Opinion Number. 389



The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has forwarded the following memorandum to me for advice:

The Solicitor, representing British interests in the New Hebrides has forwarded a copy of a document which purports to be a transfer from the natives to a German firm of the waters of Port Sandwich, in the island of Malicolo, New Hebrides.

(2) The deed in question, with others, was transferred to various persons, and the property that it represents is now held by Messrs Burns Philp & Co. in trust for the Commonwealth.

(3) As it appears doubtful whether there can be such a thing as an exclusive title to the waters of a harbour, the Solicitor has referred the matter for advice as to whether he should prefer a claim to the areas set forth in the document.

(4) I shall be glad to be favoured with your opinion. If it is in favour of the possible validity of such a claim it will be of advantage if some authorities can be cited which might be laid before the Court.

It is very difficult to advise on a question of this nature without knowing something more about the matter.

The view of the English law is that the Crown has property and jurisdiction over the sea within territorial limits, and that the public has, in general, rights of fishing and navigation therein, and that the Crown cannot, without the authority of an Act of Parliament, make any grant which would derogate from the public rights, and that, with the authority of Parliament, the Crown can make any grant it thinks fit. It is theoretically possible, therefore, for an individual to have exclusive rights in the waters of a harbour, but I know of no case in which a grant of such rights has been issued.

Applying English law to the transfer in question and assuming its validity generally, its validity would depend on the following questions:

  1. Did the natives at the time of executing the transfer possess the rights they purported to grant? and
  2. Were they authorised by the law or custom to transfer those rights?

If it can be established that the natives who gave the transfer possessed the rights they purported to transfer, I think the transfer might be regarded as effective, as it would probably be presumed, in the absence of proof to the contrary, that they had authority to transfer them. But, even if the transfer were considered to be effective, I think the rights transferred would be considered to have been transferred subject to the public rights of fishery and navigation.

Unless an affirmative answer to question (a) can be given, I think the transfer should be considered to be ineffective so far as the waters of the harbour are concerned, as no tribunal would presume the possession of powers of transfer of the nature in question from the mere fact that certain natives signed a document purporting to exercise them.

[Vol. 8, p. 125]