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By Monica Mulrennan and Colin Scott [1]
Torres Strait is a prime example of the challenges besetting the recognition of indigenous rights to marine territories and resources. An elaborate legal, legislative and administrative complex has developed in the Torres Strait Islands in response to diverse and frequently competing goals and interests, including: maintenance of Australia’s territorial boundary with Papua New Guinea (PNG); management and protection of an ecologically sensitive marine environment, which is traversed by a hazardous international shipping route; external and local demands on a rich fishery; and the promotion of equitable living conditions and opportunities in an economically depressed region. The resulting circumstances pose a variety of barriers and opportunities for recognition of indigenous sea rights and interests. We devote particular attention to the historic 1992 High Court decision, Mabo v The State of Queensland, (‘Mabo’),[2] the subsequent Native Title Act 1993 (Cth) (‘the NTA’), the pre-existing Torres Strait Treaty 1979,[3] and the pending High Court decision in the Croker Island (Northern Territory) sea rights case.[4]
In the Mabo decision, the High Court recognised the common law native title of the Meriam people of Mer Island, in Torres Strait. The court held that native title was not extinguished by the advent of British sovereignty and could survive so long as identifiable indigenous communities endured, with demonstrable continuities in traditional laws and customs connecting them to their estates. However, while the people of Mer gained legal recognition of their rights to the ‘occupation, use and enjoyment of their lands’, no comparable recognition of their sea estates occurred. The original statement of claim included ‘surrounding seas, seabeds, fringing reefs and adjacent islets’ as ‘continuously inhabited and exclusively possessed’ by the Meriam people ‘since time immemorial’. Due to developments in the case at lower court level, however, the High Court did not consider Meriam claims to the sea, and recognition of title to the island does not specify the extent of inclusion of the foreshore.[5]
However, the principles proclaimed in Mabo may form the legal basis for a claim over customary sea territories.[6] A pending High Court decision in the Croker Island case should clarify what effect, if any, legislation and regulations have had on extinguishing or qualifying native title to the sea. In the meantime, the NTA accords lesser statutory rights to the offshore than to native title lands.[7]
Torres Strait Islanders and other marine-oriented indigenous peoples view land and sea as a continuum subject to integrated regimes of tenure and resource use.[8] In eastern Torres Strait, extended families’ territorial boundaries continue from the land through the foreshore, all the way out to tidal fish weirs and reefs. Traditional clan boundaries may extend even further seaward. Places on home islands are connected via creation myths to more distant islands, reefs and cays. The rights of clan members to recount these myths imply a certain primacy of clan rights and responsibilities over these areas. In practice, however, areas beyond the home reef are generally shared as island community commons. While island communities maintain a sense of their home waters as against those of adjacent communities, there is also significant sub-regional and regional resource sharing inherent in Islander conceptions of marine tenure.[9] There is substantial, though not uniform, Islander support for sub-regional consolidation of sea claims, and indeed for an integrated Torres Strait regional sea claim.[10]
Torres Strait Islanders are seafaring people – skilled navigators, fishers and hunters. Reefs, lagoons and seas are fundamental to their identity, livelihood, and economic prospects. In sheer physical terms, the intertidal reef area is often many times the surface of home islands, yielding seafood consumption rates among the world’s highest.[11] It sustains the vital cultural practices of exchange, ceremonial feasting and rites of passage.[12] Additionally, the small boat fishery is the primary source of autonomously generated cash revenue for Islanders. Islanders have endured the tumultuous history of a boom and bust marine industry. This is owed partly to episodic depletion of reef and deeper water resources, and partly to market fluctuations.[13] Well-entrenched external commercial interests now limit the ability of Islanders to expand their use of homeland resources in developing their economies.
