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Australian Indigenous Law Reporter |
Federal Court of Australia (French J)
8 September 2006
[2006] FCA 1173
Native Title — Joinder application— Torres Strait Regional Seas Claim —PNG Nationals’ connections with parts of the claim area — Torres Strait Treaty — Proceedings inappropriate manner to advance claim — Commonwealth obligation to protect PNG nationals — joinder application refused on discretionary grounds
The Torres Strait Regional Seas Claim is a native title determination application filed in the Brisbane Registry of the Federal Court in 2001 by representatives of communities of Islanders in the Torres Strait. When the application was referred by the Court to the National Native Title Tribunal, the joined respondents then included, inter alia, the Commonwealth of Australia, the State of Queensland and other Indigenous interests. Upon the death of the Docket Judge, the respondent in these proceedings, Mr Gamogab, made a motion for joinder on behalf of a group of PNG nationals, the Dangaloub-Gizra group at Kupere Village, based upon the group’s traditional activities in the claim area. Mr Gamogab sought recognition of the group’s traditional rights of movement, ownership and use of resources for traditional purposes in the area now subject to the Torres Strait Regional Seas Claim.
Mr Gamogab submitted various evidence of the Dangaloub-Gizra group’s extensive historical connection with the claim area, including that relating to oral history, common creation and religious beliefs, traditional barter trade practices, shared use of the marine environment, and parallel cultural and ritual practices with the Torres Strait Islanders. The Dangaloub-Gizra also have traditional agricultural practices (including the rare use of earth mounds), which have been found throughout the Torres Strait Islands, illustrating the group’s movement throughout the claim area.
The 1985 Treaty Between Australia and the Independent State of PNG concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait and Related Matters (‘the 1985 Treaty’) establishes the sovereign rights of the PNG and Australian Governments over islands north and south of a seabed jurisdiction line, respectively. It also defines a ‘Protected Zone’ (overlapping the aforementioned areas) with the purpose of protecting the traditional way of life and livelihood of its traditional inhabitants.
An Exchange of Notes between Australia and PNG in 2000 agreed upon a list of 14 villages in PNG whose inhabitants would be regarded as ‘traditional inhabitants’ for the purposes of the Treaty. The Dangaloub-Gizra group’s village is not one of those regarded as a Treaty village. They have since submitted unsuccessful petitions to the PNG Government requesting endorsement of the Dangaloub-Gizra group’s membership to the Treaty.
1. The Court has a discretion to join a person as a party to a native title claim if the Court finds that ‘the person’s interests may be affected by a determination in the proceedings.’ The Court noted that the interest need not be proprietary or legal or equitable in nature, but it must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind: [33], Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 at 51–52, applied.
4. Australian common law does not exclude the recognition of native title interests on the part of non-Australian citizens. However, the operation of ss 223 and 225 of the Torres Strait Fisheries Act 1984 (‘the Act’) will likely preclude PNG nationals from obtaining a determination of native title as the Act limits native title interests in the Torres Strait area to those held by descendants of Indigenous inhabitants of the Torres Strait. Nonetheless, the respondent may still be eligible for joinder on the basis that the rights and interests of PNG nationals can limit or qualify native title rights of Torres Strait Islanders: [35], [36].
5. It is reasonably arguable that the Commonwealth has an obligation to ensure that the traditional activities of traditional inhabitants in the Torres Strait are taken into account. This would include evidence that would limit the claim of native title rights by reference to concurrent use by some other group, such as PNG nationals. However, the extent to which the obligation is limited by the Exchange of Notes was not debated before the Court: [46].
6. The Court held that the question of whether PNG villages not protected by the Treaty should be treated as such for the purposes of these proceedings was a matter for the executive governments of Australia and PNG. These proceedings should not be a vehicle for advancing the claim of PNG nationals in this respect. If a PNG group is dissatisfied with its government’s failure to recognise its members as traditional inhabitants for the purposes of the Treaty, redress may be sought through declaratory proceedings in the National Court of PNG: [47].
7. In determining not to exercise its discretion to join Mr Gamogab as a party to the proceedings, the Court also considered the operation of the 1985 Treaty on the rights claimed by the applicants in these proceedings: [38]–[43], the effect of Australian laws such as the Migration Act 1958 (Cth): [44]–[45] and the potential debate initiated between other PNG nationals also affected by this action: [46].
…
32. The Court has a discretion to join a person as a party to a native title determination application if the Court is satisfied that ‘the person’s interests may be affected by a determination in the proceedings’. There are therefore three elements to be considered in a decision under s 84(5) of the NTA:
1. Whether the person has an interest.
2. Whether the interest may be affected by a determination in the proceedings.
3. Whether, in any event, in the exercise of its discretion the Court should join the person as a party.
33. The kind of interest necessary to enliven the discretion under s 84(5) can include ‘... a special well-established non-proprietary connection with land or waters that is of significance to that person’. The interest need not be proprietary or legal or equitable in nature. It must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind – Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 at 51-52 (Black CJ, see also at 84 Merkel J).
