I wrote this paper for my Indigenous Nations and Marine/Coastal Resource Management class last semester but due to a busy summer I have not had time for any new posts! Sorry!
How Legal Pluralism has Affected the Torres Strait Islanders and their Offshore Rights as Indigenous Peoples.
Abstract
The current plurality of existing legal systems in Australia has made it difficult for Torres Strait Islanders to assert their rights in the control and management of their traditional ocean territories. This report examines how traditional law, state law and international law have developed the existing legislation in Australia with regards to Torres Strait Islander rights to their fisheries and marine space. These pieces of legislation play an important role in how the Torres Strait Islanders interact with their marine space as the legislation represents a combination of pre-European contact traditional law, evolving post-contact state law, as well as the ever evolving body of international human rights doctrine. Through the examination of these interconnected forms of law, legal pluralism was found to have played an integral part in hindering the advancement of Torres Strait Islanders ownership and control over their traditional ocean territory. However, this report also looks at how legal pluralism could provide positive outcomes to the sea claim issues through equal partnership between traditional law and state law.
Keywords: Torres Strait Islanders, Legal pluralism, Territory, Fisheries
1.0 Introduction
On February 7th, 1778 the British claimed sovereignty and ownership over Australia, a land on which as many as half a million Aborigines had lived for more than forty thousand years (Australian Government, 2008a). At the time of colonization Aborigines lived in hundreds of tribal groupings across the country with complex social systems (Cunneen & Libesman, 1995). However, when Europeans arrived they believed that the Aborigines were nomads, living without systems of law, social organization, or property rights, which the British used as their right to claim the continent under Terra Nullius – land belonging to no one (Australian Government, 2008a). According to Cunneen and Libesman (1995), “Terra nullius had two meanings: first, that a country was without a sovereign recognized by European authorities; and secondly, that the people inhabiting the land did not actually own the land – that is, there was no system of tenure”(p.9). Through the application of Terra Nullius the indigenous peoples of Australia were denied the fact that they were the original owners of the land and were formally considered to be subject to British law (Hocking & Hocking, 1999; Cunneen & Libesman, 1995). The application of British common law to the indigenous peoples of Australia presented many problems, especially in terms of property rights. As stated by Shug (1996), for indigenous peoples “State boundaries represent foreign impositions that have disrupted long-standing social relations among communities and obstructed access to traditional territories and economically important natural resources” (p. 209). For the Torres Strait Islanders, the main focus group of this paper, these State imposed boundaries created greater confusion and uncertainty due to the plurality of state authorities and levels of government involved with the coastal region (Mulrennan & Scott, 2000).
The Torres Strait Islands are located in the Torres Strait, which lies between the north-eastern tip of the state of Queensland, Australia and the southern Papua New Guinea coast. The area is productive in marine resources and fisheries, upon which the Torres Strait Islanders have depended for centuries for subsistence and economic prosperity. In the Torres Strait the indigenous concept of the sea as part of a defined, inherited country for which they have inalienable rights and responsibilities to use and manage was overridden by the colonizers concept of the sea as an open common to be managed by governments (Smyth, 1997). This British common law concept of the sea forced the Torres Strait Islanders to become recipients of externally prescribed policies, under which their values, perceptions and aspirations were seldom taken into consideration by colonial or post-colonial governments (Schug, 1996). The plurality of legal systems that were imposed upon the Torres Strait Islanders has made it difficult for the population to continue their traditional ways of life where “land and sea space were integrated within systems of customary tenure, local knowledge, and resource use and management” (Mulrennan & Scott, 2000, p.702). This paper will look at how legal pluralism in Australia has effected the Torres Strait Islanders in their fight for native title offshore by assessing how folk law and how it functioned before colonization; state law and the construction of native title and rights; and International law regarding rights issues, and how they have helped or hindered the Torres Strait communities.
