...Findings re: James Rice...
Justice Moynihan expressed some scepticism regarding the chain of title linking James Rice to a portion of land at Korog on Murray Island, but was prepared to concede an entitlement, particularly as 'no other claim or dispute in respect of the land has emerged.' [Determination p 217]. There were also favourable findings in relation to other plots on Murray Island, but described the evidence relating to the claims for land on the island of Dauar as being 'in such an unsatisfactory state that I would not be prepared to act on it.' [Determination221]
Determination:
214
I. The Claims by the Plaintiff James Rice
The plaintiff James Bice claims:
1. By patrilineal descendant (Exhibit 168) land on Dauar Island in the localities called Aepkess and Dadamud through the Dauar family group together with the adjoining seas and seabed as far as and including the fringing reef; see the plaintiffs statement of facts Exhibit 1 p 65-66 (43), and (43A) James Rice (t. 1585/9).
2. As a descendant in the Magaram family group through his grandfather, he claims land situated on the island of Mer in the locality known as Bazmet; see the above references the claim being numbered (44);
3. As a descendant in the Komet family group through his great-great-grandmother, he claims two portions of land situate on the island of Mer in the localities known as Korog and Dei-mi; see the above references, the claims being (45) and (46).
I will not repeat what I have already said in respect of claims to areas of reef or sea. I do not regard them as sustainable on any view of it.
The defendant has pleaded that James Rice has no rights to
the land area known as Aepkess because he assigned any rights which he might have had to that land to the Tapim family as from about February 1989. In respect to the adjoining seas and seabed as far as and including the fringing reef adjacent to the land named 'Dadamud' it is pleaded that people on the Islands freely use and have used the natural resources thereof. As I have said
215
that seems to have been so for some time now at best for the
plaintiffs.
In reply the plaintiffs admit that James Rice assigned any rights which he had to the land area known as Aepkess to the Tapim family about February 1989 but plead that he is entitled to declaratory relief sought in the Statement of Claim in respect of any rights held in relation thereto as at the date of issue of the Writ.
It was opened that James Rice claims three portions of land on Mer, namely Korog (and it seems the associated garden area Sesem), Dei-Mei (next to the airstrip) and Bazmet. These three appear as portions numbered 45, 46 and 44 respectively on the plaintiffs' map, Annexure B to the Statement of Facts Exhibit 1.
On Dauar Island it was said James Rice claimed Aepkess and the reef Eurr and the waters offshore from Aepkess, to the reef. During the evidence, these claims relating to Dauar were amended to include an area 250 metres from Aepkess called Dadamud and included the fringing reef from a point known as Pewi to one known as Teiri.
These lands were claimed on the basis of inheritance from James Rice's father Loko Rice. His father gave him all of this land by word of mouth and he inherited it at the time of his father's death on 9 September, 1950. He says his father wrote no will, but: -
'This land, he said to me, you know, this land is mine, if I died, I've got land. -- You mean you, James Rice? - Yeah. -- Would get the land when he died -- when he died. When did he say those things to you; do you remember? - At Dawar Island. - Was he talking just about Dawar Island or the other areas also at Murray Island? -- Yeah. Which one, was he talking about all of the land or just some of the land when he said that
216
to you? - Land at Dawar and land at Murray, he said
that.' (t. 1531)
James Rice also gave evidence of his stepmother Balo (his father's second wife) leaving the land to him by a written will
(t. 1499, 1628/9). This document cannot be located in the Court records but is said to have been written by Henry Kabere in 1971/72 and witnessed by the police sergeant Jimmy Day. No land is said to be identified by this document, but it seems that James Rice contends that all of the land he claims, in these proceedings was passed to him by his stepmother's will. She apparently held the land for him but the claim is put as resting on the will.
All the land claimed is said to have been that of Loko Rice from his father James Rice senior (including Bazmet, from his wife). The line of descent seem clear back for two generations (the family tree produced by James Rice is Exhibit 168) but the claim has some interesting features.
