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Custodian of Expropriated Property v Commissioner of Native Affairs (re Malala) [1932] PGLawRp 2; [1971] PNGLR 590 (22 September 1932)

[1971-72] PNGLR 590

PAPUA NEW GUINEA
[CENTRAL COURT OF THE TERRITORY OF NEW GUINEA]

THE CUSTODIAN OF EXPROPRIATED PROPERTY

V

THE COMMISSIONER OF NATIVE AFFAIRS (RE MALALA)

Madang Rabaul & Malala
Phillips J

15 February 1932
4 April 1932
13 April 1932
15 May 1932
18 May 1932
27 May 1932
30-31 May 1932
1-4 June 1932
6-11 June 1932
13-18 June 1932
20-25 June 1932
4 July 1932
9 September 1932
22 September 1932

REAL PROPERTY - Determination of native rights according to principles of right and good conscience - Weight to be given to native evidence - Lands Registration Ordinance 1924-1931, ss. 24 and 27c[dxxxiv]1.

The Commissioner of Native Affairs referred to the Central Court by way of summons under s. 24 of the Lands Registration Ordinance 1924-1931, the question of possible native rights over land known as Malala situated in the Madang District and comprising an area of about 6,000 hectares. The Custodian of Expropriated Property claimed to be the owner of the land as successor in title to the Neu Guinea Compagnie (the “New Guinea Company”) by virtue of the Expropriation Ordinance 1920-1929. The New Guinea Company purportedly purchased the land from the native owners by two agreements dated 20th October to 1st November, 1901, and 22nd to 28th August, 1902, respectively.

The first purchase agreement was made between the New Guinea Company and approximately 200 native signatories. The agreement reserved from sale five native reserves, existing village areas, coconut groves and gardens, and native reserves to be fixed in the future on the basis of one-and-a-half hectares per head of population. The second purchase agreement made with approximately 350 native vendors for substantially the same area contained the same conditions as the first agreement. The land was occupied by natives at the time of both agreements and was not developed in any way by the New Guinea Company or its successor.

The company applied for registration in the Ground Book. In 1903 the Governor approved the acquisition subject to the fulfilment of certain conditions which included the survey of the land and the excision of native reserves. In 1904, Stuckhardt J. advised the company that he was prepared to register the property subject to compliance with the conditions set out in the Governor’s 1903 certificate. In 1911 an agreement was reached between the government district officer and the company’s manager on the location of some of the native reserves, that the reserves were to include all the villages on the land and were to be on the basis of three hectares per head of population. The land was never surveyed and hence the reserves were not finally determined. The land was not registered in the Ground Book.

Held

(1) &##160; That, iat, in the csrcumesances, the native signatories to the two purchase agreements understood that the agreements related to the sale of land but had no clear idea, and treemeave nar defi definition, of the land being sold to theo the comp company and that being retained by them. The two purchase agreements were regarded by both sides as sales of portions of the lands owned by the native vendors, and the portions remaining to the vendors were to be sufficient for their sustenance and dwellings.

(2) ټ T8e &#pr20;principlnciples of right and good conscience” contained in s. 27c of the Lands Registration Ordinance apply to this case and it woul be iordanth those principles to allow the nativeative vend vendors tors to escape from all obligations under the two purchase agreements simply because those agreements left native areas or reserves to be defined later on. To do so would be to give the surviving native vendors and eventually all natives with whom they come into contact a very false idea of contractual obligation. On the other hand, taking into account all the circumstances, particularly the fact that the New Guinea Company’s representative was the first white man these natives had ever seen and had dealings with, it is in accordance with those principles, and with the general intention of the purchase agreements and the native evidence as a whole, that the native vendors and their descendants should have the right to sufficient land for their livelihood and sustenance.

(3) ҈ Native tive evidence is a ways difficult to weigh, but where it is corroborated directly and indirectly by evidence from other trustworthy souras mu it w the present case, it should be given dven due weight.

(4) &#160  t&#The natives of vari various named tribes should have free and unrestricted rights of ownership over twelve native areas the boundaries of which are describ refe to mand bounds and a sketch plan, subject tect to theo the righ right of the custodian to use and construct certain roads and tracks over that land. The balance of the land described in the two purchase agreements and not covered by the twelve native areas should be free of native rights, apart from the right of the native vendors and their descendants to use certain roads and tracks over that land.

(5) & The Coue Court has no jurisdiction to deal with two triangular pieces of land referred to it by the Commissioner of Native Affairs and not covered by the two purchase agreements because the land was not “, occ, or by or y or for afor any peny person other than a native” under s. 24 of the Lands Registration Ordinance.

Summons

This case was a reference made by the Commissioner of Native Affairs, by summons under s. 24 of the Lands Registration Ordinance 1924-1931 in respect of possible native rights over certain land known as Malala.

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) and Corfe, for the Commissioner of Native Affairs.
Cur. adv. vult.

22 September 1932

PHILLIPS J: O July last, at Rurunat Viat Village in the Malala locality in the Madang District, the representatives of the parties present were orally informed by me of the general nature and effect of the decision the court had come to upon the questions raised in the present reference; and they were then told that decision, with the reasons therefor, would later be recorded in full in a written judgment, which judgment I am now about to read.

The present reference was one made by the Commissioner of Native Affairs, by summons under s. 24 of the Lands Registration Ordinance 1924-1931, of possible native rights over land which is known as Malala and is situated in the Administrative District of Madang on the coast at and in the neighbourhood of Kronprinzhafen and Eitel Friedrichhafen.

The ownership of the greater portion of the land under reference is claimed by the Custodian of Expropriated Property (hereinafter called “the custodian”) as the successor, by virtue of the Expropriation Ordinance 1920-1929, of the New Guinea Company. That company had been given the right, by the Imperial German Government--under an agreement entered into between them on 7th October, 1898, regarding the resumption by the German Empire of the administration of the Colony of German New Guinea--to acquire, in accordance with the legal provisions in force, 50,000 hectares of land in Kaiser Willhelm’s Land by occupation of ownerless land or by purchase from natives. In part exercise of that right, the company, by two agreements dated respectively 20th October to 1st November, 1901, and 22nd to 28th August, 1902, purportedly purchased from the former native owners land comprising the greater portion of the land that is the subject matter of the present reference. For convenience, these two agreements will be hereinafter referred to as the “first purchase agreement” and the “second purchase agreement” respectively. These agreements were filed in the official lands files which were kept by the former German Administration, and which were produced at the hearing. Translations of the agreements and of relevant portions of the files were also produced.

