Extent of Commonwealth responsibilities
The inquiry's terms of reference were broad and the committee has
endeavoured to represent the full range of views and opinions presented to it
in evidence. Some witnesses, however, referred to matters that either did not
fit neatly under the terms of reference or were outside the committee's
purview. In this chapter, the committee discusses briefly some of these matters
which include waste management, the Horn Island airport and villages in PNG who
believe that they have been disadvantaged by the Treaty.
Commonwealth and local council responsibilities
During the inquiry, the Torres Shire Council (TSC) raised a number of
local matters that did not relate directly to the Treaty but which touched on
Safe disposal of Commonwealth
One issue covered the safe disposal of vehicles, and, although a council
matter, did have relevance for Australian government agencies operating in the strait.
Councillor Stephen referred to waste management in the region, notably the
'many old cars that find their graveyards in the islands ', as a major problem
for the local council. Although all the vehicles that come into the Torres
Strait are domestic cargo, once they enter the strait, they are deemed to be in
a quarantine zone and have to have any residual soil removed before they can be
taken out of the region. The derelict cars also provide a reservoir for
Councillor Stephen informed the committee that the cost for council to
transport one car from Thursday Island to Horn Island was about $1,000. Mr
Bernard McCarthy, TSC, estimated that there were approximately 900 to 1,000
motor vehicles discarded in the Torres Strait. Many of these now abandoned cars
once belonged to public servants who purchased the vehicles for use on Thursday
Island during their two-year or three-year tenures. According to Councillor
Stephen, it is hard to trace the owners because once the public servant leaves,
'the locals buy the vehicle, which is on its last legs anyway, so it stays on
the side of the road and we then pick up the impost'.
The council had considered imposing a bond system for cars coming from Cairns
to the Torres Strait. Councillor Stephen informed the committee that they have
'had several talks with quarantine and with our MOU with TSRA to get some
things happening in that area, mainly recycling'.
The committee is of the view that, considering many of the derelict
vehicles were originally purchased by Commonwealth public servants, the
Australian Government should take some responsibility for ensuring the safe,
clean and efficient removal from the Torres Strait of such motor vehicles.
The committee recommends that the Australian Government recognise that
the removal of derelict vehicles from the islands is a major environmental
concern and one that requires close consideration. The committee believes that
the Australian Government should take some responsibility for the safe disposal
of vehicles purchased by Commonwealth officers for use in the Torres Strait.
Horn Island Airport
The airport on Horn Island is another local issue that has a
Commonwealth connection. Councillor Stephen noted that the Horn Island airport 'is
an international airport for us in this region'. He stated:
...whilst it is owned by the Torres Shire Council, it is a
regional access point for the islands north of us, especially as it is the
first port of call here that has been gazetted under the Quarantine Act. As the
first port of call, it is a clearance port for international aircraft...Horn
Island is recorded as the busiest regional airport in Queensland, meaning it is
not just for domestic flights but also for the international flights that we
According to the councillor, the airport not only provides access to the
mainland but 'is the only airport that can provide emergency support for any
emergency incidents in the Torres Strait'.
The Torres Shire Council, which is a small council with a small rate base, is responsible
for running this major and important piece of infrastructure and has sought
funding from both the state and Australian governments to allow it to
strengthen the main runway to allow access for the heavier aircraft, the Q400.
In December 2009, the Queensland Premier and the Commonwealth Minister
for Families, Housing, Community Services and Indigenous Affairs announced an
additional $3.1 million in joint funding that would ensure that the $7.2
million project to upgrade the airport would go ahead.
Councillor Stephen explained, however, that:
While the cost of the overall funding is $7.2 million, we
believe that that was the base that we needed to allow the Q400 to land. There
was a lot of other infrastructure that we had to cut out—for example, lighting.
We now know that there could be a security obligation placed on the airport if
the Q400 does operate, so council has been mindful of that. We have been
continually lobbying both state and Commonwealth to ensure that if there is
that impost placed on the council we will also have that support in funding not
only to establish that infrastructure for security but also for the ongoing
maintenance and operation costs for such assets as have been added on to the
Mr McCarthy informed the committee that lighting at the airport was very
Councillor Stephen indicated further that the flying doctors use the airport,
and the council has 'to cater for night flying and their coming into our area'.
He stated that the airport needs to have appropriate lighting but, at this time,
that upgrade has been taken off the list and will probably happen in stage 2 of
The committee recommends that the Australian Government consider
additional funding for Horn Island airport especially in the areas related to
safety, security and border control.
On a very different matter, the committee received submissions from a
number of PNG villages presenting their views on the Treaty.
Non Treaty villages
The Treaty defines traditional inhabitants from PNG as citizens of that
country who live in the protected zone or the adjacent coastal area of PNG who
'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'. Mr Murphy explained
In the early years of the operation of the treaty, people
were left basically to self-identify. Torres Strait Islanders know who the
people are who they have had traditional relationships with, so there are
interpersonal connections that allow people to say who it is. But there was a
lot of flexibility and leeway for people from villages which are not now treaty
villages to come across.
He understood that before 2000, DFAT made a request to the PNG Department
of Foreign Affairs for a clearer indication of the people to whom Australia had
granted these privileges. The third person note exchanged between Australia and
PNG in 2000 sought to clarify, without formally amending the Treaty, what was
meant by 'adjacent coastal areas' and the term 'in and in the vicinity of the
protected zone'. It identified villages in PNG that were deemed to be Treaty
villages. Mr Murphy described for the committee the various PNG political
interests that were involved in producing this list of Treaty villages and
suggested that when it came back to Australia, 'of course the people in the
department of foreign affairs did not know the situation on the ground there'.
