Torres Strait Treaty Islands

By Author: Anthony W Bills
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Torres Strait Treaty Islands
Torres Strait Islands lie between Australia and the Republic of Papua New Guinea and are part of Queensland. The people of Torres Strait Islands are Aboriginal Australians, though they are considered different from the Aborigines in the rest of Australia. They are historically related to the people of Papua New Guinea. The people of Torres Strait have a long history of trading with the people of Papua New Guinea. This may have been the cause of the Papua New Guineans influence in the culture of the Torres Islanders. Their culture also has some mainland Australian Aboriginal culture elements, but mostly they have their own unique culture. The language too has both Australian Aborigine and Papua New Guinea people’s influence.
The Aboriginal people had very complex culture. Generally, according to the Aboriginal culture, land belonged to no one. This was and issue which became very controversial when the colonialists arrived in Australia because the Aborigines could not understand land ownership rights. In their culture, there are places which were held sacred and therefore could not ...
... be owned by anyone. The Australian government finally recognized the rights to these places. This recognition is what is in legal terms is referred to as Native Title.
In 1978, Australia and Papua New Guinea signed a treaty regarding sovereignty and boundaries in the area between them, including Torres Strait. The treaty set out the maritime boundaries in Torres Strait. It also set out separate fisheries and a protected area. The fisheries boundaries were different from the seabed and sovereignty boundaries. Each country was given its area of jurisdiction. On top of this a protected zone was set. During the negotiations leading to the 1978 treaty, the Torres Islanders had expressed their concern over the delimitation of the sea waters for the reasons that the movement of the Torres Islanders and the people of Southern Papua New Guinea across the strait waters was an historical phenomenon and their livelihood depended on it. They also expressed their reverence of the waters and asserted that the waters were sacred in their culture. Since the coastal people of Papua New Guinea and the Torres islanders had so much in common in terms of culture, they also made the same claim in the case. In this regard, the treaty required that the inhabitants of the Torres Islands within the protected zones allow others on peaceful terms to go into the area and perform their traditional rights. The two countries were under international law governing straits obliged to allow foreign vessels passage through the strait waters. According to International Sea law, the two countries were under obligation to allow passage of international vessels and also to not to prevent of impede in any way the passage of these international vessels. This right of passage brought about some disagreement because of the native title of the waters of Torres Strait because the Torres Strait Islanders held native title to the waters of Torres Strait. The native title was greatly affected by the boundaries set by the treaty (Denoon, 2010).
In 2001, the representatives of the group known as PNG from the southern coast of Papua New Guinea in applied to the Court of National Native Title Tribunal for native ownership determination of the area in the Torres Strait. They produced various evidences including oral history, narrations of historical trade in the area, early religious connections and agricultural practices. The respondents in the case were the Queensland government and the Australian Commonwealth. This case is commonly referred to as the Gamogab v Akiba [2007] FCAFC 74. Mr. Gamogab had filed the application on behalf of the PNG while Akiba was the representative of the Australian Commonwealth and Queensland government. PNG was the group representing the Kupere village community of Southern Papua New Guinea. PNG had appealed in a case where Torres Regional Sea Claim Group, hereafter referred to as the claim group had sued for determination of native title with regard to the Torres Strait waters. The Claim Group consisted of members of Torres Strait Island communities. According to the treaty, each group was supposed to give allowance to the other for the performance of their traditional rights in the protected areas. The wasters under claim consisted of the water in the protected zone which was within Australian jurisdiction and the area to the north which was under shared jurisdiction. The first area referred to here extends to the seabed while the second area consists of the water but does not include the seabed. The appeal was dismissed and the judge ruled that each party bear his or her own costs.
In November 2001, the Torres Strait Regional Sea Claim Group (TSRA), represented by Akiba and others applied for native determination for an area of about 40000 square kilometers in the Torres Strait. In this case, the applicants claimed that they held traditional interest in the area and that prior to the 1978 Torres Straight treaty; they held native title to the area. Native title is the recognition by Australian authorities that aboriginal people may have some interest in a place. In this application, two claims were made; one for exclusive ownership and the second was for the control of access. The Commonwealth, the government of Australia and Queensland and some representatives from Papua New Guinea were to respond.
The 1978 treaty between Australia and the republic of Papua New Guinea bought about many implications especially to the lives of the Torres Islanders. The treaty set out marine boundaries and fisheries boundaries in an area where the Torres people and the coastal people of Papua New Guinea used to move and fish freely from time immemorial. This area was also considered sacred by the people of Torres Islands. It was their ancestral land. They believed that it was given to them by the gods during the dream time and could therefore not be taken away from them. As a fact, land ownership (and in the same sense sea ownership and delimitation) are relatively new concepts to the Australian Aborigines in general. To them land owns people and not the other way round. So when some limitations were established by the treaty, the implications did not please them. This is when they started to get legal redress (David, 2010).
