto), the boundaries of "the Township or Town of Port Moresby" should be as follows:

"All that piece of land that is bounded by the waters of the
sea and by the following line, that is to say. Beginning at the
point on the sea shore of Ela Beach that would be met by a
prolongation of the eastern boundary of the road called Lawes
Street ; thence by such boundary northwards to the most
southwestern point of the surveyed allotments of Granville East ;
thence by a line following the back or inland boundaries of
the said allotments to the most north-eastern point ; thence
by a straight line following the most northern boundary of
such allotments and prolonged to the sea shore of Port
Moresby harbour."

29. On 5th October 1900 a number of natives, residents of Hohodae and therefore presumably Koitapuans, sold to the Government about seventy-four acres of land to the south-east of the subject land and occupying the area between the subject land and the Badili lands. The description in the transfer of the land sold began with the following words :

"Commencing at the southern corner of Section VI Township
of East Granville being the southern corner of the land
purchased by the Government in that locality and bounded
thence on the north west by the south eastern boundary of
that Government purchase . . . "

30. The Crown Lands Ordinance of 1890 was repealed by the Land Ordinance of 1899. Section IX of that Ordinance contained provisions similar to those of ss. XVIII and XXI of the Crown Lands Ordinance of 1890, with some amendments, but there was no provision corresponding to the earlier s. XX making those provisions retrospective. However, in the same Part of the Ordinance (Pt III) there appeared the following s. XI :

"The Administrator in Council may from time to time by
Order in Council published in the Gazette declare that any land
which has never been alienated by the Crown and not being
land used or required or reasonably likely to be required by
native-born Papuans for building agricultural or other industrial
purposes will unless cause be shown to the contrary within the
period specified in such order become Crown land.
Every such Order in Council shall set forth the name or
names (if any) by which such land is known with a description
thereof made from an actual survey or a diagrammatic sketch
of the same the position of the land an estimate of its area
and a statement showing as far as known how long it has been
unused by natives.
From and after the expiration of the time limited by such
Order in Council the lands referred to therein shall be and be
deemed to be absolutely vested in Her Majesty and to be
Crown Land :
Provided that the Administrator in Council shall at any time
before the expiration of the time so limited and may at any
time thereafter take into consideration any claim to such land
or any interest therein made by or on behalf of any alleged owner
thereof and if he allows such claim may either by another Order
in Council published in the Gazette declare that the Crown
disclaims its title to such land in which case the land shall not
then vest in Her Majesty or become Crown Land or if it has
so vested shall be divested from Her Majesty and cease to be
Crown Land ; or he may acquire the right of such owner in
which case an instrument of title shall be executed sealed and
recorded in manner hereinbefore provided." (at p423)

31. In purported exercise of the powers conferred by this section an Order in Council made by the Deputy Administrator in Council on 19th August 1901 was published in the "Gazettes" of 14th December 1901 and 28th December 1901. It is upon this Order in Council that one of the submissions on behalf of the Administration is based. It read as follows :

"The Deputy Administrator in Council, under Section XI.
of 'The Land Ordinance of 1899', doth hereby order and declare
as follows :
1. That the lands, the boundaries of which are given in the
Schedule to this Order in Council so far as can be ascertained,
are lands not used nor required nor reasonably likely to be
required by native-born Papuans for building, agricultural, or
other industrial purposes.
2. That the said lands are usually described as Paga Hill and
Mount Goldie.
3. That the estimated area of the said lands is about
328 acres.
4. That a sketch plan of the said lands is open to inspection
by the public at the Lands Survey, and Works Department,
Port Moresby.
5. That the said lands have been unused by natives for a
period exceeding fifteen years.
6. That unless cause be shown to the contrary before the
31st day of March, 1902, the said lands will on such date
become Crown lands.

--------------
SCHEDULE

All those pieces or parcels of land not comprised within any
transfer from natives to the Crown that are situate within the
following boundaries :
Commencing at the point on the sea-shore of Ela Beach that
would be met by a prolongation of the eastern boundary of
the road called Lawes Street ; thence by such boundary
northwards to the most south-western point of the surveyed
allotments of Granville East ; thence by a line following the
back or inland boundaries of the said allotments to the most
north-eastern point ; thence by a straight line following the
most northern boundary of such allotments and prolonged to
the sea-shore of Port Moresby harbour ; thence on all other
sides by the waters of the sea to the point of commencement."

32. On 17th March 1905 there was registered in the office of the Registrar of Titles an instrument purporting to be made under Pt III of the Land Ordinance of 1899. It was signed by the Adminstrator, who certified as follows :

"1. That on the Thirty-First day of March, 1902, the land
hereinafter described was taken possession of by the Crown as
Crown land, such land being then Waste or Vacant land and
not used or required or reasonably likely to be required by
native-born Papuans for building, agricultural, or other
industrial purposes.

2. That the said land is situate at Ela Central Division in
the Possession of British New Guinea and is known or called
by the name of Paga Hill and Mount Goldie.

3. That the Area of the said land is three hundred and
twenty-eight acres approximately.

4. That the following are the boundaries of the said land,
that is to say - "

(The boundaries are then described in the words that appear
in the Schedule to the Order in Council of 19th August 1901
after the words "within the following boundaries" - i.e. the
description given in the instrument of 1905 does not exclude
land "comprised within any transfer from natives to the
Crown".)

"5. That the said land at the time that the Order in Council
was inserted in the Government Gazette, had not been used by
natives for a term exceeding Fifteen years and is still unoccupied
by them.

6. That the following is a sketch of the said land - . . . "

33. It is next necessary to mention an event which occurred during the administration of Sir Hubert Murray (that is, some time in or after 1907) but which is not recorded in any document although it was recounted by certain of the witnesses before the Commission, and most clearly by a Koitapuan witness, Ravura Eava. The relevant portion of this evidence is as follows :

"Q. Have you heard or were you present when Governor
Murray called together the Koitapo and Motuan people and
said that they may garden on land including Era Taora until
such time as the Government asked them to leave the land ?
A. Yes I know about that. I was at the meeting and I
heard Governor Murray say this. He said all the land
belonged to the Government and the Motuan and Koitapo
people could garden until they wanted it." (at p426)

34. On 30th July 1910 the Administrator, on the recommendation of the Land Board, granted to one McCram leases for ninety-nine years of allotments 17 and 18 of section IV of Granville East. It is unnecessary to trace the history of those leases but it appears that a house was built on them and was in European occupation in 1934, when the leases were forfeited for non-payment of rent. (at p426)

35. On 20th September 1910 there was published in the "Gazette" a notification that :

"all the allotments comprising Sections 1, 2, and 11, township
of Granville East, Port Moresby, with the exception of
allotments 4, 5, 16, and 17 of Section 11 have been surveyed
and are open to applications for lease under the provisions of
'The Land Ordinance of 1906'."

36. A lease for ninety-nine years of allotment 18 of section XI was on 17th October 1910 granted to one Butterworth. It appears that this land was later occupied by the Commonwealth, and, after 1922, by Amalgamated Wireless (Australasia) Ltd. and that the lease was surrendered in 1931. A house was built on the land and was used as the residence of the officer in charge of the wireless station, which, as shortly to be mentioned, was built at Granville East. (at p426)

37. On 30th August 1912 the Lieutenant-Governor in Council proclaimed that land which was described in the proclamation as "allotments (unsurveyed) 1, 2, 3, 14, 15, 16, 17, and 18 of Section V" together with another two acres west of section V (and therefore not within Granville East) were permanently reserved for lease for the purpose of wireless telegraphy. Buildings were erected on the land and it was used as a wireless station, first by the Commonwealth and then by Amalgamated Wireless (Australasia) Ltd., until the land was surrendered in 1931. Daera Guba gave evidence before the Commission that he had previously gardened on this land and that the gardens remained round the wireless station after it was built. (at p427)

38. On 15th August 1928 the Administrator in Council granted permissive occupancy over land which included the whole of sections VII and VIII for the purposes of a public golf links ; the other land of which occupancy was granted was not within Granville East. It appears that the land had already been used as a golf links for some years before permissive occupancy was granted. A plan made at that time in connexion with this grant shows native gardens on the north of section VI and also on land to the east of section V. After the surrender by Amalgamated Wireless (Australasia) Ltd. of the allotments of section V which had been used as a wireless station, permissive occupancy of those allotments also was granted to the golf club. In 1932, a claim was made by two residents of Poreporena that part of the golf links was on their land. (at p427)