The original summons herein was taken out by Henry Clare Cardew, the Commissioner of Native Affairs (hereinafter called “the commissioner”), on 6th January last and was returnable at Madang on 15th February. It came on for hearing there on that date. The matter appears to have been hurried on, and but the vaguest description of the land was given in the summons, while the commissioner’s affidavit in support of the summons was admittedly inaccurate and incomplete. Thus the land was described in the summons merely as the land known as “Malala situated in the administrative district of Madang in the Territory of New Guinea”--a description quite inadequate to inform anybody interested as to the boundaries and extent of the land to which the summons related, especially as the land had never been surveyed, had never been registered in the land register and no draft certificate of title had been issued in respect of it. I therefore directed that the summons be amended so as to include a proper and sufficient description of the land, and that the summons, as so amended, be re-served; the proceedings were adjourned until 26th April in order that these things might be done. The summons was amended on 18th March and re-served. Some further short adjournments were applied for at Rabaul, the last such application being granted that of the commissioner on 13th April for an adjournment until 15th May at Madang. It may here be mentioned that on that occasion and for the reasons then stated, I requested the commissioner to have inserted in the New Guinea Gazette a notice notifying all whom it might concern of the date and place at which the hearing of the summons (as amended) would take place and giving a full description of the land affected. The commissioner acceded to this request and a notice duly appeared in the Gazette No. 326 on 15th April last; in that notice the description given of the land followed that set out in the amended summons. On 15th May the hearing was resumed at Madang and was subsequently adjourned to the land itself at a date governed by the means of transport available. Malala was not reached until the afternoon of Saturday, 28th May, and proceedings were accordingly resumed on 30th of that month and continued daily (Sundays excepted) until Saturday, 26th June: during that time sixty-nine native witnesses no less than fifty-two of whom had signed (or rather marked) one or other of the purchase agreements, were heard, and the extensive tract of land involved in the reference inspected.

The boundaries of the land under reference, as given in the amended summons, were as follows: “Commencing at a point at high water mark on the shore of the Pacific Ocean, about two kilometres south-easterly from Cape Gordon and about 100 metres north-westerly from the mouth of the Tororomba River and being approximately in latitude 4ø, 25?? S., longitude 145ø, 20?? E. and bounded thence on the west by a straight line bearing magnetic southerly for seven kilometres; on the south-west by a straight line bearing magnetic approximately 115ø for twenty kilometres; on the south-east by a straight line bearing magnetic approximately 21ø for four kilometres; on the north-east by a straight line bearing magnetic approximately 313ø for two kilometres, 500 metres to a point on the left bank of the Zarar River; thence on the east by the said left bank of the Zarar River down stream northerly for approximately 200 metres to its intersection with the shore of Eitel Friedrich Harbour at high water mark; and bounded thence generally on the north-east by the shores at high water mark, of Eitel Friedrich Harbour aforesaid, the Pacific Ocean, Kronprinz Harbour, Janzen Harbour, Franklin Bay, and again the Pacific Ocean bearing generally north-westerly for a total distance of approximately twenty-six kilometres, containing approximately 6,000 hectares.”

Two difficulties arise in connection with the description in the amended summons of the land under reference. One is that the description in that summons includes land that was not included in the purchase agreements. The other difficulty is that the description in the summons does not entirely fit the facts on the ground--at any rate, present-day facts.

[His Honour then went on to deal with the two questions and referred in some detail to the descriptions of the lands and to a sketch plan. In the course of dealing with these questions he dealt with two irregular pieces of land--included in the land under reference, as described in (the) summons although not part of the land described as purchased in either of the New Guinea Company’s purchase agreements thus. “In as much as no evidence whatever has been given to show that those two triangular pieces of land were ‘owned, occupied, or used, by or for any person other than a native’ they were not, in my opinion, rightly included in a summons taken out by the commissioner under s. 24 of the Lands Registration Ordinance, nor has the court jurisdiction in regard to them in these proceedings.” His Honour then dealt with the second question and continued:]

To turn now to the question of possible native rights and claims. The particulars of native claims given in Mr Cardew’s affidavit of 6th January, 1932, were amended in a later affidavit of Harold Hillis Page, Acting Commissioner of Native Affairs, of 18th March, from para. 5 of which it appeared that the natives communities of Simbini, Temaket, Sakover (Sakova), Moro, Rururnat, Meriman, Sapaia, Sekaten, Medibut, Gurru, Toto, Sikor, Uligan, Koze, Malus, Rarip, Mewok, Kuminaka (Kumilaka), Aringashor (Aringkasoa), Gemut, Munuamot, Kuwuk, Dalman, Tuwir, Urir, Seramun, Moaka, Alla (the former Awutumak), Gawa (the former Amitem), Kumatapen (Kumatapang), Susura (the former Enina and Parena), Wakorana and Suraten claimed various portions of the land under reference that together made up the whole of it on the grounds that the land was “not sold by them or by their forebears in so much as although their signatures and/or the signatures of their forebears may appear on the purchase agreements . . . they were not aware of the nature of the said agreements”.

It must therefore be considered how far such native claims (and, because of s. 26 (2) of the Lands Registration Ordinance, such other native claims as came to light during the hearing) were established by the evidence given at the hearing.