James Rice grew up at Webok (a village on Murray Island) where his father was living. He was born on 1 October, 1929. His father died in 1949/50. He lived on Murray or Dawar for much of his life. He taught school and was a member of the Council. He studied in Brisbane and Cairns and taught on other Islands.
Land at Webok is not claimed although the Rice family obtained land in the ballot of 1928 (Murray Island Court Records, Exhibit 284) when the Dauar people were resettled on Mer (see Volume 2 specific Findings of Fact). Why the Rice family relied on the ballot for access to residential land on Mer if they otherwise had it does not emerge. To enable them to live elsewhere Mer, the Rice family had to claim land through some
217
female ancestor (or purchase it) since land in the male line was
on Dawar.
The Korog block claimed is residential and has an associated garden area claimed through a fairly distant relation given it as a wedding present - such things did of course occur. One may have doubts as to how the Korog land came into the Rice family. James Rice says that his mother, father and grandfather (Jimmy Rice who died in about 1942) used to go there to collect fruit and clean up the area when the councillors ordered it. Such use seems to be supported. Such a basis for mounting a claim to apparently abandoned land, bolstered by a basis in descent were not unknown, one suspects, as a means of acquiring land on the Island.
I accept that James Rice has claimed and resorted to the Korog land for many years as did his father and grandfather. This is known and James Rice can name the boundaries and the adjoining owners. The Court records show disputes concerning land at Korog one of which seems to have been decided in favour of Jimmy Rice and may refer to the land in issue. No other claim or dispute in respect of the land has emerged. Nevertheless I am sceptical about the chain of title said to sustain this claim.
It remains to mention that James Rice has entered into a tenancy agreement with the Department of Community Services (Queensland) in respect of the land at Korog; see Exhibit 183. I turn now to his claims for land on Dauar Island.
James Rice says that he was told that his great-great-grandfather Aiwa was an original Dauar man and that he had always lived at Aepkess. Aepkess is land where James Rice said his
218
'heart is (t. 1525). He claims in his sketch map, Exhibit 169 various gardening portions, yet these do not seem to be referred to in the Statement of Claim, or the Statement of Facts (Exhibit 1) or in the statement Exhibit 167 or referred to in opening.
Against this background James Rice (at t. 1576/7, 1636/9) seems to suggest that whilst his ancestors (and those of Henry Kabere with who he shares a common ancestor) owned Aepkess. It was in two parts, the larger of which had been given to the Tapim family generations ago. James Rice says the smaller portion came through inheritance to him and to Henry Kabere, on a shared basis. Members of the Tapim family, brought up off the Island, built a house on the smaller portion in 1988. He and Henry Kabere gave that land to the Tapims.
James Rice gave evidence that he would order people who build on his land to 'break that home and move away' (t. 1675) and seems to suggest fairly drastic consequences for failing to obey if Murray Islanders were not prevented by law from pursuing them (t. 1643). Confronted however by what was, on one view of it anyway, a trespass by the Tapim's made ignorant by then years of absence he gave up land at Aepkess, 'where his heart was' without any apparent quibble.
The Tapims apparently thought they could build on the land. Indeed at one stage James Rice seems to imply that a Tapim ancestor had been given the land. (t. 1576). George Passi gave evidence that he had observed the remains of the sardine factory on land 'traditionally owned' by the Tapim family (Exhibit 292). Henry Kabere (t. 1708) says that all of Aepkess was given away
219
'generations ago', although it seems that only the land was given away and not the sea or the reef.
In cross examination, having said that he and James Rice gave the portion of Aepkess to the Tapim family, Henry Kabere was asked:
'Had the Tapims started building their house on the land before you gave it to them?-- Yes.
Did they know where the boundaries were?-- They knew about it from their fathers.' (t. 1862)
Dadamud is some 250 metres away from Aepkess. The claim emerged after the position about the Tapims and Aepkess claim began to emerge in evidence. Dadamud is not mentioned in the statement of Claim, the Statements of Fact Exhibit 1 or the opening Statement Exhibit 162. In Exhibit 167, James Rice says he has owned Aepkess since 9 September, 1950, on the death of his father. He does not mention Dadamud nor the Tapims or Henry Kabere or for that matter Balo Rice.