39. On 30th November 1931 the Crown took a lease for thirty years from a number of natives of Poreporena, including Daera Guba, of .875 acres of land called in the lease "Era Taura", and shown on a plan as situated immediately to the east of allotments 4 and 5 of section X. Since section X has never been surveyed it is not precisely clear where this land was situated. However, a well was situated upon it, and in 1932 complaints were made by the golf club that vehicles going to the well were using the links ; in the correspondence relating to this matter the well was described as being "on the opposite side of Hely Street", which appears to mean on the opposite side from section V, and also as being close to the boundaries of the golf club land. It appears, therefore, that this land was situated to the east of section V and somewhere within the rectangle WXYZ, and was part of the land now claimed. (at p427)

40. A further reservation of land in Granville East was made by the Lieutenant-Governor in Council on 19th July 1932 - this time for the purpose of reservoirs. The land apparently comprised part of section IV and some land to the east of that section. (at p427)

41. Before the commencement of the Second World War a number of other leases had been granted of parts of sections I, II, III and IV. There had been some houses on parts of the subject land for many years. (at p427)

42. In 1941 barracks were built for the Royal Australian Air Force on sections IV and XI, and at this time complaints were made on behalf of the Tubumaga iduhu that the Government had taken their lands and had not paid for them. After the war, in 1949, there were further claims by the Tubumaga to lands forming part of Granville East. Eventually the then Chief Commissioner, Mr Ivan Champion, held an inquiry and on 5th March 1954 furnished a report, into claims made by a number of natives to various lands at Granville East. One of the areas claimed, called Era Taora, included a considerable part of the land the subject of the present applications although it was not identical with the subject land. No claims were made before Mr Champion to any of these lands by the Giakone - indeed, a Koitapuan witness, Leke Boio, gave evidence as follows : "The rest of the land where Newtown is" (he apparently meant the land not the subject of the sale by the Koitapuans on 5th October 1900) "and the other buildings belonged to the Motu. We gave them the land. We don't know if it was bought by the Government." Mr Champion reached the conclusion that ninety-five acres at Granville East was purchased by the Crown in 1886 but that the area purchased was not all contained in the rectangle formed by Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street. He held that sections I to VIII, which, as I have said, with roadways amounted in area to 58.8 acres, were included in the purchase. The balance of the land purchased comprised the area of twelve acres which is shown on Cuthbertson's plans to the west of sections III and IV but on the western side of Lawes Street, a further area of four acres adjoining it to the north and west and twenty-two acres of flat land west of Lawes Street to the base of Goldie Law - a total of thirty-eight acres. This thirty-eight acres west of Lawes Street together with the 58.8 acres made a total of 96.8 acres which he considered was roughly equivalent to the ninety-five acres referred to by Musgrave. Mr Champion therefore held that the Crown was entitled to sections I to VIII but not to the lands within the rectangle WXYZ. He held that the lands claimed within that rectangle were native lands, including an area called Era Taora which he held was owned by the Tubumaga Idibana iduhu, of which Daera Guba was the representative head. (at p428)

43. Mr Champion's inquiry was held under the provisions of s. 8 of the Native Land Registration Ordinance 1952 (Papua) but the view was subsequently expressed by the legal advisers to the Administration that that section did not empower the Commission to hold an inquiry into the ownership of land which was claimed by the Administration as well as by natives and that Mr Champion accordingly had no jurisdiction. Mr Champion accepted this view and informed the native claimants that he cancelled his decision and that their claims would be heard by a Board constituted under s. 9 of the Land Ordinance 1911-1953 (Papua), which provided as follows :

"It shall be lawful for the Lieutenant-Governor by
Proclamation in the Gazette to appoint a Board or Boards to decide
all questions as to waste and vacant lands or lands alleged to
be waste and vacant and all cases of disputed ownership of
land in which a Papuan native is a claimant. The Board in
giving its decision shall be guided by the principles of equity
and good conscience and shall not be bound by rules of evidence
or legal procedure.
An appeal shall lie from the Board to the Central Court.
The practice regulating such appeals shall be as laid down in
regulations to be made by the Chief Judicial Officer and
published in the Gazette."

"(1) whether there is a dispute as to the ownership of any of the
areas of land described in the Schedule hereto ;

(2) where a dispute is found to exist who are the disputing
parties ;

(3) where a dispute exists is one or more of the disputing parties
a Papuan Native ; and

(4) if a dispute exists and one more of the disputing parties is a
Papuan Native who is the owner or who are the owners of the
land the subject of the dispute." (at p429)

44. The schedule described eight different areas all of which lay mainly within the complete rectangle of Granville East. One of those areas, called Era Taora, and comprising areas nos. 2, 3 and 4 shown on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 , was claimed by the Tubumaga Idibana. No claim to that area was made before the Board by the Tubumaga Laurina who did, however, claim two other areas, both called Vanama, which are not part of the subject land. Area no. 6 on plan "J" was part of a further area which before the Board was referred to as Leke Boio. Areas nos. 1 and 5 on plan "J" were not part of the land described in the schedule to the Order appointing the Board. The Board received oral as well as documentary evidence. It said that it regarded the evidence of the native claimants and their witnesses as unconvincing. It mentioned that the only one of those witnesses who was alive in 1886 was Taumaku-Madai ("Tom") who said "that some land in the area in dispute was acquired by the Government in exchange for trade". The same witness also said that the twelve acres surveyed to the west of Lawes Street "was Government land prior to the acquisition of Granville East by Mr R. Hunter for the Government". Further evidence as to the purchase of the subject land was given by two witnesses called for the Crown whose evidence the Board appears to have accepted, for it referred to it without disapproval. The Board's summary of this evidence was as follows :

"Two witnesses Kora and Kubua recognised, without
hesitation, on the ground a mango tree at the north end of the
east boundary and an area at its southern end which they said
was the south-east corner and the east boundary line joined
these points. They stated that the land had originally belonged
to the Koitapu people who gave it to the Motu people. The
Motu people sold it to 'Bob Hunter' for the Government and
had received payment (in kind) for it."

45. This account of the relevant events may be concluded with a mention of the transactions of 1956 and 1957 by which small areas of land subsequently claimed by the applicants (as I shall call both Daera Guba and Lohia Doriga) were sold to the Crown. On 15th February 1956 the Crown bought from a number of natives a strip of land, one chain in width, being the eastern half of Castlereagh Street from Spring Garden Road to Pullen Street. One of the vendors was Daera Guba but the vendor who had the greatest interest, if the consideration paid is any guide, was Leke Boio, a Koitapuan. It does not appear from the transfer which parts of the strip were owned by the respective vendors. It does appear that there were some gardens on part of the land. On 27th August 1957 the Crown made two purchases of small pieces of land east of Castlereagh Street. Both of these pieces appear to have been part of the land claimed by the applicants although one, which was sold by one Igo-Ganiga, was, according to Daera Guba, Koitapuan land and had never been claimed by the Tubumaga. (at p431)

46. It is now possible to return to consider whether any and what land was acquired in 1886 by the officers of the Protectorate on behalf of the Crown. I have no hesitation in accepting that the officers concerned believed that ninety-five acres at Granville East had been purchased from the original owners. In my opinion, Musgrave's report of 9th November 1886 should be accepted as an honest attempt to state what had occurred. Counsel for Daera Guba subjected that report to considerable criticism. They seemed to regard it as sinister that the purchases had been made by Hunter rather than by Musgrave himself, and that Ah-oo-doo, a man of "mild and docile disposition", appointed by the Protectorate rather than by his fellow villagers, should have assisted him. Naturally enough, reliance was placed on the absence of any memorandum recording the details of the purchases at Granville East, when it appears that a memorandum had been executed in respect of the Badili lands. Further, it was said that Musgrave favoured compulsory acquisition if necessary, and that since in November when he wrote his report he must either have known of the contents of the cable sent by the Colonial Office on 18th October, or, if that had not yet arrived at Port Moresby, at least must have apprehended that the Colonial Office would forbid the compulsory acquisition of native lands, he would have been likely to refer to the acquisitions as voluntary, whether they had been or not. Finally, reliance was placed on the difficulty of finding in the lists of expenditure attached to the annual reports any reference to the trade goods used in effecting the purchases of land at East Granville. Of these criticisms, that relating to the absence of a memorandum is the most serious, and must be given due weight. I cannot find it surprising that Musgrave should have delegated to Hunter the duty of effecting the purchases, although I do not agree with the suggestion that it can be inferred from the report that Musgrave had no personal knowledge of what was going on. Similarly I regard it as natural for the Protectorate to have appointed Ah-oo-doo to a position in which he might serve as an intermediary between the Protectorate and the natives, since the native chiefs, as the reports show, had little authority of their own. I find it difficult to accept that Musgrave would have had sufficient motive to act contrary to what he believed would be the instructions of the Colonial Office and to disguise that fact by a false report, and the purchase of the Badili lands was inconsistent with an intention to make a compulsory acquisition, for the main object in purchasing those lands was to provide an alternative if the natives at Port Moresby should prove unwilling to sell. The doubts raised by an examination of the financial statements in the annual reports might easily enough have been dispelled if they had been raised at the time, when those who prepared the reports were available to answer them, and it is not insignificant that the persons whose duty it was to consider the reports do not seem to have questioned them. However, put bluntly, all these criticisms amount to the suggestion that Musgrave falsified his report. In my opinion there is nothing in the evidence that substantiates such a suggestion. He had no motive to concoct a false story. There is no contemporary evidence that casts the slightest doubt on his veracity. At the time when he wrote there were very few Europeans in Port Moresby, and it is highly probable that they were in a position to know whether land had been purchased on behalf of the Crown, and if so in what circumstances. In particular the Rev. Lawes, who, having lived for ten years in Port Moresby, was in a position to have won the trust of the natives, and who had acquired a familiarity with their languages, would undoubtedly have learnt the truth from them if the supposed purchase had been a sham and it is not likely, with his known views on land policy, that he would have been most foolish for Musgrave to attempt to deceive Douglas, and if he had tried to do so the probability was that Douglas would have learnt the truth from others. However, Musgrave's report was accepted as correct not only by Douglas, but also by Sir William Macgregor, as his first annual report shows. The Administration's subsequent actions show that it was believed that the Crown had acquired, by purchase, lands at Granville East including sections I to VIII. Moreover, the fact that there was a sale to Hunter has become part of the native tradition. I am satisfied that there was a purported purchase of about ninety-five acres at Granville East from the natives by the officers of the Protectorate on behalf of the Crown. (at p433)