The first purchase agreement was expressed to have been made between the New Guinea Company represented by its surveyor, Van der Laan, and certain natives who executed that agreement, and were described therein as the: “undersigned householders and sons of the village community of ‘Malala, Malzur, Zokovar, Moro, Barara, Kulila, Zezarokoa, Moromia, Wakoleng, Birak, Temakot, Zimbini, Zovosap, Ipurma and Zuraten’; and to have been concluded with the assistance of and in the presence of station assistant Kilbe at a ‘tent encampment’ at the mouth of the River Numuru during the period from 20th October, 1901, to 1st November, 1901, ‘after corresponding negotiations had previously taken place at the said villages’.” It should be explained that since the date of that agreement and because of the white policy of encouraging the consolidation of scattered villages into larger ones, the people of Malzur and Birak have gone to live at Malala; Moro includes Barara, Kulila (more correctly Kulila’s place) Zozarokoa, Moromia and Wakoleng; while Zokovar (Sokovo), Tembokat, Zimbini, Zovozap, Ipurma and Suraten remain much where they were. All these villages are situated on the land under reference, except Sovosap (which is just to the north of the Tororomba River) and Ipurma and Suraten (which lie outside the western boundary of the referred land). According to the native evidence, Van der Laan was the first white man ever seen at close quarters in these parts, and came there in a schooner which came from the north and anchored off the south of the Numuru River (in Kronprinzhafen). Here he got into touch with the natives Makiv (of Bokova Village, situated on the coast just north of the Numuru River); Sabub, of Malala, and his sons Sine and Kumeap (who is now Luluai of Malala); and a native called Kauke who was living at the time at Malala though he really belonged to Dagoi, Potsdamhafen-way. “Kauke” (“Chatterer”) is referred to in the first purchase agreement as the interpreter; and it is stated in the agreement that he and Van der Laan knew the Potsdam Harbour language and that the Dagoi and Malala languages were the same. (It was not stated in the agreement, however, that the Malala language differed from that used at Moro, or that both of those languages differed from that spoken around Eitel Friedrich Harbour, as was the fact.) Van der Laan told Makiv, Sabub and the others of his desire to purchase land and displayed trade goods he was prepared to give in exchange. On natives quite unaccustomed to these things, the trade goods made a great impression, especially the “iron” articles, such as axes, tomahawks, knives and plane irons, which had immediately manifest advantages over similar implements of stone, bamboo, etc. And though their value may seem trifling to Europeans, they were greatly valued at that time by natives--who, as some witnesses put it, wanted them “too much”. Makiv was the first to offer land for trade. Though withholding land on the western side of the Numuru River (where his village was) he offered to sell land on the eastern side of the river, on which it was that Van der Laan pitched his camp and later planted fifty coconut palms as a “visible practical proof” (according to the agreement) that he had taken possession; those coconuts are still there, and were pointed out to the court by the natives. Sokova Village was included by Van der Laan in “reserve III” mentioned in the first agreement. According to native evidence, Van der Laan made three trips only of inspection from his camp at Numuru River before the first agreement was signed--one along the coast as far as Moro Village (not going inland), another along the coast as far as Simbini and the Tororomba River (again not going inland), and a third trip inland as far as Suraten Village, and back. Later, and before the second agreement was signed, Van der Laan made two further inspections--one on a walk through the villages at Eitel Friedrichhafen and in the hills on the eastern side of that harbour; the other a round trip from Ulingan along the coast via the villages of Toto, Gurru, Medebur, Sapara, Meriman, Angoa, Nurunar, and Moro to the Numuru River and thence inland to Wakorama, Enina (now called Susura), Kamatapang, Amiten and then via Awamuka (as the former Aooa settlement was called) and the former village-site of Sokaten back to Ulingan. The native testimony as to these walks of Van der Laan’s was that of natives who had either accompanied him or met him on those tours, and it was detailed and clear; details such as Van der Laan’s request for coconuts to drink at this place, his setting up of a compass at such and such a place, his climbing a tree at Sokaten so that he could better use his binoculars, his arrival at Ulingan in the dark and firing shots to attract the attention of people on board his vessel, and so on, rang true. What is more convincing, however, is that the native evidence as to these journeys was corroborated by the tracks marked in the plans in the German land files, the only tracks shown in those files being the very tracks that the natives have testified Van der Laan followed. Further, Van der Laan’s own rough sketch, in exhibit K with its original markings and the obviously later corrections, alterations, additions and amendments, goes to support the native story of his three earlier and two later inspections. On the inspections made by Van der Laan prior to the execution of the first agreement, he was accompanied by the natives Makiv, Babub (and Sabub’s son, Kumsap), and Kauke, who told him the names of the places visited or seen, helped him to make contact with the natives, explained to those natives what he wanted, and apparently urged them to follow Makiv’s example and so acquire desirable chattels. Thus, on the trip along the coast from Numuru River to Tororomba River, Van der Laan, through his native assistants, explained to the natives of villages en route--Malala, Tenokot, and Simbini--that he wished to buy some of their land and, if they would agree and come to his camp on the morrow he would give them much to be desired trade goods; he also asked them to bring with them seed coconuts and native fruits and food, promising payment for these. On this trip, native witnesses stated, Van der Laan planted sticks near the Tororomba River and marked a Kalophyllum tree near Iwunam Point and another on the coast of Kadi opposite the south of Bulebul Islet; the former tree was pointed out to the court as now standing a little way in from the coast because of accretion at that spot, while what was said to be the fallen trunk of the tree at Kadi was also pointed out. These trees would appear to be points D and E referred to in the first purchase agreement as marking out the coast between reserves I and II described therein. Some of the native witnesses said they understood that Van der Laan was not purchasing the land north of the marked tree near Iwunam Point but wanted to buy the land south of it as far as Kadi, while others said they thought it was the other way about. On the occasion of his visit to Moro Village (which lies easterly along the coast from Numuru River), Van der Laan inspected the place and wrote down the names called over to him by Sabub and Kauke of the different sections of the village: here, too, through them, he announced his wish to buy land in exchange for trade goods, also to buy coconuts, fruit and foods, and he invited Moro natives to come next day to Numuru and receive such trade. The native witnesses affirmed that Van der Laan did not leave the coast or penetrate inland on that occasion, and said he did not indicate what particular land he wished to acquire or mark trees there; in this connexion it may be noted that though two coastal points are mentioned in the first agreement as being boundary marks of the reserve IV, no mention is made of their having been marked on the ground by Van der Laan. As to Van der Laan’s third journey from Numuru to the inland hill villages of Ipurma and Suraten, the evidence of native witnesses who were present show that his arrival there caused a certain panic which was partly allayed by the assurances of his native companions that there was no cause for alarm. Here again the natives seen were invited to come down to Numuru and to receive trade but it is doubtful whether the interpreters told them why at that time. The Suraten witness, Par, said they did not, and the witness, Alias, stated that the interpreter told him why but warned him not to tell the older men in case they would then refrain from coming. Leaving Suraton, Van der Laan next, according to the native witnesses, went to a place not far away called Namimuta by the witness Par, from which he could overlook the coast below. (Namimuta is a spring almost on but a few paces to the west of the western boundary of the land under reference.) At this spot Van der Laan took compass bearings and asked the names of the places he could see, which apparently included places from the Tororomba River as far as Ulingan; he noted down the replies. He put up a stick at Namimuta, and from the evidence of Alias, it would appear that he tried to explain, in signs, that he wished to acquire land up to that point; also that, on the return journey to the coast, he noticed the Suraten sacsac area at Davuabe. It may be noted, here, that the positions of Ipurma and Suraten, shown in Van der Laan’s rough sketch in the file produced by the custodian, exhibit E and in the Marguardt sketch plan already referred to as lying outside the New Guinea Company’s alleged purchase, are correct; the Kerber copy plan which I have mentioned, shows them well inside the boundaries of the land purportedly purchased by the company, which is quite incorrect.

As a result of these three walks of Van der Laan’s, scores of natives came to his camp at Numuru River, bringing coconuts, native fruits and foods, and there they executed the first agreement by touching the pen held by Van der Laan and received trade goods of various descriptions--axes, knives, laplaps, plane irons, etc. The names of approximately 200 natives grouped under the names of the villages mentioned as vendors in the body of the first purchase agreement, appear as marksmen--signatories at the end of that agreement. All but three, I think, of that large number were identified at the hearing by native witnesses as having executed the agreement and having received trade. A score of those signatories gave evidence at the hearing and others were alive and could have been called. The execution of the document and receipt of trade by the native signatories was not denied. But from the affidavit of the acting commissioner of native affairs, it would appear that he had been informed that though the execution of the document was admitted, it was denied that the native signatories understood the nature of the transaction; in other words, it was denied that they knew the document was one regarding the sale of land belonging to them. At the hearing, the first two or three witnesses maintained that they thought the trade received was merely for the coconuts and native foods brought by them from Numuru. But the evidence of these witnesses was self-contradicting and not convincing--for instance, Kumsap had first denied having marked a document, but later admitted having done so-- and moreover, the evidence of those early witnesses was contradicted by that of fifty or more witnesses who followed them. The evidence of later native witnesses showed that Kauke and Sabub acted as interpreters at Numuru and explained that the marking of the paper and the giving of trade were not for nothing, but were for the sale of ground, also that a separate distribution of minor trade articles, such as tobacco, matches, beads and jews’ harps, was made in payment for the coconuts and foods brought. On the whole of the native evidence, I am satisfied that the native signatories to the first agreement understood that it related to the purchase of land. (It was said by some witnesses that a very few of the signatories did not understand this at the exact time of signing and receiving trade, but that even those few signatories learned it immediately afterwards, while Van der Laan was still at Numuru, and were satisfied and made no protest whatsoever to Van der Laan.)