James Rice states that he shares Dadamud with Henry Kabere, with Henry 'staying on his portion' and he on 'his own' although his sketch, Exhibit 174, shows no boundary.
James Rice's statement of claim has been amended to read the sea to and including the reef. His evidence is that this reef is from Pewi Point to and off Teiri Point. None of the garden land shown in Exhibit 169 has been claimed in the statement of claim, Statement of Fact (Exhibit 1) or Exhibit 167 yet he gave evidence that he owns Keriam (number 18 on Exhibit 169), Eu (13), Eq (16) and Aisimid (17) p 1524, 1525. His evidence in relation to those lands (before it emerged that the Tapims had been given Aepkess) is:
220
'Is there any difference between those areas and the area Aepkess which you claim in this case in terms of how you relate to those areas or what you think about them?-- I've got my heart in there because this is my ancestors' land.
Which is the one you have your heart in?-- Aepkess. And what about the other areas?-- The other areas are - you know, they are all garden areas, and that's this area where my ancestors lived.' (t. 1525)
In fact Henry Kabere seems to suggest that the principle Rice land
on Dauar was Dadamud rather than Aepkess. He gave evidence which
seems to suggest some sort of boundary dispute.
Dealing with his sketch of Dadamud Henry Kabere is asked:-
'Can you explain why you have drawn a line from the cotton tree across to a stone in the middle; why is that a boundary marker, if it is? Mr. Kabere, can you explain that line which runs through the middle there?-- Yes, that line between is not a boundary mark of James Rice. This is my area from the post to the almond tree in the centre. James on my left and the tree called Egar, across to stone - there is a stone there and from the stone right down to the beach. On the right side, Elukub, and the post mark the boundary. From there to that cotton tree right down to the beach - this is my area.
So, that land which is drawn from the cotton tree across to the stone--------?-- No.
Shouldn't that be there?-- It shouldn't.
There is no boundary there at all?-- This is my boundary.
So, that's all your land there?-- Yeah.
I think you said in your evidence-in-chief when you were talking about your sketch map that you were trying to dig up a very big stone - a boundary marker - it was a very long stone?-- I didn't dig up the stone because if somebody were to dig it up - one of my relation try to remove the stone from that area and my mother sent me out there, but the stone was really tall, nearly three feet long, and they couldn't, you know, pull the stone out from the sand. The stone was still there.
Is that a boundary marker?-- The same boundary mark from my great grandfather's side.
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You were told that. If it was a boundary marker, did your mother, or did the person who was trying to dig it up, explain why he or she was trying to dig up a boundary marker?-- The person was adopted to Loko Rice, was Mr. Captain
Captain?-- Captain, is a son of Ed Captain, the youngest brother of James Rice and his son was adopted by Loko Rice and he like to pull the stone out.
Did you know why he tried to pull the stone out?-- He want to remove the boundary mark.
He wanted to remove the boundary marker?-- So, I was sent out by my mother and my grandmother to inspect the stone to see if the stone was removed.
Did this man - did he have some interest in that portion of land which you have shown as James Rice's portion?-- Yes, and James Rice know about this boundary. We didn't dispute from the same stone.' (t. 1861/62)
There is, I should say, no suggestion that James Rice represents
any Kabere interest in this action.
The evidence as to James Rice's claims concerning Dauar is to
my mind in such an unsatisfactory state that I would not be prepared to act on it. It seems that the facts are now largely lost and that what we see is part memory, part fabrication or perhaps confabulation and part opportunistic reconstruction.
Bazmet is on the southern part of Murray Island in Magarem tribal territory. It is garden land which James Rice has not used for over 10 years. The land is said to have been a wedding gift to the wife of James Rice Senior the grandfather of the plaintiff James Rice. James Rice took Dr. Beckett there in 1958/59 and showed him a new banana garden 200' x 120' and a sweet potato garden 60' x 60' on a plot 400' x 300' (t. 2212). Use of the plot by the plaintiff or his father is confirmed by others. James Rice described the land and its boundaries Exhibit 177 (a sketch) and t. 1601/2. Similar considerations apply to
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Dei-Mi which is named in Exhibit 168 when James Rice appointed
Day Day, his brother-in-law as caretaker.
