FEDERAL COURT OF AUSTRALIA

Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) [2006] FCA 1173

NATIVE TITLE – parties – joinder – Torres Regional Seas Claim – nationals of Papua New Guinea having traditional connection with parts of the claim area – claim for joinder based on ‘interests’ of PNG nationals in relation to the pursuit of traditional activities – Torres Strait Treaty – recognition by exchange of notes between governments of certain PNG communities as traditional inhabitants – applicants for joinder not included under Treaty – native title determination proceedings inappropriate vehicle for resolution of disputes between PNG village communities – inappropriate vehicle for advancing case for recognition by executive governments under Treaty – Commonwealth appropriate party to ensure protection of traditional activities of PNG nationals in Torres Strait – joinder application refused on discretionary grounds

Native Title Act 1993 (Cth) s 84

Torres Strait Fisheries Act 1984 (Cth) s 8

Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters Article 10(3), Article 12, Article 1

Akiba v State of Queensland (No 1) [2006] FCA 1102 cited

Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 cited

Kokatha Native Title Claim v The State of South Australia [2005] FCA 836 cited

LEO AKIBA, JOSEPH TABITII, GEORGE MYE AND NAPOLEON WARRIA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE v STATE OF QUEENSLAND AND OTHERS

QUD 6040 OF 2001

FRENCH J

8 SEPTEMBER 2006

PERTH (HEARD ON THURSDAY ISLAND)

THE COURT ORDERS THAT:

1.                  The motion of Pende Gamogab for joinder as a party be dismissed.

2.                  There be no order as to the costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The Torres Strait Regional Seas Claim is a native title determination application which was filed in the Brisbane Registry of the Federal Court on 23 November 2001 in the name of four persons representing communities of Islanders in the Torres Strait. The Torres Strait Island communities on whose behalf the application is brought comprise the relevant native title claim group. The area covered by the application is approximately 44,000 square kilometres in the Torres Strait and the Coral Sea, seaward of the high water mark around islands in the Torres Strait.

2                     The land and waters the subject of the claim are divided into parts designated Part A and Part B. Part A claims land, waters, reefs, sand banks, shoals and seabeds and subsoil on the seaward side of the high water mark contained within described external boundaries. These include the outer limits of the territorial sea of various islands and cays. Part B claims are the waters on the seaward side of the high water mark but not the seabed or subsoil exclusive of the territorial seas of Aubusi, Boigu, Moimi, Dauan, Kaumag and Saibai within that external boundary.

3                     There are two classes of native title rights and interests claimed. The first class covers areas which are not subject to certain types of ‘public rights’ or ‘previous acts’. In those areas the claim is for exclusive possession. In relation to other areas the native title rights and interests asserted include rights to control the access to, and use and enjoyment of the land and waters and the taking of resources by others subject to various exceptions.

4                     The application was referred by the Court to the National Native Title Tribunal (the Tribunal) for mediation on 4 February 2003. The respondents then joined included the Commonwealth of Australia, the State of Queensland, the Australian Maritime Authority, other indigenous interests, the Torres Strait Regional Authority, various fishermen, the Queensland Rock Lobster Association and some nationals of Papua New Guinea (PNG).

5                     Cooper J, who had been managing the application as Docket Judge, died in March 2005. The applicants were granted leave to amend their application on 27 June 2005 and motions were subsequently filed for the joinder of various parties including the Torres Shire Council, MG Kailis Pty Ltd and certain PNG nationals.

6                     At a general case management directions hearing convened on Thursday Island on 7 July 2006 the joinder motions were argued. Orders were made for the joinder of MG Kailis Pty Ltd. A motion for the joinder of the Torres Shire Council was heard on that day and dismissed on 18 August 2006 – Akiba v State of Queensland (No 1) [2006] FCA 1102. A further motion by Mr Pende Gamogab for the Dangaloub-Gizra group at Kupere Village sought his joinder on their behalf. For the reasons that follow, although I consider that Mr Gamogab has an interest which would render him eligible for joinder as a party, I am of the opinion that as a matter of discretion he should not be joined and his motion will be dismissed. The reasons informing the exercise of my discretion in that respect may also affect the position of other PNG nationals who are currently parties to these proceedings.

The basis for joinder of Pende Gamogab

7                     In an affidavit sworn on 14 July 2005, Mr Gamogab described himself as a subsistence farmer and says he lives at the Kupere Village in the South Fly District. He asserted, on behalf of a group he called the Dangaloub-Gizra, traditional rights of movement and ownership and use of resources in the Torres Strait region which is now subject to the Torres Strait Regional Seas Claim. He said, inter alia:

‘We claim ourselves to be a party to true traditional inherent land and resource owners and users as original inhabitants of our customary land on the coast and in the sea together with our SIEPAM (TORRES STRAIT ISLANDER) and ABARSEN (MALIG and GUDANG ABORIGINES) relatives.’