2.0 Torres Strait Islander Traditional Law
The Torres Strait Islands (Fig. 1) were formed around 9000 years ago, following the post glacial sea-level rise, which flooded the land bridge between Australia and Papua New Guinea (Harris, Butler & Coles, 2008). The Strait is comprised of numerous continental and volcanic islands, coral cays, mangroves, complex coral reef systems as well as extensive seagrass beds (Harris et al, 2008). A variety of fish, mollusks, crustaceans, dugons and turtles exist within the inter-tidal and reef zones as well as seagrass meadows of the Strait (Schug, 1996). There are 247 islands in the Torres Strait, eighteen of which are inhabited and it is believed that the “Indigenous peoples of Torres Strait have occupied the islands for at least several thousand years” (Smyth, 1997, p.6). These eighteen inhabited islands are divided into four distinct regional groups: small volcanic eastern islands, the low-lying coral cays in the centre of the Strait, the small alluvial northern islands near the Papuan coast and the larger continental islands off the tip of Cape York Peninsula (Harris et al, 2008; Smyth, 1997).
Figure 1. Map of the Torres Strait Islands, including the Seabed Jurisdiction line, Fisheries Jurisdiction Line and the Torres Strait Protected Zone. (Gilpin,C., Simpson, G., Vincent, S., O’Brien, T., Knight, T., Globan, M., Coulter, C., & Konstantinos, A., 2008)
Customary or traditional law in Australia has existed for centuries and is generally passed on through stories, songs and dance, with certain rituals maintaining the clan’s connection with the land (State of New South Whales, 2010). Traditional Aboriginal law encompasses standards for social behavior, sacred matters and binding rules (Law Reform Commission of Western Australia, 2005). Under traditional law a distinction is made between public and private wrongs, as stated by the Law Reform Commission of Western Australia (2005):
Public wrongs include breaches of sacred law, incest, sacrilege or murder by magic; while private wrongs include homicide, wounding and adultery. The essential difference lies in the manner by which the dispute is resolved. For public wrongs, Elders are actively involved; whereas for private wrongs, the person who has been harmed (and their relevant kin) generally determines the appropriate response. (p. 84)
It has been stated that order under traditional law was maintained through self-regulation and consensus between family heads (Law Reform Commission of Western Australia, 2005). Traditional dispute resolution could involve a council calling public meetings to deal with grievances or the head of the family negotiating the outcome and deciding who would inflict the punishment (Law Reform Commission of Western Australia, 2005). There was and continues to be great diversity between indigenous Torres Strait Island groups in regards to the social, economic, religious and political aspects. As stated by Schug (1996), “[p]rior to European contact, the inhabitants of the region were organized in small communities which were politically and socially autonomous although alliances may have been forged based primarily on intermarriage, raiding and the reciprocal exchange of food and other resources” (p. 211). The existence of socially autonomous groups presents difficulties for Australian jurisprudence and legislation when attempting to tie state law with traditional law, which “can often encourage atomistic claims by lineages, clans and island communities, since these are or were pertinent corporate identities in the customary system” (Mulrennan & Scott, 2000). This complex aspect of legal pluralism in Australia will be discussed further in section 3.0, Australian state law as it applies to Torres Strait Islanders.
For centuries, before the British claimed Australia under Terra Nullius, the indigenous populations of the Torres Strait Islands developed elaborate social and economic arrangements regarding their ‘country’, which were guided by traditional law. According to Nettheim, Meyers and Craig (2002), “‘Country’ is a term often used when referring to a physical or metaphysical place of origin for members of an Indigenous clan, kin-based group or looser community. It includes the values, places, resources, stories, myths and cultural obligations associated with a geographical area, including land and sea” (p. 377). All Torres Strait Islanders made extensive use of the sea; with marine resources playing an important role culturally as well as in the domestic economy and as stated by Mulrennan and Scott (2000), “reefs, lagoons and seas are fundamental to [Torres Strait Islanders] livelihood, economic prospects and identity” (p. 688). Under customary law, the adjoining estuaries, beaches, coastal waters and ocean were inseparable from clan land estates, and “radiating out from each island were large areas of ocean regarded as belonging to particular groups within each island” (Smyth, 1997, p.7). For the coastal populations of the Torres Strait Islands this was an important aspect of island life as it allowed for clan space to fish and travel and as stated by Smyth (1997), “in pre-colonial times, neighboring clans respected each other’s exclusive rights to use and manage marine resources, and to negotiate access to those resources by others” (p. 7). It is important to note that this aspect of traditional law functioned in the complete opposite manner compared to how state law interacts with traditional law in current practice.