Determination:
214
I. The Claims by the Plaintiff James Rice
The plaintiff James Bice claims:
1. By patrilineal descendant (Exhibit 168) land on Dauar Island in the localities called Aepkess and Dadamud through the Dauar family group together with the adjoining seas and seabed as far as and including the fringing reef; see the plaintiffs statement of facts Exhibit 1 p 65-66 (43), and (43A) James Rice (t. 1585/9).
2. As a descendant in the Magaram family group through his grandfather, he claims land situated on the island of Mer in the locality known as Bazmet; see the above references the claim being numbered (44);
3. As a descendant in the Komet family group through his great-great-grandmother, he claims two portions of land situate on the island of Mer in the localities known as Korog and Dei-mi; see the above references, the claims being (45) and (46).
I will not repeat what I have already said in respect of claims to areas of reef or sea. I do not regard them as sustainable on any view of it.
The defendant has pleaded that James Rice has no rights to
the land area known as Aepkess because he assigned any rights which he might have had to that land to the Tapim family as from about February 1989. In respect to the adjoining seas and seabed as far as and including the fringing reef adjacent to the land named 'Dadamud' it is pleaded that people on the Islands freely use and have used the natural resources thereof. As I have said
215
that seems to have been so for some time now at best for the
plaintiffs.
In reply the plaintiffs admit that James Rice assigned any rights which he had to the land area known as Aepkess to the Tapim family about February 1989 but plead that he is entitled to declaratory relief sought in the Statement of Claim in respect of any rights held in relation thereto as at the date of issue of the Writ.
It was opened that James Rice claims three portions of land on Mer, namely Korog (and it seems the associated garden area Sesem), Dei-Mei (next to the airstrip) and Bazmet. These three appear as portions numbered 45, 46 and 44 respectively on the plaintiffs' map, Annexure B to the Statement of Facts Exhibit 1.
On Dauar Island it was said James Rice claimed Aepkess and the reef Eurr and the waters offshore from Aepkess, to the reef. During the evidence, these claims relating to Dauar were amended to include an area 250 metres from Aepkess called Dadamud and included the fringing reef from a point known as Pewi to one known as Teiri.
These lands were claimed on the basis of inheritance from James Rice's father Loko Rice. His father gave him all of this land by word of mouth and he inherited it at the time of his father's death on 9 September, 1950. He says his father wrote no will, but: -
'This land, he said to me, you know, this land is mine, if I died, I've got land. -- You mean you, James Rice? - Yeah. -- Would get the land when he died -- when he died. When did he say those things to you; do you remember? - At Dawar Island. - Was he talking just about Dawar Island or the other areas also at Murray Island? -- Yeah. Which one, was he talking about all of the land or just some of the land when he said that
216
to you? - Land at Dawar and land at Murray, he said
that.' (t. 1531)
James Rice also gave evidence of his stepmother Balo (his father's second wife) leaving the land to him by a written will
(t. 1499, 1628/9). This document cannot be located in the Court records but is said to have been written by Henry Kabere in 1971/72 and witnessed by the police sergeant Jimmy Day. No land is said to be identified by this document, but it seems that James Rice contends that all of the land he claims, in these proceedings was passed to him by his stepmother's will. She apparently held the land for him but the claim is put as resting on the will.
All the land claimed is said to have been that of Loko Rice from his father James Rice senior (including Bazmet, from his wife). The line of descent seem clear back for two generations (the family tree produced by James Rice is Exhibit 168) but the claim has some interesting features.
James Rice grew up at Webok (a village on Murray Island) where his father was living. He was born on 1 October, 1929. His father died in 1949/50. He lived on Murray or Dawar for much of his life. He taught school and was a member of the Council. He studied in Brisbane and Cairns and taught on other Islands.