34. Within Australia indigenous persons who are not claimants but contend that they have traditional rights and interests within the area of an application for a determination of native title, may have an interest which renders them eligible for joinder as parties. In Kokatha Native Title Claim v The State of South Australia [2005] FCA 836, Mansfield J so held and observed (at [24]):
assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests. They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application. That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be. Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.
35. The criteria for the recognition of native title rights and interests at common law do not exclude the possibility that the common law could recognise the traditional rights and interests of persons who are neither Australian residents or citizens. It is not therefore beyond the bounds of possibility that a PNG national living in PNG who is a traditional inhabitant of the claim area may have rights and interests capable of recognition by the common law. The effect of the Act on the ability of such persons to obtain a determination under its provisions, is another matter. The expression ‘native title’ and ‘native title rights and interests’ as defined in s 223 of the Act ‘... means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters ...’. The term ‘Torres Strait Islander’ is defined in s 253 to mean ‘.... A descendant of an indigenous inhabitant of the Torres Strait Islands’. It would not seem, therefore, that a determination of native title could be obtained by PNG nationals on the strength of rights and interests possessed within Australian waters under the traditional laws acknowledged and the traditional customs observed by the society of which they are part. Nevertheless, the rights and interests of such persons might limit or qualify the native title rights and interests of Torres Strait Islanders. Such a limitation could arise as an element of the traditional laws acknowledged and the traditional customs observed by the Islanders themselves. This would be consistent with traditional concurrent use of areas of the Torres Strait within the claim area with people from PNG. In my opinion, on that basis, the interests asserted by Mr Gamogab, as a member of the relevant traditional community, would render him eligible for joinder as a party.
36. It cannot be said that the interests of traditional inhabitants of the Torres Strait regional claim area from PNG would be unaffected by a native title determination over the sea. A native title determination recognising native title rights and interests on the part of the applicants could render enforceable and protected at Australian law, rights and interests which accord no recognition to the rights and interests asserted by Mr Gamogab and his community. In so saying, I offer no opinion on the question whether Mr Gamogab’s asserted rights and interests as a traditional inhabitant do in truth exist in the claim area.
37. Relevantly to the exercise of the discretion to join Mr Gamogab, it can be said that a consideration of the legitimate traditional rights and interests of PNG nationals who are traditional inhabitants of the claim area would lead to a more accurate definition of the native title rights and interests claimed. The determination could protect the rights and interests of traditional inhabitants from PNG by limiting the scope of the rights and interests of the Torres Strait Regional Seas Claim applicants and their communities.
38. In a first written submission in opposition to the joinder, the applicants said that if the traditional rights asserted do exist they would be protected under the Treaty. So far as the question of eligibility for joinder goes, this is beside the point. However it may be relevant to the exercise of discretion as the Commonwealth, which is a party to the application, has an obligation to honour the terms of the Treaty. That obligation would appropriately extend to ensuring that any traditional rights and interests held by PNG nationals which are protected under the Treaty would not be prejudiced by any native title determination.
39. The applicants submitted that the acquisition of sovereignty in the waters of the Torres Strait meant that all common law and statutes applicable to the area over which sovereignty extended applied to persons who accessed that area from the date of sovereignty. Therefore it was contended that Australian migration, fisheries and associated legislation made it unlawful, at least for PNG non-Treaty groups, to access the claim area and was inconsistent with their continued use of the claim area in accordance with their customary law. The effect, was said to be, to render nugatory any customary law rights PNG non-Treaty groups may have once had in the claim area. Mr Gamogab, it was submitted, was not a member of a Treaty village and therefore any access by him to any part of the claim area would be unlawful and would not be rendered or regarded as lawful by or under the Treaty or any relevant municipal laws of Australia.
40. The Commonwealth disputed these contentions about the effect of the 1985 Treaty. It pointed out that the Treaty dealt with sovereignty in small parts of the claim area. To the extent that it provided for issues of ‘sovereignty’ the relevant provisions of the Treaty:
1. Provided for Australia to have sovereignty over islands to the south of the seabed jurisdiction line and for PNG to have sovereignty over islands to the north of that line.
2. Additionally provided for Australia to have sovereignty over certain nominated islands to the north of the seabed jurisdiction line.
3. Provided for Australia and PNG to have sovereignty over a belt of territorial sea and seabed surrounding each island over which it had sovereignty.