47. Further, the strong probability is that the trade goods handed over as consideration for the purchases were given to all the natives who at that time had an interest in the lands. Having regard to the facts that the purchasing extended from July to October, that payment was made to over 1,000 vendors and that the total number of natives in the district, including women and children, was only about 1,200, and that the missionaries were likely to watch the natives' interests and to give them any information that might assist them, it is inconceivable that any natives concerned would not have come to learn that it was rewarding to claim to be entitled to the land which the officers of the Protectorate were seeking to acquire and to make a claim accordingly. It is more likely that some natives who had no interest in the land were paid than that some natives who were in fact interested did not receive payment. It appears from the reports that the officials of the Protectorate took considerable pains to ascertain the true native owners, and having regard to the circumstances to which I have just referred it is probable that their efforts were successful. The finding by the Commission that the land although owned by the Tubumaga was sold by the Giakone was in my opinion not open on the evidence. Such evidence as there was that the land was sold by the Giakone - and it was not strong - was that the Giakone sold what was theirs to sell. The evidence, in my opinion, establishes that it is probable that the lands were purchased from the natives who were interested in them. (at p433)

48. In my opinion it was within the authority of the officers of the Protectorate to purchase land for the purposes of a future settlement. Douglas was not bound either by Erskine's regulations or by the instructions issued to Scratchley, although in saying that I do not suggest that either the regulations or the instructions would have forbidden the purchase of land by the officers of the Protectorate under the authority of the Special Commissioner. Douglas' own commission and his instructions empowered him to do all such things in the interests of Her Majesty's service as he might think expedient. Such a power was wide enough to include the acquisition of land. Douglas was also informed that it had been decided that in due time the Protectorate should be added to Her Majesty's dominions and in the circumstances he might reasonably have considered it expedient to acquire land for the purposes of the settlement that would be likely to follow the acquisition of the territory. Neither the requirement in his commission that the natives should be protected in the free enjoyment of their lands, nor the instructions issued in October 1886 forbidding the compulsory acquisition of land except for public purposes, fettered his power to acquire lands from natives who were prepared to dispose of them freely and voluntarily. Moreover, Douglas sent a full report of the purchases to the Colonial Office and there is no evidence that his actions were in any way disapproved ; he certainly received no instruction to return the land to its former owners. Clearly the Colonial Office acquiesced in his conduct and this affords further proof that what he had done was within the scope of his authority. (at p434)

49. Two very serious questions nevertheless remain in relation to the intended purchases made in 1886 - what was their legal effect and which were the lands affected? I shall deal first with the latter question. (at p434)

50. Since the total area of a rectangle bounded by, and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street is 96.6 acres or thereabouts, it is tempting to say that Musgrave's reference to ninety-five acres at Granville East township was a reference to this complete rectangle, the area of ninety-five acres being intended to be an approximate statement of its total area. The evidence of Kora and Kubua would support this conclusion, but there are a number of factors that cast doubt upon it. Musgrave reported that "all the lands required within the surveyed portion of the settlement, newly entitled 'Granville'," had been secured. Although Cuthbertson's rough eye-sketch suggests that he had originally intended to survey a complete rectangle at Granville East, it is clear that this intention was not effectuated, and that an entire rectangle, bounded by the four named streets, had not been surveyed in 1886, and indeed, was not surveyed for many years afterwards. Castlereagh Street had then been surveyed only along the eastern boundaries of sections I and VIII, so that there was no completely surveyed boundary on the eastern side of the so-called rectangle. Even the western boundary was not completely surveyed, because the survey of Lawes Street was not carried as far north as Spring Garden Road. Certainly none of the lands within the rectangle WXRS had been surveyed, and for reasons I have already given it is probable that the land within the smaller rectangle SRYZ had not been surveyed. If the ninety-five acres included the rectangle WXYZ, they were then strictly not all "within the surveyed portion", although in one sense they lay within the bounds of the survey. The lands within the rectangle WXYZ were shown by Cuthbertson as rough flint and limestone hills and may for that reason have been considered unsuitable for a township, at least in the early stages of its development. Having regard to the fact that acquisition took place from a large number of native vendors it is unlikely that the total land acquired would have been perfectly rectangular in shape. Further, there is some discrepancy in Musgrave's figures. According to his summary, 219 acres were purchased at Port Moresby in addition to the Badili lands. Of these 219 acres some few were purchased before Douglas became Special Commissioner. On the other hand, earlier in the report it is stated that about 222 acres were purchased after Douglas arrived at Port Moresby. The difference may be small but it casts doubt on the complete accuracy of the figures given in Musgrave's report. If the figure of ninety-five acres was not correct, it becomes impossible to conclude that the complete rectangle was acquired. The doubt about Musgrave's accuracy is not removed by the impossibility of reconciling his figures with the report made by Fort and the figures given by Douglas in his despatches and report. The area of the land in the complete rectangle could only have approximated ninety-five acres if all surrounding roads, complete and incomplete, were included. The total area of the roads would amount to over twenty acres. The subsequent purchases by the Administration of the whole of Pullen Street and half of Castlereagh Street are inconsistent with its claim that it had acquired those roads in 1886. Similarly the acquisition of the well which lay somewhere within the rectangle WXYZ is inconsistent with the claim that the whole of that rectangle had been acquired. On the other hand, the 96.6 acres within the notional rectangle were the lands that best answered to the description of ninety-five acres at Granville East. It is true that the twelve-acre block west of Lawes Street which had been surveyed was within the third division of the town of Granville whose boundaries were given in the proclamation dated 1st July 1886. However, Cuthbertson's report and field book showed that he at least regarded Granville East as bounded on the west by Lawes Street, on the north by the northern boundary of Spring Garden Road and on the south by the southern boundary of Pullen Street. It is thus doubtful whether the twelve-acre block would in 1886 have been regarded as part of Granville East. There is also the evidence of Taumaku-Madai that this block was already Government land, although I would not regard that evidence as of great weight. The other two areas west of Pullen Street which Mr Champion considered might have fallen within the ninety-five acres seem not to have been surveyed and the twenty-two acres at least could not appropriately have been regarded as part of Granville East I therefore do not consider that Mr Champion was correct in his conclusion that the ninety-five acres comprised sections I to VIII exclusive of roadways and the three areas west of Lawes Street. On the whole, the evidence inclines me to think that it is likely that Musgrave's reference to the ninety-five acres was intended to refer to the whole rectangle. However, although it seems probable that there was a rough equivalence between the area acquired and the rectangle bounded by the four named streets, I am unable to be satisfied, having regard to the matters that I have mentioned, that every portion of that rectangle was acquired. It is in my opinion satisfactorily established that the whole of sections I to VIII formed part of the lands purchased. "All the lands required within the surveyed portion of the settlement" were secured, sections I to VIII were of course surveyed at the time Musgrave wrote, and it would be impossible to find an area of anything approaching ninety-five acres at Granville East which would not include sections I to VIII. The Administration has consistently acted on the assumption that sections I to VIII are not native lands, both Mr Champion and the Land Board have found that those sections were purchased in 1886, and the Commission has found that those sections formed part of the land the subject of a purported sale to the Administration, albeit by the wrong people. I regard it as probable that, in addition, a considerable part, at least, of the rectangle WXYZ was purchased by the Administration in 1886, but I cannot be satisfied what part of that inner rectangle was so purchased. (at p436)

