THE TRIALS OF
to become the longest and most complicated civil case ever to be heard in
the High Court and it would need a book to itself to assemble, examine and
elucidate all the arguments. This Web site examines some of the
highlights of this extraordinary trial.
Banaban Council of Elders decided they must consider going to law they
entrusted their arrangements to their chairman Pastor 'Tito and their manager
Pastor Tebuke. These two men for years during the preparation of the Banaban
court case crossed and re-crossed the world seeking advisers, setting up
enquiries, trying to learn Parliamentary procedures and, in particular trying
to understand how the British legal system worked. It gradually became clear
to Tebuke that the important people in London were not ignorant of the methods
of the BPC (British Phosphate Commission) nor were they unaware of the
behaviour of their Resident Commissioners - indeed they have known all along.
proceedings were started in 1972. In 1974-5, a sudden quadrupling in the world
price of phosphate enabled the Banabans to launch their real trial. They
engaged Richard Brown, Solicitor of Wimbleton, who had a very small office and
a staff of one. Mr. Brown beginning to appreciate the magnitude of the Banaban
case engaged as council the former Attorney General, Sir Elwyn Jones, QC MP
with barrister John R. Macdonald as his junior. Both these men went to Rabi
and Banaba to see for themselves and to prepare the case for the plaintiffs.
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The Banaban case comprised two
one was concerned with the failure of the BPC to replant the food
trees destroyed by the phosphate mining on Ocean Island. This was
something that they had contracted to do and which the Banabans
declared had not been done.
compensation claimed was six million pounds. It was not only a claim
for money as the Banabans also wanted the trees to be properly
Case two alleged breach of trust on behalf
of the British Government in its handling of the phosphate royalties
due to the Banabans. The Banabans
claimed twenty one million pounds based on the fact that they only
received fifteen percent of the royalties with the rest going to the
then Gilbert and Ellice Islands. Also that the Ocean Island phosphate
was sold below the market price for the benefit of the farmers of
Australia and New Zealand.
However, an election in
Britain before the case came to trial meant that Sir Elwin Jones who was
appointed Lord Chancellor in the new government, was obliged to give up the
case. John Macdonald carried on, assisted by Mr. C.L. Purle in Case One.
Case Two was in charge of John Mowbray, QC and Mr. Lynton Tucker.
BPC had quite understandably had not wanted this case to go to trial and at
various times had offered to settle out of court on terms that were not
acceptable to the Banabans. Indeed there was a race between the Banaban case
reaching the High Court and the remaining phosphate on Ocean Island being
mined out. Had the phosphate on Ocean Island been mined out before the trial,
the BPC would have simply packed up and gone home. Finally, the Banaban case
came up for trial on the 8th April 1976.
a difficult task to bring all necessary witnesses to London. Some had
died while others were too old to travel and, indeed, one had died
during the trial. Others, closely concerned in the Banaban story were
unwilling to come as it was so long ago and they did not want to stir it
up again. Several voices from the past crossed the globe and did come.
Sir Arthur Grimble had died in 1956 but his associates Paddy Macdonald
and H.E. Maude came to give evidence. Indeed, it was Grimble, dead 20
years, whose presence was the stronger for his absence, who was to
capture the court and make a sensation in the press.
difficult for the Banaban witnesses, uninstructed in the disciplines of
a British Court of Justice and he mysteries of legal procedures; more
especially as it soon became clear that many English legal
expressions cannot be translated into Gilbertese (I-Kiribati) at all.
There were simply no Gilbertese words for them. The painstaking Ellice
Island (Tuvalu) interpreters did their best, explaining to the judge the nuances
of the words they felt they might not be translating precisely.
Everything took twice as long because everything had to be translated
into Gilbertese, rephrased, explained and frequently repeated. Often, it
was not only the witness or the interpreter who was puzzled. Learned
Council and even Mr. Justice Megarry were sometimes at a loss as
well. Words mean different things to different people.
an inordinate amount of time was taken up examining and verifying the family
tree of each Banaban witness, checking the spelling of the names, unravelling
the complicated relationships, and working out the Banaban law of adoption and
inheritance. Land holders inherited plots and pockets of land in different
parts of Ocean Island (Banaba) and from different relations at different
times, and received other plots as reciprocal gifts in return for kindnesses.
By Banaban law of etiquette, it was impossible for young people to know
details or even sites of the particular plots their parents intended to leave
to them, until the final hours of their parents' life. This did not mean that
the inheritors were indifferent to where their holdings were, or how hard or
small the plots they inherited.
council for the defence wished to establish that the Banaban landholders were
totally unreasonable in their demand that Ocean Island should be rehabilitated
when the BPC moved out. Each Banaban witness was asked the same questions.