But while I consider the native signatories to the first purchase agreement understood that it related to the purchase of land, I have come to the conclusion not only on the native evidence, but on the text of the agreement itself, that those natives had, and could have had, no clear idea as to what land was being bought by Van der Laan and what land was being retained by themselves. Natives had seen Van der Laan put up sticks at the Tororomba River and at Manimuta near the western boundary; they had seen him mark trees at Iwunam Point and at Kadi. But there was no evidence whatever to show that Van der Laan ever marked the south-western corner of the large area he wished to purchase, or the back boundaries of the Simbini and Sokova “reserves” for instance, or points L and M or at that time points N, O and P, the boundary marks of reserves IV and V--except to mark them upon paper. Even had the natives been quite clear as to the coastal frontages of the five reserves, how could they, in such circumstances, have known how far such reserves were to extend inland? Native witnesses spoke of various spots of land as having, they thought, been bought by Van der Laan, but their evidence was not always unanimous, and the extent of the plots to which they were referring was not always clearly defined. As the length of the western boundary and the position of the back or southern boundary of the land Van der Laan wished to purchase, it is difficult to see how the natives could possibly have known these things, not only because these boundaries were not marked out on the ground in any way, but also because Van der Laan himself would seem to have had some difficulty about fixing the length and position of these boundaries. From the documentary evidence before me, it appears that he wished to acquire 6,000 hectares for his company in this locality and to base that area on a coastal frontage extending from by the Tororomba River to a point on the south side of Eitel Friedrichhafen: His attempts to calculate the depth necessary for this are preserved in his rough plan in exhibit K--one of them made the western boundary nine kilometres in length, another (the one finally adopted) seven. If the purchase agreement is examined, it will be seen that the native signatories were stated to be selling the land described in the agreement “as far as it (was) their property”. The native signatories to the first agreement, however, owned between them only about a quarter of the land described as purchased in that agreement. That Van der Laan was not unaware of this is evident, because he noted in the agreement, that the Raunat group of villages, Toto, Medebut, and other villages near them and also “the numerous places and settlements . . . situated further in the Territory acquired and not mentioned in this agreement would have to be negotiated with separately and have special documents prepared for them. That reference explains why a second purchase agreement was necessary. For yet another reason, the understanding of the native vendors as to the land they were eventually to remain possessed of must have been vague. I have spoken of certain reserves, five of them, that were mentioned in the first purchase agreement. But these were not the only lands that Van der Laan intended the native vendors to remain in possession of, for it was expressly stated in the first agreement that “the villages with the coconut palms and houses standing thereon, and the vegetation growing on the plantations now extant, shall remain the property of the vendors as well as a reserve of one and a half hectares per head of the population which shall, if possible, comprise the sago swamps. In as far as the reserves are not settled by portions I to V more exactly described as under, they are to be fixed locally when the land purchased is actually cultivated or opened up.” In explaining these sentences in the agreement to the natives, Van der Laan would have had no great difficulty in respect of the references to village areas and groves, existing “plantations” (i.e. groves, gardens, etc.), and sacsac swamps the boundaries of all of which would be fairly definite and known to the natives. But the reference to reservation, in the future, of areas of a hectare and a half per head must have been very difficult to explain to natives who had had no prior contact with white people. At the hearing, not one witness could be found who had even the remotest idea of the meaning of the word “hectare”, much less the amount of ground a hectare would comprise. I think, therefore, that it may be assumed that the most Van der Laan could have done was to have explained in some general way, the proposal to reserve at a future date additional areas at a hectare and a half per head. This assumption was supported by the evidence of native witnesses. Many of the witnesses spoke of Van der Laan’s having said, through his interpreters, that he wished to buy “half ground” of theirs--that is, portion or some of the land owned by them: I can remember no native witnesses saying that the acquisition of the whole of the land of any native community was suggested by Van der Laan. One witness, a native of the coastal village, stated that Van der Laan said that he did not wish to buy the village site or land close to the village, but wanted to buy the hinterland, the “ground behind” the village: also that he would not take native sacsac areas. Another native coastal dweller gave evidence that Van der Laan said he did not wish to acquire land in that witness’ village but wanted the uncultivated part “behind” that village--“half bush behind” also that Van der Laan said it was not his wish to drive natives away from the villages in which they were then living. The natives concerned evidently did not anticipate being forced directly or indirectly from their villages because they had gone on living therein as usual to this day; and though the customary moving of village sites has occurred, there was no evidence of any abnormal or unusual village migration. The native evidence, and the exclusion from the purchase of the five areas described as reserves I to V in the first purchase agreement, and the expressed provision in that agreement for the reservation of existing village areas, groves and gardens and for the future reservation of areas which were to include as far as possible native sac sac areas and be on the basis of a hectare and a half a head, strongly suggest that it was Van der Laan’s intention that the native vendors should have a sufficiency of land and that his estimate of such a sufficiency was a hectare and a half a head in addition to existing village areas, groves and gardens. As neither the New Guinea Company nor its successors have ever “actually cultivated or opened up” the land purportedly purchased, the proposed reserve of a hectare and a half per head has never been marked out. It may also be noted that nothing was said in the first purchase agreement as to approximately where, or by whom, such proposed reserves were to be fixed.

As has been mentioned, the natives who signed the first purchase agreement owned only a portion (about a quarter) of the land described therein, and, as was recited in that agreement, negotiations had yet to be entered into with other natives for the sale of the balance of the land. Nevertheless, after the first purchase agreement had been concluded and about six months before the second purchase agreement was made, Mr Loag, the local representative of the New Guinea Company was audacious enough to appear before Stuckhardt J. (the District Ground Book Judge at Friedrich Wilhelmshafen) and apply for the registration of the company in the Ground Book as owner of the land described in the first purchase agreement. Discussions regarding the survey of the company’s acquisitions, etc. were going on at that time, however, and that application got no further.

The second purchase agreement was expressed to have been concluded at Kabinazia, at Prinz Eitel Friedrichhafen during the period 22nd to 28th August, 1902, between the New Guinea Company, represented by surveyor Van der Laan, and the representatives of the village communities of Auranat (Ziwami, Barara, Elazuru, Mamborap, Agoa); Meriman; Zapara and Kargeo; Medebur; Gurru; Toto; Boletita-Apukum-Ulingan; Nabinazia; Mumumot-Manbule-Dalman; Zekaton; Koze; Malus; Arinkasohoa; Kuwuk; Urir; Wakorama; Parena; Enina; Kumatapang; Amiten and Awutumak. All of these villages or their former sites were indentified at the hearing and inspection--though changes have occurred with the passage of time. Thus the Urunat or Rurunat group of villages are now represented by Rurunat, Angoa, and a couple of huts at Mamborap between Angoa and Rurunat; Sapara and Karego have merged on a new site to which the Sapara people moved after a tidal wave had demolished their settlement on either side of the mouth of the Kolomin River in December 1930; Meriman, Medebul, Burru and Toto are much as they were; the hyphenated group Boletita-Apukum-Ulingan is now Ulingan; Kabinazia is now called Sikor and has an offshoot (since the tidal wave) at Banamur a short distance inland; of the hyphenated group Munamot-Manbule-Dalman, Munamot is still occupied but the others have been vacated at the present time for new sites, e.g. Kawalamut nearby; the former site Zokaten (Sokaten) has no houses on it now but the Sokaten people have places at a place called Iavso nearby while some of them have gone to live at Sapara on the coast; Koze, Malus (now sub-divided), Aringasohoa (Aringkasoa) and Wakorama are much as they were. The Kuwak and Urir natives (the former of whom lived outside the eastern boundary in 1902) have in the main gone to live at Mewok further east; Awutumak is now represented by Aloa (though some of the Aloa people have made a new hamlet nearer the coast within the last twelve months) and lastly, as to Parena, Enina, Kumatapang and Amiten, situated outside the back boundary in Van der Laan’s time, Parena and Enina are now called Susure, the former Amiten site has been vacated for elsewhere, and Kumatapang is still known by that name.

