Papua New Guinea Law Reports

(5) ;&#16art from thom the land land vested in the custodian under (2) above, and to be vested in the custodian on payment of compensation under (3) above, the whole of the land is native owned and the native rights of ownership should be protected by the necessary entries in the register book and on the certificate of title.

(6) &#16determination accordingrding to s. 27c of the Lands Registration Ordinance is the only fair and practical method of solvioblemt arit of land transactions between non-natives and natives. The courtcourt must must bear bear in m in mind that when the Europeans first came to New Guinea there was a great gulf between native and non-native languages and concepts of ownership. It may be doubted whether in any of the early land transactions the native parties had a full and perfect understanding of everything that those transactions involved; for example, that their land was gone for ever and that the purchaser could dispose of it, according to his law, to Europeans that they had never heard of or seen. Conditions being what they were, a full and perfect understanding on the part of the native parties of the significance and all the consequences of these early transactions could hardly have been achieved: a substantial understanding, evidenced by acquiescence in the subsequent occupation and development of the land by the purchaser, would have been about all that was possible. Where definite fraud on the part of a European purchaser is proved, the court’s duty would be clear. But it does not follow, because fraudulent land dealings may have occurred in the past, or because non-natives dealing with natives in regard to land may have an intellectual or educational advantage, that all non-native purchasers are therefore deemed to be dishonest negotiators intent upon swindling natives out of their land. Where, for instance, a non-native purchaser has honestly tried to discover the true owners, genuinely endeavoured to make them understand the meaning of the transaction, paid them the consideration they were satisfied to accept, and maybe incurred a lot of expenditure thereafter in developing the land, only to find—long afterwards perhaps—that, despite all his efforts, he had failed to make the full purport of the sale clear to the natives because they were incapable at the time of grasping the significance of a transfer of land from a European point of view, it would hardly seem just to hold that the whole transaction should thereby be vitiated.

Summons

This case involved references made by the Commissioner for Native Affairs, by summons pursuant to s. 24 of the Land Registration Ordinance for determination of the question of possible native rights over four pieces of land known as “Jomba Plain”, “Modilon-Jomba”, “Wagol” and “Wagol reserve”.

Editor’s Note

These judgments are published in this Report for their legal and historical importance with the kind permission of Paul J. Quinlivan Esq., Barrister and Solicitor of Port Moresby who previously published them in roneod form. The Central Court of the Territory of New Guinea was renamed the Supreme Court of the Territory of New Guinea in 1934. Phillips J. later became Sir Beaumont Phillips, Chief Justice of the Supreme Court of the Territory of Papua and New Guinea.

Counsel

Archer and Dodd, for the Custodian of Expropriated Property.
Cardew (the Commissioner of Native Affairs) Woodman, Turner and Corfe, for the Commissioner of Native Affairs.
Cur. adv. vult.

25 May 1932

PHILLIPS J: By r of the duty imposimposed upon him by the Lands Registration Ordinance 1924-1931, the Commissioner of Native Affairs has referred to this Court, for determination, the question of possiative rights over four piec pieces of land situated in the Administrative District of Madang in the Territory of New Guinea and known respectively as “Jomba Plain”, “Modilon-Jomba”, “Wagol” and “Wagol reserve”.
These references were by summonses which were all returnable on the same day and were, by consent, heard together.

The land known as “Jomba Plain” adjoins the lands known as “Modilon-Jomba”, “Wagol” and “Wagol reserve”, and the four properties form a continuous tract of country having an area of about 5,500 hectares. They have all been surveyed and are all being brought under the Lands Registration Ordinance. Draft certificates of title have been issued in relation to the four properties and in each case the Custodian of Expropriated Property (hereinafter called “the custodian”) has been named as owner in the draft certificates. In the draft certificate, “Jomba Plain” is described as being portions 71, 71a and 72, situated on Astrolabe Bay in the Administrative District of Madang and containing by admeasurement 4,604 hectares more or less; “Modilon-Jomba” as being portion 37 situated on and to the south of Schering Peninsula in the said district and containing by admeasurement 613 hectares 74 ares more or less; “Wagol” as being portion 50 situated on Jomba Plain in the said district and containing by admeasurement 164 hectares 55 ares more or less; and “Wagol reserve” as being portion 51 situated on Jomba Plain aforesaid and containing by admeasurement 53 hectares 85 ares more or less.

The custodian claims ownership of the four properties as successor, by virtue of the Expropriation Ordinance 1920-1929, of the “Neu Guinea Compagnie” (hereinafter called the “New Guinea Company” or simply “the company”).

The four properties mentioned lie within two large areas which the New Guinea Company purportedly acquired from natives forty odd years ago. By a purchase agreement dated 9th November, 1887, the company purported to acquire from certain natives of Bilibili Island the land lying between the River Gogol and the Gum or Marianen River. By another purchase agreement, dated 13th September, 1888, the company purported to acquire from the natives of Jabob Island the land lying between the Gum River and Friedrich Wilhelmshafen (i.e. the harbour at Madang). The land the subject matter of the “Jomba Plain” reference includes, not only the whole of the land between the Gogol and Gum Rivers described in the company’s reputed purchase of 1887, but also a portion of the company’s alleged acquisition of 1888 north of the River Gum. The other properties under reference, (“Modilon-Jomba”, “Wagol reserve”) all lie north of the Gum River and consist of the other portions of the land allegedly acquired by the company in 1888. Still further portions of the company’s alleged acquisition of 1888, such as “Meiro Plain” and Madang township, lie outside the scope of the references at present before me.

It is now claimed by the Commissioner of Native Affairs on behalf of natives concerned, that none of the land to which the four present references relate—all of it mainland land—was ever sold to the New Guinea Company by the rightful native owners thereof. In other words, it is said that, while Bilibili natives may have owned the Bilibili Islands, they did not own and could not rightfully have sold any of the mainland lying between the Gogol and Gum Rivers; and similarly, that while the Jabob natives may have owned the Jabob group of islands, they did not own and could not rightfully have sold any of the mainland between the Gum River and Friedrich Wilhelmshafen.

Thus the New Guinea Company’s purchase agreements of 1887 and 1888 are both attacked.

As the areas which are the subject matter of the present references have been carved out of the lands described in the company’s agreements of 1887 and 1888, it is necessary to consider those agreements, their history, their effect, and to what they led.

Unfortunately, the original agreements have not been found, and perforce, copies of them have been produced from the official land and land registration files whch were kept by the former German Administration and which, since 1914, have been in the custody of Australian Administrations. When, therefore, I refer in this judgment to the New Guinea Company’s agreements of 1887 and 1888, it must be understood that I refer to them as known to us from the above-mentioned copies thereof.

At the time of the two alleged purchases, the New Guinea Company had certain exclusive rights in regard to the acquisition of land in Kaiser Wilhelmsland (the former German portion of the main island of New Guinea) and in the Bismark Archipelago. By charter, dated 17th May, 1885, the Imperial German Government had granted the company the right to exercise, in these places, territorial sovereignty under the Imperial sovereignty together with the exclusive right, under the supervision of the German government, to take possession of and dispose of ownerless land and to conclude contracts with natives concerning land and rights over land. By s. 5, para. 1, of the Imperial Ordinance of 20th July, 1887, the company was empowered to frame, with the sanction of the Imperial Chancellor, principles governing the procedure of the company in exercising the exclusive rights granted to it under its charter of acquiring land by agreement with natives or by taking possession of ownerless land. These principles were duly laid down by the directorate of the New Guinea Company with the sanction of the Imperial Chancellor in regulations, or instructions, dated 10th August, 1887, and were very precise.

In 1887 the headquarters of the New Guinea Company were at Finschhafen, which was then, so to speak, the capital of the colony. There were no white settlements of any kind at that time at Friedrich Wilhelmshafen, or what is now Madang. But the company had just acquired land and was seeking further land in the vicinity of Konstantinhafen, Astrolabe Bay, where a station had been established under station superintendent Kubary.

From the correspondence which passed then, and later, between the directorate of the company in Berlin and the officials of the company in New Guinea (which correspondence has been produced), it is clear that the directors were desirous, and naturally desirous, that the land holdings of the company should be extended as much as possible. It was in furtherance of that policy that Kubary sought to acquire further land for his company along the shores of Astrolabe Bay and as far north as Friedrich Wilhelmshafen and that the agreements of 9th November, 1887, and of 13th September, 1888, were negotiated with the Bilibili and Jabob islanders respectively.

I shall consider first the agreement of 9th November, 1887 (that is to say as known to us from the copy thereof that has been produced). That document purported to be an agreement for the sale of land and to have been made at Bilibili Island between certain natives of that island (described as “the elders”) as vendors, and the New Guinea Company, as purchaser. According to it, the native vendors, as owners, sold, for a consideration of 202.50 marks the land between the Gogol and Gum Rivers and the sea and Hansemann Mountains together with “fronting reefs and island” within the distance recognized by international law and together with all trees, etc. on the land. The boundaries as given in the agreement were as follows:

“Southern Boundary: The Gogol River, forming the boundary of Gorima, in its most westerly course; then the shore of the Astrolabe Bay to the Gum (Marianen) River which forms the boundary of the district of the Jombomba Islands situated on the mainland, including in this stretch the lands of Gogol, Parunde, Dasi, Ulumu and Martabu.

Eastern Boundary: The Gum (Marianen) River up to its course in the Hansemann Mountains.

Northern Boundary: The Hansemann Mountains with its (sic) south-western spurs.

Western Boundary: The Gogol River which forms the boundary of lands belonging to the purchaser which were acquired of Gorima, with all seashores and riverbanks and fronting reefs and islands situated within the distance recognized by international law which belong thereto, with the existing growth of trees and plants, as well as the rights claims and privileges of any kind adhering to same.”

The document, inter alia, also contained the following clause: “The purchasers (this obviously should be ‘the vendors’—a slip, no doubt, in copying) agree and consent that the purchaser, on the strength of this purchase, together with all the above-mentioned privileges, will also enter into the ownership and the property of all the adjoining land which apparently is not at present the property of any natives or settled by such: such land comprises the slopes of the Jombana District (Hansemann Mountains) on the east and west sides of same, with all the portions of the mountains not settled by the Jombana natives, and the Astrolabe Plain.”

The document was purportedly “signed and sealed and delivered” by the native vendors. It is difficult to believe that these natives were able to write their names at that time but, in the copy agreement that has been produced, the names only of the vendors are written without any indication of marks or seals beside their names.

The natives named as vendors were Kain, Nanur, Sad (for Luan), Haana, Kassom (for Dubua), Kore, Alex, Kaltem, Seleme, Jangur. Dubua and Luan are names of places on Bilibili Island. The execution of the document by these natives was noted as having occurred in the presence of the following witnesses: J. S. Kubary (who was negotiating the purchase for his company), Alfred Knoth (an employee of the company and Kubary’s assistant), and three natives of Bogadjim—Moka, Egil and Mollo. Bogadjim is the district situated further south along the coast and at the head of Astrolabe Bay. At the end of the document was a certificate noted as having been signed by Kubary at Konstantinhafen on 16th November, 1887, a week later—in it he certified that:

“The above deed was read and interpreted to the vendors mentioned therein and that same attested in his presence their fullest knowledge of the contents of the document and their understanding of the contract concluded and that they acknowledged receipt of the purchase price and declared themselves as over-satisfied.”

All of the native vendors named in the document of 9th November, 1887, are now dead, unfortunately. But they were well-known to, and regarded as important men of the place, by present day Bilibili natives who gave evidence during the hearing. Among those witnesses were sons of the alleged vendors: Koro (son of Gad); Neli and Kumai (sons of Kisom of Dubua—who was called Kassem in the document); Tagog (son of Selamai— the Seleme of the document); Nakun (son of Han—the Hanna of the agreement, and nephew of the alleged vendor Jangur who was Han’s twin brother); and Tagari (Han’s adopted child). All of these witnesses, except Hakun, were alive and boys at Bilibili when Kubary first visited that island, and they saw him arrive. Two other old native witnesses, the man Ham and the woman Galahun, who was once the wife of Karkar of Bilibili, also saw Kubary at Bilibili and gave evidence about this.

I should mention here that the normal mode of land inheritance among the native tribes involved in the present reference is through the father, and not, as in some other parts of the Territory, through the mother’s line. The custom is for the fathers (not as in some other parts the maternal uncle), to point out to the sons, when they reach a knowledgeable age, their land inheritance: the association between father and son in this part of the Territory is therefore very close, especially in regard to land matters.

The evidence of the native witnesses as to Kubary’s visit to Bilibili Island may be summed up as follows:

They said that Kubary was the second white man to visit Bilibili Island and that a master called “Makile” had previously paid a short visit to that island. (From other and non-native evidence, the correctness of the native memory as to this was established, the “Makile” they speak of being Mikluche Maclay the naturalist, who died in or about 1887.) Before Kubary came to Bilibili itself, the natives of that island knew or had heard of his being at the Konstantinhafen station of the company. Some of these natives had actually seen that station when engaged in one of the long and periodic sea-going expeditions they used to, and still, undertake for the purpose of bartering Bilibili pottery for food. It is probable that this was how Kubary came to know, or know of, Kain, a leading man of Bilibili Island. When Kubary first visited Bilibili he came to Kain’s house. Some of the Bilibili natives went there to look at him, while others discreetly betook themselves to the bush portions of the island. The native witnesses said that with Kubary were three natives from the “Bongu” neighbourhood (near Konstantinhafen)—Iago, Kales and Masel They also said they knew the three Bogadjim natives named as witnesses in the agreement but could not recollect their having come to Bilibili in Kubary’s company. They said that “talk” occurred between Kubary’s party and the Bilibili men but that it was very imperfectly understood because the Bilibili men did know “pidgin” then, because Iago of Bongu, who was attempting to interpret, only knew a little Bilibili talk, and Kain of Bilibili only knew a little Bongu talk, and because Kubary knew no Bilibili talk and very little Bongu. Signs and gesticulations were frequent. Iago called the names of the “big men” (important men) of Bilibili to Kubary, who wrote them down. Kubary, accompanied by the Bongu natives and a number of Bilibili men, then travelled along the mainland coast opposite Bilibili Island from the Gogol to the Gum in his “pinnace”—without landing at any time. The witnesses stated that, during this trip, Kubary asked the names of river mouths passed and noted down the replies of the Bilibili men: that Kubary gesticulated towards the mainland and the Bilibili men, thinking he was inquiring whether there were natives there, and said “yes” that bushmen friends of the islanders lived there. On returning to Bilibili Island after his pinnace inspection, Kubary (the natives witnesses have said) bought a pig from Letem, and distributed some broken pieces of tobacco, some trifling trade, among the natives, which Iago said was given, and they understood to be given, partly as a present to the men who had gone with Kubary on his pinnace and partly as gifts to establish friendly feelings between the Bilibili natives and Kubary. The witnesses said they did not see, or hear of, Bilibili men signing or “marking” a paper themselves for Kubary and they denied that the Bilibili men ever agreed to sell or thought they were selling the land described in the 1887 agreement: “How could they”, the Bilibili witnesses said, “when they did not own any land on the mainland?” These witnesses also described later visits of Kubary as being merely casual or friendly calls—to shoot pigeons, etc. They also said that on Kubary’s final visit just before he left for Germany, a “singsing” was made at Bilibili, and native “cognac” drunk. One witness, Kumai, testified, however that just before Kubary left for Germany, he heard him tell Kain that he thought that white men would come later on and cut down bush on the mainland and plant coconuts there. Kumai said that Kain was disturbed by this remark of Kubary’s and, when reporting it to other Bilibili men, labelled it as “no good”.

In my opinion the native evidence about Kubary’s visit may not be lightly dismissed because it derives considerable support from other sources and from the probabilities of the case. Because of the notorious difficulty of interpretation between non-natives and natives in the early stages of their contact, I consider it was very likely—if not inevitable—that the purport of Kubary’s negotiations at Bilibili was misunderstood by the natives, and the meaning of their talk and gesticulations misunderstood by him. It is not easy, even now, and with good interpreters available, to convey to the natives the non-native ideas of individual ownership and free disposal of land—in short, the significance of our sale of land: for to natives, such notions are usually foreign. The difficulty of doing so at Bilibili in 1887 must have been extreme. At that time white men were still new and strange creatures to the Bilibili islanders—some of whom promptly fled on Kubary’s arrival. There is nothing in the 1887 agreement to show who actually interpreted that document at Bilibili. Two employees of the New Guinea Company (newcomers to Bilibili Island) and three Bogadjim natives (whose speech was not the same as Bilibili “talk”) were named in the agreement as witnesses; if they also acted as interpreters, the chances of their giving the Bilibili natives a proper understanding of the agreement seem rather remote. As to the native evidence that only trifling articles of trade were distributed by Kubary at Bilibili after his pinnace trip along the coast, and that this trade was thought to be a goodwill present, it may be noticed that in the 1887 agreement the sum of 202.50 marks is given as the consideration paid to and received by the native vendors. Curiously, however, when Kubary forwarded particulars of the Bilibili transaction of 9th November, 1887, to the company’s directors in Berlin on 30th November, he gave, as the consideration paid, 83 marks 20 pfennigs—a much smaller figure than that mentioned in the agreement itself. The instruction of 10th August, 1887, regarding the manner in which the New Guinea Company was to conduct its acquisitions of land from the natives, expressly laid down that the representatives of the company were under the obligation (which was to be most strictly fulfilled) to see that the purchase consideration in money or goods was paid without any deduction.

But apart altogether from the question whether the alleged native vendors at Bilibili understood the nature of and duly executed the 1887 agreement, there is another very vital question: “Did those natives own or have the right to sell the lands described in that agreement?” Now from one of Kubary’s reports, that of 13th September, 1892, it appeared that he had concluded the purchase of land at Gorima, south of the Gogol River, on 8th November, 1887—that is, on the day before the Bilibili transaction. It seems somewhat extraordinary that, after concluding a purchase of land at Gorima, he should have been able to come to Bilibili Island next day, on what (according to the evidence) was his first visit, and, before the day was over, arrange with natives of that small island the purchase of an enormous tract of mainland opposite their island. That tract of country had an area of over 4,000 hectares, a sea frontage of over 7,000 metres, and a depth varying from 4,000 odd to 2,500 odd metres. It was then, and is still, largely covered with forest and sacsac swamps and is country through which it is often difficult to see further than a few metres. Obviously it would have been humanly impossible in 1887 for anyone to do more than inspect a very small portion of the whole area in one day, much less genuinely satisfy oneself that the Bilibili islanders owned the whole of such a large stretch of land. (As to the land which was mentioned in the agreement of 1887 as “adjoining” the land purportedly purchased and as “apparently ownerless and unoccupied” and which according to that document, the Bilibili natives agreed that the New Guinea Company should take into possession and ownership, it expressly included the east and west sides of the Hansemann Mountains and the Astrolabe Plain: from the sea, Kubary could at best have seen only the treetops of this land and that at a distance of several miles.) In actual fact, there were many native tribes, of totally different race and speech from the Bilibili Islanders, living on the land described in the 1887 agreement at that time, as Kubary would have soon discovered had he landed on the mainland and walked but a short distance inland from the beach. There can be no doubt whatever that his inspection of the land on 9th November, 1887, was from the sea and that the native story of the pinnace inspection is correct. In the first place, the only native place-names mentioned in the agreement of 1887, are those of creek or river mouths: Gogol, Parunde, Dasi, Ulumu and Martabu; and an interesting fact, and one that supports the native story that Bilibili men, not mainlanders, called over the names of the beach places seen by Kubary, during his pinnace inspection, is that Parunde (or Farunde) is the Bilibili name for the river that the mainland natives called the Farrot. In the second place, Kubary himself, writing on 30th June, 1890, to the company’s headquarters at Finschhafen, frankly stated:

“An exact survey and walking of the boundaries could only be done with a few properties which were of smaller dimensions or which were taken in hand immediately. The bigger areas of land of Bogadjim, Gorima, the island of Bilibili and the Yambomba Islands purchased, could only be specified by indicating the geographical boundaries, by giving the mouths of rivers, the beach, the mountains of the interior etc., since an exact survey had to be left until the future and the services of a great many men.”

It is manifest, and should have been manifest at the time, that a white purchaser, negotiating in 1887 on Bilibili Island, with the natives of that island, for the purchase of a huge and heavily timbered mainland area, and concluding with these islanders an agreement for the purchase of so great an area after a brief inspection of its beach frontage in a pinnace, ran a grave risk of including, in the so-called purchase, land belonging to other than Bilibili natives. Was Kubary blind to these risks? I consider he was not, though he counted overmuch, I think, on the power and influence of the Bilibili islanders. It seems to me that the widespread activities of the Bilibili islanders as traders throughout the Astrolabe Bay neighbourhood led Kubary to suppose that they were also influential in land matters; whereas, in actual fact, the energy with which these islanders traded their earthen wares was due to their lack of land: they had to manufacture and barter their earthen pots, or “saucepans”, for the food necessary for their sustenance since they had insufficient ground of their own on which to grow the required amount of food.

The observations made by Kubary in reporting his early purchases to headquarters are of interest.

