JURISDICTIONAL PATCHWORK: LAW OF THE SEA AND NATIVE TITLE ISSUES IN THE TORRES STRAIT Law of the Sea and Native Title Issues in the Torres Strait STUART B KAYE* [The Torres Strait is the region where mainland Australia most closely approaches another state; where the northernmost Australian islands are a few kilometres off the Papua New Guinean coast. By virtue of its location, configuration and people, the Strait is also the focus of a surprising range of international and domestic legal issues. This article examines the law of the sea and native title issues presently impacting upon the Strait. It identifies the pressing legal concerns of the region, including one of the world’s most complex maritime boundary arrangements which has been in operation for over 15 years; the impact of the operation of the 1982 United Nations Convention on the Law of the Sea on the Strait, most particularly the navigational regime; and the operation of the domestic offshore legal regime, including recent developments in the application of native title to offshore areas.] CONTENTS I Introduction II Evolution of Jurisdiction III Boundaries under the Torres Strait Treaty IV The Protected Zone and the Exercise of Fisheries Jurisdiction V Domestic Jurisdiction VI Jurisdiction over Transiting Vessels VII Native Title Issues A Establishing the Claim B Evidentiary Matters C Nature of the Rights in Issue D Customary Marine Tenure and International Law E Recent Developments VIII Conclusion I INTRODUCTION In terms of sovereignty and jurisdictional issues, the Torres Strait region presents a number of challenges that are unique within Australia. Firstly, it is the point where mainland Australian territory most closely approaches that of another state, and the only place where the territorial sea of Australia touches another state’s territorial waters. The Torres Strait region raises issues of the exercise of jurisdiction over individuals moving from one state to another and of * BA, LLM (Hons) (Sydney), JSD (Dalhousie); Professor of Law, School of Law, James Cook University. THE TORRES STRAIT Map taken from Stuart Kaye, ‘Regulation of Navigation in the Torres Strait: Law of the Sea Issues’ in Donald Rothwell and Sam Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea (2000) 119, 135. Reproduced with the kind permission of Kluwer Law International. Melbourne JournalofInternationalLaw [Vol 2 [Vol 2001] Law of the Sea and Native Title Issues in the Torres Strait national control over territorial waters. Secondly, the Torres Strait Treaty1 is applicable to the region. It is one of the most complex maritime boundary delimitation treaties in operation, where jurisdiction over seabed and fisheries are separated, and a Protected Zone, designed to further both the interests of the indigenous communities of the region and environmental protection, exists. Thirdly, across the Strait are a scattering of numerous reefs, islands and cays. In the context of Australia’s offshore arrangements, these present one of the more complicated geographical contexts for the operation of the Offshore Constitutional Settlement2 dividing jurisdiction between the Commonwealth and the States. Fourthly, the Torres Strait is an international strait for the purposes of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’).3 Consequently, significant issues are raised in the application of Australian law to vessels passing through the Strait. Finally, the issue of native title in offshore areas is particularly relevant in the Torres Strait because Australia’s first successful native title claim originated there, albeit that the maritime part of the claim was withdrawn.4 This article will briefly explore the jurisdictional and sovereignty issues applicable to the Torres Strait, including native title, and place them in perspective. II EVOLUTION OF JURISDICTION The complexity of the present arrangements in the Torres Strait can best be appreciated in light of the manner in which those arrangements came about. Historical events have played a substantial role in determining the present structure of both the sovereignty and the exercise of jurisdiction in the region. It is useful to examine these events briefly. 1 Treaty between Australia and the Independent State of Papua New Guinea Concerning the Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, opened for signature 18 December 1978, 1985 ATS 4 (entered into force 15 February 1985). 