41. The Commonwealth pointed out that the 1985 Treaty did not recognise ‘sovereignty’ in Australia or PNG in respect of those areas of sea and seabed in Torres Strait seaward of the islands and the territorial seas around them. Rather, it apportioned between Australia and PNG certain ‘sovereign rights’ and ‘rights less than sovereignty’ being fisheries jurisdiction, seabed jurisdiction and residual jurisdiction all of which were defined in the Treaty.
42. The Commonwealth submitted that the effect of these provisions in the Treaty is that there is a part of the claim area namely Part B, over which Australia exercises fisheries jurisdiction in respect of its waters and PNG exercises seabed jurisdiction in respect of its seabed. The fisheries jurisdiction excludes rights in relation to ‘sedentary species’. So in the top area of the claim, Australia’s fisheries jurisdiction does not extend to sedentary species. They are covered by PNG’s seabed jurisdiction. There are other parts of the claim area which are beyond the limits of Australia’s territorial sea. They are areas of sea and seabed that fall within Australia’s exclusive economic zone, an area in which under international law, Australia has sovereign rights. The Commonwealth however submitted that Australia cannot be said to have sovereignty over those areas as those rights fall short of sovereignty.
43. As to the contention that it is unlawful for Mr Gamogab and those he represents to access the claim area because of the Act, the Commonwealth pointed out that s 48 of that Act does not have the effect of prohibiting Mr Gamogab and those he represents from using a boat for fishing in the claim area in all circumstances. So it would be no offence against the Act for Mr Gamogab and those he represents to use a boat in the top part of the claim area for the taking of sedentary species there. Whether he would be permitted to do so under the law of PNG is a different question.
44. The Commonwealth submitted that the applicants fell into a similar error in relation to the Migration Act 1958 (Cth). The applicants contended that it was unlawful, by reason of the Migration Act, for persons such as Mr Gamogab and those he represents to access the claim area today despite claimed customary rights. The Commonwealth contended that this statement is far too broad to be wholly correct. It would be absurd to suppose that a person from Mr Gamogab’s village who was sailing through the top area on route to a place in another part of PNG and who was not reasonably suspected by an officer to be seeking to enter the migration zone or an excised offshore place, would be liable to be stopped enroute and placed in detention under s 189 of the Migration Act as contended for by the applicants.
45. It is not necessary for present purposes to rule upon the correctness of the Commonwealth’s submissions. The nature of the issues they raise however, informs the exercise of the discretion to join or not join Mr Gamogab.
46. In my opinion it is reasonably arguable that the Commonwealth has an obligation under the Treaty to ensure that the traditional activities of traditional inhabitants in the Torres Strait which are protected by the Treaty are taken into account to the extent that it is proper to do so in the native title determination process. This may extend to the provision of evidence relevant to the existence of limitations on the applicants’ native title rights and interests by reference to their traditional acceptance of concurrent use of some of the land and waters within the claim area. The extent to which that obligation is limited by the Exchange of Notes was not debated on the motion before the Court.
47. The question whether a PNG village whose members are not treated as traditional inhabitants by the executive governments of PNG and Australia for the purposes of the Treaty should be so treated for the purpose of these proceedings, is a matter for those executive governments. These proceedings should not be used as a vehicle for advancing the case of particular PNG villages in that respect. It may be that a PNG group dissatisfied with its government’s failure to recognise its members as traditional inhabitants for the purposes of the Treaty could bring declaratory proceedings in the National Court of PNG.
48. There is a risk, in my opinion, that the joinder of Mr Gamogab will bring to bear on these proceedings debates between village communities in PNG about their respective interests in the Torres Region Seas Claim area. These are matters best left to the Courts of PNG or to its executive government to resolve by agreement with the Australian government under the Treaty. As a matter of discretion I consider that the joinder of Mr Gamogab, notwithstanding his claimed interest, is undesirable. I consider that attention should also be given to the position of other PNG nationals who have been joined as parties.
49. I do not exclude the possibility that any native title determination which is made pursuant to the Torres Strait Regional Seas Claim will be expressed to be subject to the traditional rights and interests of PNG nationals. It is to be hoped that so much could be made a matter of agreement if the positions of the parties allow. The question then of which PNG nationals would be entitled to exercise those traditional rights and interests could be worked out on a case by case basis in the event of a dispute if one arose. It may be, for example, that the applicants would be able to agree that villages recognised as Treaty villages pursuant to the Exchange of Notes made in 2000, could be identified as members of the classes of person entitled to carry out traditional activities in part of the claim area. The list of such communities need not be exhaustive for the purposes of the determination and need not exclude the possibility that other groups might be included.
50. In my opinion Mr Gamogab’s motion should be dismissed. There will be no order for the costs of the motion.
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URL: http://www.austlii.edu.au/au/journals/AILR/2006/69.html