He said that they seek recognition by Australia of their traditional inherent rights of access and movement for traditional purposes in the Torres Strait region and of their usage and ownership of traditionally shared resources in the same or similar manner as Australia has done for their Torres Strait Islander and Aboriginal relatives.

8                     Mr Gamogab set out some Dangaloub-Gizra oral history and what he called the Myth of Origin passed orally from generation to generation, from time in antiquity to the present. According to this myth the Gizra (Dangaloub and Gizra), the Siepam (Torres Strait Islanders) and the Abarsen (Malig and Gudang Aborigines) were all created together. They initially lived together in a traditional village (KOBO) sharing life and culture, initiation practices and the resources of the land and sea until separation. The reference to separation appears to have been related to the inundation of the ancient land bridge joining Australia and PNG.

9                     Mr Gamogab referred to a traditional Dangaloub-Gizra method of cultivation using earth mounds which is found all over Dangaloub-Gizra land, was used in the 16^th century and is also found on Saibai Island and many other Torres Strait Islands. He stated his belief that this illustrated the movement of his people in the Torres Strait region and area to and from before the loss of the land bridge. He also referred to common cultural and ritual practices.

10                  One of the documents exhibited to Mr Gamogab’s affidavit was a submission prepared in 2002, apparently on behalf of the occupants of the Kupere Village, in relation to a proposed PNG-Australia gas pipeline. A covering letter dated March 2002 was signed by Mr Gamogab as the Interim Chairman of the Dangaloub Association. The submission was made in support of Dangaloub clan’s participation in the sharing of benefits which might arise from the project. It was based on a report prepared by a Dr Lawrence Goldman.

11                  Some of the submission provided a useful overview of Dangaloub-Gizra contentions about their traditional history. According to the submission Kupere Village (also known as Kupiru) is located on the edge of the Oriomo Plateau about 120 kilometres North West of Daru and about 5 kilometres directly opposite and North of Butu Malu and Agoar on the PNG coast. It is in the South Fly District of Western Province on the fringe of lowland forest. The village stands near an ancient traditional village site (KOBO) where the first white man is said to have met their people. Kupiru was said to have been made up of people called Dangaloub, which is one of the clans or groups of the Gizra tribe. The other two groups are Zibram, the people of Waidoro and Gizra, the people of Togo. The Gizra tribe was said to occupy and inhabit the area north, north-west and north east of the Torres Strait Island of Saibai.

12                  The origins of Gizra, as explained in tradition and culture and the Myth of Origin, were then described. Three cultural groups, the Dangaloub, Zibram and Gizra merged at Basir Purek with whatever socio-magical powers and belief the Gizra valued and used to master their environment as invented and instigated by their creator, Geadap. All was inherited from the creator and the people were bound together by common customs and beliefs whether on the land or on the sea. The Myth of Origin, which was said to have been passed from generation to generation, also stated that the Abarsen (Aborigines), the Siepams (Western Torres Strait Islanders), the Maligs, the Kutargs and Gizra had the one common birth place at Basir Puerk, otherwise known as Mabudawan.

13                  According to the submission, linguistically and culturally, Gizra is the closest Papuan group in PNG to the Torres Strait Islanders, the Malig and Kutaigs and the Abarsen on the Australian mainland. Research by the anthropologist, Professor Wurm, in 1975 was said to reveal Gizra’s closest linguistic relative in the Mirim language of the Eastern Torres Strait. This was not a trade language but a language inherited from cultural heroes.

14                  The pipeline submission described the customary practice of barter trade between islanders and Gizra. It was apparently somewhat informal and ad hoc based on a clan or sub-clan totemic relationship. Gizra would trade artefacts, garden food, natural edible fruits and crops for clothes, knives, axes, cooking utensils and banana leaves for smoking. Major trading took place at Basir Puerk and Agoar Point. Both the islanders and the Gizra knew when trading was going to take place by sending smoke signals and tallying with broom sticks. According to the submission the Torres Strait Islanders introduced white man’s items such as axes and knives into the trading.