51. The question that then arises is whether the purported acquisition in 1886 of sections I to VIII was valid and effectual. The first argument put on behalf of the Administration was that the acquisition of the lands by the officers of the Protectorate in 1886 was an act of State whose validity is not open to question. I do not doubt that it lay within the power of the Crown to extinguish the rights of the natives to their lands by an act of State which would have been unchallengeable in British courts. The declaration of a Protectorate did not make British New Guinea part of the Queen's dominions, nor the natives British subjects. In R. v. Earl of Crewe ; Ex parte Sekgome (1910) 2 KB 576, at p 620 , Kennedy L.J. stated the position as follows :

"The protected country remains in regard to the protecting
State a foreign country ; and, this being so, the inhabitants
of a Protectorate, whether native born or immigrant settlers,
do not by virtue of the relationship between the protecting
and the protected State become subjects of the protecting
State."

52. The question then is, under what law is the validity of the purchases to be tested? It follows from the fact that a Protectorate is not part of the Queen's dominions, that Englishmen who settle in a Protectorate do not carry the law of England with them. After the passing of the Foreign Jurisdiction Act 1890 (Imp.) it became the practice in respect of Protectorates where the existing legal system was of a primitive kind, to apply English law, by Order in Council, not only to British subjects within the Protectorate but also to native inhabitants. In 1886 views were taken as to the extent of the power that the Crown might assume in a Protectorate that were narrower than those since accepted. However, it is quite unnecessary in the present case to consider what legislative powers the Crown possessed in relation to British New Guinea in 1886, for during the Protectorate no laws governing the purchase of land were made in relation to that territory by Order in Council or otherwise. Equally it is irrelevant to consider whether the judicial power of the Special Commissioner extended to foreigners as well as to British subjects, for obviously no exercise of judicial power is now in question. Since nothing was done to introduce English law governing sales of land into the Protectorate, the purported sales can only be upheld if they were valid in accordance with the native law then in force. (at p438)

53. There is very little evidence as to the rules of the customary law governing the ownership and disposition of land by Motuans in general and by the Tubumaga in particular. Clearly enough a number of transactions which the Europeans regarded as sales occurred between Europeans and natives in and before 1886. Whether the natives' understanding of these transactions was the same as that of the Europeans, and whether they appreciated that in return for the trade goods which they received they were not merely giving the Europeans a right to use their land but were surrendering all their interests in it for ever, is another question. The Rev. Lawes apparently believed that native custom recognized the perpetual alienation of land, for in a report written at the request of Scratchley, he wrote :

"The land on the coast is all owned by families, each member
having his own plot. They are accustomed to sell their land
occasionally. A man who has but little will beg of one who
has plenty. Sometimes they loan it for one crop - a short
rental really. Often, however, it is an absolute sale. In this
case it does not revert to its original owners on the death of the
purchaser, but is the property of his heirs for ever."

"The actual ownership of the land appears to be based upon
the basis of kinship. The land is divided into divisions and
subdivisions, owned by groups of individuals, who are all more
or less connected by kin. The number of individuals in these
groups is variable . . . Each member of this family group
regards himself as having a distinct interest in the land
appropriated to his kinsmen ; not only, however, can no one
member alienate the land without the consent of the family
group, but each member will claim to receive a share of the
profits of the sale of such land."

"5. Are planting lands allotted ? Each family or 'iduhu' have
their own planting lands.
6. Is individual ownership recognised ? Yes.
7. What land is held in common by the tribe ? None.
11. Do they sell or exchange land ? They both sell and exchange
land.
17. How is the land given to native strangers settling in the
tribe ? Land is given to strangers if they have any friends in the
tribe, not otherwise." (at p439)

54. There was thus some evidence that sales were recognized by native custom and, although one would have wished that fuller and more satisfactory evidence had been adduced on this point, the evidence was all one way. On behalf of the applicants it was submitted that the evidence did not show whether or not the rules of native customary law permitted alienation outside the iduhu to strangers such as officers of the Protectorate, or what the customary rules required as the essential elements, or as the necessary formalities, of a binding alienation, so that assuming that alienation in perpetuity was a concept which the natives understood, there was no evidence as to whether or how such an alienation to the Crown could validly have been effected. If a deficiency of this kind had existed in the evidence it would have been open to the Supreme Court and to this Court to receive further evidence as to native custom : s. 5 (3) (b), (4) of the Native Customs (Recognition) Ordinance 1963 (Papua and New Guinea). However, having regard to the conduct of these proceedings, and to the earlier history of the dispute as to the ownership of these lands, I do not think that such a course is necessary. Both Mr Champion and the Board had found that there had been a valid sale of part of the subject land - they differed only as to the area proved to have been sold. The native claimants were represented by counsel before the Board and before the Commission and it was to be expected that if it was contended that the native customary law either forbade sales or rendered them subject to the observance of formalities or to the fulfilment of conditions that were not observed or fulfilled, evidence to support such a contention would have been put before the tribunals. However, nowhere was it suggested that the purported sales were invalid except on the ground (first raised before the Commission) that they were made by persons who did not own the land. There can be no doubt that the native witnesses who gave evidence that sales took place meant sales that were effective to divest the natives of their interests. It is a proper conclusion from this evidence that sales such as those made in 1886 - by free agreement coupled with the handing over of consideration - were recognized by native law as valid. (at p440)

55. I hold, therefore, that on the evidence the Commission should have found that areas nos. 4 and 6 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 were validly acquired by the Crown by purchase from the native owners in 1886. (at p440)

56. It was, no doubt, a desire to obtain a permanent record of land acquired before the annexation in 1888 that provided the reason why the provisions of s. XVIII of the Crown Lands Ordinance of 1890 were by s. XX made retrospective so as to apply to purchases or acquisitions made during the Protectorate. If the Administration had registered an instrument of attestation under that Ordinance in respect of the subject lands, the present case would never have arisen. However, the failure to attest the acquisitions made in 1886 by an instrument made and recorded under the Crown Lands Ordinance of 1890 did not, in my opinion, extinguish the title of the Administration to the lands which it had acquired. The Ordinance does not state the consequences of a failure to attest and record an instrument in writing in respect of an acquisition of land which, ex hypothesi, has been effected. In particular it does not contain anything to suggest that a failure to comply with the provisions of s. XVIII would cause the Crown to be divested of a title previously acquired. So drastic a result could only be achieved by clear words. Of course the failure to attest an instrument in respect of any of the purchases alleged to have been made in 1886 is one of the matters to be considered in deciding whether those purchases were in truth made. However, in considering the weight of this circumstance, it should be remembered that the officers of the Administration between 1890 and 1899 (when the Ordinance was repealed) were few in number and were working under considerable difficulties, and they may well have regarded other duties as more important than that of putting their records in order. The conclusion I have reached as to the purchases is not affected by the fact that this Ordinance was not complied with. (at p440)

57. It now becomes necessary to turn to the Order in Council dated 19th August 1901 which purported to be made under Pt III of the Land Ordinance of 1899. The applicants attacked the validity of this Order in Council on a number of grounds. First it was submitted that the Order in Council was not made by the person authorized by the Land Ordinance to make it. The Order in Council is expressed to be made by the Deputy Administrator in Council. The power confided by the Ordinance is to the Administrator in Council. However, by s. III of the Interpretation Ordinance of 1891 (British New Guinea) the expression "Administrator in Council" meant "the Officer Administering the Government of the Possession with the advice of the Executive Council of the Possession". On the basis of the presumption omnia praesumuntur rite esse acta it ought to be presumed, in the absence of evidence to the contrary, that the Deputy Administrator was administering the Government of the Possession when the Order in Council was made. It was provided by art. VII of the Instructions Passed under the Royal Sign Manual and Signet, to the Administrator of British New Guinea, dated 8th June 1888, that the Executive Council should not proceed to the despatch of business unless duly summoned by authority of the Administrator (a term which was defined by the Instructions (art. I) to include every person for the time being administering the Government of the Possession) and by arts. VIII and IX that the Administrator should attend and preside at meetings of the Executive Council and that minutes should be kept. It is quite inconceivable that a Deputy Administrator would have sat with the Executive Council for the purpose of making an Order in Council if he had not been administering the Government. In any case, there is no evidence that the Deputy Administrator was not administering the Government at the relevant time. (at p441)