2.1 Traditional Fisheries Management in the Torres Strait
Traditionally there were two types of marine resource management used in the Torres Strait: selective exploitation and customary marine tenure (CMT)(Mulrennan & Scott, 2000). Selective exploitation is regulated by local cultural and social controls. CMT on the other hand is a system of “community ownership of sea and reef space…which established territorial rights over resources and served to control access and exploitation by others” (Mulrennan & Scott, 2000, p.688). There are various recognized functions of the CMT system: control invasion of local marine space, regulate use by groups, or act to control exploitation of specific resources and the use of particular fishing gears (Mees & Anderson, 1999). Through the use of CMT communities were able to maintain livelihood security and ensure conservation utilization of resources (Mees & Anderson, 1999). With colonization and the commercialization of the Torres Strait fisheries, which has been occurring for the past centuries, the Islanders have faced difficulties trying to continue their application of traditional fisheries management as well as developing their economies.
2.2 European contact with the Torres Strait Islanders and the Fishery
During the era of European contact and settlement the indigenous populations of Australia suffered greatly from death, illness, displacement and dispossession, which disrupted traditional lifestyles and practices (Australian Government, 2008b). It is believed that between 1788 and 1900, the combination of disease, loss of land and direct violence reduced the Aboriginal population by 90 percent (Total Human Resources, n.d.). Europeans did not begin to explore the Torres Strait until the mid-19th century and these surveying voyages represented the beginning of great social and economic change for the inhabitants of the Strait (Lawrence & Lawrence, 2004). Contact between the Torres Strait Islanders and the Europeans became more common during the 1860’s due to the commercialization of the pearl and bêche-de-mer fisheries of the Strait (Mulrennan, 2001). This commercialization led the Islanders to witness first-hand, the exhaustibility of their marine resources, with the depletion of the pearl shell and trochus shell; however, the over-exploitation and poor management policies were controlled by the Europeans, with the Islanders working as seamen and divers (Mulrennan, 2001). Due to the region’s economic productivity the Queensland government began to seek control over the Torres Strait and the islands under its jurisdiction. In 1879, “[e]fforts towards annexation of all Torres Strait islands by Queensland were eventually achieved with the passing of the Queensland Coast Islands Act, which recognized Queensland control over the eastern and northern islands (Lawrence & Lawrence, 2004, p. 23). This act was one of the first of many that would affect the Torres Strait Islanders and their traditional way of life, placing them under direct rule of the Crown and Queensland. As stated in the long title of the act it was meant “to Provide that Certain Islands in Torres Strait and Lying Between the Continent of Australia and the Island of New Guinea shall become Part of the Colony of Queensland and Subject to the Laws in Force therein” (Queensland Act No. 1, 1879). After the Queensland Coast Islands Act was passed statutes were enacted to prevent foreigners from appropriating land belonging to local inhabitants, however, the government declared the area from high-water mark seaward to a distance of three miles as Crown lands, which impeded upon the indigenous communities claims of ownership of the sea (Schug, 1996). Schug comments, that “[n]either the British nor Australian colonial administrations formally recognized clan or village claims to ownership of reefs and inshore waters.” (1996, p.214).