15                  The submission cited the traditional land boundaries of the Gizra tribe and ownership of the resources of the intertidal zone on the coastal shoreline according to a clan allocation. An area of the Torres Strait from the south to the north was said to represent a Dugong called ‘Gisu’ lying from the sea in the Torres Strait towards the PNG mainland where Dugong rituals are performed. This includes Mari Island. Gizra territory hosts the body heart and the head of the Dugong making it a special area within the region. Gizra and Siepam, that is Torres Strait Islanders, were said to have a common belief about the shape of the Dugong and its role in creation of life in the sea. Gizra did not use sea and marine resources as much as the Maligs and Kutaigs, the Abarsen and the Islanders. Traditionally Gizra and the Siepams believed that the Gizra always had adequate cultivated crops and a wide range of edible natural foods within their terrestrial and aquatic environments. The Gizra had a lot of suitable and fertile land for cultivation.

16                  Traditional marine tenure was asserted, which was said to be based on a totemic system determining the clan which in turn would determine the ownership and usage rights. The Gizra and Dangaloub of Kupiru were said to believe that all creatures in the sea were the work of the creator Gisu. The general term which the Gizra and the Dangaloub use to classify aquatic marine plants and animals is ‘Maluan Zaa’. It was said that the Dangaloub use the sea and the coast traditionally for their livelihood. Individual rituals and the application of magical spells is respected and practised in hunting and fishing activities in the sea by both Gizra and the Torres Strait Island community.

17                  The Dangaloub claimed, in their pipeline submission, a very strong linkage to the Torres Strait marine environment. The local cultural perception of Dugong was widespread throughout the entire Torres Strait region, inland Papuan villages and coastal Papuan villages. According to the submission, the Dangaloub used the sea by walking, the use of bamboo rafts and by the use of canoes. They said that the canoe was invented by their ancestor, Muiam, and when Muiam travelled east he would use the canoe which inspired Kiwai and other people to make their own canoes.

The Australia-PNG Treaty concerning sovereignty and maritime boundaries

18                  In 1978 Australia and PNG entered into a Treaty entitled ‘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 Treaty).

19                  Article 1 of the Treaty is an interpretation provision. By Article 2 PNG recognises Australia’s sovereignty over all islands south of a seabed jurisdiction line referred to in Article 4(1) of the Treaty, defined in Annex 5 of the Treaty and shown on a map comprising Annex 6. PNG also recognised Australia’s sovereignty over certain specified islands and cays north of the line. The islands recognised were Aubusi, Boigu, Dauan, Deliverance, Kaumag, Kerr, Moimi, Saibai and Turnagain. Australia recognised PNG’s sovereignty over all islands north of the seabed jurisdiction line and three islands south of the line, being Kawa, Mata Kawa and Kussa. The sovereignty reciprocally recognised over the islands includes sovereignty over their territorial seas, the seabed beneath those territorial seas and its subsoil and any islands, rocks or low-tide elevation lying within their territorial seas.

20                  Article 10 of the Treaty defines a ‘Protected Zone’ comprising all the land, sea, airspace, seabed and subsoil within an area bounded by a line described in Annex 9 to the Treaty and shown in a map comprising Annex 7. The Protected Zone lies both to the north and south of the seabed jurisdiction line in the area between the two mainlands. Article 10(3) states:

‘The principal purpose of the Parties in establishing the Protected Zone, and in determining its northern, southern, eastern and western boundaries, is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.’

21                  Article 12 provides:

‘Where the traditional inhabitants of one Party enjoy traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas that are in or in the vicinity of the Protected Zone and that are under the jurisdiction of the other Party, and those rights are acknowledged by the traditional inhabitants living in or in proximity to those areas to be in accordance with local tradition, the other Party shall permit the continued exercise of those rights on conditions not less favourable than those applying to like rights of its own traditional inhabitants.’

22                  The term ‘traditional inhabitants’ is defined in Article 1 of the Treaty:

‘(m) “traditional inhabitants” means, in relation to Australia, persons who-

(i) are Torres Strait Islanders who live in the Protected Zone or the adjacent coastal area of Australia,

(ii) are citizens of Australia, and

(iii) maintain traditional customary associations with areas or features in or in the vicinity of the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities; and

in relation to Papua New Guinea, persons who –

(i) live in the Protected Zone or the adjacent coastal area of Papua New Guinea,

(ii) are citizens of Papua New Guinea, and

(iii) maintain traditional customary associations with areas or features in or in the vicinity of the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities.’

23                  The term ‘traditional activities’ is defined:

‘(k) “traditional activities” means activities performed by the traditional inhabitants in accordance with local tradition, and includes, when so performed –

(i) activities on land, including gardening, collection of food and hunting;

(ii) activities on water, including traditional fishing;

(iii) religious and secular ceremonies or gatherings for social purposes, for example, marriage celebrations and settlement of disputes; and

(iv) barter and market trade.