The land described as purchased in the second purchase agreement was the same as the land described in the first purchase agreement except that the eastern boundary is modified in the way I have hereintofore mentioned. In the second agreement, the natives who signed it were stated to be selling to the New Guinea Company the land specified in the first agreement. As they did not own the whole of that land--some of it was obviously owned by the natives who had signed the first agreement--this statement was somewhat inaccurate. Doubtless the intention was that the second agreement was to be one complementary to the first. Included in the land described as purchased would appear to have been portions of land called by the natives “ground of the Gawa, Moaka, Seramun, Rarip and Kumilaka peoples”. None of these five places was mentioned in the second agreement and there is no evidence of Van der Laan’s having ever visited them. Gawa witnesses stated at the hearing that the Gawa people had not been party to the agreement; but these witnesses were all young men having no direct knowledge of the circumstances of 1902, and it appeared that Gawa was a later offshoot of Amiten, the cradle of Gawa, Awumuka or Alla, and Kumatapang, and that Amiten had signed the agreement. As to Moaka, there was evidence that the chief and other Moaka men had accompanied the men of Sokaten to Kabinazia and taken part, with them, in the purchase negotiations. Kumilaka witnesses admitted that their people had taken part in the transaction. As to the Seramun and Rarip people, there was no conclusive evidence of their participation in the agreement; in any case the Seramun and Rarip land included in the described boundaries of the land purchased would at most have been very little.

According to the native evidence, corroborated by plans in the German files to which I have already referred, Van der Laan, before the second agreement was signed made a visit of inspection to Mambulo Hill--on the eastern side of Eitel Friedrichhafen-- and to the villages of Ulingan, Kabinazia, Kose, Mulua, Damoan, Aringkasoa, Munumot and Urir, which were situated on the shores of that harbour or in the hills nearby to the south-eastward. On that visit, his procedure was much the same as that he had adopted on his tours at the north-western end of the land when negotiating the purchase agreement. Through his interpreters--(Sabub--the one named in the second agreement--but Kauke was also assisting, the native witnesses stated)--he told the natives he wished to buy land for trade goods and invited them to come to Kabinazia and conclude a purchase. He also made a trip from Eitel Friedrichhafen north-westerly along the coast as far as Numuru River (stopping at the coastal villages en route) and then went inland as far as Wakorama, Parena, Enina, Amiten and Kumatapang, returning overland to Ulingan via Awutumak and Sokaten. On that trip he was accompanied by the interpreters I have mentioned; and Kalo and Genin, natives of Toto, who are still living and gave evidence at the hearing, went with him too. They said that at the coastal villages Van der Laan offered to buy land and invited the natives there to come to Kabinazia on the morrow and negotiate and get trade. At Wakorama, they said, he did the same, and also marked a tree there, saying that he wished to purchase their land to the seaward side of that tree. Karon of Wakorama who was present at the time, and who testified as the hearing, confirmed this; he also pointed out the tree, which is very conspicuous and can be seen for miles, to the court. At the Susure villages of Parena and Enina, Van der Laan (Kalo and Genim stated), laid trade goods and offered more if the natives would come down to Kabinazia next day and sell him some ground. The same thing happened at Kumatapang. When the party arrived at Amiten, only one old man happened to be there, and he refused to come out of his house; while at Wamira, (and Awutumak place), only women were present, (they said) at the time of Van der Laan’s visit; his object, however, was explained and samples of trade goods were laid out there and left for the men of the place to see on their return. At Alla (or Nauman as the witnesses described it) Van der Laan also invited natives to sell land and distributed trade goods of minor value. When the party reached Sokaten, Kalo and Genim stated (and their evidence was corroborated by others) Van der Laan climbed a tree and made observations therefrom with the aid of glasses and finding that he was not far from home, decided to lunch. At Sokaten also he repeated his invitation to come to the coast and get trade for land, and asked the chief there to inform neighbouring villages of it. Eitel Friedrichhafen was reached after dusk and Van der Laan had to signal with his musket to be brought off to his vessel.

Next day crowds of natives, some hundreds, streamed into Kabinazia, where the second agreement was signed and trade goods distributed--the natives Sabud and Kauke again assisting Van der Laan in interpreting. Some 350 names appear at the end of the second purchase agreement as names of the native vendors, the signatures being by marks and that total excludes groups of lads and boys who were mentioned in the agreement as having been present, and who apparently were given small presents of trade goods, such as beads, etc. The 350 odd personal names I have mentioned were grouped in the agreement under village names, the idea being apparently, to group them under the names of the villages to which the owners of those personal names belonged; that this was not wholly successful is not surprising for the scene must have been one of some confusion. A number of the natives who had marked the second purchase agreement gave evidence at the hearing and were questioned with a view to identifying the names of all the native signatories to that agreement. Though these witnesses were able to do this in regard to almost every name that appeared under the headings of the coastal villages mentioned in the agreement (with the exception of Urir), they were quite unable to do so in respect of the great majority of names listed under “Urir” and under the names of the villages situated inland and in the hills. The reason for this was that most of the names listed under the headings of the last-mentioned villages were fictitious, such as “dirty-face”, “mud”, “shark”, “crocodile skin” not to mention many others that were extremely pornographic and unprintable. According to native witnesses, Sabub and Kauke invented those names on the spur of the moment, partly because they did not trouble to master unfamiliar hill names and partly because they were disturbed at the number of natives who had come to get trade from Van der Laan; there was evidence that some natives (possibly a good number) were “paid” more than once that day, that others who had been “paid” when the first agreement was signed were seizing the opportunity of mingling with the crowd and getting paid again, and even that native visitors from distant villages lined with their hosts and received trade. In this way villages that were then, and are still, mere hamlets doubled their adult male population for the day. Ten months had passed since the first agreement had been signed and trade first distributed by Van der Laan, and talk concerning the quality of these trade goods, especially the “iron” ones, would undoubtedly have spread throughout the district, and doubtless led the “unsophisticated” natives to think that a second distribution was too good a chance to miss. How far Sabub and Kauke were aware of what was going on, it is impossible to know. It looks as if they may have suspected or known it, and, torn between two loyalties, refrained for some time at least from exposing the deception while deriving some satisfaction from calling the natives who paraded for “pay” as insulting names as they could think of. Towards the latter part of the proceedings Van der Laan awoke to the position and he made the following note in the agreement--“After the purchase price had been paid to each of the male natives of the villages enumerated above, the purchase price had to be paid collectively to all those interested who assembled, in regard to the villages specified as follows: Wakorma, Parena, Enina, Kumatapang, Amiten and Awutumak--because it has been found that in frequent cases the vendors have surreptitiously introduced a large number of residents of other villages in order to secure more trade, and it is impossible owing to the great number of villages concerned to determine the identity of those who are ‘interested’.”