Land at Webok is not claimed although the Rice family obtained land in the ballot of 1928 (Murray Island Court Records, Exhibit 284) when the Dauar people were resettled on Mer (see Volume 2 specific Findings of Fact). Why the Rice family relied on the ballot for access to residential land on Mer if they otherwise had it does not emerge. To enable them to live elsewhere Mer, the Rice family had to claim land through some
217
female ancestor (or purchase it) since land in the male line was
on Dawar.
The Korog block claimed is residential and has an associated garden area claimed through a fairly distant relation given it as a wedding present - such things did of course occur. One may have doubts as to how the Korog land came into the Rice family. James Rice says that his mother, father and grandfather (Jimmy Rice who died in about 1942) used to go there to collect fruit and clean up the area when the councillors ordered it. Such use seems to be supported. Such a basis for mounting a claim to apparently abandoned land, bolstered by a basis in descent were not unknown, one suspects, as a means of acquiring land on the Island.
I accept that James Rice has claimed and resorted to the Korog land for many years as did his father and grandfather. This is known and James Rice can name the boundaries and the adjoining owners. The Court records show disputes concerning land at Korog one of which seems to have been decided in favour of Jimmy Rice and may refer to the land in issue. No other claim or dispute in respect of the land has emerged. Nevertheless I am sceptical about the chain of title said to sustain this claim.
It remains to mention that James Rice has entered into a tenancy agreement with the Department of Community Services (Queensland) in respect of the land at Korog; see Exhibit 183. I turn now to his claims for land on Dauar Island.
James Rice says that he was told that his great-great-grandfather Aiwa was an original Dauar man and that he had always lived at Aepkess. Aepkess is land where James Rice said his
218
'heart is (t. 1525). He claims in his sketch map, Exhibit 169 various gardening portions, yet these do not seem to be referred to in the Statement of Claim, or the Statement of Facts (Exhibit 1) or in the statement Exhibit 167 or referred to in opening.
Against this background James Rice (at t. 1576/7, 1636/9) seems to suggest that whilst his ancestors (and those of Henry Kabere with who he shares a common ancestor) owned Aepkess. It was in two parts, the larger of which had been given to the Tapim family generations ago. James Rice says the smaller portion came through inheritance to him and to Henry Kabere, on a shared basis. Members of the Tapim family, brought up off the Island, built a house on the smaller portion in 1988. He and Henry Kabere gave that land to the Tapims.
James Rice gave evidence that he would order people who build on his land to 'break that home and move away' (t. 1675) and seems to suggest fairly drastic consequences for failing to obey if Murray Islanders were not prevented by law from pursuing them (t. 1643). Confronted however by what was, on one view of it anyway, a trespass by the Tapim's made ignorant by then years of absence he gave up land at Aepkess, 'where his heart was' without any apparent quibble.
The Tapims apparently thought they could build on the land. Indeed at one stage James Rice seems to imply that a Tapim ancestor had been given the land. (t. 1576). George Passi gave evidence that he had observed the remains of the sardine factory on land 'traditionally owned' by the Tapim family (Exhibit 292). Henry Kabere (t. 1708) says that all of Aepkess was given away
219
'generations ago', although it seems that only the land was given away and not the sea or the reef.
In cross examination, having said that he and James Rice gave the portion of Aepkess to the Tapim family, Henry Kabere was asked:
'Had the Tapims started building their house on the land before you gave it to them?-- Yes.
Did they know where the boundaries were?-- They knew about it from their fathers.' (t. 1862)
Dadamud is some 250 metres away from Aepkess. The claim emerged after the position about the Tapims and Aepkess claim began to emerge in evidence. Dadamud is not mentioned in the statement of Claim, the Statements of Fact Exhibit 1 or the opening Statement Exhibit 162. In Exhibit 167, James Rice says he has owned Aepkess since 9 September, 1950, on the death of his father. He does not mention Dadamud nor the Tapims or Henry Kabere or for that matter Balo Rice.
James Rice states that he shares Dadamud with Henry Kabere, with Henry 'staying on his portion' and he on 'his own' although his sketch, Exhibit 174, shows no boundary.