On 17th July, 1888, he wrote justifying the purchase of, and price paid for, a piece of land he had acquired on 12th June, 1888, on Bilibili Island itself, on the ground that it gave the company the only useful anchorage from which to work the adjacent mainland “beach stretch of Jomba Plain” which he had bought “pursuant to instructions received”. He added:

“The sole anchoring place in the north-west of Astrolabe Bay lies just by Bilibili which exercises a proportionate influence generally on the inhabitants of Astrolabe Plain, and possibly the adjacent districts. In any future development of this district the anchoring place at Bilibili will be the only one of any use, and in any case a station must be established here. Bilibili have transferred their lands on the mainland to us, but we had absolutely no property on their own island, which is indispensable to the working of these lands, and were only tolerated and useful friends; on the contrary, Mikluche Maclay possessed a piece of land there and in the event of his return (his death was not known of at the time) he could have exercised a very favourable influence. The station therefore thought to ensure to itself a very necessary independence for the future by means of a legal purchase of a piece of land situated near to the anchoring place, whether it be against outside influence or in the event of a change of sentiment among the natives, and which was achieved by the purchase which has been effected and the comparatively high payment (because the island itself has only a small area). Naturally consideration arose which partly aimed at an acknowledgement of the fidelity formerly shown to the station on the part of the natives, and also the intention to ensure the goodwill of the natives in the future. In consideration of all these reasons the price did not appear to the station to be too high, all the more so as the island transferred all their landed possessions on the mainland to us for a very small price.”

On 7th October, 1889, Kubary wrote to headquarters at Finschhafen observing that after the agreement with the Jabob islanders had been concluded the “coastal land in Astrolabe Bay as far as Friedrich Wilhelmshafen had come into the nominal possession of the company” and he expressed the view that further acquisitions of useful land, in a way consistent with the friendly understanding of the natives, were not possible.

In another later report, written at Friedrich Wilhelmshafen on 13th September, 1892 (the report also bears a pencil date—19th September, 1892) Kubary wrote as follows:

“After the purchase of the land Gorima on the stretch from the Yori to the Tibum River, which took place on the 8th November 1887, the purchase on the island of Bilibili of the stretch of beach on the mainland from the Gogol River to the Gum (Marianen) River followed the next day.

A detailed fixation of the lands purchased by me could not be carried out at once because at that time I lacked the means and the opportunity for such an undertaking. My work was to extend the station in Konstantinhafen, scarcely begun, with very limited labour at my disposal and this did not allow of a close control of areas so distant, all at the same time, more especially as they were not to be taken in hand.

According to the instructions of the Administrator von Schleinitz, and in conformity with the means at my disposal, it was at first only a question of acquiring rights to the lands of the natives well disposed towards us in order to pave the way to a friendly understanding with them. More detailed explanations as to the acquisition could only come in time as a result of the land being taken into use. In the meantime the only thing that mattered was to maintain friendly relations with the vendors and thereby preserve the rights acquired. In Bogadjim, not so distant, in anticipation of the approval of the Administrator, I had a simple house built of native material, in which I lived at times in order to get into closer touch with the natives. In Gorima and Bilibili also the vendors knew that later many white people would come and settle on the land sold. On these terms I also bought parcels of land on the island Bilibili and the beach stretch from the Gum River (Marianen) to the land Modilon from the Yambomba Islands . . . I might express the opinion that though with these kinds of acquisitions of land subsequent arrangements are more or less inevitable, nevertheless if I had come to an understanding with the natives at the time perhaps a method would have been found which would have prevented many misunderstandings later.”

From these letters it would appear that Kubary, at least, regarded the early agreements, such as that of 1887 at Bilibili, as prima facie in their nature and not to be taken too literally: that is, the mere existence of the agreements would be sufficient to keep other non-natives off the lands described therein, but explanations and adjustments with the natives might be necessary later on when the company wished to establish stations or start work in such lands.

The company’s administrator (or manager) in New Guinea certainly realized (if the Berlin directors did not) that the early local conditions of the colony made a too literal insistence on the terms of the earlier purchases impracticable: witness his letter of 14th October, 1892, to the Berlin Directorate, in which he stated:

“According to the local conditions, it is not improbable that, in spite of careful purchase, subsequent rights over small areas will be found, in which event it is strongly recommended that subsequent compensations be granted, instead of provoking bad feeling and the enmity of the natives by taking possession which, in their eyes, would appear to be a breach of their rights.”

He also, to give the directors a better understanding of the land acquisitions by Kubary, quoted passages from Kubary’s report of 13th September, 1892, already quoted by me.

To the question “How much of the mainland area between the Gogol and Gum Rivers was rightfully acquired by Kubary in 1887?” the native witnesses, whether Bilibili islanders or mainlanders, have given an absolutely unanimous answer, namely “None”. Representative witnesses of all the mainland tribes concerned gave evidence that the whole of that mainland area belonged, and had always belonged, to them; that none of it had ever been sold by them to whites; and that they had never authorized anyone else, such as the Bilibili natives, to sell any of their land. In corroboration of this, all the Bilibili witnesses admitted that they owned none of the mainland and never had owned any of it. They said that when Kubary came to Bilibili Island their village was on that island, and not, as now, on the mainland on a site belonging to others. At that time, they said, some of the Bilibili people had been allowed by the mainland people of Od villages to make small gardens on Od ground on the mainland; and the Bilibili people then, as now, were allowed by the mainland people of Baher to get clay from Maguin (Baher ground) for the purposes of making pottery. I have already mentioned that the Bilibili islanders lacked ground for gardens and were compelled to make and trade their earthenware “saucepans” for necessary food. Not only did they trade their earthenware along Astrolabe Bay, and to the Rai Coast, but they maintained a similar trade with the tribes on Jomba Plain. For the latter trade, market days would be arranged and the Jomba Plain natives would bring food supplies to the coast, usually to Umuina or Od, and receive Bilibili “saucepans” in exchange. Proceedings at these markets were apparently enlivened on occasions by the abduction of mainland women by Bilibili men, and because of this fights occurred: but (on the evidence of both mainland and Bilibili native witnesses) none of these conflicts ever led to the seizure of land by Bilibili men. As time went on, Bilibili natives were allowed to garden on Baher and Gum land on the mainland, as well as on Od ground, the first Bilibili garden on Baher land being made about a year before the Germans cut a track or road to the Gogol. But at no time did the Od, Baher or Gum people give land itself to the Bilibili people, as the Bilibili people have admitted. It was not until some time between 1904 and 1913—many years after Kubary’s visits to Bilibili Island—that the Bilibili people settled, by permission of the Baher mainlanders, in a village on the mainland beach at Maguin (Baher ground). Though it appears that lately the Bilibili natives have sometimes made a garden on Baher land without asking special permission for that garden site beforehand and that this has caused argument between the Baher and Bilibili people. Nevertheless the Bilibili islanders, assertive though they may be, still make no claim to the ownership of any of the garden ground itself and admit they are merely gardening and living on mainland ground by the sufferance of mainland natives. The mainland natives insist that the ground is still theirs even though they may have allowed Bilibili men to use portions of it: the reason they have not ejected the Bilibili men when there has been argument concerning garden sites was put as follows by Matei, a very old and important Baher native and a statesman in his way: The Bilibili are numerous, but we of Baher are few; if we were to tell the Bilibili people to go back to their island we should have to do all the road maintenance in our territory and provide carriers for masters ourselves.

No less than thirty-six different native tribes or landowning groups claim different sections of the Jomba Plain area between the Gogol and the Gum: these sections together make up the whole of that area, leaving no balance unclaimed. The policy of the former German administration (and one, apparently, continued by the succeeding administration) was to encourage the natives to cease dwelling in numerous scattered hamlets and to concentrate instead in large villages at points easier to access: this facilitated census-taking, tax-collecting and administrative control. Then too, as in their fashion, natives have moved from one village site to another from time to time: e.g. the Od natives who formerly lived on Bedarim and Mesakul on the coast moved inland to a site at Ura and then again to their present village site near the mouth of the Gum River. Many other village sites that were occupied in former times (some even just before the war) are uninhabited now—e.g. Main, Buddo, Neb, Baslegla, Hudumdap, Mabo, Eggera, Badele, Gagalu, Eilegna, etc. But all of these sites may easily be identified still. At the present time (apart from the Bilibili settlement at Maguin) the following large villages occupied by mainland natives stand on the Jomba Plain area between the Gum and Gogol Rivers: Umuina, Nagim Baher, Sso, and Churu villages of Mamandaru and Bele, the double village of Sein-Ye, Halip, Bagup, Yagom, Mihilon, Meltab, the Hudine villages of Mesihina and Lube, Waguk, Sso and Od. There are also a number of small settlements, occupied by mainland natives, and containing one or two to four or five houses, at Wabar, Doi, Ahatabu, Iak, Rambagil, Iek, Ubur, Wassala, Yelso “No. 2”, Ta, Wahalog, Golsihu, Gagon, Adde, etc. Outside the surveyed back boundary, at Gesup and Aguru (and Sein) live natives who claim land inside as well as outside the boundary. But neither village concentrations nor village migrations have obliterated the old tribal land divisions. Each native group represented before the Court knew and was able to point out on the spot the land claimed by it and the names of the different plots of ground therein. The result was as follows:

The Yo tribe claims the plots of ground known as Huraha, Malaba, Manteer;

The Sein tribe claims those portions of Meduk and Danmaiya that lie inside the surveyed back boundary;

The Marip tribe claims Metan, Mau, Kakar, Membatu, Hawok, Hangaruk, Iahiyeban, Iaup, part of Derene and Hiertabu;

The Aguru-Main tribe claims Iaube, Donet and Iak;

The Aguru tribe claims that part of Od that lies inside the surveyed back boundary;

The Deiwer tribe claims Balado (part), Biatabu, Wabalef, Wau’belna Wewesi (mainly river), Huli or Huri, Wagol;

The Meltab tribe claims Huru, Habe, Raisihu and part of Eggera;

The Mihilen tribe claims Gaihigilak, Albauk, Balin, Degir;

The Behitab tribe claims Bet or Pet, Hudum Be, Oiidaru, Ahatabu, part of Dorono;

The Yagem tribe claims Pabate, Galide, Nigitab, Eggera (part), and parts of Lawesihu, or Pa and of Te;

The Churu-Mamandaru tribe claims Hume, Mamandaru, Fofo, Umeden, with Bambagil, part of Maur, and part of Heirtabu;

The Churu-Bele tribe claims Baiba and part of Heirtabu;

The Aua-Iaum tribe claims Gog, Meo, Awam, part of Oru’u and a small part of Doi;

The Aua-Heb tribe claims Wailem, Wa’gu, Bamgar, Urin, Balet, part of Oru’u, part of Aduna and part of Bed;

The Taitab tribe claims Aradu, Felua and part of Lawsihu, of Ababa, of Pal and of To;

The Aua-Ianu tribe claims Asua;

The Maim tribe claims Aidaru, Wamatu, Kokop, Yauna, Gel Gel, Nameru, Hisilu, Oiye, and the major part of Maur;

The Baide tribe claims Wadakol, Sihir, Wabara, Memetab, Babandaru, Oa, Wake, and most of Dei and of Aduna;

The Bag tribe claims Do, Urutu, Women, Hi’ai, Bariho and part of Ogum and of Ababa;

The Maher tribe claims Maher, Magdaru, A’gan, Wagegila, Sinam, Adde, and that part of Meior that the Gogol River has still left;

The Wabar tribe claims Ngik, Udanier, Niniak, Wabar, part of Fo, and part of the sacsac areas at Gau, Mut and Wagtahu;

The Hudine tribe claims Heisaly, Gogobuk, Yabadisihu, Wassa, Sesaiin, Bemali, Wasala, Ya, Haymomer, Mai’i, Mamatabu and part of Duren, of Baumuawewe (or Hanipo), of Wili, of Ielabana, of Badalo, and of Wamaha;

The Galale tribe claims Barahurum, Enana, Wadan, Wabenem, Bamagel, Gesalu, part of Kurukulna and part of Gagalu;

The Haitab tribe claims Uhium, Dodena, Garimahena, Ieiea, Filfil Aibie, Wabasi, and small part of Baumuawewesi;

The Waguk tribe claims Wahaleg, Talim, Aniheri, Malip, Talimasa (the major part) Dausihu, Dek and part of Kurukuina;

The Gagulu tribe (the two branches of it together) claims:

(a) &#Ie’eleguma, Bihalfihalfi, Balna, Luome, Mok, Walsihu, Enalna, Galana, Galik, Ailegna Balibiliana, Domiso;

(b) ҈ nimbe, Sna, Selus, lus, Gunaniena, Gaglau, Balahun, part of Talimasa, part of Balada, Ti’in, part of Anage, and Wamala and Waguli (river land);

The Sea-Gala tribe claims Wabali, and Wanani (river land) (this Wabali is not the same as Wabali, north of the Gum River); Heleaibuija, Walsihu, Bangelas, Wasulik, Eona, part of Seagil and Lalhuel;

The Sso-True (i.e. Sso proper) tribe claims Augalahu, Ifea-Huhin, So’hna, Meo, Halehan, Wa’ia, Nadedun, Ajam, Hilbata and part of Huli, of Elela and of Baumuawewesi;

The Sso-Belna tribe claims Mabe, Wahe, Baragtabu, Urut, Mut, Manari, Higan, Damai and part of Huli and of Elela;

The Gesup tribe claims Sanem, Wadan, Ubal, and part of Gildop and of Seagil (all of which lie south of the Gum River) (The pieces of ground claimed by the Gesup people north of the Gum River will be referred to later by me);

The Gun tribe claims Dansa, Maris, Bamir, part of Huli, and part of the lands of the Farrot River;

The Umuina tribe claims Lai, Nar, and part of Gau, of Agan, of Malabana;

The Nagi tribe claims Tuburis, Kobile, Ubur, part of the Farrot River bank, part of Gau and part of Ialho;

The Baher tribe claims Tut, Os, Bilhami, Maguin, Dassi, Gagar, and Met;

The Mahoban tribe claims south of the Gum River (the plots claimed by the tribe to the north of that river will be referred to later), the following plots of land: Lauhel, Gungudamen, Annan, Na’umalu, Ilel, Balefna: the Palatek “Island”, between the former and present courses of the Gum River;

The Oi tribe claims Gum, Wamen, Suabul, Wilmuk, Barein, Maltabu, Sasabilel, Banana, Ulum, Iauluagan, Bamgeau, Maga, Alegsihu, Golsihu, Buduka, Iage, and the former village sites of Masakul and Dedarim which really lie within Barien.

The native witnesses who gave evidence on behalf of the above-mentioned thirty-six native landowning groups were able to tell the court how these plots of land had come to these natives who now claim to be their true owners and were able to give the names of the former native owners of these plots for at least three or four generations back. They were able to point out, and did point out, to the court and to the parties on the spot, all the particular plots of land I have named, as well as the intertribal boundaries. The court inspected (and I think the parties will agree that the inspections were thorough) the whole area and was shown existing villages and hamlets; former village sites; extensive existing, fallow and prospective garden areas, coconut groves, food trees, sac sac swamps and areas (both the edible sac sac and the sac sac used for purposes such as the manufacture of women’s skirts); forest land (from which came housebuilding material, etc.); pighunting territory, and so on. It must be remembered that existing garden areas (i.e. garden areas actually in use at a given time) represent only about one-fifth to one-eighth of the garden ground used over a period of years—because of the native ignorance of the use of fertilisers and manures and their consequent practice of allowing garden sites to lie fallow after use for from about five to eight years. From the native evidence and the court’s inspections on the spot, it was evident that the whole of the Jomba Plain country between the Gogol and Gum Rivers has long been the subject of undisturbed native occupation and user, and that such occupation and user has been fairly intense, except, perhaps, as to a strip of land on the northern banks of the Gogol River. That strip of land, however, is at any time liable to be flooded by the Gogol River and is therefore used by the natives mainly for pighunting, timber-getting and so forth.

In German times roads or tracks were cut through the Southern Jomba Plain area, and it has been surveyed, but no developmental work, planting or settlement of any kind was attempted by the New Guinea Company here—or has been by its successor, the custodian.

In short, the mainland tribes who were living on the Gogol to Gum stretch of country when Kubary first came to Bilibili Island continued to live there undisturbed and are still there. It was only comparatively recently, and many years after the 1887 transaction, that they learned that the New Guinea Company claimed that it had bought the land on which they lived.

One other important fact must be noted. All the true mainland natives living on the Gogol to Gum portion of Jomba Plain speak the one language (nowadays called the “amele talk”), and are of Papuan stock. But the Bilibili islanders speak another language entirely and are of Melanesian stock. This was established by the unanimous evidence of both Bilibili and mainland native witnesses, corroborated by the evidence of two missionaries who are working in the neighbourhood and have studied the native language there—Father Aufinger (a Roman Catholic priest) and the Rev. Eiffert of the Rheinish Mission. This difference of race and tongue does much, in my opinion, to support the native evidence that the Bilibili natives could not have rightfully sold the land of the mainland tribes to the New Guinea Company.

In the initial stage of opening up a new colony it is hardly to be expected that the early land purchases would be in all respects perfect. But it seems to me that the agreement of 1887 was not a case of imperfect conveyance of land by the owners thereof, but a case of the alleged conveyance of land by natives who in fact owned none of the land, purportedly conveyed, whatever. From all that I have said, I consider that only one conclusion is possible, namely, that as to that part of the Jomba Plain land under reference that lies between the Gogol and Gum Rivers, the claims of the thirty-six mainland native tribes that that land was theirs and not the property of Bilibili islanders, and that, therefore, the land was not rightfully purchased by Kubary for the New Guinea Company in 1887, are established.

I turn now to the agreement of 13th September, 1888, or rather to the copy thereof that has been produced. This purports to be a copy of an agreement made at Jabob Island between the New Guinea Company (represented by its station superintendent Kubary) as purchaser, and certain natives who were described as “elders of the Island of Yambomba” (i.e. Jabob) as vendors: namely Balesi, Baharo, Sapur, Karkar, Sui, Mungae, Daulan, Tombul, Ninik, Nadup, and Navur, in the presence of the following “elders of Bilibili Island”: Kain, Gad, Ur, Saleme, Ales, and Gap. The land described in the document as having been sold, for a consideration of 54.40 marks in trade, by the said native vendors as owners to the company was as follows: “Unek, Gaua, Lantibut, Parolan, Paridamen, Uapel, Uogehet, Medehelan, Jakundu, Uaraben, Godewan, Ceylon, Gamagamseten, Begelen, Ua and up to the boundary with the tribes in Friedrich Wilhelmshafen at the end of the land of Modilon, which are all situated on the Astrolabe Bay and which on the south are bounded by the Gum (Marianen) River; on the east by the sea; on the north by Friedrich Wilhelmshafen and on the west by the Hansemann Mountains, with all the trees, plantations, and buildings existing thereon.” The document purports to have been signed by the native vendors and by the Bilibili witnesses or “bystanders” as marksmen. In the document it was stated that station superintendent Kubary “participated as interpreter in the negotiations”. Apparently Kubary acted both as the agent of the purchaser and as interpreter. The propriety of such a course would be objectionable today, but it must be remembered that in 1888 interpreters must have been rare. Possibly, the reference in the agreement to the Bilibili natives as witnesses or “bystanders” was intended to convey that they assisted in the interpretation, but this was not directly stated. Two non-native witnesses—Roehll (described as a government surveyor) and Kollewe (described as an engineer —presumably the engineer on Kubary’s “pinnace”) appear to have signed the agreement as certifying that, according to their conviction the meaning of the transfer of the property was made quite clear to the native vendors. At the end of the document is a note, signed “J. S. Kubary”, to the effect that a duplicate of the agreement had been handed to the vendors.

Of the natives named as vendors in the 1888 agreement, there is only one survivor—Mugae (the Mungae of the document) who gave evidence at the hearing. From native evidence, it appeared that Balesi, and the two brothers Baharo (or Barare) and Sapur (or Sagui), Mugae, Yeebun (the Tombul of the agreement), Nadup and Navur were all Jabob men and men of consequence: but, on the other hand, it appeared that the alleged vendors Karkar, and Sui were not truly Jabob men at all but were Bilibili islanders who happened to be residing on Jabob Island when Kubary called there: Karkar’s widow, who is still alive, corroborated this. Apparently the “vendor” Ninik was also really a Bilibili islander who, because of a quarrel at home, had come to Jabob to live: he was there when Kubary visited the place and he died at Jabob. According to native custom, the landed interest of Karbar, Sui, and Ninik would have been at Bilibili if anywhere—not at Jabob. The name “Daulan” is given as that of a vendor in the agreement, but none of the native witnesses could place this name: they suggested that possibly Kubary had written “Daulan” in mistake for “Gaulat”, the name of a leading native of Nob village on the mainland at that time, who had (according to the witness, Ubuk) come across to Jabob Island when Kubary was there. It may be noticed here that when Stuckhardt J. was inquiring into the 1888 agreement in 1902 he also found that the Jabob natives were unable to place “Daulan” but they suggested to him also that Gaulat might be the native intended.