Several layers of state, federal and international governance affect the management of the region. Municipal administration on islands falls under Queensland state jurisdiction but the Commonwealth is active in the implementation of development initiatives and policies concerning the social welfare of Islanders. Before the Australian Fisheries Management Authority implemented a more integrated approach, regulation of the various fisheries was divided between Commonwealth and State governments. The international law of straits also comes into play, as the Torres Strait is an international strait under the UN Convention on the Law of the Sea 1982.[14]
The Torres Strait Treaty between Australia and PNG (‘the Treaty’),[15] which came into force in 1985, defines the international border, as well as the seabed and fisheries jurisdiction lines between the two states. It also establishes the Torres Strait Protected Zone (‘the TSPZ’), which includes most islands and reefs in the region. Within the TSPZ, performance of ‘lawful traditional activities’ and the free movement (across the international border) of ‘traditional inhabitants’ are recognised. The upshot is a highly complex regime of lines on water which attempts to accommodate, or at least not further prejudice, unresolved Islander rights and claims to the sea and its resources, while satisfying a wide range of competing interests in traditional fisheries, commercial fisheries, recreational fisheries, and international shipping.
While customary marine estates are not acknowledged as such by the Treaty, it does make special provision for Islander use of marine resources. Protection of the traditional way of life and livelihood of Islanders is an explicit management objective within the terms of the Treaty.[16] There is official recognition in the Treaty of ‘traditional’ subsistence fishing, including a commitment to minimise restrictions placed on traditional fishing by conservation measures adopted.[17] In principle, traditional fishing is given priority over commercial fishing,[18] and Islander involvement in market fisheries is promoted through preferential licensing arrangements (eg preferred or exclusive commercial access to certain species and nominal license fees).[19] Islander participation in fisheries and environmental management is also prescribed.[20]
Several consultative bodies, including cross-border committees, are established under the Treaty. However, since Islander representation is limited to advisory status, Islander initiatives are often eclipsed by external commercial fishing and other interests in the area. For example, Islander protests against reef damage caused by prawn drag netters have not prevented extensive environmental degradation. Furthermore, despite an explicit policy to maximise Islander participation in the commercial sector, there is limited access to capital, human resources, equipment and technical skills. This, in addition to some cultural preferences (eg distaste for certain environmentally destructive technologies and the appeal of smaller-scale autonomy as opposed to the boss/worker hierarchies of larger operations) has restricted Islanders to a small share of the thriving fishing industry. No commercial benefits flow to Torres Strait Islanders from non-Islander commercial exploitation of resources within their marine estates, or as compensation for adverse environmental impacts.
Islanders are seeking dramatic changes in the region. Sixty-three native title claims for the Torres Strait were lodged in June 1996 with the National Native Title Tribunal. This proliferation of claims resulted in part from the lack of a co-ordinated regional strategy, and in part from legal advice to divide claims into three categories: (1) land permanently above the high tide mark; (2) adjacent reefs, cays and seas out to a three nautical mile limit; and (3) other sea space out to TSPZ and Australian Fishing Zone boundaries. The three nautical mile limit is the area delegated by the federal government to Queensland jurisdiction, while beyond the TSPZ and Australian Fishing Zone boundaries lies PNG jurisdiction. This division of claims was justified as a matter of expediency, on the arguable premise that it would reduce the risk of facing combined State and Commonwealth opposition.
The fragmentation of claims is not in keeping with Islander conceptions of sea space and rights. Nonetheless, if title to categories (2) and (3) above was strongly recognised, Islanders could gain significant protection of their primary economic and cultural interests. This protection would, however, only be partial and insecure until such time as Islander self-government structures assumed many of the jurisdictional responsibilities now exercised by a combination of State and Commonwealth government agencies. This is especially true if central authorities continue to construe sea title as weaker than title to land.
