Australian Natives Push For Sea Rights

by Kalinga Seneviratne

In what was known as the Mabo Case, they successfully got the High Court to throw out the more than 200-year-old concept of "terra nullius" (unoccupied land) -- that Australia was vast, empty land when the first white settlers set foot on it in 1788.

They were able to prove that the concept was legal fiction devised by the British to grab their land for the British crown.

Now, nearly a decade later, Murray Island's residents are gearing up for another battle -- to claim ownership to the seas around them.

When the late Native islander Eddie Mabo mounted the historic High Court action, the community's rights to the sea was also included in the original claim. But it was withdrawn later to concentrate on proving Native peoples' ownership of the land they have lived in for more than 40,000 years.

Today, with the commercial fishing industry a multimillion-dollar money-maker for Australia, the continent's original owners -- most of whose descendants today live on government-sponsored welfare schemes -- want a stake in this industry.

Even the government-funded Aboriginal and Torres Straits Islander Commission (ATSIC) is getting into the act. They attended a sea rights conference organized by the Torres Straits Islanders in March, and have also begun to actively push the sea rights issue here.

Earlier this month, they called for government-sponsored commercial fishing rights licenses for Native communities to get a slice of the lucrative abalone industry there in Tasmania, at the southern tip of Australia.

"We've gone past reconciliation, now we are into the stage of negotiating back some sea rights," said Tasmanian ATSIC commissioner Rodney Dillion. "Not only sea rights, but the commercial value of it, to get away from welfare dependency for Aboriginal people," he added in a recent radio interview.

In the Torres Straits, the commercial fishing industry is estimated to be worth more than $20 million a year. An estimated 70 to 80 commercial fishermen are operating in these waters. Many of them come as far away as Cairns, Townsville and Mackay on the eastern coast of Queensland.

The Torres Straits separates Australia's largely uninhabited Cape York Peninsula in the north and Papua New Guinea. This shallow stretch of water is dotted with small palm-fringed islands, 17 of which are inhabited by more than 8,000 people of mainly Melanesian descent.

They are known as Torres Straits islanders and have been mariners who have navigated the straits by the stars and lived off the sea for centuries.

In recent decades, they have seen their livelihood destroyed by commercial fishing trawlers. Now, they say enough is enough.

The people of Crocker Island have already mounted a test case over native title rights to the sea. In 1998, Justice Howard Olney of the Federal Court ruled that native title to the sea exists, but they were non-exclusive and non-commercial.

He argued that though Native title existed in the sea, the common law recognition of a public right to fish and to navigate prevented recognition of Native title right to exclusive possession, occupation, use and enjoyment of the same areas.

The islanders lost an appeal in 1999, but they have taken the case further and appealed to the High Court in the capital, Canberra, against the Federal Court ruling.

There is also another case pending in the Federal Courts dealing with sea rights for the Wellesley Islanders off the coast of the Gulf of Carpentaria. Many other claims are also in the process of being lodged.

Native land councils in the area are believed to be quietly discussing the possibility of lodging a blanket claim over the whole of the Torres Straits that will recognize the traditional boundaries of each island group.

ATSIC argues that two pieces of land rights legislation passed since 1976 make provision for some sea rights.

One is the Northern Territory Land Rights Act of 1976, which allows the government to make reciprocal laws that allow groups of traditional owners to apply for "sea closures."

The other is a New South Wales land rights legislation passed in 1986, under which the Wreck Bay Aboriginal community was granted inalienable freehold title to the waters off Jervis Bay on the eastern coast in 1995.

"In both cases (Crocker and Wellesley island) two rights have been conceded. That is the right of innocent passage and common law navigation," a land rights lawyer told IPS.

"The main question in the court is whether Native Title extends to ownership of resources in the sea, such as minerals and fish. Who holds the exclusive right to exploit these?" he added.

Native communities in other developed countries such as the United States, Canada and New Zealand have seen sea rights as the linchpin for Native economic development.

In New Zealand, the Maori people and the government signed a deed of settlement in 1992 that gives $75 million in government funds to develop Native commercial fishing. It is estimated that Maori fishermen now control a third of New Zealand's fishing industry.

Murray Islanders have already warned commercial fishermen to keep off their 30 nautical-mile radius "economic zone."

One Native person, Ben Ali Nona, who confiscated the whole catch of a commercial fishermen using traditional fishing spears, was acquitted of criminal charges by an Queensland judge on the grounds that the government has failed to honor the Torres Straits Treaty signed in 1985.

This stipulates that the "traditional way of life and livelihood of the islanders must be protected."

"They (commercial boats) come in the night time -- they go fishing at night. They are thieves and robbers coming in here," said Nona, who has become a local celebrity since his court victory.

But Federal Fisheries Minister Wilson Tuckey sees the issue differently -- and has asked the Queensland government to send in more police to the area to protect the commercial fishermen.

The islanders say that they cannot compete with the motorboats of commercial fishers, which anchor off their islands for days and send the fish out at first light.

"We are the most isolated island in the Strait, and to do anything or go anywhere costs a fortune. We need to make money to buy fuel so we are able to go out again," Kila Odo, a Native fisherman told The Australian newspaper recently.

"We are being ripped off. The fishermen are coming in here and taking the resources that we own," he complained.