In addition to the surviving “vendor”, Mugae, a number of other natives gave evidence at the hearing who were alive at the time of Kubary’s visit to Jabob and actually saw him arrive. Some of them watched proceedings openly, others from hiding. Balesi’s son, Wagol, and Guan, Gaulat’s adopted son were among the natives who gave evidence. The stories told by native witnesses as to what happened when Kubary visited Jabob were substantially the same. They said that Kubary came to Jabob once, and once only; that he came in a “pinnace” and, after firing a musket to attract attention, landed at Jabob in company with Bilibili natives who had come with him, such as Kain, Ales and Gap—and also the Bongu native called Iago. (Bilibili witnesses corroborated this, by the way.) The Jabob witnesses stated that talk and gesticulations ensued, but that they were hard to understand as Kubary knew no Jabob language but appeared to know some Bongu talk; Iago knew Jabob and Bilibili talk partially only; while Kain of Bilibili, who was trying to help in the interpreting, only partly knew the Bongu language. They said (and there was Bilibili evidence in support) that they understood from Iago that Kubary was only looking at their place and wished to become friendly with them. They said also that Kubary gave Barare a tomahawk, but only lent Balesi one to cut a tree that had fallen across the path, and that the only trade received from Kubary that day consisted of fragments of “stick” tobacco. They further said that Kubary went in his pinnace to the mouth of the Gum River, accompanied by Barere in his canoe and Sapur; that Kubary pointed towards the mainland and Barere said there were many native friends of his there: that Kubary could not effect an entrance of the Gum because of the bar: and that (according to the witness, Wagol—though other witnesses did not recollect this) Kubary only landed on the beach near the mouth of the Gum River and nowhere else. Kubary then proceeded in his pinnace, hugging the shore, as far as what is now Madang. On his return to Jabob Island, according to the native witnesses, Kubary posted on a coconut palm a paper he had marked and told the natives to leave it there. Mugae, the only surviving “vendor”, admitted that he and other important natives of Jabob marked a paper from Kubary, but he insisted that they had no idea the paper had anything to do with the sale of land. As for its being for the sale of the mainland places mentioned in it, he and every other Jabob witness averred that they did not own these places and therefore could not rightfully have sold them and did not sell them. The Jabob witnesses were subjected to close examination and keen cross examination but did not waver in their statements that the significance of Kubary’s paper was unknown to them at the time. Several of these witnesses testified that, after Kubary had left Jabob that day and gone back to Bilibili, the Jabob natives discussed his visit and speculated upon the meaning of it and of the mysterious paper on the coconut palm; they finally came to the conclusion, as some of the witnesses said, that Kubary’s object in putting the paper on the tree might be to “mark the island” for future slaughter; a general panic ensued, which Wagol stated, caused everyone to flee from the island that night and stay away from it for about a week. Such a panic and exodus would scarcely seem consistent with a proper understanding of the 1888 agreement. Other things go to show that something went astray in the interpretation of that agreement. Thus three Bilibili men and probably a Nob man, who could not have any real interest in Jabob land, were included in the list of vendors. One would have thought that the Bilibili elders, who came to Jabob with Kubary, would—if they had properly understood what was going on—have pointed out that the three Bilibili men at any rate could not rightly join in the sale of Jabob lands—unless, of course, they wished to see those men get some free tobacco, or unless they thought Kubary’s visit merely a friendly one to establish good relations with Jabob. In any case, as I think the Bilibili men were unaware of the significance of the agreement of 1887 at their own island, and as nothing had happened in the way of developmental work by the company between 1887 and 13th September, 1888, on Jomba Plain to bring home to them the significance of that agreement, I consider the Bilibili men could hardly have been qualified to act (if they did act) as reliable interpreters of the Jabob agreement of 1888. Then again, could the Jabob natives have knowingly agreed that they had the right to sell a vast tract of mainland which, as will presently be seen, they did not own? It is possible that their lust for fragmentary tobacco was so great that they ... but not, I think, probable[dxxxiii]1. In short, from what I have said, and by reason of other circumstances and considerations to which I am about to refer, I am of the opinion that the natives named as vendors in the 1888 agreement did not even substantially understand the true purport of that agreement.

In reporting the Jabob transaction, Kubary, writing from Konstantinhafen on 30th September, 1888, observed that after the Bilibili transaction of 1887, “the inhabitants of the Yambomba Islands who own the northern lands stretching up to Friedrich Wilhelmshafen also often expressed the wish to transfer them voluntarily to the company, and as the station thought it advisable to have a friendly agreement with the owners and an amicable taking-over of the land from the station superintendent” (Kubary himself) “on the occasion of the last expedition to the Gogol River, touched at the Yambomba Islands and concluded the purchase of the said land whereby the whole of the stretch of beach of Astrolabe Bay” (with the exception of certain proposed reserves) “passed to the possession of the company by a friendly arrangement with the native owners”. In view of the evidence before me, Kubary’s report appears to be somewhat ingenuous, and I must say that it would seem to me to be an incredibly good day’s work to be able to “touch at” the small Jabob Islands and in one day conclude a valid purchase of the mainland area comprising—even without what are now “Meiro Plain” and Madang township—some twelve and a half hundred hectares. But Kubary merely viewed that land from his own pinnace; and he has admitted as much in his letter of 30th June, 1890—the relevant passages of which I have already quoted. Incidentally, every one of the pieces of land specially mentioned in the 1888 agreement (with the possible exception of Ua—which may be Wa—water—and which could not be identified by Stuckhardt J. in 1902 or during the present hearing) was situated on the beach.

In another report (that of 7th October, 1889, from which I have already quoted the relevant portions) Kubary stated that, with the completion of the agreement with the Jabob islanders, the company came into what he called the “nominal possession” of the coast of Astrolabe Bay right up to Friedrich Wilhelmshafen. And that report, and his later report of 13th September, 1892 (from which also, I have extensively quoted hereinbefore) show that Kubary did not anticipate that the “nominal possession” by the company of the whole of that territory would remain for ever intact but that he contemplated the future necessity of adjustments with the natives.

The way in which the transaction of 1888 at Jabob Island was concluded—the only inspection by Kubary of the land allegedly then bought being from his “pinnace”—made it impossible for Kubary to be genuinely certain that he was buying land that belonged solely to the Jabob natives.

According to the evidence given at the hearing by native witnesses (whether Jabob islanders or mainlanders) none of the mainland was owned by Jabob men in 1888, nor is any of it now. One witness, Beg of Mareng Island (one of the Jabob cluster) claimed that two pieces of land called Bidamen and Moreland (on the mainland opposite Mareng Island in what is now Modilon-Jomba Plantation) belonged to his people in 1888. None of the other Jabob and Mareng witnesses, however, supported this but said, on the contrary, that these places were merely landing places on the Matulon-owned ground: the weight of evidence is therefore against Beg’s claim. Though the Jabob islanders owned none of the ground on the mainland, they had gardens there in 1888 (and later)—on the land of the mainland tribes of Nob, Matulon and Mahehan—by permission of those tribes. But the produce from these gardens did not meet all the food requirements of the Jabob islanders, who, like their Bilibili Island neighbours were potters and traded their “saucepans” for food. At the present time the gardens and groves used by Jabob islanders on the mainland are situated on the land of the mainland tribe of Mahoban only—and on land the Jabob islanders admit to be Mahoban-owned. The reason for that concentration of Jabob agricultural effort on Mahoban land was this: when the New Guinea Company commenced to push its clearing and planting operations southwards from Friedrich Wilhelmshafen along the coast, the Nob land and the Nob and Jabob gardens therein were first absorbed, next the Matulon land and the garden sites there, and finally even a small section of Mahoban land, before the company called a halt. Fortunately for the natives whose garden sites were thus absorbed, the Mahoban people have allowed them to use Mahoban ground for gardens, etc., though the ground itself of course remains Mahoban ground.

Now as to those portions of the land described in the company’s Jabob agreement of 1888 which are within the scope of the four references now before the court, the native evidence went to show that, when Kubary visited Jabob in 1888, the whole of these portions were owned by other than Jabob natives, namely: the Gesup, Sisiak, Mahoban, Matulon, Nob, Uaribu, and Biliau tribes; owners of different sections that together left no ownerless balance.

Thus it was stated that the Gesup natives in 1888 owned the following plots of land situated north of the Gum River and within the scope of the present references: Alal, Banat, Wamali, Wabali, and Waseihena. All of these plots lie within the land recently surveyed as “Jomba Plain” and within the scope of the “Jomba Plain” reference: none of them have been touched by the New Guinea Company or its successor but they have always been used and still are used for gardening, timber-getting, etc., etc., by the Gesup natives.

The pieces of land situated north of the Gum and within the references, stated to have been owned by the Sisiak tribe in 1888, are as follows:

(a) Aubien and Wa8am&#wh12; inch includes the whole of the land within the so-called “Wagol reserve”. This is a bush area fhich k nat(and eir psion, natives of other tribes) got, and still get, get, matermaterial fial for hoor house ause and canoe-building. There are Sisiak gardens on the land now; also gardens said to have been put there by labourers employed by the adjacent Meiro and Wagol Plantations.

(b) &ـ Iawot&#wot—w212;which is a small part of the land included in the “Jomba Plain” reference and Sisiak garden ground: here too at present there are large gardens said to have been planted by the Wagol Plantation labourers.

(c) Part of Waubei and of Wad1—both of which now lie in the “Wagol” Plantation.

The Mahoban natives also, it was claimed, owned land north of the Gum River in 1888, which w undferenamely: Gauwan, Unn, Unek, Lek, Lantibantibut, Patalan, Belhon, Paridamon, Wagerim, Tutum, Gagahoe, Yeamalan, Tutuholo, Palatek, Bagelahe, Bevehulum, Ubi, Sekualihan, Wasalna, Balasgo, Delema, Didipa, Malasilian, Uegahon, and Uapol. (The Palatek mentioned here adjoins Palatek “Island” which I mentioned earlier and placed “south of” the Gum.) Of these alleged Mahoban pieces of ground: (a) part of Wasalna and of Balasgo are now in “Wagol Plantation” and planted up; (b) another part of Balasgo, part of Yoamalan, and the whole of Deleman, Didipa, Malasilian, Uegahon and Uapol lie within the surveyed “Modilon-Jomba” Plantation and, with the exception of the part of Balasgo, have been planted up with coconuts or rubber by the company; on that part of Balasgo above mentioned there are some gardens which have been put there by the indentured labourers of “Modilon-Jomba” Plantation and also a clay-deposit used by the Jabob natives; (c) remaining alleged Maheban plots are all within the “Jomba-Plain” area and reference—most of them (the first twelve mentioned) in the so-called “Jabob reserve”—and they have never been developed by the New Guinea Company or its successor in any way: but native user of these plots has been continuous—as inspections on the spot verified; the so-called “Jabob reserve” and the ground adjoining it are especially the subject of intense native user and cultivation.

The pieces of land under reference claimed to have been owned by Matulon natives in 1888 were: Debhon, Nopeti, Miloknon, Nuna, Muraha, Ubilas and part of Laiwudon and of Dum, Bidamon Point with the Bidamon and Moreland landing places. All of these plots are now within Modilon-Jomba Plantation and have been planted up with ficus and coconuts by the company.

The Nob natives have claimed that at the time Kubary arrived at Jabob in 1888 they owned the following pieces of land north of the Gum and within the area referred to the court: Jakundu, Sirelon, Bogilon, Wageban, Woiewoielon (or Woielon), Gamaga-masotan, Tausina or Toulhon, and part of Laiwudun and of Kangaton. All of these plots have been planted up with coconuts or rubber by the company and are now within Modilon-Jomba Plantation.

The Uaribu natives have claimed that the following pieces of land, situated north of the Gum and within the area referred to the court, were theirs in 1888: (a) Koratupain, and part of Waubei and of Wadu—all of which are now within “Wagol Plantation” and have been planted up: Uaribu village in fact once stood near the site of the present manager’s house; (b) Kuapau, Urikna, and part of Kangaten—all of which are within Modilon-Jomba Plantation and have been planted up with ficus by the New Guinea Company. The Kangaten river frontage was a beaching place for Biliau and Uaribu canoes, it was said.

The Biliau natives have stated that the following plots of land, all of which lie within the “Modilon-Jomba” area under reference and have been planted up with coconuts by the company, were owned by them in 1888: Modilon, Turabah-Damon, Serimilan, Baraten, Namulon, Meliaptilian, Dedilawedan, Patasten, Gongaten, Yum-Damon, Sarumpain, Tofun, Narches, and such part of Kamagamok as lies within the referred area. Evidence of Biliau witnesses (corroborated by Geranget evidence) went to show that a number of these plots were being used, before the Germans came to Friedrich Wilhelmshafen, by Geranget natives (after they had suffered at the hands of Siar warriors) for residential, gardening and such like purposes, but that this user was by permission of the Biliau men who still retained the ownership of the ground itself. During the court’s inquiry some of the Biliau plots were described by the Geranget natives as “bilong Geranget”. As there is no more treacherous word in pidgin than the word “bilong” and none more capable of obscuring the distinction between native user and ownership of land, further questions were always put to ascertain what was really meant by “bilong Geranget”—and it turned out, in every case, that the plots so described had once been used by Geranget men by Biliau permission but subject to the ultimate ownership of Biliau natives as the Geranget men admitted.

It will have been noticed that the plots of land I have just been enumerating include, though with slight variation of spelling such as “Wagebn” for “Uaraben”, or “Weoilon” for “Ceylon” etc., all the pieces of land particularly mentioned in the agreement of 1888 with the exception of the unidentified “Ua”. The coastal place-names given at the hearing corresponded closely with those given by the natives to the Rev. Bergmann in 1901 and to Stuckhardt J. in 1902: see exhibit B, folios 12 and 17-21.

As to the above-mentioned plots of land, claimed as the property in 1888 of the Gesup, Sisiak, Mahoban, Matulon, Nob, Uaribu, and Biliau native groups, all of them were identified by native witnesses at the hearing and were pointed out to the court and the parties at inspections on the spot and the claimed native ownership of the plots was traced by those witnesses for several generations back.

As to the plots claimed to have been Gesup land in 1888, none of them were mentioned specifically in the 1888 agreement: no Gesup native was named as a vendor in that agreement; and Gesup and other native witnesses have averred that they knew of no sale of Gesup land to Kubary for the company and that Jabob natives had no right or authority to sell Gesup land to the company, which Jabob witnesses do not deny. The same position obtains in the case of plots claimed to have been Sisiak and Uaribu land in 1888: none of those plots were mentioned in the 1888 agreement and no Sisiak or Uaribu native named as a vendor therein. As to plots claimed to have been Maheban land in 1888, some of them were mentioned in the 1888 agreement but no Mahoban native was named therein as a vendor: further, as Mahoban witnesses have testified and Jabob witnesses have admitted, the existence, by permission, of Jabob gardens and groves on Mahoban land gave the Jabob natives no right to dispose of that Mahoban land. Of the plots claimed to have been Biliau land in 1888, one only (Modilon) is mentioned specifically in the 1888 agreement: but no Biliau native is named in that agreement as a vendor, and Biliau natives have denied any sale to Kubary or authority to others to sell their land to Kubary. Regarding the plots claimed to have been Matulon land in 1888, none of them, except perhaps Modehelan (which may be Maseholang or Moreland), was mentioned in the 1888 agreement: nor is any Matulon native named as vendor therein. Matulon witnesses have averred that Jabob men had no right or authority to sell their land, which Jabob witnesses have admitted. From evidence which has been given, it appears that before Kubary visited Jabob, there had been a quarrel among the Matulon people and that one section of them had left Matulon territory and gone off inland to live with the Panim people, who gave them house room and ground to garden on. On the testimony of some of the “ex-Matulon” natives who now live at Panim and who were uncertain of the names of the plots of land their forebears once occupied, I have concluded that their section of the tribe abandoned Matulon territory long ago and also the idea of returning to it. The other section of Matulon people who remained (for convenience, I may call them the “beach section”) were gravitating towards the Jabob people when Kubary arrived, and somewhere about that time left their mainland site to go and live at the Jabob Islands. I do not think they have definitely amalgamated with the Jabob or pooled their mainland land with the Jabob Island possessions; the land they formerly used and occupied is still called Matulon land by the natives. After the absorption by the New Guinea Company of the former Matulon territory, the beach section of the Matulon people continued to reside at Jabob and they have adopted the Jabob language. Even so, all this does not alter the fact that no Matulon native was named as a vendor in the 1888 agreement.

As to the plots claimed to have been Nob land when Kubary came to Jabob in 1888, some of the coastal ones were mentioned in the 1888 agreement. It has been suggested, plausibly I think, that “Daulan” mentioned in that agreement as a Jabob man and a vendor, was really Gaulat, an important native of the mainland village of Nob. But even assuming that this were so, I see no reason to suppose that he had any better knowledge of the true purport of the agreement than other native vendors named therein.

The Gesup, Sisiak, Mahoban, Matulon, Nob and Uaribu peoples derive from Papuan Stock, as distinct from the Jabob and Biliau peoples who derived from Melanesian. The Gesup, Sisiak and Mahoban people still speak their own language, but, the declining Nob and Matulon peoples have gradually adopted the speech of the Jabob islanders with whom they have been living. Similarly the Uaribu people, who have been living for many years with the Biliau natives on the mainland portion of Biliau territory, have adopted the Biliau talk.

For the reasons I have set out, I further find that the land described in Kubary’s agreement in 1888 (and now under reference before the court) was not validly sold by the natives named therein as vendors, as none of them (with the possible exception of “Daulan” assuming him to be “Gaulat”) owned any of that land or had authority to sell it. As for Gaulat, if he was a supposed vendor, I have found that he, like the other vendors named in the agreement, could not have understood the true significance of the document. In short, I find that the true native owners of the land described in the agreement of 13th September, 1888, did not agree to sell it.

Later on, I shall advert to the question whether this position was subsequently altered by any action on the part of the natives.

As already noted, the land that was claimed by the New Guinea Company between the Gogol and Gum Rivers has never been developed in any way by that company or its successor. But a considerable portion of the land claimed by the company on the strength of the 1888 agreement and situated between the Gum River and Friedrich Wilhelmshafen has been planted up by the company: thus the plantations of “Modilon-Jomba” and “Wagol” comprise all the land referred to in two of the references before the court. How is it that none of southern Jomba Plain has been developed but a considerable part of the land to the north of the Gum has? This question leads me to a consideration of the subsequent history of the agreements of 9th November, 1887, and of 13th September, 1888, and of what was done about them by the New Guinea Company, the government, and lastly, the natives.

On 14th January, 1890, the directors of the company in Berlin were evidently anxious as to whether the purchase made on behalf of the company had been made in accordance with the instructions of 10th August, 1887, regarding acquisitions for the company. They wrote to their representative at Finschhafen “to make sure of the lands bought or taken possession of long ago by fulfilment or obtaining of the forms provided for in the instructions of 10th August” (1887) “in such a way that registration in the Ground Book instituted by the Ordinance of 11th October, 1888, can be proceeded with when the necessity arises”. In his reports of 30th June, 1890, and 13th September, 1892, (already quoted by me), Kubary pointed out to his superior officers that, with the resources available, he had not been able to make an exact survey or walk the boundaries of large areas such as were described in the 1887 and 1888 agreements and that a general description, giving the names of river mouths, of mountain ranges inland, was all that was possible at the time. In other words, Kubary explains that, in the circumstances that had existed, it was impossible for him to conform to the instructions of 10th August, 1887. What he was aiming at, in his early purchases, was getting land into the “nominal possession” of the company first, leaving difficulties, that might arise with natives when the company began to clear and plant later on, to be adjusted then: see his letters of 7th October, 1889, and 13th September, above mentioned.

By 1892, the New Guinea Company had moved its headquarters from Finschhafen to Friedrich Wilhelmshafen. A start was made where Madang Township now stands. Native witnesses of Biliau, Uaribu, Panutibun and Geranget have testified that the first Germans who came to live at Friedrich Wilhelmshafen wanted to settle at the spot called Kaisilan (former Biliau ground and near the present wharf) and “paid” Kudam of Biliau trade goods for the right to do so. This is interesting, for Kaisilan lay within the area purportedly purchased already by Kubary under the 1888 agreement. Possibly the “payment” was in pursuance of the policy of subsidiary payments recommended by the local office of the company to the directors in the letter of 14th October, 1892: see ante.