Nei Boti, you are one of the Plaintiffs in this action.
last, after 221 days, after 10,000 documents had been examined, after more
than 10 million words had been spoken, after more than 220 previous decisions
had been sighted, the great trial ended. Newspapers estimated the costs at
750,000 pounds. The judge took four months to prepare his summing-up and
judgment. Finally, the verdict was handed down.
the first place, he found that the phosphate people had failed to keep their
promise to replant the Banabans land. The Banabans should
get damages but just how much he could not bring himself to say. This they
must go away to settle with the British Phosphate Commission. For the failure
to restore the ravaged land, he said:
case on the breach of trust issues was finally balanced and could clearly have
gone either way. Judge McGarry eventually decided the British Government were
not, in fact, trustees for the Banabans. The British were, therefore, not
technically liable for the injustices committed in their name and in the cause
of immense millions of pound's profit from phosphate. Nevertheless, he added,
in words rarely used by judges against Governments:
government owed a moral duty to the Banabans and had let them down many times.
He specified two glaring examples which occurred during the two negotiations
when the Banabans had to make their most critical decisions. First, by letting
Arthur Grimble personally fix the mega royalty having compromised himself with
a disgracefully threatening letter about destroying the village and unspecified
punishments if they did not agree to sell their lands. Grimble may have been
ill and run down at the time, he said:
powerless to give the plaintiff any relief, but in litigation against the
Crown, I think a Judge must direct attention to a wrong that he cannot write
and leave it to the Crown to what it considers proper." The Crown is
traditionally the fountain of justice and justice is not confined to what is
enforceable in the court. The question is not whether the Banabans should
succeed as a matter of fairness or ethics or morality. I have no jurisdiction
to make an award just because I conclude they have a raw deal."
had believed that if they only could reach the influential people in Britain
and unfold their story, everything would be put right. Gradually, as the truth
emerged, it became apparent that the authorities had known the facts all the
time. They had supported the British Phosphate Company and actively backed the
BPC. The Colonial Office, now merged with the Foreign Office had been
implicated in the affair from the start.
On the 6th
January 1977, a documentary entitled Go Tell It To The Judge filmed on Ocean
Island, Rabi and in London was shown on BBC TV at the peak viewing hour. The
ordinary British people at last learned the truth of the Banaban story.
Thousands of letters poured into the BBC and was apparent that the Banaban cause
had reached the British people themselves. Unlike the authorities, the British
people were shocked, ashamed and indignant. A continuing flood of letters to
the British politicians simply could not be ignored. The matter was debated in
the House of Commons with the Minister pointing out that New Zealand
and Australia must be consulted and any settlement must include
On the 27th May 1977, the
Foreign Secretary, Dr. David Owen, informed the Commons:
governments are prepared to make available, on an ex gratia
basis, and without admitting any liability, a sum of 10 million Australian
dollars. The money would be used to establish a fund which will be preserved
for the benefit of the Banaban community as a whole, the annual income being
paid to the Rabi Council of Leaders for development and community purposes ...
The damages to be paid by the Phosphate Commissioners are of course unconnected
with, and would therefore be additional to, the ex gratia
may well have been the longest, most complex and costly
case ever to come before the British judicial system,
however, the proceedings were unable to bridge the great
cultural divide between the traditional Kiribati land
system and the western concepts of land ownership. It was
this cultural divide that resulted in many of our Banaban
people testifying against the intent of their own court
case in that they did not want compensation but only the
return of their land. It also resulted in the judge not
being able to determine the extent of compensation even
though he recognized that an injustice had been done to
the Banaban people. Compensation only resulted from
the indignation and inherent sense of fair play of the
perhaps not difficult for one to wonder on the
inconclusive nature of the Banaban High Court case. It
would, perhaps too simplistic to suggest that it was a
case of a powerful authority taking advantage of
trusting indigenous people. Although this certainly was
the case as was common in this era of colonialism.
certainly have to admire the perseverance of the
Banabans to bringing this case to fruition before the
High Court in the first place. It is not hard to form
the opinion that the failure of the judge to reach a
firm conclusion at the end of the trial stems from
the fragmented nature of the Banabans' claims. In the
first case, the Banabans requested restoration of their
land in addition to a cash settlement. In this respect,
it was repeatedly shown that the Banaban people
themselves simply wanted their land restored and did
not want a cash settlement. By putting the claim in
these two parts, made it very difficult for the judge to
find in favour of both parts of the claim. Clearly, it
is in this case that the Banabans had their greatest
strength as the BPC had done nothing to restore their
land to its original condition.
second claim, the Banabans questioned the fact that the
majority of royalties went to the Government of the
Gilbert (Kiribati) Islands. They also based their claim
on the fact that the phosphate was sold at as very low
market rate to Australia and New Zealand. With respect
to the first part of the claim, the decision to include
Banaba as part of the Gilbert Islands (Kiribati) was not
made simply on the basis of administrative convenience
but rather on the fact that the Banaban people had a
commonality of ethnology, mythology, culture and
language with the people of Kiribati.
basis, it could be regarded as normal commercial
practice for the Central Government in Tarawa (capital
of the Republic of Kiribati) to receive
a significant share of the royalties made available by
the phosphate mining. Similarly, the low prices paid for
the phosphate by Australia and New Zealand were
commercial decisions which were, in themselves, not
illegal. Despite a close result in the High Court, it is
perhaps not surprising that the Banabans were not
successful in their second case.
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