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KIRIBATI

THE TRIALS OF THE BANABANS

 

It was 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. 

 

           

When the 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.

Legal 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 parts:

Case 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.

The compensation claimed was six million pounds. It was not only a claim for money as the Banabans also wanted the trees to be properly replanted.

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.   

The 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. 

 

It was 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.  

It was 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.

Sir Arthur Grimble

Also, 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.

The 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.

Q. Nei Boti, you are one of the Plaintiffs in this action.

A. Yes
Q. If you win this case, would you rather that the BPC replant your land or would you prefer to have money?
A. I would want the company to replant my land and make it like it was before.
 
They all said that they wanted their landholdings back in good fertile conditions instead of cash compensation. 

At long 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.

In 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:

 
"The damages shall not be token, not minimal but not large".
 
He discounted the argument that nowadays mined land must legally be restored.  

The second 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: 

The 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: 

 
"Even so, it is impossible to read that letter without a sense of outrage."     
 
And the judge went on to say:
"The other failure of the Government was the gravest in its consequences to the Banabans, that was the absence of any advice when they were embarking on the 1947 negotiations. The improvidence of the disposition must have been foreseeable by persons of business experience."
 
The judge concluded with a most unusual recommendation:  

"I am 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." 

The Banabans 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.

 
The last throw left to the Banabans had been the lawsuit in the High Court in London. The costs of the trial were reported to be 750,000 pounds and the case had ended inconclusively.  

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 the I-Kiribati.  

On the 27th May 1977, the Foreign Secretary, Dr. David Owen, informed the Commons:  

"The three 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 payment."  

It 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 British people. 

It is 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.

One would 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.

In their 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. 

On this 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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