Native title rights and interests at common law, according to the NTA are
‘communal, group or individual rights and interests... in relation to land or waters... possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples... (who) by those laws and customs, have a connection with the land or waters...’[21]
Native title includes, but is not limited to, ‘hunting, gathering, or fishing, rights and interests.’[22] Yet the NTA’s regime of procedural rights circumscribes the exercise of native title rights. For example there is no aboriginal right of veto. The content of native title is also limited. It is generally thought not to include minerals, for example.[23] Central governments retain the power to enact compulsory acquisition legislation to override native title interests (with compensation).[24] The NTA places an additional burden on sea title: the ‘right to negotiate’ over future acts by legislative bodies or other parties affecting native title does not apply offshore.[25]
The two Federal Court of Australia decisions in respect of the Croker Island sea claim are also restrictive. The trial judge found that native title can exist offshore, but the content of the right is essentially limited to subsistence, not commercial, fishing and hunting, travel, and maintenance of sacred sites.[26] The claimants’ exclusive ownership was rejected as an unproven feature of traditional laws and customs.[27] In any case, exclusive possession was held to be inconsistent with public rights of navigation and fishing under the common law, and with international marine law. On appeal, these reasons were upheld by majority.[28] One of the three appeal judges, Justice Merkel, disagreed, finding that a native title right to an exclusive fishery in a particular offshore area could be recognised and protected.[29] However, pending the appeal of the Croker Island case to the High Court, current jurisprudence and legislation enables central governments to treat native title sea rights as residual and inferior to those of commercial fishermen, mining companies and pearling companies.
Islander sea claims are backed by a range of political initiatives. Islanders have declared an exclusive ‘economic zone’ over a large portion of reefs and seas in eastern Torres Strait. Defence of this zone has led to evictions by Islanders of non-indigenous fishermen.[30] This direct action has been partly successful inasmuch as it has produced an informal agreement to preserve for exclusive Islander use a ten-mile radius around home islands. Nonetheless, the catch confiscation and expulsion of a non-Islander vessel in 1998 precipitated arrests and criminal charges against Islanders operating from Mer.
Attempts at dialogue have not been lacking. The Island Coordinating Council issued a Marine Strategy for the Torres Strait advocating both short-term and long-term steps to increase Islander participation and control over the region.[31] Local fishermen’s committees have recommended measures relating to licensing, allowable technology and zoning of the commercial fishery. The Torres Strait Regional Authority and ICC leadership have declared readiness to negotiate Islander jurisdiction for marine resource and environmental management as fundamental to regional autonomy. Some academic work has considered the merits of a comprehensive regional agreement to deal inclusively with the range of indigenous governmental and proprietary rights and aspirations.[32]
A combination of sustained political pressure from Islanders, favourable High Court jurisprudence on sea rights and negotiation with central governments will be required to achieve greater rights-based control of traditional marine territories.
Monica E. Mulrennan is an associate professor in the Department of Geography at Concordia University, Montréal, Canada. Colin H. Scott is an associate professor in the Department of Anthropology at McGill University, Montréal, Canada.
[1] We wish to acknowledge information and comments offered by Kapua Gutchen, Leslie Pitt, Bluey Bedford, Kenny Bedford, Selley Thaiday, Vic McGrath, Peter Jull, Nonie Sharp, Mick Bishop, Paul Hayes, and an anonymous reviewer.
[2] [1992] HCA 23; [1992] 66 ALJR 408.
[3] 18 December 1978, 18 ILM.
[4] Yarmirr v Northern Territory of Australia [1998] FCA 771; [1998] FCA 1185; Commonwealth of Australia v Yarmirr [1999] FCA 1668.
[5] D Haigh, ‘Torres Strait and Customary Marine Tenure – a Legal Baseline’ in Turning the Tide: Conference on Indigenous Peoples and Sea Rights, (1993) 131-58; N Sharp, No Ordinary Judgment: Mabo, The Murray Islanders’ Land Case (1996).
[6] J Sutherland, ‘Rising sea claims on the Queensland east coast’ [1992] 2(56) Aboriginal Law Bulletin 17-19; Haigh, above n 5.
[8] N Peterson & Bruce Rigsby, Customary Marine Tenure in Australia (1998); Sharp, above n 5; ME Mulrennan & CH Scott, ‘Mare Nullius: Indigenous Rights in Saltwater Environments [2000] 31(3) Development and Change 681-708.