For these reasons now it is impossible to identify all of the native signatories to the second agreement. I am satisfied however, on the native evidence, that it was understood by the natives who were genuinely interested and who were present that day at Kabinazia, that the document they signed was one for the purchase of land. But in the case of this agreement, as in that of the first purchase agreement, I do not see how the native signatories could have clearly known what land was being purchased by Van der Laan and what land was being retained by themselves. In the first place, though the second purchase agreement modified the eastern boundary of the property the New Guinea Company was purportedly purchasing, Van der Laan, beyond putting up a stake at the mouth of the Sara River, did nothing to mark out the modified boundary on the ground. If he told the natives it was to run for 200 metres up the Sara River, thence south-east for two and a half kilometres, etc., that would have conveyed nothing to the natives then, nor would it today. None of the native witnesses questioned at the hearing could say what a “kilometre” was.

Again, it was expressly provided in the second purchase agreement that the rights and obligations of both purchaser and vendors were to be the same in that agreement as in the first purchase agreement. This has the effect of incorporating in the second agreement the clauses in the first agreement relating to the five specified reserves, to the reservation of existing village areas, groves and gardens of the vendors, and also to the proposed future excision of further reserves of a hectare and a half per head including sac sac areas as far as possible. As I remarked when discussing these clauses in the case of the first agreement it would not have been very difficult for Van der Laan to make the natives understand that their existing village sites, groves and gardens would be excluded from the purchase; and there is native evidence that this was explained at Kabinazia when the second agreement was being concluded. Natives of Toto, when giving evidence, also said, that when Van der Laan visited Toto just before the second agreement was signed, he was about to mark a spot at Dila about 100 metres south of Toto Village on the western shore of Eitel Friedrichhafen as the boundary mark between the land he wished to purchase and the land the natives would retain (evidently point P of reserve V referred to in the first agreement), but that he was asked by Toto natives to mark it further to the south; this he agreed to do, they said, and did so by putting a stake at a place called Liangang. But there is no mention in the second agreement of any change in the position of point P mentioned in the first agreement. There was native evidence also that Van der Laan said that the land at the head of Eitel Friedrichhafen between Likor Creek and Apukum would not be included in the purchase and that he put posts at those two points; that evidence is supported by markings on Van der Laan’s rough plan in exhibit K and in the Marguardt sketch plan which suggest that Van der Laan may have intended to mark out a reserve here, possibly a reserve VI; but nothing was expressly said in the second agreement itself regarding this area. There was no evidence of any attempt by Van der Laan to mark out on the ground reserves for the hill or inland villages mentioned in the second agreement. As to the proposed future reserves of a hectare and a half per head, these, as I already have observed, could at best only be explained to the natives in a general way. There was native evidence that Van der Laan assured natives at Kabinazia that it was not his wish that the purchase concluded there would cause them to move away from the villages they were then living in; and since the date of that agreement there has been no unusual village movement. As to what land the native vendors considered they had sold to Van der Laan, there was evidence that the natives of some of the villages discussed this and came to a decision between the time Van der Laan visited their places and the time the agreement was executed--e.g. that the men of Rurunat and Meriman met and decided to sell the piece of land known as Siresir; and that the Toto, Gurru and Medbut men met and decided to sell the pieces of land known as Rara and Melato but to what extent these decisions were made clear to Van der Laan is not certain. Native witnesses from the coastal villages at the head of Eitel Friedrichhafen and the hill villages in the south-east of that harbour spoke of the “Mambule-half”, that is the land in the vicinity of Mambule Hill, as having been sold but it is not clear whether this had been decided upon before the second agreement was signed or in the course of village discussion after Van der Laan’s departure. One witness said the land “behind” those coastal villages had been bought. Two witnesses said the influential coastal chiefs at Eitel Friedrichhafen told the neighbouring hill men that they had decided to sell some ground to Van der Laan that they wanted the hill men to come and share in the distribution of trade goods so that the hill men would not complain should the coastal people find themselves short of garden land later on and wish to garden on the land of the hill tribes; but as these two witnesses were comparatively young men and were the last two native witnesses called, and as none of the older native witnesses had mentioned this, I do not think much reliance may be placed upon this statement.

A month after the second purchase agreement had been signed, the New Guinea Company renewed its application for registration in the Ground Book as owner of the property of Malala; but as this property was only one of a number of properties that the company was acquiring in pursuance of its agreement of 7th October, 1898, with the German Empire, and on the question of what had to be done by the company in the way of surveys, etc. before these properties would be registered was still being threshed out, the company’s application for the registration of the Malala land hung fire.

On 15th May, 1903, the Governor certified that certain specified properties (one of them Malala) which had been acquired by the company in purported exercise of its rights under the agreement of 7th October, 1898, might be registered subject to certain conditions, the fulfilment of which was to be ensured by appropriate endorsements in the Ground Book. One of these conditions was, that the boundaries of the properties were to be surveyed; another was that the dwelling places and gardens of the native vendors, as existing at the time of survey, were to remain their free property and that at least one hectare per head, irrespective of age and sex, was to be left to the natives, who were also to retain their fishing rights. The company, however, was reluctant to incur the expense of survey at that stage and made representations which prolonged the discussions.

On 25th June, 1903 Stuckhardt J. reported on the position, at that time, of the New Guinea Company’s purchase and rights given it in the agreement of 7th October, 1898, and referred in his report to the result of an inspection of the Malala property that had taken place on 12th and 13th of that month. He wrote:

“The natives of the villages on the shore of Eitel Friedrich-harbour have expressly declared that they have not transferred their villages but only the land behind them. These villages, also the villages on the east side of the harbour above mentioned situated on the hill, are the pieces of land still owned by the natives which are to be demarcated, except those indicated in the sketch in respect of the other villages situated in the Territory acquired” (i.e. reserves I to V). “The interpreter referred to as ‘Chatterer’ is unreliable. He endeavoured to induce the people to say ‘Yes’ to everything. . . .”

It will be noted that the recorded results of the inspection corroborate in a number of points the evidence of the hearing.

In June 1904, the Colonial Department of the Foreign Office at Berlin advised the Governor that it had, subject to the conditions set down in a memorandum forwarded, approved the registration of certain properties (including Malala) acquired by the New Guinea Company in exercise of its rights under the 1898 agreement, notwithstanding that the provision of the new Ground Book Ordinance had not been strictly complied with: the conditions in the memorandum, however, included provisions for the demarcation of the boundaries of those properties and the manner of such demarcation. On 30th October, 1904 Stuckhardt J. informed the New Guinea Company by letter that he was prepared to register the Malala property in accordance with the general conditions fixed by the Governor as soon as the points A, D and E had been marked with cairns or cements superimposed on broken bottles; and reserves 1-7 and any others that might be necessary according to the Governor’s certificate of 15th May, 1903, had been exactly surveyed and marked; and lastly plans to a scale of 1 in 5,000 had been submitted. Though the directors of the New Guinea Company advised their local manager that they were prepared to conform to those requirements, they were never carried out.