The committee received submissions from a number of villages from the
neighbouring region in PNG claiming that they have, and continue to have,
legitimate rights in the Treaty area: that they were engaged in traditional
cross-border movements long before PNG's independence. They produced detailed
accounts of their strong and long-standing links to the strait. For example, Mr
Sawehame Iabu Sawehame detailed the travels, discoveries and settlement of his
ancestors in the Torres Strait and on the mainland of Australia.
At the moment, however, the Treaty does not recognise people from these
villages as 'original inhabitants of the customary land on the coast of PNG and
in the seas of the Torres Strait' and as such, they do not have the right of
free movement. Some of these villages question the legal status of the Treaty,
suggesting that a number of its key provisions have deprived them of their
rights to cultural heritage and way of life. In their view, these provisions
are unlawful and the Treaty breaches common law and their statutory rights.
Speaking on behalf of the Gizra tribe, Mr Daniel O'Gorman told the
committee that the Treaty 'should be amended so as to include some additional
villages in PNG'. He explained that residents of the 13 Treaty villages are 'able
to cross the border and conduct fishing et cetera in Australian waters;
however, PNG people who are not members of the treaty are unable to do that,
and that includes people from the Gizra tribe'. According to Mr O'Gorman:
The tribe occupies an area not far from Saibai at all; in
fact, it takes about 10 minutes by little dinghy to get from Saibai to these
particular villages. The difficulty is that a lot of the villages that are part
of the treaty are further inland than, for example, the villages that form the
Gizra Tribe. That, as I understand it, is quite a source of frustration not
only for members of the Gizra Tribe but for some other inhabitants in the
He explained further that they want no additional rights to those
currently exercised by Torres Strait islanders which is the most important
Also, he noted that the type of submission made by the Gizra tribe to the
committee was also 'made to the PNG minister for foreign affairs about 18
months ago. We have not heard anything back'.
Mr Peter Niwia Sawabarri, writing in his capacity as Chairman of the
Masaingle Association, went further in petitioning the Australian Government
through the committee for, among other things, the territorial boundary line of
Australia to be moved southward closer to the Cape York Peninsula. He argued
that the 'so-called Treaty Villages representatives brought to Sydney to
observe the 1978 signing of the Border Treaty consisted largely of Kiwai island
settlers who are not the original people of Torres Strait'.
On the other hand, he maintained that:
The Masaingle cultivated and maintained gardens on Badu, Moa,
Yam and Murray Islands for food production. The reefs, islets and coral cays
were our fishing and hunting grounds, and at times we took shelter from storms
or slept in their sheltered waters at night during voyages.
He informed the committee that the Masaingle sailed freely between the
islands to visit relatives and to attend traditional family and tribal
gatherings, feasts, funerals and sacred ceremonies and to exchange goods.
According to Mr Sawabarri, the Treaty has removed their right to freedom of
travel, to interact, visit relatives and extended family and maintain customary
contact and obligations. In his view, it has 'unlawfully dispossessed us of our
land and sea tenure and wrongfully granted access to other persons to harvest
our sea resources'. He did not recognise the Australia–PNG border and the
border treaty and wanted the historical wrong corrected by returning to his people
what was 'rightfully theirs'—'our birthright, our life, our past and our future'.
Mayor Gela noted that there were reasons to believe that some of the
current villages named were 'not the original villages that traded with the Torres
Strait, some of which are excluded and now wish to be recognised under the
treaty'. Although he was of the view that the communities are 100 per cent
behind the Treaty being updated to reflect the current needs of the Torres
Strait and Western Province, he stated:
Our position is that in the current climate we cannot allow
any additional villages to come on board until...what is in place is strengthened
and what needs to be in place is implemented—and there is no flexibility around
He informed the committee that the debate about which villages should be
Treaty villages 'needs to happen on their side; we cannot manage or dictate to
them who should have right of way and who should not'.
With regard to communities being added to the list of Treaty villages, Mr Campbell
quoted from the official 2000 document:
'The Australian High Commission further proposes that the
identification of these villages should not exclude the application of free
movement provisions to traditional inhabitants of additional villages if at
some point in the future their inclusion is deemed appropriate by the
traditional inhabitants of PNG and Australia, in consultation with governments
of both countries and in accordance with the provisions of the treaty.
According to Mr Young, Australia's position remains the same as stated
to the PNG Government a number of years ago: 'that the Australian government is
willing to receive any approach from the government of Papua New Guinea in
regard to villages they would like added to the list that already contains
those that can access the treaty provisions'. He indicated that at this stage,
such a request had not been forthcoming.
Ms Jennifer Rawson, DFAT, added that while the Australian Government would 'certainly
be prepared to listen to and discuss any such request' from the government of
PNG, it had not formed a view whether any such request would be accommodated. She
explained that if there were to be an accommodation, it would not be an
amendment to the Treaty.
The committee understands that a number of villages along the coast
adjacent to the Torres Strait maintain that they should be included as Treaty
villages and are able to produce evidence that establishes their traditional connection
to the Torres Strait. It understands that the 2000 exchange of notes
contemplated that at some future stage additional villages may wish to be
included as Treaty villages. The Australian Government has indicated that it is
prepared to receive and discuss any such request from the PNG Government. Even
though the committee believes that any changes to the status of Treaty villages
should be initiated by the PNG Government, it is of the view that the
Australian Government should be aware of the views of these villages on the
Treaty and their rights.
In this chapter, the committee brought to the Australian Government's
attention a number of matters that were raised during the course of the inquiry
that were outside the key ideas that shaped this report. In the following
chapter, the committee returns to these major themes and, as a conclusion to
the report, draws together the committee's recommendations under a number of
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