Jurisdictional Patchwork: Law of the Sea and Native Title Issues in the Torres Strait
Kaye, Stuart B., Melbourne Journal of International Law
[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.]
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 national control over territorial waters. Secondly, the Torres Strait Treaty (1) 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 Settlement (2) 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.
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. …