![]() | ||
Administration of Papua v New Guinea v Daera Guba (1973) 130 CLR 353 | ||
Category: | Case Law | |
Binomial Name: | High Court of Australia | |
Date: | 1973 | |
Sub Category: | Case Law | |
Place: | ||
Click this link to search this location with google maps | ||
State/Country: | Australia and Papua New Guinea | |
Click this link to search this location with google maps | ||
Subject Matter: | Native Title | |
URL: | http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1973/59.html?context=1;query=Daera%20Guba%20;mask_path= | |
Summary Information: | ||
Between: Administration of the Territory of Papua and New Guinea (Applicant) and Daera Guba on behalf of the Tubumaga Idibana Clan (Respondent) Judges: CJ Barwick, McTiernan, Menzies, Gibbs and Stephen JJ. Judgment: The High Court acknowledged the existence of native title interests held by Indigenous Clans in Papua New Guinea over their land. However, in this case, it was decided that the relevant land was validly acquired by the Crown. | ||
Detailed Information: | ||
Background: This case was about conflicting claims to an area of land in Port Moresby in Papua New Guinea. This land is referred to in the case as Era Taora. Era Taora is a Motu term meaning 'flat land at Era', which was asserted as the traditional name of the land by the Clans [1]. In 1973, Papua New Guinea was still under the control of Australian Administration and perceived to be a part of Britain's colonial landscape. The claimant groups consisted of two Indigenous clans of Papua New Guinea: the Tubumaga Idibana and the Giakone Clan of the Koitapu People. Daera Guba, head man of the Tubumaga Idibana Clan, asserted that the Tubumaga Idibana were traditional owners of Era Taora. Lohia Doriga, of the Giakone Clan of the Koitapu people, laid claim to the same land on behalf of the descendants of Iramo Hada (deceased). Although not the leader of the Clan, Doriga claimed to be the controller of the land. The Koitapu People also lived at relevant times in the claimed area. Both Papuan Clans claimed that their ancestors owned the land at the time at which the Administration claimed a Protectorate over the land. The Australian Administration of the Territory of Papua and new Guinea rejected these claims and asserted Crown ownership over the land on three grounds:
In response, the Papuan Clans made the following assertions:
Litigation History: Litigation progressed from the initial decision of the Chief Land Titles Commissioner through to the Full Court of the Supreme Court of the Territory of Papua and New Guinea. Throughout these proceedings, each Court reversed the decision of the last as they grappled with three questions:
The Full Court of the Supreme Court decided in favour of Daera Guba. A final appeal was then made to the High Court of Australia. The findings of the High Court are detailed below. Details of the High Court Decision: The majority of the High Court of Australia determined that the land in question was owned by the Administration. Chief Justice Barwick (McTiernan, Stephen JJ agreeing) On the purchase of Era Taora Chief Justice Barwick found that the Tubumaga Idibana did not provide convincing enough evidence that the land was theirs. Instead, the Chief Justice found that the Koitapuan clan provided more convincing evidence of traditional ownership, and as land could be sold under traditional Papuan laws, the validity of the Koitapuan sale of Era Taora to the Administration was upheld [63]. In the alternative, if it were found that the whole of Era Taora had not been obtained by the Administration in 1886, the Chief Justice determined that the decision of the Land Board as to Crown ownership in 1954 was a 'final decision... [that] bound Daera Guba' and all relevant parties [102]. On the question of evidence in native title cases Barwick CJ outlined that the onus to prove ownership of the land lay with the Papuan Clans, as they were not in possession of the land at the time that the application was made to the Court. Barwick CJ recognised that traditional evidence could be considered, and that the nature of such evidence could be broader than otherwise accepted in a non-native title case. Nevertheless, 'however wide the area of investigation, the title must be the subject of proof' [19]. As Daera Guba and Lohia Doriga were both representatives of two different Papuan Clans with conflicting traditional evidence, Barwick CJ outlined that the 'best way to test the traditional history [is] by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable' [20]. Using this method of analysis, Barwick CJ decided Lohia Doriga provided more convincing traditional evidence on behalf of the Koitapuan Clan. Justice Gibbs Justice Gibbs undertook a detailed analysis of the exact measures of land acquired, and the times at which it was acquired by the Crown. Effectively, Justice Gibbs confirmed that the Administration owned the land in issue. Justice Menzies Justice Menzies came to the same decision about the law as Chief Justice Barwick, however found on the facts that a wider boundary of land was purchased. Menzies J additionally found that Daera Guba could not bring the claim in the High Court based on estoppel. That is, as the Land Board had already decided the matter, it would be inefficient for the Court to re-decide it. Outcome Although the outcome was not in favour of the Indigenous Clans of Papua New Guinea, this case significantly provided legal acknowledgement of the native title rights of Indigenous clans in Papua New Guinea. As Gibbs J stated: 'the law of [Papua New Guinea' affords clear recognition of native interests in land, whether those interests are communal and usufructuary or individual and proprietary' [82]. | ||
Outcomes: | ||
Glossary |
Usufructuary |
| ||||
| ||||
|
Was this useful? Click here to fill in the ATNS survey