58. The next objection to the validity of the Order in Council was that the land to which it applied was not of the description which under s. XI, as properly construed, alone can be the subject of an Order in Council under that section. The section applies to "land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agricultural or other industrial purposes". It was submitted that on the evidence it should be held that in 1901 some of the land within the boundaries contained in the schedule to the Order in Council, including parts of Era Taora if they fell within those boundaries, was land which was either used or required or reasonably likely to be required by native-born Papuans for agricultural purposes and that the Order in Council could not validly apply to that land. There is certainly evidence that at various times there were native gardens on different parts of Era Taora. I have already referred to the evidence of Daera Guba to that effect and to the documentary evidence that shows that in 1886 and again in the 1920's there were gardens on part of that land. Moreover, there were some gardens on the neighbouring land acquired from the Koitapuans on 5th October 1900. There is, however, no evidence that any of the land within the boundaries in the schedule to the Order in Council, however construed, was used for gardens at the time when the Order in Council was made. It is quite probable that as a result of the transactions in 1886 the natives had ceased gardening in the area and that they did not resume gardening there again until after Governor Murray had given them permission to do so, that is, after 1907. There is, further, no evidence that in 1901 the lands were either required, or reasonably likely to be required, for agricultural purposes. The applicants in effect suggested that any land on which gardens could be made should be held to be land likely to be required for agricultural purposes, but it must be remembered that in 1901 the pressures of population and the demand for land that exist today had not become manifest, particularly in British New Guinea. The following words of Sir Hubert Murray, quoted by Prentice J., which were written a decade after 1901, show that an able and sympathetic Administrator could well have believed in 1901 that lands suitable for agriculture, but not in fact so used, were not reasonably likely to be required for that purpose :

"Papua is sparsely populated, and there is far more land
than is ever likely to be wanted either for natives or for
Europeans, so that the land problems which have caused so
much trouble elsewhere are not likely to arise."

59. A further submission made on behalf of the applicants is that s. XI on its proper construction applied only to ownerless land and that ex hypothesi the subject land was not ownerless. Alternatively it was submitted that if the section applied to land in native ownership its provisions were invalid. These contentions are insupportable. The opening words of the section describe the land in respect of which an Order in Council may be made and the proviso to the section makes it clear that such land may in fact be owned by a native. It is quite impossible on ordinary principles of construction to imply words, inconsistent with the proviso and not suggested by anything in the section, restricting the operation of the provisions to ownerless land. Of course the protection intended to be given to an owner of land in respect of which an Order in Council was made was that provided by the proviso, under which, if the owner established his claim to ownership within the time provided, the Administrator in Council was bound either to disclaim the Crown's title or to acquire the right of the owner - which of course meant acquire by lawful means. Even if the owner's claim was made out of time the Administrator in Council was permitted to consider it, and if he allowed it the same consequences followed. The submission that the Order in Council was invalid rested on the proposition that when applied to land the subject of native ownership it would have been in conflict with art. XXXI of the Instructions passed under the Royal Sign Manual and Signet, to the Administrator of British New Guinea, dated 8th June 1888, which read (inter alia) as follows :

"The Administrator is to the utmost of his power to promote
religion and education among the native inhabitants of the
Possession ; and he is especially to take care to protect them
in their persons and in the free enjoyment of their land and
other possessions . . . "

"full power and authority to establish all such laws and
institutions . . . as may be necessary for the peace, order, and
good government of Our subjects within the Possession . . .
Subject, nevertheless to all such conditions, provisions, and
limitations as We shall see fit to prescribe from time to time by
Our Order in Our Privy Council, or by this or any other
Instrument under Our said great Seal, or by the Instructions
under Our Sign Manual and Signet . . . " (art. X).

60. Next it was submitted that the Order in Council was defective in form in that it failed to "set forth . . . a description thereof made from an actual survey or a diagrammatic sketch of the same" as required by s. XI of the Ordinance. It may be assumed that the an actual survey and it was submitted that, this being so, the Ordinance required that the Order in Council should contain a diagrammatic sketch of the land. In my opinion that is not the meaning of the words in s. XI of the Ordinance. In my opinion that section required that the Order in Council should set forth a description which was either made from an actual survey or made from a diagrammatic sketch of the land. The words "set forth" govern the words that follow and it would not be a natural use of words to speak of "setting forth" a diagrammatic sketch. The Ordinance therefore did not require that the Order in Council should itself contain a sketch and there is nothing to show that the description in the schedule to the Order in Council was not made from a diagrammatic sketch. If it matters, the reference in the Order in Council to the sketch plan, which was then open for inspection although now unavailable, strongly suggests that in truth the description of the boundaries was made from a diagrammatic sketch. (at p444)

60. Finally it was submitted that the Order in Council was void for uncertainty. Before considering that submission it will be convenient to consider what are the external boundaries of the land described in the Schedule to the Order in Council. The applicants submit that even if the Order in Council is valid its boundaries do not include sections I, II, V, VI, VII and VIII of Granville East. The boundaries set out in the Schedule, so far as they follow the seashore, of course admit of no doubt. The Commission saw some difficulty in finding the line of the prolongation of the eastern boundary of Lawes Street, because the present Lawes Road does not coincide with the former Lawes Street, but in my opinion Cuthbertson's surveys enable the line of Lawes Street to be determined easily enough. The question however is, what is meant by "the most south-western point of the surveyed allotments"? According to the Administration, this point is at the south-western corner of section VI but the applicants contend that it is at the south-western corner of section IV, and justify their contention by submitting that the only sections which in 1901 had been surveyed into allotments were sections III and IV. It is true that they were the only sections which were then subdivided and that the subdivisions were referred to as "allotments", not only by Cuthbertson but also in one of the annual reports. On the other hand, the word "allotment" in its ordinary sense simply means a share or portion of land allotted to a special person or purpose and in the absence of statutory definition the word has no technical signification in relation to a subdivision : it can refer to a large subdivision or to a small one. In the circumstances it is true that the word "allotments" creates an ambiguity. However, in the Order in Council the "surveyed allotments" must refer to the surveyed sections rather than to the subdivisions of sections III and IV. If the words are not given that meaning, the description of the boundaries would be completely uncertain. Sections III and IV are so subdivided that some of the allotments have their "back or inland boundaries" on Hely Street whereas others have such boundaries within the sections themselves. There are many different "back or inland boundaries" of the allotments within sections III and IV, and if the Order in Council refers to the boundaries of those internal allotments it does not indicate which are the allotments whose boundaries should be followed ; it would be possible to take many routes from the south-western point of section IV to the north-eastern point of section III by following the eastern boundaries of the internal allotments of those sections. On the other hand, there is only one line that connects the south-western point of section VI with the north-eastern point of section III by following the "back or inland boundaries" of sections I to VIII - the only sections then surveyed. This circumstance, in my opinion, provides strong reason for holding that on the proper construction of the section "the surveyed allotments" referred to are sections I to VIII ; on ordinary principles of construction, the ambiguity should be resolved by adopting that construction which will render the instrument efficacious rather than insensible. Some support for this conclusion can, I think, be derived from the fact that the words describing the boundaries in the Order in Council are the same as those that describe the boundaries of Port Moresby in the proclamation of 28th September 1898. No one construing that proclamation in the light of the circumstances existing at the time could doubt that it was intended to include within the township all the sections (namely I to VIII) which had then been surveyed for the very purpose of providing lands for the township. The proclamation, in my opinion, constituted part of the circumstances surrounding the making of the Order in Council and in the light of which the Order in Council ought to be construed. It is probable that the words used in the later instrument were intended to have the same meaning as those of the earlier instrument from which they were obviously taken. (at p446)

61. If it were admissible to give evidence of acts done under the Order in Council for the purpose of resolving an ambiguity in it, the instrument registered on 17th March 1905 would provide the strongest evidence that the boundary of the land described in the schedule to the Order in Council was intended to go round sections I to VIII. The general principle of the law is that "it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made": Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. (1970) AC 583, at p 603 ; see also (1970) AC, at pp 606, 611, 615 ; L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1973] UKHL 2; (1974) AC 235, at pp 252, 259-260, 261, 265-270, 272-273 . However, the decision in Watcham v. Attorney-General (East Africa Protectorate) (1919) AC 533 that evidence may be given of the subsequent conduct of the parties for the purpose of resolving an ambiguity in an instrument relating to land, although criticized, may possibly be supported as laying down a special rule for the interpretation of such instruments : see L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1973] UKHL 2; [1973] UKHL 2; ; (1974) AC 235 . If evidence of the subsequent conduct of the parties is admissible only in the construction of ancient documents, it would seem that a document executed within the limits of living memory would not be regarded as ancient for the purpose of this principle : North Eastern Railway Company v. Lord Hastings (1900) AC 260, at pp 268-269 . I would have regarded the question whether the instrument of 17th March 1905 may legitimately be considered as an aid to the construction of the Order in Council as crucial if I had not independently reached the conclusion that the boundary described in the schedule to the Order in Council included sections I to VIII of Granville East. In the view that I take, however, it is unnecessary to decide whether Watcham v. Attorney-General (East Africa Protectorate) (1919) AC 533 laid down a correct principle of construction, and I would leave that question open. (at p446)