In the application of this definition, except in relation to activities of a commercial nature, “traditional” shall be interpreted liberally and in the light of prevailing custom;’

24                  The term ‘traditional fishing’ is also defined:

‘(l) “traditional fishing” means the taking by traditional inhabitants for their own or their dependants’ consumption or for use in the course of other traditional activities, of the living natural resources of the sea, seabed, estuaries and coastal tidal areas, including dugong and turtle;’

The Treaty was made on 18 December 1978 in Sydney and entered into force on 15 February 1985.

25                  In giving effect to its obligations under the Treaty Australia passed a number of amendments to various Acts by the Torres Strait Treaty (Miscellaneous Amendments) Act 1984 (Cth). The Torres Strait Fisheries Act 1984 (Cth) (the Act) was also enacted. Its long title was:

‘An Act relating to fisheries in certain waters between Australia and the Independent State of Papua New Guinea.’

It provided for the regulation of fishing and for the issue of licences of various kinds for taking fish in the course of community fishing and for commercial fishing. Section 8 of the Act provides:

‘In the administration of this Act, regard shall be had to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing.’

Under s 3 of the Act the definitions of ‘traditional inhabitants’ and ‘traditional fishing’ incorporated the definitions of those terms in the Torres Strait Treaty.

26                  It appears from the applicants’ submissions which were, in this respect, undisputed, the definition of ‘traditional inhabitants’ in the Treaty did not lend itself to a straightforward identification of PNG nationals who would benefit from the Treaty. A list of villages whose inhabitants would be regarded as traditional inhabitants for the purposes of the Treaty was agreed by Exchange of Notes between Australia and PNG in 2000. This effectively restricted the definition of the term ‘traditional inhabitant’ to people from one of 14 listed ‘Treaty villages’. The applicants pointed out that this created two classes of PNG nationals who might seek access to Australian waters. The first are those nationals who are from Treaty villages and who are accepted as beneficiaries of the Treaty. The second consists of nationals who did not have the benefit of the Treaty. I have not been able to sight the Exchange of Notes nor to consider their effect on the Treaty obligations.

27                  A detailed review of the history and contents of the Treaty may be found in a paper by Mr H Burmester entitled ‘The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement’, (1982) 76 American Journal of International Law 321-349.

28                  As appears from Exhibit B to the affidavit of Mr Gamogab, his village of Kupere is not one of those regarded as a Treaty village. In a petition addressed to the Honourable Sir John Kaputin, former Minister for Foreign Affairs and Trade of PNG, it was said that a number of villages including Kupere had been ‘…. excluded from the Treaty since 1978.’ One of the demands in the petition was that the Ministry of Foreign Affairs endorse ‘… our membership to the Treaty and accordingly inform Canberra’. This appears to be a matter of ongoing concern to the people of Kupere on whose behalf Mr Gamogab seeks joinder.

Statutory framework

29                  Section 61 of the Native Title Act 1993 (Cth) (the NTA) makes provision for applications to be made to the Federal Court for native title determination. Section 63 provides that an application filed under s 61 must, as soon as practicable, be given, by the Registrar of the Federal Court to the Native Title Registrar. Section 66 sets out the obligations of the Registrar to give notice of the application. The Registrar is required to give copies of the application to the relevant Minister of a State or Territory where any of the area covered by the application is within the jurisdictional limits of that State or Territory. A copy of the application must also be given to representative bodies for areas which it covered. In addition the Registrar is to give notice containing details of the application to the various classes of persons or bodies set out in s 66(3) which include ‘any local government body for any of the area covered by the application …’ (s 66(3)(a)(vi)). The Registrar is required to ‘notify the public in the determined way of the application’ (s 66(3)(d)).

30                  In the case of a claimant application the notice requirements imposed by s 66(3) are not to be complied with until the Registrar has decided, under s 190A, whether or not to accept for registration the claim made in the application (s 66(6)). The notice given under s 66(3)(a) or (d) must specify a date known as the ‘notification day’ (s 66(8)).

31                  The notification provisions are to be read with s 84 of the NTA which deals with parties to proceedings in relation to applications to which s 61 applies. Section 84 provides, inter alia:

‘(1) This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

(2) The applicant is a party to the proceedings.

Affected Persons

(3) Another person is a party to the proceedings if:

(a) any of the following applies:

(i) the person is covered by paragraph 66(3)(a);

(ii) the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii) the person’s interests may be affected by a determination in the proceedings; and

(b) the person notifies the Federal Court, in writing, within the period specified in the notice under s 66, that the person wants to be a party to the proceeding.

…

(5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings.’

The following subsections are not material for present purposes.

Whether Mr Gamogab should be joined as a respondent

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]):

‘The 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 reasonable 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.

Associate:

Dated: 8 September 2006