“We are happy to share what we have in the Torres Strait, but we will not give – not a teaspoon of water, not a grain of sand.” This was the war cry of Torres Strait Islander Getano Lui Snr in 1976. Lui Snr was one of the leading political agitators that pressured the Australian government to form the Torres Strait Treaty.
A world first, the Treaty recognised the rights of traditional Inhabitants from both the southern coast of Papua New Guinea and the most northerly point of Australian sovereign territory in the Torres Strait.
From PNG’s independence in 1975, it was a decade before the Treaty was ratified in 1985 and it represented a watershed for First Nations people of Australia and their struggle for recognition, which was a decade before the landmark Mabo High Court ruling. Lui Snr (grandfather of Cynthia Lui, the first Torres Strait Islander Queensland MP) and others resisted attempts of first Prime Minister Whitlam, then Prime Minister Fraser in the “Border No Change” grassroots movement against giving PNG everything north of the ten-degree south mark, which would have resulted in several Torres Strait islands falling under PNG rule.
Another Border No Change movement political leader, Torres Strait Islander George Mye said in 1976: “Torres Strait is the only part of Australia that is interfacing with a foreign country, and that’s something we’ve got up our sleeves and we’re proud of it.”
This was something the islanders leveraged and the Australian government was concerned enough to put Prime Minister Fraser in a sarong, or ‘lava lava,’ and on a chopper to fly up and broker a deal.
Mye confronted Fraser with a rejection of his model of a seabed border. The stand-off continued until May 1978 when Foreign Minister Andrew Peacock returned to the Torres Strait and met with his PNG counterpart, Tatie Olewale, to discuss a draft of the treaty. However, it was another six years before the treaty was ratified.
The final result meant rather than drawing a ‘line in the sand’, a box on the sea was created. This awkward, permeable, shared territory allows residents of only 13 of the 120 PNG villages in the Western Province and residents of the northern cluster of islands of the Torres Strait, to pass freely back and forth without visa or passport, to continue traditional activities, fish and maintain family connections in both countries. It has also placed an indefinite moratorium on mining in the region.
The treaty was a world first, as there is no fixed boundary line, and it recognised the importance of maintaining the ethnic and cultural connections of traditional inhabitants that dated back millennia on both sides of a newly formed border.
It also makes allowances for commercial fishing activity in the region for both countries in the shared region known as the Protected Zone.
The Treaty is at times a difficult marriage, which is often exploited by illegal fishing, dubious border activity and friction from communities on both sides.
With up to 50,000 cross-border movements annually, the Treaty also makes Queensland Health medical centres on the Torres Strait side of the border the front-line to deal with many of PNG’s health issues, including multi drug resistant tuberculosis. PNG’s Western Province has had some of the world’s worst infection rates of this disease. In early 2020 concerns of Covid-19 entering the Torres Strait, resulted in a ban on these cross-border movements.
Australia’s Department of Foreign Affairs and Trade’s website advises: “The Treaty is recognised as one of the most creative solutions in international law to a boundary problem touching on the lives of traditional inhabitants.”
It is considered by legal experts as one of the most complex pieces of maritime law in the world.
This complexity is highlighted in concerns of China signing an MOU with the PNG government in November 2020 to build a $204m “comprehensive multi-functional fishery industrial park” project on Daru Island, in PNG’s Western Province. This could potentially put Chinese-backed commercial fishing boats deep within Australian territory.
It caused Foreign Affairs Minister Senator Marise Payne to blunderbuss in the Senate in December 2020 that commercial-scale fisheries would not be considered a traditional activity under the Torres Strait Treaty and would not be permitted. “Only residents of the protected zone are able to undertake such activities.”
However maritime law expert, ANU Professor of International Law Donald Rothwell says Senator Payne is wrong.
Rothwell says Chinese-funded PNG commercial fishing boats would be “most definitely” allowed to fish the Protected Zone of the Torres Strait, “and that would be entirely viable and sit within the spirit of the treaty.”
The government’s Australian Fisheries Management Authority website states that under the Torres Strait Treaty PNG is entitled to a 25 percent share of the Australian tropical rock lobster resource and 40 percent of the total allowable catch of Torres Strait Spanish mackerel.
This MOU triggered multiple news stories around the world and resulted in an online petition signed by 62,000 people calling for an amendment of the Torres Strait Treaty.
This issue highlights the unique structure of the Torres Strait Treaty where Rothwell says: “The Torres Strait Treaty actually doesn’t make provision for amendment, which is unusual and is considered exceptional today.”
The Torres Strait Treaty is unique in that it was created to both represent traditional Melanesian connections that predated the creation of a sovereign border, while also recognising Torres strait Islanders aspirations for regional autonomy.
However, the world has changed since it was ratified in 1985. Pressures global migration, whether caused by war or, vectors of disease and the world’s dwindling resources will no doubt put the Torres Strait and its treaty, as well as the Queensland and Australian federal governments, again under the spotlight in the 21st century.
Aaron Smith is an award-winning freelance journalist, author, and communications based in far north Queensland.