[9] SL Davis and JRV Prescott, Aboriginal Frontiers and Boundaries in Australia, (1992); Sharp above n 5; CH Scott and ME Mulrennan, ‘Land and Sea Tenure at Erub, Torres Strait: Property Sovereignty, and the Adjudication of Cultural Continuity’ [1999] 70(2) Oceania 146-76.
[10] Field research, September-November, 2000, Torres Strait.
[11] RE Johannes and JW MacFarlane, Traditional Fishing in the Torres Strait Islands, (1991).
[12] B Nietschmann, ‘Torres Strait Islander Sea Resource Management and Sea Rights’ in K Ruddle and RE Johannes (eds), The Traditional Knowledge and Management of Coastal Systems in Asia and the Pacific (1985) 125-54.
[13] R Ganter, The Pearl-Shellers of Torres Strait: Resource Use, Development and Decline, 1860s-1960s (1994); S Mullins, Torres Strait: A History of Colonial Occupation and Culture Contact 1864-1897 (1995).
[14] 1982, 21 ILM 1261. R Babbage, The Strategic Significance of Torres Strait (1990).
[15] Treaty Between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, signed at Sydney, 18 December 1978.
[16] Part 4, article 10, paragraph 3.
[17] Part 5, article 20, paragraph 2.
[18] Part 5, article 20, paragraph 1.
[19] Part 5, article 26, paragraphs 3, 4; see also Torres Strait Protected Zone Joint Authority Annual Report 1998-99; JC Altman, WS Arthur and HJ Bek, ‘Indigenous Participation in Commercial Fisheries in Torres Strait: a Preliminary Discussion’ (CAEPR Discussion Paper no. 73, 1994).
[20] Part 4, article 19, paragraphs 4, 6.
[23] At any rate, various judgments have arrived at the conclusion that, in some way, legislation vesting minerals and petroleum in the Crown fully extinguishes native title (yet legislation vesting wildlife, for example, in the Crown does not); Wik Peoples v State of Queensland [1996] 63 FCR 450, 500-502; Yarmirr v Northern Territory [1998] FCA 771; [1998] 82 FCR 533, 601; The State of Western Australia v Ben Ward [2000] FCA 191, 525-527.
[24] Sections 23(3), 51(2), 253.
[26] Yarmirr v Northern Territory of Australia [1998] FCA 771; FCA 1185.
[27] R Levy, ‘Native Title and the seas: the Croker Island decision’ (1998/99) 4(17) Indigenous Law Bulletin 20.
[28] Commonwealth of Australia v Yarmirr [1999] FCA 1668; R Levy, ‘Croker Island Native Title Appeal’ [2000] IndigLawB 33; [2000] 4(29) Indigenous Law Bulletin 21.
[29] R Levy, ‘Croker Island Native Title Appeal’ [2000] IndigLawB 33; [2000] 4(29) Indigenous Law Bulletin 21, 22.
[30] DJ Haigh, ‘Fishing war in the Torres Strait’ [1999] IndigLawB 60; [1999] 4(22) Indigenous Law Bulletin 20; DJ Haigh, ‘Fishing War in the Torres Strait – Round Two’ [1999] 4(24) Indigenous Law Bulletin 17; DJ Haigh, ‘Fishing war in the Torres Strait – Round Three’ [2000] IndigLawB 59; [2000] 5(2) Indigenous Law Bulletin 17.
[31] ME Mulrennan and N Hanssen, Marine Strategy for Torres Strait: Policy Directions (1994); G Dews and J David, Marine Strategy for Torres Strait (1998).
[32] J Altman, W Arthur and W Sanders, ‘Towards Greater Autonomy for Torres Strait: Political and Economic Dimensions’ (CAEPR Discussion Paper no. 121, 1996); W Arthur, ‘Towards a Comprehensive Regional Agreement: Torres Strait’ (CAEPR Discussion Paper no. 147, 1997); ATSIC, Regional Autonomy for Aboriginal and Torres Strait Island Communities (1999).
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