The registration of the agreements of 1887 and 1888 in the Ground Book for Friedrich Wilhelmshafen occurred in 1896. In the Land Ordinance of 20th July, 1887, s. 5, it was provided that the registration of any property acquired by the New Guinea Company was to be made by virtue of a certificate regarding the acquisition by the administrator or resident commissioner, or by his nominee. In reg. 38 of the regulations of 30th July, 1887, made under the Ordinance of 20th July, 1887, the form of that certificate was prescribed as follows: “that the New Guinea Company, by virtue of the exclusive right to acquire land granted to it by Imperial Charter, and in accordance with the directions issued, has become the owner of the subject property.” By reg. 36 of these regulations, plans and survey records in duplicate, made by a licensed surveyor, showing the situation, boundaries, area and nature of the land as well as any boundary marks erected thereon, had to accompany the company’s application for registration: but reg. 39 provided that the station superintendent of the district might certify that survey and the making of a plan were impracticable at the time, and, if he did this, registration could be proceeded with without such survey plans and records, provided the property was described so accurately that there could be no doubt as to its area and boundaries. On 24th March, 1896, the then deputy resident commissioner, one Rudiger, gave a certificate purporting to be “in conformity with s. 5 of the Ordinance of 20th July, 1887, and reg. 38 of 30th July, 1887”. In it he certified that the New Guinea Company had become the owner of the property thereinafter described, by virtue of its exclusive right of land acquisition under Imperial Charter and “in accordance with the instruction issued therefor”. Then followed a description of the land obviously copied from Kubary’s agreement of 9th November, 1887. It is difficult to see how resident commissioner Rudiger could rightly have certified that the company’s acquisition was “in accordance with the instructions issued therefor”. On the face of the agreement of 189 7, it was evident that the purchase did not conform to these instructions. Kubary, as I have mentioned, admitted this. For instance, par. 6 of the instructions of 10th August, 1887, provided that the purchase agreements of the company had to contain “in particular: an exact description of the property to be transferred giving its situation, area, nature of land, and boundaries in such a manner that it (could) be located and identified by other persons”. How could the back boundary, described in the 1887 agreement as being “the Hansemann Mountains with their south-westerly spurs”, be located and identified by other persons? Rudiger’s certificate appears to be formal only: there is no record of his having made anything in the way of a preliminary investigation of the acquisition referred to therein. On the same day, the deputy station superintendent of the company’s Friedrich Wilhelmshafen station certified that the survey of the property “acquired on 9th November, 1887, by purchase for the New Guinea Company from the natives of Gogol (as he put it) and the making of a plan” were “at present impracticable”. On the same day also, Judge Krieger gave instructions that the property be registered in vol. 1, folio 3 of the Ground Book for Friedrich Wilhelmshafen. In those instructions the legal ground for registration was noted by the judge as being “by virtue of the certificate of the deputy resident commissioner of 24th March, 1896”. Those instructions to register were given notwithstanding reg. 39 of the regulations of 30th July, 1887, which provided that, where, on the application for registration of a property, no survey plan and record was forthcoming, but the station superintendent’s certificate regarding the impracticability of making such plan and records was produced, registration could be proceeded with provided that property was described so accurately that there could be no doubt as to its area and boundaries.

On 24th March, 1896, also, similar certificates were given by deputy resident commissioner Rudiger regarding the company’s alleged acquisition of 13th September, 1888, and by the company’s station superintendent at Friedrich Wilhelmshafen regarding the impracticability at the time of survey and the making of a plan of that property. This property was registered in vol. 1, folio 5, of the Friedrich Wilhelmshafen Ground Book.

The observations made by me regarding the certificate given in respect of, and the instructions given for the registration of, the company’s alleged acquisitions of 9th November, 1887, apply equally to the certificate and registration instructions given regarding the company’s alleged purchase of 13th September, 1888: beyond remarking that registration in the German Ground Book did not confer an indefeasible title, I need not add anything further to these observations.

I should mention, here, that under the German regime, it was obligatory, when a property was registered in the Ground Book, to open a land acquisition file and a registration file regarding the property: in these files all papers relating to the property and registrations concerning the property were kept. The files opened in connexion with the registration of the company’s transaction of 1887 in vol. 1, folio 3, of the Ground Book for Friedrich Wilhelmshafen were produced at the hearing; but neither registration nor acquisition file for the property registered in vol. 1, folio 5, of that Ground Book, was produced, because, it appeared, neither could be found. From reference in other files, it seems reasonably certain that a registration file at least, if not an acquisition file, relating to the property registered in vol. 1, folio 5, existed in German times: and, from the evidence given by officers of the Lands Department and the Titles Office at Rabaul, it would appear probable, though not certain, that one or both of these German files were in existence a year or so ago. The acquisition file relating to the property registered in vol. 1, folio 3 and cross references in other files produced have helped: and the custodian has been able to produce from files in his possession, documents and copy-documents that appear to duplicate a number of papers contained in the files believed to be missing. Even so, the very unsatisfactory suspicion remains that there may be somewhere files which might have been of great assistance during the hearing in elucidating the problems with which the court has to deal.

To resume: When the New Guinea Company’s agreements of 1887 and 1888 were registered in 1896, the company still held its Charter from the Imperial German Government. But by agreement dated 7th October, 1898, and made between the German Empire and the New Guinea Company, the company surrendered to the German Empire its territorial sovereign rights and also its exclusive rights regarding the acquisition of land in the colony: in return, the company was authorized to select, under certain conditions, 50,000 hectares of land in New Guinea.

The new century had just commenced when it began to be clearly realized by both the company and the German Administration that difficult problems were involved in the alleged acquisitions of the company in “Southern Jomba Plain” and “Northern Jomba Plan”, as the areas entered in vol. 1, folios 3 and 5 respectively, of the Friedrich Wilhelmshafen ground book, began to be known: these convenient names will be used also in the course of this judgment.

On 12th September, 1901, the first of a series of conferences or discussions between the government and company for the purpose of settling boundaries, etc. of the southern and northern Jomba Plain properties was held. It was attended by the assessor Stuckhardt (as representative of the Governor), by Judge Boether, and by two of the company’s officers—administrator Loag and surveyor Van der Laan. At this conference, the closer fixation of the boundaries of both properties was discussed—also the question of native claims. It is important to notice that the company’s representatives then agreed that such native claims existed and that provision should be made for them.

A week later—on the 19th—Mr Loag forwarded to the Ground Book judge at Friedrich Wilhelmshafen (Judge Boether) an application for re-registration of the properties of northern and southern Jomba Plain in accordance with the boundary description set out in a record or minute prepared by Mr Loag of what appeared to him to have been the results of negotiations a week earlier. This minute accompanied the application for re-registration. In his minute, Mr Loag set out a boundary description for the consolidated area of both northern, and southern, Jomba Plain properties. He also wrote:

“. . . the unsettled claims by the natives of this district are to be satisfied by subsequent negotiations. Reserves of 2 hectares per head of the grown-up male population are to be fixed locally and shall be made over to the natives for their permanent inalienable property: further, village sites and plantations now in use are to remain the property of the natives, the right of passing through the New Guinea Company’s territory remains to the natives with the condition that the Company will define the position of the roads.”

The accuracy of Mr Loag’s minute was not, however, admitted by Judge Boether. The judge wrote to Mr Loag on 25th October, 1901, pointing out that before re-registration could take place, a surveyor’s plan and protocol were required. He disputed Mr Loag’s description of the northern boundary and concluded:

“Further, according to the judgment of the missionary, Bergmann, as an authority, the exclusion of reserves to an area of 2 hectares per head of the grown-up male population does not in any way suffice for the livelihood of the native population concerned, while the reservation of 2 hectares per head of the male population in general, made, would be barely sufficient.”

The company’s reply to this was Mr Loag’s letter of 5th December, 1901, under cover of which a survey protocol and a plan by surveyor Van der Laan—in which the boundary description was slightly altered, was forwarded. In his letter, Loag also agreed that the native reserves proposed to be excluded from the company’s title should allow for two hectares per head of the male native population generally (instead of only adult males) and, on the ground that the judge’s objections had now been met, he again applied for re-registration of the properties of northern and southern Jomba Plain in accordance with the protocol and plan of Van der Laan, the company’s surveyor. In Van der Laan’s protocol, the boundary description was for the two properties consolidated; and it was recited that the boundaries had been defined “according to the negotiations of 12th September, 1901 . . . and to previous local information obtained and surveys” by Loag and Van der Laan. On this protocol, however, there is a note by Stuckhardt J. that “nothing was defined” at the negotiations of 12th September.

Apparently further investigation was deemed necessary before re-registration could take place. On 18th December, 1901, the Rev. Bergmann, who had been asked by the government to make investigations, submitted a report on the places specially mentioned in the agreement of 13th September, 1888. His results were confirmed and amplified by the investigation of Stuckhardt J. who was accompanied by his court clerk (Worbs) and by two officers of the company, Loag and Mueller. A record of that investigation is in the official files and was dated 5th April, 1902, and signed by Stuckhardt and Worbs. According to this record, the investigating party proceeded to Jabob Island where the natives were assembled, and, as the record has it, “three of them” (names not stated) who “were acquainted with the boundaries were asked to assist at the establishment of the boundaries”. It was further noted in the record that only three of the natives mentioned in the agreement of 13th September, 1888, were found to be “still alive in Jabob”, namely, Sui, Daulan (Gaulat), and Ninik. (As I have explained, none of these three men were true Jabob men: and Mugae, still alive, seems to have been missed by Stuckhardt J.’s party). The record continued: “We proceeded, accompanied by the three natives, to the mouth of the Marianan (Gum) River and walked or travelled by boat along the coast to Friedrich Wilhelmshafen.” It is not clear from this record whether the three natives who accompanied the investigating party were the three natives said to have been “acquainted with the boundaries” or were the three named surviving vendors. The native witnesses, Beg, Ubuk and Mianung, have testified that they remember Sagui, Kene and Gaulat accompanying Mr Loag once on a trip from the Gum River to Friedrich Wilhelmshafen and calling, at his request, the names of the coastal places seen en route: Nanto and Wagol confirmed this evidence but said Nadu also went with Mr Loag, but these witnesses cannot recollect other masters being in Mr Loag’s boat on that occasion. The Stuckhardt inspection was of beach and coastal places only. In a few instances the record gave the owners of particular places seen: thus—Gauan (Gauwan) was noted to be owned by Logen of Jabob; Unek to be partly owned by Mahoban and partly by Jabob “Tamuls” (mainland friends of Jabob); Jakundu, Begilen and the bush part of Modilon to be Nob land; not Jabob land; Modilon (noted in the minute as being the native name for Friedrich Wilhelmshafen station) to be owned by Biliau and Ragetta natives. Thus even this coastal inspection in 1902, made with the assistance of three natives from Jabob Island only—for there is no reference in the record to natives from places such as Gesup, Mahoban, Sisiak, Uaribu, Matulon or Biliau being present—disclosed that considerable portions of northern Jomba were claimed by other than Jabob natives. It is clear now, that, had Stuckhardt J.’s party gone inland at all, or questioned other than Jabob natives, further discoveries would probably have been made by them. But the party did not go inland. As the concluding part of the record had it:

“The boundaries towards the spurs of the Hansemann Mountains were not ascertained for the time being: this is to be done after the return of administrator Loag, who intends, after having conferred in Berlin with the directors of the New Guinea Company, the Colonial Office and the Foreign Office to submit first, proposals as to how far the right of ownership of the New Guinea Company is to be acknowledged.”

Ubuk, one of the native witnesses who recollected Jabob natives accompanying Mr Loag and calling over the names of beach places between the Gum River and Friedrich Wilhelmshafen, stated that Mr Loag “said he wanted to send this information away to his place”, (Germany) “and when ‘the paper’ came back, he would talk to us”: the other witnesses said they did not know what Loag’s object was in getting these names.

Though the settlement of Jomba Plain matters was to be held over until Loag’s return from Germany, the company’s surveyor Van der Laan evidently pushed on with inspections of the properties in the meanwhile: and by May 1903 he had a protocol and a sketch plan ready for the northern Jomba Plain property and the like for the southern Jomba Plain area. Two copy plans were produced at the hearing: one of northern Jomba Plain, on a scale of 1/15,000 (exhibit O); and another of southern Jomba Plain, on a scale of 1/25,000 (exhibit P). Who made the original plans does not appear from these copy plans, but in the absence of any other similar plans in the files, it has been suggested that the originals were by Van der Laan. As Van der Laan’s protocols referred to the plans accompanying them as being drawn to the scales of 1/15,000 and 1/25,000 for the northern and southern Jomba Plain properties respectively, I think it very probable that exhibits O and P are copies of his plans. Exhibits O and P are copies of what were, frankly, sketch plans, and although they give a good general idea of the physical features of the lands to which they relate, they are not plotted with the accuracy of the later survey plans. In the copy plan of southern Jomba Plain (exhibit P) a number of villages are shown, e.g. Omuru, Ayep, Siena, Haja, Gesup, Sea, Od, Hilu, Wago, Gadalleo, Hudine, Muina, Maima: from the evidence given during the hearing, however, it would appear that there was also a number of other villages on southern Jomba Plain at the time Van der Laan was in that neighbourhood that are not shown in the plan. In that plan, a part of the mainland coast opposite Bilibili Island is marked off as containing plantations and sacsac areas of the Bilibili people: and a village is shown on Bilibili Island but no Bilibili village is marked on the mainland: this goes to corroborate the native evidence about the sites of the Bilibili village and Bilibili gardens in Van der Laan’s time. Some of the native witnesses have testified that they remember “Pandala” (as they call Van der Laan) visiting some of the villages noted in the copy plan of southern Jomba Plain but that they did not know his object and had no idea he might be “marking” or inspecting ground for the company. Turning to Van der Laan’s two protocols above mentioned (they are both dated 20th May, 1903) we find that the one relating to northern Jomba Plain contained a detailed boundary description and referred, inter alia, to two proposed native “reserves” which he called “Gauta reserve” and “Jabob reserve”. In his protocol for southern Jomba Plain there is also a detailed description of the boundaries of the property and it was noted that that land included lands of the villages of Od, Ssa, Hilo, Wago, Gadalleo, Udine, Sea east, Muina, Ajep, Maima and Bilibili, whose claims were to remain their free property and to be the subject of reserves to be excised in accordance with instructions to be given by the government. Van der Laan evidently assumed that the ground on which the Bilibili natives had gardens etc. was their true ground.

On the same date as that of the Van der Laan protocols, 20th May, 1903, the company applied to the Ground Book authorities for the alteration of the Ground Book entries relating to the southern and northern Jomba Plain properties so that they should accord with Van der Laan’s protocols and plans, which were forwarded. The Friedrich Wilhelmshafen office of the company also wrote that day to the directors in Berlin advising them that the boundaries had been demarcated or defined, as shown in Van der Laan’s protocols, “during the visit of the Governor, Dr Hahl” and that they had, “after consultation”, been “ordered to be entered in the Ground Book”.

Stuckhardt J. the Ground Book official, was away at the time, but on his return wrote on 3rd June, 1903, to the company stating that, with reference to its application, what had been in view during the negotiations (presumably with the governor) was the drawing up of an agreement to finalize the boundary questions; that Van der Laan had not been present at the negotiations; and that his protocols were “only a onesided affair” and not likely to be accepted as the basis for an alteration of the entries in the Ground Book. Some correspondence ensued, in which the local representatives of the company took the view that Van der Laan’s protocols were sufficient; but they were advised by the company’s Berlin office, by letter dated 10th September, 1903, to enter into the agreement with the Fiscus required by Stuckhardt J. Thus it came about that the agreement of 17th November, 1904, was entered into between the Fiscus and the company.

Before discussing that agreement, however, I should mention that a few months earlier, in July, the natives of Siar and Ragetta or Geranget had planned a massacre of the white inhabitants of Friedrich Wilhelmshafen. Whether or not it was the principal reason, one of the reasons given for this desperate native move was native unrest and dissatisfaction over the loss of their land. In the nick of time and while the conspirators were actually on the way to carry out their design, a Biliau native warned the government of the intended attack which was in consequence easily countered. A number of the Siar and Geranget natives concerned in the plot were rounded up and executed. According to native witnesses, a police party was also sent to the Jabob Islands, as the inhabitants of Jabob were suspected of being implicated. Jabob witnesses have denied that their people were implicated, though there was evidence that they had been invited and that a big sea was running at the time. Hearing the police launch approaching the Jabob men made off, but two of their number were later found as far inland as the Wabemann River where one was shot and the other apprehended.

To consider now the agreement of 17th November, 1904, made between the Land Fiscus of the Protectorate of German New Guinea (represented by police officer Bayer) and the New Guinea Company (represented by its surveyor, Van der Laan, under power of attorney): From a minute by Stuckhardt J. in the official files, it appears that this agreement was submitted first by him on 26th September, 1904, to the governor and to Administrator Loag of the New Guinea Company in the governor’s cabin on the “Seestern”, both of whom approved of it and authorized the execution thereof by Bayer and Van der Laan on behalf of the Fiscus and company respectively. In par. 1 of the agreement, the Land Fiscus acknowledged certain specific boundaries as the boundaries of the properties entered in vol. 1, folios 3 and 5, of the Ground Book for Friedrich Wilhelmshafen, that is the southern and northern Jomba Plain properties. The boundaries specified and acknowledged were for a consolidated area comprising both properties. This was a departure in form from Van der Laan’s protocols of 20th May, 1903, in which the properties were described separately. The northern boundary, as described in par. 1 of the agreement of 17th November, 1904, differed from that in Van der Laan’s protocol of 20th May, 1903, for the northern Jomba Plain in that it excluded the land known as the “Gauta reserve”, whereas he had included it within the company’s title but made it subject to a servitude in favour of the natives. Otherwise the boundaries specified in the 1904 agreement were to the same effect as those set out in Van der Laan’s protocols of 20th May, 1903. In par. 2 of the 1904 agreement it was provided that the definite establishment of the boundaries would be effected by survey and that only minor deviations were permissible without the district officer’s consent. The remainder of the paragraph was as follows:

“The dwelling places and plantations of the natives existing at the time of survey remain their free property, that is to say, at least one hectare per head of the population, no matter what age or sex, must be reserved for them. The natives further retain their fishing rights. The natives of Jabob Island will especially receive a property corresponding to the description in the previous section of this paragraph from the area described in the plan as ‘Jabob reserve’ situated between the point marked Landungatelle (landing place) and to the mouth of the Gum (Marianan) River. The boundaries of the natives’ land and the fishing rights will be defined by the district officer of Friedrich Wilhelmshafen in each case as the survey proceeds.”

Paragraphs 3 and 4 of the agreement related to road building materials and road and market traffic, while par. 5 allowed an appeal to the Governor against decisions of the district officer in the matter of pars. 2 and 4. In par. 6 the area of the consolidated “Jomba Plain” property was estimated at about 4,800 hectares and it was provided that the company was to bear the costs of the the agreement. In par. 7 (the last paragraph), it was noted that the agreement had no reference to Friedrich Wilhelmsshafen itself or to the areas acquired by the Fiscus on 7th February, 1903, for a light house and rifle range.

I have set out the provisions of the 1904 agreement at some length, because, as will be seen, it presents the furthest point reached by negotiation between the government and the company and remained the substantial basis for the settlement of Jomba Plain matters, notwithstanding subsequent suggestions, proposals and discussions.

After conceiving and delivering the agreement of 1904, the parties thereto appear to have rested from their labours for some considerable time: the months sped by but the survey of boundaries and excision of native reserves provided for in the agreement was not commenced.

On 18th December, 1906, however, Stuckhardt J. accompanied by administrator Mueller of the company, went to Jabob (where assistant surveyor Froehlich joined them) and thence to what is now Modilon-Jomba plantation. The purpose of this visit was to fix the site of the proposed “Jabob reserve” and to define the position of the clay deposit from which the Jabob people used to get the raw material for their pottery. It was agreed that a quarter of a hectare, situated in the company’s plantation, should be set aside and marked as a clay deposit for the Jabob natives. The proposed “Jabob reserve” was (according to the official minute of 22nd January, 1907, of the visit) “fixed in the presence of a number of natives”—of what place was not stated—”with their approval, to the west of the road” to the Gum River at the place where the virgin forest first commenced. As a result of a census taken on 27th December, 1906, the population of Jabob Island was found to be ninety-eight and the area of the proposed “Jabob reserve” was fixed at 100 hectares: a minute to that effect, dated 22nd January, 1907, was signed by Stuckhardt J. administrator Mueller, and the Rev. Helmich who had assisted in taking the census. It will have been noticed that the “Jabob reserve” thus arranged to be marked out on the west side of the road to the Gum River was not in accordance with the 1904 agreement, in which it was specially provided that the “reserve” should be on the coast, between the landing place (opposite Mosek or Mareng Island) and the Gum River—territory east of the said road. On 23rd January, 1907, Mueller of the company forwarded to the district officer a plan of the proposed reserve and a plan of the claypit: he asked that, as the claypit was situated within the company’s plantation and was planted with rubber trees, it should remain the company’s property: that the Jabob natives should be permitted to use it but should give five days notice to the manager of the plantation before a rubber tree was felled: and if it were proved that no clay had been taken from the pit by these natives within any two years their right to do so should lapse. In minutes in the official files dated 23rd February, 1907, and signed by Stuckhardt J. the judge noted that Mueller had asked on the previous day that registration of reserve and claypit be held over for a while, and, with reference to the clayhole, the judge merely noted that the government had not consented to Mueller’s proposed limitations on the exercise of the right of the natives to dig clay. After this, nothing was done in the matter of the clayhole or reserve for several years.

On 23rd February, 1907, the Berlin office of the company wrote to the Friedrich Wilhelmshafen office that the northern boundary of Jomba Plain, as set out in the 1904 agreement, was slightly inaccurate and should be rectified. But this matter does not appear to have been taken up with the Ground Book authorities by the local officers of the company until some three years later, when a letter was written on 26th April, 1910, about it.

Though the native reserves provided for in the 1904 agreement had not yet been excised, administrator Mueller, in a letter of 1st May, 1907, to the directors in Berlin, wrote that where natives still had plantations (i.e. gardens or groves) on “our property he would if possible insist on them starting plantations in the reserve (presumably the proposed ‘Jabob reserve’) or, in special cases, insist that natives obtain the permission of the company before planting”.