3.0 Australian State Law and its application to Torres Strait Islanders
During the nineteenth century the indigenous populations of Australia were in a conflicting position in regards to the law, as they had their own system of law but were also held subject to the newly introduced British law (Cunneen & Libesman, 1995), which resulted in “a hodgepodge of coexisting legal institutions and norms operating side by side”(Tamanaha, 2008, p.382). The application of British law on the Aboriginal peoples of Australia was done through violence or the threat of violence; they did not have the same or equal legal status as non-aboriginals and were subject to various special laws that affected their treatment (Cunneen & Libesman, 1995). In the past Australian State law has included or purposely excluded Aboriginal and Torres Strait peoples, which mainly produced negative effects on the indigenous populations. Currently however, state law is taking steps to create more positive outcomes in legislation through amendments, recognition of native title and the development of new legislation with the intention of improving the situation for the indigenous populations.
3.1 1967 Referendum
In 1967 a national referendum was held in Australia. The referendum was introduced to remove two references in the Australian Constitution, which discriminated against Aboriginal and Torres Straight peoples. The two clauses under discussion were:
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...(xxvi) The people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws.
127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.
There was very little opposition to the proposal of the removal of the clauses, seeing the highest YES vote ever recorded in a federal referendum, with 90.77 percent voting in favor of change (Hughes, 2007). The referendum also required that Aboriginal peoples be counted in the national census. Prior to this referendum, legislation concerning Aboriginal peoples was mainly a state rather than Commonwealth matter. The referendum brought about change, with the Commonwealth assuming the responsibility of making laws relating to Aboriginal peoples.
3.2 Mabo and the Establishment of Native Title
Aboriginal and Torres Strait Islander peoples have fought for the recognition of their land rights since European settlement began. In 1982 it was Eddie Mabo and his supporters who decided to abandon past methods of resistance and instead by-passed state and federal governments and took their case directly to the High Court of Australia (Northern Land Council [NLC], 2003). The Mabo case was concerning the Murray Islanders right to the use and enjoyment of their traditional lands and surrounding islands, seas, seabeds and reefs, which the Meriam people had used and occupied before and since the annexation by the Australian government (NLC, 2003). Up until the Mabo decision the “legal system in Australia refused to accord the status of property rights to indigenous land tenures” (Fingleton, 1999, p.19). In 1992, the High Court of Australia delivered its landmark decision regarding Mabo v Queensland [No. 2] and rejected the “terra nullius” doctrine that had existed since 1788, which changed Australia’s land laws forever. The High Court held that “the Torres Strait Islanders of Mer, Dauar and Waier owned their islands and that their ownership survived colonization” (Cunneen & Libesman, 1995, p. 109). The Court also held that “the common law of Australia recognizes a form of native title, to be determined in accordance with Indigenous traditional law and custom” (Australian Government, 2008c). Common law native title was described by Justices Deane and Gaudron as “a title derived from and conforming to traditional custom but recognized and protected by common law” (Strelein, 2009, p. 10). Once the judgment was passed the court had to assess whether the two parallel systems of land tenure could coexist. These existing systems were the Indigenous system, which had operated for many thousands of years; and the colonial system, with the present freehold and leasehold title regimes (Robinson & Mercer, 2000). In this respect, it was noted by Judge Brennan that “preexisting title had been recognized in conquered and ceded countries where the English system of land law had been instituted…[and] that native title could also be recognized in a settled colony once the distinction between land ownership and political sovereignty was acknowledged” (Cunneen & Libesman, 1995. p. 113). An important aspect to note in regards to native title is the Crown’s right of extinguishment. As stated by Strelein (2008):
The power of the Crown to extinguish is central to native title, making it vulnerable to acts of the new sovereign. This power is inconsistent with Indigenous peoples’ relationship to land. Native title rights and interests, which emerge from the law and customs of Indigenous peoples, may lose recognition under the common law despite continuing to exist, and to be exercised, under Aboriginal law. (n.p.)
It is important to note that the Mabo High Court decision did not take into account the Meriam sea claims. As stated by Mulrennan and Scott (2000), “‘Mabo’ was a landmark decision, but it brought no sea-change; recognition of Meriam native title is limited to land above the high water mark” (p. 687). The purposeful neglect of the sea claim had a negative effect on the Torres Strait Islanders as the seabed, reef and ocean are considered to be part of the Islanders territory and are inseparable from land-space.
