Administration of Papua v New Guinea v Daera Guba (1973) 130 CLR 353

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.

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:

1. The Crown purchased substantially all of Era Taora in 1886 and possessed the land since that point. Alternatively, the actions of the Crown in 1886 amounted to an acquisition of the land. This occurred between Britain declaring the protectorate of British New Guinea (1884), and then annexing this territory as a colony (1888).
2. Any land not owned by the Crown in 1886 became Crown land due to the Order in Council of 1901, which described the boundaries of the land that was “taken possession of by the Crown as Crown land” [32]. This Order was created under the power of the Land Ordinance of 1889 of British New Guinea, which regulated land ownership in Papua New Guinea.
3. Land ownership in relation to the claimed area was authoritatively determined as belonging to the Crown because of a decision of the Land Board in 1954 under the Land Ordinance 1911-1953 (Papua).

In response, the Papuan Clans made the following assertions:

1. Guba, on behalf of the Tubumaga Idibana, denied having sold the land at any point. The Koitapuans admit that it appeared their Clan did attempt to sell the land to Crown Officers in 1886. However, they questioned whether their ancestors understood this sale to be an outright purchase of land. In any case, the Papuan Clans contended that the officers of the Crown did not have the authority to make the purchase in 1886. If the land were to be found to be validly purchased, the Papuan applicants contested the size of the land purchased.
2. They would challenge the validity of the Order of 1901, as the Papuan Clans denied that Era Taora was within the geographical jurisdiction of the Order.
3. They would challenge the validity of the 1954 Land Board decision. Even if found to be proper, counsel for the Applicants claimed that the decisions made by the Board were merely advisory, rather than having a legally binding effect.

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:

1. Who are the traditional owners of Era Taora? Was there a valid sale of land to the Administration of the Territory of Papua and New Guinea, by the traditional owners of the land?
2. Was the Order in Council declaring land as belonging to the Crown in 1901 valid?
3. Was the decision of the Land Board in 1954 merely advisory or binding in nature? 

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].

Glossary