On 12th and 13th June, 1911, another inspection of the Malala property took place, at which district officer Berghausen, the New Guinea Company’s manager Heine, and government surveyor Lauer were present. A record or memorandum of the inspection was drawn up and it was signed by those three persons on the 18th of that month. In that memorandum it was stated that:

“The inspection of the spot was commenced at Eitel Friedrich Harbour and the following facts were elicited:

1. ـ Tiere r no reserve for thor the villages Olinga (Ulingan) and Sikor which are situated on the southern portion of Eitel Friedrich Harbour. The position of the reserve was supposed toin tht theoximate exte extensionnsion of t of the harbour, and in the east commencing at about 300 metres north-east of the village Sikor (see entry in green in map, q.r.). The minimum area of the reserve will be fixed according to the number of natives at both of the said places, when a survey is made. There is no difficulty about the position of the reserve as the whole of the southern portion of the harbour is choked up with mud, and even boats cannot use it.

2. &ـ T6e rese reserve srve shown as reserve V in the sketch does not include the village Meriman situated somewhat to the west of the boundary of the reserveordinhe boy of the reserve is to be moved to . . . . . 100. 100 metr metres west of the village Meriman (see alteration in green in sketch, point N.).

3. ҈ R60; Reserve IV doe notudnclude the village Angoa situated somewhat to the east of it, hence the boundary of the reserve has been modified as follows: It commenced at the mouth of the River Jagos (or the A (poi in tetch) pch) proceeroceeds upds up the river about 50/100 metres (point m2) and then proceeds in a westerly direction to point 1, which can be placed nearer the village Wakolong.

4. The reserve III is to be extended in the east beyond the River Numuru so that it will include the village Emerara; about 100 metres east of the last house of the vill/p>

5.&ـ҈&#160 The; The rese reserve II i II is I is to coto commence 100 metres south-east of the village Birak (point f) and the boundary will then run as previously to point e which is situated south of the western corner of the island Bulebul.

6. Reserve I. Tht sou berndarundary of the reserve b.c. is to extend to the boundary of the New Guinea Company’s Land AB. As so short a time vas ablilable the villages which are situated in the interior of the land purchased could not be visited. It is therefore generally agreed that when the survey is made all the villages situated on the land purchased by the New Guinea Company shall be granted reserves, the demarcation and boundaries of which are to be left to the surveyor carrying out the survey. The area of these and of all reserves to be demarcated is to be regulated according to the number of the population i.e. three hectares per head of the population. The representative of the New Guinea Company agrees to the terms being imposed in the manner proposed.”

The results of this inspection and the decisions reached were communicated to the directors of the company in Berlin who wrote to their local manager that, while it seemed useless to raise objections to the alterations proposed, they should not omit to point out that as early as 1904 the authorities made a strict inspection of the property and had imposed no further conditions as regards registration than those mentioned by Stuckhardt J. in his letter of 30th October, 1904; the directors concluded their letter with a request that they be informed of the progress of the matter.

And there the matter has rested until these proceedings were begun. The property was never registered in the German Ground Book and it has not yet been surveyed.

It should be mentioned that the conditions on which the authorities of the former Administration were prepared to register the New Guinea Company as owner of the Malala property were matters discussed between that Administration and the company: though some of the conditions would, had they been fulfilled, have affected or benefited the natives, the natives did not participate in the discussions. Similarly, the decisions arrived at, as a result of the inspection of 12th and 13th June, 1911, were agreed upon by the representatives of that Administration and the company; the natives were not parties to the agreement reached. It may be presumed that the district officer on that occasion acted in the interests of the natives, and it is certain that the agreement then reached for the modification of “reserves I to V” and for the future excision of other reserves, would have been generally to the advantage of the natives had it been carried out. But that agreement did not, of itself, give the natives themselves any enforceable rights, in my opinion, since they were not parties to it. According to the memorandum of that inspection of June 1911, it was decided thereat that all of the reserves that were to be demarcated at Malala were to be on the basis of three hectares per head of population, that is, just double the area provided for in the company’s first purchase agreement. In that increase of native area, the company’s representative concurred. But, for the reason already stated, that arrangement, of itself, gave the natives no rights that they might have enforced against the New Guinea Company or its successors, and none that they may rely on in the present proceedings. With relevance to the questions before me for determination, I regard the agreement reached at the 1911 inspection between the district officer and Mr Heine for the demarcation of reserves at three hectares per head rather as evidence of the area they agreed upon as sufficient, in that locality, for the natives concerned. I may mention, however, that in the case of one or two of the native communities concerned, it would appear that they had never owned as much land as three hectares per head of their population.

The problem involved in fixing, on the one hand, the boundaries of the land deemed to have been rightly acquired by the New Guinea Company at Malala, and, on the other hand, the boundaries of the lands which should be retained by native vendors at Malala, were problems, one would have thought, that might best have been resolved by discussions and settlement between the parties concerned. But the parties represented at the hearing intimated to the court that the decision of the court on the question raised in the commissioner’s reference was sought, and that they had no instructions from their principles to agree to any settlement and understood that their principles were opposed to settlement.

In the determination of the question raised in the reference raised, that of possible native rights over land, the principal evidence before the court in this case is that of the two purchase agreements and the evidence of the native witnesses. The purchase agreements, as has been shown, left the final demarcation of the boundaries between the land purchased by the company and the land retained by the native vendors to the future. For this and other sufficient reasons the native evidence was not, and could not have been, as definite as could have been wished. It was not possible, in the circumstances, for native witnesses to define clearly what land had been purchased and what had not. All they could do was to say what land they thought had been bought by Van der Laan and what retained by them. In doing so, they referred to many plots of land by their native place names, very few of which are mentioned either in the company’s purchase agreements or in the plans in the German land files produced at the hearing. Those plots were, however, pointed out on the spot to the court and the parties by the natives, and the relative positions of those pieces of land were shown in the sketch plan prepared and produced by Mr Corfe (exhibit L). That plan also showed the tribal boundaries, the physical features of the land, roads, sac sac areas, etc. and was of great assistance to the court and to the parties at the hearing and the inspections; it was rarely that a place name mentioned by the natives could not be found in that plan. As to some of the plots of ground which native witnesses stated they regarded as having been sold to Van der Laan, there was evidence that their sale had been agreed upon at native meetings and that Van der Laan had been so informed before the execution of the relevant purchase agreement. But as to other plots of ground described by native witnesses as having been paid for by Van der Laan, it was not altogether clear whether these had been set aside for sale by natives before they executed the relevant purchase agreement (and, if they had, whether Van der Laan had been told so), or whether natives had, so to speak, “appropriated them to the contract” after Van der Laan had gone, and it may even be that, in some instances, native witnesses were (not without reason) so confused in their minds as to what land was to be the company’s and what the natives’, that their description of plots of land as land they considered bought was really a suggested compromise.