3.3 Native Title Act, 1993
The Federal Government of Australia responded to the High Court’s decision of Mabo by enacting the Native Title Act (NTA). In the preamble of the NTA it is stated that one of its aims is to “rectify the consequences of past injustices…for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders”. This Act “provided legal and administrative mechanisms for the recognition and protection of native title wherever it could be demonstrated to still exist in Australia in the 1990s” (Robinson & Mercer, 2000, p. 1). For an Aboriginal claimant to obtain native title they must first prove that traditional association with the land or sea that they are claiming has been maintained and must also prove that no conflicting property claims extinguish their title (Strelein, 2009). The four main objects of the NTA were:
(a) To provide for the recognition and protection of native title; and
(b) To establish ways in which future dealing affecting native title may proceed and to set standards for those dealings; and
(c) To establish a mechanism for determining claims to native title; and
(d) To provide for, or permit, the validation of past acts invalidated because of the existence of native title (Strelein, 2009, p.4)
Under the Act, there is no aboriginal right or veto over development projects within native title areas, Aboriginal peoples also do not have the right to control or participate in environmental management (Mulrennan & Scott, 2000).
In terms of Native title in regards to sea claims, the act “recognizes that native title may exist in respect of waters, but reinforces a strong division between land and sea” (Mulrennan & Scott, 2000, p. 692). Under section 6 of the act, ‘Application to external Territories, coastal sea and other waters’, it is stated that: “This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973”. Under the definitions section of the act water is defined as:
(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or
(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or
(c) the shore, or subsoil under or airspace over the shore, between high water and low water.
The Act does not treat land and sea claims differently, it does however protect existing Crown ownership of natural resources as well as the control and regulation of water flow, and most importantly the existing public access to and enjoyment of offshore waters (UN, 2010). As stated by Mulrennan and Scott (2000), the Act “appeared to limit sea rights to elements of traditional usage, and not to extend rights analogous to full ownership as was possible in regards to land”. This lies in direct contradiction of Torres Strait Islander traditional law, where the land and sea were considered one in regards to ownership. Under the Act the Australian government retains the power to override native title that may interfere with public access or industry. The UN Permanent Forum on Indigenous Issues claims that “[o]verwhelmingly, the native title jurisprudence reveals a trend of recognizing indigenous fishing rights offshore as non-exclusive, non-commercial interests’ subject also to the common law public right to fish and the international right of innocent passage” (p. 10).
In 1998 the Native Title Amendment Act was passed. This Act “represented a watering-down of some of the significant gains made by Aborigines in the previous four years” (Robinson & Mercer, 2000). The 88 amendments that were made to the act, which added over 300 pages to the original act, were done so without consultation or consent from the indigenous populations of Australia, to whom the Act applies (Burke, 1998; Robinson & Mercer, 2000). As stated by Robinson and Mercer (2000), the “amendments involved a major shift in the power balance, carefully worked out in the 1993 Act, away from Aboriginal interests and towards those of resource developers and the State and Territory governments” (p. 354). On March 18, 1999 the United Nations committee on the Elimination of Racial Discrimination (CERD) charged the Native Title Amendment Act of discriminating against indigenous title holders by “validating past acts, extinguishing native title, upgrading primary production and restricting the right to negotiate” (Triggs, 1999, n.p.). The CERD called on Australia to address the concerns stated by the committee and to consult with the indigenous populations in order to come to an acceptable solution for all parties involved (Triggs, 1999). The Australian Government rejected the decision from CERD; however, it is encouraging to note that the Australian Government passed a second Native Title Amendment Act in 2009, which “reforms to improve operation and outcomes in the native title system” (Australian Government, 2009).