62. I may now return to consider the submission that the Order in Council is void for uncertainty. In support of this submission it was said that it is not possible accurately to identify the land "comprised within any transfer from natives to the Crown", and that it is therefore impossible to discover what lands within the boundaries set out in the schedule were intended to become Crown lands by virtue of the Order in Council. An initial question arose as to the meaning of the word "transfer", which the applicants submitted should be understood as meaning any document by which the property in the land was made over from the natives to the Crown. In my opinion the word in this context is more naturally understood as meaning "the act of transferring or fact of being transferred" (see the definition in the Shorter Oxford English Dictionary), i.e. as referring to a disposition itself rather than to a written instrument by which a disposition was effected. It is quite unlikely that "transfer" in the Order in Council was intended to be used in the sense of document, when in fact the sales by the natives to the Crown of land within the boundaries set out in the schedule had not been effectuated by means of any written instrument. (at p447)

63. In my opinion, the Order in Council describes with certainty the lands upon which it is intended to operate. The governing provisions of the Order in Council are pars. 1 and 6. They state that it is "the lands, the boundaries of which are given in the schedule to this Order in Council so far as can be ascertained" that are to become Crown lands. The words "so far as can be ascertained" may indicate a recognition of the fact that the delineation of the boundaries of the lands "comprised within any transfer from natives to the Crown" was not free from difficulty. However, those words do not introduce any uncertainty into the Order in Council. The boundaries given in the schedule are described with certainty ; it is true that they give rise to a problem of construction, which I have already discussed, but that of course does not make them uncertain. The land within those boundaries that is to be excluded from the operation of the Order in Council is also described with sufficient certainty - it is any land that has not been the subject of a transfer from natives to the Crown. Of course the Order in Council does not itself disclose what land has been the subject of such a transfer but that is something that can be ascertained as a matter of fact - it can be rendered certain and therefore is itself certain. Thus, when the question arises whether any particular piece of land is affected by the Order in Council the question will be answered in the affirmative if the land is within the boundaries set out in the schedule unless it appears that the land was already transferred to the Crown. (at p448)

64. From a practical point of view it does not become necessary to endeavour to decide whether any particular piece of land within the boundaries was or was not "comprised within any transfer from natives to the Crown" because on 31st March 1902 all lands within those boundaries (except any that had been alienated by the Crown and any as to which the Crown had disclaimed its title upon a successful claim being made by a native owner under the proviso to s. XI) was Crown land ; if it had not already become so by transfer by the native owners to the Crown it then became so by force of the Order in Council. (at p448)

65. However, another alleged ground of uncertainty was suggested. It was said that the description "Paga Hill and Mount Goldie" is inapt to refer to so much of the land within the boundaries as was not "comprised within any transfer from natives to the Crown" - what I shall call " the remaining land". That description would appropriately refer to parts of the remaining land but, it was said, not to all of it, for example, not to area no. 5 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 . It may of course be that some parts of the remaining land were not usually described by any name, and it has not been established that the names are inappropriate to the whole of the relevant area, but I am prepared to assume that they are not appropriate. Further, the total area within the boundaries is about 475 acres, and it is difficult to determine exactly what is the remaining land that makes up the area of about 328 acres mentioned in par. 3. It is in fact possible that 328 acres is a fair estimate of the area of the remaining land, but for the purposes of the argument it may be assumed that it is not. On these assumptions, the description contained in pars. 2 and 3 does not aptly fit the remaining lands. There is then in the schedule to the Order in Council a description which defines with certainty the land intended to be affected, and an additional description, in pars. 2 and 3, which is erroneous. It is apparent from the form of the Order in Council that this additional description was not intended to control and limit the generality of the description in the schedule. Also there do not appear to be lands properly described as "Paga Hill and Mount Goldie" which amount in area to about 328 acres, for according to Musgrave's report the unpurchased lands at Paga Hill and Goldie Law totalled 286 1/2 acres. On the assumptions made, there was no land which answered the whole description contained in the schedule read together with pars. 2 and 3, whereas there was land which satisfied the description given with sufficient certainty in the schedule. In these circumstances, on established rules of construction, the error in the additional description in pars. 2 and 3 should not be allowed to vitiate the instrument, but should be rejected as a falsa demonstratio. It is enough to refer by way of authority to the passage cited by Lord Sumner in Eastwood v. Ashton (1915) AC 900, at p 914 :

"In construing a deed purporting to assure a property, if
there be a description of the property sufficient to render
certain what is intended, the addition of a wrong name or of an
erroneous statement as to quantity, occupancy, locality, or an
erroneous enumeration of particulars, will have no effect."

66. I hold, therefore, that by virtue of the operation of the Order in Council, area no. 5 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 became Crown land. If there were any parts of sections I to VIII which in fact had not been the subject of transfer by natives to the Crown they also became Crown land by the operation of the Order in Council. (at p449)

67. Areas nos. 2 and 3 on plan "J" were not part of the land affected by the Order in Council, and, as I have held, it has not been proved that they became the property of the Crown by purchase in 1886. It therefore becomes necessary to consider whether the decision of the Board given on 21st October 1954 that those lands belonged to the Government now estops Daera Guba as the representative of the Tubumaga from contending to the contrary. (at p449)

68. The submission by the Administration that the decision of the Board created an estoppel was controverted by counsel for the applicants on numerous grounds. At the threshold it was put that the Board lacked jurisdiction to make its decision. Three reasons were given for this. In the first place, it was submitted that s. 9 of the Land Ordinance 1911-1953 (Papua), under which the Board was appointed, allowed the Lieutenant-Governor to appoint a Board to decide only questions concerning lands which were, or were alleged to be, waste and vacant or alternatively, only questions arising under s. 8 of that Ordinance. I must confess myself unable to appreciate the force of the submission that s. 9 was confined to questions as to waste and vacant lands or lands alleged to be waste and vacant, because the section clearly refers to two types of matters, namely, "questions as to waste and vacant lands or lands alleged to be waste and vacant" and "cases of disputed ownership of land in which a Papuan native is a claimant". The further submission that s. 9 is merely ancillary to s. 8 depends in part on the view that it is necessary to place some limitation on the generality of the words of s. 9 so that they would not, for example, enable a Board to be appointed to determine a question of disputed ownership which had arisen in pending criminal or civil proceedings, and in part on the position in which the section appears in the Ordinance and on the heading to Pt I in which it appears. It may be conceded that some limitation may have to be placed on the words of s. 9 but there is nothing in the section itself that would indicate that it is intended to be merely ancillary to s. 8 or to the provisions of any other section contained in Pt I. Section 8 reproduced, with significant variations, the provisions of s. XI of the Land Ordinance of 1899, but instead of referring to " any land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans..." s. 8 referred to "any land which has never been alienated by the Crown and of which there appears to be no wner". Section 8 contained a proviso, similar to that in s. XI, requiring the Lieutenant-Governor to take into consideration any claims made to the land described in an Order in Council made under that section. No doubt if a native claimed ownership of land described in such an Order in Council and the claim was disputed, the Lieutenant-Governor could have appointed a Board to decide the case, but there is nothing to suggest that the operation of the section was intended to be confined to such cases and indeed, as I have said, it also applies where a question arises as to waste and vacant lands. The words "waste and vacant lands" do not appear in s. 8 - they do appear in the marginal note to that section but the marginal note is not deemed to be part of the Ordinance (see the Ordinances Interpretation Ordinance 1911-1940 (Papua), s. 13 (3) whose modern equivalent is the Ordinances Interpretation Ordinance 1949-1971 (Papua and New Guinea), s. 27 (3)). The heading of a Part of an Ordinance is deemed to be part of the Ordinance (Ordinances Interpretation Ordinance 1911-1940, s. 13 (1) and Ordinances Interpretation Ordinance 1949-1971, s. 27 (1)) but the heading to Pt I ("Acquisition of Land from Natives") certainly does not support the view that s. 9 is merely ancillary to s. 8, because s. 8 cannot appropriately be described as a section dealing with the acquisition of land from natives. Indeed, the heading to Pt I seems inappropriate to ss. 7 and 8 as well as to s. 9, and it throws no light on the meaning of the latter section. The case before the Board in 1954 was a case of disputed ownership of land in which Papuan natives were claimants. The question arose independently and not as incidental to other pending litigation. In my opinion there is no justification for so reading down the words of the section as to exclude the jurisdiction of the Board in such a case. (at p451)