On 2nd May, 1907, the directors advised their Friedrich Wilhelmshafen office of their concurrence in the proposed demarcation of “Jabob reserve” and the clayhole, and asked that they be kept informed of the progress and completion of the work of settling Jomba Plain matters. Of this request for information they reminded the Friedrich Wilhelmshafen office on 18th August, 1909—over two years later.

So we come to 1910. Over five years had passed since the agreement of 17th November, 1904, had been signed, but the Jomba Plain properties were still unsurveyed (apparently because the properly qualified surveyors were not available) and nothing had been done in the matter of excising the native reserves provided for in that agreement except the fixation of the “Jabob reserve” in a place other than that mentioned in the agreement and some negotiations regarding the clayhole for the Jabob natives. Such a delay in carrying out the terms of the 1904 agreement was, of course, liable to produce a crop of troubles.

It is not surprising, therefore, to find that on 26th April, 1910, the Friedrich Wilhelmshafen office of the company complained to the district officer that natives were “trespassing” on the Jomba Plain property and were even demanding rent from a Chinese gardener there; the company asked that the government stop this. On 1st June, 1910, the company’s manager at Friedrich Wilhelmshafen advised the directors in Berlin that the complaint of natives trespassing had been lodged: that Biliau natives already had gardens and groves on the Jomba Plain property and were being encouraged by the district officer to plant others there; and that these natives even disputed that the areas on which their gardens were situated had been sold to the company. The writer pointed out, also, that the particular difficulty of the position was due to the fact that the 1904 agreement had provided that reserves should be excised for natives, but that so far, no such excision had been made, moreover, as no surveyor was available, a final settlement still could not be reached.

On 20th June, 1910, administrator Geisler wrote to his directors reporting a discussion he had had with district officer Berghausen in which the district officer had expressed the view that the registration of the company’s properties could be challenged, also the agreement of 1904. The district officer, Mr Geisler reported, was in favour of a speedy survey of the properties with the simultaneous excision of the reserves necessary for the sustenance of the natives, even though Mr Geisler had pointed out to him that no dispute with the natives in the near future was likely as the company was doing no planting at the time. In this letter Mr Geisler also wrote: “There is no doubt that considerable difficulties will be encountered during survey. No complementary purchases were made to complete Kubary’s land purchases just at the time when the natives would have been willing to agree with same.” He concluded his letter with a reference to the rights of Biliau natives in that part of the properties called “Meiro Plain” and pointed out that there was no document relating to the acquisition of that piece of land nor was there any mention of it, or of any Biliau natives as vendors, in Kubary’s agreement.

That letter was written before Mr Geisler had received a copy of district officer Berghausen’s report of 18th June, 1910, on Jomba Plain matters. Though the report was dated 18th June, the district officer did not send copies of it to the Governor or to the company until 28th June, 1910—as his covering letters of that date show.

In that report, district officer Berghausen reviewed and criticized the history of the northern and southern Jomba Plain transactions from the beginning. He first referred to the company’s recent complaint of native trespass and observed that the Biliau natives counterclaimed that the company was trespassing on their land these natives contending that, though they had sold land and palms on their island of Biliau to the company, they had never sold their land on the mainland which was indispensable to them. He also observed that the Jabob natives wanted to have the boundaries of the company’s land and of the Jabob reserve fixed and that they also complained that the company was putting difficulties in the way of the Jabob user of the clayhole in the company’s plantation. The district officer stated that he had ascertained that the Biliau people had gardens all over the area between the Gauta and Jomba Rivers; that the Jabob natives needed clay for their manufacture of pottery; and that the Jabob “plantations” were to the east of the road to the Gum River and not to the west of the road in the reserve area proposed on Stuckhardt J.’s visit. Mr Berghausen then attacked the original purchase agreements of 1887 and 1888 on the ground that, in their negotiation, the principles laid down on 10th August, 1887, for the New Guinea Company’s acquisitions of land, had not been observed: for the same reason he contended that the two certificates given by the deputy resident commissioner Rudiger on 24th March, 1896, and founding the registration of the properties in the Ground Book, should not have been given. The district officer next expressed the opinion that there was a difference between the legal position of the Jabob people and of the Biliau people, because the Biliau people had never sold the land between the Gauta and Jomba Rivers to the company at all and no purchase agreement for that land had existed, whereas the Jabob people had, as he put it, “actually sold their ground on the mainland and admit this, but state that their fathers did not understand the language of the white people at that time (1887-1888) and did not have any idea about the significance of the purchase agreement”. (The sentence which I have just quoted seems, at the first glance, self-contradictory: but I take it that what was meant was that the Jabob natives admitted that a transaction with Kubary occurred, and that a paper was marked by the Jabob natives, which they later discovered to be for the sale of mainland ground on which Jabob plantations stood, though at the time of its execution the native signatories did not understand this at all. The district officer’s reference to Jabob “ground on the mainland” might be construed as a claim by Jabob natives to have owned ground on the mainland; but I consider I may not so construe it, because of the unanimous evidence of both Jabob and mainland native witnesses that the Jabob people have had gardens and groves on the mainland only and have never owned any land itself there: possibly the Jabob natives who were Berghausen’s informants used misleading phrases such as they used sometimes at the present hearing: e.g. “Gauwan, i bilong Jabo”— which might mean the ground at Gauwan is Jabob ground or the “work” (or gardens) there are Jabob’s.) In his report the district officer next proceeded to question the validity of the 1904 agreement between the Fiscus and the company on the grounds that the actual signatories lacked authority to bind their principals—in this he was mistaken, as we have seen—and also on the ground that even the express acknowledgement in that agreement, by the Fiscus, of the boundaries therein specified to be the boundaries of the company’s properties, could not take the place of acquisition from the natives and could not, of itself, vest legal ownership in the company. He went on to say that even if that agreement were considered to have validity, par. 2 of the agreement, provided that native reserves on the basis of one hectare per head of the entire native population concerned were to be excised and also guaranteed to the natives the unrestricted ownership of the native dwelling places and plantations existing at the time of survey (i.e. the survey yet to be made). He next criticized the proposed fixation of the “Jabob reserve”, pointing out that this fixation had never been finalized, that the proposed establishment of that reserve to the west of the Gum River Road was opposed to the express provision regarding the reserve in the 1904 agreement and would not help the Jabob natives in any way but would on the contrary deprive them of all their “plantations” situated to the east of that road and along the coast from the Gum River to a point opposite Mosek Island. Mr Berghausen next pointed out, “for judicial inquiry”, the smallness of the consideration received by the natives for the alleged purchase of the Jomba Plain lands, estimated as they were at 4,800 hectares. The report concluded with his recommendations which were:

(a) &#That the Jomba Plain prop property be surveyed as quickly as possible, the Jabob reserve to be set aside on the coast where the Jabob “plantations” were, and the clay deposit to besferr the ny to the Fihe Fiscus,scus, whic which would then grant the permanent and free usufruct thereof to the natives;

(b) ـ That that the company be left to negotiate with the Biliau natives for the purchase of land between the Jomba anda Rivers—subject to the setting aside of a native reserve—and that until then then the Biliau natives be free to plant, etc., in that area;

(c) &##160; That duat during thv surrey, reserves be set aside for the specified villages situated on the Jomba Plain property between the Gum and Gogol Rivers, and that as far as it appeared “herefrom” (presumarom trvey) that piecesieces of l of land had not yet been purchased by the company from the natives, it be left to the company to do so subsequently.

In forwarding this report to the Governor, under cover of the letter of 28th June, 1910, the district officer urgently requested that a surveyor be sent so that some finality regarding at least the land situated in the immediate vicinity of Friedrich Wilhelmshafen would be reached by survey and registration. He expressed doubts as to whether the Biliau people would agree to sell to the company the land between the Jomba and Gauta Rivers: it was situated on the harbour and was valuable. He also ventured the opinion that the survey of the boundaries of southern Jomba Plain and the setting aside of reserves for the villages there would lead to the discovery that no title deeds existed for these village lands, since the purchase agreements of 1887 and 1888 were with Bilibili and Jabob natives who, as he put it, “could not at all dispose of the land of the other villages mentioned”. In conclusion he stated: “I do not fail to recognize that by the proposed settlement a considerable loss will accrue to the company, but these are the consequences of such olden time land acquisitions where thousands of hectares, the boundaries of which nobody had seen, were bought for a trifle.”

The district officer’s letter of the same date (28th June) to the company was only formal, and advised the company that a copy of his report had been sent to the Governor for directions.

Berghausen’s report had somewhat the effect of a well directed high-explosive shell. It demanded, and received, attention.

On 29th June, 1910, administrator Geisler forwarded a copy of the report to his directors in Berlin and asked for their views: he considered that if the proposals at the end of the district officer’s report were adopted, the natives would be against any acquisition of land by the company and land would only be procurable at a high price.

On 7th July, 1910, the acting governor—Dr Hahl who was on a visit to Germany—wrote to the district officer regretting his inability to send a surveyor at the time and tentatively suggesting that the settling of questions of ownership should precede survey. In a further dispatch of 25th July, 1910, to the district officer, the acting governor observed that he was “forced to acknowledge that the legal position” of the New Guinea Company (was) indeed a “doubtful one” but he deprecated legal proceedings because the result of such proceedings was always doubtful, and it was a serious matter to attack, after so many years, entries in the Ground Book: he advised getting back to the former attempts to settle the long disputed Jomba matters by negotiation, especially to the agreement of 17th November, 1904, and recommended that, if further negotiations were undertaken on the basis of the district officer’s proposals, larger and sufficiently ample areas for the natives might be pressed for and agreed upon. He particularly stressed that the natives should “not be encouraged in the belief that they (were) still undisputed owners of the ground and soil itself”, otherwise further negotiations with the New Guinea Company would “never lead to a satisfactory end”. He concluded by saying that he would endeavour to send a surveyor, but that his arrival could not be counted upon for from four to six months.

On 15th August, 1910, the district officer informed the acting governor that Mr Geisler of the New Guinea Company had declared himself to be in agreement with the suggestions made in his (the district officer’s) report of 18th June, 1910, for the final adjustment of Jomba Plain matters. The district officer also urged that the carrying out of the proposals could only be done during survey, saying:

“The carrying through of the proposal, which I again mention to be extremely urgent, can however only take place after the arrival of a land surveyor. I consider it unwise to enter before- hand into negotiation with the natives, the result of which could also at the same time be finalized by the surveyor. The natives, suspicious by nature, first of all want to know, at land sales, what land will remain to them as their property and desire this to be settled in an understandable way: they have had bitter experience in this direction, and would otherwise not willingly enter into a sale. I have arranged to be able to carry the matter out in the proposed manner after the arrival of the land, surveyor.”

On the same day, Mr Geisler wrote to his directors advising them that he had been verbally advised by the district officer that the acting governor was agreeable to the district officer’s proposals for a final solution, that the natives were not to be told directly that they were still owners of the land, and that the district officer could arrange it that the native owners would make concessions regarding land to the company. Meanwhile, Mr Geisler stated, he awaited the reply of the directors as to the legal position of the company, though he himself thought legal proceedings against the Fiscus would be fruitless because the Fiscus had no rights over native land that had not been purchased; and that for this reason, in his opinion, the agreement of 17th November, 1904, was null.

In October 1910, the directors of the company discussed Jomba Plain matters with the governor, Dr Hahl, who was then in Berlin, and they also wrote to him, on the 19th of that month, protesting vigorously that district officer Berghausen was causing the greatest difficulties by disputing the legality of the Ground Book registrations of the properties of northern and southern Jomba and of the validity of the agreement of 17th November, 1904. The directors stressed that the two properties had been registered as acquisitions of the company; that negotiations concerning the exact definition of boundaries and the setting aside of native reserves had culminated in the agreement of 1904, of which Dr Hahl himself had approved; and that the reason why the survey and excision of reserves provided for in the 1904 agreement had not been carried out was because of the dearth, in New Guinea, of surveyors with qualifications of the standard required by the government. The directors also informed the governor that their views on the district officer’s proposals had been set out in a letter of 29th August, 1910, to their administration at Friedrich Wilhelmshafen—a copy of which they forwarded to Dr Hahl.

In their letter of 29th August, 1910, to their administration at Friedrich Wilhelmshafen, the directors expressed views similar to those they had conveyed to Dr Hahl, but at greater length. They insisted that because of the dealings which had taken place in regard to Jomba Plain land (e.g. the acquisition of land at Friedrich Wilhelmshafen by the Fiscus itself), and because of the 1904 agreement, the company’s ownership of northern and southern Jomba Plain had been recognized by the authorities as well as by the company. (By way of parenthesis, I may observe that the directors did not say that the natives had acknowledged the ownership claimed by the company: the directors evidently considered this of no great moment, for, as other passages in this letter to which I am about to refer show, they thought the natives had been amply provided for.) Continuing, the directors informed their administrator that they were agreeable that the survey work requisite for carrying out the 1904 agreement should be done as soon as a surveyor was available. But the directors emphasized their view that by par. 2 of the 1904 agreement the requirements of the natives had been truly and amply provided for; and they therefore definitely objected to the district officer’s proposal that questions, whether the lands described in Kubary’s agreements of 1887 and 1888 had been bought from all the tribes concerned, should be gone into during survey: they also objected to the district officer’s proposal that, in so far as lands were found, during survey, not to have been truly purchased, the company should have to negotiate for their purchase. The directors considered, and suggested it was necessary to convince the district officer, that such a demand was unfair and inadmissible, because the authorities had acknowledged the company’s rights of ownership and because the proposal would mean a complete reconstruction of land conditions that had existed for nearly a quarter of a century; moreover the migratory movements of native tribes made it an impracticable proposal. The directors again affirmed they were agreeable that the survey of the land and excision of reserves should proceed but that they assumed that such reserves would not trench on land already planted by the company.

On 13th October, 1910, the directors advised their administrator at Friedrich Wilhelmshafen that they had had a long discussion with Dr Hahl on the previous day and that the Jomba Plain matter would as they wrote, “be settled in accordance with our wishes”.

On 28th October, 1910, Dr Hahl wrote from Berlin to district officer Berghausen, informing him that the question of the validity of the registration of the properties of northern and southern Jomba Plain had arisen before, but that, with his consent, an agreement had been reached that the legal aspect would not be gone into, but that a mutual understanding should be arrived at for the excision from those properties of the land necessary for the sustenance of the natives; that the balance of the properties should be acknowledged as the property of the New Guinea Company; and that an entry should be made to that effect in the Ground Book. (Hence the agreement of 17th November, 1904.) Dr Hahl also said that the question, as to whether the arrangements agreed upon between the government and the company affected the legal rights of the natives in any way could be left in abeyance, since a final decision on such a question could only be by a judicial decision. He explained that the safeguarding of native interests in contentious land matters had hitherto been effected from the point of view that the government, by virtue of its “mundium”, could give a decision binding or not binding on the natives; and that this attitude rested on the consideration that the raising of questions as to whether lands had been legally acquired from natives, would lead to endless litigation and would seriously affect the progress of the colony. Dr Hahl further considered that the commencing of legal proceedings and a possible decision in favour of the Biliau people would result in the flaring up of similar lawsuits all along the coast of Kaiser Wilhelmsland. He informed the district officer that the company had made an offer to him to excise from the property registered in the name of the company the land necessary for the livelihood of the natives; and that he felt satisfied that a short discussion on the spot between the district officer and the company’s representative, (Geisler or Heine), with the participation of native chiefs, would suffice to have the demands of the natives for good agricultural land fully satisfied.

After receiving this letter, district officer Berghausen (in accordance with Dr Hahl’s request) forwarded it and the relevant documents to the acting governor, observing that the matter required discussion “in connexion with the whole land policy in Kaiser Wilhelmsland”. The acting governor, however, replied that he considered it advisable to defer the whole matter until Dr Hahl’s return.

On 1st March, 1911, district officer Berghausen, and Heine (the company’s administrator), conferred on the subject of the properties of northern and southern Jomba Plain and agreed that the survey of these properties by the government land surveyor would be undertaken as soon as possible and that, during the survey, reserves for the natives would be set aside in accordance with the provisions of par. 2 of the 1904 agreement. They also agreed, subject to the approval of the Governor, of the Imperial Colonial Officer, and of the company’s directors, that the company should cede to the Fiscus some 450 hectares of land between the Gauta and Jomba Rivers in exchange for a ten years’ extension of the company’s trading monopoly at the Witu Islands. But this proposed agreement was not approved of at all by the directors of the company.

In August 1911, the survey of northern Jomba Plain was under way, and on the 17th of that month surveyor Lauer reported a complaint he had received from Kalagum, chief of Furan and Sisiak, and other natives of these villages, that sacsac areas of theirs (and of the Panim people) were being included within the company’s surveyed boundary; that these sacsac areas were necessary for their livelihood and that, further, neither they nor their ancestors had ever sold these sacsac lands to the company. Administrator Heine of the New Guinea Company promptly agreed that these sacsac areas should remain the property of the natives concerned and be marked off as a reserve, and he, surveyor Lauer, and district officer Berghausen signed a minute to that effect on 17th August, 1911. Thus originated the so-called “Wagol reserve”.

In 1912, and while the survey of the Jomba Plain properties was still incomplete, there was further native unrest in the Friedrich Wilhelmshafen area over the land question. In June of that year surveyor Lauer had reported that the tedious negotiations for the adjustment of land questions between Friedrich Wilhelmshafen and Sek, especially the delay of the Nordeutscher Lloyd Company in paying the natives of Siar for land surrendered, was causing agitation among the native population. On 14th August the missionary, Helmich, warned the district officer as follows: “The ill feeling of local natives concerning loss of land, which is sometimes veiled and covert, and sometimes openly declared, makes it more and more clear that the resentment against the Europeans is increasing enormously and that the temper of the people is like a boiling crater. Serious consideration must be given as to whether an eruption is to be feared at an opportune moment.”

In consequence of this warning, the district officer made inquiries and he received statements and admissions from several natives that suggested that the attempted massacre of 1904 might be about to be tried again. Nalon, for example, the Biliau native who had warned the government of the proposed attack in 1904, told the district officer that the natives had again planned a rising because they were angry about land matters: he gave elaborate details of the conspiracy and the people concerned in it: and finally, when asked why the proposed rising had not broken out before, replied: “at that time the surveyor was not working on our land.” The district officer took the precautions of posting extra guards, declaring a state of siege, etc., and he had the suspected ring-leaders arrested and sent to Rabaul. There they told the governor that they had been falsely accused and the governor returned them to Friedrich Wilhelmshafen for trial. At the district officer’s inquiry, a lot of contradictory evidence was given. Some natives denied all knowledge of a conspiracy to murder the whites; some said there had been loose talk of this; some said that a rising had been discussed and that wiser counsel and fear of white men’s muskets had prevailed and caused the abandonment of the plan, but that a native called Sisau, because of a grudge, had falsely reported that the conspiracy was still a live one. The district officer’s decision was ultimately that a number of the natives were guilty of having taken part in a conspiracy to murder the white population in and around Friedrich Wilhelmshafen. But as no overt act had occurred, and because of the provisions of the German criminal law relating to non-overt acts, the district officer had some difficulty in deciding on the form of punishment that, in his opinion, would be severe enough to “fit the crime”. He finally decided, after discussion, on 13th September, 1912, with other available members of the district council—(Heine of the New Guinea Company, the missionaries Helmich and Blum, and police officer Knuth) and with naval officers invited to attend—that as a preliminary step the natives found guilty should be banished from their dwelling-places for life to some place to be decided upon by the governor. On 14th September, the district officer advised the governor of what had been done and asked for a ruling as to whether the land of the “guilty villages” was to be confiscated for the Fiscus and registered in the Ground Book. The governor replied, on 24th September, that the banished natives would be settled in Gazelle Peninsula and that their families were to follow in batches: he also requested the district officer “to occupy the landed property of the guilty villages for the Fiscus and to enter same in the Ground Book”. The natives whom the district officer had found guilty, and later their families, were accordingly sent off to Rabaul and thence to an island in the Bainings area. All the remaining natives of the tribes deemed to be implicated (Siar, Ragetta, Biliau and Jabob), were exiled to the Rai Coast. Though the governor’s direction to occupy the lands of the “guilty villages” was given on 24th September, 1912, the actual “deed of occupation” is dated 13th July, 1914. According to it, Dr Gebbard, then district officer at Friedrich Wilhelmshafen, occupied certain specified lands (which for the most part were islands) of the banished Siar, Ragetta, Biliau and Jabob peoples. None of the lands specified in the “deed of occupation” as having been occupied for the Fiscus lies within the boundaries of northern and southern Jomba Plain. In the deed of occupation it was also recorded that “the natives in question were informed at the time that the whole of their island property”, specified in the deed had been confiscated for the Land Fiscus, and had “been occupied”: presumably this information was sent to the Rai Coast, where the natives concerned were then living and had been living for nearly two years. In the month after the deed of occupation had been signed, the Great War commenced. Shortly after that, according to native evidence, the warship “Australia” went to the Rai Coast and brought the Siar exiles home, after which the other exiled natives decided to come home too. They did so and have not been disturbed by the military or present civil administration, though complaints of the return of the natives to the so-called “Jabob reserve” were made by the New Guinea Company to the military district officer at Madang on 28th July, 1917, again on 28th November, 1918.

To go back a little. I have noted that in August 1911, surveyor Lauer was engaged on the survey of northern Jomba Plain.