3.3.1 Croker Island Seas Claim
“The history of native title and its steady erosion from a mechanism for recognizing aboriginal ownership to a mechanism for further dispossession” is visible in jurisprudence that has taken place in regards to sea claims (Wilson, 2009, p.268). The Croker Island Seas Claim was the first native title claim to the seas to reach the High Court under the Native Title Act. The case was brought to the Court by traditional owners of Croker Island, who sought exclusive possession, and “the claim did not separate out “ceremonial”, “economic” or “social” values inherent in the sea, but presented a “holistic argument for long-standing and distinctive native title rights” (Robinson & Mercer, 2000). The case was decided in 1998 and ruled that native title exists over the entire area of the sea and sea-bed that was claimed, which totaled approximately 2,000 square kilometers (NLC, 2003). Although it was considered a landmark case, being the first time that Australian Courts recognized native title existing over the sea, the decision was considered limited, as it gave little to no power to the traditional owners in regards to the development of their sea country (NLC, 2003). In the decision native title was defined as ‘non-exclusive’ and ‘non-commercial’(NLC, 2003), which ultimately extinguishes offshore native title rights.
3.4 Torres Strait Treaty, 1985
The 1985 Torres Strait Treaty is an agreement between Australia and Papua New Guinea regarding sovereignty and maritime boundaries and also recognizes indigenous offshore rights to fish. There were two important boundaries demarcated under the Treaty: the Seabed Jurisdiction Line and the Fisheries Jurisdiction Line. The Seabed Jurisdiction Line ensures that Australia has rights to all things on or below the seabed south of the line and Papua New Guinea has the same rights north of the line (Schug, 1996). The Fisheries Jurisdiction Line ensures that Australia has rights over swimming fish south of the line and Papua New Guinea has the same rights north of the line (Australian Government, n.d.). According to Smyth (1997), “the treaty requires that the resources and environments of Torres Strait be managed in such a way as to protect the lifestyles of the traditional inhabitants on both sides of the border” (p.12). Under the Treaty the Torres Strait Protected Zone (TSPZ), which includes most of the islands and reefs in the region, was established to provide a space where Torres Strait Islanders and the coastal people of Papua New Guinea could continue their traditional way of life and livelihoods. Under the Treaty ‘traditional activities’ are interpreted liberally considering the variety of groups and cultures existing within the Protected Zone; however, the Treaty specifically eliminates any possibility of commercial activities (Schug, 1996). As stated by Mulrennan and Scott (2000),
The result [of the Torres Strait Treaty] is the creation of a highly complex regime, which attempts to accommodate, or at least not to further prejudice, unresolved Islander rights and claims, while satisfying a wide range of competing interests in traditional fisheries, commercial fisheries, recreational fisheries, international shipping, etc. through abstract political boundaries. (p. 689)
Under the Treaty the Indigenous peoples authority and ownership within their customary marine estates are not acknowledged, and although the Treaty does provide for periodic consultation, it does not provide for any formal involvement of the indigenous populations at the decision making level in the control or management of the marine environment and resources (Mulrennan & Scott, 2000; Schug, 1996). The Torres Strait Treaty falls under the jurisdiction of the Australian Commonwealth and the Papua New Guinea government placing Islander input at the consultative or advisory level and it has been stated that the indigenous inhabitants “have a subordinate if not marginal position within the Treaty regime” (Mfodwo & Tsamenyi, 1993, n.p.).
4.0 International Law
In recent decades there has been strong development in international law regarding indigenous peoples. According to Smith (2008), treaties between states and indigenous peoples are products of unequal relationships, with negotiations taking place during unfair circumstances which causes “indigenous nations [requiring] another source of rights, freedoms, and protections beyond the states that they exist within as internal colonies. They need rights granted by human rights treaties that allow for the maintenance of cultural integrity” (p. 1821). For indigenous populations who live along the coast, such as the Torres Strait Islanders, ocean use has been central to their livelihood and is a major component of their culture (UN, 2010). Australia has signed several conventions and other legally binding international agreements, which directly relate to the recognition of Indigenous rights and interests in the management of Australia’s oceans (Smyth, 1997). Some of the major developments in human rights doctrine which will be discussed in this section are: United Nations Declaration on the Rights of Indigenous Peoples; International Labour Organization Convention No. 169; and Agenda 21.