69. Then it was said that the section does not permit a Board to be appointed to decide a particular dispute, and that a Board could be validly appointed only if it had jurisdiction to decide all questions and all cases of the kind described that might arise in the Territory. Since the section refers to "a Board or Boards", it would follow, if this submission were correct, that the section envisaged the appointment of a number of Boards each of which had jurisdiction to decide all such questions and cases. However, in my opinion "all" is used in the sense of "any whatsoever" - the section empowers the Lieutenant-Governor to appoint a Board to decide any question or case of the kind mentioned in the section. In other words, the section allows the appointment of a Board ad hoc to deal with a particular case of disputed ownership. (at p451)

70. Thirdly, it was said that s. 9 was repealed by implication by the Native Land Registration Ordinance 1952 (Papua and New Guinea) and particularly by s. 8 of that Ordinance. Section 8, which was the section under which Mr Champion had purported to act, provided as follows:

"The Commission shall inquire into and determine -
(a) what land in each District of the Territory is the rightful
and hereditary property of natives or native communities
by native customary right ; and
(b) the natives or native communities by whom and the shares
in which that land is owned."

71. It is not readily concluded that an earlier statute is impliedly repealed by a later statute which does not expressly refer to it : R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at p 418 . The question is whether "the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together" or, in other words, whether the two enactments "are so plainly repugnant to each other, that effect cannot be given to both at the same time": Hack v. Minister for Lands (N.S.W.) [1905] HCA 37; [1905] HCA 37; (1905) 3 CLR 10, at pp 23-24 . In my opinion the two Ordinances now under consideration are not inconsistent in this way. The jurisdiction given to the Board by s. 9 of the earlier Ordinance was wider than that given to the Commission under s. 8 of the later. For example, the Board might decide questions as to waste and vacant lands in which natives claimed no interest, whereas although the Commission might decide such questions incidentally (s. 37) it seems to have had no jurisdiction to do so directly - see s. 8. Further, whereas the Board could decide a dispute between a native, on the one hand, and the Administration or a European, on the other, it appears doubtful whether the Commission had a similar power. It appears from ss. 10, 12, 13, 16 and 22 of the Native Land Registration Ordinance that only a native could make application to the Commission, and certainly only a native had a right to appeal (s. 33). Although the jurisdiction of the Board in part depended on the fact that a Papuan native was a claimant to the land whose ownership was disputed, it did not follow that only a Papuan native might apply to the Board to resolve such a dispute, and the right of appeal from the Board was not restricted to natives. Although there was some duplication of function between the Commission and the Board both bodies could have operated at the same time. In my opinion there was not such an inconsistency or repugnancy between the two enactments as to require it to be held that the Native Land Registration Ordinance 1952 impliedly repealed s. 9 of the Land Ordinance 1911-1953. (at p452)

72. It follows, therefore, that in my opinion the Board was validly appointed and that its decision was not a nullity. (at p452)

73. On behalf of the applicants a number of submissions were urged in support of the contention that even if the Board were validly constituted its decision did not create an estoppel. In the course of these submissions, two misconceptions became manifest. In the first place, some of the applicants' arguments rested on the supposition that the Administration in the present case is endeavouring to set up an issue estoppel. The contention of the Administration is that the Board decided one of the very questions that falls for decision in the present case - whether the Administration is the owner of areas nos. 2, 3 and 4 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 - and not that the Board's decision estops the Tubumaga from relitigating issues which were necessarily determined in reaching that decision. In other words, the present case is one of cause of action estoppel, not issue estoppel. Secondly, much attention was directed to authorities that deal with the nature of judicial power, for example in relation to Ch. III of the Constitution. In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC 853, at p 933 , Lord Guest said :

"The rule of estoppel by res judicata, which is a rule of
evidence, is that where a final decision has been pronounced
by a judicial tribunal of competent jurisdiction over the parties
to and the subject-matter of the litigation, any party or privy
to such litigation as against any other party or privy is estopped
in any subsequent litigation from disputing or questioning such
decision on the merits (Spencer Bower on Res Judicata, p. 3)."

74. In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC, at pp 909-910 , Lord Reid said that it "is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject matter in the former and in the present litigation". The Board had power under s. 9 of the Land Ordinance 1911-1953 to determine finally and conclusively the case of disputed ownership of land that came before it. Under the section, the Board was appointed to "decide" the case, and to give a "decision", and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination - see Spackman v. Plumstead District Board of Works (1885) 10 App Cas 229, at p 235 . The fact that an appeal lay from the decision did not make it any the less final - see Wakefield Corporation v. Cooke (1904) AC 31, at p 36 ; Marchioness of Huntly v. Gaskell (1905) 2 Ch 656, at p 667 . (at p454)

75. There was identity of subject matter in the two proceedings. It is true that the land claimed before the Board included some areas not part of the land claimed before the Commission, and vice versa, but there was some land - areas nos. 2, 3, 4 and 6 on plan "4" [1973] HCA 59; (1973) 130 CLR 353, at p 367 - whose ownership fell to be determined by both tribunals. The Board, however, said that it was not concerned with area no. 6, and in the view that I have taken it is unnecessary to consider whether its decision operated to estop the Tubumaga from asserting that they owned that area of land. The native claimants before the Board abandoned their claim to area no. 4 and did not press their claim to area no. 3, but the decision in relation to both these areas gave rise to an estoppel. The decision in relation to the area the claim to which was abandoned was, at lowest, a decision by default, and such a decision can give rise to an estoppel, although only for what must "necessarily and with complete precision" have thereby been determined : New Brunswick Railway Company v. British and French Trust Corporation Ltd. (1939) AC 1, at pp 21, 38 ; Kok Hoong v. Leong Cheong Kweng Mines Ltd. (1964) AC 993, at p 1012 . In the present case, the Board necessarily and with complete precision upheld the claim of the Administration to area no. 4. If the decision in relation to area no. 3 is treated as also going by default, the same result follows ; if it is regarded as a decision which was conceded by admission, it none the less can raise an estoppel : Society of Medical Officers of Health v. Hope (Valuation Officer) (1960) AC, at p 566 . The Board directly decided the very question that areas nos. 2, 3 and 4 were not native land but were owned by the Administration, and (subject to the other questions to be discussed) that decision will operate as an estoppel, notwithstanding that the Board decided other matters as well, and that other matters also arise for decision in the present case. (at p455)

76. At this point it is convenient to note a submission of the applicants, which was partly directed to show that the Board was not exercising judicial power, but was also advanced in support of the contention that the Board did not decide the very question that now falls for decision. This was that the provision in s. 9 of the Land Ordinance 1911-1953 that "The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure" exonerated the Board from the duty of deciding the question in accordance with law and allowed it to base its decision on criteria that were not exclusively legal. Reliance was placed on Moses v. Parker (1896) AC 245 , but there the statute went on to provide that the court should not be "bound by the strict rules of law and equity in any case . . . ", important words which have no counterpart in s. 9. It is clear that words in the form of those quoted from s. 9 must be regarded as dealing only with procedure, and not as excluding the application of rules of substantive law : see Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR, at pp 36, 46, 55 , and cases there cited. Moreover, the fact that an appeal lay to the Central Court (then the superior court of the territory) supports the view that the Board was required to make its decision in accordance with legal rules, for otherwise the propriety of its decision could not have been tested on appeal - see Moses v. Parker (1896) AC, at p 248 . (at p455)