On 29th April, 1913, he submitted a report on the work he had so far done in regard to the surveying of the boundaries of, and the excising of native reserves from, the southern Jomba Plain property. In that interim report, surveyor Lauer, after describing the boundaries in terms similar to those of Van der Laan’s protocol of 20th May, 1903, went on the say:

“The property comprises thirty-eight localities with 494 inhabitants: to cut out single reserves for each locality is not possible owing to the number of localities: it is therefore proposed to excise a larger reserve which runs parallel with the road from Stephensort to Madang (see sketch dotted and edged red) and enclose all the localities named on the road mentioned. Area about 600 hectares.

At right angles west of this reserve a large reserve, enclosing all the Panup (Namup) villages: area about 250 hectares. Further a large reserve, enclosing the village of Maima, Mamandar, Churu, Siena: area about 200 hectares. Further separate reserves for the villages of Bilibili, Bahor, Muina, Baido, Yam, Bagu, Aua, Addo, Bag, Ssa, Selasall, and Aguru are to be staked out, of a total area of about 500 hectares.

The total area of the property of Jomba Plain South is about 3,500 hectares: out of this will come reserves of about 1,500 hectares—also the sago areas which must remain to the natives and the sizes of which are unknown.

Concluding I beg to remark that the land between Bahir, Gogol and the village of Baido (i.e. the whole of the consolidated holding which is freed from reserves), is little suitable for plantation purposes (hilly land with very steep slopes). Therefore, the result is that the property of Jomba Plain South is of little value to the New Guinea Company.”

Lauer did not mention in this report that any of the proposed reserves had been marked by cement posts nor are any shown in the sketch plan that accompanied his report: see exhibit Q. But, during the court’s inspection of the land, a number of cement posts were seen inside the surveyed back boundary which native witnesses said had been put there by Lauer’s survey party. The position of these cement posts corresponds with the boundaries of reserves proposed by Lauer, as shown in his sketch plan, and it seems fairly certain they were put there to mark those proposed reserves. They may have been put in position after Lauer had submitted his interim report and sketch plan of 29th April, 1913, for, according to native evidence, Lauer was still working on southern Jomba Plain when the war broke out and the news of this reached him. His departure for Madang, it was stated, was so hurried that he left all his survey gear behind.

In his interim report, Lauer referred to “the sago” (sacsac) “areas which must remain to the natives and the sizes of which are unknown”. As the court and the parties had ample opportunity to note during inspection on the spot, those sacsac areas and swamps were very considerable and must cover some hundreds of hectares of ground. The property of southern Jomba Plain consists of two fairly well defined sections of country. One section runs along the coast and comprises about a half—perhaps a little more—of the area, and, with the exception of Addo Hill and a knoll at Niniak, is fairly flat. In this coastal section there are many sacsac swamps ranging from about a quarter of a mile across (as at Gau) to over a mile across (like the one in the Maim area): smaller sacsac swamps and areas are to be found at many points a few metres in from the beach. The southern end of this coastal section is subject to inundation from the Gogol River. On one inspection, an old course of the Gogol, still partly full of water, was discovered, which was not shown in any of the German plans, and which, for part of its bed, is about half a mile from where the Gogol is now flowing. According to the natives the Gogol flowed in this old course before the Germans came to Madang but obviously, at any wet season, the river is liable to flow there again. It is not to be wondered at that there are no villages in this neighbourhood. The other section of southern Jomba Plain, comprising perhaps a little less than half that area, runs more or less parallel with the back boundary and consists of hilly to mountainous country, very broken, and in parts sheer coral cliffs. In regard to this section the name of “Jomba Plain” is a gross misnomer.

I consider that if Lauer, in addition to his proposed native village reserves, had gone on to excise the sacsac areas on southern Jomba Plain as native reserves, the patches of land ultimately left to the company would have been so small and scattered that they would have been economically worthless to the company for plantations.

Lauer’s estimate of the population of the villages on southern Jomba Plain at 494 was, I consider, probably an under-estimate even at that time, for according to native witnesses, many natives were afraid to come near the surveyor and kept well out of sight. Assistant district officer Woodman’s count of the present population of these villages (not all of which stand where they were because of migrations and administrative policies of concentration) is half as much again as Lauer’s estimate of the population in 1913.

Many native witnesses at the hearing remember Lauer’s visit, but only a few appeared to have anything like a clear idea of the object of his surveying work. Suai of Yo and Dafen of Sein, whose present places of residence the surveyed back boundary actually passes through, said that Ra, a Maim native who accompanied Lauer but is now dead, told them afterwards that the surveyor had “rounded” native sacsac areas, etc. with cements and that later a company would, as it was expressed, “catch” the land not so demarcated with cements. Suai and Dafen (who thought Lauer was marking a road), said they were disturbed to hear this as they considered they had barely enough land to live on as it was. Sisilam testified that he had heard village talk that Ra had pointed out native tracks, gardens and sacsac areas for the surveyor but not why this had been done. Iog, who said he had accompanied Lauer, gave similar evidence. The witness Saik of Aguru-Main testified that Ra had told him the surveyor had said he was marking the land a company would get, with big cements; but that he would mark areas “inside” the big cements with smaller cements so that the company could not come and take native villages, gardens, sacsac areas, etc. Saik stated that as he and his people wanted to know whether it would be wise for them to plant gardens inside the line of big cements in view of the rumours about a company’s coming, he went to the Rev. Welsch, the missionary nearby, to find out. The missionary sent him to Captain Delane, then district officer at Madang. Captain Delane told Saik, he said, that he might plant inside the big cements but what might happen in the future the district officer did not know. Later, Saik said, he and Ra were asked by the Rev. Welsch had they ever sold land to the New Guinea Company and they assured him they had not: he told them the company claimed to have bought the land. The witness Pay, of Wabar (near the coast), gave evidence that he had worked for Mr Lauer and had asked him the object of the cements Lauer was putting in; and that the surveyor had replied he was making a road. Pay also said that, at the surveyor’s request, he pointed out native food-trees and sacsac and garden areas so that the surveyor’s line might be turned to prevent their destruction. (I should mention that cements do actually exist on or by the bigger roads running through southern Jomba Plain e.g. on the old road from Gesup via Hudine, Sso, and Wabar to the Gogol; and on the road from Sso to Banup and Sein.) Some witnesses (e.g. Saun, Ahan, Panut) said they thought the surveyor was making roads; and a score or so of others said that they did not know why Lauer was putting in the cements, that he did not tell them and that they did not ask because they were nervous or did not know “pidgin”, etc. Some witnesses testified that they did not know the company claimed to have bought the land until they heard so from the Rev. Welsch: others that they first heard of this during the preliminary investigations made for the Commissioner of Native Affairs. On 26th June, 1914, Bilibili natives complained, through their missionary to the district officer that the surveyor had run a line through the clay deposit used by them at Maguin and that, when asked why, the surveyor had told them a company would come soon and plant palms: they therefore requested (and the missionary supported their request) that the clay deposit essential to their pottery industry should not be taken from them. On this evidence, it appears that the ideas of the natives living on southern Jomba Plain as the object of Lauer’s labours were somewhat vague. This is not to be wondered at, the circumstances being what they were. To many of these natives, whites were uncertain people, people best avoided. Some of them had seen tracks cut through southern Jomba Plain for road purposes by German roadmasters before Lauer came, and Lauer’s line from the Gum near Gesup to the Behir River near Sein, e.g. might reasonably have been thought to be another road, for it went straight on through the lands of many native tribes without ever re-entering those lands. Even to those natives who had heard talk that a company would come later and occupy the land, it must have seemed (and did seem) a strange and monstrous thing that a company, with whom they had never had any dealings, should be able simply to come and “catch” their tribal lands.

On 2nd May, 1913, three days after the date of Lauer’s interim report on southern Jomba Plain, yet another agreement was mooted for the settling of the long-outstanding Jomba Plain problem. On that date, before District Judge Berghausen, it was agreed (subject of course to approval) between surveyor Lauer, representing the Land Fiscus, and the New Guinea Company (represented by Heine), that the company would transfer to the Fiscus the property of southern Jomba Plain and the cemetery area at Friedrich Wilhelmshafen, while the Fiscus in exchange would transfer to the company “Jabob reserve” (on which there were 545 two and a half year old coconuts) and the three Jabob Islands: these three islands, however, were to be re-transferred, planted up, by the company to the Fiscus in thirty years time.

By dispatch of the same date, district officer Berghausen hastened to recommend to the governor the approval of this draft or provisional agreement. Among what the district officer considered its advantages, was the consideration that the acquisition of southern Jomba by the Fiscus would (he thought) leave enough land, without prejudicing native land interests, for from six to eight blocks of 200 hectares each for settlers. (In passing I may comment that I think this was very doubtful, that is if the sacsac areas on southern Jomba Plain had been excised for natives.) In this dispatch, the district officer wrote of “Jabob reserve” as having reverted, after the expulsion of the Jabob natives in 1912, to the Fiscus, also of the three Jabob Islands as belonging to the Fiscus. He evidently assumed that the so-called “Jabob reserve” was actually once owned by Jabob islanders, which was not the fact: and as to the three Jabob islands these were not formally occupied until 1914, though their occupation was based on Dr Hahl’s authority of 24th September, 1912, which related, inter alia, to the Jabob Islands, but not to the “Jabob reserve”. The district officer also stated that he was convinced that the land on southern Jomba was rich and that, as yet, the value of that land was insufficiently known to the company, but might soon become known to it: but, he added, Mr Heine had been won over and would request his directors, “by mail via Siberia”, for authority to conclude the provisional agreement. In this Berghausen was over-sanguine, for Mr Heine, in writing to his directors on 13th May 1913, stated that, although the acquisition of “Jabob reserve” would round off the company’s northern Jomba Plain property and the excision of the proposed native reserves on southern Jomba Plain would render that property of little value to the company, on the other hand, and because of the difference between the area the company was to get (140 hectares) and the area it was to give up (1,700 hectares), the proposed exchange agreement could not be considered and was only passed on to the directors by him for use as a lever to a more favourable exchange. Though the governor was prepared to approve the provisional agreement, it was definitely and finally rejected by the company at a conference on land matters which was held at Rabaul on 15th January, 1914 and which was attended by the governor (Dr Hahl), Dr Klug of the government, and Professor Dr Preuss and administrator Taeufert of the company.

By dispatch of 17th January, 1914, the governor notified the district officer of the company’s rejection of the proposed agreement of the preceding May, and also intimated that Dr Preuss had requested that the “Jabob reserve” area should not be alienated.

Surveyor Lauer was still surveying at Jomba Plain in 1914 and on 28th January of that year forwarded a sketch plan of his excision of “Jabob reserve” to Mr Heine of the company: in a covering letter he wrote: “I left out the clayhole, which lies outside the reserve, as it may be abandoned” (presumably he had in mind the banishment of the Jabob natives). In his sketch plan, (exhibit N), the reserve he had marked out differed from that proposed on Stuckhardt J.’s visits in 1906-1907 in that it had a sea-frontage and thus conformed to the terms of the 1904 agreement in a way that the Stuckhardt demarcation did not.

About two months later, on 23rd March, 1914, the company’s Friedrich Wilhelmshafen administrator, under instruction from his directors, applied through the district officer to the governor for the “re-transfer” to the company of “Jabob reserve” as it had recently been demarcated by Lauer. In support of this application it was contended, that, as the company had agreed in the 1904 agreement that a “Jabob reserve” should be carved out of the northern Jomba Plain property which the Fiscus then acknowledged to be the company’s, now that the Jabob natives had been banished, the reason for the “reserve” had disappeared and the reserve should therefore be “re-transferred” to the company.

In forwarding this application to the governor, the district officer (then Dr Debbard) expressed the opinion that, as long as the company’s registration of the Jomba Plain properties remained undisputed and because of the agreement of 1904 and also because of the banishment of the Jabob natives, the company’s legal position regarding the “Jabob reserve” was better than that of the Fiscus to which in any case the reserve had never been transferred: he suggested it would be advisable for the government to offer to yield “Jabob reserve” to the company if the company would meet the government in the matter of some land at Bayern Bay (near Salamaua) that the government was interested in.

It will be noticed that both the company’s administrator and the district officer assumed that, as the Jabob natives had been banished, there were no natives left who might be interested in the land marked out by Lauer as “Jabob reserve”: but this as I have found was not the case. The company’s application for the return to it of this “Jabob reserve” also presupposed that that area had been properly acquired in the beginning, 1888, which also was not the case.

Discussions on the Jabob reserve-Bayern Bay proposals were still going on when war broke out.

On the outbreak of war, Lauer, according to native witnesses, was still working at southern Jomba Plain: on receiving the news he hurried back to Friedrich Wilhelmshafen. Unfortunately, except for his plan of the “Jabob reserve” that he had marked out, no record has been found of his work on Jomba Plain from the time he submitted his interim report of 29th April, 1913, until he left. As he was last working on southern Jomba, presumably he was completing his survey and the excision of reserves there. Whether he had discovered that the Gesup and Mahohan peoples (both of whom were living south of the Gum River then) also claimed the ownership of land north of that river, we do not know. It would seem, however, from a reference in a letter dated 23rd September, 1917, from the New Guinea Company at Friedrich Wilhelmshafen to the company’s Rabaul office, that Lauer had been excising more reserves than the originally proposed village reserves referred to in his interim report of 29th April, 1913: for in that letter, the Friedrich Wilhelmshafen office, replying to a question whether the Modilon-Jomba Lands had ever been surveyed, wrote:

“These must have been surveyed, as Mr Lauer, as far as we remember, complained very much that there was no plan of their survey, either with us or with the government upon which to base his further survey of the so-called Jomba Plain. But he must have had something as a basis as he did not start with the survey near Madang, but near Jabob and cut out the reserves (in?) 1914 everywhere as far as the Gogol (57 reserves!!! as far as we know!!) set stones, etc., for which we had to provide 30 men for his official survey line to expedite the matter and reduce costs. The outbreak of war has left everything where it was. We do not know where it was. We do not know where Lauer’s papers, etc., are.”

As I have mentioned the native tribes who had been banished in 1912 returned home soon after the war began, and have lived there, undisturbed, since then. The New Guinea Company formally protested to the military district officer at Madang on 28th July, 1917, against the return of the natives to the “Jabob reserve” area which, it was claimed, was the company’s property. No reply having been received by the company, it again protested on 28th November, 1918, and asked that the matter be referred to the Land Commissioner at Rabaul. The company was advised on 16th December, 1918, that this had been done. Later, the Rabaul office of the company was requested to state on what grounds the company claimed the reserve, and, on referring this question to its Madang office, was referred in turn to the company’s application of 23rd March, 1914, for the “re-transfer” to it of “Jabob reserve”.

And there, as far as may be gathered from the files produced, the matter rested until the present civil administration was established, the Lands Registration Ordinance passed, and the investigations undertaken which led to the submission by the Commissioner of Native Affairs of the references now before this Court.

I have been dealing mainly with the attitude taken up by the German government and the company and with what had been done by them in regard to questions relating to the properties of northern and southern Jomba Plain. I now have to consider the attitude of the natives on these matters.

As to southern Jomba Plain—that is, the land between the Gum and Gogol Rivers purportedly purchased by Kubary for the company in 1887 from Bilibili Islanders: None of this land was, or is owned by Bilibili natives. It was, and is, all owned by mainland tribes who differ in race and tongue from the natives of Bilibili Island. Those mainland natives were not parties to Kubary’s agreement; they never agreed to sell their land to him or to the company; they never authorized the sale of their land by others; they have never suffered disturbance from the company or its successor in their ownership, occupation or user of the land—unless Lauer’s survey could conceivably be called such a disturbance. These mainland natives have continued to exercise acts of ownership over, and to live on and use this land as freely and fully after 1887 as they did before 1887. So far as that goes and they are concerned, Kubary’s transaction of 1887 might never have happened. None of them were aware of it until Lauer came in 1912 or 1913 and told some of them he was marking out land for a company and reserves in that land for natives. The war came and Lauer left. A new government arrived, Saik’s visit to the district officer of the new administration resulted in his being told that he could carry on gardening within the surveyed back boundary for the present at any rate. Lauer’s work of excising reserves was never taken up afterwards; nor had a company come onto the land; nor had the natives of southern Jomba acknowledged in any way that southern Jomba Plain belonged wholly or partly to the New Guinea Company or to its successor.

As to those parts of northern Jomba Plain that are included within the reference before the court, I have already found that none of this land was validly sold by the true native owners thereof to Kubary for the New Guinea Company on 13th September, 1888. How then do the natives concerned explain the existence on this land of the plantations which were established by the New Guinea Company and are now called. “Modilon-Jomba” and “Wagol”? The native version of the establishment of these plantations by the company was to some extent the story of a perplexed and weaker people involuntarily giving way before a more dominant race. There were, however, references in the native evidence to the receipt, on several occasions, and by different natives, of trade goods from officers of the New Guinea Company: and before I proceed to sum up the native evidence about the company’s establishment of the plantations in northern Jomba Plain, I desire to say that I have found it difficult, in some cases, to decide for what, precisely, those trade goods were given and received. Most of the actual native recipients are dead and some of what was said about these goods was hearsay. It is to be remarked, moreover, that the evidence about the receipt of such trade goods came entirely from the native witnesses themselves. If they had not told the court about them, nothing, it would appear, would have been known of them; for no record thereof appears in any of the files that have been produced. It may be that some note of them was contained in the missing file (Friedrich Wilhelmshafen vol. 1, folio 5), but we do not know. On the other hand, administrator Geisler, writing to his directors on 20th June, 1910, expressly stated that no additional purchases had been made, at a time when the natives might have agreed to them, to complete or complement Kubary’s original purchase. It may be that the employees of the company who gave the trade goods on certain occasions thought Kubary’s original purchase agreement sufficient and further subsidiary agreements unnecessary; but, from references in the files produced, the company appears to have made supplementary purchases elsewhere in Astrolabe Bay. As it is, the native evidence is the only evidence that there is about the different receipts of trade goods from the company by natives and I have therefore to interpret it as best I can.

Native witnesses stated that the first “masters” of the New Guinea Company who came to live at Friedrich Wilhelmshafen were men they call “Kusoro” and “Tab”. These two masters wished to build at Kaisilan, a spot near the present wharf at Madang. They negotiated with Kudum at Biliau (Kaisilan was once Biliau territory) and Kudum agreed to let them settle there, accepting for this some trade goods: 2 tomahawks, some “paint” (dry colour), and matches, it was stated. He gave some of this to others, e.g. Lawatat of Biliau and Malibak of the Geranget tribe who, as I have already mentioned had been allowed by Biliau people to reside, garden and plant coconuts on Biliau land —especially the land that is now Madang township. But, to the surprise of the natives, the company’s men not only cleared Kaisilan but, moving westerly, cleared a great deal more, encroaching first on other Biliau land, and then on to Uaribu territory: that is the company cleared what is now the northern portion of Modilon-Jomba Plantation. Kudum went to the Rev. Bergmann (the missionary) and they came together to protest to the company’s manager against the company’s encroachment. But the company’s manager, ignoring Kudum’s protests, insisted that the whole of the land that had been cleared belonged to the company. On the evidence of Biliau, Uaribu and Geranget witnesses concerning the trade received by Kudum and his protest through the Rev. Bergmann, uncontradicted as it is, I consider that the trade received by Kudum related, not to the large section of northern Modilon-Jomba, but to a small piece of land only, situated within the present township of Madang and outside the scope of the present references. Though Kudum protested against the company’s advance into Biliau terrain, the Uaribu people did not protest openly against the company’s penetration of their lands, because, it was said, they were too timid to do so. At that time, the Uaribu people had left their own villlage site (it was in what is now Wagol Plantation) and had gone to live at the Biliau village on the mainland. But they had not abandoned their tribal land and they continued to use it for agricultural purposes, etc. They also allowed Biliau people to use it, apparently, especially after the Biliau people had sold their island to whites. These natives were the “people of Biliau” of whom district officer Berghausen wrote and who were a thorn in the side of the company in 1910 because of their persistence in gardening or exercising acts of ownership over the land between the Jomba and Gauta Rivers (though this was not a new practice as the company’s manager at Friedrich Wilhemshafen himself admitted when writing to his directors on 14th December 1910).

The company’s next phase of development, according to the native witnesses, was southwards along the coast on to the ground of the Nob tribe. The company’s development gradually absorbed the garden sites of the Nob natives and of the Jabob people who had been allowed by the Nob people to garden on Nob ground. The company’s work advanced closer and closer to Jakundu and finally Gaulat and his Nob people, fearing, and desiring to avoid, the friction that frequently arises when a plantation lies near a native village, moved across to Mareng (one of the Jabob islands). The company’s clearing kept moving further south along the coast the Nob natives moved again to Jabob Island itself. The witness, Nanto, has stated that one of the company’s men “Kusoro”, he thought, had at the time the company had cleared as far as Modilon (i.e. the northern portion of Modilon-Jomba) given Gusup, Gaulat and Mandor (Kusup’s men, who were “big men” of Nob, and Iabui (Nanto’s father and a “big man” of Matulon), 3 tomahawks, 2 knives, some dry “paint”, beads and tobacco between them: this, Nanto said, was to reassure and get on a good footing with the natives, who were inclined to be afraid of the company. Kauwas, a younger witness and a Nob man, said he had heard village talk that Kusup, Mandor (his father), and the Jabob man Nadu, had received trade from the company at Madang, but for what he did not know. The conditions then existing make Nanto’s explanation that the trade goods were goodwill gifts a plausible one, though no doubt the company desired the native goodwill for the purpose of getting on with its work on northern Jomba Plain. The evidence, however, is insufficient for me to go so far as to find that these natives accepted those trade goods as payment for the whole or part of Nob and Matulon territory.