Torres Strait, like all international straits had to be governed by international strait laws. This meant that the two countries, i.e. Australia and Papua New Guinea were required to give free passage to international vessels. This became a problem because although Australia had recognized native title, international law did not. If Australia failed to ensure free passage of a vessel belonging to some country, then that country could take international legal action against Australia.
In this case of Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland the court ordered that the Torres Regional Authority may stop complying with a subpoena issued earlier by the court and that the party that sought the issuance of the subpoena was to was to reasonably compensate TSRA for the damages suffered in trying to comply with the subpoena (DFAT, 2010).
In this case, the subpoena was issued by the court. It wouldn’t have mattered that the application was made by Mr. Gamogab. The important point was that the court had passed the application and determined that the application was in order. If a subpoena is issued by a court of law, the cost of compliance with the subpoena does not go to the applicant. It does not matter whether the subpoena is revoked or not. It is not clear why His Honor in this case decided to revoke the subpoena and at the same time order the applicant to compensate the other party. However, there may be some factors to consider, which I think may have influenced the judge. What could have happened if the case was the other way round? No one would expect the court to order that the Torres compensate the Commonwealth. The fact that Mr. Gamogab was a wealthy guy and the TSRA was a group of poor Aborigines who must have been struggling even to reach the court venue ought to have influenced the judge’s decision. It is also a fact that the judge did not expect Mr. Gamogab to go grumbling for having to give a few Australian dollars to poor Aborigines from the Torres Strait (DFAT, 2010).
However, if we critically look at the issue, section 85 provides that each party pay his or her own costs in a judicial proceeding unless where the court can establish that one party caused the other to incur costs due to the party’s conduct or actions. This is what the statutes refer to as unreasonable conduct. In the case of Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland Mr. Gamogab fileda subpoena against the TSRA. If the judge in this case considered this to have been unreasonable conduct, then this could have been in order to order Mr. Gamogab to compensate the TSRA. Otherwise the judge may have considered the filing of the subpoena as commission of an act which would have fallen within the definition of an unreasonable conduct (Kay, 2010)
The other factor to consider in this case is the subject matter of the subpoena and the ease with which it would be obtained. Mr. Pende Gamogab wanted the court to order the chairman of the TSRA to furnish the court with a report by an anthropologist. It is common knowledge that to get an anthropologist’s report is a tall order. It is very expensive and may take a long time even to get an anthropologist. The court may have considered this and in its light asked Mr. Gamogab to compensate the TSRA for actually spending the enormous amount of money that they must have spent in order to obtain the anthropologist’s report.
As earlier state, section 85 of the Native Title Act provides that each party to a hearing shall pay for his or her own costs, unless one party acts or fails to act in a way which causes the other party to suffer damages. Most of the native title cases involving the Aborigines are very complex and end up being very expensive. In most cases, the Aborigines are poor people with low or no education, a fact that makes them less economically endowed. When they institute proceedings in court, they should be prepared to pay in the event that the case is thrown out. The implication of this is that many native title cases will not be taken to court for these economic reasons. Further to that, if in case a case is taken to court and the court proves that the defendant suffered financial damages in complying with and order applied for by the court, then this would be a big problem for the poor who can’t afford it. The precedence set in the Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland may not augur well for the dispensation of justice especially to those who are not very well established economically (Denoon, 2010).
These two cases show how the treaty affected the |Torres Islanders and how the precedence set by the cases will continue to affect Native Title of these people. One point that is clear in these two cases is how international law may conflict with local law. One important issue surrounding the 1978 Torres treaty is the fact that the international law does not recognize native law. The two cases also bring out the fact that the complex Aboriginal culture may not stand the test of time. Most of their cultural practices are hedged on land which was supposed to be owned by no one. In today’s capitalistic world, it is not hard to see that community land and native titles will not last very lonf. One reason for this is that it is only recognized locally, but lacks meaning in the international realm.

Bibliography
Akiba v State of Queensland [2010] FCA 321 (1 April 2010)
David, Ned (2010).Presentation on Native Title in the Torres Strait, available at: http://www.aiatsis.gov.au/ntru/docs/researchthemes/pbc/pbcpartnership/DavidPresentationTSI.pdf Retrieved: June 2, 2010.
Denoon (2010). Lecture on the history of the Torres Strait Treaty, URL: http://www.naa.gov.au/whats-on/neale-lecture/Denoon-2009.aspx, Retrieved: June 2, 2010.
DFAT (2010). Summary of the Torres Strait Treaty, URL: http://www.dfat.gov.au/geo/torres_strait/index.htmlRetrieved: June 2, 2010.
Kay, Stuart, (2010) Legal issues paper on native title sea claims in the Torres Strait, URL: http://www.nntt.gov.au/Publications-And-Research/Tribunal-Research/Documents/Torres%20Strait%20Native%20Title%20Sea%20Claim.pdf, Retrieved: June 2, 2010.
URL:http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2010/321.html, Retrieved: June 2, 2010.

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