77. Finally, the applicants denied that there was an identity of parties before the Board and the Commission. The native claimants before the Board included the Tubumaga Idibana and the Tubumaga Laurina, but it was the former branch of the iduhu that claimed Era Taora. The application to the Commission was made by Daera Guba on behalf of the descendants of Guba Daera but it emerged at the hearing that Daera Guba was representing both branches of the Tubumaga iduhu. It was submitted that the relevant party before the Board was the Tubumaga Idibana - a communal group - whereas before the Commission the applicants were a number of individuals, represented by Daera Guba, and that if the individuals were members of the group, they were nevertheless proceeding in a different capacity, and that a decision given against them by the Board in one capacity would not estop them in the other. Of course, neither tribunal had any strict rules of pleading, and before the Commission there was some disconformity between the application, which described the persons represented by Daera Guba as the descendants of Guba Daera, and the statement made by Daera Guba that he was representing the whole clan, but there is not the least doubt, when the evidence is regarded, that his case before the Commission was advanced on the basis that he was representing the whole Tubumaga people - both branches of the iduhu. However, it was then submitted that the decision of the Board could not estop the Tubumaga Laurina, since that branch of the iduhu had laid no claim before the Board to Era Taora. In fact both branches of the iduhu were represented before the Board, and by the same counsel. In my opinion, if there was not an estoppel per rem judicatam between the Tubumaga Laurina and the Administration, the former were estopped by their conduct from relitigating the issue of the ownership of the subject land. The Tubumaga Laurina, being a party, and knowing that the Board was required to decide who was the owner of the land in question, stood by, and allowed the Tubumaga Idibana, the other branch of the iduhu, alone to assert its claim against the Administration. In those circumstances, justice and common sense would require the Tubumaga Laurina to be bound by the result : the case is within the general principle on which the decision in Nana Ofori Atta II. v. Nana Abu Bonsra II. (1958) AC 95 rests, although not within the precise formulation of that principle in Wytcherley v. Andrews (1871) LR 2 P & D 327, at pp 328-329 which was cited in Nana Ofori Atta II. v. Nana Abu Bonsra II. (1958) AC, at p 102 . (at p456)

78. A final argument put by the applicants was that the Commission could not be estopped from carrying out its duty, under s. 15 of the Land Titles Commission Ordinance 1962 (as amended), to hear and determine the dispute before it. Section 44 of that Ordinance provides that "the Commission shall accept findings of the Native Land Commission under the Native Land Registration Ordinances 1952, subject to any appeal under that Ordinance", and it was said that this provision indicates that it was not intended that the Commission should "accept" the decision of any other tribunal, and in particular of the Board. It was further said that the only case in which the discretion of the Commission to inquire into and determine the existence of native custom relating to land is limited to that mentioned in s. 42 (1) (c), which has no present relevance. I am quite unable to accept that if the Commission held that a native claimant before it was estopped from asserting his claim it would thereby be refraining from carrying out any duty imposed on it by statute, or would otherwise be going in the face of a statute. Its duty is to determine the dispute and in doing so it should give effect to the ordinary principles governing res judicata, unless some statutory provision overrides them. There is no provision which has that effect. Section 44 does not touch the doctrine of estoppel ; it requires the Commission to accept the findings to which it refers whether or not they would otherwise operate as an estoppel, and it is impossible to find in that section any indication of an intention that the decision of another tribunal, which in accordance with general principles would bring about an estoppel, should not be allowed that effect. Section 42 seems to me to have no relevance to the question whether the parties to a hearing before the Commission should be precluded from disputing an earlier decision of the same question. The Commission can carry out its statutory duty to hear and determine a dispute, notwithstanding that it makes its determination on the ground that the matter in dispute is res judicata. It is no less desirable that there should be an end to litigation in respect of the ownership of land in Papua and New Guinea than in relation to any other issue arising elsewhere, and it is not necessarily conducive to justice to allow disputes as to whether land is or is not native land, once finally decided, to be reopened many years later, when memories may have faded or become distorted and evidence has become more stale. It would require words very much clearer than those contained in the Land Titles Commission Ordinance 1962 (as amended) to satisfy me that it was intended to preclude the Commission from giving effect to the doctrine of res judicata. (at p457)

79. I therefore hold that the decision of the Board estopped the members of the Tubumaga iduhu from asserting that they are the owners of areas nos. 2, 3 and 4 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 . (at p457)

80. It appears from the report of the Board that notice of the hearing had been given to all villages in the Port Moresby area, and the Giakone were aware of the proceedings before the Board, as the evidence given by Lohia Doriga before the Commission showed. However, the Giakone were not parties to the proceedings before the Board, and the Tubumaga were of course not acting in their interest. It is unnecessary to consider whether the Giakone would be estopped by their conduct from asserting a claim to the land which the Board held was the property of the Administration. The Commission rejected the claim of the Giakone, and it is impossible to hold on the present evidence that it was wrong in doing so. Having regard to the belated nature of the Giakone claim, and to their failure to take advantage of the opportunity afforded them in the Full Court to adduce further material or explanation in support of an application for a new trial, it is equally impossible to hold that they should now be granted a further hearing before the Commission. (at p458)

81. The final submission on behalf of the Giakone was that the Administration had no locus standi either before the Commission or on appeal. The Commission in the exercise of its jurisdiction under s. 15 of the Land Titles Commission Ordinance 1962 (as amended) had to determine whether the subject land is or is not native land. A dispute as to whether land is or is not native land will necessarily involve two disputants, one of whom is not a native and will usually, or at least often, be the Administration. There is nothing in the Land Titles Commission Ordinance that would suggest that any person who is a party to the dispute should be denied the right to be heard before the Commission. The Administration, which claimed that the land was not native land, clearly, in my opinion, did have a right to be heard. A right of appeal is given by s. 38 of the Land Titles Commission Ordinance to "a person aggrieved by a decision of the Commission". The words "person aggrieved" have been the subject of discussion in many authorities, but it is sufficient to refer to Ex parte Sidebotham (1880) 14 Ch D 458, at p 465 , in which James L.J. said, in a passage which has frequently been cited with approval :

"A 'person aggrieved' must be a man who has suffered a
legal grievance, a man against whom a decision has been
pronounced which has wrongfully deprived him of something,
or wrongfully refused him something, or wrongfully affected
his title to something."

82. The present case is unlike some that have arisen out of claims by natives to rights or interests in land in other places. The law of the Territory of Papua and New Guinea affords clear recognition of native interests in land, whether those interests are communal and usufructuary or individual and proprietary. However, questions may arise, as they did in the present case, as to whether the claimants to particular land have shown that they have an interest in that land, and whether an interest which they formerly had has been lawfully extinguished. The appeal in the present case has been argued with the utmost thoroughness, and nothing that could have been said in favour of the claims of the applicants has been omitted. However, for the reasons I have given, I am satisfied that the Commission was in error in holding that any of the subject land (except area no. 1 on plan "J" [1973] HCA 59; (1973) 130 CLR 353, at p 367 ) was native land. It should have held that areas nos. 4 and 6 became the property of the Administration in 1886, and that area no. 5 became the property of the Administration on 31st March 1902. I am not satisfied, on the evidence now available, that the acquisition in 1886 extended to areas nos. 2 and 3, although it probably included parts of those areas at least, but it was not open to the Commission to decide that those areas belonged to the Tubumaga, who were estopped by the adverse decision given by the Board about fourteen years earlier, and not appealed against, from relitigating that issue. The decision of the Commission that those areas did not belong to the Giakone has not been shown to be wrong in any respect. (at p459)

83. In my opinion the appeal of the Administration should be allowed, the appeal of Lohia Doriga should be dismissed, and the judgment of Clarkson J. should be restored. (at p459)

STEPHEN J. In considering this appeal I have been fortunate in having had available to me the reasons for judgment of the Chief Justice and of my brother Gibbs. (at p459)

2. To their statements of the facts and enunciations of applicable principles of law there is nothing that I would wish to add. I agree that purchases of land from the indigenous inhabitants were made in 1886, that those purchases on behalf of the Government were within the authority of those making them, were effective, in accordance with native customary law, so as to vest in the Administration ownership of the purchased lands, and were so regarded by the vendors. (at p459)

3. The precise identification of the lands purchased is no easy matter on the material now available ; I have, in the end, formed the same view as has the Chief Justice, namely, that at least the whole of the area within the rectangle bounded by Lawes Street, Spring Garden Road, Castlereagh Street and Pullen Street was the subject of purchases in 1886 by Hunter on behalf of the Administration ; I have done so substantially for the reasons stated in his judgment. To the extent that those portions of the lands in dispute across and to the west of Lawes Street were not comprised in the purchases in 1886 of land sufficient to provide the site of the rectangle of Granville East I adopt, with respect, the conclusions flowing from the very careful examination to which my brother Gibbs has subjected the Order in Council of 19th August 1901. (at p460)

4. Were it necessary for it to do so I consider that the Administration might, in the case of such parts of the disputed lands as were the subject of the decision of the Board which, pursuant to s. 9 of the Land Ordinance 1911-1953, determined questions of ownership in 1954, support its title thereto by virtue of an estoppel arising from that decision ; I adopt in this respect the reasoning of my brother Gibbs. (at p460)

5. I would allow this appeal and would restore the judgment of Clarkson J. (at p460)

ORDER