2 For more detailed discussions of the Offshore Constitutional Settlement, see Marcus Haward, ‘The Australian Offshore Constitutional Settlement’ (1989) 13 Marine Policy 334; Richard Cullen, Federalism in Action: The Canadian and Australian Offshore Disputes (1990) 104–29; Michael Crommelin, ‘Offshore Mining and Petroleum: Constitutional Issues’ (1981) 3 Australian Mining and Petroleum Law Journal 191; Brian Opeskin and Donald Rothwell, ‘Australia’s Territorial Sea: International and Federal Implications of its Extension to 12 Miles’ (1991) 22 Ocean Development and International Law 395, 408–10; Richard Cullen, ‘Canada and Australia: A Federal Parting of the Ways’ (1989) 18 Federal Law Review 53, 75–7; Richard Cullen, ‘The Encounter between Natural Resources and Federalism in Canada and Australia’ (1990) 24 University of British Columbia Law Review 275, 297–8. See also editorials in (1979) 53 Australian Law Journal 605; (1976) 50 Australian Law Journal 206. 3 Opened for signature on 10 December 1982, 450 UNTS 82, 21 ILM 1261 (entered into force 16 November 1994). 4 Mabo v Queensland [No 2] (1992) 175 CLR 1 (‘Mabo’). Melbourne Journal of International Law [Vol 2 The first step is to examine the means by which British sovereignty was asserted over Australia and the legal mechanisms used to accomplish it.5 The principal means used in the legal acquisition of Australian territory was the proclamation of Letters Patent. The Letters Patent, issued to the Governor of the particular colony in his Commission, described what the limits of the colony were for the purpose of the exercise of the Governor’s powers. The description of territory in the Letters Patent is important to the present discussion because it was subsequently used by the colonial courts to delimit the boundaries of the Colony of New South Wales, and the later colonies created out of it.6 As the present day Commonwealth of Australia, exclusive of the external territories, is a federation created from these colonies, the limits of Australian sovereignty in the present are, by and large, circumscribed by the old colonial instruments. The Torres Strait Islands are currently part of the State of Queensland, and given that the State’s boundaries have remained unaltered since Federation, the Islands were part of the Colony of Queensland in 1900.7 The Colony of Queensland was itself created out of the Colony of New South Wales by Letters Patent in 1859.8 These Letters Patent provided that Queensland succeeded all the New South Wales territory north of the boundary that still separates the two States, and east of 141° East longtitude.9 Significantly, they also included ‘all and every the adjacent islands and appurtenances in the Pacific Ocean’.10 Consequently, the boundaries of New South Wales in 1859 must be ascertained. The 1859 boundaries of New South Wales can be found, inter alia, in three Letters Patent issued in 1786,11 178712 and 1855.13 The first two Letters Patent indicated that New South Wales included all the territory between Cape York 5 At this point, consideration of native title in this context is not necessary. In Mabo, the High Court of Australia indicated that the existence of native title did not detract from the ultimate validity of the State and Federal governments in Australia. Accordingly, since the boundaries of an Australian State determine the jurisdictional reach of a State government, the manner in which these boundaries are determined is an important exercise. See Mabo 175 CLR 1, 2 (Mason CJ, Brennan and McHugh JJ). Native title will be considered in Part VII below. 6 See, eg, the High Court’s consideration of the issue in Wacando v Commonwealth (1981) 148 CLR 1. 7 This can be said with certainty because the Australian Constitution in ss 111 and 123 requires certain procedures to be followed in the event that a State surrenders territory or changes its boundaries. See discussion by Richard Lumb, ‘Legal Aspects of the Torres Strait Treaty’ in Peter Boyce and Michael White (eds), The Torres Strait Treaty: A Symposium (1981) 51, 52. These procedures have not been used in Queensland, so it follows that the limits of the State have remained static since Federation. 8 Colony of Queensland, ‘Letters Patent Constituting the Colony of Queensland’, Government Gazette, Proclamation No 1, 10 December 1859. The Letters Patent were issued pursuant to s 7 of the New South Wales Constitution Act 1855 (Imp) which permitted the creation of a new colony in the north. 9 Colony of Queensland, ‘Letters Patent Constituting the Colony of Queensland’, Government Gazette, Proclamation No 1, 10 December 1859. 10 Ibid. 11 Frederick Watson (ed), Historical Records of Australia, (1914) series 1, vol 1, 1–2. 12 Ibid 2–16. 13 Daniel O’Connell and Ann Riordan, Opinions on Imperial Constitutional Law (1971) 247. 2001] Law of the Sea and Native Title Issues in the Torres Strait and South Cape in Tasmania14 and ‘all the islands adjacent in the Pacific Ocean’15 with the latitudes of those features. The reference