4.1 United Nations Declaration on the Rights of Indigenous Peoples
The UN Declaration on the Rights of Indigenous Peoples was adopted on September 13, 2007, by a majority of 143 States in favour, 4 against and 11 abstentions (Smith, 2008). The purpose of the Declaration is to provide an international standard through which State behavior towards indigenous peoples can be judged, as well as to integrate “the voice of indigenous peoples into the United Nations body and its human rights regime” (Smith, 2008, p. 1821). Some of the central principles of the Declaration include: non-discrimination and fundamental rights, self determination, cultural integrity, rights to lands, territories and natural resources, and other rights relating to socio-economic welfare (Davis, 2007). The Declaration also includes a number of articles that deal specifically with the rights of indigenous peoples in regards to natural resources. According to article 8(2b), “States shall provide effective mechanisms for prevention of and redress for any action which has the aim or effect of dispossessing them of their lands, territories or resources”. Article 20(1) states that “Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities”. And finally article 26(2) states that “Indigenous peoples have the right to own, use develop and control the lands, territories and resources that they possess by reason used or acquired”, which implies that Torres Strait Islanders have the right to control and manage their traditional marine space.
It is important to note that this is a declaration not a treaty, and therefore does not hold the weight or binding force of a treaty. It does however; present a standard for State interaction and recognition of the indigenous populations residing within that state and could be used by the Torres Strait Islanders in their attempts to regain access and control of their traditional marine resources and ocean territory.
4.2 International Labour Organization (ILO) Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169).
The International Labour Organization Convention No. 169 “recognizes the aspirations of [indigenous peoples] to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live” (ILO, 1989, n.p.). The Convention is strongly based on the ideas of consultation and participation and includes several relevant provisions regarding indigenous rights to sea fisheries. Article 13 articulates that under article 15 and 16 the term lands refers to the total environment of the areas “which the peoples concerned occupy or otherwise use”, which infers the inclusion of offshore sea areas. This is an important aspect to note, as article 15(1) states, “the rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources”. Applying article 15 in the battles over their coastal fisheries, the Torres Strait Islanders could become successful participants in the management decisions.
4.3 Agenda 21
Agenda 21 was adopted by the Plenary Session at the United Nations Conference on Environment and Development in June 1992. Chapter 26 of the Agenda focuses on recognizing and strengthening the role of indigenous people and their communities. The agenda includes the provision that the role of indigenous peoples and their communities should be recognized in the national and international efforts to implement environmentally sound and sustainable development (Smyth, 1997). Chapter 17 of the agenda refers to the protection of the oceans and sections 17.6, 17.75, and 17.80 state that coastal States should consult with indigenous peoples during the process of developing ocean management plans; that traditional knowledge should be taken into account when developing management programs; and that the protection of indigenous peoples access to traditional marine food needs to be taken into account. Many sections of the agenda, such as those mentioned above, could be used to strengthen the Torres Strait Islanders cases in the recognition of their right of ownership and management of their ocean territory.
