Opinion Number. 424

Subject

TERRITORIAL WATERS WHETHER TRANSFER OF HARBOUR BY NATIVES VALID : WHETHER GOVERNMENT MAY OPPOSE AS CONTRARY TO PUBLIC INTEREST

Date
Client
The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has forwarded the following

letter received from Mr L. S. Woolcott, Solicitor, New Hebrides, to me for advice:

I have to acknowledge receipt of your letter of 25 ultimo to me requesting to be advised as to the present position of this matter and in reply have to inform you that I wrote Messrs Burns Philp & Co. Ltd with reference thereto on 23 March ultimo and that letter you have no doubt received by this. As mentioned in my said letter, it appears from the opinion obtained from the Secretary, the Attorney-General's Department that to sup-port this title it will be necessary to establish that the natives who gave the transfer pos-sessed the rights they purported to convey thereby. Having regard to the length of time which has elapsed since the title was given namely in 1879 and the fact that most if not all of the parties to such title, and probably the tribes to which they belonged, have either died out or disappeared long ago it would appear to be a very difficult task to procure such evidence now and the attempt to do so would also involve the attendance of someone at the locus in quo accompanied by a party and native interpreter as the country is very rough and practically unsettled, there being no missionaries there to assist us in the mat-ter, no doubt owing to the fact that nearly all the natives have disappeared. Possibly the surveyors would make enquiries when they are in the neighbourhood of the Port, but when that will be is problematical and, unless they are specially sent, probably not for months yet. This being the position, I am quite unable to give any information, so far as the evidence required is concerned, that will be of any assistance in coming to a decision based on such evidence, as to whether a claim should be put in or not. I may mention how-ever that according to the provisions of the Convention, the title not having been regis-tered, either in Fiji, here, or Noumea, but only at Apia, Samoa (which does not appear to comply with the provisions of Article 22, section 5) it would appear to be open to the natives to attack the title if they felt inclined to do so on any of the grounds specified under section 4 although I do not apprehend any opposition from that quarter. The par-ties who are chiefly concerned are the traders and recruiters both British and French who have had uninterrupted user of the waters of the Port from time immemorial and, having regard to the fact that the Port is the best harbour in the whole group, there would prob-ably be strong opposition to its confirmation from that quarter. Of course a claim need not be put in until such time as enquiries have been made as to the evidence available, but the longer the matter is left the more troublesome it will be nor will time for objections com-mence to run until the claim is lodged. One question that suggested itself to me is, assum-ing the natives do not object, whether any British or French subject in his individual ca-pacity can oppose the claim under Article 23 unless he claims under a paramount title, which I do not think is likely, as it is scarcely probable that the natives sold the Port twice over. If it is not open for any private individual to oppose the claim and the natives do not, then it would appear to resolve itself into a question as to whether the Crown or rather Condominium have any right to do so. This is a matter which might be referred to Coun-sel. So far as I can see there is nothing in the Convention itself which allows a grant by the natives to be cut down in any way and if the claim is not disputed by them, or someone claiming under a paramount title, does the onus lie on the claimant to show that the grantors possessed the rights they purported to grant? There is no doubt that, so far as the French are concerned, the Convention was framed with the very object of avoiding this. I now await your instructions in the matter.

I do not think there is anything in Mr Woolcott's letter to lead me to modify my opinion of 11 October 1910(1), and I still think that the Court would, in view of the extraordinary nature of the Grant, decline to confirm it-at least so far as it derogates from public rights of navigation and user-in the absence of evidence to establish the fact that the natives who signed the Grant were competent to convey the rights they purported to convey.

I think that the Condominium as representing the sovereign power would un-doubtedly have the right to oppose the confirmation of the Grant as being in derogation of the public interest.

The question however, of the confirmation of the Grant and of the rights of the Condominium to oppose such confirmation, is a question for the Court, and I am un-able to see that any opinion given by me can affect its decision on those points. If it be considered advisable for the Commonwealth to seek the confirmation of the Grant by the Court, I would suggest that it be left to Mr Woolcott to support the application in the best manner available.

It may be a question of policy whether it is advisable for the Commonwealth to seek the confirmation of the Grant, because, even if the Grant were confirmed without con-dition, the Commonwealth could not well attempt to exclude foreign vessels from the use of the harbour, and if it were confirmed subject to the public rights of navigation and user, it would be of little or no value.

[Vol. 9, p. 73]

(1)Openion No. 389.

(2)This Opinion was endorsed 'Seen' by Mr Hughes, Attorney-General.