James Rice's statement of claim has been amended to read the sea to and including the reef. His evidence is that this reef is from Pewi Point to and off Teiri Point. None of the garden land shown in Exhibit 169 has been claimed in the statement of claim, Statement of Fact (Exhibit 1) or Exhibit 167 yet he gave evidence that he owns Keriam (number 18 on Exhibit 169), Eu (13), Eq (16) and Aisimid (17) p 1524, 1525. His evidence in relation to those lands (before it emerged that the Tapims had been given Aepkess) is:
220
'Is there any difference between those areas and the area Aepkess which you claim in this case in terms of how you relate to those areas or what you think about them?-- I've got my heart in there because this is my ancestors' land.
Which is the one you have your heart in?-- Aepkess. And what about the other areas?-- The other areas are - you know, they are all garden areas, and that's this area where my ancestors lived.' (t. 1525)
In fact Henry Kabere seems to suggest that the principle Rice land
on Dauar was Dadamud rather than Aepkess. He gave evidence which
seems to suggest some sort of boundary dispute.
Dealing with his sketch of Dadamud Henry Kabere is asked:-
'Can you explain why you have drawn a line from the cotton tree across to a stone in the middle; why is that a boundary marker, if it is? Mr. Kabere, can you explain that line which runs through the middle there?-- Yes, that line between is not a boundary mark of James Rice. This is my area from the post to the almond tree in the centre. James on my left and the tree called Egar, across to stone - there is a stone there and from the stone right down to the beach. On the right side, Elukub, and the post mark the boundary. From there to that cotton tree right down to the beach - this is my area.
So, that land which is drawn from the cotton tree across to the stone--------?-- No.
Shouldn't that be there?-- It shouldn't.
There is no boundary there at all?-- This is my boundary.
So, that's all your land there?-- Yeah.
I think you said in your evidence-in-chief when you were talking about your sketch map that you were trying to dig up a very big stone - a boundary marker - it was a very long stone?-- I didn't dig up the stone because if somebody were to dig it up - one of my relation try to remove the stone from that area and my mother sent me out there, but the stone was really tall, nearly three feet long, and they couldn't, you know, pull the stone out from the sand. The stone was still there.
Is that a boundary marker?-- The same boundary mark from my great grandfather's side.
221
You were told that. If it was a boundary marker, did your mother, or did the person who was trying to dig it up, explain why he or she was trying to dig up a boundary marker?-- The person was adopted to Loko Rice, was Mr. Captain
Captain?-- Captain, is a son of Ed Captain, the youngest brother of James Rice and his son was adopted by Loko Rice and he like to pull the stone out.
Did you know why he tried to pull the stone out?-- He want to remove the boundary mark.
He wanted to remove the boundary marker?-- So, I was sent out by my mother and my grandmother to inspect the stone to see if the stone was removed.
Did this man - did he have some interest in that portion of land which you have shown as James Rice's portion?-- Yes, and James Rice know about this boundary. We didn't dispute from the same stone.' (t. 1861/62)
There is, I should say, no suggestion that James Rice represents
any Kabere interest in this action.
The evidence as to James Rice's claims concerning Dauar is to
my mind in such an unsatisfactory state that I would not be prepared to act on it. It seems that the facts are now largely lost and that what we see is part memory, part fabrication or perhaps confabulation and part opportunistic reconstruction.
Bazmet is on the southern part of Murray Island in Magarem tribal territory. It is garden land which James Rice has not used for over 10 years. The land is said to have been a wedding gift to the wife of James Rice Senior the grandfather of the plaintiff James Rice. James Rice took Dr. Beckett there in 1958/59 and showed him a new banana garden 200' x 120' and a sweet potato garden 60' x 60' on a plot 400' x 300' (t. 2212). Use of the plot by the plaintiff or his father is confirmed by others. James Rice described the land and its boundaries Exhibit 177 (a sketch) and t. 1601/2. Similar considerations apply to
222
Dei-Mi which is named in Exhibit 168 when James Rice appointed
Day Day, his brother-in-law as caretaker.
Keywords: Moynihan, Justice Martin, Moynihan's findings, Murray Island, Rice, James, 1990
Author: Kenna, Jonathan
Source: Moynihan, Justice
Source: Moynihan, Justice