5.0 Legal Pluralism
This paper has attempted to present the various legal orders that are imposed upon the Torres Strait Islanders – customary laws, state laws and international laws- and how these laws interact in regards to the ownership of the sea. The Torres Strait Islanders, in their battle for sea claims, have “participated in creating legal pluralism by adopting state regulations to gain access to [the] resources and, not uncommonly, by invoking customary law to justify their right to do so” (Prill-Brett, 1994, p.688). Legal pluralism has been defined by Prill-Brett (1994), as “the existence of different bodies of law within the same sociopolitical space, which compete for the loyalty of a group of people subject to them” (p. 687). The jurisdictional redundancy that exists in the Torres Strait undermines the rights and authority of the indigenous residents and is problematic due to the fact that environmental processes, such as pollution and degradation, do not respect provincial, national or international boundaries (Mulrennan & Scott, 2000). As stated by the UN (2010), in Australia “jurisdiction over fisheries is now shared through a network of Commonwealth legislation and corresponding State and territory legislation” (p. 14). There have been various issues which have presented themselves in terms of State law, such as the Torres Strait Treaty, which have had a direct effect on Torres Strait Islanders and their relationship to the sea. The “inadequate involvement of Islanders in management decisions means that little has been achieved at the level of actual resource use” (Mulrennan & Scott, 2000). This inadequate involvement results in “conflict, non-compliance and obstruction [which] are the frequent results of the disconnection between those making resource management decisions and those most affected by these management decisions” (Wiber & Milley, 2007, p.4).
International law caters to the idea of legal pluralism by looking at customary law and elevating its status in legal discourse so that it gains equal standing as state law. To ensure equal partnership in the management of resources it is important for customary law, local knowledge, and indigenous tenure to not be held subordinate to Crown property conceptions or state management approaches (Mulrennan & Scott, 2000). However, creating an equal partnership in the management of a fishing resource can be problematic, especially if there has been a history of discrimination, as in the case of Australia, as “local users justify their principles on the basis of dependency on the resources and long-standing involvement in the management of such resource. State managers often justify their decisions by reference to a larger ‘public good’” (Wiber & Milley, p.5).
It has been stated that the “the legal recognition of indigenous groups has inescapably meant the subordination of indigenous legal systems, in the process of “recognizing” clans and other customary groups through outsider’s eyes” (Fingleton, 1998, p.7). However, it is important to note that it is not the intent of legal pluralism to assimilate indigenous cultures by imposing Western values but in many cases the imposition of one system onto another can have unexpected effects. It has been recognized, however, that “to improve the legal situation of the [indigenous populations] recognition by the state authorities both of cultural difference and of their customs and legal perceptions is required” (Svensson, 2005, p.74). As stated by Svensson (2005), “interlegality can function as an efficient means of resisting fragmentation and the powerlessness severely experienced by indigenous peoples” (p.76).
6.0 Conclusion
Legal pluralism exists in every social arena, from the lowest local level to the most expansive level (Tamanaha, 2008). These overlapping bodies of law may create conflict and complexity; however, as stated by Svensson (2005), “it is the continual flow of legal perceptions, the dynamic force of pluralistic arrangement, that reshape state law to better accommodate the cultural distinctiveness of indigenous peoples….without necessarily having to establish a legal system…in its own right” (p.74). To increase the chances of legal pluralism working to benefit everyone involved it is important that both parties are aware of some of the key features of a functioning multi-legal system: incorporation, recognition and respect.
For centuries Torres Strait Islanders have fought against the neglect and marginalization of their sea rights. The issue of legal pluralism in Australia in regards to indigenous peoples has played an important role in this marginalization. The Aboriginal and Torres Strait populations of Australia were not presented with treaty agreements under Terra Nullius but were instead “subjected to elaborate administrative and legislative regimes imposed by external governments” (Mulrennan & Scott, 2005, p. 685). As stated by Robinson and Mercer (2000), “what aboriginal people are seeking is a property rights’ regime which enables the sea and sea-bed to be shared with other users so long as access permission is requested, and so long as certain resource management safeguards relating to pollution, over-fishing and access to sacred sites, are respected.” (p.355). For the Islanders to become more involved in the management practices of the sea on which they have lived and used since time immemorial, respect between both parties is fundamental. As stated by Wiber and Milley (2007), “[w]ithout open and respectful dialogue between advocates of the government and the community there can be no effective and long-term resolution of the inconsistencies between the two approaches to management” (p.7). In this age of globalization Torres Strait Islanders and the Australian Government need to look to examples from other countries and to make use of international law to work together on equal ground to develop a positive outcome for the traditional fisheries and marine space in the contemporary legally pluralistic environment of Australia.
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