Sebea v Territory of Papua [1941] HCA 37; (1941) 67 CLR 544

Geita Sebea v Territory of Papua [1941] HCA 37; (1941) 67 CLR 544 (24 November 1941)

Judges: Rich A.C.J., Starke and Williams JJ.

Between: Geita Sebea and Others Plaintiffs (Appellants) and the Territory of Papua (Respondent).

In this case, the High Court found that laws preventing land from being legally transferred by indigenous people should have no detrimental effect upon the value of the land. The case involves 89 acres of land which was leased by the Kila Kila People to the King to build an aerodrome. In 1939, two years after the lease, the Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939 (No. 19 of 1939) was passed to compulsorily acquire the land. This appeal involves objections by the Kila Kila People on the calculation of compensation they would receive for the acquired land.  

The Kila Kila people possessed a communal usufructuary title to their land equivalent to full ownership which gave rise to an entitlement to compensation. While the appeal was allowed and compensation recalculated, it was awarded on economic terms alone, rather than recognising any connection that indigenous people have with the land.  

Background

In 1937, the headmen of the Kila Kila People wrote to the King and leased the land subject to the Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939 for 10 years. The land was used to build an aerodrome and involved erecting buildings, installing drains and upgrades. Eventually, the Crown sought to compulsorily acquire the land under the Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939.  

The initial judgment, prior to this appeal acknowledged that it was difficult to calculate compensation, assigning six pounds per acre and excluding the government aerodrome, including offices, drains and fencing, from the value as they were removable and not a part of the land. The Kila Kila people, led by Geita Sebea, appealed the calculation of compensation to the High Court of Australia.  

Relevant Statutory Provisions

Section 3 of the Land Ordinance 1911-1935 prohibited the disposal of land owned by any Indigenous People by sale, lease or any other dealing. Any contract made by Indigenous People to dispose of land was declared void.  

The Kila Kila People’s land was compulsorily acquired under the Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939). Compensation for the land was prescribed in the Lands Acquisition Ordinance 1914, which included consideration of the value of the land acquired when determining how much compensation should be paid.  

Judgment 

The Court found that the fact that the Crown was the only possible purchasers (due to prohibitions under Land Ordinance 1911-1935) was no reason for the price of compensation to be diminished. Rather, the Land Ordinance 1911-1935 showed that the “native” owners of the land were the full owners and ultimately entitled to compensation as ‘though the land had been acquired from a European’[21]. Williams J highlighted that it is ‘difficult to see why they should be willing to part with it for nothing merely because there is only one purchaser’ [20]. 

The court outlined that it was reasonable to consider the upgrades made to the property when determining the level of compensation to be paid. It also considered that the Crown should be willing to pay the additional amount rather than find land elsewhere and spend additional money to make similar improvements.  

Outcome 

The court allowed the appeal, stating that the previous court’s evaluation of the land from an agricultural perspective was incorrect. The amount to be awarded was the sum of the agricultural land plus the value of the structures and improvements that had been made to the land.  

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