Fuan, who was adopted by Gaulat of Nob, gave evidence that Loag of the New Guinea Company once gave trade goods to Gaulat which Gaulat shared with Nob and Jabob men, as pay for their having cut a road for the company: and that, at the time that pay was given, the company had cleared as far as Bogilon, that is to say, had penetrated Nob territory to within about half a mile of Jakundu and the former Nob village site. Fuan said that Gaulat was opposed to the company’s clearing as far as Bogilon, but was too afraid to say so openly to the company, and that he fled, instead, to Mareng Island. Though it seems a little curious that Gaulat should have chosen to work on cutting a road for Mr Loag after the company had absorbed so much of the Nob territory, I have to accept Fuan’s statement, as there is no direct evidence to the contrary, that the trade goods received by Gaulat from Mr Loag for cutting a road were pay for labour done, and not for land.

As to the clearing of the Nob land south of Bogilon and the Matulon land adjoining Nob territory on the south, the witness Mainung, of Jabob, testified that Mr Loag got him and other local natives to clear the bush on this land for the company and that for this labour they received blankets, while Sagui, of Jabob, got a bowl and pigs’ teeth, and Kene, of Jabob, and Gaulat, of Nob, each received pigs’ teeth. Nanto testified that he and other Matulon men and also Jabob men (he did not mention Gaulat) received trade goods from Mr Loag for clearing the bush on Matulon territory, that is—Nanto’s own ground. When asked why he did not protest, he said he was afraid to. The Jabob men made no complaint either (of course, the Nob and Matulon lands did not belong to them but they had been allowed by these peoples to garden there in the past). The witness, Beg, of Mareng, also said that Jabob men had cleared Matulon bush for Mr Loag and were paid for their labour in trade goods; he did not mention Gaulat as receiving any of that trade. The witness Misnung stated that the Nob and Matulon men had not protested against the clearing of their bushlands because they were too “longlong” (as he put it)—that is partly afraid, partly ignorant of how to make a protest to white men. From this evidence then, it appears that trade goods were accepted by natives from the company for the work of clearing their own land for the company; that is, by the Nob natives for clearing the southern part of their bushlands at least and by Matulon natives for clearing apparently all of their bushlands. It may be that these natives were too afraid of the company to refuse flatly to clear their lands for the company, but it is a little difficult to believe that their fear of the company was so great as to induce them to come across from the Jabob Islands (where they were then residing) and proceed to cut down their own bush, instead of simply adopting an attitude of passive resistance. Further, it must surely have been obvious, even to them that by felling their own bush for the company they were making those bushlands useful to the company and useless for themselves. There is also the fact that the Nob and Matulon peoples were dwindling tribes. On the whole, I have come to the conclusion that the Nob people were prepared to let the company have a fairly considerable portion of their bushlands and to clear them for the company, but I do not consider that they willingly vacated their beach areas—particularly their village site at Jakundu. As to the Matulon people, I have already explained that one section of the tribe had deserted their tribal territory and migrated inland to Panim before the Germans came to Madang, while the remaining “beach section” of the tribe had, thirty years ago, at least, already given up their village site, on the mainland, and moved across to the Jabob Islands. For these reasons, and because of the decline in numbers of the Matulon tribe, the Matulon territory on the mainland could at best have been but slightly held at the time the company wished to clear it. I have concluded that the Matulon people did not set much store on their bush areas on the mainland and were prepared to clear, and did clear, them for the company for reward: but, on the evidence, I do not consider they were prepared to yield up their beach to the company—particularly the former village site and Moreland Beach near the point called Bidamen.

The last and southernmost part of the company’s clearing along the coast stopped at a point between the places called Uapel and Paridamon by the natives. According to native witnesses, the reason for this was as follows. A little while before the 1912 unrest, one of the company’s men (Mr “Har”, the natives call him) wanted to push the company’s clearing as far as the Gum River. This would have absorbed Mahoban ground and Jabob gardens and groves on that ground. Gumang, really a Mahoban man, but acting as “tultul” and living at Jabob, protested against this. To prevent the Company from extending its clearing as far as the Gum River, he agreed to a compromise whereby the company’s operations stopped just short of Paridamon and Gumang received some trade goods (tomahawk, axe, knife and thread) and ten marks. He gave five marks to Weiwou of Jabob, the other “tultul” there, and shared the trade goods received among Jabob men. The Mahoban witnesses, Abaiik and Damun, stated that they received none of the trade but said Gumang was in control of that part of Mahoban territory. Gumang did not, in fact, make a wholly bad bargain, because most, if not all, of the land he agreed to let the company clear, was land which was not originally Mahoban ground, but ground they were claiming through marriage into a tribe lacking males of its own.

On the evidence, I consider that Gumang intended, for consideration received, to let that land go to the company, that is to say, the land which the company then cleared and planted, not the unplanted portion of Mahoban ground at Balasgo. The line agreed upon between Gumang and “Mr Har”, was never subsquently crossed by the New Guinea Company and it marks the southern end of Modilon-Jomba Plantation today.

While the cases in which I have concluded that natives were prepared to yield land to the company for trade received may not amount to regular sales, they must, in my opinion, be borne in mind in arriving at a determination of the questions referred to the court in view of the provisions of ss. 27c and 27e of the Lands Registration Ordinance.

The New Guinea Company’s clearing and planting operations, inland, on what is “Modilon-Jomba Plantation” now, absorbed the whole of the Matulon territory there. It also took in a small part of the territory of the Mahoban peoples who had been living at Tutum, a place a little to the north of the Gum River. The Mahoban natives did not complain openly to the company when its work was approaching towards their village, but they moved across the river to a new village site on their ground at Balefna. Other Mahoban lands on the north of the Gum River (much of it comprised the so-called “Jabob reserve”) were not trenched by the company. Nor did the company clear any of the lands of the Gesup tribe north of the Gum. As to the Sisiak territory that lay within the property of northern Jomba Plain claimed by the company, a small portion of it was absorbed by the company’s planting operations at what is now Wagol plantation; and I have already referred to the successful protest which was made by Sisiak natives when Lauer commenced surveying the boundaries of northern Jomba Plain and which caused the excision of the so-called “Wagol reserve”.

Mr Archer, in his able closing address on behalf of the custodian, spoke of what he described as the “general passiveness of the natives towards the company’s acts of ownership”. He contended that the natives of southern Jomba well knew the purpose of Lauer’s survey and that the company would later plant up the areas not excised for native reserves, and that the only fear the natives had was that they might not be paid for the land taken up by the company, a matter that in any case then remained to be seen. I have already gone fully into the question of the knowledge or lack of knowledge on the part of the natives of southern Jomba regarding the object of Lauer’s survey and found that, while some of these natives had been given some idea of its object by Lauer, most of them were in ignorance or bewilderment about it. Lauer’s survey, as already noted, caused Saik’s visit to the district officer who told him to “carry on”. It was also the cause of the complaint of Bilibili natives regarding the survey line run through the clay deposit at Maguin. Further protests were unnecessary because, as far as the natives could have seen, nothing came of Lauer’s work and the company made no move to develop southern Jomba in any way.

As to northern Jomba, where the company did do a considerable amount of development, Mr Archer contended that, except in the matters of the so-called “Wagol reserve” and “Jabob reserve” and Gumang’s treaty with “Mr Har”, the natives concerned in northern Jomba displayed a passiveness which should not, he suggested, be put down to fear, timidity, or unsophistication, but was due to a feeling, among the natives, that the advent of the company was advantageous to them and brought them benefits such as the opportunity of acquiring trade goods, and so on. I do not recollect hearing any of the native witnesses saying that he considered the advent of the company was advantageous to the natives. There was, however, a lot of evidence to the contrary. I suppose that, in the sense that the natives were not as alert to combat encroachments on their rights as white men would have been, the natives might conveniently be said to be “passive”. But I do not consider they were as “passive” as Mr Archer has stated they were, or that they were “passive” for the reasons Mr Archer has suggested. When the New Guinea Company first came to Friedrich Wilhelmshafen, white people, and the talk and the ways of white people, were a closed book to the natives of that locality. The significance of all masters’ doings would not, therefore, be grasped at once by these natives and even then natives would be (and are usually) slow to act. It did not take long for the natives to become aware of the efficiency of the white man’s weapons, however: and there was a great deal of evidence that went to show that the natives considered approaching whites (especially in protest) a somewhat delicate proceeding, and that actual crossing of the white man’s will impolitic and dangerous; it was safer, and wiser, to give way. In view of events that occurred, I consider it a matter of surprise that the natives protested as much as they did. The native unrest of 1904 was due, at least in part, if not mainly, to native dissatisfaction about the loss of land; that unrest resulted in the shooting of a number of Siar and Geranget natives. There was native unrest again in 1912, over the land question, and apparently there was talk at that time of a rising though some native witnesses stated that this was only talk and had been vetoed: however, the whole of the natives of Siar, Ragetta or Geranget, Biliau and Jabob were banished from their homes and their islands occupied by the Fiscus. There was native evidence of other incidents such as the shooting by the company’s labour of a Gesup woman erroneously supposed to have taken tobacco from the company’s plantation; and the shooting of a man and the killing and mutilation of three women of Aua who were unfortunate enough to be seen at Sihir by the native members of a punitive party sent by the company against Maraga natives (another tribe altogether), because, according to native evidence, the Maraga men had avenged outrages on their people by the company’s labour. It may, I think, be reasonably assumed that these untoward incidents discouraged the natives somewhat from opposing the company and protesting against its acts. Nevertheless, Kudum protested against the clearing of northern Modilon-Jomba; in 1910 natives were asserting their ownership of land between the Jomba and Gauta Rivers against the company; in 1910 the Jabob natives were asking that their gardens and coconut groves be safeguarded; Gumang successfully held the company’s advance at Paridamon: in 1912 the Sisiak natives succeeded in establishing their claim to “sacsac” at what is now called “Wagol reserve”; in 1914 the Bilibili natives complained against the establishment of the surveyor’s line at the Maguin clay deposits; and later Saik travelled from Aguru-Maim to question the district officer about putting his gardens inside the surveyed back line. It must be remembered too that instructions had been given to district officer Berghausen by the acting governor that the natives were not to be encouraged in the belief that they were undisputed owners of land on Jomba Plain. For these reasons, therefore, I am of the opinion that the custodian’s case gains no support on the score of native passivity.

The questions referred to this Court in the four references before it are those of possible rights over the lands to which these references relate, and I now have to come to a determination upon these questions. As to their determination, Mr Archer has urged that the court should be governed by s. 27c of the Lands Registration Ordinance, which provides that, in determinations of this kind, the Court “may be guided by such principles of right and good conscience as it deems to be applicable to the matters referred to it, having regard to the tribal institutions, customs and usages of the natives of the Territory and to the conditions existing in the Territory since its occupation by persons other than natives”. He has stressed the difficulties that must have attended the early land transactions in the Territory because of the difficulty of interpretation and of conveying to the natives the exact meaning of the white man’s idea of the acquisition of land. He has contended that the New Guinea Company came to the Territory to colonize it, and that, if the colonization and development of the Territory were to proceed, it was inevitable that the true interests of the natives had to some extent to be subjugated to other interests and all that was possible was so to handle matters that hardships to natives were reduced to a minimum. The conclusion of this contention does not necessarily follow from its premise, in my opinion: nor is there foundation for that conclusion in the instructions of 10th August, 1887, prescribing the procedure to be followed by the New Guinea Company in acquiring land in New Guinea. In those instructions particular care was taken to prescribe a procedure that, if followed, would ensure that land would be properly acquired by the company. Mr Archer admitted that Kubary’s purchases were not all that might be desired, but he emphasized the fact that the German government and the New Guinea Company had endeavoured, by negotiations between them to adjust the difficulties that had arisen out of these purchase agreements and generally to solve the problem relating to the northern and southern Jomba Plain properties. He referred particularly to the agreement of 17th November, 1904. To that agreement, he conceded, the natives were not parties but he contended that the German government had, rightly or wrongly, assumed the power of negotiating in the natives’ interests: that the government had, in the 1904 agreement, recognized the company as owner of the Jomba Plain properties subject to the excision of necessary native reserves; that the company had looked, and had been entitled to look upon the Government as the final authority and upon the 1904 agreement as a final solution: and that the company was therefore justified in going ahead with its work of developing its plantations. If, Mr Archer said, it was urged by the Commissioner of Native Affairs that the natives ought not to suffer for mistakes made by the German government, then he (Mr Archer) would urge that neither should the New Guinea Company suffer. For these reasons he submitted that the court’s decision should be one that in effect confirmed the 1904 agreement as a basis; that a decision on such lines would be a solution that reduced any hardship to the parties to a minimum and that, in framing such a decision, the court might use the powers given it, in the case of references such as the present ones, under s. 27e of the Lands Registration Ordinance namely—the power, where the court is of opinion that any person has established a right over land but is also of the opinion that the enforcement of that right might cause undue hardship to another person and that it is possible to recompense the owner of the right for its loss by some form of compensation, to order that such compensation be constituted for the right, and that on payment of the compensation to the owner of the right by that other person, the right should become vested in that other person.

I agree with Mr Archer’s submission, that, in the determination of the matters referred to it in the present references, this Court should guide itself in accordance with the principles referred to in s. 27c of the Lands Registration Ordinance; that is, the principles of right and good conscience it deems applicable to the matters referred, bearing in mind the relevant native institutions, customs and usages and the conditions existing in the Territory since its occupation by non-natives. That is the reason I have set out at such length in this judgment the history of Kubary’s purchase agreements of 1887 and 1888. Indeed, a determination according to the principles mentioned in s. 27c of the said Ordinance appears to be the only fair and practicable method of solving problems that arise out of such early land transactions between non-natives and natives in this Territory. In dealing with such problems this Court must bear in mind that when whites first came to New Guinea they came into contact with natives of a primitive culture—a culture in many respects akin to that of the Stone Age. Between non-native and native ideas yawned a gulf that had constantly to be bridged in early intercourse between white and black. There was the difficulty of difference in language. The natives had no script of their own and therefore could neither read nor write. Whites were few in numbers, and it was not unusual, in early transactions for the purchaser to be the only non-native present: on the accuracy of his interpretation and record of the transaction the native vendors had entirely to rely. Again, as at Jomba Plain, the common native conception of “ownership” of land was a perpetual group or tribal ownership and opposed to the white idea of individual ownership with free powers of disposition. With such a conceptional divergence (the existence of which was probably often unsuspected by white pioneers) it may be doubted, as Mr Archer has suggested, whether in any of the early land transactions the native parties had a full and perfect understanding of everything that these transactions involved; e.g. that their land was gone for ever and that the purchaser could dispose of it, according to his law, to other whites they had never seen or heard of. Conditions being what they were, a full and perfect understanding on the part of the native parties of the significance and all the consequences of these early transactions could hardly have been achieved: a substantial understanding, evidenced by acquiescence in the subsequent occupation, development, etc. of the land by the purchaser, would have been about all that was possible. Where definite fraud on the part of a white purchaser is proved, the court’s duty would be clear. But it does not follow, because fraudulent land dealing may have occurred in the past, or because non-natives dealing with natives in regard to land may have an intellectual or educational advantage, that all non-native purchasers are therefore deemed to be dishonest negotiators intent upon swindling natives out of their land. Where, for instance, a non-native purchaser has honestly tried to discover the true owners, genuinely endeavoured to make them understand the meaning of the transaction, paid them the consideration they were satisfied to accept, and maybe incurred a lot of expenditure thereafter in developing the land, only to find—long afterwards perhaps—that, despite all his efforts, he had failed to make the full purport of the sale clear to the natives because they were incapable at the time of grasping the significance of a transfer of land from the white point of view, it would hardly seem just to hold that the whole transaction should thereby be vitiated. It seems to me, therefore, for the reasons I have mentioned, that in deciding the inherently difficult questions that arise out of these early land transactions between native and non-natives, the only fair and practicable course the court can follow (and one it is empowered to follow by s. 27c of the Lands Registration Ordinance) is to determine these questions in accordance with the principles of right and good conscience referred to in that section.

Now Kubary’s “purchases” of 1887 and 1888 were not cases of natives “not fully understanding that they were parting with their land to the company”. They were cases in which natives purportedly sold land which did not in fact belong to them at all. Every allowance that could reasonably be made regarding the interpretation of the agreements of 1887 and 1888 by reason of the conditions then prevailing in New Guinea does not alter the fact that the whole of the land described in these two agreements belonged to forty odd tribes who were not parties to the agreements and who did not negotiate with Kubary for the sale of the land. After pinnace inspection, Kubary (to paraphrase district officer Berghausen’s remark) bought thousands of hectares of land, the boundaries of which he had never seen, for a trifle paid to natives who did not own that land.

The two properties purportedly purchased were registered in 1896 in the Ground Book on the authority of certificates that were at least of questionable validity. Of these certificates and of the fact of registration the native owners could have known nothing.

In 1901 discussions took place between the German government, and the company regarding the settlement of the boundaries of the Jomba Plain properties, at which discussions the existence of native claims to lands within these properties was recognized by both government and company, and the excision of native reserves proposed. Negotiations continued until 17th November, 1904, when an agreement was reached between the Land Fiscus and the company wherein the Fiscus acknowledged the ownership of the company of the Jomba Plain properties, subject to the excision therefrom of native reserves on a basis of a hectare per head of native population, etc. Later further discussions occurred, and various suggestions and proposals passed, between the government and the company, but, as far as they were concerned, the 1904 agreement was still the basis upon which they were working and upon which the survey of boundaries and the excision of reserves were proceeding when the outbreak of war in 1914 brought everything to a standstill.

To these negotiations and discussions and to the 1904 agreement the natives concerned were not parties. But, as Mr Archer pointed out, the government assumed, rightly or wrongly, the power of acting for these natives. The attitude taken up by the government in the matter is clearly defined in Dr Hahl’s dispatch of 28th October, 1910, to district officer Berghausen—of which dispatch the New Guinea Company received a copy. In that dispatch Dr Hahl observed that the safeguarding of native interests in contentious land matters had hitherto been effected from the point of view that the government, by virtue of its “mundium” (that is, its duty of guardianship or protection) could give a decision binding the natives. This attitude, Dr Hahl explained, rested on the consideration that legal proceedings, as to whether land had been legally acquired or not from natives, would lead to endless litigation and seriously affect the progress of the colony; he considered that if the native claims to land at Jomba Plain came into court, further proceedings of a like kind would flare up all along the coast of New Guinea. In other words, the policy of the government was to try and keep such disputes out of court: as far as possible, the legal aspect of the question of what rights the natives might have was to be left severely alone. As Dr Hahl put it—it was unnecessary to raise the question whether the negotiations between the government and the company had affected the legal rights of the natives in any way: that was a matter for judicial decision. Dr Hahl suggested that a short discussion on the spot between the district officer and the company’s representative, with the participation of the native chiefs, would suffice to satisfy the native demand for good garden ground. The participation of native chiefs suggested by Dr Hahl (writing from Berlin) would of course have strengthened any agreements reached. But in New Guinea other ideas were being held, for the acting governor, in his despatch of 25th July, 1910, to district officer Berghausen emphasized that “the natives should not be encouraged in the belief that they are still undisputed owners of the ground and soil itself”: and of this the local representative of the company was informed: see his letter of 15th August, 1910, to the company’s directors in Berlin. In the attitude, therefore, which had been assumed by the German government in regard to the protection of native interests in contentious land matter such as Jomba Plain, there was, to put it baldly, an element of bluff and at least a suggestion of a disposition to avoid arousing sleeping or potential native litigation. But it was a policy that had been adopted by that government in what it deemed the best interests of everybody. There can be no doubt whatever, from the papers that have been produced, that the New Guinea Company was aware of the nature of the government’s policy and of the reasons given by Dr Hahl for its adoption. The company moreover concurred in it. Mr Archer has contended that the company was entitled to look on the German government as the final authority and the 1904 agreement as a final solution, and was therefore justified in going ahead with its plantation development. I consider that a more correct statement of the company’s position would be this: the New Guinea Company knew that the German government, in negotiating with it for a settlement of the Jomba Plain problems, was doing so (as it was put) “without reference to the legal questions of the validity of the company’s acquisitions and their registration, or the validity of the native claims”. The company knew the government had assumed power to negotiate in such a way and why; the company concurred therein; the company had been acknowledged as owner of the Jomba Plain properties by the government and had agreed to the excision therefrom of native reserves; the company knew that it was not the intention of the government to inform the natives that they had undisputed rights of ownership over lands within the Jomba Plain properties claimed by the company; the risk of trouble from natives themselves seemed negligible; the company went on developing its plantations. Doubtless this seemed to the company quite the most reasonable view at the time, and the fact that the company acted on it must not be overlooked. On the other hand, there is the fact that the risk which may have seemed negligible then has actually fallen and native claims are now before the court.