All the factors of uncertainty that I have mentioned make the determination of the question before the court extremely difficult and the difficulties are increased by the facts that the boundaries of the land purportedly purchased at Malala have never been marked on the ground by the purchaser or its successor, nor has the land ever been surveyed.

On a careful review of the whole of the evidence before me, I have come to the conclusion that the transactions that took place between Van der Laan and the natives in the Malala area during the periods from 20th October to 1st November, 1901, and 22nd to 28th August, 1902, were regarded by both sides as sales of portions of the lands owned by the native vendors, the remaining portions of those lands to remain the property of the vendors and to be sufficient for their sustenance and for their dwellings. By virtue of s. 27c of the Lands Registration Ordinance, this Court, when determining matters referred to it under a reference such as the present one “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”. And in coming to a determination in the present case, I have considered that I should be guided by the principles mentioned in that section. It would not, in my opinion, be in accordance with those principles to allow the native vendors to escape from all obligations under the two purchase agreements simply because those agreements left native areas or reserves to be defined later on; to do so would be to give the surviving native vendors and eventually all natives with whom they have intercourse a very false idea of a contractual obligation. On the other hand, taking into account all the circumstances, particularly the fact that Van der Laan was the first white man these natives had ever seen and had dealings with, I consider that it would be in accordance with the principles of right and good conscience referred to in s. 27c (and, for that matter, with the general intention of the purchase agreements and with the native evidence as a whole) to find that the native vendors and their descendants have the right to sufficient land for their livelihood and sustenance; and I do find accordingly. In defining the areas the court considers the various groups of native vendors or their descendants have the right to retain as their own property, I have endeavoured to apply the principles mentioned in the light of the whole of the evidence put before me. I have examined the native evidence given in this case very closely. Native evidence is always difficult to weigh, but where it is corroborated directly and indirectly by evidence from other trustworthy sources, as much of it has in the present case, it should be given due weight. The parties represented at the hearing have heard that evidence and I do not think it necessary to discuss it exhaustively in this judgment; to do so would mean a virtual recapitulation of that evidence, the notes of which filled a large volume.

As to the areas over which the court finds native rights to exist, some of them work out at a little more than a hectare and half per head, the other somewhat more than that--the reason for the difference being the very diversified character of the ground. The Malala land contains a large percentage of kunai country, the principal bush and forest areas being situated on the fringe of the coast, in gullies and creek-beds and on the banks of rivers, and on the hills along the southern boundary. While it may be the case that the areas of the pieces of land over which the court finds native rights to exist may be less than those the late German Administration appeared to have in view in June 1911, those areas are, in my opinion, warranted by the evidence put before the court and consistent with the determination in accordance with the principles referred to in s. 27c of the Lands Registration Ordinance. It seems improbable that substantially less areas could have been reserved for the natives if the provisions of the two purchase agreements as to reserves I to V mentioned therein, as to the reservation of existing village-sites, groves and gardens, and as to future reserves at a hectare and a half per head, had been faithfully carried out, especially when it is remembered that reserves I to V described in those agreements merely made provision (and then only partial provision) for certain villages, and that there were many other villages situated or interested in the land purportedly purchased.

Secondary points for all the areas over which the court finds natives have rights have been marked out on the spot, pending survey, by means of marked trees, marked posts, marked stakes set in cairns, etc., the marking of such trees, posts and stakes being invariably an incised “broad arrow” or arrows. A rough sketch plan, showing the approximate positions of those marked points and generally of the areas over which the court has found native rights to exist, had been prepared; and, as a description of those areas by references to that plan will make for a clearer understanding of their boundaries, it has been marked and signed by me as an annexure to this judgment and will be referred to hereinafter as the “annexed sketch-plan”. Heliographed copies are available for the parties interested. It must be understood, however, that the descriptions of the boundaries of the areas found to be the subject of native rights that are hereinafter given or are shown in the annexed sketch-plan are necessarily approximate only, since Malala has never been surveyed. Therefore the parties will be at liberty to apply later for such amendments to those boundary descriptions as may, because of the results of survey, be deemed necessary or expedient for the better or clearer definition of the areas the court has found to be the subject of native rights. This liberty to apply does not, of course, make this judgment any the less final.

Before setting out the court’s findings as to native rights, I shall refer to the subject of roads. In the first purchase agreement (and therefore in the second agreement since in that agreement the rights and obligations of the first were by reference included), there was the following clause: “The vendors retain the right of way through the land sold on roads to be specified by the purchaser, while on the other hand the latter shall have the right of way and the right to construct connecting roads in the reserved land.” The first portion of that clause, is as far as it was an attempt by private agreement without official approval to limit the user of existing roads, was illegal and invalid: As Stuckhardt J. pointed out to the local representative of the New Guinea Company it contravened the express provisions of the Ordinance relating to roads and market traffic of 15th May, 1888, contravention of which Ordinance was an offence. The wording of the second portion of that clause was very general and imprecise and could conceivably be construed as having given the purchaser an unlimited right of way over the reserved land and the right to construct over that land connecting roads unlimited as to number and route. But such a construction is not, in my opinion, admissible as it would unduly trench upon the proprietary right retained because of other clauses in the agreement by the native vendors over the reserved land and this would take away, so to speak, with one hand what had been given with the other. A reasonable construction must obtain. The construction of the whole clause as to roads that seems to me applicable here and to be the reasonable one, and one in harmony with the principles which are referred to in s. 27c of the Lands Registration Ordinance is this: that the native vendors and their descendants have the right to use such roads and tracks in the land purchased as were at the time of the sale in regular use (that is, ordinary everyday use); that the native rights of ownership over the lands retained by them are subject to the right of the custodian, as successor of the New Guinea Company, to use roads and tracks of the like description situated within the areas retained by those natives (including roads and tracks that connect the different portions of the land purchased by the New Guinea Company), and the further right of the custodian, where roads and tracks connecting such portions and suitable for normal plantation traffic are lacking, to construct and use necessary connecting roads; and lastly, that the roads and tracks over which the custodian and the natives have such rights of user shall have a width of not less than ten metres. I suggest to the parties that possible future disputes would be avoided if the roads and tracks hereinbefore referred to are surveyed. I shall endeavour in the findings, to mention expressly such and all of the roads and tracks over which, on the construction of the road clause that the court has adopted, the natives should have right of user or suffer the custodian to have rights of user but, if, in survey, other roads and tracks of that nature are discovered, the parties will be a liberty to have the order based on this judgment amended so that they may be included.

For the reasons given in this judgment, the findings of the court as to possible native rights over land included in the commissioner’s reference are as follows: it being understood that, in those findings, the distances mentioned are approximate only and are over the contours of the ground unless stated to be direct distances; that references to distances “along” a road or track mean along the road or track following the deviations thereof: that the roads and tracks referred to are to be not less than ten metres in width; that the bearings given are magnetic and approximate only; and that in my reference to the natives of any particular site, all natives, who, by native custom, are regarded as natives of or belonging to that tribe, and such of their descendants who, by native custom are regarded as being members of or belonging to that tribe, are intended to be included.

[For the sake of brevity, the court’s findings have been omitted.]

Orders accordingly.

[dxxxiv]Section 27c of the Lands Registration Ordinance 1924-1931 provides that the Court, when determining matters referred to it "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".