Another thing that must be borne in mind is that the carrying out of the agreement of 1904 was incomplete when war broke out. Though the boundaries of northern and southern Jomba Plain had been surveyed, the excision and survey of native reserves had not been completed, apparently. We know that as a result of native representations the excision of a reserve at what is called “Wagol reserve” was agreed on. We know that Lauer marked out “Wagol reserve” afresh and differently. We know, from Lauer’s interim report of 29th April, 1913, that he proposed the excision of so many reserves on southern Jomba Plain that, in his opinion, what would be left would be of little value to the New Guinea Company. Whether, between the date of his interim report and the outbreak of war Lauer excised or proposed to excise still further reserves from northern and southern Jomba Plain is uncertain, because his papers have not been found; but the letter I have referred to, written from the Madang office of the company to its Rabaul office, suggests that he may have excised or proposed to excise reserves that brought the total up to fifty-seven.

As the natives were not parties to the 1904 agreement and cannot be said to have concurred in the somewhat artificial provision for reserves contained in that agreement, or to have concurred in the excision of such reserves by surveyor Lauer, I cannot accede to Mr Archer’s suggestion that the 1904 agreement be adopted in effect as the sole basis of my determination of the questions raised in the present references. While not ignoring what was done because of that agreement, I must, in arriving at a determination in accordance with the principles referred to in under s. 27c of the Lands Registration Ordinance, bear in mind numerous other factors that have been mentioned in this judgment.

I may add that in regard to certain portions of the lands under reference (to which portions I shall presently more particularly refer) I am of the opinion that the powers given to the court s. 27e of the Lands Registration Ordinance should be exercised.

As I said earlier, the properties of northern and southern Jomba Plain have, in the course of time, been subdivided, and four of the subdivided areas form the respective subject matters of the four references before the court; in those references these areas are respectively described as “Jomba Plain”, “Modilon-Jomba”, “Wagol” and “Wagol reserve”. It is necessary, of course, for me to give, in respect of the four references, separate decisions, and my decisions are as follows:

1. As to the reference relating to land situated at “Jomba Plain” and comprising portions 71, 71a and 72 in the district of Madang

For the reasons given in this judgment, in particular for the reason that none of this land was ever sold by the rightful native owners thereof, I find that the whole of this land is native owned: that is to say:

(a) As to that portion of thid land which lies between the Gum and Gogol Rivers and comprises portion 72 aforesaid: I find that the nativ the s of ein, , Aguin, Aguru, Deiwol, Meltab, Mihilon, Meritab, Yagom,agom, Onur Onuru-Mamu-Mamandarandaru, Omu, Omuru-Dele, Aua-Iaum, Aua-Heb, Aua-Lanu, Taitab, Maim, Naido, Bag, Mahor, Wabar, Gudine, Salalo, Battan, Wasuk, Gagalu, Ssa-Gala, Sso proper, Sso-Helna, Gesup, Gun, Unuina, Nagi, Bahor, Mahoban and Od have free and unrestricted rights to ownership over respective parts thereof which together make up the whole of portion 72 aforesaid, except the piece of land known as Maguin, as to which piece of land I find that the rights of the natives of Bahor tribe above-mentioned to the ownership of that piece of land are subject, and subject only, to the right of the natives of the Bilibili tribe to have access thereto to take clay therefrom. Particulars of the individual pieces of land within portion 72 aforesaid, which were claimed by each of the thirty-six above-mentioned tribes and which I now find they own have already been given in an earlier portion of this judgment.

(b) ;ټ As to t to that poat portion of the Jomba Plain which lies to the north of the Gum River and comprises portions 71a (the so-called “Jabob reserve1;) a in the district of Madang: I find that the nativnatives ofes of the Gesup, Sisiak, and Mahoban tribes have free and unrestricted rights over respective parts thereof which together make up the whole of portions 71a and 71 aforesaid; that is to say: the natives of the Gesup tribe over the pieces of land known as Alal, Banat, Wamali, Wabali and Waseihena: the natives of the Sisiak tribe over the piece of land known as Iawot; and the natives of the Mahoban tribe over the pieces of land known as Gauwan, Unek, Lantibut, Patalan, Belhon, Paridamon, Wagerim, Tutum, Gagahoe, Tutuholo, Palatek, Sekualihan, Bagelaho, Bebehulum, Uri and those parts of Yoamalan, of Balasgo and of Wasalna that lie within portions 71a and 71 aforesaid.

(c) & And I direct that the nate native rights which this Court has found to exist over portions 71a, 71 and 72 aforesaid shall be pred bynecesentri the Register Book and on the certificate of title.

(I

(I may may say hsay here that I understood that Mr Archer’s submission that the court should consider an exercise of its powers under s. 27e of the Lands Registration Ordinance related, inter alia, to the land the subject-matter of the Jomba Plain reference. But I am of the opinion that conditions which must exist before the court may exercise the powers referred to in that section do not obtain in the case of the land the subject of that reference. For the Court, before it may exercise the powers given in s. 27e, in this case, must first be of the opinion that the enforcement of the native rights that have established would cause undue hardship to the custodian. As neither the custodian nor his precedecessor has ever developed this land in any way, whereas nearly forty native tribes have been living on and using the land continuously since pre-German times and have never sold any of it, I cannot see that the recognition and enforcement of the undoubted native rights of ownership cause undue hardship to the custodian. On the other hand, the taking away of portions of this land from the natives and vesting them in the custodian would, in my opinion, cause undue hardship to the natives, for which I can see no justification whatever. In support, presumably, of Mr Archer’s submission, a contract of sale has been put in which shows that the custodian has agreed to sell the land the subject-matter of the Jomba Plain reference to William Percival Allen Lapthorne and Albert Hopkinson. But that does not alter the position. It is difficult to imagine that the custodian did not know what the New Guinea Company certainly well knew—that there were many native claims over this land. Apart from that, the contract of sale in any case expressly incorporates, as conditions of sale, the conditions set out in regs. 46 to 61 of the Treaty of Peace Regulations; and reg. 51b provides that, where native rights which were unascertained at the date of sale are found to exist in relation to land sold or purportedly sold by the custodian, the purchaser shall be entitled to have the amount of the purchase money reduced in accordance with the provisions of those regulations. Certainly the New Guinea Company and the custodian may have incurred heavy expense in regard to survey work done on this land but the natives neither directly nor indirectly invited the surveys and, in all circumstances, have no legal or moral obligation to suffer loss because of them.)

2. As to the reference relating to land situated at “Modilon-Jomba” and comprising portion 37 in the district of Madang

For the reasons hereinbefore given, I have found that different sections, which together comprised the whole, of this land were respectively owned, in 1888, by the natives of the Biliau, Uaribu, Nob, Matulon and Mahoban tribes and that none of that land was validly sold to Kubary on 13th September, 1888.

All of the pieces of land within the Modilon-Jomba area which were owned by the Biliau natives in 1888 and which they have never sold have been planted up by the New Guinea Company with coconut palms which have been bearing for many years. A plantation manager’s house and the usual plantation buildings also stand on this ground. I am of the opinion that the enforcement of the Biliau people’s rights of ownership that I find established over these pieces of land would result in undue hardship to the custodian; that it is possible adequately to recompense those natives for the loss of these rights; and that therefore I should exercise the powers given to the court under s. 27e of the Lands Registration Ordinance.

All of the pieces of land, within the Modilon-Jomba area, which were owned by the Uaribu natives in 1888, which they have never sold, and over which I find they have established their ownership, are now under ficus planted by the New Guinea Company. That ficus is of the less profitable type and a start (and an apparently successful start) has been made on its eradication by the present non-native occupier. For reasons similar to those given in the preceding sub-paragraph, I propose to exercise, in relation to the Uaribu pieces of land, the powers given in s. 27e of the Lands Registration Ordinance.

As to those pieces of land, within the Modilon-Jomba area, which were owned by Nob natives in 1888 and none of which were validly sold to Kubary on 13th September, 1888, all of them now lie within the present Modilon-Jomba Plantation and have been planted up by the New Guinea Company. Since 1888 trade goods have been accepted by Nob natives from the company in circumstances that lead me to conclude that these natives were prepared to let the company have most of the bush sections of Nob land, but not what I may call the beach portions of their land (particularly near Jakundu Point). Bearing in mind s. 27c of the Lands Registration Ordinance, I propose, for reasons similar to those hereinbefore mentioned, to exercise the powers given in s. 27e of that Ordinance in respect of the Nob beach lands except as to the former Nob village site at Jakundu Point (hereinafter more particularly described) which, together with all coconut palms thereon by whomsoever planted, should go back to the Nob natives. Those palms include a number planted by the company, but, on other land absorbed by the company there are numerous palms planted by Nob natives: I think, therefore, the palms may be regarded as “cancelling out”. (I may mention that, in the presence of the parties, I have had marked out the area at Jakundu Point that I consider should go back into the possession of the Nob natives. Whether these natives will be prepared to return there to live, now that they would be surrounded on three sides by Modilon-Jomba Plantation, I do not know. Nor have I inquired because the representatives of the Commissioner of Native Affairs and the custodian, at the commencement of the hearing, stated that they desired the court’s decision in the matters referred to it and that they were against any form of settlement. By the court’s order, the Nob natives will be given the opportunity of returning to their former village site which they left against their will: what they and their official protectors may subsequently decide to do, is their affair.)

As to the pieces of land, within the Modilon-Jomba area, which were owned by Matulon natives in 1888 and which were not validly sold to Kubary in 1888, all of them now lie within Modilon-Jomba Plantation and have been cleared or planted with rubber trees and coconut palms by the New Guinea Company. Since 1888 the Matulon natives have accepted trade goods from the company in circumstances that lead me to the conclusion that these natives were prepared to let the company have their lands except for the piece of land on which they used to live at Moreland Beach at Bidamon Point. Bearing in mind s. 27c of the Lands Registration Ordinance, I find that the Matulon natives now own the Moreland Beach land only, and that it, together with all coconut trees thereon by whomsoever planted, should go back into their possession. These palms include palms planted by the company, but the company absorbed other Matulon land on which there were Matulon-planted palms: and I consider the palms “cancel out”.

As to the pieces of land, within the Modilon-Jomba area, which were owned by Mahoban natives in 1888 and which were not sold by them to Kubary for the company, all of them—except a portion of the piece of land known as Balasgo—have been planted up with ficus trees or coconut palms by the New Guinea Company: the above-mentioned portion of the piece of land known as Balasgo has been partly cleared and put under garden-cultivation by labourers employed by the company’s successors in occupation and there is a clay deposit at its south-eastern corner which is used by Jabob natives. I have come to the conclusion that all of the above-mentioned pieces of Mahoban land, except the above-mentioned portion of Balasgo, were yielded to the company by Gumang, the principal native concerned, for consideration received, and that, bearing in mind s. 27c of the Lands Registration Ordinance, I should not find that native rights now exist over them. As to the above-mentioned portion of Balasgo, however, I find that the Mahoban natives have established their rights to its ownership, but I am of the opinion, for reasons similar to those already expressed in similar cases, that I should exercise the powers given in s. 27e of the Lands Registration Ordinance in regard to all of this portion of Balasgo except its south-eastern corner, which will remain Mahoban-owned land, subject however to the right of the Jabob natives to procure clay therefrom.

The native rights of passage and fishing over the Jomba River and its tributaries must of course remain.

I may remark that when directing in this judgment, pursuant to s. 27e of the Lands Registration Ordinance, that compensation be paid to natives regarding land ordered to be vested in the custodian on payment of such compensation, I shall assess that compensation of the unimproved value of the land, making allowance, however, for the long dispossession of the native owners; with the land so vested in the custodian go the coconuts, etc., growing on the land by whomsoever planted.

My formal finding and order, therefore, as to native rights over the land the subject-matter of the Modilon-Jomba reference are as follows:

(a) I find established the frde and unrestricted rights of ownership of the natives of the Bilian tribe over the pieces of land known as on, Th-DamerimiBaratamulon, Meliaptilian, Dedilawedan, Patasten, Gongatongaten, Yen, Yum-Daum-Damon, mon, SuramSurampain, Tofun, Narches and such part of Kamagamok as lies within the land under reference: but whereas I am of the opinion that the enforcement of those rights may cause undue hardship to the custodian and that it is possible adequately to recompense the said natives of the Biliau tribe for the loss of their rights by a compensation of £35 in cash, I do order, in exercise of the powers given to the court by s. 27e of the Lands Registration Ordinance, that such compensation be constituted for those rights and that, upon such compensation being made to the Commissioner of Native Affairs as representative of the said natives of the Biliau tribe, by the custodian, those rights shall become vested in the custodian.

(b) &#16find established the frhe free and unrestricted rights of ownership of the natives of the Uaribu tribe over the pieces of land known as Kuapau, Urikna and (subjo thet of ativethe Biliau tribe to beach canh canoes ooes on then the east eastern bank of the Jomba River at Kangaten), that part of Kangaten not formerly owned by natives of the Nob tribe: but whereas I am of the opinion that the enforcement of those rights of the natives of the Uaribu tribe (other than their right also to beach canoes on the eastern bank of the Jomba River at Kangaten) may cause undue hardship to the custodian and that it is possible adequately to recompense the said natives of the Uaribu tribe for the loss of those rights (except the right to beach canoes above-mentioned) by a compensation of £24 in cash, I do order, in exercise of the powers given to the court by s. 27e of the Lands Registration Ordinance that such compensation be constituted for those rights of the natives of the Uaribu tribe (other than their above-mentioned right to beach canoes) and that, upon such compensation being made to the Commissioner of Native Affairs as representative of the said natives of the Uaribu tribe, by the custodian, these rights of the natives of the Uaribu tribe, (other than their above-mentioned right to beach canoes) shall become vested in the custodian.

(c) ټ I find that the nate natives of the Nob tribe have free and unrestricted rights of ownership over the portion of the land known as Jakundu which portion of Jakundu may be described (subjeca moruratenition tion on suon survey)rvey) as the “former village-site” and as being bounded as follows:

Commencing at a point on the edge of a low coral cliff at high water mark on the coast at Jakundu Point, at Modilon-Jomba, (which commencing point is 14 metres distant on a bearing of 139° from a coconut palm which is marked with incised broad arrows and from which palm the eastern end of Bilibili Island lies 188° and the western end of Marek and Mareng Island lies 210°), by a straight line bearing 319° from the commencing point for 14 metres to the said coconut palm: thence by a continuation of that line bearing 319° for 178 metres to a stake marked with red paint and set in a cairn of coral boulders; thence by a straight line bearing 232° for 37 metres to a stake marked with red paint and set in a cairn of coral stones; thence by a straight line bearing 141°31´ for 4 metres to a stake painted red and set in a cairn of coral boulders on the edge of the low cliff on the coast at high water mark; thence along the coast at high water mark for approximately 45 metres, on an approximate bearing of 73° and for approximately 96 metres on an approximate bearing of 111° back to the point of commencement.

(d) &&#160ind fstablstablished shed the free and unrestricted rights of ownership of the natives of the Nob tribe over the portions of the lands known as Gamagamasotan, Woiewoielon, Wageban, Bogilon, Sirelon, and the remaining portion of Jakundu (that is that portion lying outside the former Nob village site referred to in the preceding paragraph); but whereas I am of opinion that the enforcement of these rights may cause undue hardship to the custodian and that it is possible adequately to recompense the said natives of the Nob tribe for the loss of those rights by a compensation of £8 in cash, I do order, in exercise of the powers given to the court by s. 27e of the Lands Registration Ordinance, that such compensation be constituted for those rights, and that upon such compensation being made to the Commissioner of Native Affairs as representative of the said natives of the Nob tribe, by the custodian these rights shall become vested in the custodian.

(e) ـ&#1 find find that that the natives of the Matulon tribe have free and unrestricted rights of ownership over portion of the laown aamen, which portion may be described (subject to a more accurate definition on suon survey)rvey) as the “Moreland Beach Site” and as being bounded as follows:

Commencing at a point marked with a stake painted red and set in a cairn of coral bounders at high water mark on the coast at the northern end of Moreland Beach, on the northern side of Bidamen Point, at Modilon-Jomba (from which point of commencement Godewun Point lies 44°, the northern end of Marek or Mareng Island 69°, and the southern end of that island 113°), by a straight line bearing 216° from the point of commencement for 61 metres to a stake painted red and set in a cairn of coral boulders; thence by a straight line bearing 150° for 2 metres to a point on the edge of the low coral cliff on the coast at high water mark; thence along the coast at high water mark for approximately 61 metres on an approximate bearing of 38°, thence for approximately 87 metres on an approximate bearing of 336°, thence for approximately 20 metres on an approximate bearing of 305°, and thence for approximately 50 metres on an approximate bearing of 348° back to the point of commencement.

(f) ټ I find that the nate natives of the Mahoban tribe own a triangular portion of the piece of land known as Balasgo, which triangular portion may be described ect tore ate definition on survey) as the “8220;BalasBalasgo clgo clay deposit” and as being bounded as follows: commencing at the cement peg shown and marked 76 in the survey plan No. M.37 of the Modilon-Jomba Plantation, portion 37, District of Madang—by a straight line bearing 306°40´ from the point of commencement for 224.8 metres to a cement peg shown and marked 77 in the said survey plan; thence by a straight line bearing 98°24´ for 189.83 metres; thence by a straight line bearing 189°01´ for 106.77 metres back to the point of commencement; and that the full rights of ownership of the said natives of the Mahoban tribe over the “Balasgo clay-deposit” are subject only to the right of the natives of the Jabob tribe to have access thereto to take clay from that clay deposit.

(g) ټ&#I find find establstablished the free and unrestricted rights of ownership of the natives of the Mahoban tribe over that further portion of the piece of laown aasgo that is situated within the Modilon-Jomba arba area anea and adjoins the “Balasgo clay deposit”; but whereas I am of the opinion that enforcement of those rights may cause undue hardship to the custodian and that it is possible adequately to recompense the said natives of the Mahoban tribe for the loss of those rights by a compensation of £3 10s. in cash, I do order, in exercise of the powers given to the court under s. 27e of the Lands Registration Ordinance, that such compensation be constituted for those rights and that upon such compensation being being made to the Commissioner of Native Affairs as representative of the said natives of the Mahoban tribe, by the custodian, those rights shall become vested in the custodian.

(h) & I find that the natives oves of the Biliau and Uaribu tribes have the right to use the eastern bank of the Jomba River, in so far as that bank lies within the land known as Kangaten, for the purpose of beaching or landing their canoes but for no other purpose.

(i) & I60;nd fiat the natives oves of Biliau, Uaribu, Matulon and Mahoban tribes have the right to use the Jomba River and its tributaries on the land the subject-matter of the Modilon-Jomba refereor thposesassage and fishinishing.

>

(j) I find that ne othti narige rights than those aforesaid exist over the land the subject-matter of the Modilon-Jomba reference.

(k) &##160;; Subjectbject to thto the orders n madexercf the powers give given undn under s.er s. 27e of the Lands Registration Ordinance, I direct that the native rights which I have found tst ove land comprised ised in thin the Modilon-Jomba reference shall be protected by the necessary entries in the Register Book and on the certificate of title.

3. As to the reference relating to land situated at Wagol and comprising portion 50, in the district of Madang

For the reasons given in this judgment, I have found that different sections of this land, which sections together comprise the whole of it, were respectively owned in 1888 by natives of the Uaribu, Sisiak and Mahoban tribes and that none of them have ever been sold by these natives. The whole of the land is now within Wagol Plantation and planted up: a plantation manager’s residence and plantation buildings, etc., are situated on the land. I consider that this is a case for the application of s. 27e of the Lands Registration Ordinance.

My formal findings, therefore, as to native rights over the land the subject-matter of the Wagol reference are as follows:

(a) I findblstaed she frhe ande and unrestricted rights of ownership of the natives of the Uaribu tribe over the piece of land known ratupnd thor pos of i and Wadu; of the natives of the Sisiak tribe over over the the remairemaining ning portiportions of the pieces of land known as Wambei and Wadu; and of the natives of the Mahoban tribe over that part of the pieces of land known as Wasalna and Balasgo which lie within the scope of the Wagol reference: but whereas I am of opinion that the enforcement of these rights may cause undue hardship to the custodian and that it is possible adequately to recompense the said natives of the Uaribu, Sisiak and Mahoban tribes for the loss of these rights by a compensation in the case of the said natives of the Uaribu tribe of £17 10s. in cash, by a compensation in the case of the said natives of the Sisiak tribe of £7 in cash, and by a compensation in the case of the said natives of the Mahoban tribe of £4 in cash, I do order, in exercise of the powers given to the court under s. 27e of the Lands Registration Ordinance that such cash sums of £17 10s., £7 and £4 in compensation be constituted for these rights, and that, upon such compensation being made to the Commissioner of Native Affairs as representative of the said natives of the Uaribu, Sisiak and Mahoban tribes, by the custodian, these rights shall become vested in the custodian.

(b) ټ I also tind that that the natives of Uaribu, Sisiak, Mahoban, Gesup, Matulon, and Biliau have the right to use the Jomba River and its tributaries on the land the subject-matter of the Wagol reference for the purpose of passage and fishing.

(c) ـ I find find that no other native rights than those aforesaid exist over the land the subject of the Wagol reference.